The article has been written by Ananya Bose, a student at Hidayatullah National Law University. The article discusses extensively the contents and the evolution of Charter of Fundamental Rights of the European Union.

It has been published by Rachit Garg.

Introduction 

Ten years after the European Union (EU) institutions enacted the Charter of Fundamental Rights, it was incorporated into European constitutional law and thus got a legal force by the Treaty of Lisbon. Before that, the charter gained the status of solemn proclamation and was used as persuasive authority in the European court of justice as well as the European court of human rights. However, with the recent developments, the future of the charter is the subject of political debates. They, with a related agreement known as the European Convention on Human Rights, are sure to generate a lot of discussions. The charter has been used to codify the already existing rights acknowledged by the European court of justice and thus is strengthened by this very fact. The manner and the act of codification are going to set an example for the rest of Europe outside the EU as well as the world. 

What is the Charter of Fundamental Rights 

The European Union’s Charter of Fundamental Rights enshrines the fundamental rights of all European Union citizens (EU). It was created to offer uniformity and clarity to the rights that had been established at various times and in various methods in the different EU Member States.

The Charter contains an entire range of civil, economic, political as well as social rights based on the following existing conventions and laws:

1. Already acknowledged fundamental rights and freedoms in the European Convention on Human rights.
2. Longstanding safeguards of rights that exist in the common law and constitutional law of the UK and the other EU Member States are examples of the constitutional traditions of EU Member States.
3. The Community Charter of Fundamental Social Rights of Workers
4. The Council of Europe’s social charter 
5. Along with these, other international charters and conventions, the EU is part of, were also taken into consideration.

The Charter got its legal force or in other words, became legally binding on all the states after the Treaty of Lisbon was signed in December 2009.

The European Union (Withdrawal) Act 2018 did not contain the Charter of Fundamental Rights of the European Union. As a result, the Charter no longer applies to the United Kingdom.

History and background of the Charter of Fundamental Rights

The importance of the people of Europe and the human dimension in the development of the European Union, which was already reflected in the provisions of the Treaty of Amsterdam and the creation of the area of freedom, security, and justice, was reflected in the formulation of the European Union’s Charter of Fundamental Rights. The European Council, meeting in Cologne from June 2 to 4, 1999, resolved to codify European citizens’ rights, stating that “the protection of basic rights is a foundational principle of the Union and an integral requirement for her legitimacy.”

In the case of Costa v. Enel(1964) it was found that the law which was enacted by the Italian government to nationalise their electricity industry was not in line with the european law also known as Treaty on Functioning of the European Union.This landmark decision established the notion of EU law supremacy, which establishes the EU as a separate source of law that cannot be overruled by domestic legislation.It was considered by the scholars that if the european law was to prevail over the domestic, this might lead infringement of rights granted by the Constitution. This point had to be taken into consideration while drafting the charter.

Drafting of the Charter of Fundamental Rights

For drafting, the council formed to draft the charter chose to use a more open method rather than the usual diplomatic negotiation. A body composed of representatives of the Heads of State and Government and the President of the Commission, as well as members of the European Parliament and national parliaments’ was given responsibility, with observers from the European Court of Justice. Individual professionals, as well as representatives from the Economic and Social Committee and the Committee of the Regions, were asked to speak. The drafting was supposed to be finished in time for the European Council summit in Nice in December 2000.

The council of members elected Roman Herzog as its chairman who was at that time the president of Germany. The discussions were made public and the texts were available online as well as maximum transparency was maintained. Inputs regarding the texts and suggestions were taken from the representatives of different institutions like the Council of Europe, and the European Court of Justice. The debates were open and occasionally heated, but they never went stale because Roman Herzog was determined to reach an agreement to make the draft text acceptable to all member states, which explains the compromise character of several sections and their careful drafting. 

Adoption of the Charter of Fundamental Rights

The Charter is also one of the world’s most up-to-date codifications of fundamental rights. It includes all of the traditional protections of basic rights, as well as those found in the European Convention on Human Rights, but goes further. The Charter also protects rights and ideas, such as economic and social rights, that are derived from national constitutional traditions, European Court of Justice precedent, and other international accords. In addition, the Charter safeguards so-called “third-generation” basic rights, such as an explicit right to data privacy, bioethics protections, and the right to good administration.

There has been a unique process used in the development of the charter. The open method has been used significantly rather than the usual diplomatic method.

The Convention’s participation of such a high number of members of national and supranational parliaments demonstrated how crucial the Charter is for the process of bringing the European Union closer to the people right from the start. The Lisbon Treaty advances the process by introducing significant changes that boost the European project’s democratic legitimacy. As a result, we can call the Lisbon Treaty a “Treaty of Parliaments.”

Even though it was not legally binding at that time it played an important role in decisions by the courts. The EU institutions bound themselves to the charter and followed it in word and spirit.

There were many debates related to the legal status of the charter when it was not legally binding by legal experts. The institutions in Europe tried to implement the charter in their day-to-day legislative process. Though initially, there were some hesitations regarding the implementation of the charter in court, later, the courts have cited the charter and used it as a persuasive source in many decisions.

On September 26, 2000, the proposed Charter was finalised. The Convention formally accepted the document on October 2nd and forwarded it to the President of the European Council. The European Union’s Charter of Fundamental Rights was then presented to the  Biarritz  European Council (12-13 October) before being proclaimed by the Nice European Council on 7 December 2000. Some Member States objected to it being included in the founding treaties. Others, such as the European Parliament, wanted the Charter to have full legal effect.

The Parliament of Europe kept pushing for the charter to have binding legal force. As a result, the Charter text was incorporated in the proposed Constitution for Europe prepared by the Convention for the Future of Europe in 2004. It was not until the treaty of Lisbon which was signed in 2007 that the charter got its legal binding in December 2009.

It took almost ten years for the countries to accept the charter and make it legally binding upon themselves. Ten years of hope, a few setbacks, and some difficult discussions.

Contents of the Charter of Fundamental Rights

Civil and various political rights have been included in the first three chapters. Human dignity has been given a superior position. Everyone in the EU has the right to life as well as the right to mental and physical dignity. No one shall be subjected to inhumane treatment such as slavery, torture, and forced labor. The other chapter that is on freedom contains a long list of different rights such as freedom of expression and information, freedom of assembly and association, freedom of the arts and sciences, the right to education, the right to choose an occupation, and the right to work, the right to conduct a business, the property right, the right to asylum, the right to liberty and security, to respect for private and family life, and to personal data protection, the right to marry and start a family, freedom of thought, conscience, and religion. Equality rights have been mentioned in a different chapter and it covers the right of equality before the law, respect for all cultures and communities and diversity, gender equality, rights of the minor, and the care and respect for the elderly.

It was more challenging to write the chapter on unity. The differences emerged within the Convention between the southern countries, which were committed to affirming and enshrining economic and social rights, and the northern countries, which preferred to leave these issues to the formalised dialogue between management and labour. Countries like Britain and Ireland did not want the right to strike and form trade unions to be included in the charter, however, both the rights were included. It has been worded generally and doesn’t try to go beyond the basic already existing rights like Workers’ rights to information and consultation within the company, collective bargaining, and action, access to placement services, protection in the event of unjustified dismissal, fair and just working conditions, prohibition of child labor and protection of young people at work, protection of family life and reconciliation of family and professional life through maternity leave and parental leave. However, though rights like access to social security benefits have been mentioned in the convention there is no mention of the right to social security. Similarly, the right to housing and employment is not there. There is also a mention of environmental rights, good health care availability for all as well consumer protection rights. However, they are subject to laws made in each country and hence remain widely unequal and diverse. 

The rights of the citizens who are the members of the countries in the European Union like the right to vote and also the right to stand as a candidate in elections of the European Parliament and their local elections. The right to public governance by the Government’s institutions and bodies, including the right to refer cases of gross incompetence to the Union’s Ombudsman, access to European Parliament, Council, and Commission documents, petitioning the European Parliament, and receiving protection from the diplomatic and consular authorities of any Member State in countries where their Member State is not represented.

There is also provision for non-citizens of the Union residing in the EU countries, however, their rights are restricted to the right of freedom and movement only and not the entire set of rights. 

An entire separate chapter has been dedicated to the right to justice. The right consists of the basic justice principles like that of remedy before an unbiased court of law for everyone whose freedom as well as rights mentioned in the laws have been violated. The right to not be punished for the same offence and the presumption of innocence and the right to defend have also been added to this charter. 

Though it has some inadequate provisions as well as some overthought and more cautious laws due to the contentions of different countries in the EU with different laws and cultures, it represents a coherent entity.

There are chapters and articles in the Convention. The following are the six chapters: 

• Dignity
• Freedoms
• Equality
• Solidarity
• Citizen’s rights
• Justice

Dignity

This contains Articles 1 to 5:

1. Human dignity – Every citizen has the right to live their dignity.
2. Right to life – The right to life is guaranteed to everyone, and the death sentence is prohibited.
3. Right to integrity of the person – Medical permission and the restriction of certain genetic techniques are examples of this.
4. Prohibition of torture and inhuman or degrading treatment or punishment. – No one should be subjected to inhumane behaviour.
5. Prohibition of slavery and forced labour – Trafficking is prohibited under this.

Freedoms

Articles 6 to 19 are concerned with freedoms:

6. Right to liberty and security. – one of the most important rights i.e of liberty, freedom and security.
7. Respect for private and family life.
8. Protection of personal data – Data should be processed fairly, for specific objectives, and on the basis of permission or another legally permissible basis.
9. Right to marry and right to found a family – marriage has been made a legal right in accordance with the national laws of each country.
10. Freedom of thought, conscience and religion –This encompasses the freedom to openly declare one’s religious convictions as well as the freedom to alter one’s religious beliefs.
11. Freedom of expression and information.- Everyone has the right to express themselves freely and obtain information about the events and people.
12. Freedom of assembly and of association – trade unions can be formed.
13. Freedom of the arts and sciences – Academic freedom is included in this.
14. Right to education – parents can teach their children different religious beliefs according to their convictions.
15. Freedom to choose an occupation and right to engage in work – Non-EU citizens with the right to work in the EU should be able to work under the same circumstances as EU citizens.
16. Freedom to conduct a business. – Everyone has the right to start a legal business and run it.
17. Right to property – Property encompasses everything of one’s things, not only land and/or dwellings. Intellectual property is included in this.
18. Right to asylum.
19. Protection in the event of removal, expulsion or extradition – This includes the ban of deporting someone to a nation where they may be tortured (or other degrading or inhuman treatment).

Equality

Articles 20 to 26 are about equality and discrimination:

20. Equality before the law. – Everyone, rich or poor , black or white is the same in the eyes of law and court.
21. Non-discrimination – Discrimination on the basis of sex, race, colour, ethnic or social origin, genetic characteristics, language, religion or other belief, political opinion, membership in a national minority, property, birth, handicap, age, or sexual orientation is prohibited.
22. Cultural, Religious and linguistic diversity – the government and the citizens shall be respected.
23. Equality between men and women – This does not preclude beneficial efforts that benefit women who are underrepresented (in a workplace for example).
24. The rights of the child – When a governmental or private authority makes a decision on behalf of a child, the kid’s best interests must be the top consideration. Unless it is in the child’s best interests, children have the right to retain a regular personal interaction with their parents.
25. The rights of the elderly – To live a life of dignity and to participate in social and cultural life. The elderly of the country shall have a right to live life with dignity and precipitate in events of the country.
26. Integration of persons with disabilities.- People with special needs shall be treated with respect and helped at all times.

Solidarity

27. Workers’ right to information and consultation within the undertaking – In instances covered by EU legislation, employees (or their representatives) must be consulted (for example, transfer of undertakings).
28. Right of collective bargaining and action – Employers and employees both have the right to form collective bargaining agreements and make collective decisions in order to safeguard their interests (for example, to take strike action).
29. Right of access to placement services – free placement services should be available to assist people to look for work. Placement facilities should be provided for free to the people looking for work and they should be assisted.
30. Protection in the event of unjustified dismissal. – In the event of unjustified dismissal , there shall be a grievance redressal process for the worker.
31. Fair and just working conditions – This includes the rights to safe working conditions, a workweek limit, rest breaks, and yearly leave.
32. Prohibition of child labour and protection of young people at work -Except in exceptional circumstances, the minimum age for working cannot be lower than the minimum age for leaving school.
33. Family and professional life – Pregnant employees and parents on maternity or parental leave are among those who are protected.
34. Social security and social assistance.
35. Health care- in accordance with the provisions of national legislation
36. Access to services of general economic interest – This enables member governments to provide more support to underserved areas.
37. Environmental protection –The EU’s plans should be sustainable.
38. Consumer protection – The customers or the consumers shall be protected from the malpractices used by the companies or the sellers.

Citizens’ rights

39. Right to vote and to stand as a candidate at elections to the European Parliament.
40. Right to vote and to stand as a candidate at municipal elections – everyone had the right to stand as a candidate and vote for their candidate in the local elections held in the member countries of the European Union.
41. Right to good administration – This includes the right to participate in any decision that has a negative impact on you, the right to view your file, and the State’s (or decision-making body’s) need to provide reasons for its actions. This means that EU institutions should react to citizen requests in the citizen’s native language.
42. Right of access to documents –  citizens of the country have the right to access any document held by the institutions in the EU.
43. Ombudsman –  Any company or person who may find any corruption  or malpractice in government institutions may contact competent authority.
44. Right to petition – any EU citizen or company can petition the European Parliament.
45. Freedom of movement and of residence.- Everyone residing in the country including the citizens as well as the non- citizens shall be entitled to move freely in the territory.
46. Diplomatic and consular protection – You are entitled to protection/assistance from another EU member state if you are outside the EU and in a nation where your country does not have an embassy or consulate.

Justice

47. Right to an effective remedy and to a fair trial – This includes a right to legal aid if you are considered to be in need of assistance.
48. Presumption of innocence and right of defence – According to the law, everyone is deemed innocent until proven guilty, and anybody accused of a crime has the right to a defence.
49. Principles of legality and proportionality of criminal offences and penalties – This includes forbidding retroactive crimes and penalties (i.e., you cannot be penalised for an offence that was not an offence at the time it was done) and ensuring that punishments are proportionate to the severity of the crime.
50. Right not to be tried or punished twice in criminal proceedings for the same criminal offence. – Similar to laws in India , no one shall be punished as well as tried for the same offence they have already been punished for.

Need for the Charter of Fundamental Rights

The Charter is one of the most recent and modern codified documents of fundamental rights in the world. It not only contains the basic and the fundamental rights and freedoms of the citizens but also goes beyond it. It is a document which contains all the personal rights and liberties that the citizens of the European Union country enjoy. It has the force of law and is legally binding over the governments and the citizens of the countries. 

Another important document on human rights is the European Convention on Human rights which was adopted in 1950 and got its force in 1953. This Convention needs to be ratified before joining the EU. However, the Charter of fundamental rights contains the cultural and economic rights also which are not mentioned in the  European Convention on Human rights.

By making basic rights more visible and explicit for citizens, the Charter increases their protection. 

The European Commission devised a plan in 2010 to monitor and guarantee that the Charter’s rights and freedoms are effectively implemented.

The Charter aims to promote and protect the rights of its citizens. 

In the modern days, when there is grave invasion of human rights in many countries, such charters should be taken as an example in forming national level human right laws. The Charter of Fundamental rights not only inspires the rest of Europe to develop better human rights but the entire world.

The Convention and National Law 

Now that the Convention has a legal force, the countries while implementing an EU law need to do so according to the rights mentioned in the charter. 

Let’s take the example of Ireland to understand, where the charter of fundamental rights directly applies.

The Charter may be relevant in the following conditions in Ireland:

• The Oireachtas is working on legislation to implement an EU Directive. EU Directives are EU rules that only take effect once national legislatures have implemented related legislation. This implies that each member state may interpret the Directive differently, or may fail to properly translate the Directive’s basic laws.
• The right to move freely in the country is involved.
• There is a European arrest warrant against a person.
• If a person is an EU worker and based on this status he/she avails a health or social benefit.

In case an EU law has not been followed in the country, the following remedies are available :

• The European Commission can take the matter to the court of justice of the European Union ( CJEU).
• Any citizen can also refer to the courts of the country as well as CJEU.

Which countries adopted this Charter

The charter has been adopted by all the members of the European Union and applies to the citizens of these countries. 

The countries are as follows: Austria, Belgium, Bulgaria, Croatia, Republic of Cyprus, Czech Republic, Denmark, Estonia, Finland, France, Germany, Greece, Hungary, Ireland, Italy, Latvia, Lithuania, Luxembourg, Malta, Netherlands, Poland, Portugal, Romania, Slovakia, Slovenia, Spain, and Sweden.

Conclusion

The charter needs to be a reality that works in practice and not just on paper. There needs to be an understanding among the people and the institution about how the charter complements the national systems and institutions on fundamental rights. There should also be an effort made toward the fact the charter doesn’t replace the national fundamental rights laws and systems. 

For the proper implementation of the charter at the level of agencies and institution, steps like establishing systems to ensure that any infringement of basic rights is recognised and reported, as well as that the dangers of such violations are brought to the notice of the agency’s major bodies as quickly as possible, establishing a frequent discourse on basic rights problems with civil society groups and relevant international organisations, a reference to the Charter should be given while drafting code of conduct of duties of the staff etc should be considered. 

Everyone concerned, in their specific areas of responsibility, should respect and bring life to the Charter: the European Parliament, Council, and Commission in the EU legislative process, national authorities when implementing and applying EU law, and national courts when making decisions that are in any way related to EU law.

The human rights institutions and the European institutions for fundamental rights located in Vienna play an important role in the implementation of the charter. Their expertise and research should be used to raise awareness in the arena of human rights. 

Frequently Asked Questions (FAQs) 

When did the European Union’s Charter of Fundamental Rights take effect?

On December 7, 2000, the European Union’s Charter of Fundamental Rights was signed. However, it was not until some years later that it became legally binding. It went into force on December 1, 2009.

What is the difference between the Charter of Fundamental Rights and the European Convention on Human Rights?

The charter of fundamental rights is more extensive than the ECHR. It contains everything that the ECHR contains along with cultural and economic rights.

What is the objective of the European Union’s Charter of Fundamental Rights?

It defines the rights, liberties, and freedom of the citizens of the  European Union.  

References 

• https://cadmus.eui.eu/bitstream/handle/1814/17597/LAW_2011_08.pdf?sequence=1&isAllowed=y
• https://www.equalityhumanrights.com/en/what-are-human-rights/how-are-your-rights-protected/what-charter-fundamental-rights-european-union
• https://www.citizensinformation.ie/en/government_in_ireland/european_government/eu_law/charter_of_fundamental_rights.html
• http://www.era-comm.eu/charter_of_fundamental_rights/kiosk/pdf/speech_reding.pdf
• https://fra.europa.eu/sites/default/files/fra_uploads/fra-opinion-04-2018_charter-implementation.pdf

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