The Idea to Draft an Autonomous Human Rights - Case Study Example

 The idea to draft an autonomous human rights catalogue for the European Union was meant to signal to the wider public coverage within the Union. The fundamental freedoms are protected by institutional or international texts. No limitation may be placed upon them except where the respect of the fundamental rights and freedoms of others are concerned, or to maintain law and order, in the general interests. Article 6(1), states that the Union is founded on the principles of liberty, democracy, respect for human rights and fundamental freedoms, and the rule of law, principles which are common to the member states. This principle is included in Article 52.1 of the charter. “Any limitation on the exercise of the rights and freedoms recognised by this charter must be provided for by law and respect the essence of those rights and freedoms. Subject to the principle of proportionality, limitations may be made only if they are necessary and genuinely meet objectives of general interests recognised by the union or the need to protect the rights and freedoms of others.”(Art. 52.1)1 It can be argued that the charter of fundamental rights of the European Union does not introduce human rights to the EU context. Most national constitutions include their own human rights catalogue. This in itself cast doubt at to whether the charter added much to the EU principles. The other technical view is that, besides the general reference, EU fundamental rights remain unwritten general principles which are very difficult for non-lawyers to understand and grasp. There are persisting uncertainties about the charter’s field of application, which Article 51(1) generally describes as follows: “The provisions of this charter are addressed to the institutions and bodies of the Union with due regard for the principle of subsidiarity and to the member states only when they are implementing Union law.” If this latter obligation to the member states is interpreted generously-both under unwritten general principles and the EU charter-would imply an extension of EU human rights guarantees. The charter have a political objective of enhancing European identity among the citizens. The distinction between the political pitfalls and the legal achievements of the constitutional process extends to the charter of fundamental rights. “The Union recognises the rights, freedoms and principles set out in the charter of fundamental rights…., which shall have the same legal value as the Treaties.”(Art.6)2 It can be said that the original simplicity of a single constitutional document including among others, the charter of fundamental rights is replaced by the continuation of the acrimonies temple construction of different Treaties, and legal sources. A typical example, is the recent coming into force of the Lisbon treaty in which obscurity replaces real clarity. Legal reforms measures are easily maintained, while the political objectives are largely abandoned. The so called identity-enhancing potential of the charter of fundamental rights is further diminished by the protocol number 30 attached to the treaty of Lisbon which concerns the application of the charter to Poland and the UK. In addition, the charter of fundamental rights, solemnly proclaimed at Nice in December 2001, constitutes a powerful assertion of the importance of weaving the protection of fundamental rights deep into the very fabric of the Union’s wide sweep of activities. The European Union on the face of it, is marked by an embedded commitment to subordinate majoritarian practices in democratic polities to respect for the rights and freedoms of individuals. The commonly referred to as the European convention on human rights, is an instrument for the council of Europe, and not the European union. The European union is not party to the European convention on human rights. The European court has ruled that under the current treaty arrangements it is not open to the EC to accede to the convention(Opinion 2/94 on Accession to the ECHR[1996]ECR1-1759). Treat revision would be required to allow for such a possibility, but it seems there has been no such revision. Without this particular revision, the EU cannot be directly called to account before the European court of human rights, based in Strasbourg.In principle the EU can be controlled by its own court, the European court based in Lexembourg Weatheril(2003,p.80) states: “But all is not what it seems. Or, at least, with regard to judicial enforcement all is not what it seems.”3 The charter of fundamental rights is not legally binding. The commitment made by the Union in Article 6 EU to respect fundamental rights is, on a closer inspection, with deficient in enforcement back-up. In case 4/73, Nold v Commission4, This case constituted a much more serious judicial commitment to the protection of fundamental rights as part of the community legal order. Nold a wholesale coal and construction materials dealer, sought annulment of a commission decision. The decision had authorised Nold’s suppliers, Ruhrkohle AG, to sell coal only subject to onerous condition which Nold could not fulfil. Nold therefore, suffered damage to its business due to the decision, because it could no longer by direct from its supplier. The court first considered Nold’s submissions relating to discrimination and inadequate reasoning: “13.As the court has already stated, fundamental rights form an important part of the general principles of law, the observance of which it ensures. In safeguarding these rights, the court is bound to draw inspiration from constitutional traditions common to the member states, and it cannot therefore uphold measures which are incompatible with fundamental rights.”5 In trying to ‘edit’ the court’s words, one wonders why the court wonders around the member states and drawing inspirational constitutions and traditions. If EU Law is supreme over domestic law as it seems to be, why wonder around rather than getting on with the decisions brought before it? Possibly the charter does not provide the necessary answers sought. In case C-94/00, Requette Freres SA v Directeur General de a concurrence, de la consummation et de repression des frauds6,the preliminary reference concerned the scope of legal protection of business premises subject to search. The court proceeded to emphasize that the absence of an organic link between the EC legal order and that of the ECHR does not preclude it, sitting in Lexembourg, from explicit recognition of decisions taken by the European court of human rights in Strasbourg. “25.In a different connection, the court has likewise consistently held that, where national rules fall within the scope of community law and reference is made to it for a preliminary ruling, it must provide all the criteria of interpretation needed by the national court to determine whether those which derive in particular from the ECHR….” The court further stated(29) that for the purposes of determining the scope of that principle in relation to the protection of business premises, regard must be had to the case law of the European court of human rights subsequent to the Judgment in Hoechst. According to that case law, first, the protection of the premises and, second, the right of interference or business activities or premises were involved than would otherwise be the case. A detailed discussion of these freedoms is to be found in case 44/79, Hauer v Land Rhelnlandptaltz7, a case concerning a community regulation which imposed a temporary ban on all new planting of vines. Hauer owned land in Germany which she wanted to plant as a vineyard and was prevented from doing so by the German courts and a reference was made to the European court which accepted as principles of community law the right to property and the freedom to pursue a trade or profession bur, after pointing out that these rights are not absolute, found that the community measure was justified in the general interest and thus fell within an exception for the rights. The Judgment is of particular interest because the European court not only referred to particular provisions in the constitutions of three member states(Germany, Italy, and Ireland) in order to establish that the right to property is subject to restrictions, but also analysed in some detail the relevant provisions of the European convention on human rights. The case discussed show that the court’s approach to fundamental rights is a little different from its approach to other general principles of law. Hartley(2007,p.136) argues:”…… The reason is that the acceptance of an express doctrine of fundamental rights was prompted by the desire to persuade the German courts to accept the supremacy of community law even in the case of an alleged conflict with the fundamental rights provisions of the Grundgesetz.”8 It is perhaps vital to say that the most important treaty in this respect is the European convention for the protection of human rights and fundamental freedoms. All the member states are parties to it and there is no doubt that the rights protected by it are community human rights. Other treaties to which it has referred include the European Social charter of 18th November 1961 and convention III of the international labour organization of 25th June 1958. It can be argued that the charter of fundamental freedoms adds very little in that it is merely repitation of what already existed in the earlier treaties. On the other hand, the charter has no legal force. In conclusion, it can be submitted that the charter added very little to the existing legal guidance on human rights and freedoms. One of the additions, is the legal dimension of reforming European decision making may be eminent following the charter’s existence. The charter of fundamental rights serves as an instrument to clarify some ambiguities about the quality and basis of EU fundamental rights. The charter makes these rights more visible and serves as an orientation for the case law of the court of Justice. The second enviable point is the political objective of enhancing European identity among the citizens. Here, the charter exemplifies the quasi functions of the European Union. In the constitutional treaty, the charter would have underlined its constitutional character on a symbolic level. Its text would have been the integral second part of the overall and simplified the constitution for Europe, thereby reinforcing the constitutional aspirations of the reform project. The third and final clarification concerns a number of human rights guarantees where the charter assumes a pioneering function and establishes rights which are hitherto not guaranteed in most other human rights catalogues, including the European Convention. Word count: 1,735 References 1 Art.52.1 2 Art.6 3 Weatheril(2003,p.80), Cases & Materials on EU Law, 6th ed, OUP, Oxford 4 [1974]ECR 491 5 Nold v Commission[1974]ECR 491 6 [2002]ECR 7 [1979]ECR 3727 8 Hartley, T.C(2007,P.163),EU Law, 6th ed, OUP, Oxford Read More