Good morning.
Thank you very much, I am very glad to be with you. I am conscious, in the presence of Paco Fonseca, that I am in the presence of one of the architects of the modern fundamental rights system of the EU, and this should be acknowledged and duly respected.
But dear friends, look at how we are meeting: our Chair is wearing his mask, as he must; we are all virtually distanced; we live in very strange times. They are also very strange times for fundamental and human rights. COVID has rapidly increased the fundamental rights challenges for not only all of us, but for those who are most vulnerable on the edges of our societies. I say this right at the beginning, because if we talk about an instrument, a Charter of Fundamental Rights, we are talking about it in terms of its impact for social change, and the challenge today is so enormous: to seek to achieve that in the context of a pandemic.
The instrument itself, the Charter, was set up with very great ambitions, to tackle the great issues of the moment. Let me quote to you from the President of the European Court of Justice just last year, Koen Lenaerts. He said: “the entry into force of the Charter as a source of primary Union law is one of the most important achievements in the history of European integration. It shows that the European integration project is more than an internal market. The EU is, first and foremost, a union of democracies, a union of justice, a union of rights and values which draws on the constitutional traditions common to the Member States”. But I could also paraphrase Article 1 of the Charter, which says that it puts the defense of human dignity at the heart of the Union.
These are lofty claims for this legal instrument, and today provides me with an opportunity for a stock-taking. I would like to look at different aspects of the Charter, to see to what extent they bring that value added that we so desperately need at the present time.
The first element of my stock-taking has to do with the “acquis of rights”. To what extent does the Charter add to the existing acquis of human and fundamental rights? Well, of course, I am not going to go through the Charter now, but just to briefly recall: first, there are fifty articles dealing with issues of substance, and the clusters in which they are grouped really tell us a lot about the subject matters they engage: dignity, freedoms, equality, solidarity, citizens’ rights, and justice. What do they look like, these fifty provisions? They’re a mix of the familiar and the novel: the familiar is the classic corpus of rights that you would expect to see in a human rights instrument. But, and this is the first unique feature of the Charter that I would mention, it unites the two great categories of rights – civil and political, economic, social and cultural – in a way that was never achieved, for instance, in the UN treaties.
What’s more, there are novel rights in the Charter which you will not find anywhere else. Very importantly for today’s Europe, there’s an explicit asylum right; there’s the right to found a business, which is a wonderful conversation-opener with people in the business world who don’t really get the point of fundamental rights for their work; there are strong explicit environmental protections; there’s a right of good administration.
As well as these novel rights, there are expanded rights, rights that are much more strongly expressed than in, for example, the European Convention on Human Rights. To take three examples: the right to an effective remedy and the related rights to fair trial, much more broadly stated in the Charter; the non bis in idem rule; the guarantees of freedom of assembly and association – a lot stronger than in the Strasbourg instrument.
So, one can conclude then, on the first element of the stock-taking, the body of rights, that the Charter does indeed add to that body to a notable extent, and it does so in a way that takes account of the realities of contemporary life. If we use the language of human rights for a moment, it updates human rights law to deal with contemporary realities, within the scope of application, obviously, of the Charter.
Let’s go, then, to the second issue of the legal status. To what extent does that bring value to us? Because, of course we have to acknowledge, at the outset, that it is not a treaty. This instrument doesn’t have the same status as the European Convention and the other instruments, but that is not a constraint. To the contrary, it is a positive, because the Charter has a status of primary EU law, which means, unlike so many of the treaty-based instruments, it has a binding character, including for the Member States. And this is particularly interesting when we assess the material scope of the Charter as compared to national Constitutions.
Last year, the Fundamental Rights Agency did a study, comparing the Charter with national constitutions. We looked at twenty-seven constitutional texts; we found some very interesting things. We found that twenty-two of the fifty rights in the Charter are missing in the majority of national-level constitutions. And, in fact, nine of the fifty are missing in more than twenty constitutions in the EU: rights like the right to good administration; rights of the elderly – you do not find them on the national level, so having them with direct effect in the Charter is of notable significance.
But now, let me turn in my stock-taking to two aspects that could seem to curtail the influence of the Charter. The first of these concerns the scope of application specifically as concerns Member States. Because Article 51 of the Charter famously provides that the provisions apply to the Member States only when they are implementing Union law. Now, when do they implement Union law? There are two main situations: the first is when a Member State is required to fulfill specific obligations under primary or secondary EU law. And the second is when Member States seek to limit a fundamental right under the treaties. So here we have undoubted limitations on the application of the Charter that have to be taken account of today, when we consider its impact.
This brings me then to an aspect of the instrument that can also notably affect the scope of its application. This is the troubled issue of the distinction in the Charter between rights and principles. The Charter recognizes both categories, but fails to say which elements of its content are one or the other. This matters since principles can only be invoked before a court if implemented by legislative or executive acts. The distinction and the lack of clarity is undoubtedly a cause of confusion, and it’s problematic – but it’s important today, as we do a stock-taking, while acknowledging the issue not to overstate it.
Firstly, this distinction of rights and principles is not about status; they have the same quality. And secondly, very importantly, to dispel a myth that’s very common out there. It is not to say that all the elements in the solidarity section of the Charter, the socioeconomic side of the Charter, are somehow just principles. It is not correct to say that everything in the solidarity section is at the level of principle; there’s a quality of right in there to be elaborated through the practice of the European Court of Justice.
And one last notable issue on the scope of application that actually expands the force of the Charter – and is unique to it, not to be found in the human rights treaties – and that is its horizontal effect. By horizontal effect, of course, I am referring to its direct application between private parties. Now this application is not explicit in the Charter, but it has been recognized by the European Court of Justice since 2014, and the court is over time developing criteria as to when this principle of direct effect comes to apply. And so far three rights have been identified: the right to non-discrimination; the right to paid annual leave; the right to effective judicial protection.
Now, let me turn, finally, in terms of my stock-taking, most importantly, to the issue of impact. Does the Charter make a difference for human lives? Now the ultimate test of that, echoing what I said about COVID at the beginning, would be exactly that: a measurement to the society of how the application of the Charter makes a difference. But that is beyond my scope today. Instead, what I will put before you is an assessment which is repeatedly done by the Fundamental Rights Agency of how the Charter is put to use by key stakeholders, and it’s on that that we must limit for the moment our assessment of impact. We are continuously evaluating this at the Fundamental Rights Agency, and publishing the results on an annual basis in our annual Fundamental Rights Report. Let me briefly talk about the EU and quickly get to Member States.
Firstly, EU institutions. There’s a growing use, particularly in the Commission – an impressive growing use and prominence of the Charter that I think can always go further and can always do better, but nevertheless needs to be commended.
Turning then to the European Court of Justice – here too we see impressive developments. I quoted Koen Lenaerts earlier, a champion of the Charter. But let’s look at the hard figures. In 2013, the European Court of Justice in its judgments included one hundred Charter references. “Not bad”, you might say. But in 2018 the figure was three hundred and fifty. That’s a remarkable escalation in just a five-year period. One caveat though, to this use of the Charter in the European Court of Justice is harking back to my earlier remark, that just ten percent of the references relate to socioeconomic rights, the solidarity chapter.
But let me now move to the level of most interest for us today: Member States. It’s a very mixed picture. First, governments: we don’t find much explicit reference to the Charter in the work of governments. We don’t find action plans, unfortunately, for the promotion of awareness and use of the Charter; it’s unfortunate because, under Article 51 of the Charter, states are under a duty to promote it.
Turning to parliaments: broadly speaking, across the EU, the situation is not much better. We see very little evidence of the Charter explicitly being invoked for the scrutiny of legislation or for the operation of parliamentary committees. One interesting counterexample to that is Finland, where there’s a former requirement for all draft legislation to be certified as Charter-compliant.
Turning then to the other national stakeholders, given the nature of today’s gathering, and the limited time available, I will focus exclusively on the legal profession and on the courts.
Let me take first the judiciary. Again, this is something that we are watching on an annual basis. It’s difficult to assess across the EU Member States, but we do discern a modest and a growing invocation of the Charter within our courtrooms. This is evidenced, for instance, in the references to the Charter in requests that are made by national courts for preliminary rulings of the European Court of Justice. Today, some eleven percent make reference to the Charter. We also see reference to the Charter in judgments, and it’s growing; we’re mapping this in a tool of ours called the “Charterpedia”, which captures significant relevant international jurisprudence. And interestingly, we also see the Charter being increasingly used in courts, where it was never intended to be used as an interpretive tool outside areas of EU competence.
Moving then to the legal profession more widely, just a few months ago, the Fundamental Rights Agency did an analysis of questionnaires submitted to the European Commission by seven hundred legal professionals across the EU. We identified that, of the seven hundred respondents, thirty percent said that they use the Charter in their work. However, more than half of the respondents said that they did not have enough knowledge of the Charter to fully use it to the extent that they would like. That then brings me to an important issue of training, and staying with the same questionnaire, less than thirty percent of the respondents had ever had an EU Charter training, and eighty percent of them said they would wish to have more.
So I pause my stock-taking at that point, and see if I can draw any brief conclusions. I would say, even based on my short words this afternoon, that we can conclude that we do have a powerful instrument. Certainly, with its formal and legal limits, but nevertheless, held back not so much by its terms and provisions and application, but rather in the levels of its use or its underuse, above all else at the national level. A primary impediment is an unwillingness to invoke the Charter, and this is in part a function of low levels of awareness and knowledge. And it is of course ultimately for that reason that I so applaud you for convening this conference.
But let me say here on this point, that while I present to you a low level of knowledge and awareness, I’m not unduly concerned. The Charter is only ten years in force. Human rights instruments take a long time to bed down. Just think about it, the European Convention on Human Rights – when it was ten, it was 1964. How many people do we think knew about the European Convention or were using the European Convention in 1964? So, if we put ourselves in a similar situation for the Charter, I think that we can be rather reassured that things are not as bad as we might conclude.
And so then, to wrap up my comments to you this afternoon – what would be, to my mind, the headline issues that require attention? The first one obviously is training. The European Commission is investing heavily in supporting training on the Charter. I applaud that, I applaud the many civil society initiatives and partnerships with the Commission. We at the Fundamental Rights Agency play our part, but we must all, including at national levels, we must invest, invest and reinvest, in building up awareness and training.
Secondly, technical tools. It’s not always easy to apply the Charter: the issue of the rights and principles; the issue of the scope of application. And so we need evermore hands-on, manual practical tools for practitioners, to see how different elements are applied in different settings, and I’m very pleased that the Fundamental Rights Agency is also performing its part in this regard. We published a very practical, hands-on manual last year on exactly this issue, and we will continue to roll out tools if we see that we can fill a gap.
And, third, of course, we need our Member States, governments, to take more of a leadership role in championing the Charter across their work. They need to drill it into policymaking; they need to support its presence in human rights plans of action; they need to support its bedding down within parliaments, so that, for example, we can have Finland-like compliance checks of draft legislation. And, let me reassure all of you, as I wrap up, through the ways I have already mentioned, but through evermore development of tools and resources and partnerships for training: you can count on the Fundamental Rights Agency to accompany you and lawyers across the EU as we face the future.
Now, I began my words today talking about COVID. I would like to end by talking about COVID. No law is going to deal with the pandemic. No law alone is going to protect our rights, stand up for us under great pressure. But all the efforts in the world, if they’re not embedded in law, will lead nowhere. And, within the toolbox, the European Union toolbox of law, at its very heart, its star, is the Charter of Fundamental Rights. So, I would invite all of us together to journey into the future bringing that star in the toolbox to life, making it, as a matter of fact, the magna carta of European fundamental rights that it was intended to be.
Thank you for your attention.
