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The Charter of Fundamental Rights and the UK opt-out

Bruxelles - Brussel, Wednesday, 05 December 2007 Ecrit par Davyth Hicks

The Charter of Fundamental Rights will take on legal force under the Reform Treaty and is due to be 'solemnly proclaimed' by the Parliament, Council and Commission in Strasbourg on 12 December. It is anticipated that the Charter will help secure linguistic rights for those language groups that continue to be discriminated against in the EU.

The Charter of Fundamental Rights brings together in a single text a whole range of civil, political, economic and social rights of European citizens. It is divided into six chapters: Dignity, Freedom, Solidarity, Equality, Citizenship and Justice. Supporters of the Charter have hailed it as an expression of the EU's commitment to human rights and fundamental freedoms and step forward from the 1999 Amsterdam Treaty where they were first mentioned.

For Eurolang readers it is important because Article 21 clearly embeds linguistic rights in the EU and gives grounds for appeal in cases of discrimination on the grounds of language and being a “member of a national minority”. Appeals will go to the European Court of Justice in Luxembourg. Article 21.1 states: 1. “Any discrimination based on any ground such as sex, race, colour, ethnic or social origin, genetic features, language, religion or belief, political or any other opinion, membership of a national minority, property, birth, disability, age or sexual orientation shall be prohibited.” Article 22 states that, “The Union shall respect cultural, religious and linguistic diversity.”

While these rights will only apply to acts and legislation emanating from the EU, it will, in theory, give those language groups which are still continuously discriminated against, such as Breton and Occitan speakers in France, some grounds for redress if they are discriminated against in any EU based acts and legislation.

Interestingly, the Parliament, in Michael Cashman’s Report going through the Committee on Justice, Civil Liberties and Home Affairs (LIBE), is also reviewing the EU Council and Commission proposals for the remit of the new Fundamental Rights Agency. The proposal failed to include language as a basis for discrimination even though it is in the actual Charter for Fundamental Rights, quite odd if you consider that the Agency is being set up to help implement the Charter. To date, some LIBE Committee MEPs have tabled an amendment to include ‘language’ thanks to the efforts of Eurolang and EBLUL. The Report will be discussed next week in Strasbourg and Eurolang will report on the outcome.

Jo Leinen speaks about the new Charter

German MEP Jo Leinen (PSE) is Chair of the Parliament's Constitutional Affairs Committee, he has also acted as reporter on the issue. The European Parliament’s press team spoke to him about what the Charter means in practice.

1. The Charter of Fundamental Rights (CFR) was signed in Nice on 7 December 2000. Now the Charter will be solemnly proclaimed on 12 Dec in the EP in Strasbourg. Why this new solemn proclamation seven years on? What has changed?

The Charter forms an integral part of the new Treaty of Lisbon, so it will become legally binding for the European institutions. It is the first time that the European citizens can actually claim their rights before the European Court of Justice in Luxembourg. We have to proclaim the Charter with the three institutions to have a public act. When the Treaty is adopted these 50 freedoms and rights are part of the EU’s legal framework.

2. With the new reform Treaty of Lisbon the CFR becomes legally binding; does that mean if an EU Member State violates, for instance, the right to freedom of peaceful assembly, it could be brought before the European Court of Justice in Luxembourg?

The Charter applies only to acts and legislation of the European Union whether they are directly implemented by the Commission or indirectly implemented by Member States, regions or the local authorities. It does not apply to purely national activities; these are under national fundamental rights acts of the national Constitutions.

3. How will the Charter relate to the European Convention on Human Rights (adopted under the auspices of the Council of Europe in 1950)? From now on, where should a European citizen turn to if his or her fundamental rights have been violated, to the European Court of Human Rights in Strasbourg or the EU court in Luxembourg?

The EU Charter of Fundamental Rights of 2007 is more modern, and more comprehensive than the Human Rights Declaration. In the EU Charter we have modern rights like the right to have a good environment, right of consumer protection, right to have a good public administration or right to data protection, or the prohibition on cloning of human beings.

We are lucky in Europe because our citizens enjoy a double system so there is no deficit in the human rights protection; on the one hand we have the Charter of Fundamental Rights of the EU; and on the other hand we have the Human Rights Convention of the Council of Europe. I think this is a unique system in the world.

The EU will be a contracting part of the Human Rights Convention of the Council of Europe and the two courts for human rights protection, the one in Strasbourg and the one in Luxembourg, will very closely cooperate so the citizens are really 100% covered and protected. Whatever case comes up it should go either to Strasbourg or Luxembourg.

4. How do you personally feel about the Charter?

After emerging from the atrocious World War II with 50 million dead and a lot of human rights violations through Nazism and Communism afterwards, I think human rights protection is the soul of Europe and the heart of European identity. It is what identifies us from Poland to Portugal. We all stand for values of a civilisation expressed in the Charter.

Nevertheless the Charter is a milestone in European unification especially because it symbolizes that the EU is not only a big market but it also protects its citizens. It is an expression of the Europe of citizens and not only a Europe of markets and states.

5. What is the next step?

This is the final step. This is what we have been waiting for over 50 years.

Press release from the European Network Against Racism (ENARBrussels, 19 October 2007

EU Treaty: EU member states cannot ‘pick and choose’ when it comes to European fundamental rights. 

As EU Heads of state and government celebrate their agreement on the new ‘Lisbon Treaty’ at a summit meeting in Lisbon on 18-19 October, the European Network Against Racism (ENAR) welcomes the fact that the EU Charter of Fundamental Rights is now recognised in the Treaty as legally binding. We also welcome the inclusion of a number of positive provisions relating to democracy and non-discrimination, amongst others. 

However, we are very disappointed that some countries have circumvented their obligations in terms of the EU’s fundamental rights. The Charter’s new legal status is an important step forward for ethnic and religious minorities across Europe in the protection of the fundamental rights to non-discrimination, religious freedoms, social rights, etc. 

However, the Polish and UK opting out of the Charter undermines the commitment to respect for the key values of equality, fundamental rights and respect for diversity. ENAR is very concerned that the fundamental rights of EU citizens will not be adequately protected as a result of this opt-out, and calls on these countries to live up to their responsibility to protect citizens’ rights. 

"Fundamental rights and the fight against discrimination must be a priority for the EU and this is reflected in the EU’s new treaty", said Bashy Quraishy, ENAR President. "But the opt-outs of the Charter of Fundamental Rights undermine the very basis of the EU’s commitment to fundamental rights and as such hamper the development of a culture of Human Rights that can contribute to the achievement of peace, democracy, mutual respect and shared responsibility, tolerance and participation, justice and solidarity."

The final step?!

Not if you live in the UK Mr Leinen and perhaps especially if you are Cornish and have to live with a feudal institution like the Duchy of Cornwall. Might I remind readers that the Duchy of Cornwall seems to exist outside the law yet still has the right to interfere in our lives.

To give effect to the UK’s opt-out, a protocol to be added to the future reform treaty will state that:

The charter does not extend the ability of the [European] Court of Justice, or any court or tribunal of the United Kingdom, to find that the laws, regulations or administrative provisions, practices or action of the United Kingdom are inconsistent with the fundamental rights, freedoms and principles that it reaffirms.

In particular, and for the avoidance of doubt, nothing in Title IV of the charter creates justiciable rights applicable to the United Kingdom, except in so far as the United Kingdom has provided for such rights in its national law. 

The effect of this protocol will essentially be that the charter cannot be used to challenge current UK legislation in the courts or to introduce new rights in UK law. The outgoing UK prime minister, Tony Blair, attending his last EU summit in June, said that the outcome of the talks made it ‘absolutely clear that the Charter of Fundamental Rights is not going to be justiciable in British courts or alter British law’.

Charter of Fundamental Rights

LIBE Committee

EU Council / Commission proposal for the Framework and remit of the Fundamental Rights Agency

European Parliament Report (Jo Leinen) on the Charter of Fundamental Rights

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