The EU's charter of fundamental rights - five years on

The Charter became legally binding across the EU when the Treaty of Lisbon entered into force in 2009 - but its life started much earlier.

It was drafted back in 1999/2000 with the participation of EU and national parliamentarians and input from civil society.

Immediately afterwards – at a time when it still lacked any legal force - the Charter was recognised by a General Advocate in the Court of Justice as “the expression, at the highest level, of a democratically established political consensus of what must today be considered as the catalogue of [the EU] fundamental rights guarantees”.

Unchartered territory

When the Charter was drafted, the EU’s fundamental rights landscape looked considerably different to what it is today.

It lacked: an EU Commissioner responsible specifically for fundamental rights; a Special Representative for Human Rights for EU external relations; a specialist EU Agency for Fundamental Rights (FRA) providing advice and comparable, objective data on the situation of fundamental rights within the EU; an EU Council working group specifically tasked with fundamental rights issues; EU programmes earmarked for projects promoting fundamental rights among citizens within the EU; and fundamental rights assessments for proposed EU legislation.

All this we have now and more.

The European Parliament is now a fully-fledged co-legislator actively promoting fundamental rights. And the EU is well on its way to acceding to the European Convention on Human Rights.

Not only that, the Court of Justice is now legally competent to look into all relevant rights issues and ready to play the role of a fundamental rights court. An example of this is the Court’s judgement of April this year which overturned the EU’s Data Retention Directive. As is the massive 400 percent hike in Court references to the Charter since it entered into force.

These important developments were not directly caused by the Charter as such. But it would be naïve to ignore how it has inspired a new fundamental rights culture within the EU.

Easy to read but difficult to understand

Nationally, the Charter has not received the same degree of applause and attention in all member states.

For instance, in Austria, it is now part and parcel of the legal and political system; its Constitutional Court declared that the Charter forms a constitutional benchmark against which national norms can be checked.

At the other extreme, the UK’s House of Commons European Scrutiny committee recently recommended that the UK pass an Act of Parliament not to apply the Charter.

Some hesitance at national level is due to the fact that it is not easy to understand where the Charter applies and where is does not given the complexity of how legal powers are allocated to the different layers of governance.

Despite the fact that the Charter primarily addresses the EU itself, it does offer a full-blown bill of rights without reflecting the (limited) powers of the Union.

This has the advantage that the Charter is a complete and modern catalogue of rights that is easy to read and that can inspire all layers of governance.

The disadvantage is that it can create hope it cannot fulfil, as people can only invoke the Charter against their State within the scope of EU law. In that sense the Charter is easy to read but also difficult to understand.

What remains to be done?

Rights awareness among the public tends to be low.

This applies equally to the Charter. New tools for practitioners could enhance knowledge about the Charter. Linking relevant actors efficiently in a strategic framework for protecting and promoting fundamental rights would also prove beneficial.

How? The European Union Fundamental Rights Agency (FRA) has presented some possible ways forward in its annual report. These range from a fundamental rights policy cycle and the exchange of good practice, to enhanced mainstreaming of fundamental rights into all EU actions.

So while the Charter has undoubtedly contributed to a stronger rights culture within the EU, many individuals have still to feel the impact of this cultural change.

The Charter is not always the right legal tool to address the issues at stake. But pointing to it can be a political door-opener for the appropriate legal sources at the national level.

Gabriel N. Toggenburg is a senior legal advisor at the European Union Fundamental Rights Agency (FRA).