The EU Charter’s Odyssey

Since its inception, the Union has grown into a tremendously powerful political actor through ever-increasing legal harmonization. This development has significantly marginalized the role of national apex courts – the lighthouses of democracy – without adequately substituting the highest level of fundamental rights protection by the Union itself. Moreover, the globally observed trajectory of authoritarian forces from within and outside the Union is shaking its roots and questioning the vision of a lasting European polity. To fend off all these challenges, the Union should be centred around the hard-won humanistic freedoms and common values defined in the Charter, which ought to serve as a basis for common identification and a canvas to project shared visions of a political entity.

While the Charter has undergone a remarkable journey, evolving from soft general principles into a transformative force in EU law, European citizens have not embraced it as their own just yet. Even the CJEU seems more concerned with operationalising Article 2 of the Treaty on EU, which it calls the identity of the EU, than with directly acknowledging these values from the Charter. To increase solidarity and individual freedoms in the Union, counter authoritarian forces, and withstand the currently unstable global dynamics – where the EU plays a pivotal role – both European citizens and the courts must internalize and fully operationalize the Charter, taking it as their own source and vision for the future. This symposium is the first of several that aims to help make this a reality. Featuring legal scholars and practitioners examining the most pressing questions surrounding the Charter, we will demonstrate both its already proven transformative power and the areas where its potential has yet to be fully realized.

From coal and steel to individual human dignity

While the concept of a European catalogue of fundamental rights is nearly as old as the Union itself, in 1953, France firmly rejected the Community’s commitment to the ECHR. Rather than a political project, the Union was seen as merely an economic enterprise, where fundamental rights have no role to play. It took many years, along with significant domestic jurisprudential challenges – exemplified by cases like Solange and Frontini, – before the Member States finally signed the EU Charter in 2000. It took another nine years for it to become legally binding and to be placed on equal footing with the Treaties.

Then, in 2014, the Court of Justice of the European Union (CJEU) issued its Opinion 2/13, effectively nullifying the anticipated and legally mandated accession of the EU to the European Convention on Human Rights (ECHR). Driven by concerns over losing full autonomy as the ultimate authority on EU law, it indefinitely postponed the prospect of enhanced individual human rights protection under EU law.

Ten years on, the Draft revised Agreement on the Accession of the European Union to the Convention for the Protection of Human Rights and Fundamental Freedoms is still grinding in a mill, leaving uncertainty about whether this second attempt will succeed with the CJEU. However, this loose relationship appears to benefit the CJEU. On the one hand, it can always rely on its extensive case law for guidance and support, while on the other, it retains the freedom to determine how to effectively balance the rights in question as outlined by the Charter. This approach is emblematic of the CJEU’s reluctance to share any power in shaping EU law. This attitude, however, may be detrimental to the protection of European citizens. As several constitutional pluralists have shown, constructive mutual checks and balances – rather than a complete lack of oversight – contribute to better and more robust protection of fundamental rights.

Given the CJEU’s flexibility, the national courts have responded in their own ways. For example, in recent Right to be Forgotten I and II rulings, the German Federal Constitutional Court decided to directly apply the Charter in its own individual constitutional complaint proceedings in the areas which are fully harmonized by the EU law. While this case law and its implications will be thoroughly examined in the further symposiums, this innovative move underscores that the Charter’s odyssey is far from over.

A mechanism for unity in diversity

From a commercial cooperation, common coal and steel production, and a single market to avoid financial burdens of trade, Article 1 of the EU Charter nowadays guarantees the inviolability of human dignity. The Union “is founded on the indivisible, universal values of human dignity, freedom, equality and solidarity; it is based on the principles of democracy and the rule of law. It places the individual at the heart of its activities.”

The Union can only fend off accusations of being a captive of Brussels bureaucrats, a distant behemoth, or an undemocratic and opaque entity if the commitments outlined in the Charter are taken seriously. The Union’s power is far too pronounced if it fails to embody the characteristics of a liberal democracy, in conjunction with national democracies. And while legal experts nowadays are well-aware of the foundational role the Charter plays within the EU, it has failed to become a document that European citizens have embraced as their own.

In the last decade, Article 2 TEU has played a significant role in recognizing the importance of the rule of law as the central tenet of the Union and its Member States. Curiously, the Charter often seems to take a back seat when discussing issues such as judicial independence, media freedom, the prohibition of discrimination, and solidarity among peoples, to name just a few. While I commend the CJEU for its insightful and necessary interpretation of judicial applicability of Article 2 TEU, the Charter could have assumed a more meaningful role in these discussions. It appears that the Charter is still only at the nascent stage of its substantial transformative potential to help consolidate and reconcile differences in standards of protection of fundamental rights among Member States.

The blog symposium assesses the current state of European fundamental rights in light of the ongoing stalemate with the accession to ECHR due to the strong reservations expressed by the CJEU. It examines whether the CJEU has sufficiently altered its approach to the protection of fundamental rights. Finally, in light of the consistent decline in the rule of law standards in several Member States, and the possibility that the EU may need to safeguard these standards itself, the symposium questions whether and how the Charter can play a more prominent and proactive role, both alongside and beyond Article 2 TEU.

The symposium

In the coming week, numerous contributions will address urgent topical questions related to the protection of fundamental rights within the EU and the role of the EU Charter of Fundamental Rights. The symposium aims to stimulate discussion and make expert knowledge accessible regarding the Charter’s strengths, weaknesses, impact on case law, and its broader role in the protection of fundamental rights in Europe.

Whither, the EU Charter of Fundamental Rights, asks Sionaidh Douglas-Scott. The Charter is no longer a “sleeping beauty,” nor are fundamental rights merely epiphenomena in EU law. As Douglas-Scott explains, “the EU Charter contains the essence of a common language, a currency that all can understand, even if it is interpreted inconsistently and unsystematically. It still provides a means of importing morality and ethics into law, of holding power accountable, the basis for substantive justice – and the EU is better with it than without it.”

Tobias Lock explores why the EU Charter matters today the most. In his view, the inconspicuous right to an effective remedy under Article 47 of the Charter presents one of the most transformative aspects of the Charter at the moment. Through this remedy, the CJEU has managed to expand domestic law by introducing new remedies, thereby placing considerable pressure on national procedural autonomy. As he explains, the latest decision in KL v X particularly “suggests that the full potential of Article 47 is yet to be deployed.” Hence, it “remains at the frontline of the development of the Charter”.

To reconcile the apparent contradictions between diversity and an ever-closer harmonization, Pietro Faraguna, Francesco Saitto, and Marjan Kos each undertake a journey to explore solutions to this enduring issue. In his piece, “Pouring New Wine into Old Wineskins,” Faraguna suggests that new mechanisms are necessary to address these contradictions, advocating for collaboration between judges from national and European courts. Similarly, Saitto contends that reconciling national and European constitutional legalities requires acknowledging the marginalization of national constitutional courts. He asserts that “the old balances established in Italy and Germany in the 1980s are no longer adequate,” and calls for the integration of the unique roles of national constitutional courts within their respective adjudicative systems. Finally, Kos illustrates that, in the context of deeper integration, the EU may come to recognize that the effectiveness of the market is only one of the principles underpinning the nature of the Union. He proposes an alternative interpretation of Article 53 of the Charter, which could help mitigate constitutional confrontations.

Eleanor Spaventa analyzes how the relationship between the autonomy of EU law and mutual trust, as articulated in Opinion 2/13, has been interpreted as excluding the possibility of meaningfully protecting fundamental rights, thereby effectively closing the doors to the ECHR. She proposes a new reading of autonomy that illustrates the Court’s understanding of mutual trust not as a rigid concept indifferent to fundamental rights protection, but rather as a tool to achieve EU objectives. Spaventa offers a nuanced interpretation that would enable the Court to operationalize and enforce the common values outlined in Article 2 TEU while simultaneously upholding its commitment to fundamental rights. In this way, the decade-long stalemate regarding accession to the ECHR may finally be resolved.

Moreover, in a significant recent ruling in Real Madrid vs. Le Monde, the CJEU notably shifted its previous approach by prioritizing fundamental rights protection over the traditional objective of seamless judicial cooperation across the EU. In a compelling piece, Emilia Sandri explains how the Court has moved away from the principle of mutual trust, allowing national courts to introduce a public policy exception in the process of recognizing and enforcing foreign judgments. Sandri notes that, in the Court’s view, manifest breaches of fundamental rights may constitute an exception. This development significantly alters the landscape by placing fundamental rights protection ahead of the traditional goals of judicial cooperation within the EU.

This shift could importantly facilitate the EU’s accession to the ECHR, a possibility that is also relevant to new developments in the area of AI. Giovanni Zaccaroni discusses how the groundbreaking Framework Convention on Artificial Intelligence and Human Rights, Democracy, and the Rule of Law – the first of its kind – tailors its content in a way that enables the EU to join the respective Framework Convention. Such an accession would mark the Union’s first entry into one of the conventions of the Council of Europe, paving the way for further enhanced cooperation. Accordingly, Zaccaroni highlights the potential of AI cooperation to bridge the ECHR and the EU Charter, fostering a more collaborative and complementary approach to fundamental rights protection in Europe.

Finally, a group of young scholars, including Ilaria Gambardella et al., advocate for a new development regarding the Charter. To ensure that the EU is fully compliant with the Charter, they propose implementing an ex-ante review of EU legislation. This measure would significantly enhance the protection of individuals and bolster the credibility of the EU as a key player in the realm of fundamental rights protection.

Conclusion

This vibrant array of contributions reflects the significant journey the Charter has undertaken since its inception, as well as the numerous challenges that confront the realization of fundamental rights within the Union. As a supranational political entity grounded in common values rather than any other qualifiers, it must seize on the Charter’s capacity to serve as both the common language and unifying factor in a Union characterized by diversity.

For this to happen, European citizens and the courts must become familiar with the Charter and embrace it as their own. The Charter is the foundational element that truly makes the Union a community of individuals, where the inviolable human dignity of each person is respected and protected. And this is the aim of the respective project Focus – to raise public awareness of the EU Charter of Fundamental Rights, its significance, and the capacity of key stakeholders for its broader application.