Bringing the Charter to life

Speech at the Danish EU Presidency Seminar, Copenhagen

Ladies and gentlemen,

We have come a long way in the promotion and protection of fundamental rights in Europe. Nonetheless, there is still a lot to do.

If you asked the Roma about access to jobs, education and housing, free of discrimination, what would they say? If you asked irregular migrants who are being exploited in the EU and who lack basic access to healthcare such as natal care, what would they say? And if you ask the many Europeans who do not get an efficient access to justice, what would they say? I think you know. That is why we are here for this two-day dialogue on how we can bring the Charter of Fundamental Rights to life and I thank you for coming.

We are here not to discuss whether or not the Charter should be promoted, taken into account or respected. Rather, we are here to discuss how all of this can be done better, more efficiently, more effectively, engaging with civil society and citizens.

We have heard already today that the Charter is a true 21st century bill of rights – in terms of content and in how it was created. But it is, at the same time, a source of division:

•Some say it is a panacea for all sorts of human rights challenges, others say it is a Pandora’s box creating new problems.

•Some say its added value is obvious and beyond discussion, others say that its practical value is debatable.

•Some say it symbolises Europe’s hopes and aspirations, others say it symbolises empty promises and public frustration.

This somewhat polarised view of the Charter is partly due to inherent ambiguity in the text of the Charter itself. Let me explain by way of two examples.

The first example is accessibility:

For the first time since the EU was created, the Charter clearly states what rights the Union itself has to respect and promote. But while it makes these rights accessible in terms of stating them clearly and transparently, it does not make the rights accessible in the sense of being operational.

We should not underestimate the immense value of transparency. This is a major breakthrough in itself, after four decades of case law-elaborated obligations, which are hardly known to anyone apart from a small clique of lawyers and experts. The Charter clearly maps out the rights that everyone in the EU is entitled to, and in that sense, it is a precondition for a Europe of the citizens. This also contributes to a European Union which is built on the rule of law.

However, I also mentioned a related problem with the Charter making the rights more accessible: The Charter gives a full-blown list of rights with wording that does not put emphasis on the distribution of competencies between the EU and its Member States.

Therefore, the final provisions of the Charter – rightly – bring the text back to what it is: an EU law instrument that addresses mainly the EU itself.

Reading the Charter from a layman’s perspective might raise expectations that all these rights are guaranteed by the EU in all contexts. We know that this is not the case. In fact, the countless references to national law in the Charter demonstrate that the content of the Charter is wider than the Charter’s scope. That is to say, the language of the rights and indeed the rights themselves cover a wider area than the narrower field in which the Union has competence. This increases the complexity of the Charter and might, admittedly, undermine its contribution to transparency.

As a result, should we downplay the Charter’s importance? I see it the other way round: Taking transparency seriously also implies communicating the complexities.

The EU’s fundamental rights architecture is complex. For that matter, the EU itself is complex. But that is the reality of where the Charter is situated: in a complex multilevel system of governance. Therefore, we have to redirect our efforts in explaining which right can be claimed, in what context, by whom and how, and to which ‘rights-body’.

Here, the Fundamental Rights Agency is contributing in a small but at least in a 21st Century way with its new Charter Application for mobile devices that is being presented to you at this seminar. We would value your feedback on this pilot version to make it even more useful. Another contribution by the Agency will be a 2013- project which seeks to bring some clarity to the various complaints and advice mechanisms available mainly at national level within the EU.

Ladies and gentlemen,

This brings me to my other example where the Charter itself can lead to confusion:

I. Competencies versus tasks:

The final Charter provisions say that the Charter neither extends the powers nor the tasks of the European Union. Now, undoubtedly the Charter does not extend the competencies of the Union – this has never been its objective. However, the Charter also explicitly says that the rights should be promoted. And this is indeed a task that the EU institutions have to conform to. In this sense, the Charter does add a task to the EU and its institutions – as well as to Member States when they implement EU law:

They must all “respect the rights” and “observe the principles” listed in the Charter, as well as “promote the application” of both these rights and principles within the competencies transferred to the EU by the Treaties. The bottom line is that the European Union has to use its existing competencies in a way that constantly promotes fundamental rights everywhere the EU holds responsibilities.

This obligation to promote rights leads directly to the necessity to further develop our fundamental rights architecture in Europe. Courts and various other complaint procedures are crucial pillars of every democratic system based on the rule of law. But they have to be complemented by additional mechanisms and policies. The FRA’s research findings continuously point to low rights awareness, high levels of underreporting, and multiple barriers in access to justice for victims of fundamental rights violations. Clearly, rights have to be actively promoted at all layers of governance. Not just at the EU level, but nationally, regionally and locally, for those who should be enjoying the Charter rights in their day-to-day lives.

To do that, public authorities need advice based on evidence and provided by independent expert institutions. Moreover, at EU level there is a need for relevant, objective and reliable data that is comparable across the multifaceted and diverse fundamental rights landscape that make up all EU Member States.

Additionally, when we speak about making fundamental rights a reality through the Charter, it is important to look at the duty bearers, the States, at all levels of governance – from primary school teachers and the nurses to parliamentarians and national authorities. And it is equally important to turn to the rights holders, that is, the everyday people of Europe. Their experiences and perceptions have to be taken into account to guarantee that the Charter of Fundamental rights is able to make a difference on the ground.

Without this reality check of the real life impact, the Charter itself would not be a true bill of rights – it would merely be a collection of less than four thousand words spread over 15 pages. So, let us explore how we can turn this Charter to life together.

Thank you for your attention.