(13 ) The Lisbon Treaty

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LisbonTreaty13

THE EU CHARTER AND ITS APPLICATION AND INTERPRETATION

 The EU’s New Human Rights Dimension

A CONCRETE EXAMPLE: EQUALITY AS A RIGHT AND A PRINCIPLE

The Development of Equality as a Primary Principle Guaranteeing Fundamental Human Rights

Equality and non-discrimination have a special place among human rights and they have a special position in the Charter as well. Their special position is established by its dual character. First, it is a principle determining the content and exercise of all other fundamental rights and as such, it is unequivocally acknowledged as a constitutive element of international human rights law. Secondly, it is a right of a specific kind, being a precondition of human dignity. This second meaning, the right to equal treatment, in contrast with the principle of equal treatment, is the subject of broad conceptual discussions.

Equality as a principle is reflected in all major human rights treaties:93 they refer primarily and predominantly to non-discrimination as a ‘horizontal’ principle guaranteeing the equal enjoyment of all the rights enshrined in those treaties to all human beings, without distinction. In addition, some of them also guarantee equality before the law: that is, the right to equal application of the law, in other words, equality in a narrow, formal sense.

Protocol 12 annexed to the ECHR requires State Parties to secure equal enjoyment of any right set forth by law, as well as the avoidance of discrimination by any public authority on a significantly wider list of grounds than foreseen under Article 14 ECHR.94

The catalogue of prohibited grounds (protected attributes) varies considerably, although race/colour, sex, religious or other belief, national origin or language are normally included. Further prohibited grounds in the various catalogues might constitute an extended, still closed (exclusive) enumeration or an open-ended (or exemplifying) list of the attributes that are prohibited as grounds of differentiation.95

Besides these general human rights Conventions where equality is a ‘horizontal issue’ for all rights proclaimed, there are special Conventions under the aegis of the UN protecting and promoting the equality of particular groups (women, racial minorities, children or persons with disabilities)96 or equal treatment in particular areas, pre-eminently employment.97 Human rights scholars-when criticizing the EU for the lack of a consistent human rights system corresponding to the standards and morals of these times-have raised expectations of bringing EU law more into compliance with the international human rights system: that is, bringing the most important international standards within EU law.98

The Charter of Fundamental Rights, in comparison to those international treaties, is a qualitatively different document. It preserves the double function of equal treatment and regulates it not only as a ‘horizontal’ principle of the application of a certain catalogue of rights, but is constituted also as an autonomous right, both in a narrower and a broader sense.99 It prohibits discrimination on a wider scale list than any other international document, taking into consideration the development of the system of human rights and technological development as well. Beyond preserving the double meaning of equality, the Charter approaches and, indeed, constitutes equality as a complex, generic concept. Equality together with Dignity, Freedom and Solidarity constitute the main Titles of the Charter. They are all similarly multifaceted concepts and not only indivisible but inseparable universal values; 100 at the same time, the conceptual constitutive pillars of the European Union place ‘the individual at the heart of its activities’.101 The European Economic Community (EEC) was founded in 1957 with a clear economic purpose: to make possible the free movement of goods, services, capital and persons by establishing a common economic space and a common market. Protection of human rights either civil and political freedoms or social rights-was not among the goals. Similarly, except for two elements, the non-discrimination principle was not part of the foundation.

Equal treatment of nationals of Member States moving from one country to another with the aim of engaging in economic activity was guaranteed as an indispensable precondition of the free movement of persons and services. Besides this equality rule aimed at market integration, a single equality provision was enshrined in the Rome Treaty of 1957, the founding document of the EEC. Former Article 119 TEEC (now Article 157(1) and (2) TFEU) lays down the obligation to guarantee equal pay for equal work to men and women, also a market rule, the pre-condition for fair (equal) competition among countries with different systems of protection.102

The very first case in which the Court referred to respect for fundamental rights was Stauder, opening the case law characterised by repeated references to respect for fundamental rights-inspired by the constitutional traditions common to the Member States’-that must be ensured by the Court of Justice, although this protection had to remain ‘within the framework of the structure and objectives of the Community’.103 Besides the repeated reference to ‘fundamental human rights’ and to ‘principles’ no concrete right or principle is mentioned in the case, which concerns the equality and privacy (personal data) of citizens.104 Thus, Stauder not only represents an opening up to references to general principles and fundamental human rights but an opening up to the ones most frequently addressed throughout the past four decades: protection of the fundamental principles of equality and privacy.

The creation of these fundamental principles and rights by the Court has been accompanied by mixed reactions. The predominant welcome was mixed with dissatisfaction over the lack of regulatory activity to fill the gap that was, after all, acknowledged by the Community itself through this jurisprudence. According to the criticism, such judicial activism was determined by the scope of the eventual cases brought before the Court.

Thus, it was accidental and unpredictable regarding both scope and content. Furthermore, these principles could be used only to check the compliance of various national acts and Community acts with the human rights criteria behind the principles. Thus, it rather limited than developed and inspired the regulatory activity of the Community.105 There have also been critical comments on the legitimacy of the Court’s use of its authority to ‘forge’ such ‘imaginary’ rights, even if the Court mostly acted with considerable caution (thereby also setting a limit on the use of the general principles referred to and again raising criticisms from those who have been watching such judicial activism).106 From almost all sides, therefore, there has been a growing need for a formal, legislative foundation for a European human rights system, leading to the adoption of the Charter of Fundamental Rights in 2000 and its 2007 amendment and integration into the system of the constituting Treaties as a document with the same binding force as the Treaties themselves.

Principles and Equality in the Charter

‘Principles versus Principles’ Dispute

The Charter, while having solved a number of problems, also created a number of new ones, particularly regarding equality, namely, the distinction between the status of ‘rights’ and ‘principles’ in Article 52(5) CFREU, thereby originating dilemmas that affect Title III on Equality to the greatest extent from among the Titles of the EU Charter.

Whereas Article 6(1) TEU provides that the ‘Union recognises the rights, freedoms and principles set out in the Charter’, Article 51(1) CFREU stipulates that its addressees (institutions, bodies, offices and agencies of the Union as well as the Member States) have to ‘respect the rights, observe the principles and promote the application thereof’. This linguistic variation would not imply any ranking itself. To the contrary, it seems to emphasise the promotion of the application of both. The hierarchical difference and consequent uncertainty follow only from the text of Article 52(5) CFREU and especially from the relevant Explanations.

Based on the assumption that there is a line between ‘rights’ and ‘principles’, qualifying principles merely as guiding ideas, binding only if put into legislative or executive acts, the first sentence of this paragraph reads merely as the authorisation necessary under EU law to put principles into legal norms, generating subjective rights and duties: The provisions of this Charter which contain principles may be implemented by legislative and executive acts taken by institutions, bodies, offices and agencies of the Union, and by acts of Member States when they are implementing Union law, in the exercise of their respective powers.

The reduction of the legal meaning of principles is included in the second sentence of Article 52(5) CFREU: principles ‘shall be judicially cognizable only in the interpretation of such acts and in the ruling on their legality’. Essentially, this sentence is intended to prevent courts from doing what the Court of Justice has been doing for over 40 years (starting with Stauder): namely, basing their decisions on principles. In the context of those provisions of the Charter that are ‘principles’ courts would be permitted to do so only when they interpret or review acts implementing those principles. (To be clear: this requirement is different from the required link to Community law of the situation to which the Court applies the general principles.) Thus, the concept of principles becomes perplexing. The drafters must have been aware of that there are ‘general principles of fundamental rights’ enshrined in Community law by the Court’s case law, and that these fundamental principles have a pre-legal and guiding function for law making.

That means that laws must be in correspondence with these principles, and the law made by either the Union or national legislators (within the context of EU law) will be checked against these principles. In that sense, the lower value of principles and their dependence on actual (implementing) provisions of law may not be relevant to the ‘general principles of fundamental rights’. Rather, the drafters of this paragraph might have had in mind ‘principles’ within the meaning of ‘policy guidelines’, goals to be achieved that, indeed, require implementing legislation or administrative law making.

Neither the text of Article 52(5) CFREU nor the Explanations help to clarify the boundaries of the two different uses of the concept and their interpretation, giving room for strong criticism and contradictory interpretations.107

The lengthy Explanations of this paragraph have three aims: first, to clarify that this differentiation means; secondly, to authenticate the distinction between rights and principles by reference to the case law of the Court and to the constitutional systems of the Member States; and thirdly, to provide orientation concerning which provisions in the Charter provide us with ‘principles’, thus having lower status than those containing rights.

The Explanations fail to clarify the meaning. Besides repeating the provisions of the Charter itself, it is only added that principles do not ‘give rise to direct claims for positive action by the Union’s institutions or Member State authorities’. This does not say anything because rights do not give rise to such claims, either. As to the authentication of the distinction between rights and principles, the Explanations address the distinction ‘consistent’ with the case law of the Court of Justice, ‘notably case law on the “precautionary principle” in Article 191(2) of the [TFEU]’, ‘principles of agricultural law’, ‘scrutiny of the principle of market stabilisation and of reasonable expectations’.

The exemplification only increases the smoke around the concept-and the supposed meaning by the Charter-of principles. These are indeed general principles; nevertheless, it is hard to identify them with the principles of fundamental human rights and therefore to see the ‘consistency’ between the reduction of the juridical status of ‘principles’ and the case law of the Court of Justice.

Concrete Examples

The examples are given ‘for illustration’ and thereby to give orientation on what are merely principles in the Charter bring to the forefront the interpretation of equality as a general principle.

Altogether, six Articles are enumerated out of the total of 50, suggesting that the Explanations to the relevant Articles in the full list probably need to be checked too. This exemplification, taken together with the Explanations added to the various substantive provisions, reveal that (almost) the entire Equality Title III consists of mere principles (namely: Articles 20, 23, 24, 25, 26 CFREU—that is, five out of seven). A quick glance at the two Articles (21, 22) left in the ‘Rights’ category reveals that while, indeed, Article 21 CFREU regulates directly enforceable rights, it also regulates a frequently referred-to fundamental principle of EU law. Article 22 CFREU (cultural, religious, linguistic diversity),108 although not qualified here as a ‘principle’, underlines the haziness of the rights/principles division of the Charter provisions since it would be difficult to classify it under either of the two boxes. Article 23 CFREU (equality between women and men) permits that provisions ‘may contain both elements of a right or of a principle’, leaving in obscurity the extent to which these provisions might be, for example, ‘judicially cognisable’.

In summary, the conflict between the fundamental principle of equal treatment and the interpretation of Article 52(5) CFREU given in the Explanations is obvious and suggestive. Not only because the peculiar Explanations to this paragraph on ‘principles’ puts (almost) the whole Title III on Equality into the category of principles, which, in the context of the Charter, apparently have only ‘second class’ status, but because this distinction and classification contradicts the established and conventional meaning of ‘principles’, especially in the context of equality, as established in the abovementioned international treaties, as well as in the case law of the Court of Justice. If the (lack of) clarity of the meaning of the classification of ‘rights’ and ‘principles’ remains as it is now under Article 52(5) CFREU and its Explanations, it may undermine the so far highly respected fundamental principle of equality and may result in a weakening of the position of these principles as against the legislative acts of the Member States, even when implementing Union law. The short analysis is given below attempts to prove that the provisions in question, especially the Explanations attached to them, are misleading, contradicting other provisions of the Charter (not to mention the Lisbon Treaty itself). Therefore, the text of the Explanations (thus, the distinction in Articles 51(1) and 52(5) CFREU as well) must be read in a highly differentiated way, and consequently the label ‘principle’ must also be regarded in a differentiated fashion. This may apply to all provisions concerning ‘principles’, but primarily the provisions of Title III on Equality.

93. First, the Universal Declaration of Human Rights, the UN International Covenant on

Civil and Political Rights (ICCPR), the UN International Covenant on Economic, Social and Cultural Rights (ICESCR, both Conventions adopted in 1966, entered into force in 1976) and the ECHR.

94. After a long and hard process of ratification the first judgment of the ECtHR applying

Protocol No 12 (and finding a violation of it) was in the Grand Chamber judgment 22 December 2009-27996/06 and 34836/06—Sejdic´ and Finci v Bosnia and Herzegovina. See also Bruun and Lörcher (n 58) 335ff (‘3. Equality, non-discrimination and Article 14’).

95. While the ‘open ended’ lists that permit the disqualification of distinctions on ‘any other’ ground appear to grant extended protection of equality, a deeper view reveals that broadening the grounds, especially opening an infinite list of potentially prohibited grounds, may result in the listed grounds being taken to have relative value, making it particularly hard, among other things, to adopt positive measures. Furthermore, open-ended lists increase the need to set up a ranking of protected attributes, with special regard to the collision of such grounds.

96. Such as CEDAW, CERD, ICRC and CRPD.

97. ILO Conventions and Declarations, first, the Equal Pay Convention (No 100, adopted

as early as in 1951) guaranteeing equal pay for work of equal value to women and the Discrimination (Employment and Occupation) Convention (No 111 adopted in 1958) on the elimination of discrimination in employment and occupation. (Both of these Conventions are included in the list of ‘core conventions’ declared by the ILO in 1998.)

98. de Jesus Butler and de Schutter (n 46) pp 277–320.

99. The distinction between fundamental rights in a narrower and a broader sense refers to the legal duties corresponding to the rights: while in a narrower sense the right is directly and individually enforceable via independent judicial bodies (court, tribunal or similar bodies), its meaning in a broader sense refers to rights that require measures of the State (government, Parliament) to establish institutions; they also mean a right guaranteed at a level from which the legislator may not step back without the risk of being confronted by a red light from the relevant Constitutional Court (or corresponding body). See LM Díez-Picazc and MC Ponthoreau, ‘The constitutional protection of social rights: some comparative remarks’ EUI Working Papers (Badia Fiesolana, 1992).

100. See with regard to values Dorssemont (ch 2 in this volume).

101. The preamble of the CFREU, second recital.

102. The option is taken in 1957: harmonising ‘upwards’ instead of expecting the Member

State (in this case France) with a higher standard of protection to assimilate to those with

lower standards could also be a model today.

103. See Stauder (n 8) p 425.

104. The case was about the interpretation of a regulation that required the ‘identification’ of beneficiaries of cheaper access to certain milk products and the issue was whether this might require the submission of names and certain personal data.

105. See A Lyon-Caen and S Simitis, ‘Community labour law: a critical introduction to its history’ in P Davies, A Lyon-Caen, S Sciarra and S Simitis (eds), European Community Labour Law: Principles and Perspectives. Liber Amicorum Lord Wedderburn of Charlton (Oxford: Clarendon Press, 1996) 13-14.

106. J Dutheil de la Rochere, ‘Challenges for the protection of fundamental rights in the EU at the time of the entry into force of the Lisbon Treaty’ (2010) Fordham International

Law Journal 1777, also referring to T Tridimas, The General Principles of EC Law, 2nd edn (Oxford University Press, 1999) 204–05 and fns 9-11. Similarly critical of the recent activism (actually ultra vires decisions of the Court) are A Pliakos and G Anagnostaras, ‘Who is the ultimate arbiter? The battle over judicial supremacy in EU law’ (2011) 36(1) European Law Review 109-23. See also Lyon-Caen and Simitis, ibid.

107. On the one hand, the principles seem ‘structurally to resemble “general principles of Community law” ’. (D Leczykiewicz, ‘Effective judicial protection of human rights after Lisbon: should national courts be empowered to review EU secondary law?’ (2010) 35(3)

European Law Review 331).

108. ‘The Union shall respect cultural, religious and linguistic diversity’.

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