The Charter of Fundamental Rights of the European Union: between political symbolism and legal realism.

• Author: von Danwitz, Thomas

1. INTRODUCTION

   The idea to adopt a Charter of Fundamental Rights (Charter) for the European Union (EU) is a long standing demand raised over and over again since the early nineteen seventies by national constitutional courts, governments and community institutions, most notably the European Parliament and many European law scholars. (1) But the fate of the failed projects striving for a European Constitution issued by the European Parliament in 1984, (2) 1989 (3) and 1994 (4), each including a significant Human Rights chapter, (5) might already hint at the considerable difficulties that the elaboration of a Charter of Fundamental Rights will face. However at the same time it explains the important symbolism inherent in this project.

   It is indeed a breathtaking endeavor in which the EU engaged itself following the decision of the Cologne summit in June 1999. (6) The EU called for a Convention charged with the elaboration of a Fundamental Rights Charter to be solemnly proclaimed by the Nice summit at the end of 1999 and eventually given full legal force thereafter by inclusion in the treaties. (7) Significant difficulties will have to be overcome to find a consensus on the role fundamental rights should play as constitutional limitations to legislative and executive powers, on their inherent balance between individual and general interests and on their judicial protection. In this respect, the legal traditions of the member states of the EU differ considerably. In the constitutional order of the United Kingdom, the sovereignty of Parliament is still going strong as we have quite recently been able to witness by the way the Human Rights of the European Convention of Fundamental Rights and Basic Freedoms have been incorporated into British law. (8) In direct opposition to the British tradition, Germany, Austria, Italy and Spain have fully embraced the concept of Constitutional jurisdiction (9) and have established Constitutional Courts as intermediate bodies between the legislative branch of government and the people in the way it has already been designed in Alexander Hamilton's Federalist papers. (10) But this concept is far from meeting consensus on the European continent. Denmark, Sweden and the Netherlands do not operate a system of constitutional jurisdiction (11) and even under the French concept of preventive constitutional control, statutory laws are still largely conceived as volonte general, an expression which has become famous afar Rousseau. (12) Therefore the Conseil constitutionnel is generally tempted to a significant extent to uphold parliamentary statutes against Fundamental Right claims. (13)

   The difficulties of finding a common language on the adequate degree of fundamental rights protection against statutory law-making in Europe can nicely be illustrated by referring to a joke about our practical experience with the linguistic difficulties occurring in the melting pot of European legal traditions, the European Court of Justice (ECJ). One advantage of the multi-lingual character of proceedings before the ECJ is that it sometimes provides moments of light relief. Visitors to the Court always enjoy watching the gesticulations of the interpreters. Something that causes interpreters particular difficulty is jokes, since these often only make sense in the language in which they are told. One quick-witted interpreter got round this problem by saying "Counsel is in the process of telling a joke. It is completely impossible to translate. However, I think it would be polite to laugh ... now!" The judges dutifully chuckled at the appropriate moment and Counsel could be seen preening himself on his wit. (14)

2. CAUSES AND OBJECTIVES OF THE PROJECT

   In the diplomatic language of the Cologne summit (15) the Charter is designed to express the overall importance of fundamental rights for the EU's citizens by rendering them more visible in the solemnly declared Charter. (16) Starting off from this basis it has been argued that a Charter of Fundamental Rights will enhance the citizen's identification with the EU and will therefore--similar to the idea of constitutional patriotism--form the nucleus for a future European identity. (17) Without denouncing the value of a written Human Rights Charter for the citizen's consciousness, let me express my reserves on this point. Technically we don't need a constitutional Charter for the EU--the treaties serve this purpose perfectly well. (18) The nature of the treaties as a constitutional statute has already been recognized by the European Court of Justice some fifteen years ago (19) and has not been called into question ever since. Nonetheless there is an ongoing debate about the making of a European Constitution these days. (20) It is easy to understand the political appeal inherent in that symbolism, but it is difficult to grasp the substantial change of European constitution building in a strictly legal sense. There is of course the long-standing demand for a clear-cut catalogue of respective competences and their division between the European institutions and the member states. (21) But this undertaking can easily be realized within the existing frame of the treaties and does not require their re-labeling as a European constitution. Given the fact that a definite transfer of ultimate sovereignty of the member states to the EU' is politically excluded for the foreseeable future, (22) a European constitution could in any case only be considered a complementary constitutional order concluded amongst the member states in order to assure a joint exercise of sovereignty rights. In that respect again there is little difference to the current situation, in which member states have agreed to form an ever-closer union without setting a time limit. (23) Under both constructions the member states keep the theoretical option to leave the EU while practically continuing to create a common political identity that makes it realistically impossible to terminate membership unilaterally. Aside from the semantic appeal of this project, legally there seems to be little new in the idea of a European constitution. Politically we don't need all the difficulties that would undoubtedly occur in the course of a realization or even of a possible failure of such a project. Finally, I think the fascination for fundamental rights protection should not lead us to an unrealistic assessment of the impact that such a Charter would have on the hearts and minds of the average European citizen. We should praise ourselves lucky if a significant portion of the population will be aware of its existence once it has been adopted.

   In legal reality the principal reason for elaborating a Charter of Fundamental Rights of the EU is the widespread concern, if not skepticism, of whether the level of human rights protection assured by the ECJ is really meeting the importance attached to them on the national level and the legitimate expectations of the citizens of the EU. In spite of the lacking textual basis in the original treaties, the ECJ has --after overcoming some early reserves (24)--devoted much of its jurisprudence to recognize and develop fundamental rights. (25) The ECJ certainly deserves credit for this judge made protection of fundamental rights, even when we have to bear in mind that its motivation was certainly not exclusively the desire to protect human rights for their own sake. A second motivation for the ECJ certainly was the need for European fundamental rights protection in order to ensure the supremacy of European law over national constitutional law, which was challenged by fundamental rights claims put forward against European legislation. (26)

   Despite a rich fundamental rights' jurisprudence of the ECJ, the level of protection has always remained a principal reason for doubtful assessments by fundamental rights scholars, particularly from Italy and Germany. (27) For the academic community, particularly in these countries used to strict human rights scrutiny, it remains a striking statistical fact that fundamental rights claims against EU legislation concerning property and professional liberty have not been successful over the past 30 years in one single case before the ECJ. (28) Compared to the high number of verdicts from national constitutional courts over national legislation regulating property rights and professional liberty, this practice raised doubts over the effectiveness of judicial review exercised by the ECJ. (29) At the same time it has to be acknowledged that the ECJ apparently tends to favor other legal grounds than fundamental rights for review of European legislation. (30) Therefore, in the end it appears unjustified to criticize the court for a complete lack of fundamental rights protection in such decisive fields as professional liberties and property rights, but it explains at the same time the well-founded skepticism on the level of fundamental rights protection exercised by the ECJ. In both countries the constitutional courts have explicitly reserved themselves the right to exercise a final review, but only under the condition that the constitutionally prescribed level of fundamental rights protection for their national citizens would generally not be attained by the ECJ. (31) Since the respective constitutions do not contain any provision on the required level of protection, it' becomes quite apparent that a written Fundamental Rights Charter can do little about the level of protection that is practically ensured by any jurisdiction. But there is a real influence the Fundamental Rights Charter can exercise. By convincing the ECJ of the overall importance of the protection of fundamental rights it can lead the ECJ to accept that this is the principal mission it has to accomplish. (32) Hopefully this will indirectly lead to an enhanced level of fundamental rights protection in the EU. (33)

   It is particularly important to convince the ECJ that fundamental...