ARENA Working Papers
WP 02/18


Exporting rights: The Charter of Fundamental Rights, membership and foreign policy of the European Union


Agust�n Jos� Men�ndez

Senior Researcher, ARENA

University of Oslo

PO BOX 1143 Blindern

0317 OSLO

(+ 47  22 85 56 56 + 47  22 85 78 32





This paper aims at exploring the impact that the Charter of Fundamental Rights of the European Union, solemnly proclaimed in December 2000, might have in this process, more specifically, in the relationships of the Union with applicant countries and with third states. Although not formally legally binding, it is argued that the Charter already has legal bite [Section 1]. Under such circumstances, it is claimed that the Charter will play a major role in testing the democratic credentials of applicant countries and member states [Section 2] and it might dissipate the remaining doubts concerning the competence of the Union to tie its emerging foreign policy to rights standards [Section 3].

The paper makes the further argument that such development is to be seen as �crowning� the slow process of emergence of rights as the fundamental principle of the European legal order, not as a radical departure. Such a finding reinforces the further claim that the European Union must be understood as a polity in the making, and not as a classic international organisation.




In a controversial spirit, it could be argued that fundamental rights have moved from an implicit (and contested) goal of European integration to one of its forefront (and foundational) policies [1] . It is rather well-known that European integration was not originally achieved by means of rallying behind a charter of rights. However, contrary to what is not infrequently assumed, human rights were an essential ingredient of the identity of the Communities since their inception, although they were not among its direct policy objectives. This was so to the extent that accession to the Communities was conditioned upon respect of human rights and that the member states willingly promoted their image as a �pouvoir civilitrice [2] in their foreign relations (even if not always, even often, for high-minded reasons). This rendered easier the later re-characterisation of fundamental rights as a policy objective of the Union on its own. This came in a fragmentary and convoluted way. On the one hand, the Communities thickened the conditions for membership and rendered explicit the requirement to comply with democratic and fundamental rights standards; moreover, Community legislation was subject to fundamental rights standards as the Court of Justice �found� an unwritten general principle of fundamental rights protection. On the other hand, the Union has become increasingly confident (despite some eventual difficulties) in the convenience of using its trade, diplomatic and aid policies to what it is perceived as promotion of the protection of human rights in third countries. One can quite safely say that human rights are said to be one of the emerging themes of an embryonic European foreign policy.

Academics have concentrated on two aspects of the role of rights in the external relations of the Union. On the one hand, some have aimed at testing the sincerity and coherence of the rhetorical statements. If only because most European states used to be colonial powers, it is quite convenient to test whether statements fit realities [3] . On the other hand, the well-known academic literature on conditionality [4] reflects the increasing tribute paid to rights in the drafting of trade agreements with third countries and, in general, in the formulation of the emerging European foreign policy [5] .

This paper aims at exploring the impact that the Charter of Fundamental Rights of the European Union, solemnly proclaimed in December 2000, might have in this process, more specifically, in the relationships of the Union with applicant countries and with third states. Although not formally legally binding, it is argued that the Charter already has legal bite [Section 1]. Under such circumstances, it is claimed that the Charter will play a major role in testing the democratic credentials of applicant countries and member states [Section 2] and it might dissipate the remaining doubts concerning the competence of the Union to tie its emerging foreign policy to rights standards [Section 3].

The paper makes the further argument that such development is to be seen as �crowning� the slow process of emergence of rights as the fundamental principle of the European legal order, not as a radical departure. Such a finding reinforces the further claim that the European Union must be understood as a polity in the making, and not as a classic international organisation.

It goes without saying that such transformations do not in themselves ensure that the political and economic action of the Union will actually promote (and not demote) human rights. But the solemn proclamation of the Charter implies a claim to do so, which can be used in order to assess the actual practice of the institutions.


I. The Charter and its legal status

The need for a bill of rights of European citizens can be traced back to the uneasy standing of fundamental rights within Community law [6] . While the original six member states included some form of bill of rights in their constitutions, the original Treaties establishing the European Communities did not contain many specific references to fundamental rights [7] . The undesirability of such state of affairs became crystal clear when the scope of Community law started to go beyond that of the legal order of a customs duty. A clear tension emerged between the supremacy of Community law [8] and the lack of human rights standards internal to the Community legal system. The European Court of Justice alleviated such friction by means of arguing that the general principle of protection of fundamental rights was one of the basic founding principles of Community law, and thus claiming that the tension was internal to Community law [9] . Even if legal dogmatics seems to be pretty positive concerning the innovative and flexible way in which the Court has elaborated such general principle in its jurisprudence, the purely jurisprudential character of fundamental rights protection was problematic. On the one hand, it is far from clear why the European Court of Justice should have the competence to write de facto the bill of rights of European citizens. It is true that fundamental rights are standards that constrain the activity of legislators. Thus, it can be argued that their standing is not merely based on the expression of will, not even the will of the people [10] . However, it is difficult to argue that the best process to draw the bill of rights is a judicial one rather than a political one ensuring the highest possible degree of participation and representation [11] . On the other hand, the concrete formula adopted by the European Court of Justice to �incorporate� fundamental rights to Community law has revealed its shortcomings with the passing of time. To the extent that the protection of whatever right could be subsumed under the �general principle of rights protection�, the result has been the implicit granting of the same constitutional status to all rights. Such solution is openly different from that adopted in the national constitutions of the member states which attribute more relevance to the legal articulation of fundamental rights. The protection of all rights at the same level is not necessarily promoting individual autonomy. Thus, if the right to private property is granted the same status and force as the right to personal freedom, this might result in the impingement of basic social and economic rights [12] .

These concerns could be said to underlie the reasoning of some national constitutional courts in the 1970s. Led by the German and Italian constitutional judges [13] , doubts were raised whether fundamental rights could not be undermined by the supremacy of Community law even if the European Court of Justice had already found at the foundations of Community law the general principle of rights protection. The argument remained rather moot, but only to be revived when the Court of Justice gave a complex opinion concerning the constitutionality (in Community law) of the Communities acceding to the European Convention of Human Rights [14] .

This prompted many attempts at drawing a bill of rights for the Union. A renovated effort towards such objective was agreed in the Cologne European Council of June 1999. [15] At the Tampere European Council, the �masters of the Treaties� decided that it should be drafted by a �body� composed of representatives from national governments, national Parliaments, the European Parliament and the Commission. This rather innovative �body� should work in a transparent and participatory way [16] . Against some odds, the �body�, which had renamed itself �Convention� [17] , a name with constitutional overtones, concluded its works in less than one year.

The resulting Charter of Fundamental Rights of the European Union was composed of fifty-four articles that spelled out the civic, political and social rights that European citizens are said to acknowledge each other. Inspired by the principle of indivisibility of rights, the Charter proclaims not only civic and political rights, but also �rights to solidarity� [18] , which comprise the usually referred as social and economic rights.       

The three main institutions of the European Union (the European Parliament, the Commission and the Council) solemnly proclaimed the Charter of Fundamental Rights of the European Union in December 2000 [19] . This action was the result of a lack of agreement among Member States to incorporate the Charter into primary Community law. This might be interpreted as confining the text to the condition of a mere �political declaration� without legal bite.

However, a proper legal analysis of the Charter makes it clear that the formal incorporation of the Charter into primary Community law is not a necessary precondition for the Charter having legal bite. If we accept that before the Charter was proclaimed, any European plaintiff could argue her case by reference to the fundamental rights recognised within EU law, we should argue that a non-formally binding Charter should not be an obstacle to her right to keep on arguing her case on the said body of law. The Charter could not undermine already existing rights.

The Charter Convention was given a mandate to consolidate the existing EU law of fundamental rights, not to change or amend it. The solemn proclamation of the Charter by the three Community institutions can be interpreted as evidence of the adequacy of the text to the mandate. If this is so, the Charter, even if not legally binding, can be considered as the best evidence of the existing Community law on fundamental rights. Thus, the legal bite of the Charter would be grounded not on its formal incorporation into community law, but in its character as authoritative consolidation of existing law.

This is reflected (and somehow reinforced) by the emerging practice of the Advocates General of the Court of Justice, supported by the Court of First Instance.

The Court of First Instance has already invoked the Charter of Rights as legal authority in two judgments. In both cases, the Court considered that the Charter provided additional evidence of the status and relevance of the rights to a good administration (Article 41, section 1) [20] and the right to effective protection and judicial review (Article 47) [21] .

Moreover, most of the Advocates General of the Court of Justice have referred to the Charter of Rights in their Opinions. Until April 2002, we could find the Charter being invoked in not less than twenty opinions [22] . Three of the said opinions are of special interest.

In BECTU, AG Tizzano argued that the Charter was the �more significant� legal authority to support the argument that the right to paid leave should not be conditioned to the completion of any period of employment by the employee [23] . The case is also noticeable as being the first one in which an Advocate General referred to the Charter of Rights.

In Booker Acquaculture, AG Mischo invoked the Charter as additional evidence of that the right to private property, according to Community law, did not entail the right to the payment of compensation in case the authorities destroy property to prevent the outbreak of an animal disease. What is to be noticed of this opinion is that the AG added some major reflections on the democratic qualities of the process through which the Charter was drafted:

�I know that the Charter is not legally binding, but it is worthwhile referring to it given that it constitutes the expression, at the highest level, of a democratically established consensus on what must today be considered as the catalogue of fundamental rights guaranteed by the Community legal order�. [24]

Finally, in Uni�n de Peque�os Agricultores, the Charter was used as additional evidence to ground the right to access to courts [25] . The Opinion is of great importance, as it argues for a wider interpretation of Article TEC 230, paragraph four. This will result in extending the active legitimacy to challenge secondary European legislation before the Court of Justice. The (re)affirmation of the right of access to courts in the Charter might have encouraged the Advocate General to propose this shift in the jurisprudence of the Court.

The Spanish Constitutional Court has also invoked the Charter as authority on the status granted by Community law to the right to protection of personal data. It must be noticed that the judgment was delivered on plenary session and even some days before the Charter was solemnly proclaimed in Nice [26] .

Finally, the Vice-President of the European Court of Human Rights, judge Costa, invoked the Charter in his separate but concurrent opinion in Hatton [27] . Costa referred to the provisions on the protection of the environment (Article 37) in order to show that the case law of the ECHR had not �been alone� in becoming increasingly aware of the importance of environmental issues [28] .


II. Membership

It was an implicit but clear rule that the Little Europes of the Coal and Steel and the Economic Communities could admit only democratic states that respected human rights. This might have been partially obscured by the fact that Article TEC 237 [29] conditioned membership exclusively to the European condition of the applicant country. However, the concept of �European� was never understood merely in a geographical sense [30] , but in a normative sense [31] . The European Communities were European to the extent that they abode by the ideal of the rule of law and respect of human rights [32] . This was finally clarified by the Birkelbach Report elaborated by the Assembly in 1962. In a sweeping statement, it was established that:

�Les �tats dont les gouvernments n�ont pas de l�gitimation d�mocratique et dont les peuples ne participent aux d�cisions du gouvernment ni directement ni par des r�presentants �lus librement, ne peuvent pr�tendre �tre admis dans le cercle des peuples qui forment les Communaut�s europ�ennes� [33]

This interpretation of Article TEC 237 was implemented in 1962, when the candidature of Franco�s Spain was expediently turned down [34]

Thus, the identity of Little Europe as a project of integration was to be markedly different from that of the two other competing projects [35] , namely the free trade area of EFTA, which could accept Salazar�s Portugal as full member, and the existing (?) socialist block of the COMECON, where civic and political rights were dismissed as petit-burgeois prejudices. It also marked a contrast with the military alliance of NATO [36] . Only the Council of Europe shared this democratic identity with Little Europe.

Other European countries, such as Great Britain or the Scandinavian countries, were also mature democracies where respect of fundamental rights was guaranteed. But only the members of Little Europe were prepared to limit their integrational efforts to countries with a similar record.

The human rights requirement has been symbolically marked before or immediately after the conclusion of enlargement processes. The accession of Denmark, Ireland and the United Kingdom was followed by the Copenhagen resolution on European identity [37] . The Sourthern enlargement to Greece, Spain and Portugal was preceeded by the 1977 interinstitutional declaration on the protection of fundamental rights [38] . The negotiation of the European Economic Area and the enlargement to Sweden, Norway [39] , Finland and Austria revived the debate over the accession of the Union to the European Convention of Human Rights. The Eastern enlargement was given an original impulse with the establishment of the so-called �Copenhagen criteria�, a set of standards based on articles TEU 6 and TEU 49 [40] .

One can speculate that the openly democratic identity of Little Europe stemmed from the traumatic experience of the Second World War or from the harrowing realities of the Cold war. The need to recycle national identities, too closely associated with the colonial past, might have also played a role [41] . Whatever the foundation, what is clear is that the original six Member States raised the claim that theirs was a community based on democracy and the rule of law. This self-image seems to have been relevant in the further strengthening of fundamental rights standards within Community law.


A) Candidate countries

As Community law stands, accession to membership of the Communities is subject to the candidate state being democratic and respectful of basic human rights. This rule, in place from the founding of the Communities, is now spelled out in Article TEU 49:

�Any European State which respects the principles set out in Article 6(1) may apply to become a member of the Union�

In its turn, Article TEU 6(1) establishes �democracy� and �respect for human rights and fundamental freedoms� as foundational principles of  the Union.

As a matter of law, Articles 6 and 49 set strict conditions for admission, not open to be modified by the accession treaty itself. Such an unconditional status is not shared by the four economic freedoms, regarding which transitory arrangements and temporary exceptions can be agreed in the accession treaty itself. [42]

It seems pretty safe to argue that the Charter of Rights, whether or nor formally implemented, would become the reference document in order to determine what Articles TEU 49 and 6 require. This does not mean that it would dispense with reference to the other sources of human rights law, but it would play a central role as the best evidence of European law on fundamental rights.

This conclusion is supported by present practice. The Commission Strategy Report for 2001, and all the twelve national reports, include an open reference to the Charter of Rights, to the extent that it emphasised the Union�s commitment to the protection of fundamental rights. [43]


B) Member States

It tends to be (correctly) argued that the fundamental rights standards to be found in Community law cannot be invoked in order to set aside purely national legislation. The catalogue of rights elaborated by the European Court of Justice on the basis of the �common constitutional traditions� can only be invoked vis � vis Community secondary legislation and national legislation that implements Community secondary legislation or which claims an exception to the latter [44] .

However, this does not mean that Member States are not bound by Community fundamental rights. On the one hand, the fact that Community standards are derived from the �common constitutional traditions� implies a substantial resemblance between national and Community standards, even if with marginal differences galore. On the other hand, Article TEU 7 formalised the obligation of Member States to respect Community fundamental rights in order to retain membership to the Union [45] . The said provision states such obligation and prescribes the suspension of the rights �deriving from the application of this Treaty to the Member State in question� in case of a serious and persistent breach of fundamental rights in a Member State.

Thus, Article TEU 7 establishes the competence ground for Community institutions to check whether Member States are actually protecting fundamental rights nationally.

Enlightened commentators argued that such an obligation would require developing �a methodology and guidelines for dealing� with potential breaches of the obligation [46] .

The Austrian crisis revealed the prudence of such analysis. A new coalition government was formed after the Austrian general elections of 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 European Union took the lead to forge a consensus among the other fourteen member states in order to show their concern for the new political situation in Austria. This led to what are referred as the �sanctions� against Austria, adopted by the fourteen member states and coordinated by the Union. The measures were basically of a diplomatic character, intended to convey to the Austrian civil society the messagge that the attitude of the Freedom Party was openly against the common constitutional traditions of the Union. The international uproar led the new coalition to render public a statement ("Responsibility for Austria - A Future in the Heart of Europe") in which they made an open commitment to the moral values of the peoples of Europe. As time passed by, and the new government was quite careful to send the right signals about their political action, the unanimous coalition brokered within the Union started to dissolve. The Portuguese Presidency of the Union ended up asking the President of the European Court of Human Rights to design three experienced public men to write down a report on the protection of fundamental rights under the new government.

For our present purposes, it must be noticed that the report [47] of the �wise men� made quite extensive use of the Charter of Rights. [48] This is good evidence that the Charter can be seen as providing detailed guidelines on what concerns the application of article TEU 7. This is even more so given that, by the time they wrote their report, the Charter had not been solemnly proclaimed yet (even if it had been endorsed informally at Biarritz).

Such a tendency would be reinforced by the new drafting of Article 7, as amended by the Treaty of Nice [49] . The new text would make the Charter more needed as a benchmark, to the extent that it allows �sanctions� to be applied with a majority of four fifths of the Member States, but explicitly mandates that the proposal is �reasoned�, this requiring standards of justification [50] .

This need has been clearly perceived by the European Parliament. Stemming from its institutional compromise to regard the Charter as binding [51] and from the Austrian episode, the European Parliament has decided to initiate a practice of annual reporting on the protection of fundamental rights in the European Union. The reports will follow, article by article, the structure of the Charter [52] and will consider developments in the European Union institutions and in all member states. At the same time, the Parliament has called upon the Commission and the Council to establish the appropriate institutional arrangements to prevent violations of rights and to handle conflictive situations under Article TEU 7 [53] .


III. Foreign Policy

The previous section was devoted to the role of the Charter as the yardstick to be used when assessing whether member states or candidate countries comply with the political requisites for full membership. The present section focuses on purely external relations, that is, those with third countries.

Foreign policy was not the domain of rights before Second World War. As it is rather well-known, international law and diplomacy were considered to be the realms where national interests were bargained and occasionally fought for by states. Only after the Second World War, with the emergence of individuals as subjects of international law [54] and the proclamation of international treaties dealing with fundamental rights [55] made it sense to consider the interrelations between human rights and foreign policy.

European states were no exception. Not only were their external relations based or plagued by periodical wars, but their relationships with third countries were predominantly characterised by colonialism and economic exploitation [56] . If Germany or Italy had to face a new constitutional beginning to reconstruct the country in moral and legal terms, all the six original Member States were faced with the need of proceeding to a new beginning in terms of their mutual relationships (which led to the vicissitudes of European integration) and of their relationships with third countries [57] . In what concerns the latter, respect of human rights became a founding stone on which to establish such new beginning [58] .

This can be clearly seen in the decision to create, within the framework of the Treaty of Rome, a fund to aid development, which was clearly oriented towards former colonies. The same goes for the commercial policy of the Communities, which was based on a mixture of maintenance of traditional patterns of trade but also on washing the image associated with the colonial past. And especially, it can be seen on the fact that the European Convention of Human Rights, signed in 1950, could be extended in its application to the colonies of each Member State.

The coming of age of fundamental rights within Community law has led to a simultaneous strengthening of the external dimension of rights, the main vehicle of which has been a tendency to make use of European bargaining power in international trade relations to foster respect for fundamental rights abroad [59] . Such tendency, already present in the late seventies, [60] became a pattern in the late eighties and early nineties.

This led to the emergence of human rights protection as an essential goal of European development policy. In the words of the Council, the Union should contribute to the aim that �[a]ll lasting development should be centered on man as the bearer of human rights� [61] . This led to positive measures to foster fundamental rights in third countries, such as monitoring elections or assisting non governmental organisations in the forging of a pluralist society [62] . It also resulted in the �human rights� clause becoming standard content of all trade agreements established with third countries since 1992 [63] . The clause defines respect for human rights and democracy as �essential elements� of the bilateral relationship between the Union and the given third country [64]

However, such policy has been handicapped by the lack of a clear competence base, by the lack of adequate guidelines and criteria on what standards should be respected, and by the lack of an adequate institutional structure to implement it.

At the very least until the Treaty of Amsterdam, no Treaty provision established a clear-cut competence of the Union or the Communities on human rights [65] . This was not interpreted as an obstacle to the pursuit of human rights objectives within the areas of competence of the Communities, as it was explicitly or implicitly argued that such competence should be coextensive with the general competence of the Communities [66] . However, the only legal basis of some of the human rights programs was their inclusion in the Community budget. [67]

Opinion 2/94, concerning the accession of the Communities to the European Convention on Human Rights [68] , led to a first wave of restrictive interpretations of Community�s competence on human rights matters. Although the reasoning of the Court seems to focus on the question of whether the existing Community institutions can on their own decide accession to the Convention or whether only the direct intervention of Member States is necessary, the strict wording of some of its paragraphs has fostered a restrictive interpretation of the general competence of the Communities on the matter. [69]

Moreover, the judgment on case United Kingdom and Ireland v. Commission [70] , further questioned the legal basis for some of the measures adopted by the Communities concerning the fostering of rights protection in external action.

The Charter of rights and the Chartering process might help appeasing such kind of concerns. First, the doubts about the competence of the Union to promote human rights through its trade policy and through expenditure, already weakened after the entry into force of the Amsterdam Treaty [71] , should be definitely undermined by the Charter, given its procedural democratic qualities. The facts that the decision to establish the Charter was taken by the �masters of the Treaties� [72] and that the Convention was a highly representative institution [73] reinforce the argument that the competence of the Union on fundamental rights matters must be coextensive with its general competence [74] . Hints of this are already to be found in the Communication from the Commission on the European Union�s role in promoting human rights and democratisation in third countries [75] and the related Council Conclusions of 25 June 2001 [76] .

The �revamping� of the Union�s foreign policy has already been translated into further, more specific guidelines. The Council has produced its Guidelines on Human Rights Dialogue [77] . The Commission has presented a Communication on EU Election Assistance and Observation [78] and on conflict prevention [79] . As it was already indicated, the Cotonou agreement with the ACP States of 23 June 2000 has extended the human rights clause to a multilateral setting [80] .

Moreover, the Charter is likely to become the central benchmark in assessing compliance with fundamental rights by third countries [81] . The Commission has already expressed its commitment to such a move:

�The Commission�s action in the field of external relations will be guided by compliance with the rights and principles contained in the EU Charter of Fundamental Rights which was officially proclaimed at the Nice summit in December 2000, since this will promote coherence between the EU�s internal and external approaches. The Charter makes the overriding importance and relevance of fundamental rights more visible to the EU�s citizens by codifying material from various sources of inspiration, such as the European Convention on Human Rights, common constitutional traditions, and international instruments� [82] .

This would have an impact on the drafting of the country and regional Strategy papers [83] .

Finally, and it has already been indicated, the European Parliament has already actively argued that the Charter of Rights should be matched by appropriate specific institutional arrangements, such as the nomination of a Commissioner in charge of fundamental rights issues and the companion institutional decisions.



In this article, it has been argued that the solemn proclamation of the Charter of Fundamental Rights in December 2000 is not deprived of implications for the development of the European Union�s foreign policy.

It is crystal clear that no matter how solemn a proclamation is, it cannot be equated with the formal incorporation of the Charter into primary Community law. However, the Charter is bound to have legal bite even if not incorporated, due to the fact that it does not represent a departure from existing Community law, but the consolidation of existing law. The Charter stands as a repository of evidence for legal actors. This has resulted in the growing practice of Advocates General of the Court of Justice invoking the Charter in order to support their arguments. Although the Court of Justice itself has not kept track (for the time being), the Court of First Instance has followed suit and it has called upon the Charter in two judgments. The practice has been further followed by the Spanish Constitutional Court and by one of the vicePresidents of the European Court of Human Rights. As such practice thickens, it becomes a reason on its own to claim that the Charter has legal bite.

The particular status of the Charter allows us to understand the increasing use that Community institutions are making of it. It has been noticed that the democratic credentials of Member States are being checked against the �Copenhagen criteria�, now further spelled out and clarified by the Charter, as the annual reports witness to. Moreover, Article TEU 7, regarding the situation of fundamental rights in Member States, is starting to be operationalised in the Annual Report of the European Parliament, which monitors each and every right contained in the Charter. The Parliament has called the Commission and the Council to establish the appropriate institutional structure to ensure screening of both Community institutions and Member States.

The proclamation of the Charter seems to have finally vanished persistent doubts on the competence of the Union to promote fundamental rights through its foreign and trade policies. Reference was made to the array of legal instruments that have been adopted from December 2000 onwards, providing a new legal and strategic basis for the Union�s foreign policy. The Charter seems to be bound to become a basic benchmark in guiding such policy.

The solemn proclamation of rights does not guarantee their actual compliance. Die-hard realistic critics can safely argue that the Charter is in itself a mere piece of paper. Indeed, as a physical object, we must grant that it could not eventually avoid by itself that membership would be granted to Turkey, even if by all standards the rights of minorities (especially the Kurdish one) are repeatedly violated, or that trade might flourish with China, even if you keep on needing friends in the Party to have a resemblance of freedom. But pieces of paper are occasionally rather powerful. The Charter provides citizens with a clear set of standards to that can be used in order to assess critically the actual performance of the Union and the member states. In fact, once political institutions have claimed to abide by the said principles, citizens have an easier job at testing and requiring compliance [84] . A mere piece of paper becomes a force when it comes under such a light. It becomes a powerful tool, in the hands of citizens when they become aware that it embodies basic principles of practical reason which reinforce, not undermine, the position of those willing to engage into reasoning and to guide action by the outcome of their deliberations. With all its shortcomings, the Charter has a potential to enhance fundamental rights protection [85] . This article has tried to point to some embryonic developments in that direction.


[1]           Such evolution can be summarised by the transition from an indirect reference (such as the one contained in the Preamble of the Treaty of Rome: �Resolved by thus pooling their resources to preserve and strengthen peace and liberty, and calling upon the other peoples of Europe who share their ideal to join in their efforts�) to a direct affirmation of the respect of rights as one of the foundational principle of the �ever closer� Union, as in Article 6, Section 1 of the TEU: �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�.

[2]           A term coined into academic fame in Francois Duch�ne, �Europe in world peace� in Richard Mayne (ed.); Europe tomorrow: sixteen Europeans look ahead, (Fontana, London, 1972), pp. 32-49. A critical appraise in Hedley Bull, �Civilian Power: A Contradiction in Terms?�, 1 (1982) Journal of Common Market Studies, pp. 149-70.

[3]           For the post cold war period, see Richard Youngs, The European Union and the promotion of democracy, (Oxford University Press, Oxford, 2002). See also Karen E. Smith, �The EU, human rights and relations with third countries: �foreign policy� with an ethical dimension?� in Karen E. Smith and Margot Light (eds.), Ethics and Foreign Policy, (Cambridge University Press, Cambridge, 2001), pp. 185-203.

[4]           The concept of �conditionality� seems to have been elaborated in the literature dealing with the International Monetary Fund. Loans from this international organisation are granted on the basis of national governments engaging to comply with a certain series of macro-economic constrains, which are supposed to restore economic virtue (a rather positive analysis in Henry S. Bieken and Mark Gersovitz, �Economic Stabilisation, Conditionality and Political Stability� 39 (1985) International Organization, 729-54; a more nuanced analysis in James Franklin, �IMF Conditionality, Threat Perception and Political Repression: a Cross-National analysis�, 30 (1997) Comparative Political Studies, 576-606; a devastating analysis in Joseph Stiglitz, La grande d�silussion, (Fayard, Paris, 2002); forthcoming in English: Globalization and its discontents, W W Norton and Company, New York, 2002). The concept of conditionality was later extended to the mid-70s decision of the US House of Representatives to subject military and civil aid to compliance with human rights standards. See Stephen B. Cohen, �Conditioning US Security Assistance on Human Rights Practices�, 76 American Journal of International Law, 246-79; David P. Forsythe, �US Foreign Policy and human rights: the price of principles after the Cold War� in ibidem, Human Rights and Comparative Foreign Policy, United Nations University Press, Tokyo, 2000, pp.21-48.

[5]           See Karen E. Smith, �The Use of Political Conditionality in the EU�s relations with Third Countries: How Effective?�, 2 (1998) European Foreign Affairs Review, pp. 253-74; Angela Ward, �Frameworks for Cooperation between the European Union and Third States: a variable matrix for Uniform Human Rights Standards?�, 3 (1999) European Foreign Affairs Review, pp. 505-36.

[6]           See, for all, Antonio Cassesse, Andrew Clapham and JHH Weiler, Human Rights and the European Community: the substantive law, (Nomos, Baden-Baden, 1991).

[7]           Leaving aside the right to non-discrimination on grounds of nationality (Article TEC 6) and the principle of equal pay for equal work (Article TEC 119).

[8]           As it is well-known, this principle was asserted by the Court of Justice in Costa, [1964] ECR 585.

[9]            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). See also Case 11/70, Internationale, [1970] ECR 1125; Case  4/73, Nold, [1974] ECR 491; Case 44/79, Hauer, [1979] ECR 3727 and Case 36/75, Rutili, [1975] ECR 1219.

[10]           Frank I. Michelman, �Constitutional Authorship�, in Larry Alexander, Constitutionalism, (Cambridge University Press, Cambridge, 1998), pp. 64-98, at p. 91: �[I]n order to confer legitimacy on a set of laws issuing from an actual set of discursive institutions and practices in a country, those institutions and practices would themselves have to be legally constituted in the right way�.

[11]           J�rgen Habermas, Between Facts and Norms, (The MIT Press, Cambridge), pp. 128: �The system of rights, however, is not given to the framers of the constitution in advance as a natural law. Only in a particular constitutional interpretation do these rights first enter into consciousness at all. In fact, when citizens interpret the system of rights in a manner congruent with their situation, they merely explicate the performative meaning of precisely the enterprise they took up as soon as they decided to legitimately regulate their common life through positive law. An enterprise of this sort presupposes no more than the concept of legal form and an intuitive understanding of the discourse principle�. See more recently J�rgen Habermas, �Constitutional Democracy: A Paradoxical Union of Contradictory Principles�, 29 (2001) Political Theory, pp. 766-81.

[12]           The law of regional integration of NAFTA might offer many examples in that regard. See the informative William Greider, �The Right and US Trade Law: Invalidating the 20th century�, in The Nation, 15 October 2001.

[13]           Regarding the Italian Constitutional Court, see Frontini v. Ministero delle Finanze, [1974] 2 CMLR 372; Granital v. Amministrazione delle Finanze dello Stato, [1984] 21 CMLR 756; Concerning the German Constitutional Court, see the �Solange I�, [1974] 2 CMLR 540, and Solange II, [1988] 25 CMLR 201 judgments.

[14]           Opinion 2/94, Accession by the Communities to the Convention for the Protection of Human Rights and Fundamental Freedoms, [1996] ECR I-1759.

[15]           See Presidency Conclusions 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, available at

[16]           Presidency Conclusions of the Tampere European Council, 15 and 16 October 1999, available at

[17]           CHARTE 4105/00, p. 3.

[18]           On rights to solidarity, see Koen Lenaerts and Petra Foubert, �Social Rights in the Case Law of the European Court of Justice. The Impact of the Charter of Fundamental Rights of the European Union in the standing case law�, 28 (2001) Legal Issues of Economic Integration, 267-96. I hesitantly refer to my own �The Sinews of Peace. Rights to Solidarity in the Charter of Fundamental Rights of the European Union� in Erik O. Eriksen, John E. Fossum and Agust�n J. Men�ndez, Chartering Europe, University of Oslo, Oslo, 2001, pp.201-26.

[19]           OJ C 364, of 18.12.2000, p. 5ff.

[20]           T-54/99, max.mobil Telecommunications Service GmbH v. Commission, Judgment of 2 May 2001, not yet reported. Available, in French, at, par 48.

[22]           A complete (and updated list) can be found at the Charter Watch webpage. Available at

[23]           AG Opinion in Case C-173/99, Broadcasting, Entertainment, Cinematographic and Threatre Union (BECTU), delivered on 8 February, 2001 ECR I-04881, par. 26 of the Opinion.

[24]           AG Opinion in Joined Cases C-20/00 and C-64/00, Booker Aquaculture Ltd trading as Marine Harvest McConnell and Hydro Seafood GSP Ltd vs The Scottish Ministers, Opinion delivered on 20 September 2001, not yet reported. Available at; par. 126 of the Opinion.

[25]           AG Opinion in Case C-50/00, Uni�n de Peque�os Agricultores v. Council of the European Union, Opinion delivered on 21 March 2002, not yet reported. Available at See par. 39 of the Opinion.

[26]           Judgment 292/2000, delivered on 30 November 2000, not yet reported, paragraph 8: �Por �ltimo, otro tanto ocurre en el �mbito comunitario, con la Directive 95/46, sobre Protecci�n de las Personas F�sicas en lo que respecta al Tratamiento de Datos Personales y la libre circulaci�n de estos datos, as� como con mla Carta de Derechos Fundamentales de la Uni�n Europea del presente a�o, cuyo art. 8 reconoce este derecho, precisa su contenido y establece la necesidad de una autoridad que vele por su contenido� (my italics).

[27]           Case of Hatton and Others v The United Kingdom, Judgment delivered on 2 October 2001, not yet reported.

[28]           See page 19 of the provisional transcription of the judgment.

[29]           See also Articles 98 of the Treaty on the Coal and Steel Community and Article 205 of the Euratom Treaty.

[30]           This does not mean that �European� did not point also to a geographical criteria. The European Communities were perceived as one of the �regional organisations� that should establish an intermediate layer between nation-states and the United Nations. In that sense, it would not make sense to accept any possible applicant country without any regard to its actual geographical position. However, such �geographical� condition was not perceived as an obstacle to the eventual membership of Algeria, to the extent that it was part of France in 1957, and it has not been perceived as a problem in order to consider as part of the territory of the Communities the non-European territories of France, United Kingdom or Spain.

[31]           One could argue that such normative judgment was also historically informed.

[32]           During the debates on the treaty on Political Union, the European Movement argued explicitly that membership of the European Union should be conditional upon accepting fundamental rights. Article 2 of the Draft Treaty is crystal clear: �The Community has the following mission and general aims: to contribute towards the protection of human rights and fundamental freedoms in Member States�. See Brian Simpson, Human Rights and the end of the Empire, Oxford: Oxford University Press, p. 654. The draft Treaty can be found in Richard T Griffiths, Europe�s First Constitution, (Kogan Page, London, 2000, pp. 189 ff).

[33]           Rapport de la Commission politique de l�Assambl�e Parlamentaire Europ�enne sur les aspects politiques et institutionnels (15 January 1962), Document 122, Janvier 1962. (Archives of the European Communities, 07.515:32;X3.075.15). See especially par. 25, at p. 4.

[34]           Bruno Olivi, L�Europe Difficile, (Gallimard, Paris, 2001), p. 303

[35]           The Council of Europe was never a competing project to the Communities, but a parallel project which specialised on the direct protection of fundamental rights. On the parallelism of the two projects, evidenced by the fact that a good deal of the same actors were behind the two projects of integration, in Simpson, supra, fn 33.

[36]           Portugal and Turkey were members of NATO since its foundation in 1949. Their status as members was never contested on democratic grounds.

[37]           See �Document on European Identity, adopted by the Ministers of Foreign Affairs of the Member States of the European Communities�, Bulletin EC 12-73. It must be noticed that the leading cases of the European Court of Justice on fundamental rights were decided immediately after �viable� negotiations for enlargement were established. This is a striking coincidence in time, which a more thorough �contextual� analysis of Court judgment might confirm as coincidental or might prove to more than coincidental.

[38]           Joint Declaration of 5 April 1977 by the European Parliament, Council and Commission on the protection of fundamental rights. See OJ C 103, of 27.04.1977, p.1).

[39]           As it is well-known, Norwegians voted against membership for the second time in 1994.

[40]           Presidency Conclusions of the Copenhagen European Council, June 21-22, 1993.

[41]           Only Luxembourg had not been a colonial power in the past (although it might count as a fellow traveller of Belgian or German colonialism).

[42]           A clear analysis of limits to amendments in accession treaties is to be found in Ulrich Becker, EU-Enlargements and Limits to Amendments of the EC Treaty, Jean Monnet Working Paper, 15/01, European Union Jean Monnet Chair, available at

[43]           �Making a success out of enlargement�, Commission Strategy Paper, available at, p. 10. National Reports: Bulgaria, SEC (2001) 1744, p. 14; Cyprus, SEC (2001) 1745, p. 11; Czech Republic, SEC (2001) 1746, p. 15; Estonia, SEC (2001) 1747, p. 15; Hungary, SEC (2001) 1748, p. 14; Latvia, SEC (2001) 1749, p.14; Lithuania, SEC (2001), 1750, p. 16; Malta, SEC (2001), 1751, p. 11; Poland, SEC (2001), 1752, p. 15; Romania, SEC (2001) 1753, p. 15; Slovakia, SEC (2001), 1754, p. 14; Slovenia, SEC (2001), 1755, p. 14; Turkey, SEC (2001) 1756, p. 13.

[44]           This has been clearly established by the European Court of Justice and it is confirmed by Article 51 of the Charter itself.

[45]           From the introduction of Article TEU 7 in its present form, legal theorists can argue that the foundation of the Community legal order is no longer to be located in the fifteen national constitutions, as they could be subject to scrutiny under Article TEU 7. For these kind of questions, I embarrassingly refer to my forthcoming United they Diverge: A Constitutional law for Europe?.

[46]           Philip Alston and J H H Weiler, �An 'Ever Closer Union' in Need of a Human Rights Policy: The European Union and Human Rights�. In Philip Alston (ed); The EU and Human Rights, (Oxford, Oxford University Press, 1999), pp. 1-66, at p. 40.

[47]           The full text of the report is available at

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

[49]           The Treaty of Nice has not yet been ratified by all Member States and therefore has not yet entered into force.

[50]           Article 1 of the Treaty of Nice, amending Article 7 TEU (OJ C 80, of 10.3.2001, at 6): �On a reasoned proposal by one third of the Member States, by the European Parliament or by the Commission, the Council, acting by a majority of four-fifths of its Members after obtaining the assent of the European Parliament, may determine that there is a clear risk of a serious breach by a Member State of the principles mentioned in Article 6(1), and address appropriate recommendations to that State. Before making such a determination, the Council shall hear the Member State concerned and, acting in accordance with the same procedure, may call on independent persons to submit within a reasonable time limit a report on the situation in the Member State in question. The Council shall regularly verify that the grounds on which such a determination was made continue to apply�

[51]           See �European Parliament Resolution on the Drafting of a European Charter�, 16 March 2000; �European Parliament Resolution on the European Union Charter of Fundamental Rights�, 3 October 2000; and the speech of the President of the EP, Nicole Fontaine, on the occassion of the solemn proclamation of the Charter, 7 December 2000: �A signature represents commitment (...) [F]rom now on (...) the Charter will be the law guiding the actions of the Assembly�.

[52]           Paragraphs 1 and 3 of the Motion for a resolution: �Notes that the EU Charter of Fundamental Rights, which was proclaimed on 7 December 2000, constitutes a synthesis of the fundamental values upon which the European Union is based and a document to which Articles 6(2), 7 and 29 of the EU Treaty (concerning the establishment of a European area of freedom, security and justice) must in future implicitly and necessarily refer (...) Notes that it is the particular responsibility of the European Parliament (by virtue of the role conferred on it under the new Article 7(1) of the Treaty of Nice) and of its appropriate committee to ensure (in cooperation with national parliaments and the parliaments of the applicant countries) that both the EU institutions and the Member States uphold the rights set out in the various sections of the Charter)�. In Report analysing the situation as regards fundamental rights in the European Union, Report A5-0223/2001, rapporteur Thierry Cornillet. Available at

[53]           The Parliament called the Commission to appoint a Commissioner with responsibility for fundamental rights and the implementation of policies linked to the establishment of an area of freedom, security and justice. See par. 15 of the Motion, in page 9 of the Report analysing the situation as regards fundamental rights, quoted in fn 46.

[54]           See Hans Aufricht, �Personality in International Law�, 37 (1943) American Journal of International Law, pp. 217-43.

[55]           As it is well-known, the United Nations Universal Declaration of Human Rights and the two companion Covenants of 1966 (the International Covenant on Economic, Social and Cultural Rights and the International Covenant on Civil and Political Rights). On the rise of rights in international law, from the Universal Declaration to the International Criminal Court, see Geoffrey Roberston, Crimes Against Humanity: The Struggle for Global Justice (The New Press, New York, 2000).

[56]           A synthetic account in Eric J. Hobsbawm, The Age of Empire (Cardinal, London, 1989) and The Age of Extremes, (Michael Joseph, London, 1994). See also Edward Said, Orientalism, (Penguin, Harmondsworth, 1995) and  Noam Chomsky, 501: The Conquest Continues, (South End Press, Boston, 1991).

[57]           In the Preamble of the Treaty of Rome, we can read: �Intending to confirm the solidarity which binds Europe and the overseas countries and desiring to ensure the development of their prosperity, in accordance with the principles of the Charter of the United Nations�. The Ventotene Manifesto, written in 1941 by Eugenio Colorni, Ernesto Rossi and Altiero Spinelli, and which became a founding stone of European federalism, was bolder and anchored European integration to a new world order which overcome colonialism: �And, once the horizon of the old Continent is superseded, and all the peoples who make up humanity are included in a single design, it will have to be recognized that the European Federation is the only conceivable guarantee ensuring that relationships with American and Asiatic peoples will work on the basis of peaceful co-operation, writing for a more distant future when the political unity of the entire world will become possible�.

[58]           Willingly or unwillingly. See Simpson, supra, fn. 33.

[59]           Alston and Weiler, supra, fn. 47.

[60]           Bruno Simma, Beatrix Aschenbrenner and Constanze Schulte, �Human Rights Considerations in the Development of Co-operation activities of the EC�. In Philip Alston (ed); The EU and Human Rights, (Oxford, Oxford University Press, 1999), pp. 571-626, at p. 575

[61]           European Council resolution, June 1991, Bull EC 6-1991, Annex V, Declaration on Human Rights, at 17-8.

[62]           Simma, Aschenbrenner and Schulte, supra fn. 61, pp. 595-614

[63]            Elena Fierro, �Legal Basis and Scopeof the Human Rights Clauses in EC Bilateral Agreements: Any Room for Positive Interpretation?�, 7 (2001) European Law Journal, pp. 41-68

[64]           More than thirty bilateral agreements had been signed by May 1995 including a human rights clause. At such date, the Council reconsidered in a Decision the basic modalities of the clause( �The Inclusion of Respect for Democratic Principles and Human Rights in Agreements between the Community and Third States�, COM (95) 216 final; available at!celexapi!prod!CELEXnumdoc&lg=EN&numdoc=51995DC0216&model=guichett. Since then, it has been included in all negotiated bilateral general agreements, more than twenty.

[65]           Paradoxically, Article J.1 (now 11) of the Treaty of the European Union referred to development and consolidation of democracy and the rule of law, and respect for human rights and fundamental freedoms among the objectives of the Common Foreign and Security Policy.

[66]           Alston and Weiler, supra fn. 47, p. 23.

[67]           Simma, Aschenbrenner and Schulte, supra fn 61, p. 575.

[68]           Opinion 2/94, Accession by the Communities to the Convention for the Protection of Human Rights and Fundamental Freedoms, [1996] ECR I-1759.

[69]           Alston and Weiler, supra fn 47, pp. 24-5.

[70]           Case C-106/96, [1998] ECR I-2729.

[71]           Article TEU F.2 (now article TEU 6) established a clear basis for fundamental rights protection in Union law. Article TEC 177, section 2 prescribed that Community policy in the sphere of development cooperation (...) shall contribute to the general objective of developing and consolidating democracy and the rule of law, and to that of respecting human rights and freedoms�. Article On its basis, Council Regulations (EC) 975 and 976/1999 established the basic new legal framework for the promotion of human rights and democratisation through Union�s policy. See OJ L 120, of 8.5.1999, p.1ff. Moreover, the Council and the Commission adopted a Joint Statement on the European Community�s development policy on 10 November 2000, See In addition, Article TEC 13 was amended so as to read: �Community (...) may take appropriate action to combat discrimination based on sex, racial or ethnic origin, religion or belief, disability, age or sexual orientation�. Council Directive 2000/43/EC, of 29 June 2000, implementing the principle of equal treatment irrespective of racial and ethnic origin, OJ L 180, of 19.7.2000, p. 13 and Council Directive 2000/78/EC, of 27 November 2000, establishing a general framework for combating discrimination on the grounds of religion and belief, disability, age or sexual orientation as regards employment and occupation, OJ L 303, of 2.12.2000, p. 16 have further specified Article TEC 13. This further spells out not only internal but external commitments of the institutions of the Union. See also the Declaration on the occasion of the 50th Anniversary of the Universal Declaration of Human Rights, of 10 December 1998. Available at

[72]           Cologne Presidency conclusions, 3 and 4 June, 1996, �44: �The European Council takes the view that, at the present stage of development of the European Union, the fundamental rights applicable at Union level should be consolidated in a Charter and thereby made more evident�.

[73]           In this respect, see the opinion of Advocate General Mischo in Booker Aquaculture, referred supra fn 25.

[74]           The new Article TEC 181a, which will be inserted into the Treaty of the European Communities if the Treaty of Nice comes into force, provides a legal ground to extend the objective of promoting the respect of human rights and fundamental freedoms to all forms of co-operation with third countries, beyond pure development policy, as indicated in Article TEC 177.

[75]           COM (2001) 252 final, of 8 May 2001. Available at

[76]           Council Conclusions on the European Union�s role in promoting Human Rights and Democratisation in third countries, of June 25, 2001; available at

[77]           Of 13 December 2001. Available at

[78]           Of 11 April 2000, COM (2000) 191, final.  Available at

[79]           COM (2001) 211, of 11 April, available at

[80]           See especially Article 9, section 2 in fine: �Respect for human rights, democratic principles and the rule of law, which underpin the ACP-EU Partnership, shall underpin the domestic and international policies of the Parties and constitute the essential elements of this Agreement�. See also Article 96 for dispute resolution. The text of the Agreement is available at A quick assessment in Peter Hilpold, �EU Development Cooperation at a Crossroads: The Cotonou Agreement of 23 June 2000 and the Principle of Good Governance�, 6 (2002) European Foreign Affairs Review, pp. 53 � 72.

[81]           Weiler and Alston, supra fn. 47, p. 39 point that the effective operation of the human rights clauses required �criteria to be used in applying the clauses�.

[82]           Communication  from the Commission to the Council and the European Parliament on �The European Union�s role in promoting human rights and democratisation in third countries�, COM (2001) 252 final, 8 May 2001, p. 3. Available at

[83]           Strategy papers can be found at

[84]           Human rights activists seem to agree, no matter where in the world they are. See Aung San Suu Kyi �Towards a Culture of Peace and Development� in Hans Kung, (ed.), Yes to a global ethic, (Continuum Press, New York, 1996. pp. 222-36) and Jos� Bov�, �A Farmers� International?�, 12 (2001) New Left Review, pp.89-101.

[85]           Rudolf Rocker clearly argued that �He who does not know how to value the achievements of the hour will never be able to conquer a better future for himself and his fellows�. In AnarchoSyndicalism, (Pluto Press, London, 1989), p. 54.