In this third part, I sketch out some options for the future of the Charter, concentrating in particular on the run up to the 2004 European Council. These options are intended neither to be comprehensive, nor to be "politically realistic". Nor should readers assume that I support any of these options. They are intended, rather, to stimulate discussion.
One issue that has not yet surfaced as a serious possibility, to my knowledge, is whether the text of the Charter should be comprehensively redrafted. There is something to be said for this. Since its promulgation, there has been a very substantial academic literature on almost every aspect of the Charter, and more is sure to appear in the next few months and years. It would be hubris of the highest order to imagine that the drafters of the Charter anticipated and considered how to deal with every issue. Although, in many respects, the Charter is drafted to be intentionally ambiguous, points of unintentional ambiguity may well be identified in the future. Should we regard the Charter as amounting, therefore, to "work in progress", and conceive of the possibility of redrafting it after a sober second look? Such redrafting might, of course, be limited and technical or fundamental and wide-ranging. In particular, perhaps, there might be pressure to redraft the Charter to limit its content to those provisions that reflect the area of coverage of the European Convention on Human Rights, dropping the expanded equality and solidarity rights that the Charter currently contains. We need to consider this issue seriously, if only because the 2004 European Council could redraft it itself as part of the process of horse-trading that may emerge when the status of the Charter comes to be considered. If this is correct, then it may well be more desirable to consider redrafting in the more transparent forum of the Laeken-established Convention. The alternative, of course, to redrafting, in whole or in part, is to decide that the Charter text is, in practice, as good as it is going to get and that we must decide the existing Charter's future status taking it is a whole, and not allow ourselves the luxury of envisaging a re-draft.
One of the few unambiguous statements that can be made about the legal status of the existing Charter is that its current legal status is unclear. In particular, there is evidently a significant debate taking place within the European Court of Justice on the extent to which the existing promulgated Charter does have legal effects, and if so, of what kind and extent.32 Under certain conditions, therefore, the issue of legal status could become moot, as the Commission indicated in the Communication it issued in the closing days of the drafting of the Charter.33 The Court may come to confirm the legal status of the Charter in such a way that it would appear to be pointless to resist formal incorporation into the treaties. Some have already anticipated this development. "In practice," says Vitoríno, "the only questions that matter are when and how the Charter will be incorporated in the treaties."34 One option, therefore, on the issue of legal status, is simply to leave it to the ECJ and allow that body to decide what weight, if any to give the Charter, even after the 2004 Council. In other words, the legal status of the existing Charter could simply be delegated to the Court.
In some ways that is an attractive option, in particular because it heads off confrontation between two (currently) significant groups of Member States, one of which wants the Charter to be accorded a formal legal status by a future European Council, and another bloc that most definitely does not. An argument against the approach of delegating the issue to the ECJ comes from a perception that one function of the Charter is to control the ECJ in how it develops its "general principles" jurisprudence;35 leaving the status of the Charter to the Court seems a strange way of controlling it. In considering this argument, it may be useful to distinguish between two different senses of how the Court may (or may not) be controlled. Control might be desired either in terms of when the Court applies its fundamental rights jurisprudence (in which case leaving the status of the Charter open does little to control the Court), or control might be desired in terms of the content of the rights contained in the Court's jurisprudence (in which case, the Charter may well serve to control the Court, even if its legal status is left open).
Assuming, however, that the issue of legal status is still a live issue and has not been overtaken by decisions of the ECJ, and assuming further that the European Council in 2004 doesn't decide explicitly or by default to leave it to the ECJ, should the Charter be accorded formal legal status by a decision of the European Council, and how might this be achieved?
In part, this depends on what effect a purely "political" Charter is likely to have. For some, the potential political significance of the Charter is considerable even without formal legal effect, in that by setting out for the first time the list of rights that the Community aspires to, it increases the chances of the further democratic refinement of these rights", and gives us "the opportunity to further explore the potentiality of rights standards through transnational political action."36 In part, therefore, our reactions to whether we think a purely political Charter is useful will depend on whether we think the Charter will, even without a legal status, have a beneficial expressive political function. If not, then we are much more likely to want a firm legal basis for the Charter, not only because of the stronger expressive political message this may convey, but also because we want the Charter to be instrumentally legally valuable in ways that a purely political Charter cannot accomplish. And if it is to be accorded legal status, then we shall have to consider how, technically, this is to be accomplished. Where would the Charter be referred to in the Treaties, for example, and in what terms?
Whether or not to accord a formal legal status also involves, however, a set of other legal issues. What would the role of the ECJ be in interpreting the Charter? Who would have standing to challenge the compatibility of actions by the Community with the Charter? Should the Community amend the Treaties to accord the furtherance of human rights as a general aim of Community policy? How should the "solidarity" rights included in the Charter be enforced? What would the relationship be between the Charter and the ECHR? What would the effect on Member States be of giving a formal legal status to the Charter? It is to these issues that I now turn.
If the Charter is to be justiciable, within which forums should adjudication take place? Assuming, for the moment, that the Community/Union does not accede to the ECHR, there appear to be two options. The first is to rely on the existing Community courts, in particular the European Court of Justice. Tulkens has argued, however: "in the interests of ensuring its credibility, the protection of fundamental rights must be achieved under the control of an international institution acting as a third party. The [ECJ] can not exercise this control when Community acts are concerned, as it belongs to the Community. The external control is part of the requirements of contemporary public international law."37
A second option is to consider the possibility, as the Comité des Sage discussed, that there might be a new additional court dealing with human rights questions specific to the Union/Community, perhaps made up of "non-permanent judges from the Member States' constitutional or supreme courts".38 Suggestions have, of course, been made by some that a new judicial institution could be established with a much wider jurisdiction, to decide cases about whether the EC has overstepped the bounds of its attributed competence more generally. This might be a means of circumventing the climate of mistrust that seems to be clouding the ECJ in such sensitive cases and might have a role to play in the fundamental rights field too. On the other hand, the potential for severe jurisdictional conflict between the two judicial institutions is ever present.
If the ECJ is to be involved, then we might also consider more specifically the approach that the ECJ should be encouraged or required to take in human rights interpretation, for example the approach the ECJ takes to explaining its reasoning in such cases. The ECJ continues to give single judgments, without dissents or concurrences. This seems to assume that there is indeed a single right answer to legal disputes or, at least, that the court should give the impression that there is such a thing. In other jurisdictions, dissenting opinions perform the function of airing alternative and opposing approaches, perhaps particularly in human rights issues, so that the evolution of human rights interpretation becomes an open and dynamic process. The German Federal Constitutional Court, for example, changed its procedure to include dissents. In the case of the ECJ, permitting dissents would also allow the majority decision to be less of a compromise between conflicting viewpoints, and perhaps become more rational, internally consistent, and clearer as a result. Should dissenting and concurring opinions be permitted in order to open up the process of reasoning on human rights issues in the ECJ? Or does the existing system protect judges from pressure from their own member states, in whose hands their renewal lies?
What other implications would a judicially enforced Charter have on aspects of the Court system? Should ECJ judges be appointed for fixed non-renewable terms, as is the case for judges in the German Federal Constitutional Court, or until retirement as in the United Kingdom? Should there be greater democratic participation in the selection of judges for the ECJ, perhaps with the European Parliament having a role? These issues have, of course, been discussed in the context of the ECJ's role in interpreting EC law generally. The question we need to consider is whether a significantly increased role in interpreting human rights norms should lead us to reconsider the approaches we have taken to these issues in the past.
Assuming that the Charter is given some formal legal status, then the issue of legal standing to enforce the Charter becomes a pressing one. If the Charter were inserted in the Treaty, and leaving aside the issue of how the Charter is to be enforced in the context of Union law, I assume that the primary enforcement procedures that would then come into play would be the traditional mechanisms of Commission infraction proceedings against a Member State infringing the Charter when implementing Community law, action by the institutions against each other before the Court for breach of the Charter, and use of the preliminary reference procedure from the Member States' courts (where the issue of the compatibility of Member State action when implementing Community law and Community legislation with the Charter could also be referred to the ECJ). The issue arises, however, as to whether individuals should be able to go directly to the Community courts alleging an infringement against a Member State or one of the Community institutions under the Charter. Currently, the standing of an individual before the Community courts has been perceived as very limited.39 Were the Charter to be given legal effect by being incorporated in the Treaty, should the standing requirements be broadened, for example, by adopting the ECHR test of whether the person taking a case is a "victim"?40 Although only an apparently technical legal question, this issue goes to the heart of the extent to which the Charter should be viewed as shifting what Engle has called the "political opportunity structure" within the Community.41 Do we want to increase the opportunity for individuals to engage with these issues directly before the Court? And what effect would that have on the existing relationships between Member States and the Community institutions, and between the Community institutions?
Irrespective of whether the legal status of the Charter is formalised by Treaty amendment, and made justiciable, the question arises as to how far non-judicial mechanisms of human rights implementation should be adopted by the Union/Community. The Commission has already provided that all legislation be screened or audited for compliance with Charter rights.42 "Mainstreaming" is already accepted as a central strategy for achieving equality between men and women at EU level, however much in practice it leaves much to be desired. How far should similar proactive obligations be placed on all EU institutions? Another relevant issue is whether bodies outside the existing institutions should be given the task of monitoring the implementation of the Charter, and drawing attention to potential breaches.43 In domestic contexts, there is now increasing use of human rights commissions with their own powers of investigation. These play a more proactive and positive role than courts traditionally play in the enforcement of human rights. Indeed the United Nations High Commissioner for Human Rights promots the Paris Principles, a set of guidelines setting out best practice in the composition and powers of such bodies. Should a European Union Human Rights Commission be established with such functions as regularly auditing compliance with the Charter by member states acting within the sphere of Union/Community law and EU institutions?
More broadly, should the treaties now be amended so that the furtherance of the human rights becomes a formal aim of Community policy? The time has probably passed when Opinion 2/94 can be seen as not ruling out the possibility of all kinds of legislation on human rights under the current Treaty but simply ruling out accession to the ECHR without a Treaty amendment.44 If so, and if a human rights policy is desired, then an amendment to the Treaty seems necessary. Weiler has even gone so far as to argue, before completion of the Charter, that a more important initiative, "would be a simple Treaty amendment which made the active promotion of human rights within the sphere of application of Community law one of the policies of the Community alongside other policies and objectives in Article 3 and a commitment to take all measures to give teeth to such a policy expeditiously."45
The Charter is a major innovation in Europe human rights treaty drafting in bringing political, civil, economic, social, and cultural rights together into one document. It is well known that some Member States were deeply uneasy about including many of what became the "solidarity" rights in the Charter, and compromises to meet these concerns are evident in the texts of these provisions. More broadly, however, some have seen the decision by some governments not to press for a formal legal status to be accorded to the Charter as the ultimate compromise necessary to ensure acceptance of these solidarity rights in the text of the Charter at all.
The debate about the role of "solidarity" rights in the Charter mirrors a continuing debate about the role of social, economic and cultural rights in may national contexts and internationally. This debate is a complex and multi-faceted one. Are such social rights appropriately included in enforceable bills of rights at all. If so, should this be done by setting out the detailed rights in the bill of rights, or by setting out a goal to be achieved and imposing positive responsibilities on government to enact specific legislation. Which such rights should be regarded as having an immediate effect, and which should be subject to further detailed exposition (either at the national level or the regional or international level). Are some such rights appropriately regarded as less susceptible to individual adjudication than other rights. Are such rights more appropriately seen as fundamental principles that must be put into effect by specific policies relevant to a particular country against the backdrop of its economic and social development, rather than as rights.
Given these debates outside the Community context, it is not surprising that the drafting of the "solidarity" rights in the Charter was difficult and complex. Several questions arise about the drafting of the solidarity rights, and the conclusions we should draw from that drafting. In particular, to what extent does the Charter accord the provisions included in the part headed "Solidarity" the status of rights at all? Several of the provisions in the Solidarity section of the Charter are subject to heavy qualification and are often dependent on how each Member State has legislated in the area. More confusingly, the Charter refers to a distinction between "rights" and "principles" but does not indicate on its face which provisions fall into which category.46 Some have interpreted the distinction as implying that the solidarity-type rights qualify only as "principles" and would thus not be justiciable in a future, legally enforceable Charter. Others disagree, viewing the rights as currently drafted to be fully justiciable. For Betten, for example, the only issue is whether such justiciability would survive the Charter being formally being given legal effect, not whether the Charter is currently drafted to permit this.47 A key question for the future, therefore, is what we should do about this uncertainty. Do we leave this to judicial determination on the basis of the existing text, or do we envisage some further language giving greater guidance on the issue?
However, a negative response to the question of whether should they be enforced as individual rights by litigation before courts far from exhausts the possibilities for enforcement. A negative answer to this question may in part explain why the Council of Europe's European Social Charter is enforced, not by individual rights of complaint, but by an obligation on contracting parties to submit reports on their implementation of the Social Charter. Governments are required to carry out a regular audit of their achievements (or lack of achievements) under specified heads and to account for themselves to an independent committee. This reporting procedure is not dependent on an individual to draw attention to abusive practices. Would an equivalent reporting mechanism within the EC/EU be a useful device? Even in the absence of individual litigation, should social rights be "enforced" by imposing responsibilities on Member States (regarding their implementation of Community/Union law) and Community institutions to report annually to a specially constituted committee? Is the type of reporting procedure envisaged in the European Employment Strategy based on annual Guidelines an appropriate model? How far, in particular, might proposals in the White Paper on governance regarding benchmarking be usefully developed in this context?
What procedures would be required to make such a reporting requirement effective? Does the reliance on governments to produce such reporting information mean that there is an absence of independent accounts of the facts? (An affirmative answer led to the inclusion in the European Social Charter context of an additional protocol providing for a system of collective complaints, according to which European and national trade unions and employers' associations, as well as authorized national non-governmental organizations, can lodge complaints against a Contracting Party.) Should a similar provision be incorporated in the context of a EU Charter? Would a EU procedure benefit from including a remedial aspect to the reporting procedure, requiring Community institutions, for example, to submit specific plans for remedying defective compliance, and allowing monitoring of such plans? What should be the composition of a body responsible for receiving reports and complaints, and its relationship to decisions of the existing Council of Europe committee? In this context, it would be useful also to consider the possibility of overlap with the United Nations human rights treaties reporting mechanisms. Does this overlap constitute a potential problem, if only in terms of efficiency? Should attempts be made to try to integrate reporting/audit mechanisms in order to avoid unnecessary duplication?
As a result of a series of contentious debates within the drafting Convention, the Charter seeks to preserve the role of the European Court of Human Rights as the authoritative interpreter of the rights in the ECHR. The Charter, in effect, requires the Community courts (if the Charter were made enforceable) to interpret rights in the Charter that "correspond" to rights in the ECHR as having the equivalent meaning to that decided by the European Court of Human Rights. The issue of which rights in the Charter are equivalent to those in the ECHR is not set out in the Charter, but in the explanatory memorandum commissioned by the Presidium.48 Lacking authoritative status, however, the question becomes whether, were the Charter to be made formally legally enforceable, this list of "corresponding" ECHR/Charter provisions should be given a more authoritative status.
Rather like the spectre at the feast, however, a much more substantive issue continues to haunt discussion of the future status of the Charter: whether the Union/Community should accede to the European Convention on Human Rights. Indeed, in a move that surprised some, we have seen that the Laeken European Council specifically asked the Convention to consider whether the EC should accede to the ECHR. Rather less prominent, but also worth considering, is the related question of whether the EU/EC should accede to the European Social Charter.49 I shall concentrate here only on the former issue, without denying the importance of the latter.
We have been reminded of the difficulties that a proposal to accede would have, not only in the context of EC Member States' unease, but also the potential difficulties that the requirement of unanimity to amend the European Convention on Human Rights could cause.50 Although many forests have been felled to provide the paper on which past discussions on these issues have been printed, and no attempt here is made to fully reflect the wide range of options available on these issues, it may be worth mentioning two issues arising from possible accession that continue to attract some attention in the recent literature, relating specifically to the relationship between the European Court of Justice and the European Court of Human Rights. The problem identified is how to ensure, after accession, that the autonomy of Community law remains intact, whilst ensuring that the Convention continues to be interpreted consistently.
Some have suggested that two options are worth considering.51 One involves the use of the advisory opinion mechanism that already exists in the European Convention on Human Rights, possibly combined with a variation on the preliminary reference procedure, resulting in a procedure whereby the ECJ could refer a question relating to the ECHR to the Court of Human Rights, which would then give an advisory opinion to the ECJ on the meaning of the Convention, which the ECJ would then apply. More problematic, and less discussed, is the sensitive issue of which judges of the Court of Human Rights should sit on cases dealing with the Community/Union and, in particular, whether judges from countries that are not members of the Community should sit on cases arising from the application of Community law. In this context, the membership of the Court of Human Rights dealing with such cases may be open for discussion.
This latter issue is but one element, however, in a larger concern about the stability of the ECHR institutions and approach in a situation where it has expanded its jurisdiction so rapidly and significantly to encompass central and eastern Europe. As Tulkens notes,52 there are fears about the future development of the Convention, including the risk of the lowering of standards of protection by the Court of Human Rights in order to accommodate new states. Is this a realistic fear (Tulkens does not think so)? And if it is, what implications does it have for the future of the Charter?
The role of the Charter, as drafted, is substantially to constrain the Union/Community institutions and Member States "implementing" Community/Union law. The Charter is not addressed to Member States more generally. It is not, directly at least, addressed even more broadly to individuals and other legal entities. The function of the Charter, then, in seeking to constrain only the Union/Community (broadly defined), is largely to give greater specificity to existing legal developments. If the role of the Charter were substantially to address Member States and other legal entities as well as the Community institutions, then the Charter would be seen as involving a much greater shift of power and responsibility to Community/Union institutions. So the scope of application to the Member States is a crucial question, and here the drafting of the Charter and surrounding documentation seems, again, to send somewhat conflicting messages.53
Is the application of the Charter to Member States when "implementing" Community law the same as the existing (evolving) ECJ jurisprudence on the application of fundamental rights? The actual language of the Charter seems to indicate that the Charter is narrower in its application to Member States than the existing ECJ jurisprudence; the explanatory memorandum accompanying the Charter seems to indicate, however, that the intention was to reflect (at least some) existing, broader ECJ jurisprudence. Should this issue be resolved by further drafting, or simply left to the ECJ, if the Charter is given a formal legal status?
32 Betten, supra note 29, p. 158, says that the significance of the opinions of the Advocates General is "not yet clear".
33 Communication from the Commission on the legal nature of the Charter of fundamental rights of the European Union, COM (2000) 644 final of 11 October 2000. This position is broadly supported by Lenaerts and De Smijter, p. 299.
34 Vitoríno, supra note 22, p. 16.
35 Menéndéz, supra note 14, p. 9
36 Ibid,, p. 9.
37 Tulkens, supra note 17, p. 331.
38 Comité des Sages, supra note 9, p. 10.
39 Eicke, supra note 19, p. 291.
40 Ibid., p. 291.
41 Christoph Engel, The European Charter of Fundamental Rights: A Changed Political Opportunity Structure and its Normative Consequences, 7 European Law Journal 151 (2001).
42 Sec (2000) 380/3.
43 Eicke, supra note 19, p. 291.
44 See P. Alston and J.H.H. Weiler, A Human Rights Agenda for the Year 2000, in The E.U. and Human Rights.
45 J.H.H. Weiler, Editorial: Does the European Union Truly Need a Charter of Rights?, 6 European Law Journal 95 (2000), p. 97
46 Vitoríno, supra note 22, p. 25. See also, Editorial Comments, supra note 18, p. 3-4.
47 Betten, supra note 29, p. 156.
48 Convention document CHARTE 4473/00.
49 See Betten, supra note 29.
50 Heringa, supra note 20, p. 114.
51 Tulkens, supra note 17, p. 331.
52 Ibid., p. 329.
53 de Burca, supra note 12, p. 137.