The EU Charter: are we in or out?

1 March 2011 by Rosalind English

Like many points of European law, the question whether the UK and Polish protocol to the EU Charter of Fundamental Rights amounts to a full opt-out is mired in confusion and political prejudice.

Its characterisation as an opt out or a mere “clarification” depends on where one stands on the eurosceptic/europhile spectrum.  So where do we find a practical rather than an ideological answer to this important question? Certainly not in the political or academic record.

First, a reminder of what the Charter is all about. From the very early days of the European Community the Court of Justice (ECJ) has relied on fundamental principles of human rights as an interpretative tool, and the key provisions of the Charter  are derived from the ECHR, which is uncontroversial enough. However a large number are drawn from the Community Social Charter 1989 and the Council of Europe’s Social Charter 1961. These are the so-called “social and economic rights” which appear to transform aspirational norms into judicially enforceable ones, like the right to work or healthcare. These “rights” are largely to be found in the “Solidarity Title” of the Charter, and it is to this part of the Treaty that the UK secured an opt out at the European Council in 2007.

The Charter

Article 6(1) TEU (the Lisbon Treaty) gives legal effect to the Charter, if only by reference (it does not form part of the Treaty itself). Although it has full Treaty force, the Charter does not extend the competence or powers of the EU (Article 51(2) of the Charter and  Article 6(1) TEU).

So if it adds nothing to the general requirement of EU law to respect fundamental rights, what is the Charter there for? Member states that were sufficiently suspicious of its inclusion to file opt outs did so as a precautionary measure, with the UK seeking a written guarantee that such troublesome provisions as Article 28 on collective agreements and Article 30 on unfair dismissal would not apply to British labour law. But apart from the self-denying ordnances of the Treaty and Charter themselves, there are other limiting factors, not least of which is the long-established rule of ECJ jurisprudence that human rights aspect of Community law is only binding on member states when their actions engage EU law (citing Case 5/88 Wachauf and Case C-260/89 ERT ).  Article 52(5) of the Treaty seeks to address member states’ anxieties about social and economic rights by defining them as non-justiciable “principles” which

do not give rise to direct claims for positive action by the Union’s institutions or Member States authorities

And of course there is Protocol 7, which has the same legal value as the Treaty and the Charter.

The “opt-out”: UK and Poland Protocol 7 of 2007

The status of this instrument is controversial, with pro-EU lawyers clustering on the “clarification” side and the eurosceptic press on the “full opt-out” side. In her admirably succinct paper on the Charter Marie Demetriou concludes that the protocol does nothing more than confirm that the Charter does not extend judicial powers.  This is because the 8th and 9th recitals refer to “clarifying” the application of the Charter. This chimes with other advice from high places which characterises the function of the Protocol as interpretative only.  Not entirely surprisingly, the EU House of Lords’ Select Committee has declared that

The Protocol is not an opt-out from the Charter. The Charter will apply in the UK, even if its interpretation may be affected by the terms of the Protocol.

On the other hand, the Protocol taken at face value seems to bear out Tony Blair’s declaration at the 2007 summit that the Charter was never going to be justiciable in British courts. Article 1 is worth quoting in full:

The Charter does not extend the ability of the Court of Justice of the European Union, or any court or tribunal of Poland or of the United Kingdom, to find that the laws, regulations or administrative provisions, practices or action of Poland or of the United Kingdom are inconsistent with the fundamental rights, freedoms and principles that it reaffirms

Of course there will always be those who seek to dilute the effect of such provisions by insisting that they do nothing more than assert the obvious, such as reminding national courts that Charter law is only applicable to matters within the scope of EU law and not to issues of purely internal law.

‘Competence creep’

But whatever the commentators say, the question of whether the protocol bites as an opt out will only be settled in the courts, and there is yet to be a case where this point arises directly.   In a 2008 speech the then Attorney General Lord Goldsmith observed that, were the Courts to “seek to conjure new or extended rights out of the Charter, than the UK’s Protocol would indeed have teeth”.

We have to remind ourselves why the UK went to the trouble of seeking the protocol – and drafting it – in the first place. The fear was, and is, that social and economic rights will be allowed entry via the back door if matters engaging EU law are to be adjudicated according to these principles in local courts.  Such rights, barred by painstaking negotiation from the ECHR and its protocols, might be used to review UK legislation and rendered jusiticiable.

The Charter in practice

The Court of Justice was initially somewhat reluctant to invoke the Charter and preferred to refer generally to general principles for the protection of human rights. However more recently specific references to the Charter are being made to confirm a particular interpretation of EU law, most notably the principle of effective judicial protection encapsulated in Article 47. This provision, though aspirational, is not classed with the cluster of social and economic rights under Title IV and therefore is not specifically caught by Article 1 of the Protocol.  The UK needs therefore to pay particular attention to the development of this provision in the case law of the Court of Justice. It played a part in Joined Cases C-317-320/08 Alissini in March 2010, but a much larger role was assigned to it later in the year in  Case-279/09 DEB Deutsche Energiehandels- und Beratungsgesellschaft mbH

This reference concerned the right of access to justice set out in Council Directive 2003/8/EC and  affirmed by Article 47 of the Charter. The company (EDB) sought reparation from Germany for the delay in the transposition of Directive 98/30/EC outlawing discrimination in access to the national gas networks. They submitted that as a result of that delay, they had been unable to obtain access to the German network and were therefore obliged to forgo profits of nearly four billion Euros.

German law requires an advance payment before a party can pursue a claim and in such circumstances legal aid is only available to natural persons, not companies.  EDB was refused legal aid because it was unable to make that necessary advance payment, and also because the conditions for German legal aid had not been fulfilled, viz.  that a significant group of people (in addition to the parties to the litigation) should be affected by discontinuance of the action before the courts. The grounding of this litigation was not considered to entail such a drawback.

The German Constitutional Court has consistently ruled that,

in the final analysis, the granting of legal aid is a measure of social assistance which is derived from the principle of the social State and is necessary for the safeguarding of human dignity, something which is not applicable in the case of legal persons.

The reason for this reference was because the local court was uncertain whether the refusal of legal aid for the pursuit of an action seeking to establish State liability under EU law might be inconsistent with the principles of that law, in particular with the principle of effectiveness.

The Court’s decision

In reaching its conclusion the ECJ specifically rephrased the referred question in terms of Article 47, asking in other words whether that provision precludes a national rule under which the pursuit of a claim before the courts is subject to the making of an advance payment in respect of costs. The Court made extensive reference to the Strasbourg case law on the right of a legal person to effective access to justice under Articles 6 and 13 ECHR, but in the end the Charter Article worked as a portmanteau for this laborious (and repetitive) process, since Charter provisions have to be interpreted in the light of Strasbourg case law anyway.

Whilst the grant of legal aid to legal persons is not in principle impossible, ECHR case law shows that it must be assessed in the light of the applicable rules and the situation of the company concerned. This is a signficant shift in the court’s position, from being somewhat coy about human rights, to relying on them directly as part of its own legal toolbox: it concluded that  the word ‘person’ used in the first two paragraphs of Article 47 of the Charter may cover individuals, but, from a purely linguistic point of view, it does not exclude legal persons.  So a blanket ban on legal persons receiving legal aid was in breach of EU law in that it offended against Article 47 as interpreted in the light of Strasbourg jurisprudence.

The fact that the ECJ left it to the national court to decide whether this was a breach of EU law in the particular circumstances of the case should not detract from the message imparted by the judgment as a whole. A fundamental principle of German constitutional case law has been made to give way to a provision of the EU Charter. And the UK public funding system is not immune from attack on this basis: the LSC funding code limits the grant of legal aid to natural persons.

Watch this space.

Sign up to free human rights updates by email, Facebook, Twitter or RSS

Read more:

• The paper tiger that is no threat to Britain’s fundamental rights: Alan Dashwood
• Can EU law protect asylum seekers in these straitened times?
• Entrenched EU law? Yah boo