During the Inter-parliamentary conference which took place in Brussels on 24th and 25th March 1999, the issue of a Charter of fundamental rights for the European Union was debated at great length. The issue has become more topical again since the German Presidency, when putting forward its programme, declared that it will sooner or later be necessary that ‘European Union treaties should be preceded by a charter of fundamental rights’.

The concept is not new. This is not the first time the European Parliament has worked on a project for a charter of fundamental rights for the Community which led to the Declaration on Fundamental Rights and Freedoms adopted on 12th April 1989 and a draft Constitution for the European Union incorporating a catalogue of fundamental rights (10th February 1994). In 1995, the Commission set up a Committee of Experts (second social welfare action programme - April 1995) to examine the future of the Social Charter, in the framework of the adoption of the Maastricht Treaty. In its 1996 report, the Committee made a proposal for the inclusion of a body of fundamental civil and social rights in the future European Union Treaty.

The German presidency which included this issue in its programme, indirectly put the issue of adherence by the European Union to the European Convention on Human Rights at the centre of the debate. This subject is closely linked with the introduction of a catalogue of fundamental rights in an introduction to European Union treaties, since some consider that, were this concept to be adopted, it would not be necessary for the EU to sign up to the European Convention on Human Rights.

Although the FIDH is in favour of including a charter of fundamental rights into European Union treaties, it believes that these two options are not exclusive, but on the contrary, they complement each other in a very useful way. The European Court of Human Rights in Strasbourg increasingly assumes the role of indirectly monitoring the compliance of EU law with the ECHR. For instance, it has already spoken out on measures taken at national level to implement Community law and their compliance with fundamental rights [1]. This role of a monitoring body which the European Court of Human Rights has already adopted in practice is not governed by specific rules (making provision, for example, for a judge to represent the European Community at the Court of Human Rights in Strasbourg or shared responsibility of member states and the Community in the case of violation of the ECHR by an act falling under Community law or national law putting Community action into effect).

If the EU signed up to the ECHR, this would make such a type of scenario would be possible. If it fails to sign up, the European Court of Human Rights will continue to deal with acts committed at Community level outside a specific framework of regulations, which will result in a loss of control of Community institutions.

Individuals only have limited access to the European Court of Justice. They cannot lodge an appeal to cancel regulations or directives which do not affect them directly and personally, even if they are applicable to them. Before the European Court of Human Rights, however, the appeals procedure is largely open to individuals.

Should the EU fail to sign up to the ECHR, the Courts in Luxembourg and Strasbourg might have to make different decisions on an identical issue: each of them would interpret the provision laid down in the ECHR in a different contrasting manner, which would have an adverse effect on the legal certainty and the coherence of the system of human rights protection in Europe. Over the last few years, some contradictory judgments have already been given. If the EU did sign up to the ECHR, this danger could be avoided, since the European Court would then have sole responsibility for appeals under this Convention.
Finally, a jurisdictional control mechanism outside the jurisdictional system of the Community would help to prevent rights and liberties from being weighed up against the exigences of the internal market. This is why the FIDH has strongly advocated EU membership of the ECHR for years (cf. FIDH position paper January 1994).

EU membership of the ECHR could be accompanied by a charter of fundamental rights specifically for the European Union. This approach would make it possible to supplement the rights laid down in the ECHR by economic and social rights and rights directly linked to the European integration.

However, several points need to be clarified :

- Such a charter is not acceptable unless it does not have any adverse impact on the protection guaranteed by existing international human rights standards. It must guarantee the highest possible standard of protection.

- The adoption of such a charter will have to be accompanied by the EU signing up to the ECHR,

- It is imperative that the rights laid down in this Convention be justiciable. In the case of alleged violation of these rights, it must be possible to bring proceedings in court. This cannot be merely a declaration of intent without binding force.

- This procedure will supplement existing jurisdictional mechanisms (notably appeals to the European Court of Human Rights in Strasbourg).

- Such a charter will have to be established in consultation with representatives of civil society, the European Parliament and national parliaments, experts etc.

- The beneficiaries of the rights contained in the Charter will have to be everyone subject to the jurisdiction of member states, since human rights are universal in their very essence.

- Certain rights might be an exception to this principle and only be applicable to EU citizens as well as citizens of third countries residing permanently in the European Union (voting right, right to social welfare, as opposed to health and social security benefits [2], minimum wages, the right to live anywhere within EU territory, etc.). These are rights directly linked to European integration.

Civil society also wants to contribute actively to the project of a charter of fundamental rights for the Community. Initiatives on this issue have already been underway for several years. The FIDH will ensure, in collaboration with other NGOs involved that this project leads to an improvement in the protection of human rights.

Notes:

1. Notably the case of Matthews vs. UK government (18th February 1999) where the UK was sued for violating Article 3 of Protocol 1 of the ECHR (obligation of state parties to hold free elections). The UK government was held responsible for the consequences of an act which falls under Community law which consisted of the failure to hold European Parliament elections in Gibraltar. This resulted in the Government being directly held responsible, as this is a case which falls under Community law, even more so, as it was an offence against national law, but where Community law becomes applicable.

2. Medical and social security benefits : minimal subsistence and emergency medical aid are at the heart of the protection of human dignity.

 

The European Court of Justice
(ECJ)

This Court, which sits in Luxembourg, jointly with the European Court of First Instance, ensures that Community law is interpreted and applied in a uniform way throughout the member states of the European Union. Cases can be lodged by the member states, the institutions of the European Union (Commission, Council of Ministers and Parliament), companies and individeuals. However the latter can only request the cancellation of a Community action if it affects them directly and individually - very restrictive conditions. Community law is the law emanating from Community institutions (basic treaties of the European Union, directives, regulations, decisions etc.) It is uniform throughout the fifteen member states of the Ekuropean Union and takes precedence over national law. The 15 member states of the European Union are also members of the Council of Europe.

The European Court of Human Rights
(ECHR)

This Court ensures that States respect the European Convention on Human Rights, which has been ratified by all the 40 member states of the Council of Europe. The Council of Europe was set up after the Second World War, with the object of reinforcing democracy, human rights and the Rule of Law in the member states.
The Court sits in Stra ;sbourg, and it is now regulated by Protocol 11 of the ECHR, which has been in force since November 1998. Cases can be brought by the Member States (this rarely happens) or by individuals, who can make use directly of the rights enshrined in the ECHR.

 

(From La Lettre n° 15 of April 29)