Lisbon Treaty: Charter of Fundamental Rights

The text of Article 6, Charter of Fundamental Rights plus commentary is presented below.

1. The Union recognises the rights, freedoms and principles set out in the Charter of Fundamental Rights of the European Union of 7 December 2000, as adapted at Strasbourg, on 12 December 2007, which shall have the same legal value as the Treaties.

The provisions of the Charter shall not extend in any way the competences of the Union as defined in the Treaties.

The rights, freedoms and principles in the Charter shall be interpreted in accordance with the general provisions in Title VII of the Charter governing its interpretation and application and with due regard to the explanations referred to in the Charter, that set out the sources of those provisions.

2. The Union shall accede to the European Convention for the Protection of Human Rights and Fundamental Freedoms. Such accession shall not affect the Union's competences as defined in the Treaties.

3. Fundamental rights, as guaranteed by the European Convention for the Protection of Human Rights and Fundamental Freedoms and as they result from the constitutional traditions common to the Member States, shall constitute general principles of the Union's law.

YES: Article 6 directly introduces the Charter of Fundamental Rights into EU law, but says that the Charter cannot increase the powers of the Union beyond that laid down in the Treaty. It is a statement of the values on which the Union is founded. 

NO: This gives the EU Court of Justice the power to decide our rights as EU citizens, by making the Charter of Fundamental Rights binding in EU law.  This would include the right to life, the right to marry, the right to strike, rights of the child etc. (National Platform on EU Research and Information Centre)

Commentary: The applicability of the Charter is uncertain and, probably, it is there for window-dressing. It applies only in relation to the implementation of EU law and has no relevance at all in relation to most of the rights stipulated in the Charter. Gerard Hogan SC, perhaps the foremost expert on Irish constitutional law (along with his co-author, Gerry White of TCD, co-authors of the recent editions of “Kelly: The Irish Constitution”) has written (The Irish Times, 20 february 2003): “The first problem is that the substantive rights protected by the charter are really laid out in a manner appropriate to a Federal State. Thus, for example, Article 9 provides that: ‘The right to marry and the right to found a family shall be guaranteed in accordance with the national laws governing the exercise of these rights.'
“But there is - as yet, at least - no Union competence in the realm of national marriage legislation, so why must this right be protected at the level of a new European constitution?

“A further puzzling feature of Article 9 is that - in common with many other substantive rights guaranteed by the Charter - the right is expressed to be subject to ‘the national laws governing the exercise of these rights'. If, for example, a litigant complained that Ireland's failure to permit same-sex marriage violated Article 9, he would be met with the response that the right to marry is governed entirely by national law. And since Irish law does not permit same-sex marriage, the litigant is back in the position he started in and he might well think that Article 9 is a pure tautology.

“At this point, we encounter yet another paradox of this Charter. Article 51 is the single most important of its provisions in that it provides that the Charter will apply to Member States only when they are ‘implementing' Union law. This issue is crucial because the Charter will supersede national constitutions and laws when it applies and it will apply to Member States only when Member States are implementing Union law.

“But under what conceivable circumstances could a Member State be "implementing" Union law by regulating the right to marry when the Member States have exclusive competence in this area?
“The same could be said of a significant majority of the rights contained in the Charter, including the rights of the child, the right to criminal due process, and the right to healthcare. These are all areas which are at present within the (virtual) exclusive competence of the Member States…..

“Perhaps the most controversial feature of the Charter is its attempt to give socio-economic rights (such as the right to strike, healthcare, education) protected status. Leaving aside once again the fact that most of these charter rights appear to be illusory (since a Member State will rarely be ‘implementing' Union law in these areas and most of these rights are entirely contingent on national law and practices), it is difficult to understand why the Union should seek to impose such an obligation on Member States. Why should each Member State not be free to make its own decision as to whether the courts should have an active role in these areas?

The claim that the Charter protects workers rights in ways that “trump” the EU Court of Justice's decision in the controversial Laval case is questionable.

All the all, the Charter is probably of no significance at all. No threat to Irish “values” and no protection of rights threatened by other elemnts of EU law.