Six years of a legally binding Charter of Fundamental Rights in the EU: fear, amnesia, revival?

Six years ago today the Lisbon Treaty came into force. And with it the first supranational fundamental rights guarantee – guaranteeing both human and citizen rights. The Development of the Charter of Fundamental Rights can be divided into three major time spans: the time of fear, where certain governments feared the charter to be more progressive and to contain more protections than their national legislation; the time of amnesia, when none of those fears of the governments came true and the charter seemed lost and forgotten in a crisis-shaken Europe and a time of revival, where the European Court of Justice (ECJ) appears to have remembered the charter again.

Fear

In the wake of negotiating the Nice Treaty in 2000, the European heads of state also agreed to signing a convention of fundamental rights in the EU. This convention, in 2004, played a significant role in the “Constitution for Europe” where it would have been placed prominently in Chapter II. Then, however, the UK and soon thereafter Poland (and even later but unsuccessfully the Czech Republic) got cold feet and opted-out of the charter because they feared they would have to amend their national legislation where it does not meet the EU’s criteria, thus perhaps admitting their fundamental right standards might not be as high as the fundamental rights proclaimed by the EU.

Of special concern to the UK were labour rights such as the right to strike and fair working conditions. But the charter was furthermore seen as quite progressive, given the right to protect one’s personal data and bioethics outlined in it, causing hesitation on the part of the UK government. Although it was still a convention without legally binding status back in 2000, the Tories – who were the opposition to Tony Blair’s then Labour Government – were still anxious that it could influence British law making.

The opt-out for the UK and Poland was outlined in Protocol 30, which stated that the EU’s competences cannot be extended by the use of the charter and that it does not create “justiciable rights applicable to the United Kingdom”.

In practice, however, the ECJ did not need to “expand” or “create” the power to do this, as it had already ruled on fundamental rights cases and in this way judgments on this issue were already part of the acquis communautaire.

It is remarkable that the charter was seen as something so powerful that governments feared national laws would have to be changed, that it was seen as so intruding that the UK and Poland (and the Czech Republic) wanted their national legislation to be “safe” from it.  But where was the charter when Victor Orbán decided to limit press freedom? How did it prevent Roma from being deported from France?

Amnesia

Not much attention has been given to the charter of Fundamental Rights since it was made legally binding in 2009, but relegated to an annex of the Lisbon Treaty. To be fair, the EU has been through a tough phase: a failed constitution, sinking approval among citizens, a watered-down Lisbon treaty and last but not least a financial crisis that had its biggest outbreak in 2008, although the Netherlands for example were under pressure even before that. But when if not in times of crisis would you need fundamental rights to protect you against governmental (both national and EU) decisions? One could put forward the question whether the temporary-employment scheme implemented by Germany to overcome the crisis could still be labelled “fair working conditions”. So the question is: Has this fearsome charter proved to be much less frightening than some might have hoped and others expected? Why, for almost a decade, was the charter was lost and forgotten at the bottom of a treaty that should have been a constitution?

Revival

All good things come to those who wait. Lately there are signs that the charter may yet be revived. Maybe it is because of a reignited interest in EU affairs – at least if you take TTIP and migration to Europe as EU affairs – that the ECJ remembered the charter. Or maybe it is that legal issues just take time at a supranational level.

Be that as it may, in 2015 the ECJ did something extraordinary: it overruled the safe harbor agreement with the United States – arguing that it is not compatible with the right to protect one’s personal data as outlined in the Charter of Fundamental Rights of the European Union.

That is quite a controversial ruling on a very controversial topic and it comes at a time where rights in general are being discussed again throughout Europe – be it the right to asylum (Articles 18 and 19) in the wake of so many who had to flee their homes and now seek shelter and a new home in the EU, or the right to protect one’s data (Article 8), which could be under threat by the trade agreement with the US.

It is time that the national governments and the EU itself start to fear the Charter of Fundamental Rights once more. It is time that we remind the national governments and the EU of the fundamental rights they have granted us six years ago and it is time we stand up and claim our rights. Not just for us but for everyone in Europe whether they are EU citizens or have just arrived.

Six years after they were made legally binding, it is about time we made use of our rights.

Read more: Citizen Rights, TTIP and the right to protect personal data,

by Keno Franke

Picture by: Jean-Etienne Minh-Duy Poirrier (CC BY-SA 2.0)