The Law of the Lisbon Treaty

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The Law of the Lisbon Treaty

    The Law of the Lisbon Treaty

    Royal Irish Academy

    11 May 2009

    Fundamental Rights Protection Post Lisbon: the Impact of Incorporation of the EU Charter of Fundamental Rights

    Dr Angela Ward

    Adjunct Professor in European Union and Human Rights Law

    University College Dublin

This paper will address the following themes.

    1. What meaning might the Court of Justice attribute to the

    phrase “the same legal value as the Treaties” in Article 6(1)


    2. Do any other provisions of the Lisbon Treaties expand the

    scope of fundamental rights protection in Europe?

    3. What are the principle drawbacks or difficulties with the


    4. How do the provisions on accession of the Union to the

    ECHR relate to the Charter?

    5. Is there a better way in which fundamental rights protection

    might be enhanced in the Union, aside from vesting the

    Charter with “the same legal value as the Treaties”?


    1. The meaning of “the same legal value as the Treaties” in

    Article 6(1) TEU.

The text of Article 6 of the TEU is as follows.

    “(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 of 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.”

    1.1 The “legal value” of the Treaties was set by the Court of Justice in the van Gend en Loos case (Case 26/62 van Gend en Loos (1963)

    1). The two salient paragraphs are as follows;

    “In addition the task assigned to the Court of Justice under

    Article 177 [Article 234], the object of which is to secure

    uniform interpretation of the Treaty by national courts and

    tribunals, confirms the states have acknowledged that


    Community law has an authority which can be invoked by their

    nationals before those courts and tribunals.

    The conclusion to be drawn from this is that the Community

    constitutes a new legal order of international law for the benefit

    of which states have limited their sovereign rights, albeit in

    limited fields and the subject of which comprise not only

    Member States but also their nationals. Independently of the

    legislation of the Member States, Community law therefore not

    only imposes obligations on individuals but is also intended to

    confer upon them rights which become part of their legal

    heritage. These rights arise not only where they are [1]

    expressly granted by the Treaty, but also by reason of

    obligations which the Treaty imposes [2] in a clearly defined

    way upon individuals as well as upon the Member States and

    upon the institutions of the Community” (emphasis added).

    This passage and subsequent case law of the Court of Justice established that some, but not all, provisions of the treaties are directly effective and vest individuals with rights. It will depend whether the obligation on the Member States and the Community institution is imposed “in a clearly defined way”. More recent case

    law has added an entitlement in the hands of individuals for national measures to be interpreted in conformity with Treaty articles. See eg. Case C 165/91 Simon J. Munster v. Rijksdienst

    voor pensionen [1994] ECR I 4661.

    1.2 The same distinctions on the extent to which individuals are entitled to legal enforcement of rights permeate the Charter. They range from rights that are sufficiently well defined to be directly effective, to those that are programmatic in nature, and on which individuals will not be able to base challenge the validity of EU measures, or national measures that implement Union law. The Munster duty of sympathetic interpretation may not extend to the Charter provisions, due to the distinction between principles and rights.

    1.3 Article 52 (4) of the Charter is central to the distinction. It provides as follows;


    “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. They shall be judicially congisable only in the interpretation of such acts and in the ruling on their legality.”

    National and Community courts are bound to pay due regard to the explanations to the Charter originally drawn up by the Praesidium of the constitutional convention and subsequently updated under the responsibility of the European Convention. It makes it clear that “principles” are to be respected in the promulgation of Union acts and their implementation by Member States, but they only become relevant when measures taken to secure their ends are subject to review. They do not however give rise to direct claims for positive actions.

    Examples of principles given in the explanation are Articles 25, 26, and 37. The explanation adds that the Charter may contain elements of a right and a principle, eg. Articles 23, 33, and 34.

    Significance can also be drawn from the fact that, throughout the explanations, there is a pattern of emphasis when there is substantial acquis addressing Charter right in question. Eg. Article 15, freedom to choose an occupation and right to engage in work; Article 16, freedom to conduct a business; Article 27, the right of workers to information and consultation with an undertaking. Breadth of competence and depth of acquis may be one of the

    factors weighed by the Court of Justice in determining whether a Charter provision merely states a principle, or confers a justiciable right.

    1.4 Three examples of principles are listed below. They are backed by limited legislative authority for the Union to Act. The Charter will only be relevant in the interpretation of the measures passed, and their implementation by Member States.

(i) Article 22 of the Charter.

    “The Union shall respect cultural, religious and linguistic diversity”.


However, the prohibition on discrimination on grounds of “racial

    or ethnic origin” in Article 19 (1) FT a relative of cultural rights, is

    more likely to be enforceable by individuals

    The impact of Article 22 is further attenuated by the fact that Union competence in this field is narrow. Legislative competence, I would suggest, might be one of the guides deployed by the Court of Justice to determine whether Charter measure is a principle only, or whether it confers justiciable rights. Under Article 51(2) of the Charter, the Charter does not extend the field of application of Union law. Under the second paragraph of 6 (1) of the TEU, the provisions of the Charter are not to extend the competences of the Union.

    The authority of the Union to Act in the field of preservation of culture is limited. But it is a principle which requires respect when action is taken.

Article 13

    “In formulating and implementing the Union‟s agriculture, fisheries, transport, internal market, research and technological development and space policies, the Union and the Member States shall, since animals are sentient beings, pay full regard to the welfare requirements of animals, while respecting the legislative or administrative provisions and customs of the Member States relating in particular to religious rights, cultural traditions, and regional heritage.”

A similar commitment appears in Article 167 (4).

“The Union shall take cultural aspects into account in its action

    under other provisions of the Treaties, in particular in order to respect and to promote the diversity of its cultures.”

See also Article 3 of the TEU.

    The Union “shall respect its rich cultural and linguistic diversity, and shall ensure that Europe‟s cultural heritage is safeguarded and



    Article 167 FT, which commits the Union to the “flowering of the cultures of the Member States” while “respecting their national and regional diversity and at the same time bringing the common cultural heritage to the fore.” An authority for the Union to act in this field appears in Articles 167 (2) and 167 (5). However, it is limited to encouraging cooperation, supplementing Member State action, and the adoption of incentive measures.

Article 2 TEU “The Union is founded on …..respect for human

    rights including the rights of persons belonging to minorities.”

    In the Charter, however, there is no provision equivalent to Article 27 of the International Covenant on Civil and Political Rights and the protection of cultural rights. Article 27 provides that:

    “In those States in which ethnic, religious or linguistic minorities exist, persons belonging to such minorities shall not be denied the right, in community with the other members of their group, to enjoy their own culture, to profess and practice their own religion, or to use their own language.”

(ii) Article 38 of the Charter

“Union policies shall ensure a high level of consumer protection.”

The Explanation states as follows.

    “The principles set out in this Article have been based on Article 169 of the Treaty on the Functioning of the European Union.”

    Article 169 of the FT empowers the Union to contribute to the protection of health and safety and economic interests of consumers, as well as promoting their right to information, education, and organise themselves to safeguard their interests.

(iii) Article 35 of the Charter

    “Everyone has the right of access to preventive health care and the right to benefit from medical treatment under the conditions established by national laws and practices. A high level of human health protection shall be ensured in the definition and implementation of the Union‟s policies and activities.”


    The first sentence of Article 35 “the right of access to preventive health care and the right to benefit from medical treatment” is

    broader than the competence of the Union over health care in Article 168. It refers to Union action “improving public health”, “promoting research”, “health information and education”, “monitoring”, and “early warning and combating serious cross-

    border threats to health.” It also refers to complementing Member State policy and cooperation. Article 168 (3) further refers to cooperation with third states and international organisations in the field of public health.

Note also Article 168 (7)

    “Union action shall respect the responsibilities of the Member States for the definition of their health policy and for the organisation and delivery of health services and medical care. The responsibilities of the Member States shall include the management of health services and medical care and the allocation of the resources assigned to them. The measures referred to in paragraph 4 (a) shall not affect national provisions on the donation or medical use of organs and blood.”

    The explanation to Article 35 of the Charter states as follows.

    “The principles set out in this Article are based on Article 152 of the EC Treaty, now replaced by Articles 168 of the Functioning of the European Union, and on Articles 11 and 13 of the European Social Charter. The second sentence of the Article takes over Article 168 (1).”

    1.5 What will be the role of the Charter principles if Lisbon passes into law?

    (i) Policy elaboration. These rights are not to be infringed

    in the promulgation of EU legislation;

    (ii) as an aid to interpretation. If there are competing

    interpretations of EU legislation available, the one that

    does not infringe a Charter right should be preferred,

    including elements of Charter rights that are not


    accompanied by a legislative power in the hands of

    the EU.

    1.6 There are, however, a third category of rights in the Charter. They do not appear to be backed by any competence in the hands of the Union to legislate. A principle which is not supported by any power to legislation might appear to be an empty vessel, unless it

     duty for subordinate measures to be interpreted attracts the Munster

    sympathetically. But would this amount to an expansion of competence? They may remain relevant in the formulation of Union legislation. Some examples are;

(i) Article 34 (3) of the Charter

    “In order to combat social exclusion and poverty, the Union recognises and respects the right to social and housing assistance so as to ensure a decent existence for all who lack sufficient resources, in accordance with the rules laid down by Union law and national laws and practices.”

The explanation states as follows:

    “Paragraph 3 draws on Article 13 of the European Social Charter and Articles 30 and 31 of the revised Social Charter and point 10 of the Community Charter. The Union must respect it in the context of policies based on Article 15 on the Functioning of the European Union.”

(ii) Article 25 of the Charter

    “The Union recognises and respects the rights of the elderly to lead a life of dignity and independence and to participate in social and cultural life.”

    The only direct legislative power related to this is the power in Article 19(1) FT to legislate to combat age discrimination

The explanation states as follows;

    “This Article draws on Article 23 of the revised European Social Charter and Articles 24 and 25 of the Community Charter of the


    Fundamental Social Rights of Workers. Of course, participation in social and cultural life also covers political life.”

(iii) Article 26 of the Charter

    “The Union recognises and respects the right of persons with disabilities to benefit from measures designed to ensure their independence, social and occupational integration and participation in the life of the community.”

    The only direct legislative power related to this is the power in Article 19(1) FT to legislate to combat discrimination on grounds of disability.

The explanation states as follows.

    “The principle set out in this Article is based on Article 15 of the European Social Charter and also draws on point 26 of the Community Charter of the Fundamental Social Rights of Workers.”

    1.7 With regard to provisions of the Charter that are justiciable as an independent basis of challenge, they can be placed into three categories.

    (i) Rights that are reflective of those contained in the

    ECHR. These are justiciable because they are given

    the status of “general principles of law” by Article 6(3)

    of the TEU;

    (ii) Rights that result from the constitutional traditions

    common to the Member States. They are justiciable

    because they too are given the status of “general

    principles of law” by Article 6(3) of the TEU;

    (iii) Charter articles, such as the right to work and working

    conditions Articles 15, 30, and 31, to which a broad

    legislative competence has been attached to the EU,

    and pursuant to which there is a well established

    acquis (see the explanations to these provisions).


    2. Do any other provisions of the Lisbon Treaties expand the scope of fundamental rights protection in Europe?

    2.1 Expansion of EU legislative competence into the fields such as criminal and family law will broaden the impact of EU fundamental rights law in the Member States.

    Eg Article 81 (3) provides a facility for the Council to establish “measures concerning family law with cross border implications”.

    Eg. Article 82 (2) provides for directives establishing minimal rules on mutual admissibility of evidence, the rights of individuals in criminal procedure, the rights of victims of crime, and other specified aspects of criminal procedure; Article 83 (1) provides for directives establishing minimum rules concerning the definition of criminal offences and sanctions in the areas of particularly serious crimes with a cross border dimension.

    Family and criminal law are two fields that have been purely internal to the Member States. This means that any human rights issues arising in these areas have traditionally been governed, within the Member States, by the European Convention of Human Rights, and the national measure implementing it. This means in Ireland the European Convention of Human Rights Act (2003) and

    the Constitution, and in the United Kingdom the Human Rights Act

    (2003). However, if Member States are “implementing” EU measures concerning family and criminal law, any human rights issues arising will be governed by the Charter. This is significant not least because the Charter protects a broader range of rights, and should enjoy the benefit of Court of Justice case law on effective remedies (see further below).

    2.2 There is a clear intention to place first, second, and third generation human rights at the heart of elaboration of Union policy and legislation. This is evidence by the opening provisions of the FT

Article 8 FT

“In all its activities, the Union shall aim to eliminate inequalities,

    and to promote equality, between men and women.”


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