Charter of Fundamental Rights

Charter of Fundamental Rights – a democratic revolution? [:] Dear friends and colleagues, – It is my pleasure to speak to you tonight on a topic which saw its birth during the German Presidency of the European Union, at the Cologne Summit in June 1999. The idea of establishing a Charter of Fundamental Rights for the European Union is not as new as it may sound. One of the first concrete proposals was made already in 1997 by Green then-Members of the European Parliament, Dany Cohn-Bendit, Edith Müller and Wolfgang Ullmann. We should also not forget the role that Joschka Fischer and other Green colleagues played during the months before the Cologne Summit.

For the moment, neither the EC Treaty nor the EU Treaty contains a written list of fundamental rights, although the European Court of Justice has recognised their existence and has steadily extended them through its jurisprudence. It is true that the Treaty of Maastricht introduced the concept of European citizenship, but it failed to become anything else except a very modest start. The European citizenship implies rights, such as the right to vote and stand as a candidate in elections to the European Parliament and in municipal elections in the country of residence. The EU citizens also have the right to make petitions to the European Parliament and the right to apply to the European Ombudsman in case of maladministration in the EU institutions.

Friends and colleagues, The Charter of Fundamental Rights has offered us a unique possibility to enhance the rights of EU citizens and third-country nationals residing in the European Union. The drawing-up of the Charter was entrusted, by the Cologne European Council, to a Convention which started its work in December last year. The Convention consisted of representatives of the 15 national governments, 30 national parliamentarians, 16 MEPs and the Commission. The European Court of Justice and the Council of Europe had observer status. The meetings were open to the public and regular consultations were held with NGOs and other organisations. The Greens in the European Parliament were represented in the Convention by Johannes Voggenhuber, Member of our Group from Austria. The Greens also made a strong contribution in many national delegations, e.g. in the Finnish delegation which consisted of three people, two of them with a Green background. The European Parliament’s report on the Charter of Fundamental Rights was adopted with a great majority by the plenary. The rapporteurs were Johannes Voggenhuber and Andrew Duff, Liberal Member of the European Parliament from the UK. The main message contained in the European Parliament’s resolution was that the Charter should become a legally binding document in order to avoid it to become a mere political declaration.

The question on whether or not the Charter should be binding is important, but it has to be put in some relation. I tend to believe that it is just a matter of time when the Charter of Fundamental Rights will become legally binding. The Charter of Fundamental Rights is the first step towards the European constitution. The train has started to move and it cannot be stopped any more. In this context, it is important to understand how the European Union functions as a legal system, in particular as regards the Court of Justice of the European Communities. The judgments of the Court have had a major influence on the development of Community law. This is particularly true as regards the legal protection of individuals and their rights in the Single Market. In fact, the Court of Justice is a law-creating body. One of its great merits has been its statement of principle that the EU Treaties must not be interpreted rigidly, but must be viewed in the light of the state of integration and of the objectives of the Treaties themselves. Under the Court’s continuing case-law, fundamental rights form part of the general principles of Community law and are equivalent to primary law in the Community legal hierarchy. The source of recognition of these general legal principles has so far been Article 6 of the EU Treaty, which commits the EU to respect fundamental rights, as guaranteed by the European Convention for the Protection of Human Rights and Fundamental Freedoms of 4 November 1950 and as they result from the constitutional traditions common to the Member States. One thing will thus be sure: The Court of Justice will interpret also the Charter of Fundamental Rights, regardless whether it is legally binding, or “merely” a political declaration, attached to the Treaty. Finally, it is important to guarantee that we do not aim to create conflicts with the existing framework of fundamental rights, most notably that of the Council of Europe. We have to avoid making the Council of Europe a second-class human rights organisation. The EU catalogue of fundamental rights is a supplementary guarantee for the citizens of the Member States and it is closely linked to European citizenship. In this context, the European Parliament is supporting the idea of the EU joining the European Convention of Human Rights. Germany and Spain are allegedly the only countries in the Council of Ministers that are opposed to the idea.

Like most Greens, I am, myself, also in favour of making the Charter a legally binding document. This is important symbolically, but not at any cost. After the summer holidays, it became evident that the work of the Convention was facing some serious problems and a positive outcome seemed more and more unlikely. The lengthy discussion on the concept of a family is a good example of the difficulties of reconciling between different national traditions and cultures of law of the Member States. Some southern Member States together with catholic organisation held the view that the “Nordic, Lutheran” concept of a family had won, since the Charter endorsed individual rights for social security. At the same time, the northern Member States and a number of women’s organisations considered that the final formulation was not far-going enough. After a series of compromises, the Convention was finally able to conclude its work and the Draft Charter of Fundamental Rights was adopted on 28 September. From the Green point of view, some of the most severe shortcomings of the draft text deal with environmental rights and safeguards against the misuse of biotechnology. It was out of these reasons that the Greens – as the only political group in the European Parliament – organised a public hearing with representatives of trade unions and NGOs in Strasbourg on 3 October to discuss problems related to the Charter.

I will now list some of the open questions that were raised during our discussions and will then take a more detailed look at some of them: It is regrettable that – the rights stated in the Charter do not systematically apply to all persons living within the European Union, e.g. as regards the right to vote and be elected in local and European elections. The Charter speaks about “every citizen”, but it does not mention third-country nationals residing legally in the Union. There is a lack of clear provisions with respect to the right to housing or the right to a minimum guaranteed income, or the rights of elderly and handicapped people. The Charter speaks about “respecting” these rights, but it does not guarantee them, which means that no active commitment is required.

Article 37 of the Charter of Fundamental Rights says that “a high level of environmental protection and the improvement of the quality of the environment must be integrated into the policies of the Union and ensured in accordance with the principle of sustainable development”. This is clearly less than what we have in the current EU Treaties. We as Greens consider it utmost important to have a more far-going provision on the right to the clean and healthy environment as well as the duty to protect the environment. The right should cover the present and future generations, as demanded by the European Environment Bureau, WWF, Greenpeace, Friends of the Earth and other environmental organisations in their joint proposal for the year 2000 Intergovernmental Conference preparing for the Treaty of Nice. The right to the clean environment is already recognised, for example, by the Finnish, Dutch, Belgian and Spanish constitutions. In Finland, the Greens have for the first time been able to restrict rather unlimited landowners’ rights and defend nature conservation thanks to the constitution which includes a provision on the right to the clean environment. As regards biotechnology, it is regrettable from the Green point of view that the Charter endorses without any criticism the provision banning only cloning of a “whole” human being that is included in the Council of Europe convention on bioethics.

From the Finnish perspective, the provision of the Charter on the right of citizens to have access to documents is indispensable in the name of transparency and democracy. The recent decision by the Council of Ministers to restrict public access to documents in the field of security and defence policy threatens the Charter provision as well as Article 255 of the Amsterdam Treaty which lays down general conditions for public access to documents. I am pleased about the very active role that the German Greens have played on the Länder level in promoting transparency and I hope that the Greens will continue to make an active contribution in this regard also on national and European level.

Thanks to the continuous pressure by the European Women’s Lobby and other organisations, some significant improvements were included in the final version of the draft Charter, in particular as regards the use of gender neutral language. It is, however, regrettable that the Charter provision on gender equality is not worded in a stronger way. What we need is a general gender equality clause which is separate from the one dealing with equality in the field of employment, work and remuneration. In addition, the provision condemning torture should explicitly mention gender related violence or persecution.

As I pointed out above, the content of the Charter of Fundamental Rights could have been better in many respect. We should, however, be extremely proud of the process which I think is a revolutionary one. In my opinion, the model which has been used for drafting the Charter should be used for the future treaty negotiations and elaboration of the European constitution. What I mean is that a similar convention should convene regularly, composing of Members of the European Parliament, national parliaments and representatives of the governments. The meetings should be open for the public and the position papers largely available in order to fuel public debate and to enable public participation of NGOs, trade unions and others. The current form of the Intergovernmental Conference with its diplomatic secretiveness and last minute compromises and deals between the governments is an outlived instrument to bring about the necessary changes within the European Union. Before the Biarritz summit some weeks ago, myself and Paul Lannoye, the other co-president of the Greens in the European Parliament, proposed that a constitutional process should be formally launched by the EU heads of states and government in Nice. We very much hope that the Nice Summit will at least include a reference to the Charter of Fundamental Rights in a new Article 6 and will decide that the Charter be made a legally binding document at least in the medium term. This means that the European Summit should establish a mechanism allowing the content of the Charter to be revised. The mandate of the convention should be extended to improve the current text of the Charter, which should then become a legally binding document and the first part of the future European constitution. In my opinion, the re-launching of public debate on citizen’s rights should be placed in the very core of this constitutional process. As our German member Heide Rühle has suggested, the Commission should use the PRINCE programme to fund information campaigns in EU Member States and in candidate countries on the Charter and its significance for citizen’s rights in Europe. We should, however, avoid propaganda style advertisement campaigns, something which the EU is often famous for.

Friends and colleagues, One of the biggest challenges in the forthcoming years is to look at the ways on how to enhance participatory democracy in the European Union. This includes also direct political rights of citizens, which, in my opinion, need to be reinforced. It should be considered whether we could introduce referenda, also binding referenda, into the Charter and thus into the future constitution of the European Union. We should examine, whether we could provide the citizens with legislative initiative powers by incorporating citizens’ initiatives into the Treaty, as proposed by the Italian and Austrian governments during the last Intergovernmental Conference before the adoption of the Amsterdam Treaty. The timing for this action could not be better taking into account the recent newspaper interview of Commissioner Verheugen in the Süddeutsche Zeitung and the debate that followed thereafter. I was delighted to notice that the possibility for examining the use of referenda was subsequently incorporated into the German constitution.

Friends and colleagues, We have now entered a radical new phase in the history of European integration. The EU has been forced to acknowledge that also citizens and not just states are important actors in the integration process. – The Charter of Fundamental Rights is perhaps the most visible sign for years in the effort of bringing Europe closer to its citizens and respond to their concerns. – In the era of globalisation, the EU is very much needed as a strong and efficient supranational body, which is able and willing to control global market forces. This will be possible only in a democratic, transparent Union, in which citizens have been empowered to be part of the decision-making process.

Conference on EU Charter of Fundamental Rights Heinrich Böll Foundation, Berlin 7 November 2000