ARENA Working Papers
WP 01/13


Chartering Europe:

The Charter of Fundamental Rights

of the European Union

Agustin Jos� Men�nd�z



Also available in the Francisco Lucas Pires Working Paper Series on European Constitutionalism -- WP 2001/3


Chartering Europe

Agust�n Jos� Men�ndez [1]


This article aims at interpreting the Charter of Fundamental Rights of the European Union as a further step in the rise of fundamental rights as the foundation of European law. Doing so requires stressing the degree of both continuity and change in the goals of the legal order of the Communities. Until the seventies, the main concern was lying down the preconditions for the effective protection of rights; later on emphasis has been placed on their direct safeguard. This has come hand in hand with the evolutionary transformation of the Community from economic organisation to political community. The Charter of Rights must be seen as the crowning moment of this process. This interpretation offers an adequate standpoint to consider its legal status and its relationship with the European Convention of Human Rights. It also provides evidence of the role of the Charter as signal of the constitutional moment which is gathering in Europe.


Introduction; I. The Preconditions of rights-protection: peace and prosperity; 1. Peace; 2. Economic Stability; II. The Europe of Rights from Paris to Nice; 1. The rights-dimension of the doctrine of direct effect; 2. Fundamental Rights as an unwritten general principle of Community law; 3. European citizenship as a turning point; III. The Legal Implications of the Charter; 1.The Legal Status of the Charter; 2. The relationships between the Charter, the European Convention of Human Rights and national constitutions; IV. The Constitutional implications of the Charter; 1. Transparency and democracy; 2. Balance of power; 3. Mutual recognition of rights as an invitation to engage in constitution-making; Conclusions.


The rise of fundamental rights as an unwritten general principle of the legal order of the European Communities has been told and retold by legal scholars [2] . The narrative tends to revolve around the role played by the European Court of Justice. In a series of leading cases in the seventies, the judges sitting at Luxembourg �discovered� fundamental rights at the very foundations of Community law. This dramatic transformation is usually explained by reference to the need of �defending� the supremacy of Community law (and thus the acquis communitaire) against the threat of diversity coming from the national enforcement of national fundamental rights.

However, this narrative is not sufficiently sensitive to the degree of continuity and change of the role played by fundamental rights in the process of European integration. In this article, it is argued that they have always been at the very heart of the European project and that the explicit affirmation of rights comes hand in hand with the transformation of the nature of the Communities.

In the first section, it is claimed that the early steps in the road of integration aimed at establishing the basic preconditions for the effective protection of civic, political and social rights in Europe. The springs of integration have been and continue to be manifold, but one central driving force was (and keeps on being) the achievement of peace and economic prosperity in the Continent. This might be a truism, but one easily neglected. The second section aims at reviewing the narrative on the role played by the Court of Justice. A less court-centred explanation of the leading cases of its jurisprudence is offered, based on a characterisation of the Luxembourg judges as responding to clear signals coming from the political process. The proclamation of fundamental rights as the founding stone of the European legal order and the later introduction of European citizenship are said to reflect the coming of political age of the Communities. The third section offers an interpretation of the actual legal standing of the recent Charter of Fundamental Rights. My main tenets are that it must be seen as a consolidation of positive law, and thus, as evidence of the law in force, and that no major conflicts between the European Convention and the Charter can be expected. Finally, the fourth section deals with the role to be played by the Charter in the process of constitution-making in the Union. It is argued that its solemn proclamation can be constructed as signalling a constitutional moment for Europe.

I. The preconditions of rights-protection: peace and prosperity

The text of the original treaties establishing the European Communities [3] did not contain more than scattered references to fundamental rights. Those few are mainly to be found in the Treaty on European Community. Thus, the sixth recital of the preamble expresses the commitment of the organisation to �preserve and strengthen peace and liberty� and Article 119 states the principle of equal pay for equal work for men and women. The lack of an articulated set of fundamental rights tends to be considered as evidence of the nature of the original Communities. The Paris and Rome Treaties are said to have heralded a pragmatic and modest exercise in integration (the so-called Little Europe, by contrast to the aspiration to a full blown political union of the whole continent). The new institutions would have been exclusively intended to deal with economic issues. Federalists would have been on the retreat, and consequently political goals would have dropped from the European agenda. In that context, fundamental rights were bound to be regarded as a rather marginal issue.

The circumscribed reference to rights in the primary law of the Communities and the pragmatism of their original design seem to be facts beyond dispute. However, they do not necessarily lead to the conclusion that Little Europe was not about rights. It seems to me that rights kept on being one of the main goals of the project (if not the main one). The actual path of European integration implied an option for a different strategy of ensuring their protection [4] . Given the concrete historical and socio-economic context in Europe, Little Europe set itself the task of establishing the preconditions for the protection of civic, political and social rights in Europe.

1. Peace

The manifold projects of integration that bloomed in post-war Europe can be seen as having a common implicit goal, namely, peace. This also applies to the Communities. The first concrete result, the Paris Treaty, had as its immediate goal the establishment of a common framework for the production of two products, coal and steel. One could speculate what concrete factors moved national diplomats to back the project [5] . That does not go against the claim that an implicit goal was to ensure peace, i.e. to render impossible that the curse of war will tear apart Europe a third time in fifty years. After all, it was rather obvious that coal and steel were not only the two pillars of peace-time economy, but also the two main raw materials for making war. Establishing common institutions to manage their production and retailing was a means of rendering impossible a new war at the core of Europe [6] .

If that is so, Little Europe actually made a necessary albeit not sufficient contribution to rights-protection. War, and especially modern war, undermines the protection of life and liberty that a political community offers its citizens. This was a painful lesson learnt by all Europeans, including the happy ones that did not experience cruel dictatorships in the inter-war period. Moreover, it has been pointed out that the diffused consensus around European integration was based on the realisation that classical nation-states were no longer capable of sheltering citizens against the curse of war [7] . The painful experience of two wars increased consciousness that institutional structures beyond the nation�states were needed in order to protect fundamental rights. Only by mutually acknowledging our rights as Europeans we could peacefully enjoy them.


2. Economic stability

One needs not be a Marxist to acknowledge that rights-protection is problematic if individuals are not guaranteed access to a minimum set of economic resources [8] . In 1945, Europe faced concrete and daunting challenges. The War had brought about devastation to all national economies, which were hardly at their prime in the twenties and thirties. National recovery strategies were quite different, but bureaucracies tended to realise that the interdependence of European economies rendered necessary some common framework that would avoid the painful social and economic implications of national isolation, already experienced in the previous decades [9] .

The Little Europe of coal and steel, and later, that of the common market, contributed a good deal to the economic stability of the fifties and sixties, which rendered possible the extensive protection of social and economic rights that we associate with the �welfare state�. The Coal and Steel Community was a modest step, but one that provided reassurance to economic actors and thus established the foundations for sustained economic recovery, eventually maintained during the so-called treinte glorieuses [10] . There is thus a basis to argue that European integration contributed indirectly to the extensive protection of socio-economic rights within welfare states.


II. The Europe of Rights from Paris to Nice

In the previous section, I have argued that even the limited functional communities contemplated in the Paris and Rome Treaties were aimed at the protection of the rights of European citizens. Having said that, we should consider how the role of the Communities shifted from setting the preconditions to directly affirming fundamental rights. In this section, I consider the three basic developments in that respect. First, we should review the rise of individuals as subjects of European law, a departure from classic international law. Second, it is necessary to revisit the series of cases through which the ECJ �discovered� fundamental rights within the unwritten principles of Community law. Third, the provisions of citizenship of the Maastricht Treaty redefined the Communities as a political community of equals. In that sense, one can see the extent to which the changing role of fundamental rights in the European legal order has come hand in hand with a constitutional transformation of the Union.


1. The rights-dimension of direct effect

The European Communities were created and programmed by the legal text of the Treaties. This proved to be a rather peculiar piece of international law. In orthodox terms, the invocation of the provisions of international treaties before national courts is mediated by the relevant provisions of national constitutional law [11] . This reflects the fact that only states used to be considered as agents at the international level [12] . As far back as the early sixties, the European Court of Justice had rendered it clear that this doctrine could not be applied to Community law [13] . It did so by affirming the principles of direct effect [14] and supremacy of Community law [15] . Although these two tend to be considered in rather technical terms, both of them, and especially the first, have a clear rights-dimension.

Direct effect means the immediate enforceability of legal provisions in national courts by individual applicants. Thus, it renders possible that individuals can directly invoke clear Community provisions before national courts and get a proper remedy if their rights have been violated [16] . The immediate consequence is the empowerment of the individual as an actor of community law, contrary to what was (and seems to keep on being) characteristic of international law. This might be seen as rather immaterial, given the nature of the rights granted by the original treaties and the identity of those actually pleading before the Court of Justice [17] . However, one can argue that direct effect makes it clear that individuals have rights (in a proper sense) directly attributed by Community law.


2. Fundamental rights as an unwritten general principle of Community law

The right to get hold of the jurisdiction of the Court of Justice was widely made use of, and not infrequently, in order to expand the rights enshrined in Community law from remedial to substantive dimensions.

However, in several cases in the early fifties, the Court seemed to argue that the basic rights and freedoms which are protected by national constitutions were not among the provisions the application of which was subject to its review. The clearest statement is to be found in paragraph 4 of the judgment in Stork [18] :

   �Under Article 8 of the treaty the High Authority is only required to apply Community law.  It is not competent to apply the national law of the Member States.  Similarly, under Article 31 the Court is only required to ensure that in the interpretation and application of the Treaty, and of rules laid down for implementation thereof, the law is observed.  It is not normally required to rule on provisions of national law.  Consequently, the High Authority is not empowered to examine a ground of complaint which maintains that, when it adopted its decision, it infringed principles of German constitutional law�.

 It was not long before the Court reconsidered its reasoning. In the seminal case of 1969 Stauder [19] , the Court hinted at the unwritten general principle of fundamental rights protection as a basic foundation of Community law. It did not take long before the ECJ provided an articulated formulation of this jurisprudential shift. The leading case in that respect is Internationale [20] . The Court avoided the conflict between Community law and the German fundamental rights to private property by restating the claim that the protection of fundamental rights was one of the basic principles of Community law. Instead of considering whether there was a conflict between European law and the standards of rights protection of the German Constitution, the ECJ rephrased the case as a matter of conflict internal to Community law, to the extent that fundamental rights were part and parcel of the latter, even if �not reflected in the text of the treaties�. It is worth quoting at length paragraph 4:

   �respect for fundamental rights forms an integral part of the general principles of law protected by the Court of Justice. The protection of such rights, whilst inspired by the constitutional traditions common to the Member States, must be ensured within the framework of the structure and objectives of the Community�.

This case can be seen as the point of departure of a long jurisprudence in which the Court has further refined this argument. In its judgments on Nold [21] , Hauer [22] and Rutilli [23] , the ECJ rendered more specific the sources from which it would derive the fundamental rights protected at the European level. The European Convention of Human Rights, its protocols, the European Social Charter and the common constitutional traditions are the main repositories from which to construct the catalogue of Community rights.

Although the rationale of the jurisprudential shift was very much to fill the gap resulting from the lack of appropriate protection of rights vis � vis European institutions and secondary legislation, the ECJ has also dealt with the isue whether some national measures can be reviewed according to Community standards of fundamental rights protection [24] . The leading cases in that respect might be said to be Cin�th�que [25] , Demirel [26] Wachauf [27] , ERT [28] and Konstantinidis [29] . The Court has established that national measures either implementing Community measures or derogating from the fundamental freedoms should comply with Community standards of fundamental rights protection.

The background to such dramatic shift in the jurisprudence of the Court is a rather complex one. Most commentators have pointed to the fact that the lack of protection of fundamental rights at the European level was coming to be seen as an argument against the unqualified acceptance of the supremacy of Community law. By �discovering� fundamental rights among the unwritten general principles of the Community, the Court masterfully avoided that risk. By defining the sources from which it will draw inspiration in spelling out the rights standards at the European level, it ensured a certain degree of autonomy for Community developments in that area [30] . The ECJ would have engaged in bold judicial activism in order to protect the acquis.

Without challenging this interpretation [31] , it is possible to add that the Court might have also sensed the transformations that the Community was about to experiment in extent and breadth. After all, Internationale was decided when the first enlargement of membership finally seemed at reach and when blueprints of a deepening of the competencies of the EC were starting to circulate [32] . Moreover, it was also a time for stressing that the protection of individual fundamental rights was at the very foundation of the European project, if only because of what was happening within the (weak) alternative integration project at the other side of the Iron Curtain. Thus, a more thorough analysis of the political context within which this line of jurisprudence was developed makes it plausible to play down a bit the activism of the Court and to emphasise the extent to which judges used their margin of discretion in order to crystallise an emerging political consensus [33] .

At any rate, the Court has proceeded within the framework delineated in this handful of leading cases to refine the list of rights protected by Community law. Although a more detailed picture can be easily obtained from the literature [34] , it might be useful to indicate that the rights �discovered� by the ECJ are not merely those directly or indirectly connected to the main economic freedoms enumerated in the Rome Treaty, but also basic civic and political rights, including freedom of expression [35] , the right to privacy [36] or religious equality [37] . In brief, the Court has developed an incomplete but substantive bill of rights, although most of the time limited in its scope to economic actors. Its jurisprudence is clearly and openly founded on the European Convention of Human Rights, further refined and adapted by reference to the comparative analysis of national constitutional traditions [38] .


3. European citizenship

The Treaty of Maastricht codified into primary law the general principle of fundamental rights protection crystallised by the Court. The third recital of its Preamble contained a symbolic �confirmation� of the member states� commitment to the principles of �liberty, democracy and respect for human rights and fundamental freedoms and of the rule of law�, while the second paragraph of Article F summarised the gist of the Court�s position. It is worth quoting at length:

�The Union shall respect fundamental rights, as guaranteed by the European Convention for the Protection of Human Rights and Fundamental Freedoms signed in Rome on 4 November 1950 and as they result from the constitutional traditions common to the Member States, as general principles of Community law�.


Even more importantly, it introduced the concept of European citizenship. Article 8 read the following way:

�Citizenship of the Union is hereby established. Every person holding the nationality of a Member State shall be a citizen of the Union�


The provisions on European citizenship operated a change in the nature of the Community. Their deep symbolic value relates to the mutual recognition of the status of full members of a political community of equals. The whole European legal order is no longer to be constructed as a contract among economic actors, but as a constitutional order where relationships are mediated by a set of rights and values. That is its �evolutionary achievement� [39] .

The transformative character of European citizenship is usually denied on the basis of its aggregative and derivative character. With the former argument, it is claimed that Article 8 contains a mere metaphor, a relabelling of the rights derived from the four fundamental freedoms. With the latter, it is said that the status and substance of European citizenship is fully determined by the national citizenship status.

The first claim can be falsified by reference to two observations. First, the introduction of European citizenship did come hand in hand with new substantive political rights for Europeans, such as the right to vote in local elections. The fact that this precise article triggered constitutional amendments in some member states is witness to its importance [40] . Second, Article 8 has implied a dramatic change in terms of the nature of the rights granted by Community law. One could argue that there is a progressive (although not fully consistent) shift from the exercise of fundamental economic freedoms to non-discrimination on the basis of nationality [41] . Rights that were restricted to economic actors are now granted to all citizens.

The second claim seems to remain uncontested. However, there are some indications that the relationship between European and national citizenship might be one of mutual influence. Leaving aside the changes operated in the conception of national citizenship [42] , one can refer to the recent opinion of Advocate General L�ger in Manjit Kaur [43] . The case concerned the question whether the provisions on European citizenship could be argued to imply a substantive conception of citizenship that might be used to review the constitutionality of the British Overseas citizen status [44] .


III. The legal implications of the Charter

The Charter of Fundamental Rights of the European Union can be seen as �crowning� the narrative told of the previous two sections. The text has been intentionally been given a high profile, and acclaimed as a major symbol in the process of integration [45] . Before proceeding to a summary assessment of some of those claims, it is necessary to determine the legal value of the text. In this section, a summary view is taken at two main issues, namely the legal status of the Charter (whether its provisions are or not binding) and its relationship between with the European Convention of Fundamental Rights.


1. The Legal Status of the Charter

The members of the drafting Convention were ecumenical enough to work as if the Charter was to become a legally binding document [46] . By doing so, they avoided taking sides concerning whether it should become formally part and parcel of the primary law of the Communities, or whether it should formally remain an inter-institutional political declaration.

It is quite clear that the symbolic meaning and implications (the basic motivation of the exercise, in the view of the European Council [47] ) of each of the two options are rather different, but it seems to me that in legal terms, the question can be seen as rather futile. That is so because the Convention was given (and allegedly respected) a mandate to consolidate the existing EU law of fundamental rights, not to change it or amend it [48] .

On the symbolic account, the decision is yet to be taken. According to declaration 23 annexed to the Nice Treaty [49] , that issue should be decided after a �wide-ranging debate� which would include other decisions of constitutional relevance, and which should be translated into law by 2004. On the legal account, a consolidated legal text is legally binding to the extent that the delegate (in this case, the Convention) has respected the terms of its mandate and the text has been formally promulgated [50] . In the absence of specific procedural requirements, one can regard the solemn promulgation of the Charter in Nice and its publication in the official journal as sufficient in that respect.

The argument is purely logical, in the sense that the legal value of the Charter is determined by what consolidation means. Before the Charter was promulgated, any plaintiff could argue on the basis of the fundamental rights recognised within EU law. That should remain unaltered. Plaintiffs could keep on invoking those same rights. The Charter must be seen a summary and concise statement of such rights, which constitutes evidence of the state of the art in EU law.

This argument is supported by the use of the Charter made in the Austrian report and in two recent opinions of the Advocates General of the European Court of Justice.

The first �official� report to refer to the Charter was the Wise Men opinion on Austria on September 2000 (actually before its solemn proclamation) [51] . As could be expected from that kind of text, the opinion contains many references to the fundamental rights law acknowledged in Community law. What is interesting is that in several paragraphs, the wise men referred first to the text of the Charter and second to the �source� text, be it the European Convention or some other document [52] . They do not give a detailed explanation of this practice, but it can be interpreted as evidence of the present line of interpretation of the legal effects of the Charter.

Second were Advocates General Tizzano and Jacobs in two recent opinions delivered to the Court of Justice.

The first magistrate made a direct reference to the Charter in support of the opinion he delivered in BECTU [53] . The case concerned the Working Time Directive [54] , more specifically whether entitlement to annual paid leave (less technically know as paid holidays) required or not the completion of a minimum period of employment with the same employer. In paragraphs 22 and following of his Opinion, the Advocate General argues that EU law should be interpreted as not requiring such minimum period of employment to acquire the right to paid annual leave. He supports his argument with references to many different legal sources: the Universal Declaration of Human Rights, the European Social Charter, the United Nations Charter on Economic, Social and Cultural Rights and the Community Charter of Fundamental Social Rights of Workers, in addition to the text of the Directive itself. However, in paragraph 26 he refers to Article 31, section 2 of the Charter as �even more significant� legal evidence of the way in which one should solve the case at hand. This reference to the Charter is justified in paragraphs 27 and 28. The Advocate General acknowledges that the text is �formally, not in itself binding�. However, it �includes statements which appear in large measure to reaffirm rights which are enshrined in other instruments�. For that reason, �the statements of the Charter cannot be ignored�. They serve as a �substantive point of reference for all those involved (...) in the Community context. Accordingly (...) the Charter provides us with the most reliable and definitive confirmation of the fact that the right to paid annual leave constitutes a fundamental right (my italics)�.

Advocate General Jacobs made a more succinct reference to the Charter in his opinion on Z v. European Parliament [55] . The case was an appeal against a judgment of the Court of First Instance. The appellant had been downgraded after the competent disciplinary board found sufficient evidence of several major faults. However, the procedure had exceeded the time-limit established in the internal guidelines of such proceedings. The appellant argued that this infringed his right of defence and access to the Courts, and consequently should be regarded as sufficient to nullify the disciplinary measure. One of the concrete grounds of the appeal concerned the right to a good administration. To ground the claim that such right is part and parcel of Community law, the Advocate General referred to the jurisprudence of the Court of Justice and to a recommendation of the Council of Ministers of the Council of Europe. To this, he added a final reference to the Charter of Rights:

   �Moreover, the Charter of Fundamental Rights of the European Union, while itself not legally binding, proclaims a generally recognised principle in stating in Article 41(1) that �Every person has the right to have his or her affairs handled impartially, fairly and within a reasonable time by the institutions and bodies of the Union�.


2. The relationship between the Charter, the European Convention of Human Rights and the national constitutions.

The Charter of Fundamental Rights builds upon but does not intend to replace the many sources and systems of protection of fundamental rights which coexist in Europe. The Preamble clearly states that

�This Charter reaffirms (...) the rights as they result, in particular, from the constitutional traditions  and international obligations common to the Member States, the Treaty on European Union, the Community Treaties, the European Convention for the Protection of Human Rights and Fundamental Freedoms, the Social Charters adopted by the Community and by the Council of Europe and the case-law of the Court of Justice of the European Communities and of the European Court of Human Rights� (my italics)

This might be seen as paradoxical. After all, the idea of law is related to that of providing one single normative orientation in each case, and this seems to be contradictory with pluralism in sources of law. That is especially so if one takes into account that the plurality of systems of fundamental rights protection which apply concurrently have developed their own institutions in charge of monitoring compliance and adjudicating about eventual doubts concerning the breadth and scope of the rights. In that sense, some argue that it is rather unavoidable to ask who will have the last word [56] . Would not the Charter increase the room for high courts conflict? Would not the Strasbourg and the Luxembourg Court compete for supremacy, with national constitutional courts occasionally vindicating their role as guardians of national constitutions?

            To answer these questions we need to take into consideration three things.

A) The potential conflict is already there

In the previous section, it was argued that, in legal terms, the Charter does not bring into EU law anything new. If that is so, the argument that the Charter will increase the risk of conflict between national constitutional courts, the Strasbourg court and the European Court of Justice is rather artificial. It simply does not take into account that we are already in a pluralistic setting on what concerns the protection of fundamental rights in the European Union, so that the competencies of national constitutional courts, the European Court of Human Rights and the European Court of Justice are already overlapping within the field of application of Union law on what regards fundamental rights.


B) The scope of application of the Charter is limited

First, the Charter of Rights applies to Union institutions and bodies [57] . In this sense, it can be seen as addressing the same kind of concern that is at the background of the Stauder jurisprudence. As the Union has gained width and depth in its competencies, the impact it has on individuals has increased geometrically. One can see the whole jurisprudence of the European Court of Justice on fundamental rights as evidence of that.

Second, the Charter does not apply to member states. As a general rule, they keep on being bound by their national constitutional law, complemented by the Strasbourg system. The exception to this rule concerns those instances in which Member States are �implementing union law�, in which case Article 49, section 1 prescribes that �they shall therefore respect the rights, observe the principles and promote the application thereof in accordance with their respective powers�. However, one should keep in mind that this merely codifies the present practice [58] .

Being aware of the �normative supranationalism� of the European Court of Justice, one could wonder whether the judges sitting in Luxembourg would not find ways of  �eroding� the provision of the first section of Article 49. Although judicial ingenuity might sometimes be regarded to have no limits, it would be a rather tall task given the �preparatory documents� and the drafting of the Charter itself.

First, the Cologne mandate made it clear that the goal of the process was not to innovate, but to consolidate existing law. This rules out that the proclamation of the Charter and even its eventual inclusion within the primary law of the Union would have an impact on the division of competencies between the Union and the Member States.

Second, the text of article 49 is rather explicit in this sense. Not only the first section makes it clear that the Charter applies to the institutions of the Union with due regard for the principle of subsidiarity, but section 2 specifies that �The Charter does not establish any new power or task for the Community or the Union, or modify powers and tasks defined by the Treaties�.


C) Is overlap the same as conflict?

On the basis of an attentive reading of Article 49, we can come to the conclusion that the potential area of conflict between the Charter and the other systems of protection of fundamental rights in Europe is limited. The European law provisions on fundamental rights apply mainly to the EU institutions themselves. They only bind the member states to the extent that they are implementing Community law.

Having said that, the proper question to ask is if that overlap must be taken to imply legal and constitutional conflict. There are three main arguments to answer in negative terms.

First, there is a striking convergence in terms of substantive content. A conflict between legal systems does not arise out of the mere existence of the two systems. It is necessary that they overlap, namely, that they pretend to apply to the same factual situation, and that they provide divergent normative solutions. The latter condition is absent in most cases when it comes to the application of national constitutions, the European Convention and its protocols and EU law. This is not a matter of chance, but the result of the many mechanisms of interaction, at the political and legal level, between these systems. Thus, the European Convention reflected the opinio juris on fundamental rights in the fifties, and it is turn it has influenced very much the interpretation of national constitutional rights. Moreover, as we have already seen, the European Court of Justice developed the unwritten fundamental rights on the basis of the national constitutional traditions and the European Convention. It has given clear indications of its general willingness to follow the indications of the Strasbourg Court when dealing with fundamental rights [59] .

This does not exclude potential conflict, of course, as the level of protection of rights is not necessarily the same and, more to the point, the balance between different rights can be struck in different ways in different legal orders [60] .

Second, as already argued, the protection of fundamental rights in Europe has been characterised by the pluralism of sources and institutional mechanisms. Most national legal systems have been coping with this state of affairs for many years. Experience seems to indicate that overlapping is conducive to reinforcement of the protection of human rights, not to its debilitation.

Consider the relationship between national constitutions and the European Convention of Human Rights. Many of the fundamental laws of the member states contain specific and detailed catalogues of fundamental rights, and at the same time, all Member States have ratified the European Convention of Human Rights. This has not led to a conflict between these two legal orders, or to a conflict between national constitutional or supreme courts and the European Court of Human Rights, but just the opposite. The case of the United Kingdom is striking in this respect. The recent Human Rights Act must be seen as constituting evidence of the fact that a plural system of protection of rights is superior to a monistic one [61] .

Actually, it is interesting to notice that the more recent national constitutions have already codified pluralism. Thus, both the Portuguese and the Spanish Constitution have made the Universal Declaration of Human Rights an integral part of the constitutional law of each country. This is done by means of mandating the interpretation of all norms related to fundamental rights in the light of such text [62] . From the legal standpoint, the novelty resides in the fact that this is not based on the incorporation of such Declaration to the legal system, but on the constitutional incorporation of those rights to the foundations of the polity. This codification of pluralism can also be seen in some of the fundamental laws of Eastern European countries [63] , and in Section 3(1) of the 1998 UK Human Rights Act [64] .

Third, there are few cases in which incompatible legal solutions have been provided by the different systems of human rights protection. If the proof of the cake is in the eating, there is almost no cake and therefore no evidence. Let�s explore this point in more detail.

Much has been made out of Opinion 2/94 as indicative of an implicit fight for the last word between the European Court of Justice and the European Court of Human Rights. In that judgment, the Luxembourg judges argued that the accession of the Communities to the European Convention of Human Rights was not a decision that could be taken through the Community law-making process because it did not fall within the sphere of competence of the Communities. Many have looked for the motivations of the Court in paragraph 34 of the opinion, which reads:

 Respect for human rights is therefore a condition of the lawfulness of Community acts. Accession to the Convention would, however, entail a substantial change in the present Community system for the protection of human rights in that it would entail the entry of the Community into a distinct international institutional system as well as integration of all the provisions of the Convention into the Community legal order


To understand this paragraph, one needs to confront it with paragraph 27 of the same judgment:

       �No Treaty provision confers on the Community institutions any general power to enact rules on human rights or to conclude international conventions in this field�

The Court can be seen to be making a double argument. First, it is rendering clear that fundamental rights are part and parcel of Community law. However, that does not mean that the institutions of the Union have competence to determine the content of such rights. The Communities, for this purpose, are merely at the receiving end of fundamental rights, and its institutions have no active competence in the field. Second, there is a clear correlation between external competencies (related to the action of the Communities in the international sphere) and internal competencies (those vis � vis member states). If the decision to sign and ratify the Convention is adopted through the ordinary law-making process of the Communities, this would imply that the Communities have an external competence on what regards human rights, which should be based on an internal competence. But this would imply a transformation of the present balance of competencies between the Communities and the Member States, and as such, would require a previous amendment of primary law. If that interpretation is correct, one should construct Opinion 2/94 as an attempt to draw the competence boundary between national and Community law rather than as a bid for the last legal word vis � vis the Strasbourg Court.

In less general terms, there are some instances in which the Luxembourg and the Strasbourg Court have arrived at different legal solutions. However, as it is the case of the general relationship between national constitutional courts and the Court of Justice, one needs not to portray these differences as constituting a threat to the system. This needs only be done if one sustains a rigid monistic conception of law. However, it seems more adequate and fruitful to portray these differences as ways in which the courts dialogue and mutually correct each other [65] .

One of the areas where such a conflict has been highlighted concerns the right against self-incrimination, more specifically, the scope of the latter. It has been pointed that there was a tension between the reasoning of the ECJ in the judgment handed in at the case Orkem and the arguments of the ECHR in Funke.

However, one could also argue that the dialogue process is also at work in this case. This can be argued by means of considering together the recent case of the Court of First Instance Mannesmann and the jurisprudence of the Strasbourg Court [66] .

The former judgment concerns the balance between the powers of the Commission to ensure compliance with competition law and fundamental rights. In the case at hand, the Commission had conducted an investigation procedure in the course of which its agents inspected the premises of the applicant, among others. Following that, the Commission addressed several questions to the applicant. Its lawyers answered some of them, and refused twice to provide answer to some others. In reply, the Commission adopted a decision that formally obliged the applicant to answer within a period of thirty days; if it would maintain its refusal, a daily fine of 1000 Ecus should be imposed. The applicant challenged the decision of the Commission before the Court on several grounds. For our present purposes, the most relevant is the second; it was argued that the decision infringed the right not to incriminate oneself in procedures resulting in penal sanctions, protected under Article 6, section 1 of the European Convention of Human Rights. Such right must be considered as part of the general principles of Community law, and as such to take precedence over ordinary community law (that is, over the decision in this case). In its judgment, the Court accepts that it is necessary to strike a balance between the powers of investigation of the Commission and the right to silence. However, the proper balance does not make good the claim of the applicant. In paragraph 66 we can read that:

�To acknowledge the existence of an absolute right to silence, as claimed by the applicant, would go beyond what is necessary in order to preserve the rights of defence of undertakings, and would constitute an unjustified hindrance to the Commission�s performance of its duty (...) to ensure the rules on competition within the common market are observed�

The key contrast between this judgment and the jurisprudence of the European Court of Human Rights, especially its judgments on cases Funke and Saunders, seems to be the extent to which the right not to incriminate oneself applies to undertakings [67] . The applicant in Mannesmann argued that Article 6 of the Convention was said to be applicable to undertakings by the Strasbourg Court.

But is that so? Funke [68] is now regarded as the leading case concerning the right not to incriminate oneself. In its judgment, the Court stated that the right to defence contemplated in Article 6, section 1 of the Convention must be interpreted as including the right �to remain silent and not to contribute to incriminate oneself� [69] . However, the case is not of much help in determining the application of the right to undertakings, because it concerned a private individual. In that respect, the relevant case seems to be Saunders [70] . The latter was the result of the investigations conducted by some inspectors appointed by the British Secretary of State for Trade and Industry to determine the eventual criminal responsibilities deriving from a company take over operation. As a result, Mr Saunders, who was a top executive of investigated company, was charged with numerous offences. Before the Court, the applicant claimed that he was compelled to make several statements which were later admitted as evidence against him. The Court restated the Funke precedent by saying that �The right not to incriminate oneself, in particular, presupposes that the prosecution in a criminal case seek to prove their case against the accused without resort to evidence obtained through methods of coercion or oppression in defiance of the will of the accused� [71] . Leaving aside the qualifying statements of the Court, it must be said that this case does not support the unqualified affirmation of the applicant in Mannesmann that the Strasbourg court gives the same breadth and scope to the right not to incriminate oneself whether the beneficiary is a natural or a legal person. That is so because also in Saunders the applicant was a physical person, although his eventual criminal responsibility would have been derived from his position as executive of a company. Mannesmann is a rather different case, as it concerns the pecuniary responsibility of the corporation itself. The periodic fine and the eventual final economic responsibility would not be imposed upon a concrete executive of Mannesmann, but would be reflected in the accounts of the corporation. 


IV. The constitutional implications of the Charter

In the previous section, it was argued that the Charter must be seen as a consolidation of the existing fundamental rights within the Community legal order. This basically means that it has not introduced any change in the positive legal order.

However, the Charter is not an empty metaphor. Its symbolic value is three-fold. First, it enhances the visibility of the rights enshrined into Community law. This opens up the existing law to democratic scrutiny, because transparency is a basic condition for deliberative reflexivity. Second, it tilts the balance of power in favour of the political process and away from the judicial one. Finally, by rendering explicit the rights that Europeans mutually recognise each other, it can be said to signal a constitutional moment. The Charter can be constructed as a further invitation to engage into constitution-making on the side of citizens.


1. Transparency and democracy

The original aim of the Charter was to �make [rights�] overriding importance and relevance more visible to the Union�s citizens� [72] . A single and clear text constitutes a succinct alternative to the bulky compilations of national, international and jurisprudential materials that were needed in order to �distillate� the basic rights of European citizens vis � vis the institutions of the Community.

This is usually associated with the value of �legal security�. However, it also has clear political implications. This is something clear in the thought of the legal philosophers of Enlightenment. Democratic law aspires to legitimacy through the identification of its authors and its subjects [73] . Codification protects not only certainty concerning what is mandated or allowed by the law, but also the chance of meaningful participation of citizens in the law-making process. The clearer the law, the more cognoscible [74] it is. Thus, meaningful political participation of citizens in the process of deliberation and decision-making of the law (and the companion duly compliance with it) implies a mandate to draft the law in such a way as to increase its transparency, that is, the capacity of individuals to understand it. This principle is closely associated with the reflexivity of democratic law [75] . The latter is not conceived as a final statement, but as an authoritative formulation resulting from the democratic process, open to further deliberation in which it will be placed as the starting point of the debate. This is not necessarily an unqualified mandate for simple rules, but for as much simplicity as clarity as possible.

Once this is acknowledged, it becomes clear why the Charter might be seen as substantively contributing to the furthering of democracy in Europe. By making the central piece of constitutional law clearer, it enhances its transparency, and increases the chances of the further democratic refinement of these rights.

2. Balance of power

The impact of the Charter in the balance of power within the Union has not been considered sufficiently. Any bill of rights tightens the framework within which Courts argue and decide cases. The rather oracular formulation of fundamental rights requires the further and frequent intervention of the same judges in order to strike the balance between conflicting rights [76] . However, the bill of rights provides constrains within which judges operate, and thus it reduces the intensity of the legitimacy gap that raises every single case that they give judgments not mechanically based on positive law [77] .

The flexible and comparative methods of the Court of Justice in the fundamental rights area have been rightly commented upon, but it is hard to deny that they left the Court in a position of wider discretion that it will have after the proclamation of the Charter. Just one concrete example. Once a given right is enumerated by the Charter, the ECJ would not be able to deny it its fundamental character.


3. Mutual recognition of rights as an invitation to engage in constitution-making.

It has already been stated that the Charter reaffirms the Union as a community of equals who mutually recognise each the rights enumerated in the document.

It can be argued that the Charter renders clear that citizens can make use of such rights, especially political ones, in order to give themselves a political constitution; thus, it can be seen as an invitation to explore the potentiality of those rights through transnational political action. This is further confirmed by the relationship between the affirmation of rights standards and the coming of constitutional moments, of periods during which the constitutional identity of the Communities is (re)defined.

Any major step in the road of European integration came hand in hand with the symbolic affirmation of fundamental rights as the founding principle of the Communities. As it has already been argued, the adhesion of the United Kingdom, Ireland and Denmark was preceded by the �discovery� of fundamental rights by the ECJ [78] . Before the Southern enlargement took place, an inter-institutional declaration reaffirmed the constitutional relevance of rights [79] . The creation of the European Economic Area revived the debate about whether the Union should sign the European Convention of Human Rights [80] . At the verge of a redefinition of the goals and members of the Union, it is not surprising that the Charter comes about.

Moreover, the mutual recognition of rights is not only a logical, but also a practical prerequisite for democratic constitution-making. Rights allow to build bridges across the manifold public spheres, national and local, strong and general [81] , that should play the major role in an �open and wide-ranging� process of deliberation and decision-making. The Charter can be seen as a potential interface, as a lingua franca to talk about the shape of Europe. In this sense, it signals a constitutional moment, which could or could not be made use of by Europeans.

A final word on the process through which the Charter was drafted. To the extent that we adhere to a democratic conception of the constitution, the legitimacy credit required for writing the fundamental law of Europe can only be satisfied by direct legitimacy inputs, by a complex process grounded on the actual participation of citizens in the making of such law. It is quite clear that a process like that experimented for the Convention is far more democratic than an ordinary Intergovernmental Conference, but despite the emerging consensus in this respect [82] , it is still far from meeting the standards of democratic constitution-making. It must be regarded as an improvement still far from the normative ideal type.



In this article, it has been argued that Europe should be seen as a mature political community. This statement is based on the status of individual rights within the constitutional law of the Union. Although the original Treaties did not contain more than very specific references to individual fundamental rights, it has been shown that the ethos of European integration was grounded on assuring their effective protection. The Charter of Fundamental Rights must be seen as a symbolic means of signalling that the legitimacy of the Union is to be unconditionally based on the aspiration to effectively protect and promote individual fundamental rights.

However, the Charter must also be seen as a beginning, as a constitutional beginning. On the one hand, there are good reasons to be highly critical of the actual contents of the Charter, even if merely referring to the previous state of play in fundamental rights in European law. Hardly two commentators would agree on which concrete things should be changed, but we could agree that we need a thorough constitutional debate to improve it. Modern law, including constitutional law, is characterised by its reflexivity. Legitimate democratic law should not be considered as the final word, but as the best alternative resulting from the democratic procedure, given the justified constrains imposed upon the process of deliberation and decision-making. That does not preclude reopening the debate later on, it only requires that positive law should be seen as the starting point of the next debate. On the other hand, the maturity of the Union as a political community is far from complete. A polity that is increasingly influential in extent and depth cannot keep on drawing its legitimacy exclusively from substance. It is a well-established premise of the democratic theory of law that the main source of legitimacy is political participation, to the extent that only the latter can effectively bridge as far as possible the gap between the authors and the subjects of the law. In that respect, the drafting of the Charter signals a constitutional moment in Europe, which might lead to a thorough reconsideration of the constitutional principles and the goals of the polity.



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[1]               Senior Researcher, Arena, Advanced Research on the Europeanisation of the Nation State. University of Oslo. PO BOX 1143, Blindern. N-0317 Oslo, Norway. Tel: +4722855656. Fax: +4722857832. Email:

[2]               See, among others, Dashwood and Wyatt 1987, 66ff, Hartley, 1994, 139ff and Lasok and Bridge, 1982, 139ff.

[3]               The Coal and Steel Community (Paris Treaty, 1951); The Economic Community (Rome Treaty, 1957) and the Euroatom (Rome Treaty, 1957).

[4]               This argument is supported by the failure of the Treaty of Political Union in 1954. See Griffiths 2000.

[5]                One might be allowed to observe that the most celebrated �intergovernmentalist� scholar starts his narrative in 1955, not dealing with the springs of integration leading to the Coal and Steel Community. Cfr. Moravcsik 1998.

[6]               See Note de r�flexion de Jean Monnet, Argel, 5 August 1943. Available at The Schuman Declaration is crystal clear in that respect: �It proposes that Franco-German production of coal and steel as a whole be placed under a common High Authority, within the framework of an organization open to the participation of the other countries of Europe. The pooling of coal and steel production should immediately provide for the setting up of common foundations for economic development as a first step in the federation of Europe, and will change the destinies of those regions which have long been devoted to the manufacture of munitions of war, of which they have been the most constant victims�. Available at

[7]               Lipgens, 1982, 60-1.

[8]               For example, Rawls, 1993, 7.

[9]                 Something already pointed out by Keynes 1971, 9-11.

[10]             See Milward 1984, 463; Eichgreen 1996, 53-56; Milward 1997.

[11]             Shaw, 1997, 111, 115, 120-1; Reuter, 1995, 21. But see Spiermann 1999.

[12]             Shaw, 1997, 182-4 states that only in some specific Treaties (basically human rights ones) individuals are acknowledged as direct subjects of international law.

[13]             The referred Spiermann 1999 has pointed that the Court could have relied on some international law precedents, such as the judgment of the Permanent Court of International Justice in the Jurisdiction of the Courts of Danzig opinion. However, it seems to me that his argument requires refining, not reviewing the basic claim. Instead of breaking ground, the ECJ might be said to have turned the exception into the rule.

[14]             Case 26/62 Van Gend en Loos, [1963] ECR 1.

[15]             Case 6/64, Costa, [1964] ECR 585.

[16]             Craig and De Burca, 1998, 165.

[17]             See Harding 1992.

[18]              Case 1/58 Stork, [1959] ECR 17.

[19]              Case 29/69, Stauder [1969] ECR 419, paragraph 7: �Interpreted in this way, the provision at issue contains nothing capable of prejudicing the fundamental rights enshrined in the general principles of Community law protected by the Court� (my italics).

[20]             Case 11/70, Internationale, [1970] ECR 1125.

[21]             Case  4/73, Nold, [1974] ECR 491.

[22]             Case 44/79, Hauer, [1979] ECR 3727.

[23]             Case 36/75, Rutili, [1975] ECR 1219.

[24]             Tadkis associates this development with the general trend of �spillover� of Community standards towards national measures. See Tadkis 1999, 225ff.

[25]             Cases 60 and 61/84, Cin�th�que, [1985] ECR 2605.

[26]             Case 12/86, Demirel, [1987] ECR 3719.

[27]             Case 5/88, Wachauf, [1989] ECR 2609.

[28]             Case C-260/89, ERT, [1991] ECR I-2925.

[29]             Case C-168/91, Konstantinidis, [1993] ECR I-1191.

[30]             See references included supra fn 2.

[31]                 Although one might add that there is a certain element of �anachronism� built into it, as the national cases to which reference is usually made were decided after Internationale.

[32]             See Urwin 1991, chapters 10 and 11.

[33]             See my forthcoming �Exploring Further PostNational Constitutional Law�, Working paper of the Faculdade de Direito, Universidade Nova, Lisbon.

[34]             Tridmas 1999, 209ff, Reich 2001.

[35]             See Case C-288/89, Stichting, [1991] ECR I-4007, paragraph 23.

[36]             See Case 136/79, National Panasonic, [1980] ECR 2033, paragraphs 17 and ff and Case C-76/93, Scaramuza, [1994] ECR I-5173,  paragraphs 18 and ff.

[37]             See Case 130/75, Prais, [1976] ECR 1589, paragraphs 8 and ff.

[38]             Weiler, 1996.

[39]             La Torre (1999).

[40]             See, for example, Article 28, section 1 of the German Constitution, Article 88, section 3 of the French Constitution, amended by the Loi constitutionnelle No 92-554, 25 June 1992, and reviewed by the Conseil Constitutionel, D�cision n� 92-312 DC du 2 septembre 1992, and Article 13, section2 of the Spanish Constitution, amended by Ley de Reforma, 27 August 1992.

[41]             Closa 1992, Shaw 1998, Reich 2001.

[42]             For the transformation of German citizenship, see Jopke, 1999, 637ff.

[43]             Case C-192/99, Manjit Kaur, Opinion of AG L�ger delivered on 7 November 2000.

[44]             The Court did not concur with the AG in its final judgment. See judgment of 20 February 2001, not yet reported.

[45]             See the Preamble of the Charter.

[46]             Proposal made by Mr. Cisneros in the first meeting of the Convention. See CHARTE 4105/00, page 4.

[47]          See Annex IV of the Conclusions of the Presidency of the Cologne European Council, 3-4 June 1999, European Council Decision on the drawing up of a Charter of Fundamental Rights of the European Union, first paragraph: �Protection of fundamental rights is a founding principle of the Union and an indispensable prerequisite for her legitimacy. The obligation of the Union to respect fundamental rights has been confirmed and defined by the jurisprudence of the European Court of Justice. There appears to be a need, at the present stage of the Union's development, to establish a Charter of fundamental rights in order to make their overriding importance and relevance more visible to the Union's citizens�.

[48]             See European Council Decision on the drawing up of a Charter of Fundamental Rights of the European Union, Annex IV of the Conclusions of the Presidency, Cologne European Council: �[T]he European Council believes that this Charter should contain the fundamental rights and freedoms as well as basic procedural rights guaranteed by the European Convention for the Protection of Human Rights and Fundamental Freedoms and derived from the constitutional traditions common to the Member States, as general principles of Community law. The Charter should also include the fundamental rights that pertain only to the Union�s citizens. In drawing up such a Charter account should furthermore be taken of economic and social rights as contained in the European Social Charter and the Community Charter of the Fundamental Social Rights of Workers (Article 136 TEC), insofar as they do not merely establish objectives for action by the Union� (my italics).

[49]                 Available at

[50]             Concrete examples of the implications of delegation can be seen in several post-war Constitutions. Cf. Article 80, section 1 of the German Constitution, Article 86 of the Italian Constitution or Article 82, section 5 of the Spanish Constitution.

[51]             As the reader might remember, a coalition government was formed after the Austrian general elections in February 2000. Six out of ten senior ministries were allotted to members of the FP�. The latter is a party characterised by populist overtones reflected in an ambiguous attitude towards the Austrian Nazi past.  The Portuguese Presidency of the Union ended up asking the President of the European Court of Human Rights, seating in Strasbourg, to design three experienced public men to write down a report. The full text of the report is available at

[52]             See paragraphs 8, 9 and 16 of the report.

[53]             Case C-173/99, Broadcasting, Entertainment, Cinematographic and Threatre Union (BECTU), delivered on 8 February 2001, not yet reported.

[54]             Council Directive 93/104/EC of 23 November 1993 concerning certain aspects of the organisation of working time. Available at

[55]             Case C-270/99, Z, Opinion delivered on 22 March 2001.

[56]              See the review by Kumm 1999.

[57]             See Article 49, section 1: �The provisions of this Charter are addressed to the institutions and bodies of the Union�

[58]             Some authors have pointed to the formulation of  Article 49, section 1 as evidence to the contrary. As it was indicated in section II, the Court of Justice is ready to test the validity of national measures against Community rights standards when the Member State implements secondary legislation or when it derogates from a fundamental freedom. See the critical remarks of Weiler in a discussion which took place at Harvard. Available at He finds the drafting of the Charter poor as reference is only made to �implementing Union law�. However, it is not inconceivable that this sentence will be interpreted as covering both cases.

[59]             Tadkis 1999, 241 argues that the series of cases dealing with the rights of homosexuals and transsexuals provide the �clearest indication� that �Luxembourg looks to Strasbourg to provide leadership in the recognition of new rights�. Cf. Case C-249/96, Grant, [1998] ECR I-621, especially paragraphs 33-4.

[60]             Weiler, 1996.

[61]             The short description of the 1998 Human Rights Act reads: �An Act to give further effect to rights and freedoms guaranteed under the European Convention on Human Rights�. The need of a national system of human rights protection in addition to the one provided by the Convention was the driving force for the enactment of this act, which implies a dramatic change in the British material constitution. See Bennion 2000.

[62]             See Article 16, section 2 of the Portuguese Constitution and Article 10, section 2 of the Spanish Constitution. A similar but limited move can be read in the Greek Constitution, Article 5, section 2.

[63]             See, for instance, article Article 59, section 4 of the Polish Constitution and Article 10 of the Czech Constitution.

[64]             �So far as it is possible to do so, primary legislation and subordinate legislation must be read and given effect in a way which is compatible with the Convention rights�.

[65]                 MacCormick 1999, especially chapter 7.

[66]             Case T-112/98, Mannesmannr�hren-Werke AG, judgment of 20 february 2001, not yet reported.

[67]             See Court rules on company disclosure. Financial Times, 20 February 2001. The paper refers to a competition specialist according to which it was �disappointing that the court has chosen not to impose the more stringent human rights safeguards�, referring to the alleged standards of the European Court of Human Rights.

[68]             Case 82/1991/334/407, Funke v. France, judgment of 25 February 1993.

[69]                 Paragraph 44.

[70]             Case 43/1994/490/572, Saunders v. The United Kingdom, judgment of 17 December 1996.

[71]                 Paragraph 68.

  [72]            See Annex IV of the Conclusions of the Presidency of the Cologne European Council, 3-4 June 1999, fn 47.

[73]             See Rousseau, 1967, vol. III, p.380