Charter of Fundamental Rights of the European Union

Soon after the entry into force of the EEC Treaty, the Community established itself as a major political entity with policy ramifications beyond its economic aims. In 1964, the European Court of Justice handed down its decision in Costa v ENEL, in which the Court decided that Union law should take precedence over conflicting national law. This meant that national governments could not escape what they had agreed to at a European level by enacting conflicting domestic measures, but it also potentially meant that the EEC legislator could legislate unhindered by the restrictions imposed by fundamental rights provisions enshrined in the constitutions of member states. This issue came to a head in 1970 in the Internationale Handelsgesellschaft case when a German court ruled that a piece of EEC legislation infringed the German Basic Law. On a reference from the German court, the ECJ ruled that whilst the application of Union law could not depend on its consistency with national constitutions, fundamental rights did form an "integral part of the general principles of [European Community] law" and that inconsistency with fundamental rights could form the basis of a successful challenge to a European law.[3]

In ruling as it did in Internationale Handelsgesellschaft the ECJ had in effect created a doctrine of unwritten rights which bound the Community institutions. While the court's fundamental rights jurisprudence was approved by the institutions in 1977[4] and a statement to that effect was inserted into the Maastricht Treaty[5] it was only in 1999 that the European Council formally went about the initiating the process of drafting a codified catalogue of fundamental rights for the EU.

In 1999 the European Council proposed that a "body composed of representatives of the Heads of State and Government and of the President of the Commission as well as of members of the European Parliament and national parliaments" should be formed to draft a fundamental rights charter.[6] On being constituted in December of that year the "body" entitled itself the European Convention.[7]

The Convention adopted the draft on 2 October 2000 and it was solemnly proclaimed by the European Parliament, the Council of Ministers and the European Commission on 7 December 2000. It was at the same time, however, decided to defer making a decision on the Charter's legal status.[8] However, it did come with the political weight of having been approved by three powerful institutions and as such was regularly cited by the ECJ as a source of fundamental rights.

A modified Charter formed part of the defunct European Constitution (2004). After that treaty's failure, its replacement, the Lisbon Treaty (2007), also gave force to the Charter albeit by referencing it as an independent document rather than by incorporating it into the treaty itself. However, both the version included in the Constitution and the one referenced in the Lisbon Treaty were amended versions of the Charter.

On the coming into force of the Lisbon Treaty on 1 December 2009, Justice Commissioner Viviane Reding proposed that Commissioners should swear to uphold all EU treaties and the Charter. On 3 May 2010, the European Commission swore a solemn declaration at the European Court of Justice in Luxembourg, pledging to respect the EU Treaties and to be completely independent in carrying out their duties during their mandate. For the first time, the Commissioners also explicitly pledged to respect the new Charter of Fundamental Rights.[9]

Several states insisted upon an opt-out from national application of the charter (see below for details).

  States parties

  States with an opt-out

In the negotiations leading up to the signing to the Lisbon Treaty, Poland and the United Kingdom secured a protocol to the treaty relating to the application of the Charter of the Fundamental Rights in their respective countries.

The protocol, in article 1(1) states that the "Charter does not extend the ability of the Court of Justice of the European Union, or any court or tribunal of Poland or of the United Kingdom, to find that the laws, regulations or administrative provisions, practices or actions of Poland or of the United Kingdom are inconsistent with the fundamental rights, freedoms and principles that it reaffirms." Article 1(2) then says that the Title IV of the Charter, which contains economic and social rights, does not create justiciable rights, unless Poland and the UK have provided for such rights in their national laws.

Poland and the UK wanted the protocol for different reasons. The United Kingdom originally opposed a legally binding charter over concerns that it would result in a stream of British citizens going to the European Court of Justice in attempts to enforce their Charter rights in the UK,[14] and in increased costs for business.[15] While the British accepted a legally binding rights charter during the negotiations of the failed European Constitution, they negotiated a protocol during the Lisbon negotiations which, according to the then British Minister for Europe, would ensure that the Charter would not extend the powers of the European Court of Justice over United Kingdom law.[16] Poland, on the other hand, disliked what it perceived as the Charter's liberal stance on social issues, and so in September 2007 the Polish government indicated that they wished to be included in the British protocol.[17]

There is considerable debate concerning the legal effect of the protocol. One view, shared by Jan Jirásek,[18] is that the protocol is an opt-out that excludes the application of the Charter to Poland and the United Kingdom. Another, shared by Ingolf Pernice, is that the protocol is only an interpretive one which will either have limited or no legal consequence.[19] Craig and de Burcá argue that the protocol is merely declaratory. It says that the "Charter does not extend the ability" of the ECJ or other court to overturn UK or Polish law, but the ECJ already had the power to do this in any case. Accordingly, the Protocol is "unlikely that it will have any significant effect in practice."[20]

In NS v Home Secretary, the ECJ ruled that Article 1(1) of the protocol "explains Article 51 of the Charter with regard to the scope thereof and does not intend to exempt the Republic of Poland or the United Kingdom from the obligation to comply with the provisions of the Charter or to prevent a court of one of those Member States from ensuring compliance with those provisions."[21]

Under section 5(4) of the European Union (Withdrawal) Act 2018, the Charter of Fundamental Rights was not retained in UK law after its exit from the EU.[22]

During the ratification of the Treaty of Lisbon, Czech President Václav Klaus expressed concern that the Charter would allow families of Germans who were expelled from territory in modern-day Czech Republic after the Second World War to challenge the expulsion before the EU's courts,[23] though legal experts have suggested that the laws under which the Germans were expelled, the Beneš decrees, did not fall under the jurisdiction of EU law.[24] After Klaus refused to finalize the Czech Republic's ratification of the Treaty of Lisbon unless the country was excluded from the Charter, as Poland and the United Kingdom had been,[23] EU leaders agreed in October 2009 to amend the protocol to include the Czech Republic at the time of the next accession treaty[25][26][27] in a measure designed to persuade Klaus to sign the treaty [28] which he subsequently signed.

In September 2011, the Czech government formally submitted a request to the Council that the promised treaty revisions be made to extend the protocol to the Czech Republic,[29] and a draft amendment to this effect was proposed by the European Council.[30] However, the Czech Senate passed a resolution in October 2011 opposing their accession to the protocol.[31] When Croatia's Treaty of Accession 2011 was signed in late 2011, the Czech protocol amendment was not included. During the Czech Republic's parliamentary ratification of the accession treaty in the spring of 2012, the government attempted to combine the approval of the Charter opt-out with the ratification bill. However, with the Senate controlled by the opposition parties, their objections to the opt-out could have led to the accession treaty being rejected. As a result, the government decided to separate the proposed opt-out from the accession treaty bill.[32]

A vote on a draft report by the European Parliament Constitutional Affairs Committee in January 2012 recommending against granting the Czech Republic's request to be added to Protocol 30 resulted in a tie.[33] The report argued that Protocol 30 was not functioning as a general opt-out from the Charter, but only allowed the countries to limit the application of subsequent EU laws based solely on the charter. Thus, the Czech Republic would still be bound by the Charter even if they were added to the Protocol. In October 2012, the committee approved the report,[34] and a third draft of the report was published on 11 December 2012.[35] The report was tabled in Parliament during its session on 22 May 2013,[30] and the Parliament voted in favour of calling on the European Council "not to examine the proposed amendment of the Treaties".[29][30][36] The Parliament did, however, give its consent in advance that a treaty revision to add the Czech Republic to Protocol 30 would not require a new convention.[37]

In January 2014, after presidential and parliamentary elections the previous year had resulted in new leadership in the country, new Czech Human Rights Minister Jiří Dienstbier said that he would attempt to have his country's request for an opt-out withdrawn.[38][39] This was confirmed on 20 February 2014 by the new Prime Minister Bohuslav Sobotka, who withdrew the request for an opt-out during a meeting with President of the European Commission José Manuel Barroso[40][41][42][43] shortly after his newly elected government won the confidence of Parliament.[44] In May 2014, the Council of the European Union formally withdrew their recommendation to hold an Intergovernmental Conference of member states to consider the proposed amendments to the treaties.[45][46][47][48]