The Jean Monnet Program

Professor J.H.H. Weiler
European Union Jean Monnet Chair

Jean Monnet Working Paper 4/01

Jonas Bering Liisberg

Does the EU Charter of Fundamental Rights Threaten 
the Supremacy of Community Law?
Article 53 of the Charter: a fountain of law or just an inkblot?

This paper was awarded the Mancini Prize for 2001

All rights reserved.
No part of this paper may be reproduced in any form
without permission of the author.

Mancini Prize

Established in honor of Federico Mancini, a judge of the European Court of Justice, the Mancini Prize is awarded annually for the best student essay, written during the current academic year, relating to the law of the European Union.

The Jean Monnet Working Papers are published under the auspices of the
 Jean Monnet Program 
hosted at Harvard Law School from 1995 to 2001
and now based at New York University School of Law

ISSN 1087-2221
  Jonas Bering Liisberg

Does the EU Charter of Fundamental Rights Threaten 
the Supremacy of Community Law?

Article 53 of the Charter: a fountain of law or just an inkblot?

1. Introduction	
1.1. Purpose and Scope of Paper	1
1.2. Fundamental Rights in the EU at Present	2
1.3. The Charter – Purpose, Process and Result	5

2. The Drafting History of Article 53
2.1. First Tentative Drafts – Only Concern is the ECHR	7
2.2. Article 53 Begins to Take Shape – Reference to National Law Inserted	9
2.3. Consultations Between Secretariat and Commission Behind Closed Doors	10
2.4. Amendments from the Convention Members	12
2.5. Relocation of ECHR Compatibility Discussion – Debate on Article 53 Fades Out	14
2.6. The Final Text	17
2.7. Characteristics of the Drafting History	18
2.8. Legal Significance of the Drafting History	19

3. Comparison to Similar Provisions in Other Human Rights Instruments
3.1. Earlier Draft European Parliament Instruments 	21
3.2. The European Convention on Human Rights 	
3.2.1. Text of Article 53 ECHR	22
3.2.2. Case-law 	23
3.2.3. Theory	28
3.2.4. Conclusion on Article 53 ECHR	30
3.3. International Conventions on Human Rights	30
3.4. The United States Bill of Rights	33

4. Legal Implications of Article 53?
4.1. A Threat to the Supremacy of Community Law?	35
4.2. An Avenue for New or Wider-ranging Rights in the EU?	42
4.3. Does Article 53 Freeze the Current Level of Protection in the EU?	45
4.4. A Tool to Solve Cases Involving Collision of Different Human Rights?	49

5. Conclusion 
5.1. The Chronicle of an Inkblot Foretold	52
5.2. Should Article 53 be Revised or Left Out?	53

Annexes
1. Bibliography 	55
2. List of Cases	58
3. List of Instruments	60
4. Special Abbreviations	60

Abstract:

This Harvard Jean Monnet Working Paper examines Article 53 (the-level-of-protection provision) of the newly adopted EU Charter of Fundamental Rights and its possible legal implications in the Community on the assumption that the Charter is incorporated into EU law. The analysis includes a thorough investigation of the drafting history and a detailed comparative survey of similar provisions in other instruments, especially Article 53 of the ECHR and the case law from the European Court of Human Rights pertaining to this provision. Four theories of possible legal implications are discussed, with an emphasis on the theory which suggests that the provision poses a threat to the supremacy of Community law over Member State constitutions. All four theories are rejected on the basis of textual analysis, the drafting history and the comparative survey. The paper ends by suggesting changes to the text of Article 53 in the unlikely event that the Charter is reopened in connection with the IGC 2004.

Apart from the legal analysis, the paper also considers the political context in which the drafting of the Charter in general and Article 53 took place. The strengths and weaknesses of the drafting method are discussed, including the issue of whether the new, inclusive and supposedly more transparent drafting method may have negative implications for accountability and the future human rights jurisprudence of the European Court of Justice. Comparisons are made to the American federal system in general and the Ninth Amendment of the Bill of Rights in particular. The perspective is first and foremost EU law, but the paper also touches on national legal systems and draws on theory from public international law as well as international human rights law. 

Does the EU Charter of Fundamental Rights Threaten 
the Supremacy of Community Law?

Article 53 of the Charter: a fountain of law or just an inkblot?

By Jonas Bering Liisberg

1. Introduction 

1.1. Purpose and Scope of Paper

This paper examines Article 53 of the recently adopted Charter of Fundamental Rights of the European Union. The article, entitled “level of protection,” is one of the general, horizontal provisions set out in the last chapter of the Charter. It reads as follows: 

“Nothing in this Charter shall be interpreted as restricting or adversely affecting human rights and fundamental freedoms as recognised, in their respective fields of application, by Union law and international law and by international agreements to which the Union, the Community or all the Member States are party, including the European Convention for the Protection of Human Rights and Fundamental Freedoms, and by the Member States' constitutions.”

The aim of a provision of this kind, found in many human rights instruments, is normally to ensure that the rights and freedoms protected by the instrument are applied as minimum standards and not seen as a ceiling of protection. 

The wording of Article 53 has, however, caused some concern about its legal implications in the special context of the supranational Community legal order. Some commentators have argued that if the Charter is incorporated into EU law, Article 53 could threaten the supremacy of Community law over national constitutions, and that it might reinforce tendencies of courts in certain Member States to assert a right to review Community measures against national standards of human rights.

This paper will discuss the possible legal implications of Article 53 for the Community legal order, on the assumption that the Charter, as it stands, becomes binding law. The perceived threat to Community law supremacy will be the main topic of discussion, but the paper will also consider other possible legal implications, such as: whether Article 53 could be seen as an avenue to broaden rights in the Charter or establish new rights; whether Article 53 could be interpreted to freeze the level of protection under the Charter and lead to a more static human rights doctrine of the European Court of Justice; and, finally, whether Article 53 could provide any guidance in cases involving collision of different human rights (Chapter 4).

The paper will take a close look at the drafting history of Article 53, tracking, to the extent possible, all prior drafts, amendments, discussions in the drafting body and consultations between the legal experts associated with the process (Chapter 2). The paper will also compare Article 53 with similar provisions in earlier proposed EU human rights instruments, the European Convention on Human Rights (ECHR), international human rights conventions, and, finally, the United States Bill of Rights (Chapter 3). The comparative emphasis will be on Article 53 ECHR and case law relating to this provision from the European Court of Human Rights. 

As part of the conclusion and some of the preceding chapters, the paper will briefly discuss what lessons, if any, can be learnt from the drafting of Article 53 and the proceedings of the Charter Convention. In the end, the question is asked whether Article 53 should be revised or left out, if the Charter is incorporated into EU law (Chapter 5).

1.2. Fundamental Rights in the EU at Present

The EU legal order of today includes as one of its basic tenets the protection of human rights. Article 6(2) of the Treaty of the European Union (TEU) specifies that the Union shall respect fundamental rights, as guaranteed by the ECHR, and as they result from the constitutional traditions common to the Member States. It was not until the Maastricht Treaty of 1992, that Article 6(2) (ex Article F) TEU was inserted into the Treaties. And only with the Amsterdam Treaty of 1997 was it formally clarified that the jurisdiction of the European Court of Justice (ECJ) under the Treaty of the European Community (TEC) applies to Article 6(2) TEU with regard to action of the EU institutions (Article 46(d) TEU).

These recent Treaty revisions were the first (incomplete) attempts to codify the EU fundamental rights doctrine, which has gradually been developed by the Court since 1969. It falls outside the scope of this paper to give a general account of current EU human rights law or its history. In the context of the Charter, it will suffice to briefly highlight three of the major horizontal issues: (1) The relationship between the supremacy doctrine and the fundamental rights doctrine, including the level-of-protection discussion; (2) The expanding reach and relevance of the Court’s human rights powers vis-à-vis Member States; and (3) The relationship to the ECHR, including the possibility of EU/EC accession to this Convention.

(1) Level of protection and the connection to supremacy. The Court’s creation of a Community human rights doctrine is often explained as motivated by a wish to protect the well-established, but sometimes challenged, ambition of Community law to reign supreme over any norm of national law, including constitutional human rights norms. The idea is that the Court could not expect full respect for the supremacy principle from national courts unless acts of the Community institutions were subject to human rights review by the Court. To reduce the risk of conflicts between Community law and national constitutions, the Court says that it will “draw inspiration from the constitutional traditions common to the Member States.” Some scholars have suggested that this ought to mean that the Court should base its human rights jurisprudence on the strictest standards and highest levels of protection found among the Member States. This is not the approach of the Court, however. When it comes to national constitutions, the Court merely draws “inspiration” from “traditions.” The case law rarely involves any close, decisive analysis of national constitutions by the Court. Current case law focuses more on the ECHR (see (3) below). The Court sees its constitutional role as defining an autonomous level of protection within the Community sphere. This approach does not eliminate the possibility of tensions between national standards and Community standards, but it seems, on the whole, to work in practice. There are no cited examples of a national court of last instance setting aside a preliminary ruling from the European Court of Justice on the basis that the result would violate a human rights provision in the national constitution. But the Court obviously has to steer a very careful course to maintain its legitimacy and authority. It has caused some concern, from an EU perspective, that the highest courts in, inter alia, Germany and Denmark, have reserved, in general terms, a right to rule that a Community act, which has been upheld by the ECJ, is inapplicable in their respective countries if the act contravenes a national constitutional norm. The issue of supremacy will be further discussed in 4.1. below.

(2) Scope and depth of the Court’s human rights jurisdiction. The likelihood of tension between Community and national standards of protection is related to the question to what extent Member State measures are subject to human rights review by the Court. Over the years, the Court has gradually extended its review to include not only acts of the institutions, but also acts of the Member States when they act under EU law as the executive arm of the Union or when they invoke Community derogation rules relating to the fundamental economic freedoms such as the free movement of goods. It is still a condition, however, that the national measures fall “within the scope of Community law”; an American-style incorporation of “federal” human rights into the “state” legal order has not (yet) happened. The problem is that “the scope of Community law” is a rather vague, amorphous concept and varies according to the specific situation of the individual invoking fundamental rights. Moreover, the scope of Community law is constantly expanding, both in leaps (such as the recent transfer of visa and asylum policy from the Third to the First pillar), and incrementally through Community legislation, the legal bases of which are not precisely delimited. The depth of the Court’s human rights scrutiny of Member State measures is not always identical with its human rights scrutiny of Community measures; the Court seems, for instance, to provide only rather general guidance to the national court when dealing with the human rights compatibility of national measures derogating from the fundamental economic freedoms. All in all, what emerges is a rather opaque delimitation of the scope and depth of the Court’s human rights jurisdiction over Member State measures.

(3) The relationship to the ECHR. The ECHR is an essential source of law in the EU human rights jurisprudence, even if the EU/EC is not a Contracting Party to the Convention. The Court generally adheres to the ECHR human rights provisions as a minimum level of protection, and often delves into close examinations of the Convention and, more recently, the case law of the European Court of Human Rights. The ECHR has “special significance” in the words of the Court. This can be seen as an attempt by the Court to avoid tension with another important instrument in the Member States, which have by now all incorporated the ECHR into domestic law. The European Court of Human Rights abstains from reviewing EU Member States’ responsibility for acts within the field of Community law, referring to what it sees as the equivalent protection of human rights afforded by the European Court of Justice. In the eyes of many institutional actors, some Member States and several scholars, the current situation is satisfactory neither legally – as certain procedural and material lacunae persist – nor in terms of political credibility as all EU Member States are (and new ones, in practical terms, must be) Contracting Parties to the ECHR. Proposals for accession of the Community to the ECHR have been discussed on and off for almost 25 years. Accession would require both a revision of the Treaties and the ECHR, which at present only accepts states, not organizations, as Contracting Parties.

1.3. The Charter – Purpose, Process and Result

The idea of an EU Bill of Rights has been on the table for some years, mostly supported by the European Parliament (see 3.1. below). But it was not until 1999, on a German initiative, that the Charter process was launched with a decision of the European Council in Cologne. The stated purpose, as eventually reflected in the preamble, was to strengthen the protection of fundamental rights in the EU, not by changing the rights as such, but by making them more visible to the EU citizens. The Charter process should be seen in the broader context of the debate on constitutionalization of the European Union. Not only did the idea of a Charter appeal to Member States with constitutional and federal ambitions for the future of the EU; it was also welcomed by other Member States as a sensible way to bring the Union closer to the citizens and gain more popular support for the EU. Some see in the very topic of human rights a new project for the EU that could help keep up momentum in the integration process, among the peoples as well as among the governments, now that the huge projects of the 1980s and 1990s, the Internal Market and the Monetary Union, are more or less in place. The enlargement negotiations with 12-13 countries, including ten former members of the Eastern Bloc and Turkey, also provided a good reason to devote more energy to the topic of human rights in the EU. 

The composition of the drafting body, what became known as the Convention, and the working method, as laid out in an annex to the Conclusions of the European Council in Tampere, in October 1999, were truly unique. The body was composed of 62 Members representing the Heads of State and Government, the President of the European Commission, the European Parliament and the national parliaments. The European Court of Justice and the Council of Europe, including the European Court of Human Rights, were allowed to participate as observers. The Convention and its Praesidium, comprising Members from each of the four categories of representatives, was assisted by a Secretariat staffed by the Legal Service of the Council. The hearings held by the Convention and documents submitted at such hearings should, according to the mandate, “in principle” be public during and after the process. Along the way NGOs, independent experts and the applicant countries were consulted. Another significant feature of the drafting process, especially given its inclusiveness and the size of the drafting body, was the time pressure the Convention worked under. The draft had to be ready within one year for the European Council in Nice in December 2000.

The rights provisions contained in the Charter are basically a restatement or compilation of existing rights. The Cologne terms of reference made clear that the Convention should base itself on the jurisprudence of the Court, including the ECHR and the common constitutional traditions. The final list of rights is quite broad and innovative, including such rights as the right to a clean environment, bioethical rights, a right to protection of personal data and the rights of the disabled. Arguably, these are not new rights and already enjoy some protection under various Community instruments, but they have hitherto generally not been regarded as fundamental rights in the EU context. Some traditional rights, e.g. the right to an effective remedy, provide a slightly higher level of protection than the corresponding rights in the ECHR. 

The crucial and contentious question of “whether and, if so, how the Charter should be integrated into the Treaties” was left by the Cologne Council to be decided at or after the European Council in Nice in December 2000. For the ensuing analysis of Article 53, it is important to note that the Convention Praesidium early on indicated that the task was to draft a Charter that could become binding without any changes, should the Heads of State and government wish so. It is therefore possible to subject the Charter to a legal analysis on the hypothesis that it has become binding. A revision is not foreseen. At the European Council in Nice no agreement could be reached on the final legal status of the Charter, so it was decided to postpone a decision until the next Inter-Governmental Conference (IGC) in 2004. Today the Charter has the status of a non-binding “soft law” instrument in the Community legal order. As such it has already been cited in two opinions by Advocates General of the Court. 

The political and public reception of the Charter in the Member States has so far been relatively quiet, awaiting the decision on the final status of the document. Governments assure skeptics that the Charter simply reaffirms existing rights and is not a binding document (and perhaps never will be) while enthusiasts confirm each other in the belief that the Charter represents a major political step towards more integration and popular support for the EU. No broad popular debate has yet occurred. For legal scholars, however, the Charter is red meat, and the steady trickle of articles and comments that is starting to run will no doubt soon become a roaring river of ink.

2. The Drafting History of Article 53

2.1. First Tentative Drafts – Only Concern is ECHR

The first draft of what would eventually become Article 53 was put forward by the Praesidium in February 2000 along with a few other horizontal provisions and the first draft set of civil and political rights. The Chairman, Roman Herzog, former President of Germany (1994-99) and President of the German Federal Constitutional Court (1987-94), announced that the draft horizontal provisions were not submitted for discussion but were merely meant as an illustration of a possible way of solving horizontal problems closely linked to the drafting of specific rights.

The draft, called Article Z, was only concerned with the relationship between the Charter and the ECHR. It read as follows:

“Article Z. Level of protection.
No provision of this Charter may be interpreted as placing restrictions on the protection afforded, in conformity with Article 6 of the Treaty on European Union, by the European Convention on Human Rights.”

In a commentary, the Praesidium pointed out that the purpose of draft Article Z was to ensure that the level of protection of human rights in the Union could not be inferior to that afforded by the ECHR, regardless of the wording of the Charter. The relationship between the Charter and the ECHR had been raised frequently during the first meetings of the Convention. Confirming the status of the ECHR explicitly would make it possible to depart from the wording of the more than 50-year old ECHR without altering the standard of protection, an exercise several Members of the Convention thought was crucial in light of the overarching purpose of the Charter: to strengthen EU human rights by making them more visible and comprehensible to the public.

The draft was, at least in part, based on a discussion note from the Secretariat on the horizontal questions, commissioned by the Chairman and distributed to the Members of the Convention in January. In the note, the Secretariat pointed out that the Charter would constitute a bill of rights that the Union imposes on itself, just as each state party to the ECHR has its own charter of fundamental rights. This fact does not, the note pointed out, excuse the Union from observing the ECHR as required by Article 6 TEU. The ECHR, it was underlined, constitutes a minimum standard and the Charter cannot step backwards in relation to the Convention as interpreted by the European Court of Human Rights. The note recommended the same approach with regard to “common constitutional traditions” (see 1.2. above) and suggested that the Charter should include a clause that would establish that nothing in the Charter would restrict the protection offered by the ECHR, “common constitutional traditions,” and other relevant instruments. 

The Praesidium and Secretariat did not follow up on their own suggestion to include a reference to “constitutional traditions” or other international instruments in the first draft Article on the level of protection, probably because the Praesidium, at this juncture, was primarily concerned with convincing Members of the Convention that the draft wording of the individual rights could legitimately differ from the wording of the parallel rights in the ECHR.

Even if the draft horizontal provisions were not submitted for discussion, draft Article Z did provoke at least two written comments. The French government representative (Vice-Chairman of the Convention, Guy Braibant) suggested omitting the reference to Article 6 TEU, and the observers of the Council of Europe (Judge Marc Fischbach and Deputy Secretary-General Hans Christian Krüger) commented generally on the relationship with the ECHR. The observers stressed that the Charter could, in conformity with Article 53 ECHR, include other and/or broader rights than those found in the ECHR, and that a reference to the case law of the European Court of Human Rights would be useful, even if it could not entirely close the procedural gap between the two legal systems. The ultimate solution would be for the Community or the Union to become a Contracting Party to the ECHR. The Council of Europe therefore suggested that the Convention recommend to the IGC, as a complement to the adoption of the Charter, that the Community and/or the Union accede to the ECHR. From the beginning such proposals were, however, dismissed by Herzog as going beyond the Cologne mandate. 

In its next draft of horizontal provisions, from early March, the Praesidium preserved the wording of Article Z except for a deletion of the reference to Article 6 TEU, as suggested by France. The draft article changed its name to Article Y. The Praesidium intended the draft only to provide material for consideration. It did not invite comments on the draft horizontal articles. 

2.2. Article 53 Begins to Take Shape – Reference to National Law Inserted

On March 16, the European Parliament adopted a resolution on the Charter process that contained several points of interests to the drafting history of Article 53. First of all, the Parliament noted, it is the primacy of Union law and the significant powers of its institutions to affect individuals which make it necessary to strengthen the protection of fundamental rights at the European Union level (preamble, consideration F). Second, the Parliament stressed that, like national provisions concerning fundamental rights, the Charter should not conflict with the ECHR (preamble, consideration R). Third, and perhaps most importantly in the context of Article 53, the Parliament emphasized that the Charter should not “replace or weaken Member States’ provisions concerning fundamental rights” (point 12). The Parliament also suggested that the Charter incorporate standards applicable to the Union as set out in the international conventions signed by the Member States within the context of the UN, the Council of Europe, ILO and the OSCE (point 14).

At the seventh meeting of the Convention Praesidium in mid-April, the Council of Europe observers submitted amendments to the draft horizontal articles, including article Y. Again, the Council of Europe was primarily concerned with safeguarding the ECHR as the minimum standard and ensuring a reference to the case law of the European Court of Human Rights. Following a thorough discussion with the Council of Europe observers, the Praesidium resumed its work as a drafting committee and, together with the Secretariat (headed by a Director in the Legal Service of the Council and former professor in EU law, Jean-Paul Jacqué), reviewed the preliminary drafts of the horizontal articles. In close cooperation with the Praesidium, especially Chairman Herzog and Vice-Chairman Braibant (who took over much of Herzog’s work towards the end of the drafting process when Herzog essentially withdrew from the process for family reasons), the Secretariat was “the holder of the pen” throughout the Convention, producing the initial drafts of the Charter Articles and adjusting them along the way. The Secretariat held close private consultations with the Legal Service of the Commission, not least on the horizontal articles.

The discussions resulted in a new draft set of horizontal provisions distributed to the Members of the Convention the following day, this time with a view to discussion at a forthcoming plenary meeting. The proposal contained five horizontal provisions, Articles H.1 through H.5. The new draft of the-level-of-protection article, Article H.4, had changed considerably and was now obviously inspired by Article 53 ECHR. It read as follows:

“Article H.4 Level of protection
No provision of this Charter may be interpreted as restricting the scope of the rights guaranteed by Union law, the law of the Member States, international law and international conventions ratified by the Member States, including the European Convention on Human Rights as interpreted by the case law of the European Court of Human Rights.”

In its statement of reasons for draft Article H.4, the Praesidium explained that the object of the provision was to maintain the level of protection currently afforded by Union law, the law of the Member States and international law. The Praesidium added that, owing to its importance, the ECHR, “which constitutes in all cases a minimum standard,” was mentioned specifically.

The draft text differed from Article 53 ECHR mainly by being more explicit, e.g. by referring to Union law specifically (and not only international law or agreements ratified by Member States) and by referring to the case law of the European Court of Human Rights. But the model was clearly Article 53 ECHR. 

2.3. Consultations Between Secretariat and Commission Behind Closed Doors

The first plenary discussion of the horizontal clauses took place at an unofficial meeting of the Convention on May 3-4, 2000. At the meeting, the Dutch Government representative (Frits Korthals Altes) and a German parliamentarian (Peter Altmaier) expressed concern over the reference to “national law” in draft Article H.4. They feared that the uniform application and supremacy of Community law could be endangered by such a reference. Several Members, including a parliamentarian from Finland (Yuija Brax), supported the draft, emphasizing that the Charter should only be a set of minimum standards. The Greek government representative (George Papadimitrio) suggested a compromise by replacing the reference to “the law of the Member States” with a reference to “the constitutional law of the Member States,” a proposal that would be adopted with only a slight, linguistic modification by the Praesidium in its next draft. 

The reference in draft Article H.4 to the case law of the European Court of Human Rights provoked a much longer and more heated discussion. Some Members of the Convention, not least Vice-Chairman Braibant, expressed concern that the reference would muddle the distinction between legislator and adjudicator by giving carte blanche to the European Court of Human Rights. Others found it degrading to the European Court of Justice that only the case law of the European Court of Human Rights was mentioned (Alvaro Rodriguez-Bereijo, Spanish government). Yet others suggested that only a “static” reference to the case law of the European Court of Human Rights, i.e. as it stands at present, be included (Altmaier, German parliamentarian). Throughout the drafting process, active and influential Government representatives from the “Northern Dimension” of the Convention, such as Lord Goldsmith (UK), Daniel Tarchy (Sweden), Erling Olsen (Denmark), Paavo Nikula (Finland) and Michael O’Kennedy (Ireland) along with Judge Fischbach from the Council of Europe, expressed strong support for a reference to the case law of the European Court of Human Rights, in one of the Charter provisions, not necessarily Article 53. As was pointed out during the first discussion from this side, any attempt to “freeze” the level of protection as expressed in the current case law under the ECHR would run counter to Article 6 TEU (Eaton, UK government, Alternate Member). 

Chairman Herzog concluded that there seemed to be general support for an Article like draft Article H.4. Important arguments, however, had been advanced to either delete or rephrase the reference to the law of the Member States. Herzog thought that the reference to the ECHR should either be in Article H.2 (“scope of guaranteed rights,” Article 52 in the final version) or in Article H.4, not both. (Eventually the reference was maintained in both places, which has caused some overlap, at least in the official explanations, see 4.1. below). As to the reference to the case law of the European Court of Human Rights, Herzog suggested that it be included in what was then suggested by some Members to be a separate part B of the Charter explaining all the legal niceties. (A reference to case law, from both Courts, was eventually confined to the preamble and the explanations.) 

By mid-May the Praesidium tabled a new draft set of horizontal articles. The level-of-protection article had been modified on the basis of the discussions in the plenary meeting, most notably by limiting the reference to national law to “constitutions” and by deleting the reference to the case law of the European Court of Human Rights. Other, subtler changes were also introduced. The draft Article, Article 49, read as follows:

“Article 49. Level of protection
Nothing in this Charter shall be interpreted as restricting or undermining human rights and fundamental freedoms recognised, in their respective fields of application, by the Member States' constitutions, international law and international agreements to which the Union, the Community or all the Member States are party, including the European Convention for the Protection of Human Rights and Fundamental Freedoms.”

The subtler changes introduced in draft Article 49 included the following: (a) “Nothing … may” was strengthened to “Nothing … shall”; (b) “the scope of” rights was deleted; (c) the word “rights” was linguistically narrowed to “human rights and fundamental freedoms”; (d) “restricting” was broadened by adding “or undermining”; (e) “guaranteed” was replaced with the softer and broader “recognised”; (f) the rights were qualified by the new proviso, “in their respective fields of application”; (g) the reference to “Union law” was left out; and (h) the reference to international agreements of Member States was broadened, but also qualified, by referring to agreements “to which the Union, the Community or all Member States are party” (emphasis added).

The changes seem to reflect somewhat contradictory intentions: some of the changes broadened the scope of the provision, others limited it. In general, though, the changes did not significantly alter the meaning of the provision. Significant, however, was the insertion of the words “in their respective fields of application.” There is no indication in the official record of the Convention of how, why or by whom this seemingly important qualification was inserted. Thus, Members of the Convention had to be rather alert to notice the change; it is not surprising that no questions were apparently raised in the ensuing discussions. Sources closely involved in the drafting have revealed that the proviso was inserted (along with the other changes) as a result of extensive consultations between the Legal Service of the Commission and the Secretariat (i.e. the Legal Service of the Council). The intention was to foreclose any doubt about the supremacy of Community law over national constitutions, and the understanding of the two Legal Services was that the revised wording would make it clear that national constitutions could only prevail in the (limited) sphere of exclusive national competence. The logic of this intended reading is debatable, especially given the fact that the Charter is only addressed to the Member States insofar as they implement Union law (Article 51(2)). The issue will be discussed further in 4.1. below.

The statement of reasons which accompanied draft Article 49 were identical with those which accompanied the previous draft, except that it was added that the reference to the ECHR “obviously means the Convention as interpreted by the European Court of Human Rights, whether now or in the future, by virtue of the principle that any interpretation is incorporated into the text interpreted.” This was clearly meant to accommodate the Members who had strongly favored the now-deleted reference to ECHR case law. The statement further added that “the same holds for the case law of the Court of Justice of the European Communities with respect to Community law.” The reference to the European Court of Justice and Community law in the explanations is somewhat puzzling given the fact that the reference to Union law from the previous draft Article had been omitted in draft Article 49. Eventually, the reference to Union law was reinserted in the very final draft (Article 53), but the reference to the case law of the European Court of Justice in the explanations was not repeated in later drafts or the final version. It seems possible that the exclusion of the reference to Union law in draft Article 49 (and two later draft Articles, 51 and 52, see below) was an inadvertent omission.

2.4. Amendments from the Convention Members

After tabling the draft articles in mid-May, the Praesidium invited the Convention Members to submit written proposals for changes before June 5, 2000. More than one thousand written amendments to the draft articles on economic and social rights and horizontal issues were submitted and distributed in one document. The Secretariat prepared an analysis and grouping of the amendments and came up with suggestions on which proposals to take on board. This document was issued in the beginning of July.

Again positions differed on a wide spectrum. But draft Article 49 was not a highly contentious issue; most proposals relating to this provision were aimed at fine-tuning the wording rather than substantially changing it, and the bulk of proposals related to other provisions, including some of the other articles in the chapter on horizontal issues, but mainly to the individual rights and freedoms. Fewer than twenty amendments related to draft Article 49.

An outlier amendment in one end of the spectrum was a proposal to delete the entire Article, submitted by Cederschiöld, Swedish MEP (Christian Democrat Group), who argued, inter alia, that the reference to “constitutions” contradicted the very idea of a Charter and would imply a Europe “à la carte” in the constitutional area. On the other end of the spectrum was a proposal to vastly broaden the scope of draft Article 49, submitted by Euro-skeptic Jens-Peter Bonde, Danish MEP (Europe of Democracies and Diversities Group). This proposal is worth quoting for the purposes of the ensuing analysis of Article 53. In English it would read something like this: “Nothing in the law of the Union, the Treaties and this Charter can be interpreted in a way that would run against human rights as these are interpreted by The European Court of Human Rights in Strasbourg, or against the fundamental rights in national constitutions as these are interpreted by the national constitutional or supreme courts.” The object of the amendment was clearly to limit Community powers in general and weaken, if not eradicate, the principle of supremacy. In its document de synthese, the Secretariat did not state the true gist of the proposal but only said that Mr. Bonde had proposed to include a reference to national courts in Article 49 (see note 46 below).

Among the other, more moderate proposals worth highlighting were proposals by the UK government representative, Lord Goldsmith, drawing on a comparison to Article 53 ECHR, and by Jean-Maurice Dehousse (Belgian MEP, European Socialists Group), to reinsert a reference to “the law” and not only “the constitutions” of the Member States. Also noteworthy was an amendment proposed by two German MEPs (Ingo Friedrich and Peter Mombaur, Christian Democrats Group), who argued that the draft could be understood as a “material norm of collision” (implying that such a reading could jeopardize the supremacy principle) even if, it was admitted, the intention was to make clear that the Charter provided minimum standards. The Belgian government and parliament representatives proposed to replace “constitutions” with “constitutional traditions common to the Member States” to achieve, as it was said, better harmony between Article 53 and Article 6(2) TEU. One amendment (by Einem and Holoubek, Austrian parliamentarians) suggested, among other things, to delete the “in their respective fields of application” clause because it was confusing and unnecessary by comparison to Article 53 ECHR.

Several Members suggested (re)inserting a reference to the case law of the European Court of Human Rights and/or to the European Court of Justice. The important battle over this reference, however, was now fought under draft Article 47(2) (eventually Article 52(3)), and not draft Article 49. As earlier indicated, the opposing sides were the UK, Sweden, Denmark, Ireland, the Netherlands and Finland, which all more or less insisted on such a reference, and Spain, Italy, Greece and France, which strongly opposed any such reference (see 2.3. above). The other amendments were less significant. 

In its document de synthese, the Secretariat proposed, with no statement of reasons, to take only one written proposal on board. This was an amendment introduced by Gunnar Jansson (Finnish parliamentarian and one of the Vice-Chairmen of the Convention) to move the reference to the Member States’ constitutions to the very end of the Article. The intention of Mr. Jansson was to highlight rather than weaken the reference to constitutions. The Secretariat did not attach any legal significance to the re-arrangement and was thus able to accommodate Mr. Jansson, who had tabled other amendments that could not be taken on board. 

Throughout the proceedings the Praesidium and Secretariat would often tell Members of the Convention that their amendments were offset by opposite proposals and could therefore not be taken on board. Although this was probably often the case, and one can imagine how difficult a task the Secretariat was confronted with, the point illustrates the enormous influence the draftsman exercises in such a process (see 2.6. below).

2.5. Relocation of ECHR Compatibility Discussion – Debate on Article 53 Fades Out

At an official plenary meeting on June 29, 2000, the Convention discussed the draft horizontal provisions again, along with drafts of all the substantial rights provisions. The debate on the horizontal issues focused mainly on such questions as to what extent the Charter was addressed to Member States (draft Article 46 (1), eventually Article 51(1)), whether and how to include a reference to subsidiarity, whether to include a reference to case law, and how to secure compatibility with the ECHR. Little was said about draft Article 49.

Vice-Chairman Braibant led the discussion on the horizontal provisions. He expressed the opinion that the horizontal provisions were the most important and most difficult. But while these provisions were in many ways the key to the Charter, he said, they were also so self-evident that they were almost superfluous. Other Members, including Lord Goldsmith, objected to this characterization.

The interventions regarding draft Article 49 were few and resembled the written amendments from May. Some again objected to any mention of agreements entered into by “the Union” (which at present, unlike the Community, has no (self-defined) legal personality); others wanted to continue the discussion about a reference to the case law of the European Court of Human Rights from foregoing draft Articles; some wanted a reference to the Universal Declaration of Human Rights; and several Members emphasized the importance of presenting the Charter as a set of minimum standards, not a ceiling of protection. For most Member States (not only the less integrationist ones such as the UK and Denmark) draft Article 49 was important to proclaim for the world to see that the Charter would not replace or require changes in the national constitutional systems of human rights protection. The draft, as it stood, clearly served that purpose, at least from a public relations point of view. The European Parliament shared this view (see 2.2. above about the Parliament’s March resolution). The Commission was likewise satisfied; the fingerprints it left on the draft Article through its private consultations with the Secretariat had survived.

The crucial discussion on the relationship of the Charter to the ECHR had basically moved to draft Article 47 (eventually Article 52(3)). The principal aim of this provision was to make sure that the protection of Charter rights corresponding to those found in the ECHR, but with a revised wording, would never fall below the level of protection afforded by the ECHR. The fear was that without such a provision the revised rights wording would reduce, rather than enhance, legal certainty. In many ways the real “level of protection” discussion was now focused on draft Article 47 rather than the draft Article entitled “Level of Protection.” A solution under Article 52(3) was eventually found by drawing up a list in the explanations to the Charter of which rights correspond to the ECHR rights and which go further.
 
The Council of Europe (Judge Fischbach) expressed general satisfaction with draft Articles 47 to 49. However, Fischbach still supported those Members who wanted a reference to the case law of the European Court of Human Rights somewhere in the Charter. He stressed that even if, contrary to all expectations, the level of protection afforded by the Strasbourg Court should deteriorate as a result of the many new Contracting Parties, nothing would prevent the EU from giving a broader interpretation to the corresponding rights in the Charter, cf. Article 53 ECHR.

At the end of July, the Praesidium distributed a new complete draft of the Charter in two editions – one with the bare text and one with explanations to each article. What was to become Article 53 was now called draft Article 51 and differed from the previous text only on two points: first, the reference to the Member States’ constitutions had been moved to the end of the article, as proposed by Vice-Chairman Jansson, and second, the word “undermining” had been substituted with the slightly less dramatic and broader expression “adversely affecting.” 

The explanations to draft Article 51 had changed slightly more since the previous commentary to then draft Article 49. First, the “it goes without saying” explanation about the inclusion of case law from the European Court of Human Rights when referring to the ECHR had been moved up under the commentary to draft Article 50(3) (eventually Article 52(3)). Second, the contingent, parallel reference to case law from the European Court of Justice as regards Union law had been deleted. Third, a new paragraph had been inserted in the end of the commentary, stating that “the level of protection afforded by the Charter may not, in any instance, be lower than that guaranteed by the Convention, with the result that the arrangements for limitations may not fall below the level provided for in the Convention” (emphasis added). It is somewhat strange why this last comment – which survived as “annexed” to Article 53 into the final version of the Charter explanations – was not incorporated under the explanations to then draft Article 50(3), now Article 52(3), which exactly deals with “limitations” instead of Article 53. 

Again, the Council of Europe observers were generally satisfied with the new draft of the horizontal provisions, especially the new paragraph 3 of draft Article 50 (eventually Article 52(3)). The observers described the reference to case law in the explanations as vital, but still maintained that the risk of inconsistencies between the two Courts could best be remedied by accession of the Community to the ECHR.

In a communication issued in September, the Commission, which judging from the record maintained silence in all the open discussions of the horizontal issues, expressed its satisfaction with the draft horizontal provisions. On draft Article 51, the Commission said it fully shared the desire expressed in that provision “to prevent the Charter restricting or adversely affecting human rights and fundamental freedoms as recognised, in their respective fields of application, by the various laws and agreements in force in the Union” (emphasis added). The Commission also emphasized that the Charter would not require, as evidenced by the discussions within the Convention, any amendments to the Member States' constitutions. “As regards the respect for fundamental rights at national level, in its field of application, [the Charter] will clearly not replace national constitutions” (emphasis added). The Commission clearly attached importance to the clause on the “fields of application,” which it had fathered together with the Secretariat.
In late September, the Praesidium distributed a revised, complete draft that had been finalized by a Legal Linguistic Working Party under the Convention. This was the second-to-last draft. In it, the draft “level of protection” provision was kept intact, except for a change in number to draft Article 52. The commentary to what was then draft Article 51(3) (eventually Article 52(3)) included the important draft appendix listing which Articles of the Charter corresponded to the Articles of the ECHR and which Articles had a wider scope. This made it even clearer that draft Article 51(3), not draft Article 52, was the provision that secured the consistency of the Charter with the ECHR, even if the explanations suggested (and still in the final version suggest) otherwise.

As one of the only individual Members of the Convention to submit written amendments at this late hour, Mrs. Ieke van den Burg, Dutch MEP (European Social Democrats Group), repeated her suggestion (see note 49 above) that draft Article 52 should include a reference to the European Social Charter, and that the word “all” in front of Member States, qualifying the international agreements covered by the provision, should be deleted. She stressed the point that this would not mean that Member States not party to the European Social Charter or other international conventions would be bound by such instruments, no more than a Member State via the Charter would be bound by another Member State’s constitution. The reference would simply highlight that individual Member States might have further-reaching international human rights obligations than other Member States. Her proposal, which according to the record was not distributed by the Secretariat until October 17, more than two weeks after the Convention had concluded its work, was not adopted. 

2.6. The Final Text

In the final text of the Charter, distributed on October 11, Article 53 finally became Article 53. As mentioned earlier, the reference to “Union law” was reinserted at this late point. The birth of the Charter had been celebrated a week earlier, after nine months of labor, at a ceremony dissolving the Convention to the tones of Beethoven’s Ninth Symphony. The draft was finalized just in time for the European Council, in Biarritz on October 13-14, 2000, to “welcome” the text. Coinciding with the opening of the final, decisive round of the IGC in Nice, on December 7, 2000, the European Council approved the Charter followed by a “solemn proclamation” by the trinity comprising the Parliament, the Council and the Commission. As the IGC discussions ended, those who had hoped for a binding Charter, integrated in the Treaties somehow, including the Commission and Parliament, were disappointed. (See 1.3. above on the current status of the Charter).

Two post festum declarations, of relevance to Article 53, are worth mentioning. On October 11, the Commission issued another communication on the Charter which once again stressed that the Charter made clear that the Member States would not have to amend their constitutions. In an almost Member-State-deferential tone, the Commission stated that “it might have been feared” that national constitutional amendments would have been necessary, but this had been prevented by “one of the general provisions of the draft” (an implicit reference to Article 53) and by the definition of rights the Charter sets forth. “At the end of the day,” the Commission went on, “it is clear that the Charter will not replace national Constitutions in the area within [their] scope – respect for fundamental rights at national level. And it is clear that the relationship between Union primary law, which would include the Charter if it is incorporated in the Treaties, and national law will remain unchanged.” The choice of words is again a clear indication of the fears for the sanctity of EU law supremacy, which the Commission harbored but addressed only in closed drafting sessions.

The Council of Europe observers also submitted comments on the final text. They found that Article 52(3) in conjunction with Article 53 ensured “an identity of scope and meaning between the rights contained in the two instruments [Charter and ECHR], without preventing Union law from affording wider protection than that provided by the ECHR.” The recognition of the ECHR as a minimum standard “is entirely compatible with the ECHR, Article 53 of which indicates that the ECHR is not intended to impose a uniform level of protection […], but solely to ensure a minimum standard.”

2.7. Characteristics of the Drafting History

The drafting history of Article 53 was initially characterized by a somewhat fumbling approach. The original draft, being focused exclusively on the relationship between the Charter and the ECHR, was gradually, almost organically, transformed into an entirely different creature, bearing close resemblance to Article 53 ECHR, but with marked differences and many interpretive questions left to ponder.

The political aim of the provision, however, was never really contested, if perhaps never clearly articulated in the wording or the title of the provision. There seems to have been near-consensus throughout the process on the need to ensure that the Charter should not necessitate constitutional amendments in the Member States, and that Article 53 should guarantee that for the world to see. Not only the Member States, but also the European Parliament (see e.g. resolution of March 16) and, at least ex post facto, the Commission (see especially the last Commission communication) shared this view. The consensus is easy to explain from a political perspective. It is perhaps more difficult to understand from a legal point of view why Member States and others feared that the Charter by itself could necessitate constitutional changes. But the political and symbolic value, indeed necessity, of the horizontal provisions is indisputable.

The difficult and rather contentious issue of the relationship between the Charter and the ECHR was gradually relocated to other provisions in the horizontal chapter, especially Article 52(3). This provision and Article 51 (confirming that no new Community powers are created by the Charter and that the Charter is only directed to Member States when they are implementing Union law) were crucial for the adoption of the Charter. 

The Council of Europe observers played an extremely important role in the horizontal discussions, also with respect to Article 53. Apart from their early draft proposal, submitted to the Praesidium, they also shed light on the true nature of an Article 53-like provision by frequently referring to the equivalent provision in the ECHR. The rather heated debate as to what extent the Charter should refer to the case law of the European Court of Human Rights was also influenced by the Council of Europe observers, who gave weighty support to the “friends of the Strasbourg Court” among the Member States. The important role of the Council of Europe observers, even if they were not actual Members of the Convention, is not surprising, given their natural authority and expertise in the field of European human rights instruments.

It is more surprising that the concerns of the compatibility with the cornerstones of the Community legal order, including the doctrine of supremacy, were not voiced by institutional actors in the open. The issue was raised only by a handful of individual Members, either in meetings at the very early stages and in a few among thousand later, written amendments, which were not highlighted by the Secretariat (see note 46 above). Observers from the European Court of Justice refrained from taking active part in the Convention out of fear that they might prejudice later interpretation and application of the Charter. More remarkable was the silence of the Commission, the Guardian of the Treaties. The Commission did effectively assert its interests, but through behind-the-scenes amendments, such as the inclusion of the “in their respective fields of application” proviso. The reticence of the Commission seems to have been motivated by a wish to let sleeping dogs lie. 

Even if the Charter process was extraordinarily open, the drafting history of individual provisions and the purpose of the incremental changes from draft to draft are far from transparent. In some ways, tracking provisions of human rights conventions drawn up at diplomatic conferences under the auspices of the United Nations is easier. The uniquely pluralistic and diverse process for the drafting of the Charter has much to be said for it, in terms of popular participation and legitimacy, especially as compared to the traditionally secretive treaty-making process of the EU. But such a process may also enhance and disguise the power of the draftsmen who lurk behind the piles of drafts and amendments, and may thus paradoxically produce less, rather than more, accountability. The process is probably not better suited than traditional diplomacy to bring about legal certainty of the end-result – especially when the work takes place under the kind of time pressure the Convention was subject to. Add to this the singularly complex legal and political questions involved in reconciling at least three distinct, yet intertwined, systems of human rights protection (at the national, regional and supranational levels), and it should be no surprise that legal scholars will be intellectually well-fed for years to come with the Charter as it stands.

2.8. Legal Significance of the Drafting History

As with all international instruments, the legal significance of the Charter drafting history is debatable. Given the fact that interpretation of the Charter, should it become binding EU law, would ultimately rest with the European Court of Justice, the relevance of the drafting history has to be viewed in the context of EU law, rather than ordinary public international law.

Traditionally, travaux préparatoires have played a very limited role in the case law of the European Court of Justice. Arguments, mostly by Member States, based on explanatory reports or minutes from drafting meetings have usually failed – and with good reason, given the secrecy surrounding the negotiations and the fact that the preparatory works are seldom publicly available. A distinction, however, must be drawn between primary rules (the Treaties) and secondary legislation (regulations and directives). The Treaty drafts, amendments and minutes of the intergovernmental discussions are generally not publicly available, whereas initial drafts of secondary legislation are published. There have been cases where the Court has referred to “soft law” preparatory sources to secondary legislation such as joint declarations and even minutes of meetings between institutions, but it is still exceptional. Access to documents has improved in recent years and has of late become a fundamental right enshrined in the EC Treaty (Article 255) as well as the Charter (Article 42). However, most legislative deliberations, e.g. Council meetings and conciliation committee meetings between the Parliament and the Council, still take place behind closed doors. With the advent of the Amsterdam Treaty, the Council, when it acts in a legislative capacity, must now make public the results of the votes and explanations of vote as well as statements in the minutes (see Article 207(3) TEC). This development towards more openness might lead to a less restrictive approach to such supplementary sources by the Court.

Special considerations with respect to the Charter might favor a more open approach to its travaux préparatoires. The question depends to some degree on how and to what extent the Charter is made binding. Should the IGC in 2004, contrary to what is expected, reopen the Charter to incorporate some, but not all, provisions and perhaps even revise certain provisions, the work of the Convention would probably be given limited weight by the Court. If, however, the entire Charter, as is, is incorporated into EU law by reference in the Treaties or as secondary legislation, it seems more likely that the Court would be willing to look at the legislative record. Especially given the accessibility to most of the documents. The special and novel “democratic” nature of the drafting process could also, in itself, be an argument in favor of admitting evidence on the preparatory work. However, as explained in 2.6. above, the Charter Convention type of drafting process may be a double-edged sword in terms of accountability.

Even if the Court would be willing to examine the drafting history to clarify the meaning and purpose of individual provisions, reference to the legislative record will probably only rarely be helpful. The previous discussion of several points relating to Article 53 suggests that the record will often be either silent or confusing. The helpfulness of the travaux préparatoires will vary from case to case depending on several factors, such as the factual context, the degree of doubt emanating from the provision in question and the generality or specificity of the evidence sought. Time is probably also a factor, in the sense that cases to be decided many years from now are less likely to depend on old drafting documents. 

A related question is what significance the Court would give to the explanations of individual Charter provisions prepared by the Secretariat of the Convention. The explanations are preceded by a disclaimer according to which they have “no legal value and are simply intended to clarify the provisions of the Charter.” The fact is, however, that the explanations were crucial for many Members of the Convention, perhaps most importantly in relation to the list of corresponding and non-corresponding rights and the reference to case law of the European Court of Human Rights. An argument could therefore be made that the explanations should have special significance as travaux préparatoires. The disclaimer is quite unequivocal, though, but if the Court would be willing to look at other non-binding preparatory acts and minutes from the Convention, the explanations should certainly also be included in this group.

It has been suggested that unfortunate, negative conclusions will likely be drawn from the huge legislative record and the endless number of amendments that were not adopted. There is some precedent for such inferences from negative legislative history, most notably the Comitology case, but the cases have been rare – not least, it seems, because of the secret status of legislative history in the EU until recent times. The issue will be discussed further in 4.3. below.

3. Comparison to Similar Provisions in Other Human Rights Instruments

3.1. Earlier Draft European Parliament Instruments

The European Parliament was one of the first and most ardent supporters of an EU catalogue of human rights and of accession by the Community to the ECHR. This policy dates back to the 1977 Joint Declaration on Human Rights of the Parliament, Council and Commission, based on an initiative from the Parliament, which was followed up by the Parliament’s Draft Treaty on a European Union from 1984 (the Spinelli Report), which included a provision similar to what is now Article 6 TEU. 

In April 1989, the European Parliament adopted the first tentative Community catalogue of human rights (based on the De Gucht Report), which was an important source of inspiration for the Charter Convention. The European Parliament's Declaration of Fundamental Rights and Freedoms of 12 April 1989 included a provision similar to Article 53, called Article 27, “Degree of Protection,” which provided that:

“No provision in this Declaration shall be interpreted as restricting the protection afforded by Community law, the law of the Member States, international law and international conventions and accords on fundamental rights and freedoms or as standing in the way of its development.”

The similarity with Article 53 of the Charter, both in wording and title, is striking. Like Article 53, the grammatical subject of the provision is limited to the instrument itself (“No provision in this Declaration”), and not to a wider concept such as the Treaties or Community law in general. There are, however, important differences. Article 27 refers to “the law” of Member States in general, not only the “constitutions,” and the provision is time-neutral in the sense that future developments are accounted for, whereas Article 53, at least on a strict reading, refers only to higher levels of protection existing at the time of the adoption of the Charter. Furthermore, Article 27, unlike Article 53, is not limited to conventions to which “all” the Member States are party, and it does not include an “in their respective fields of application” proviso.

In 1994, a committee of the European Parliament adopted a draft constitution for the European Union (the Herman Report). In Title VII, the draft incorporated a revised version of the 1989 catalogue of human rights. Point 24 of this Title, “Degree of Protection,” is based on Article 27 and reads as follows:

“No provision in this Constitution may be interpreted as restricting the protection afforded by the law of the Union, the law of the Member States, and international law.”

The brevity of this provision is admirable, considering that it does not legally exclude anything significant from its model in Article 27 of the Declaration. One difference, however, is important to note. By using the expression, “No provision in this Constitution,” the clause suggests that all other provisions in the draft constitution, including stipulations on the powers of the Community regulator and adjudicator, would be subordinate to, inter alia, all rights provisions in the law of the Member States. 

Such a challenge to the supremacy of EU law was not intended; on the contrary, the draft constitution Article 1(6) explicitly stipulated that “The law of the Union takes precedence over the law of Member States.” Yet on a purely textual analysis, employing general rules of interpretation (lex specialis), it would be hard to refute that point 24 of Title VII posed a challenge to the doctrine of supremacy. Article 7 of the draft constitution, which provided that “The Union shall respect fundamental rights as guaranteed by the [ECHR], by the other applicable international instruments and as they derive from the constitutional principles shared by the Member States” (emphasis added), could soften this interpretation somewhat, by its explicit reference to “the constitutional principles shared by the Member States,” but had the draft constitution been adopted, the supremacy problem would no doubt have been real. With respect to Article 7 of the draft, it is noteworthy that, like Article 52(3) of the Charter and Article 6(2) TEU, it ensures that the ECHR should serves as a minimum level of protection.

3.2. The European Convention on Human Rights

3.2.1. Text of Article 53 ECHR
Since 1974 all Members of the European Union have been Contracting Parties to the ECHR of 1950 under the auspices of the Council of Europe. The ECHR and the case law from the European Court of Human Rights have served as important points of reference, both in the case law of the ECJ and for the Convention drawing up the EU Charter of Fundamental Rights. The model on which the drafters based Article 53 of the Charter is found in Article 53 (ex Article 60) of the ECHR, probably the first international human rights provision of its kind and likely also a source of inspiration for later international instruments (see below). Article 53, entitled “Safeguard for existing human rights,” provides that:

“Nothing in this Convention shall be construed as limiting or derogating from any of the human rights and fundamental freedoms which may be ensured under the laws of any High Contracting Party or under any other agreement to which it is a Party.”

Like Article 27 of the European Parliament Declaration of Human Rights, Article 53 ECHR differs from Article 53 of the Charter by being time-neutral (“may be ensured”), by referring to domestic law in general (not only constitutions), and by taking into account other conventions to which “any” (not “all”) of the Contracting Parties is party. Another difference that distinguishes the text from both Article 53 of the Charter and Article 27 of the Declaration is that there is no reference to international law in general, only international agreements. From the travaux préparatoires to the ECHR it appears that the Article was adopted on a British draft based on an Italian suggestion without any debate in the drafting committee of legal experts.

The European Social Charter from 1961, a Council of Europe treaty not under the jurisdiction of the European Court of Human Rights, contains a similar provision in its Article 32. The title of the provision, “Relations between the Charter and domestic law or international agreements,” is overly broad compared to the content. In line with Article 53 ECHR the Article simply provides that: “The provisions of this Charter shall not prejudice the provisions of domestic law or of any bilateral or multilateral treaties, conventions or agreements which are already in force, or may come into force, under which more favourable treatment would be accorded to the persons protected.” Although the wording differs (and is reminiscent of the “Most Favored Nation” language of international trade law) the legal effect and content seem to be the same as Article 53 ECHR.

3.2.2. Case-law
There is relatively little case law about Article 53 ECHR from the European Court of Human Rights or the now-extinct European Commission of Human Rights. The few existing cases do not seem to have been the subject of any systematic analysis by scholars (see 3.2.3. below). The limited case law indicates that there is some confusion about the true meaning and purpose of Article 53 and that the European Court of Human Rights is reluctant to refer to it.

On one issue the case law is very clear: individual applicants cannot invoke Article 53 to support a claim that their rights under national law or other treaties, e.g. the UN Covenants, have been violated. Such applications will be dismissed as incompatible ratione materiae with the ECHR, cf. Article 35(3) ECHR. The European Commission of Human Rights has stated very plainly that Strasbourg “n'est pas compétente pour examiner des requêtes relatives à des prétendues violations d'autres instruments internationaux ou du droit interne. L'article [53] de la Convention ne confère aucunement aux organes de celle-ci pareille compétence.”

This does not mean, however, that the European Court of Human Rights disregards other human rights instruments; it simply means that a claim has to be based on a provision of the ECHR to be entertained by the Court, and that the Court cannot apply national law or other treaties. There are numerous examples of cases where the Court has referred to domestic law of Contracting Parties (as evidence of evolving European standards) and to other international instruments, e.g. the UN Covenants and Convention on the Rights of the Child (CRC), as inspiration and support for a certain interpretation of the ECHR, often to the benefit of the individual applicant. But the Court has never found it warranted, much less necessary, to refer to Article 53 as part of such dynamic interpretations of the ECHR. There are also a few examples of reasoning a contrario based on comparisons with other instruments, most strikingly in the first German Berufsverbot cases in which the Court found that the ECHR did not protect a right of equal access to public service and cited not only the ECHR travaux préparatoires but also the Universal Declaration of Human Rights and the ICCPR, which do protect such a right.

If Contracting Parties invoke Article 53 to defend themselves against an arguable claim that they have violated the ECHR, the legal situation is a little more ambiguous. Generally, Contracting Parties have not been successful in such efforts; the Court has never explicitly referred to Article 53 as a basis for finding no violation. There have been three recent cases where the respondent government before the Court invoked Article 53.

Probably the most illustrative of these cases is the Open Door case against Ireland, on information about abortion, from 1992. The Irish government invoked Article 53 to argue that Article 10 ECHR on freedom of expression should not be interpreted to limit the right to unborn life, which had recently been endorsed by a constitutional referendum. 

The Court rejected this argument in a somewhat cryptic manner, sidestepping any general interpretation of Article 53. The Court said that it did not call “into question under the Convention the regime of protection of unborn life” under Irish law, and recalled that “the [contested] injunction did not prevent Irish women from having abortions abroad and that the information it sought to restrain was available from other sources […] Accordingly, it is not the interpretation of Article 10 but the position in Ireland as regards the implementation of the law that makes possible the continuance of the current level of abortions obtained by Irish women abroad.” One is left to ponder whether, had the Irish government effectively blocked all incoming information about abortion abroad and prevented pregnant women from leaving the country, the European Court of Human Rights would have sustained the injunction on the basis of Article 53. My contention is: clearly not. But the Court probably refrained from saying so because it was not strictly necessary and such a statement could have made its finding of a violation of Article 10 ECHR even more controversial.

The Court was split fifteen votes to eight. Quite remarkably, almost all the dissenting judges gave some weight to the Irish government’s Article 53 argument. A dissenting opinion by four judges, including Judge Pettiti, author of the leading French commentary to the ECHR, found that the Court had “failed to take sufficient account of the reference to "the rights of others" in Article 10 [ECHR] and of Article [53] in relation to the provisions in the Irish legislation which afford a broader protection of rights than the Convention.” Another dissenting opinion by Judge de Meyer (see 2.3.3. below on his earlier writings on Article 53) stated that it was essentially the Irish right to life, rather than morals, that was at stake and that the case accordingly raised “serious problems from the point of view of Articles 2, 17 and [53].” Ad hoc Judge Blayney from Ireland devoted most of his dissenting opinion to Article 53, saying that the Court was “precluded” by this provision from finding that there had been a breach of Article 10. “The right of the unborn to be born,” he stated, “is clearly a human right and it is guaranteed” by the Irish Constitution. And, according to Judge Blayney, “Under Article [53] nothing in the [ECHR] is to be construed as limiting or derogating from that right.” He dismissed the arguments of the majority as irrelevant. “The sole issue is whether a finding that the injunction constitutes a breach of Article 10 amounts to interpreting that Article as derogating from the human rights of the unborn as guaranteed by the Constitution, and in my opinion it does.” 

In the Jersild case against Denmark from 1994, concerning a TV journalist who had been fined for broadcasting highly racist remarks made to him during an interview with members of a group that claimed to be a Danish branch of the Ku Klux Klan, a similar question arose. This time the allegedly colliding human rights norm was based on a UN convention, the International Convention on the Elimination of All Forms of Racial Discrimination (CERD) from 1965. The Danish government conceded that Article 10 ECHR on freedom of expression was applicable, but argued that Article 10 should not be interpreted in such a way as to limit, derogate from or destroy the right to protection against racial discrimination under CERD. The Danish Government invoked Article 53 in this connection, but it does not appear from the Court’s summary in the judgment, and not even the dissenting opinions mention this provision.
 
The Court took a close look at the relevant provision of CERD, Article 4, and observed that its "due regard" clause, intended to somewhat soften the obligation to criminalize all racist speech, had given rise to differing interpretations. The UN control body, the CERD Committee, had been divided in its (non-binding) comments on the conviction of the journalist. The Court said that it was particularly conscious of the vital importance of combating racial discrimination, and that, consequently, “the object and purpose pursued by [CERD] were of great weight in determining whether the applicant's conviction was "necessary" within the meaning of Article 10(2) [ECHR].” The Court concluded that: “Denmark's obligations under Article 10 [ECHR] must be interpreted, to the extent possible, so as to be reconcilable with its obligations under [CERD]. In this respect it is not for the Court to interpret the "due regard" clause in Article 4 [CERD], which is open to various constructions. The Court is, however, of the opinion that its interpretation of Article 10 [ECHR] in the present case is compatible with Denmark's obligations under [CERD].” The Court found that the conviction of the journalist had violated Article 10 ECHR.

In one dissenting opinion by four Judges, including then-President of the Court, Rolf Ryssdal, it was said that CERD “probably” did not require the punishment of the journalist, but that CERD supported their conclusion. In a dissenting opinion by three other Judges, it was said that CERD “manifestly cannot be ignored when the [ECHR] is being implemented [...] It must […] guide the European Court of Human Rights in its decisions.” Neither of the opinions referred to Article 53.

The third recent case in which Article 53 was invoked by the respondent government, is the Gustafsson case against Sweden from 1996, which concerned labor union blockades of a small restaurant whose owner refused to sign collective labor agreements. The case raised the intricate issues of conflict between positive and negative aspects of freedom of association and the extent to which Contracting Parties are under positive obligations to protect individuals against action by other private individuals. The government argued, inter alia, that Article 53 entitled Sweden to protect the labor unions’ positive freedom of association and assembly as fundamental rights under Swedish law.

Somewhat reluctantly, the majority of the Court agreed that Article 11 ECHR on freedom of association was applicable to the facts. However, the Court gave a wide “margin of appreciation” to Sweden, referring, inter alia, to the special Swedish model of collective bargaining on the labor market (which works in lieu of legislation). The Court did not address the issue of Article 53, but said that it saw “no reason to doubt that the union action pursued legitimate interests consistent with Article 11 [ECHR].” The Court further recalled that “the legitimate character of collective bargaining is recognised by a number of international instruments, in particular […] the European Social Charter, […] the [ICESCR] and [two ILO] Conventions.” The Court concluded that Sweden had not violated the ECHR.

A dissenting opinion by Judge Martens, joined by one of the longest-serving judges of the Court, Judge Matscher (author of many books on the ECHR) contains an illuminating, but debatable, argument against the application of Article 53. Judge Martens rejected the Swedish government’s argument that the immunity of the blockading trade unions was a fundamental right under Swedish law, and as such should be respected by the Court under, what Judge Martens characterized as, “the interpretative rule of Article [53].” “The immunity from suit which trade unions enjoy under Swedish law,” Judge Martens declared, “does not come within the category of the "human rights and fundamental freedoms" referred to in Article [53]. The essential flaw of that immunity is that it is incompatible both with the rule of law and with a proper protection of the individual's negative rights under Article 11. Having created a right that is thus essentially flawed, Sweden should not be allowed to pass it off as a human right or fundamental freedom.” (See comments in 4.4. below at note 163).

The three cases discussed above show that governments have tried to use Article 53 when conflicting human rights values and norms, either of national or international origin, collide with applicable provisions of the ECHR, and that the Court has confirmed its willingness to give these conflicting interests serious consideration, even to the extent of exonerating the government (Gustafsson). But there is no indication that Article 53 plays any role in this connection.

In the early ground-breaking case, Golder, from 1975, the Court read the right of access to a court into the fair trial guarantee of Article 6 ECHR, which does not provide any textual support for (or against) such a right. The Court did so by emphasizing the rule-of-law object and purpose of the ECHR, and rejecting the idea that a law-making treaty such as the ECHR should be interpreted in dubio mitius. In a separate opinion, Judge Verdross invoked to Article 53 as an interpretative principle limiting the teleological and dynamic approach of the majority: “The Convention makes a clear distinction between the rights and freedoms it secures itself (Article 1) and those which have their basis in the internal law of the Contracting States (Article [53]). [It] results, in my view, from Article 1 that among such [defined] rights and freedoms can only be numbered those which the Convention states in express terms or which are included in one or other of them." And Judge Verdross added that “Considerations of legal certainty too make this conclusion mandatory: the States [… ] ought to be sure that [defined] bounds will be strictly observed.” 

As is evident from the case law of the European Court of Human Rights, the Court has not viewed Article 53 as placing any constraints on its dynamic and teleological style of interpretation. Since then, the Court has on several occasions discovered or stipulated inherent rights. The source of the rights, as well as the limiting principle, is mainly the gradual evolution of common European standards.

There are a few other cases which shed some light on the meaning of Article 53. In the Ekbatani and Burghartz cases, the Court referred to Article 53 to make clear that additional rights in the 7th protocol (Article 2 on the right to appeal in criminal cases and Article 5 on the equality of spouses, respectively) could not be interpreted as prejudicing the rights already guaranteed by original provisions in the ECHR (Article 6 on the right to a fair trial and Article 8 on the right to family life, respectively). The point is of fairly limited application and simply implies that Article 53 may have an internal, interpretative effect with respect to rights instruments under the jurisdiction of the European Court of Human Rights.

In the Handyside case against the UK from 1976, concerning pornography and freedom of expression, another aspect of Article 53 surfaced. The applicant argued that the measures taken against him and his books could not have been “necessary in a democratic society” under Article 10(2), given the fact that the authorities had taken no action against the materials in other parts of the UK. Cleverly, the Court replied that Article 53 showed that the ECHR, “never puts the […] the Contracting States under an obligation to limit the rights and freedoms [that the ECHR] guarantees. [ …] The competent authorities in [other parts of the UK] may, in the light of local conditions, have had plausible reasons for not taking action against the book and its publisher. Their failure to act – into which the Court does not have to enquire […] – does not prove that the judgment [against the applicant] was not a response to a real necessity, bearing in mind the national authorities' margin of appreciation.” This combination of margin-of-appreciation arguments with Article 53 has not been seen since; the reasoning of the Court does not seem particularly compelling, at least in general, given the ideals of non-discrimination underlying the Convention and the rule of law.

In a few other judgments, Article 53 has been referred to in dissenting and concurring opinions of slight, if any, persuasiveness or illumination on the topic.

3.2.3. Theory
Article 15 ECHR regarding derogation in time of war and other public emergency contains what some scholars see as a special expression of the general principle of Article 53 ECHR. Article 15(1) provides, inter alia, that the Contracting Parties may rely on the derogation clause only if the emergency measures taken “are not inconsistent with its other obligations under international law.” This has been interpreted to mean that the European Court of Human Rights must satisfy itself that the emergency measures in question, even if they comply with the ECHR, do not plausibly violate other treaty obligations of the Contracting Party before the Court. But the Court has expressly stated that it cannot authoritatively resolve disputes about obligations of Contracting Parties under treaties other than the ECHR. In my opinion, the case law on Article 15(1) does not inform the interpretation of Article 53 ECHR. Article 53 is a negative statement that the ECHR does not purport to modify other obligations of the Contracting Parties, whereas Article 15(1) is a positive, direct statement that the Contracting Parties should also observe other obligations when they derogate from the ECHR in the special circumstances covered by Article 15.

The few scholars who have addressed Article 53 specifically generally agree that, in terms of positive law, the provision expresses a simple principle – namely, that the rights contained in the ECHR are minimum standards, and that in case of a conflict between a right in the ECHR with a national or international rule regarding the same right, the individual is entitled to protection under the most favorable provision. No one claims that Article 53 allows the Court to apply or enforce a more favorable provision found outside the scope of the ECHR, or that that Article 53 addresses a conflict between different human rights, e.g. the right to freedom of expression in another instrument and the right to a private life under the ECHR.

In his short article on Article 53, Judge Jan de Meyer (who later referred to Article 53 in his dissent in the Open Door case) seems to wish for more. While he admits that Article 53 and its cousins in other conventions do not incorporate new rights or higher protection under their respective systems of protection, he finds that the underlying idea of such provisions is that it is impossible to define exhaustively all the rights of man. In a stream of natural law theory, de Meyer goes on to say that the human rights conventions “ne créent pas ces droits, qui sont inhérents à la nature humaine. Ils ne peuvent que les reconnaitre et tenter, tant bien que mal, de les définir. Ils ne peuvent que constituer l’expression plus ou moins réussie de principes généraux qui transcendent le droit positif et qui s’imposent même à défaut de tout texte de ce genre.” De Meyer concludes, with reference to some of the cases mentioned above at note 84 concerning new inherent or broadened rights, and with reference to the human rights doctrine of the European Court of Justice, that the “laws” and “conventions,” to which Article 53 refers, may legitimately serve as sources of general principles of law for the Court. De Meyer’s understanding of human rights instruments in general, and the aim of Article 53 in particular, resembles some of the Ninth amendment theories under the United States Bill of Rights (see 3.4. below) although de Meyer does not mention the American Constitution.

Professor Emmanuel Decaux draws a distinction between the reference to domestic law and the reference to other international agreements of Article 53. As to the reference to domestic law, Decaux briefly considers various possibilities and concludes that Article 53 has no practical significance. The provision simply states the obvious, namely that the enumeration of rights in the ECHR can never by itself justify, through a reasoning a contrario, the restriction of wider-ranging rights protected by other legal rules. Article 53 is in effect, he implies, “un vide juridique.” As to the reference to other international agreements, Decaux observes that Article 53 expresses a special version of the interpretative principle regarding successive treaties (see Article 30 of the Vienna Convention of the Law of Treaties). The national judge in a legal system where both the ECHR and other human rights treaties are applicable will find (fairly evident) guidance in Article 53 as to which of two different standards on the same subject matter to apply. For the international judge, in casu, the European Court of Human Rights, it follows from the Convention system that he or she can apply only the ECHR. There is no incorporation by way of Article 53, even if the Court may find inspiration in other instruments. 

3.2.4. Conclusion on Article 53 ECHR
The case law and theory show that the somewhat mysterious Article 53 ECHR has spawned quite a number of imaginative interpretations from individual applicants, from Contracting Parties, and from dissenting Judges. Apart from the Handyside case and the Ekbatani and Burghartz cases, however, the Court has never expressly relied on Article 53, and it has never given any consolidated indication of how the Article may be used outside the rather special and limited circumstances of these three cases. The possible negative conclusions that may be drawn on the basis of all the “failed” theories will be discussed further in relation to the possible legal implications of Article 53 of the Charter in the EU context (see chapter 4 below).

3.3. International Conventions on Human Rights

All the Members of the EU are States Parties to the major international human rights conventions under the auspices of the United Nations. These instruments have some relevance in the jurisprudence of the European Court of Justice. The cornerstones in this set of conventions are the International Covenant on Economic, Social and Cultural Rights (ICESCR) and the International Covenant on Civil and Political Rights (ICCPR), both from 1966. The equivalent of Article 53 of the Charter in these two conventions is Article 5(2) of both instruments. It reads:

“There shall be no restriction upon or derogation from any of the fundamental human rights recognized or existing in any State Party to the present Covenant pursuant to law, conventions, regulations or custom on the pretext that the present Covenant does not recognize such rights or that it recognizes them to a lesser extent.”

The wording of this provision is rather different from both Article 53 of the Charter and Article 53 of the ECHR. Most notably, the language is more overtly political by describing any attempts to use the Covenants to restrict other rights as an abuse or absence of good faith (note the word “pretext”). This gives the provision a more moral and less legal tenor. Note also that there is no use of the words “be interpreted” or “be construed,” which makes the language more direct. 

The marked difference of style, however, does not entail any difference in legal meaning. Article 5(2) has been interpreted by commentators in much the same way as Article 53 ECHR. Article 5(2) is described by scholars as an interpretative principle meant to prevent national courts from relying on the restrictions of the Covenant when applying broader rights of a different origin. Likewise, Article 5(2) does not imply incorporation of national rights or rights recognized under other conventions. Furthermore, an obvious, but relevant, point has been made that Article 5(2) does not in itself prevent a State Party from adjusting more protective national rules or withdrawing from international conventions affording a higher level of protection. The comments to the ICESCR also cover the ICCPR. 

In Kindler v. Canada from 1993, a non-binding decision by the UN Human Rights Committee (HRC) on an individual complaint (communication) under the ICCPR, Article 5(2) was invoked in a highly creative manner by a dissenting Member of the Committee. The facts of the case were similar to the ECHR case, Soering v. UK, concerning extradition to the United States of a person who would be charged with a capital offence, from a country that had abolished the death penalty. A majority of the 18 member expert committee found that Canada would not violate the ICCPR by extraditing Mr. Kindler to the United States. Mr. Lallah of the Committee, former Chief Justice of Mauritius and until recently the UN Special Rapporteur for Burma (Myanmar), joined by one other Member, submitted a detailed dissenting opinion. He argued that “Article 5(2) would, even if Article 6 [on the right to life] was given a minimal interpretation, have prevented Canada [where life is protected more extensively than in the United States] from invoking that minimal interpretation to restrict or give lesser protection to that right by an executive act of extradition though, in principle, permissible under Canadian extradition law.” Notwithstanding the good intentions, this appears to be an unacceptable boot-strap approach to Article 5(2). The level of protection afforded to life by Canadian law, even if Canada itself did not impose the death penalty on criminals, did not exclude extradition to the United States. Under international law, Canadian courts have the final say on what level of protection domestic law provides, and their judgments should be treated as established facts by international adjudicators. Only if that level falls below the level of protection afforded by the applicable convention provisions regarding the right in question, as interpreted by the international adjudicators, could the international body legitimately find a violation of the convention.

The more recent and specialized UN human rights conventions also contain provisions similar to Article 53. Article 23 of the UN Convention on the Elimination of All Forms of Discrimination Against Women (CEDAW) from 1979 provides that nothing in the convention shall “affect any provisions that are more conducive to the achievement of equality between men and women which may be contained in the legislation of a State Party, or in any other international convention, treaty or agreement in force for that State.” The structure is closer to Article 53 ECHR than to the two Covenants, but the language is more ambiguous. The UN Convention on the Rights of the Child (CRC) from 1989 contains an almost identical provision in Article 41, providing that nothing in the convention “shall affect any provisions which are more conducive to the realization of the rights of the child and which may be contained in the law of a State party or international law in force for that State.” A similar provision in the UN Convention against Torture (CAT) from 1984, Article 1(2), has a more limited scope and is simpler: “This article [which defines torture] is without prejudice to any international instrument or national legislation which does or may contain provisions of wider application.” Yet more examples of Article 53-like provisions from international and regional human rights instruments could be cited.

Against this background, it seems justified to conclude that the meaning expressed by all these provisions in international and regional human rights instruments has attained the status of a general principle of public international law in the field of human rights. This finding is all the less daring given the obviously limited legal significance of the interpretative principle contained in such provisions, which is hardly distinguishable from the general principle that treaties should be interpreted in good faith (see Article 31(1) of the Vienna Convention on the Law of Treaties).

3.4. The United States Bill of Rights

Given the political context of the Charter, including the accelerated debate on a constitutionalization and federalization of the EU, it seems worthwhile to take a glance at the United States – the federal state which serves as the eternal bogey or template, depending on the viewpoint, in the debate about a future federal Europe. The Ninth Amendment to the American Constitution, which forms part of the United States Bill of Rights from 1789, contains a provision similar to Article 53. It reads as follows:

“The enumeration in the Constitution, of certain rights, shall not be construed to deny or disparage others retained by the people.”

This sentence is known today as one of the most obscure and controversial provisions in the Bill of Rights. It has been given all kinds of names, such as “an opiate,” “an inkblot,” “a mystery,” “an old constitutional jester,” “a fountain of law” and a “Cinderella on the verge of taking center stage.” The drafting history is relatively straightforward. Before and right after the adoption of the Constitution in 1787, the Anti-Federalists demanded that the Constitution be accompanied by a Bill of Rights which would restrain the powers of the Federal Government. The Federalists first argued against this idea, saying that it would be impossible – and legally dangerous – to try to enumerate all rights of man. It could lead people, and eventually judges, to believe that “natural rights” which were not placed in the list had been forfeited. Madison, the drafter of the Bill of Rights, saw some truth in this objection and, in what became the Ninth Amendment, attempted to solve the problem.

As an aside, it might seem ironic that in today’s Europe it is the “Anti-Federalists” (e.g. the UK) who are reluctant to accept a binding “Bill of Rights” formalizing human rights constraints on the EU “Government,” whereas the “Federalists” (e.g. Germany) strongly favor such an instrument. Perhaps it is not as ironic as it first seems when compared to the American experience. The European process of constitutionalization has evolved – and evolves – in a different, sometimes opposite, way compared to the American process. For one, the United States was founded on a strong Constitution, shortly thereafter consolidated with a Bill of Rights. The Bill of Rights arguably came to real life only after the Civil War and the advent of judicial activism. European judicial activism, including the gradual development of an EU human rights jurisprudence, has, by contrast, been a major driving force in the informal European constitutionalization almost from the beginning. European political activism and attempts at formal constitutionalization have been much slower and only gained some momentum in the late 1980s. It is against this background of almost reverse constitutionalization that the European “Anti-Federalists” regard the Charter as the sweetener for a bitter and dangerous pill of a federal Europe with a formal constitution. The “Federalists” see the Charter as a way to increase citizens’ confidence in Union institutions and to install a new sense of purpose among the peoples of Europe. 

The Ninth Amendment lived an extremely quiet life for its first 150 years. There were some suggestions in the early case law that the Ninth and the Tenth Amendment were merely affirmations of the enumerated limitations on federal powers listed in Article I of the Constitution. In the 1950s the Ninth amendment was roused from its slumber by a book called “The Forgotten Ninth Amendment,” and gained its current fame with the Griswold case from 1965. In Griswold, the Supreme Court struck down a state law banning the sale and use of contraceptives by invoking a new right of privacy, which the majority based on a less-than-crystal-clear concept of “penumbras, formed by emanations” from a string of Amendments, including the Ninth. A concurring opinion by Justice Goldberg focused on the Ninth Amendment and suggested that it could support the protection of unenumerated rights, among them the right to privacy. Not surprisingly, the Ninth Amendment was invoked in thousands of cases after Griswold, though to little avail. The Court has preferred to use the due process clauses of the Fifth and Fourteenth Amendment to give life to rights not explicitly specified in the Bill of Rights, such as the right to procreate and travel. Certain aspects of the right to privacy (abortion rights) have been reaffirmed by some Justices with reference to, inter alia, the Ninth Amendment. The general attitude, however, is still either silence or rejection when the Ninth Amendment is invoked.

From a positive law perspective, what is then left of the Ninth Amendment? The leading constitutional scholar Laurence Tribe finds that the Ninth Amendment simply serves as a rule against cramped construction of rights and prohibits certain forms of arguments by negative implication. He rejects the notion of “Ninth Amendment Rights” as a common error, but stresses that the Ninth Amendment is, nonetheless, a vital rule “without which the Bill of Rights might have been more threatening than reassuring […] and without which, therefore, the 1787 Constitution might not have lasted.” A parallel might be drawn, if perhaps in less dramatic terms, to the political importance of Article 53 of the Charter as evidenced by the drafting history (see 2.6. above). Like the Ninth Amendment, Article 53 was clearly meant to calm fears about any diminishment of rights “retained by the people.” 

Professor Tribe’s view of the Ninth Amendment as an interpretative rule supporting a wide, dynamic approach to human rights ties into some of the theories about Article 53 ECHR, as expressed in opinions by individual Judges of the European Court of Human Rights. It should be noted, however, that the European Court of Human Rights as such has never found it necessary or helpful to refer to Article 53 as the basis for such a style of interpretation. Another difference to note is the fact that the Ninth Amendment does not seem to have been discussed as a tool with which to solve cases of two colliding rights, e.g. the right to privacy, including abortion, under the federal constitution, and a right to life, including the unborn life, under a state constitution (compare the Open Door case). The reason is no doubt that the supremacy of federal law is unambiguously prescribed in the Constitution (cf. Article VI, Clause 2) and is not contested by any state courts or legislatures. The Supreme Court does draw some inspiration from evolving human rights standards among the several states when interpreting the federal constitution, most notably in cases regarding execution of the insane and mentally retarded and the Eighth Amendment prohibition of cruel and unusual punishment. This practice is not, however, based on the Ninth Amendment.

Notwithstanding the historical importance of the Ninth Amendment, it seems difficult to argue, based on the current case law of the Supreme Court, that the interpretative principle contained in the Ninth Amendment has much influence on the way the Bill of Rights is interpreted today. At his unsuccessful confirmation hearings in 1987, Supreme Court nominee Robert Bork, famously alluded that the Ninth Amendment was merely an inkblot. This reading does not seem wholly unwarranted, from a positivist perspective, but was obviously rather controversial in the American legal environment. 

4. Legal Implications of Article 53?

4.1. A Threat to the Supremacy of Community Law?

One of the most fundamental questions raised about the legal implications of the Charter seems to be the theory that Article 53, by its reference to national constitutions, could pose a threat to the supremacy of Community law. The principle of supremacy is, in the traditional view, one of the cornerstones of the “new legal order” of the Community. The theory has not yet been articulated in any depth in writings by scholars, but it pops up as a question mark in a few of the first comments to the Charter. 

As evidenced by the drafting history (see Chapter 2 above) the Legal Services of the Commission and the Council and a few Members of the Convention saw supremacy problems in a reference to “national law” in one of the first drafts of Article 53. To rid themselves of these concerns the draft was first changed to “constitutions of the Member States,” and later, at the behest of the Commission, the clause “in their respective fields of application” was inserted. The sensitive issue of supremacy was not discussed at any length among the Members of the Convention, and there is no indication that the issue was generally considered to be a real problem. In any case, it is evident that a cap on the supremacy of Community law in the field of human rights was not what the Convention intended with Article 53. The Article instead served the important political purpose of making clear that national constitutions would not be replaced by the Charter – a message that all Members agreed on, including the European Parliament and the Commission.

The following hypothetical, based on the assumption that the Charter has become binding under EU law, illustrates the theory that Article 53 might pose a threat to supremacy of Community law. Imagine that a Community measure, a regulation for example, is challenged by an individual before a national court as being contrary to a constitutional human rights norm. The national court will first have to assess whether the measure violates the equivalent right of the Charter; if that is a possibility, the case must be referred to the ECJ. It is well-established that only the ECJ can declare Community measures void as incompatible with Community law. If the Court in Luxembourg finds that the measure violates the Charter, it will be annulled. Imagine, however, that the Court finds that the measure does not violate the relevant provision of the Charter. Must the Court, as would theoretically be the case today (see Hauer) uphold the measure even if it manifestly runs counter to the national constitutional human rights norm? Or will the Court be allowed or even required to annul the measure on the basis of Article 53 of the Charter? If the Court does not strike the measure down (because, on its reading of Article 53 and other relevant provisions, it can apply only Community law and not national constitutions) the case will continue before the national court. In further proceedings, wouldn’t the individual before the national Court be able to rely on Article 53 and argue that the Community legal order acknowledges that nothing should restrict or adversely affect the level of protection afforded by national constitutions? And that it follows that the national courts can declare Community measures inapplicable in their own jurisdictions in so far as the measures contravene national human rights norms providing a higher level of protection than the equivalent Charter rights?

My answer is no. Even based on a purely textual analysis, Article 53 clearly does not empower, let alone compel, the ECJ to apply national constitutional norms over and above Community law, nor does it authorize national courts to declare inapplicable a Community measure that contravenes the relevant Member State constitution. The Article specifically says that “nothing in this Charter” may lead to restrictions of rights in national constitutions. In other words, the Charter does not exclude the possibility that other Community instruments may have such an effect. It might be argued that this is a formalistic reading which would almost empty Article 53 of any legal relevance, since only rarely, if ever, will the Charter itself come into a genuine norm conflict with an equivalent right protected elsewhere. However, based on the drafting history and comparative analysis of similar provisions in other instruments, it might very well be that Article 53 is of extremely limited legal significance. And as the amendment proposed by Jens-Peter Bonde (MEP) (see 2.4. above) illustrates, there is a difference between saying “nothing” in general or “nothing in the treaties/constitution/law of the EU/EC” on the one hand, and saying more narrowly “nothing in this charter” on the other hand. (See also 3.1. above about the draft European Parliament constitution from 1994).

But wouldn’t it be absurd to imagine that a simple Commission decision might be able to undermine national rights when a document of constitutional proportions such as the Charter can not do so? No more or less absurd than the current state of law. The objection overlooks the limited nature of the Charter. It is not a constitution itself, only part of a “constitution” akin to a bill of rights. The Charter explicitly says that it is not an instrument of competences, only of rights. It does not address conflicts of norms outside the sphere of the Charter. It might even be argued that the Charter, through Article 51(2), preserves not only the competences of the Union institutions (including the Court) but also, indirectly, the content and hierarchal order of Community measures based on these competences (“The Charter does not … modify powers … defined by the Treaties”). Inherent in the powers defined by the Treaties, it can be argued, is the legal force, as defined by the Court, of measures which are the result of the exercise of these powers. I do not think that such an argument is necessary to refute the “supremacy threat” theory, but it could well be made.

What is not a plausible argument, in my opinion, is reliance on the words “in their respective fields of application.” Instead of extinguishing any doubts about the continued supremacy of Community law, as was the intention of the draftsmen, this proviso is more likely to be a source of doubt. The argument seems to have been that this clause would make it clear that national constitutions could prevail only in the sphere of exclusive national competence (see 2.3. above at note 37). But in Article 51(1) it is already explicitly stipulated that the Charter is addressed to the Member States only when they are implementing Union law. With this in mind, how would the Charter ever be able to restrict or adversely affect rights in national constitutions “within their respective fields of application” understood as the field of exclusive national competence? Furthermore, as the case law shows (see 1.2.(2) above) “scope [or field] of application/competence” is not a very precise term in the context of Community law. In most fields of relevance to the Charter both domestic and Community law will apply to some extent. And there is hardly any area of national law which may not be affected somehow by Community law. So, if one were inclined to accept the theory that Article 53 challenges the supremacy of Community law in the field of human rights, the clause just discussed should provide little if any comfort.

Other elements in the text and drafting history may also be a source of confusion and feed fears that the supremacy of Community law is at stake. This is probably partly a result of confusion among the draftsmen, partly a result of the working method, and partly a result of the important political message Article 53 had to convey.

The first such point is the decision to include a reference only to “constitutions” and not to domestic “law” in general (as originally proposed and as in Article 53 ECHR). Couldn’t this be interpreted to mean that the Community should give special deference to constitutions, once the Charter has been is incorporated? Why else exclude rights in other parts of domestic law? Second, why are constitutions mentioned on a par with EU law and international agreements, which today have distinctly different value under ECJ case law, if not to indicate some change in their status? Third, why does the article mention only international agreements to which “all” Member States, the EU, or the EC are party, if not to confirm that, in general, the instruments referred to in Article 53 serve as the baseline for the Community human rights system? Fourth, when the official explanations to Article 53 say that the Article assures that the ECHR will always be the minimum level of protection afforded under Community law, must this reading not also apply to the other instruments mentioned in Article 53, including constitutions? There is no special distinction between the ECHR and the other instruments referred to in the text of Article 53. 

To begin with the last question first, the explanations to Article 53 are indeed somewhat confusing. The fact is, however, that the Charter upholds (or incorporates) the ECHR as a minimum standard for the Community not through Article 53, but through Article 52(3). The incorporation could be said to merely confirm the law under the existing Treaties (see Article 6(2) TEU). The special passage on the ECHR in the explanations to Article 53 is a holdover from previous versions of the text, which had been drafted before the clause in Article 52(3) had seen the light of day. The explanations, which in any case have no formal legal force, should thus be no cause for confusion. The special reference to the ECHR in Article 53 and its explanation might be redundant or confusing from a strictly legal point of view, but probably served the overall political purpose of Article 53.

The other elements mentioned may cause some confusion as to the true meaning and purpose of Article 53. They may suggest that Article 53 is a kind of general ratification of the Court’s current and future case law. The Court pays attention to common agreements and draws inspiration from “the constitutional traditions common to the Member States.” On this understanding it was not surprising that some Members of the Convention proposed a reference to “common constitutional traditions” instead of “constitutions,” as the Secretariat had considered before the first draft (see notes 27 and 45 above). This idea was not pursued very actively or taken on board, most likely owing to the shared wish to send a clear political message that the Charter would not replace national constitutions. Thus, the reference to “constitutions” was kept as a compromise between Members who wanted the wording of one of the early proposals, i.e. “national law,” and those who wanted either no reference at all to national rules or only to what the Court has thus far regarded as relevant, i.e. “the constitutional traditions common to the Member States.” 

The compromise quality of the text, based on two completely different understandings of the meaning of the provision, blurs – but does not change – the nature of Article 53. The somewhat conflicting intentions of the drafters and the inconsistencies in the text do not support an argument that Article 53 limits the supremacy of Community law. Such an interpretation would involve a major new development in the European legal order, completely outside the mandate of the Convention, and would have to be supported by very firm evidence, not likely to come about from the European Council if and when the Charter is incorporated. The interpretation is simply politically impossible seen from a Community perspective. The whole purpose of strengthened human rights protection at the Community level is precisely to ensure that the supremacy principle is not obstructed by constitutional sensitivities in the Member States (see, e.g., the resolution of the Parliament from March 2000, above in 2.2.).

Based on the drafting history of Article 53 and the special significance of the ECHR in the Community human rights doctrine and in the Charter itself, I would argue that the only natural reading of Article 53 is to see it as an equivalent to Article 53 ECHR. As such, the provision is simply a politically valuable safeguard, found in almost all human rights instruments, which serves to calm any concerns readers may have that the Charter could be used as a pretext to cut down protection enjoyed on the basis of other rules.

At a more general level, it might be counter-argued that the Community legal order is completely different from the legal order devised by the ECHR within the Council of Europe. The differences are obvious: most notably that the Community produces legislation directly binding in the Member States and operates under an elaborate system of judicial control which is first and foremost concerned with the uniform application of Community law in all Member States. The European Court of Human Rights, on the other hand, is not primarily concerned with uniformity; it simply ensures that whatever measures the Contracting Parties take do not fall below the minimum level of protection of rights afforded by the ECHR. The European Court of Human Rights has no reason to be concerned if a Contracting Party provides a higher level of protection of a right protected by the ECHR, unless, of course, that protection entails a violation of another right protected by the Convention. The role of the European Court of Justice is more complex. One could say that the European Court of Human Rights operates on a “floor” of protection, on the basis of one single instrument, whereas the European Court Justice has to operate both on a “floor” of protection and under a “ceiling” of dictates from a multitude of different rules which must be uniformly applied throughout the Community to serve their purpose. So even if Article 53 of the Charter is similar to Article 53 ECHR, the argument goes, it might produce altogether different legal effects within the Community context.  

The supranational nature of the Community no doubt distinguishes it from other public international law contexts. But it is hard to see how this by itself should give a new and different meaning to a provision such as Article 53. Even in a federal system one can imagine a provision like Article 53 in the federal bill of rights, which would not pose a threat to the supremacy of federal law over state law. In fact the Ninth Amendment to the United States Constitution provides such an example, although admittedly with a different background and history. At least the American experience shows that despite many creative readings, the Ninth Amendment has never been invoked before the US Supreme Court to challenge the supremacy of federal law over human rights norms in state constitutions (see 3.5 above). An important difference, if not the most important difference in this respect, is the fact that the principle of supremacy is expressly provided for in the US Constitution. In the EU, the principle is based on case law, and this is probably one of the reasons why the highest courts in some Member States have dared to contest it. But this is a socio-political difference, not a legal one. Community law’s claim of supremacy is just as firm as the principle expressed in the American Constitution. It is hard to see how Article 53 of the Charter would provide the national courts with any lethal ammunition they do not already have in what has been described as “the cold war” between the ECJ and the national courts. 

The fact that some national courts (only in dicta so far) have reserved a right to assure themselves that Community measures not only comply with Community human rights but also with the national constitutions is, from an EU perspective, already a problem. An EU Charter of Fundamental Rights that does not replace the national constitutions will neither add to nor subtract from this problem. Underlying these court decisions from the Member States is a fundamental understanding in the minds of the judges that their states have retained at least a core of sovereignty that allows the states to break with Community and international law if required by the highest legal authority of that state, the fons et origo of all law, their constitution. There is no reason to believe that the Charter or any other measure short of an explicit recognition of supremacy in the Treaties, and consequently also in the national constitutions, would change the minds of these judges. A codification of the supremacy principle is not likely to happen anytime soon; both sides in “the cold war” have reason to be content with the way the system works today, in the twilight zone between public international law and federalism, with occasional rhetorical assertions of state sovereignty by national courts in less than a handful of Member States, but overall compliance. So why fix it? The dialogue between the courts and the flexibility shown by national courts and the ECJ, with due regard to national constitutional traditions, make a genuine conflict between constitutional human rights and Community measures more theoretical than real. It has so far proven possible for all the Member State courts to comply in practical terms with the Community ambition of supremacy. 

The fear (or wish) by some that Article 53 might jeopardize the supremacy of Community law is perhaps related to a certain tendency by EU lawyers to overemphasize supremacy of Community law as a unique feature of the EU legal system. All agreements under public international law claim to reign supreme over national law as a result of the pacta sunt servanda principle (see Articles 26-27 of the Vienna Convention on the Law of Treaties). What is unique in the EU is that this command, on the whole, corresponds to the reality on the ground. The extraordinary systemic feature of the EU is not supremacy (despite the Court’s rhetoric about a new legal order) but the enforcement machinery, including the system of preliminary references from national courts to the ECJ and the prosecutorial powers of the Commission. Yet at the end of the day, the Member States, as under general public international law, decide whether to obey or violate Community law as interpreted by the ECJ. A parallel to the ideas about civil disobedience within a national jurisdiction is tempting but not quite accurate, given the absence of hard enforcement measures such as a Union Police or a National Guard in the Community context.

For the sake of comparison to a traditional legal system under public international law, imagine that the UN Security Council adopts a resolution under Chapter VII of the UN Charter ordering a state to gather and produce all information about private bank accounts held in that country by a world-renowned terrorist. Would that state be able to challenge the supremacy of the order (cf. Article 103 of the Charter) with a reference to Article 5(2) ICCPR, on the basis that the state constitution protects absolute privacy in matters related to banking and, as such, provides a higher level of protection than required by Article 17 ICCPR on the right to privacy? Clearly not. No reading of the ICCPR could sustain such an argument. From the perspective of international law, the state would either have to change its constitution or break it. Like Article 53, what Article 5(2) prohibits is the use of the Covenant, not other legal norms, to restrict rights protected in other instruments than the Covenant. No modification of the pacta sunt servanda principle was intended or brought about.

In conclusion: a close reading of the text (“nothing in this charter”), its political purpose (to send the signal that the Charter is not intended to replace national constitutions) and perhaps most importantly, its source of inspiration (Article 53 ECHR), all confirm that Article 53 and its reference to constitutions of the Member States leave the principle of supremacy of Community law intact.

The idea that Article 53 might be sufficiently ambiguous (or difficult to understand) to attract attention from litigious EU skeptics and/or national judges protective of Member State sovereignty cannot be entirely rejected. As the case law from the European Court of Human Rights and the UN Human Rights Commission shows, provisions similar to Article 53 may have occasionally led learned judges astray. That arguments based on Article 53 would have sufficient force to cause blood poisoning in the so far relatively painless wound, which the principle of supremacy of Community law has already sustained, seem hard to imagine, however.

4.2. An Avenue for New or Wider-ranging Rights in the EU?

Another, somewhat related theory about the legal implications of Article 53 could be to regard the provision as an avenue or source for the “discovery” of new or wider-ranging rights compared to those found in the Charter. Here, the situation would not necessarily involve a conflict between national constitutions and Community measures. The theory could be used in all kinds of relations, including staff cases against Union institutions. In cases involving concerns about national constitutions, the theory could imply a discretionary power of the Court to dissolve apparent conflicts by using Article 53 to raise the level of protection under the Charter. The Court would not directly apply rights found in other instruments, but would to a certain extent incorporate them under the wings of the EU legal order and thereby extend them to the entire field of Community law. A less imaginative version of this theory could be to see Article 53 as providing support for the Court to continue and perhaps gradually expand its current willingness to be inspired, not only by the ECHR, but also by constitutions of the Member States and international conventions.

This suggested theory does not seem to have been articulated yet in relation to Article 53 of the Charter, at least not in any detail, but could be inspired by some of the writings and dissenting opinions about Article 53 ECHR (most notably Judge de Meyer’s article) and the theories about the Ninth Amendment of the US Constitution (see 3.2. and 3.4. above). The version of the theory, which more modestly implies that the Court should feel free to continue its relatively dynamic and conciliatory interpretation and application of Community human rights, would probably be supported by those Members of the Convention who wanted Article 53 to reflect the current jurisprudence by referring to “constitutional traditions common to the Member States” rather than “constitutions of Member States” (see discussion in 4.1. above).

The theory ties into the longstanding debate over whether the Court should base its jurisprudence on the highest level of protection found in any Member State, even if only one Member State affords that level of protection (see 1.2. above). This maximalist or “race to the top” approach have a few proponents among scholars, but has not been accepted by the Court. Other scholars have convincingly shown that the seemingly commendable idea of taking the Community to the highest level builds on a somewhat deceptive dichotomy between low and high levels of protection and would not, in its logical conclusion, be conducive to the idea of enhancing confidence in the Union by protecting human rights. 

First, some human rights, protected by different Member States are in direct conflict (e.g., the right to abortion v. the right to life). The maximalist approach does not help decide which of the two rights should prevail in such special cases. Second, the theory would imply that single Member States could subject the entire Community to unilateral constitutional dictates by protecting rights to a further extent than elsewhere. And third, protection of human rights almost always involves some measure of balancing between individual rights and communal interests. As such, the idea of the highest level of protection can be deceptive because the variations among the Member States will often be the result of legitimately different balancing acts between communal “rights” (or, more properly, values and interests) and individual rights. That is especially so in relation to the right to property, where the level of protection differs among the Member States and the counter-interests of a communal nature are obvious. If the Court accepted the maximalist theory and pieced together the “best of all worlds,” it would lead to a set of Community human rights more generous to the individual than those found in any Member State and thus potentially upset the social systems of Member States and jeopardize the legitimacy of the EU. 

The logic of this critique is strong, but, if taken to its extreme, implies a certain measure of cultural relativism at the expense of the idea that some rights should prevail over communal interests. It can and must be maintained, especially in the context of the relatively homogenous Community, that there is a core set of human rights and a minimum level of protection below which neither the Community nor Member States can fall. The real question is who should articulate that level of protection and decide the conflicts that may occur between inconsistent individual rights and between individual rights and communal values. In the context of the EU, much can be said in favor of leaving that task to the European Court of Justice as the articulator of shared constitutional values. 

It might be argued that there is a need for heightened and more active human rights scrutiny of EU measures by the Court as part of the broadening of Community powers, the constitutionalization process and the efforts to bring the Union closer to the citizens of Europe. Individual Member States will be able to point to “gaps” in the Charter as compared to their own bills of rights. An example could be the concept of Handlungsfreiheit (freedom to act), protected by Article 2(1) of the German Constitution, from which it follows that any restriction of human activity may, in principle, be subject to a judicial review of proportionality. This right does not find an equivalent in the Charter, but it might be argued (and some would perhaps invoke Article 53) that the Court should give an extensive interpretation to similar provisions in the Charter, e.g., the right to liberty and security (Article 6), and by such an approach include an equivalent to the German Handlungsfreiheit.

But with a still broader jurisdiction thanks to the expanding regulation and legislative powers of the Community, combined with the sensitive topic of human rights, an encouragement to engage in what might be perceived as unrestrained judicial activism could have the opposite effect of what was intended with heightened Community human rights protection. Such considerations should temper ideas that Article 53 or other parts of the Charter could serve as a “fountain of rights.”

It is true, of course, that the inherent nature of human rights requires dynamic interpretations. Human rights instruments must be regarded as living instruments in order for the courts to keep apace with changing sensibilities, political developments and technological innovation. This understanding should also apply to the Charter. As Judge De Meyer rightly points out (see 3.2.3. above) the European Court of Human Rights has pronounced several “inherent rights” based on then-expansive interpretations of provisions which are today taken for granted. Keeping in mind the narrow scope of this paper, the question is whether such an approach is supported or required in any way by Article 53 (compare the Ninth Amendment theories discussed under 3.4. above).

In my understanding it is not. The wording, as it stands, does not purport to be an overall indication of how the human rights jurisprudence of the Court should evolve. Had this been the intention, much clearer words could and should have been used. And even if some of the anomalies in the text could lead to some doubt (inter alia, the reference only to constitutions and not to national law in general, see 4.1. above) there is no indication in the drafting history of such an intent behind Article 53. The early suggestion by the Convention Secretariat to refer to “constitutional traditions common to the Member States” never materialized, even if a few Convention Members re-launched the idea at a late stage in the drafting (see 2.4 above).

By comparison, it is noticeable that the Ninth Amendment of the US Constitution, the wording of which (“rights retained”) would more readily lend itself to judicial activism and an almost natural law approach to human rights, has generally not been cited by the US Supreme Court in its frequently activist approach to civil rights. More importantly, the ECHR case law demonstrates that the European Court of Human Rights has rebuffed all invitations to use Article 53 in this manner.

In conclusion, it would be neither necessary nor sufficient for the Court to rely on Article 53 to continue or develop its current dynamic human rights practice. All that can be said in favor of such a theory is that Article 53 is one of many expressions of the idea that human rights is a broad and developing concept. The Article does not lead to any positive conclusions as to how the rights provisions of the Charter should be interpreted, only that they should not be interpreted to restrict rights flowing from other instruments, some of which are applicable by the Court, some of which are not. Should the Court, contrary to what I expect, feel it necessary to find a textual justification for a continued dynamic human rights jurisprudence, there are other arguments at its disposal. One is consideration five of the preamble, which states that the Charter reaffirms the rights as they result, in particular, from the constitutional traditions and international agreements. Another could be the open-ended references to the rule of law, rules of law and the law in the Charter as well as in the regulatory framework for the activities of the Court, most significantly Article 230(2) (ex Article 173; “and any rule of law”) and Article 220 (ex Article 164; “the law” juxtaposed to “the Treaties”) of the TEC.

4.3. Does Article 53 Freeze the Current Level of Protection in the EU?

Could it be argued, conversely, that Article 53 of the Charter freezes the current level of human rights protection, and that any developments in the rights protection from now on must be based on Community law alone, as provided by the Community legislature and the Treaties, no longer with any external instruments as sources of inspiration?

This theory is not even hinted at in the first brief comments to the Charter, and it is not very convincing either, at least with the traditional jurisprudence of the Court in mind. There are, however, certain elements in the language, the drafting history and the ideas expressed in the case law under Article 53 ECHR which might support such an interpretation. 

One could imagine the theory presented in this way: 

It follows from a textual analysis that Article 53 presupposes that all rights going beyond the Charter, either in scope or in character, can enjoy protection only “in their respective fields of application,” i.e. outside of the Community context. This must mean that reasoning by negative implication should be the Court’s guiding principle. Or in the words of an old maxim, expressio unius est exclusio alterius: what is expressed excludes what is not. As noted in separate opinions in some of the first cases under the ECHR, an Article 53-like provision should be construed and applied as a limiting interpretative principle excluding the teleological and dynamic approach (see 3.2.3. above). This logic is even stronger with the wording of Article 53 of the Charter, which, by referring to “respective fields of application,” draws a clear distinction between the rights secured by the Charter and rights which find their basis and are applied elsewhere. An interpretation of Article 53 which limits it to stating the self-evident fact that the Member States can apply their constitutions and international agreements within their exclusive sphere of competence reduces it to redundancy. Article 51(1) already provides that the Charter is not addressed to Member States outside the Community context. Every part of the Charter must be given full meaning, and to use Article 53 as a limiting interpretative principle is the only logical way to give affirmative meaning to this provision. The classical arguments about legal certainty, which Judges Verdross and Zekia invoked in the Golder case in 1975, apply with even greater strength in the Community context. Unlike the European Court of Human Rights, the Court must weigh several counter-considerations to ensure that the law of primary concern to the Community, i.e. the body of economic, social and environmental rules, is applied uniformly throughout the Community (see arguments about differences between the EU and the ECHR legal orders above under 4.1.) 

The drafting history, the argument could go on, shows that several Member States strongly objected to any reference to the case law of the European Court of Human Rights in Article 53 or Article 52(3) precisely because they worried it would lead to a juridification of what is essentially a political question: the creation of new rights or higher levels of protection. And, at the end of the day, no reference to the case law from Strasbourg was included in the provisions. The reference in the preamble has limited relevance and is arguably only part of a descriptive account of how the current level of Community protection came about. The reference to case law in the official explanations is even less relevant and has no legal value, primarily because the explanations were never adopted by the Member States or the institutions. As long as the Community is not a Contracting Party to the ECHR, the EU/EC is not bound by judgments of the Court in Strasbourg. Article 6(2) TEU does not refer to the case law from Strasbourg either, only to the ECHR, which should be interpreted in accordance with the present level of protection (see Article 52(3) of the Charter).

Finally, the argument would conclude, Article 53 furnishes no basis for the Court to further expand the rights protection with reference to national constitutions. The aim of the Charter (which it advances by also stipulating modern rights, e.g. bioethical rights) is to provide the Court with a positive list of current rights that it must apply, but not broaden. The Charter should be kept alive by the Court but should not take on a life of its own. If the Union wants to provide more protection it can do so, as stated in the last sentence of Article 52(3). The means to do so would either be legislation or amendments to the Charter, if the circumstances so warrant – but not through judicial fiat.

This line of reasoning reflects a range of classical arguments of sovereignty, not least the interpretative principle, in dubio mitius, under public international law. International adjudicators should not lightly assume that sovereign states intend to impose upon themselves a more onerous, rather than a less burdensome, obligation. Here the argument is presented not to protect the sovereignty of Member States, but, more innovatively, to protect the perceived “sovereignty” of the Community itself. 

The theory that Article 53 should imply a limiting interpretative principle of general applicability is flawed. The drafting history clearly shows that no such purpose was intended, and the textual elements relied on, even if somewhat confusing, do not logically lead to such a conclusion (see the analysis above under 4.1. and 4.2.). The point about the omission of a reference to case law has some merit. It would have served the overriding concern about legal certainty better if such a reference had been included in a proper clause of the Charter, which would have been Article 52(3) and not Article 53. The absence of a reference to case law in Article 52(3) just adds another argument to the already strong case that inconsistencies between the EU and ECHR systems of human rights protection can be completely eliminated only if the EC/EU accedes to the ECHR.

More importantly, this imagined reading of Article 53 runs counter to the essential nature of the Charter for two fundamental reasons. First, the Charter will be part of EU law and, as such, subject to the normal teleological, dynamic and effectiveness-oriented rules of interpretation that the Court applies to EU law. The Charter is not a treaty, in the ordinary sense; it is a quasi-constitutional instrument adopted by a quasi-federal polity to confirm and strengthen restrictions on itself – real restrictions, not quasi-restrictions. Its very existence confirms that the traditional, mainly economic objectives of the EC Treaty should not necessarily trump other considerations. The idea that defenders of Community measures should be able to rely on debatable interpretative principles from public international law (long ago discarded by the Court with respect to Member State sovereignty pleas in the EU context) to protect the “sovereignty” of the Community against itself, is ludicrous. Second, the arguments about the inherent nature of bills of rights as living instruments (see 2.4. and 4.2. above) are almost articles of faith among human rights adjudicators. The power to draw inspiration from extra-communitarian sources and to develop the human rights doctrine in accordance with present day conditions is, arguably, both a political and legal necessity in the Community with its eternal concerns about conflicts with national constitutions. Even the experience with the much more traditional ECHR proves the point, as does the experience of federal states such as Germany and the United States. The traditional arguments raised by some governments and judges in the first cases under the ECHR were rejected exactly on this ground. 

Naturally, these observations do not give any answer to the important question of how far the Court may legitimately engage in dynamic or activist approaches to the Charter. That question falls outside the confines of this paper. The point here is that a reading of Article 53 as a limiting interpretative principle is misguided. But on the general issue it is worth noting, before concluding, that fears have been raised, based not on Article 53 but on the open and inclusive working method of the Convention, that the Charter might lead to a more constrained human rights jurisprudence in the EU. The argument is that the Convention left behind it a trail of carefully drafted, publicly debated and readily accessible proposals for certain rights or higher levels of protection that were never adopted, for one reason or the other. One example is minority rights, as to which elaborate proposals were put forward by Members of the Convention on the basis of input from NGOs. One of the applicant countries urged the Convention to include specific minority rights in the Charter. 

While I agree that it would be unfortunate if negative legislative history were to constrain the Court excessively in its application of the Charter, let me add three short comments to this discussion. First, the alternative to open drafting of and deliberations on constitutional instruments is not attractive. It is an embarrassment to the lofty ideals of the EU that drafting documents from the IGCs throughout the history of the Community are not publicly available. Second, even the travaux préparatoires from traditional diplomatic conferences, at least in the field of human rights, are generally accessible and are studied carefully, among other things to a get a sense of who wanted what and objected to what. The idea of accountability should also be embraced at the highest level in the EU decision-making process. Third, both the European Court of Justice, and perhaps more tellingly the European Court of Human Rights (which, like the general public, has full access to the ECHR travaux préparatoires) have generally not felt restricted by the legislative history, even when faced with conclusive evidence that the drafters intended to exclude a certain reading. Accessible negative legislative history does not by itself warrant the conclusion that human rights protection in the EU would have been better served without the Charter. 

The dynamic approach to human rights interpretation of the European Court of Human Rights has never been opposed by the European Court of Justice. In the spirit of the ECHR system, and in order to avoid clashes between EU law and national human rights, there is reason to hope that the European Court of Justice will regard the Charter as “a living instrument.” Article 53 does not provide an argument against such a line.

4.4. A Tool to Solve Cases Involving Collision of Different Human Rights?

Finally, Article 53 might be envisioned as a tool to solve cases involving collision of human rights norms of different legal origins. The reading would imply that if a Member State is obliged by one of the instruments mentioned in the provision to protect an unenumerated right, e.g. a right for minorities not to be exposed to hate speech, then the Court should not challenge that obligation on the basis of a rights provision in the Charter, such as Article 11 on freedom of expression. Depending on its delimitation, this theory could be seen as a special subset of the “threat to supremacy” and “incorporativst” theories discussed above under 4.1. and 4.2. Many of the arguments for and against these theories would apply and will not be repeated here. The theory has not yet surfaced in relation to Article 53 of the Charter, but is, judging from the case law under Article 53 ECHR, such a common (mis)understanding of this type of provision that the idea seems destined to appear at some point. 

In short, the theory could claim that, at the international level, Article 53 is a special rule of interpretation, which supplements and modifies the general customary rules in the law of treaties relating to conflicts between international obligations (see Articles 28 and 30 of the Vienna Convention on the Law of Treaties). As such, the provision commands that special deference to other human rights instruments should be shown by international adjudicators in the field of human rights. An example could be the Jersild scenario from the European Court of Human Rights which involved the apparent conflict between freedom of expression (Article 10 ECHR) and freedom from racist verbal persecution (Article 4 CERD) (see 3.2.2. above). Applied to the Community context, it might be argued that Article 53 of the Charter would require the Court to decline a request for a preliminary ruling on the compatibility with the Charter and send the case back for final adjudication and balancing of the conflicting rights by the national court.

As to special rights stemming from national constitutions, the theory would imply the same result, namely that Member State courts, rather than the European Court of Justice, should solve such difficult cases involving conflicts with Charter rights. The view could be described as an extended margin of appreciation theory, or, in words closer to the Community terminology, as a theory of judicial subsidiarity.An example of its imagined application with respect to domestic law could be the Grogan and Open Door scenarios regarding abortion and freedom of expression, where Article 53 would be understood as a command to the European Court of Justice not to decide on the conflict between freedom of expression and the right to life, including the unborn life, but instead to leave this balancing to “the better placed” Irish courts. Such an approach would not necessarily involve a general challenge to the supremacy principle or an incorporation into Community law of the Irish version of the right to life. It could be limited to challenge only the “uniformity” principle, in the sense that all other Member States and the Community itself would still have to comply with Community law, including the Charter, subject to the interpretation of the Court. 

In my opinion, this theory, plausible as it may seem from a first reading of Article 53, builds on a fundamental misunderstanding of analogous provisions in human rights law. And, as is evident from the case law of the European Court of Human Rights, this understanding of Article 53 has never been accepted. After the Open Door case was decided in 1992, Article 53 has not been relied on again in this respect by Judges of the Court in dissenting opinions, let alone majority opinions, despite invocations of the theory by governments in at least two similar cases (Jersild from 1994 and Gustafsson from 1996). A comparison to the ECHR is especially persuasive in this regard given the fact that the limited and “monofocal” nature of the ECHR control mechanism could much more easily have accepted such an interpretation of Article 53 to support the idea of a margin of appreciation.

To explain why this understanding is not correct, first consider a technical point of general relevance to the interpretation of Article 53. Does Article 53 relate at all to rights of a completely different nature than those protected by the Charter? Its title, “level of protection,” suggests that Article 53 is only concerned with how similar rights are interpreted (or, to be precise, how they should not be interpreted – with reference to a lower level of protection in the Charter). In many instances it will be difficult to draw a bright line between different rights and better rights (is access to a court a different right than the general right to a fair trial, or just implying a more extensive protection of the same right?). In some cases, however, such as the Jersild case, one right is definitely different from the rights protected in the applicable instrument. And on close reading, Article 53 is not concerned with such a conflict. 

Leaving this slightly legalistic point behind, we turn to the fundamental issue. Conflicts between different human rights, whether within the same convention or between rights in two different instruments, are a recurring theme in human rights law. As only few human rights are absolute, rarely will genuine norm conflicts occur that judges cannot interpret their way out of (as we saw in the Jersild case and in the even more delicate Open Door case). But when and if genuine norm conflicts occur, there are no mechanical devices or solutions available. These are hard cases, but they do not necessarily have to make bad law. And they would make bad law if international courts that are supposed to apply a given instrument and protect the rights enshrined therein simply relinquished their jurisdiction and deferred completely to national courts. This is especially the case in regard to conflicts with other international conventions given the wide-spread occurrence of Article 53-like provisions in human rights instruments and the potential circularity involved (see note 158 above).

As in so many other areas of the law, what is required is balancing. Depending on the sensibilities of the given legal system and its jurisprudence, the international court might very well be under an obligation to show some material deference (not jurisdictional deference) to national courts. Such ideas of margin of appreciation or judicial subsidiarity could have been used by a Court which wanted to let Ireland off the hook in the Grogan case not on a technical point as actually happened, but on the substance, even if it might have entailed less than perfect uniformity in the application of Community law. Such a method of softening the culture clash in sensitive cases does not, however, follow from Article 53. The extent to which the Court can allow restrictions and limitations on the rights protected by the Charter is regulated in Article 52(1) of the Charter, not Article 53. Conflicting human rights norms outside of the Charter might be a good argument for the Court to lower its scrutiny, but the Court cannot escape its obligation to apply and enforce the Charter. And it has no jurisdiction to apply or authoritatively interpret instruments outside the sphere of Community law (see discussion under 4.1. and 4.2.). Both national constitutions and international conventions, to which the Member States are signatories, can serve as a source of inspiration – but they do not bind the Court (see 1.2. above).

In conclusion, while innovative approaches might be necessary to solve difficult cases similar to Grogan, Open Door, and Jersild, without alienating national courts, Article 53 does not, in my opinion, provide any solutions or guidance.

5. Conclusion 

5.1. The Chronicle of an Inkblot Foretold

Even if international lawyers like to think and often strive to prove that all provisions in a given instrument have some independent legal meaning and effect, that is not always the case. Some provisions simply serve political purposes as ex tuto statements of the self-evident.

Based on the drafting history of Article 53, the comparative analysis of similar provisions in other instruments, and the discussion of real and imagined theories about its independent legal significance, I submit that Article 53 is such a provision. It is a politically useful inkblot meant to serve as an assurance to Member States, and eventually the electorate, that the Charter does not replace national constitutions and that it does not, by itself, threaten other, better or different human rights. The legal significance of Article 53 of the Charter is identical to that of Article 53 ECHR. And, by its political nature and purpose, it is similar to, e.g., Article 17(1) TEC which provides that Citizenship of the Union shall complement and not replace national citizenship. Even had this provision not been inserted in the Treaty, nobody could seriously have argued that the national citizenships had been replaced by the Union Citizenship. But the provision served a useful political purpose.

Article 53 was destined to be included in the Charter, even if its final version bore little resemblance to the first draft from the Secretariat. The prior draft instruments from the European Parliament and all relevant international human rights conventions, most importantly the ECHR, made it practically impossible to forego this habitual inkblot. As Decaux characterizes such provisions: “Il s’agit d’une formule rituelle en matière de droit des traités, introduite par un excès de prudence diplomatique.” Habits, rituals and excessive prudence did play a role during the drafting even if the Convention, by its composition and working method, was markedly different from a traditional diplomatic conference. 

Excessive prudence, confusion and the nature of the proceedings gave this habitual inkblot a slightly disfigured form compared to its cousins in other instruments (see 5.2. below for suggestions on how the text could be improved). The deformities of Article 53 have little legal significance, but they add to the perplexity surrounding the Charter as a new constitutional instrument in the complex Community legal order and should have been avoided. It is especially regrettable in this connection that the institutional concerns about supremacy of Community law were never brought out into the open. Not only would this have corresponded better with the idea of an open and inclusive drafting process, but a discussion in the Charter Convention of this fundamental issue, led by experts and observers from various institutions, could perhaps also have cleared up some of the misunderstandings and led to a more consistent wording. 

But even if Article 53 had been shaped exactly like Article 53 ECHR, it would probably still have caused confusion, as we have seen in the case law of the European Court of Human Rights and the American experience with the Ninth Amendment in the second half of the 20th century. Such provisions are inkblots not only in the sense that they have no particular legal significance or necessity but also in the Rorschachian sense of the expression. By being almost legally meaningless, they serve as an invitation to a plethora of interpretations and theories. We cannot accept as lawyers that it is just an inkblot – we have been encouraged by the psychotherapist (disguised as the legal discipline) to search for meaning and use our creativity. As with Rorschach’s inkblots, our responses, conjured up with the help of our profession, may reveal deeply held convictions, fears and desires depending on the idiosyncrasies and preoccupations of the reader. 

In the Community context, four possible reactions to the inkblot have been identified. First, the reaction of the “Guardians of the Treaties,” used in a broad sense not only limited to the Commission, who fear for supremacy of Community law, the heart and soul of the Community legal order, constantly under fire from hostile national courts. Second, the reaction from the many actors and scholars in the field of human rights who deep down nourish a natural law concept of human rights and who may see in Article 53 a fountain of new rights. Third, the reaction of the “sovereigntists” (perhaps not likely in the Community context but at least theoretically possible) who may wish to see Article 53 as a cap on judicial activism and an end to dynamic interpretations. And fourth, the reaction of any unfortunate Member State finding itself before the Court on the wrong side of a conflict between two (seemingly) incompatible human rights norms, one protected by the Charter, the other only protected by the constitution of the Member State, who will find hope in Article 53 as a mechanical way to escape the dilemma. 

The beauty or ugliness of Article 53 is surely in the eyes of the beholder. The theory of a challenge to supremacy of Community law might one day be tested before a national court. But it is not likely to prevail. Arguments against supremacy based on Article 53 are far from compelling, even for a “Community-hostile” national judge. At the end of the day, respect for Community law and international law supremacy depends on national law and jurisprudence, not on Community law or international law. 

5.2. Should Article 53 be revised or left out?

Much will depend on how (if at all) the Charter is transformed into binding EU law. One method could be simply to incorporate all the substantial rights into the Treaties, excluding the horizontal provisions (Articles 51-54) and the preamble. This would be in line with the expressed desire to simplify and consolidate the Treaty acquis leading up to the next IGC and would solve the perceived problems relating to Article 53 without having any adverse legal effects (given the arguably empty nature of Article 53). The political assurance that the catalogue of rights will not replace national bills of rights could be written into a revised version of Article 6(2) in straightforward language ad modus Article 17 TEC on the European Citizenship. The same could be done with the reference to the ECHR as the minimum standard now in Article 52(3) of the Charter.
 
An obvious alternative to this method of incorporation would be to attach the entire Charter, as is, as an appendix to the Treaties, and include a reference in a revised version of Article 6(2) TEU. Assuming that there is sufficient political will to make the Charter binding, but not to adopt a European Constitution, this solution might be attractive, also to the more symbolically inclined Member States given the visibility of a separate bill of rights.

Unavoidably, the question will come up whether to revise individual provisions of the Charter based on the popular feedback in the Member States, scholarly advice and the preliminary use of the instruments by the ECJ and courts in Member States. The usual Pandora’s-box arguments will be raised against re-tabling the Charter for revision by the IGC. Concerns about undermining the legitimacy of the document will probably also be voiced. But problems might surface involving more serious concerns than those relating to Article 53. These may make a demand for revisions impossible to resist. If that happens, all provisions would potentially be subject to revision.

In that case, how could Article 53 be improved and clarified? First of all, the provision should give more direct expression to the intention underlying the Article as evidenced by the drafting history. Inspiration could perhaps be found in Articles 5(2) of the ICCPR and the IESCR. There the message is clear: other rights, whether provided for by domestic law or other international conventions, shall not be restricted “on the pretext” that the Covenants do not recognize such rights or that they recognize them to a lesser extent. 

To be more true to the customary drafting of Article 53-like provisions, and to eradicate doubts about the scope of the provision, the qualification that “all” Member States must be contracting parties to an international convention before Article 53 is applicable should be deleted. The reference to “Member States’ Constitutions” should be replaced with “domestic law.” The reference to Union law may cause confusion when the Charter becomes part of Union law and should be deleted along with the specific reference to the ECHR. The provision should use time-neutral language like other similar provisions, so that “recognised” would be replaced by “recognised now or in the future,” and “to which the [EU, EC and Member State] are party” should be changed to “to which [they] are or become party.” 

And finally, the “in their respective fields of application” clause, the illegitimate child of excessive prudence and drafting behind closed doors, should be deleted. It is illogical and only causes confusion. 
Annex 1 – Bibliography 

A. Specifically related to the Charter

Alber, S., and U. Wiedmaier, “Die EU-Charta der Grundrechte und ihre Auswirkungen auf die Rechtsprechung,” Europäische Grundrechte Zeitschrift, Vol. 27/17-19, Dec. 2000, pp. 497-510

Búrca, G. de, “The Drafting of the European Union Charter of Fundamental Rights,” European Law Review, Vol. 26, 2001, pp. 126-138

Common Market Law Review editorial comment, “The EU Charter of Fundamental Rights still under discussion,” Common Market Law Review, Vol. 38, 2001, pp. 1-6

Dutheil de la Rhochère, J., “La charte de droits fondamentaux de l’Union européene: quelle valeur ajoutée, quelle avenir?,” Marché Commun et de l’Union européenne, No. 443, Dec. 2000, pp. 674-680

Feus, K. (Ed.), The EU Charter of Fundamental Rights – text and commentaries, (London, Constitution for Europe, Federal Trust Series 1, Logan Page, 2000) 

Lenaerts, K., “Fundamental Rights in the European Union,” European Law Review, Vol. 25, 2000, pp. 575-600

Olsen, E., and J.P. Bonde, EUs Charter: Menneskerettighedserklæring eller Forfatning for Europas Forenede Stater (The EU Charter: Declaration of Human Rights or a Constitution for the United States of Europe?), (Copenhagen, Forlaget Vindrose, 2000)

Revue Universelle Des Droits de l’Homme, Vol. 12, No. 1-2, September 2000 (Edition solely devoted to the Charter, with minutes from seminar at the University of Strasbourg in June, 2000) 

UK House of Commons, Human Rights in the EU: The Charter of Fundamental Rights, Research Paper 00/32, March 20, 2000

UK House of Lords, EU Charter of Fundamental Rights, 8th report by Select Committee on the European Union, May 16, 2000

Von Bogdandy, A., “The European Union as a Human Rights Organization? Human Rights and the Core of the European Union,” Common Market Law Review, Vol. 37, 2000, pp. 1307-1338

Wathelet, M, “La charte de droits fondamentaux: un bon pas dans une course qui reste longue,” 36 Cahiers de droit Européen, (2000), vol. 5-6, pp. 585-593

Yataganas, X., “The Treaty of Nice – The Sharing of Power and the Institutional Balance in the European Union – A Continental Perspective,” Harvard Jean Monnet Working Paper 01/01, 2001

B. General articles and literature

a. EU Law in General

Craig, P., and G. de Búrca, EU Law – texts, cases, and materials, (Oxford, OUP, 2nd ed., 1998)

Craig, P., and G. de Búrca (Eds.), The Evolution of EU Law, (Oxford, OUP, 1999)

Lenaerts, K., “Constitutionalism and the Many Faces of Federalism,” 38 American Journal of Comparative Law 205, (1990)

Spiermann, Ole “The Other Side of the Story: An Unpopular Essay on the Making of the European Community Legal Order,” 10 European Journal of International Law (1999), pp. 763-789.

Weatherhill, S., and Paul Beaumont, EU Law, (London, Penguin Books, 3rd edition, 1999)

Weiler, J.H.H., The Constitution of Europe: Do the New Clothes have an Emperor, (Cambridge, Cambridge University Press, 1999)

b. EU and Human Rights

Alston, P., (Ed.), The EU and Human Rights, (Oxford, Oxford University Press, 1999)

Besselink, L., “Entrapped by the Maximum Standard: On Fundamental Rights, Pluralism and Subsidiarity in the European Union,” 35 Common Market Law Review 629-680 (1998)

Bieber, R., et al. (Eds.), Au nom des peuples européens – In the name of the peoples of Europe, (Baden-Baden, Nomos, 1996)

Cannor, I., “Primus Inter Pares. Who is the Ultimate Guardian of Fundamental Rights in Europe,” in European Law Review, Vol. 25, February 2000, pp. 3-21

Due, O., and C. Gulmann, “Community Fundamental Rights as Part of National Law,” in Scritti in Onore di Giuseppe Federico Mancini, (Milano, Giuffre Editore, 1998), Volume II, pp. 404-422

European Commission, Report of the Expert Group on Fundamental Rights, “Affirming Fundamental Rights in the European Union – Time to Act,” (the Simitis Report), (Brussels, European Commission, February 1999)

European Parliament Working Paper, “What Form of Constitution for the European Union?” (the Amato/Group de Sages Report), (Luxembourg European Parliament, Political Series, 1999)

Jacqué, Jean-Paul, “The Convention and the European Communities,” in Macdonald et al. (Eds.), The European System for the Protection of Human Rights, (1993), at pp. 889-907,

Neuwahl, N.,and Allan Rosas (Eds.), The European Union and Human Rights, (The Hague, Kluwer Law International, 1995)

Weiler, J.H.H., and S. Fries, “A Human Rights Policy for the EC and the EU: the Question of Competences,” Harvard Jean Monnet Working Paper 4/99

c. The ECHR

Decaux, E., “Article 60,” in Pettiti (Ed.), La Convention Européenne des Droits de l’Homme – Commentaire Article par Article, (Paris, Economica, 1995)

Frowein, J., Europäische Menschenrechtskonvention: EMRK-Kommentar, (Kehl, N.P. Engel Verlag, 2nd edition, 1996)

Harris, D.J., et al., Law of the European Convention of Human Rights, (London, Butterworths, 1995)

Harris, D.J., The European Social Charter, (Charlottesville, University Press of Virginia, 1984, 2nd ed. 2000).

Jacobs, F.G., and R.A. White, “The European Convention on Human Rights,” (Oxford, Clarendon Press, 1996)

Macdonald et al. (Eds.), The European System for the Protection of Human Rights, (Dordrecht, Martinus Nijhoff Publishers, 1993)

Meyer, Jan de, “Brève réflexions à propos de l’article 60 de la Convention européenne des Droits de l’Homme,” in Matscher and Petzold (Eds.), Protecting Human Rights: The European Dimension – Studies in Honour of Gerard J. Wiarda, (Cologne, Heymanns Verlag KG, 1988)

Van Dijk, P., and G.J.H. van Hoof, Theory and Practice of the European Convention on Human Rights, (The Hague, Kluwer International, 2nd edition, 1998) 

d. Public International Law and International Human Rights Law

Brownlie, Ian, Principles of Public International Law, (Oxford, Clarendon Press, 1998, 5th ed.)

Craven, M., The International Covenant on Economic, Social and Cultural Rights, (Oxford, Clarendon Press, 1995)

Henkin, L. (Ed.), The International Bill of Rights, (New York, Columbia University Press, 1981)

Joseph, S., et al., The International Covenant on Civil and Political Rights, (Oxford, Clarendon Press, 2000)

McGoldrick, D., The Human Rights Committee, (Oxford, Clarendon Press, 1991)

Nowak, M., The UN Covenant on Civil and Political Rights: CCPR Commentary, (Kehl, N.P. Engel, 1993)

Rehof, L.A., Guide to the Travaux Préparatoires of the United Nations Convention on the Elimination of All Forms of Discrimination against Women, (The Hague, Kluwer, 1993)

Sohn, L., “Human Rights Law,” 12 Texas International Law Journal 129 (1977)

e. American Constitutional Law

Berger, R., “The Ninth Amendment,” 66 Cornell Law Review 1 (1980)

Caplan, R., “The History and Meaning of the Ninth Amendment,” 69 Virginia Law Review 223 (1983)

DeRosa, M., The Ninth Amendment and the Politics of Creative Jurisprudence: Disparaging the Fundamental Right of Popular Control, (New Brunswick, Transaction Publishers, 1996)

Newman, R., (Ed.), The Constitution and Its Amendments, (New York, Macmillan Reference USA, 1999) 

Palmer, K., Constitutional Amendments: 1789 to the Present, (Detroit, Gale Group, 2000) 

Tribe, L, American Constitutional Law (Mineola, N.Y., The Foundation Press, 1988, 2nd ed.)

Vile, J., Encyclopedia of Constitutional Amendments, Proposed Amendments, and Amending Issues, 1789-1995, (USA, ABC-CLIO, 1996)

Annex 2 – List of Cases

A. European Court of Justice

Case 6/64, Costa v. ENEL, [1964] ECR 585
Case 11/70, Internationale Handelsgesellschaft, [1970] ECR 1125
Case 4/73, Nold v. Commission, [1974] ECR 491
Case 34/79, Henn and Darby, [1979] ECR 3795
Case 44/79, Hauer, [1979] ECR 3727,
Case 155/79, AM & S v. Commission, [1982] ECR 1575.
Case 314/85, Foto Frost, [1987] ECR 1129
Joined Cases 46/87 and 227/88, Hoechst v. Commission, [1989] ECR 2859 
Case 302/87, European Parliament v. Council, [1988] ECR 5615 (“Comitology”)
Case 5/88, Wachauf, [1989] ECR 2609 
Case C-70/88, European Parliament v. Council, [1990] ECR I-2041 (“Chernobyl”)
Case C-260/89, ERT, [1991] ECR I-2925
Case C-159/90, SPUC v. Grogan, [1991] ECR I-4685
Case C-158/91, Levy, [1993] ECR I-4287
Case C-280/93, Germany v. Council, [1994] ECR-I 4973 (“Bananas”)
Case C-68/95, Port GmbH, [1996] ECR I-6065
Case C-265/95, Commission v. France, [1997] ECR I-6959 (“Strawberries”)
Case C-299/95, Kremzow, [1997] ECR I-2629, 
Case C-368/95, Bauer Verlag, [1997] ECR-I 3689
Case C-106/96, UK v. Commission, [1989] ECR I I-1279
Case C-162/96, Racke, [1998] ECR I-3655
Case C-249/96, Grant v. South-West Trains, [1998] ECR I-62 
Case C-309/96, Annibaldi, [1997] ECR I-7493

Case C-173/99, BECTU, Opinion of February 8, 2001, by A.G. Tizzano
Case C-270/99, P, Z. v. European Parliament, Opinion of March 22, 2001, by A.G. Jacobs 

Opinion 2/94, [1996] ECR I-1759 (Opinion re. EC Accession to the ECHR)

Case T-10/93, A v. Commission, [1994] ECR II-179 (Court of First Instance)
Case T-102/96, Gencor v. Commission, [1999] ECR II-753 (Court of First Instance)

B. EU Member State Courts

German Federal Constitutional Court:

Brunner, [1994] 1 CMLR 57, (German Maastricht Case)
Elfes, [1957] BVerfGE 6, 32, 
Riding in the Forrest, [1989 ] BverfGE 80, 137
Solange I, [1974] 2 CMLR 540 
Solange II, [1987] 3 CMLR 225

Danish Supreme Court:

Carlsen, [1999] 3 CMLR 854 (Danish Maastricht Case)

Italian Constitutional Court:

Frontini [1974] 2 CMLR 372

C. European Court and Commission of Human Rights

Brannigan and McBride v. UK (1993), A-258-B
Burghartz v. Switzerland (1994), A-280-B 
Costello-Roberts v. UK (1993), A-247-C
De Wilde v. Belgium (1972), A-14
Ekbatani v. Sweden (1988), A-134
Glasenapp v. FRG (1986), A-104
Golder v. UK (1975), A-18
Gustafsson v. Sweden (1996), Reports 1996-II
Handyside v. UK (1976), A-24
Jersild v. Denmark (1994), A-298
Kosiek v. FRG (1986), A-105
Leander v. Sweden (1987), A-116
Loizidou v. Turkey (1995), A-310
Maaouia v. France (2000, not yet reported)
Marckx v. Belgium (1979), A-31
Matthews v. UK (1999), Reports 1999-I
Nilsen v. Norway (2000, not yet reported)
Nortier v. the Netherlands (1993), A-267
Open Door Counseling v. Ireland (1992), A-246
Soering v. UK (1989), A-161
T v. UK (1999, not yet reported)
Vogt v. Germany (1995), A-323
Wemhoff v. FRG (1968), A-7
Young, James and Webster v. UK (1981), A-44

Cyprus v. Turkey (1976), Commission Report, 4 EHHR 482
M. and Co. v. FGR, App. No. 13258/87 (1990), Commission Decision, 64 DR 138
Markoupolou et al. v. Greece, App. Nos. 20665/92, 20666, 20668, 21732, 21991-92, 21991, 21999, and 22219/93, Commission Decisions of April 6, 1992 (unpublished)
M.K. et al v. Greece, App. Nos. 20723-24/92, 22213-18 and 22220-27/93, Commission Decisions of December 1, 1993 (unpublished)

D. UN Human Rights Committee

Kindler v. Canada, Communication No. 470/1991, Views of the HRC of November 18, 1993, (Document CCPR/C/48/D/470/1991)
Ng v. Canada, Communication No. 469/91
Cox v. Canada, Communication No. 539/93

E. WTO Appellate Body

Hormones Case, (“EC Measures Concerning Meat And Meat Products”) (1998), Canada and US v. EC, AB-1997-4, WTO Appellate Body Report, WT/DS26/AB/R

F. US Supreme Court

Ford v. Wainwright, 477 U.S. 399 (1986)
Griswold v. Connecticut, 381 U.S. 479 (1965)
Penry v. Lynaugh, 492 U.S. 302 (1990)
Planned Parenthood v. Casey, 505 U.S. 833 (1992)
Richmond Newspapers v. Virginia, 448 U.S. 555 (1980)

Annex 3 – List of Instruments

Charter of Fundamental Rights of the European Union (2000)
European Convention of Human Rights and Fundamental Freedoms (1950, as amended by Protocols, incl. the 11th Protocol on Reform of the Control Machinery)
European Social Charter (1961, original, revised in 1996)
Inter-American Convention on Human Rights (1969)
International Covenant on Civil and Political Rights (1966)
International Covenant on Economic, Social and Cultural Rights (1966)
Statute of the International Court of Justice (1945)
Treaty of the European Union (as amended by the Amsterdam Treaty, 1997)
Treaty of the European Community EC (as amended by the Amsterdam Treaty 1997)
The 1976 Protocols to the 1946 Geneva Conventions on Humanitarian Law (1976)
UNESCO Convention against Discrimination in Education (1960)
UN Charter (1945)
UN Convention on the Elimination of All Forms of Discrimination Against Women (1979) 
UN Convention on the Elimination of All Forms of Racial Discrimination (1965)
UN Convention on the Rights of the Child (1989) 
UN Convention Against Torture, Inhuman and Degrading Treatment (1984)
United States Constitution and Bill of Rights (1787, 1789)
Universal Declaration of Human Rights (1948)
Vienna Convention on the Law of Treaties (1969)

Annex 4 – Special Abbreviations

CAT: 	UN Convention Against Torture, Inhuman and Degrading Treatment 
CEDAW:	UN Convention on Elimination of All Forms of Discrimination Against Women
CERD:	UN Convention on the Elimination of All Forms of Racial Discrimination
CFI:	Court of First Instance of the European Court of Justice
CRC:	UN Convention on the Rights of the Child
ECJ:	European Court of Justice
ECHR:	European Convention on Human Rights
ETS:	European Treaties Series (Council of Europe)
HRC:	UN Human Rights Committee
ICCPR:	International Covenant on Civil and Political Rights
ICESCR:	International Covenant on Economic, Social and Cultural Rights
ICJ:	International Court of Justice
IGC:	Inter-Governmental Conference (EU)
PCIJ:	Permanent Court of International Justice
TEC:	Treaty on the European Community
TEU:	Treaty on the European Union
UNTS:	United Nations Treaties Series
US:	United States Reports