The effects of the Charter in the EU's decision-making processes in the 2000s

After the solemn proclamation the Charter clearly functioned as guideline for both the Court and the EU legislature. The impact of the Charter is more visible in the interpretation practice of the Court than in the legislative proceedings of the EU legislature. There is one obvious reason for this: The Charter as a codification of the Court's fundamental rights doctrine is more an expression of the line of the Court than the will of the EU legislature.

45 See Shaw Jo: Law of the European Union. Palgrave. Basingstoke 2000, pp. 361-363. It should be recalled that in February 2000 fourteen EU Member States took bilateral actions against Austria as a result of nomination of the Austrian Federal Government in which also the right wing populist Austrian Freedom Party participated. The sanctions which were carried out outside the EU structure were lifted in September 2000 after a report by the so-called three wise men recommended putting an end to the sanctions. The sanctions against the nomination of the government coalition have been considered to be predominantly of political, not of legal nature. See Report by Martti Ahtisaari, Jochen Frowein and Marcelino Oreja. Adopted in Paris on 8 September 2000.

46 Note from the Praesidium. Draft Charter of Fundamental Rights of the European Union. Text of the explanations relating to the complete text of the Charter as set out in CHARTE 4487/00 Convent 50.

CHARTE 4473/00, Brussels 11 October 2000. p. 46.

47 See Mandate of the Working Group on the Charter. The European Convention. CONV 72/02.

Brussels 31 May 2002. There were two main aspects in the Working Group's tasks, namely the procedures for and consequences of any incorporation of the Charter into the Treaties and the consequences of any accession by the Union/Community to the ECHR.

From an institutional point of view, we can therefore conclude that the Charter played an important role already prior to its entry into force in a legally binding form in 2009 in the interpretation practice of the Court. We should nonetheless not overdo this impact simply because the Charter per se was already an incarnation of the case law of the Court. The bundling of these doctrines in an aspirational EU document failed to change the Court's stance on fundamental rights. The position of fundamental rights was already strong in the EU law before the entry into force of the Lisbon Treaty and this was mainly thanks to the Court's activism in the field of fundamental rights.

Notably during the 2000’s, especially the CJEU has contributed to this development by its adjudication in some landmark rulings. In Schmidberger, the CJEU ruled that fundamental rights which were predominantly of a general nature prevailed over economic-oriented rights which have been considered until now a sacrosanct cornerstone of EU law.⁴⁸ It would be very difficult indeed to imagine that the Court would have adjudicated in a given case in a similar manner some 20 years ago. The view presented in Schmidberger was further confirmed in case Omega Spielhallen in which the Court weighed and balanced between freedom to provide services and rights to human dignity and found the case concerned in favour of latter aspects.⁴⁹ The Charter, taking into account Advocates General opinions on these cases, may also have had an impact in putting "non-economic" fundamental rights on an equal footing with other fundamental rights.

The effect of the legally non-binding Charter was much greater in the functioning of the EU legislature. At least the proclamation of the Charter gave rise to a considerable change in the way how the Commission started to deal with fundamental rights in the preparation of EU legislation.

A good example of a matter deriving from the Charter is the Communication on compliance with the Charter dating back to 2005.⁵⁰ This Communication draws attention especially to impact assessments in the legislative process, but also takes up other viable options in securing compliance with fundamental rights at the preparatory phase of the legislative process. In the Communication, the Commission identifies the cornerstone instruments to be used for making this objective real. The first one is impact assessment that must be conducted in connection with legislative initiatives.

Impact assessments must include an evaluation of the different impacts on individual rights. The second aspect deals with explanatory memoranda included in the legislative proposals. The Commission finds that the explanatory memorandum should contain a section on the legal basis for

48 Case C-112/00 Schmidberger. In this case at issue was weighing and balancing between free movement of goods which was the basis of transport company Schmidberger’s argumentation and a decision of Austria not to prohibit an environmental protest that caused closure of Brenner motorway and thus impeded deliveries of cargo. The CJEU ruled the case in favour of Austria.

49 C-36/02 Omega Spielhallen. In this judgment, the CJEU referred to its recent case law that has highlighted the significance of the ECHR. Furthermore, the Court held that “in Germany the principle of respect for human dignity has a particular status as an independent fundamental right”. See paragraphs 33 and 34.

50 See Communication from the Commission. Compliance with the Charter of Fundamental Rights in Commission legislative proposals. COM(2005) 172 final.

compliance with fundamental rights.⁵¹ Nevertheless, these EU level initiatives are clearly closely connected to the pursuit for better regulation – a principle that has been pushed forward by institutions of the EU. Better regulation and better quality in the legislative process of the EU has been one of the most visible objectives of consecutive EU Presidencies during the last decade. The Commission has also placed more efforts on scrutinizing that any proposal for legislation is compatible with fundamental rights, particularly those set out in the Charter.⁵²

The fact that the Nice European Council brought such a political commitment of taking fundamental rights seriously in EU activities probably gave significant impetus to the EP which at the time did not have legislative competence in the field of fundamental right sensitive third pillar. The EP has always taken a high profile in the promotion of fundamental rights despite the fact that it fell outside legislative proceedings of fundamental right related legislative files.

The Council, which is even today lagging behind in impact assessments of its amendments, could not stay out of this development. It had to increasingly strengthen its ex ante review of fundamental rights and generally reinforce the status of fundamental rights in its policies.

The outcome of Nice also gave input for the Convention whose task was to prepare the Constitutional Treaty of the EU. As is known, the Convention approach to the Charter, i.e. making it legally binding, was sustained and preserved in the architecture of the Lisbon Treaty. For the time after Lisbon it is difficult to exhaustively state how much of the changes was due to the changes in competences of EU institutions, dissolution of pillar structure and how much due to entry into force of the Charter in a legally binding form.

The entry into force of the Lisbon Treaty and the significant change in the status of the Charter have also changed the position of fundamental rights in EU law. I would, however, suggest that fundamental rights had a strong position in the EU law already before the Charter was turned into a legally binding document. If fundamental rights held a strong position already in CJEU interpretation practice, the legal situation does not change a great deal if these rights are now set out in the EU primary law. I would rather claim that the change in the status of the Charter has been an important message also to

51 Ibid. p. 3. Impact assessments on fundamental rights aspects of legislative proposals bring added value to the important preparatory phase. The second point dealing with explanatory memoranda in my opinion risks becoming an empty shell with mere references to some key documents, such as the Charter. Furthermore, explanatory memorandum only reflects the Commission’s thinking behind the initiative and will not become part of an EU legal instrument when it is adopted.

52 See e.g. Communication on application of the Charter of Fundamental Rights of the European Union. SEC(2001) 380/3.

the EU legislature.⁵³ It has significantly contributed to bringing EU institutions to the apex of safeguarding Charter rights in law-making.⁵⁴

2.3. The Lisbon Treaty and the Area of Freedom, Security and Justice The EU offers its citizens an Area of Freedom, Security and Justice.⁵⁵ In Title 1 of TFEU where policy area-specific competences and their natures have been defined and set out, we should look especially at Article 4 that lists the areas of shared competence. This includes also the AFSJ.⁵⁶ The important bulk of provisions on AFSJ has been set out in Title V of the TFEU. To begin, the importance that should be attached particularly to the first paragraph of Article 67 cannot be overstated. It is stated in this paragraph that “The Union shall constitute an area of freedom, security and justice with respect for fundamental rights and the different legal systems and traditions of the Member States”.⁵⁷ The fundamental right dimension has hence been elevated to the same level as the establishment of the AFSJ with all the related rules.

The change in the EU legislative framework has brought significant changes to roles of the institutions especially in the AFSJ. One could well argue that the Union dimension in this policy area has increased and consequently the former third pillar of the EU has faced significant communitarization.⁵⁸ This can be seen in the empowerment of the EP the CJEU and the erosion of Member States’ dominance in legislative dossiers concerning fundamental rights issues. This trend seems to enhance the possibility of the Commission to provide middle ground between the Council and the EP, the new actor in terms of equal status in the legislative process.

In the AFSJ, the Member States have maintained the partial right of initiative in this field but conditions for submitting initiatives are now stricter.

Under the TFEU, it can now be made by at least seven Member States while under the EU Treaty it was possible for one single Member State to make the proposal.⁵⁹ This can be foreseen to anchor the right of initiative in the AFSJ more deeply to the Commission in the future to come. Additionally, we should see the role of the Commission also within the framework of the competences of the CJEU in the new constitutional framework in the field of fundamental rights.⁶⁰ This is the case because of the Commission’s position as the Guardian

53 For the development of the influence of the Charter on EU legislation see Violini Lorenza: The Impact of the Charter of Fundamental Rights on European Union Policies and Legislation. In Palmisano Giuseppe (Ed.): Making the Charter Rights a Living Instrument. Brill Nijhoff. Leiden 2014.

54 For recent observations of impact of the Charter see De Vries Sybe, Bernitz Ulf and Weatherill Stephen. (Eds.): EU Charter of Fundamental Rights as a binding Instrument. Five Years and growing.

Hart publishing. Oxford 2015.

55 See Article 2 of TEU.

56 In accordance with Article 4 “Shared competence between the Union and the Member States applies in the following principal areas:... (j) area of freedom, security and justice.

57 Article 67 (1) of TFEU.

58 Piris Jean-Claude: The Lisbon Treaty. A Legal and Political Analysis. Cambridge University Press.

Cambridge 2010, p. 225.

59 Piris, p. 191.

60 On the role of the CJEU in the context of the Lisbon Treaty see Andriantsimbazovina Joël: A qui appartient le contrôle des droits fondamentaux en Europe? In Favreau Bertrand (Ed.) La Charte des Droits Fondamentaux de l’Union européenne après le traité de Lisbonne. Bruylant. Bruxelles, 2010, pp.

39-40.

of the Treaties. In the field of judicial co-operation in criminal matters and police co-operation the Commission is now also allowed to bring infringement actions.⁶¹ Drawing inspiration from international organizations it can be noted that much depends on the Member States’ willingness to change the fundamental matters such as power exercised over the Member States.⁶²

This thesis aims to pre-eminently tackle the fundamental rights-based review that takes place in the legislative phase. Despite this perspective, the very recent approach of the CJEU especially in the AFSJ should also be highlight. It has become evident that with the entry into force of the Lisbon Treaty, the CJEU has also been among those institutions whose powers have grown. Previously, the CJEU held a restricted role in the matters falling under the intergovernmental pillars of the EU, but as a consequence of the latest Treaty amendments, the CJEU has penetrated into the interpretation of the former third pillar that is currently called the AFSJ.⁶³ This is of particular interest for this study because after all, the CJEU is the ultimate interpreter of the primary law of the EU and has before the Lisbon era been the major contributor to the emergence of fundamental rights in EU law.

The EU law regulating the third pillar of the EU was long considered to be a type of public international law, while lacking certain elements of EC measures, such as direct effect and primacy.⁶⁴ This is the case despite similarities to legislation under the former Community pillar. Furthermore, this legislation adopted outside the framework of the Community was different from legal instruments adopted within the framework, especially because of its enforcement with less importance attached to the CJEU for reasons of less room for legal manoeuvre. This, for its part, had an empowering effect on the national courts in this sphere. In spite of this, the CJEU engaged in bold interpretations also in the sphere of the third pillar ranging from cases Pupino to Kadi.⁶⁵ In Pupino, the CJEU stretched the obligation of loyal cooperation conform interpretation to cover also third pillar matters and secondly in Kadi blurred the demarcation line between pillars by pushing forward with the notion of coherence of EU law with the EC and EU law covered.⁶⁶ De Búrca has considered that the CJEU has expressed especially in Kadi the approach of judicial pluralism.⁶⁷

61 Piris, p. 188.

62 Steiner Henry J., Alston Philip and Goodman Ryan: International Human Rights in the Context.

Law, Politics, Morals. Third Edition. Oxford University Press. Oxford 2008, p. 670.

63 The increase of competence of the CJEU has occurred particularly in the domain of AFSJ. As Hinarejos has shown, the common foreign and security policy, that previously formed the second pillar of the EU, has also gone through a significant change, with its own special features, in terms of the competence of the CJEU. See Hinarejos Alicia: Judicial Control in the European Union: Reforming Jurisdiction in the Intergovernmental pillar. Oxford University Press. Oxford 2009 , see pp. 122-182.

64 Hinarejos, p. 17.

65 See C-105/03 Criminal proceedings against Maria Pupino and C-402/05 Kadi.

66 For a concise outline and analysis of the case Kadi from the angle of constitutional pluralism see Anthony Gordon: EU Law’s Fundamental Rights Regime and Post-National Constitutionalism. In Birkinshaw Patrick and Varney Mike (eds.): The European Union Legal Order after Lisbon. Kluwer Law International. Alphen aan de Rijn 2010, pp. 188-196.

67 De Búrca Gráinne: The CJEU and the international legal order: a re-evaluation. In De Búrca Gráinne and Weiler J.H.H. (Eds.): The Worlds of European Constitutionalism. Cambridge University Press. Cambridge 2012, p. 148.

The Lisbon Treaty means above all a drastic change in the nature of former third pillar law extension of judicial control into this sphere.⁶⁸ There has long been resistance towards increased powers of the CJEU in the previous third pillar of the EU, which was very much due to strong positions of some Member States, most notably the UK. This underscores the importance of the intergovernmental nature of this pillar.⁶⁹ The changes brought to the core of EU primary law, especially regarding the AFSJ, is likely to bring clarity to the nature of law that comprised the former third pillar, and in terms of judicial control. According to some estimations, it may also remove the need for judicial activism.⁷⁰ Further to this, the change in the constitutional framework will also most likely lead to further empowerment of operational support Agencies, such as Europol and Eurojust, that are functioning in the former third pillar. The role of the national Parliaments has strengthened in many ways as a consequence of the Lisbon Treaty. The most significant change has obviously been the national Parliaments reinforced position in reviewing the principle of subsidiarity, but there are also interesting amendments that go directly to the AFSJ, too.⁷¹ National parliaments can have their voice heard in the EU decision-making process. There are, however, a couple of limitations to this. First of all, the voice of the parliament is of indirect nature because it will be exercised through the national government. Second, it may be the case that not all national parliaments pursue to exercise this.⁷²

As the AFSJ was established in the context of the Lisbon Treaty, most of the upcoming legislation in this field was transferred to the framework of ordinary legislative procedure.⁷³ The emergence of the EP as a co-legislator will probably have a very profound effect on fundamental rights at the EU level and hence on the whole constitutional framework governing this very sensitive sphere.⁷⁴ Legal instruments of the former third pillar of the EU – for example Council Framework Decisions – which were previously used in this field, can now be replaced with Directives and other legal instruments.

Jean-Claude Piris, a merited scholar and a long-serving Director General of the Legal Service of the Council and thus the man behind the practical execution of many Treaty changes, has commented the Lisbon Treaty from the point of view of AFSJ as follows: He considers that the communitarization of measures affecting every citizen has been brought under full parliamentary

68 For analysis on impacts on such basic premises as direct effect and primacy see Hinarejos, p. 49

69 See i.a. Denza Eileen: The Intergovernmental Pillars of the European Union. Oxford University Press. Oxford 2002, pp. 314-315.

70 Hinarejos, p. 189.

71 Pursuant to Article 12 c) of TEU ”National Parliaments contribute actively to the good functioning of the Union…by taking part, within the framework of the area of freedom, security and justice, in the evaluation mechanisms for the implementation of the Union policies in that area....”.

72 Norton Philip: National Parliaments and the European Union: where to from here? In Craig Paul and Harlow Carol (Eds.): Lawmaking in the European Union. Kluwer Law International. Dordrecht 1998, p. 211.

73 Pursuant to Article 67 paragraph 1 of the TFEU: “The Union shall constitute an area of freedom, security and justice with respect for fundamental rights and the different legal systems and traditions of the Member States”.

74 The sensitivity of the area of fundamental rights can be expected to be even more visible as further

74 The sensitivity of the area of fundamental rights can be expected to be even more visible as further