From the Treaty of Maastricht to the European Charter of Fundamental Rights

The first treaty article to contain a general statement of the importance of fundamental rights was art. F(2) of the Treaty of Maastricht (the original TEU), which provided that

the Union shall respect fundamental rights, as guaranteed by the European Convention for the Protection of Human Rights and Fundamental Freedoms … and as they result from the constitutional traditions common to the member states, as general principles of Community law.

Although the European Union Charter of Fundamental Rights (the EUCFR or, simply, the Charter) was published at the Nice Conference in December 2000, it was not included in the resulting Treaty of Nice 2001 and so was not incorporated into EC law (as it then was). The Treaty of Lisbon subsequently took a rather roundabout approach to the Charter by amending the TEU which now states:

The Union recognizes the rights, freedoms, and principles set out in the Charter of Fundamental Rights … which shall have the same legal value as the Treaties. (Art. 6(1) TEU.)

At a purely practical level, therefore, the Charter has the same status as it would have had if it had been expressly incorporated into EU law. However, two points must immediately be made.

First, the Charter is not intended to create any new rights, being merely declaratory of a range of existing personal, civil, political, economic and social rights which already existed in a variety of legislative instruments, including the legal systems of both the EU itself and its members states, as well as in international conventions from the Council of Europe, the United Nations and the International Labour Organization.

Secondly, the United Kingdom has negotiated an opt-out from the Charter, to the effect that neither national courts nor the Court of Justice can declare domestic law to be incompatible with the Charter. However, this opt-out is expressed in terms of preventing judicial declarations of incompatibility, rather than preventing reliance on the substance of the pre-existing rights which the Charter is designed to recognise.

Chapter I: dignity (human dignity, the right to life, the right to the integrity of the person, prohibition of torture and inhuman or degrading treatment or punishment, prohibition of slavery and forced labour);

Chapter II: freedoms (the right to liberty and security, respect for private and family life, protection of personal data, the right to marry and found a family, freedom of thought, conscience and religion, freedom of expression and information, freedom of assembly and association, freedom of the arts and sciences, the right to education, freedom to choose an occupation and the right to engage in work, freedom to conduct a business, the right to property, the right to asylum, protection in the event of removal, expulsion or extradition);

Chapter III: equality (equality before the law, non-discrimination, cultural, religious and linguistic diversity, equality between men and women, the rights of the child, the rights of the elderly, integration of persons with disabilities);

Chapter IV: solidarity (workers’ right to information and consultation within the undertaking the right of collective bargaining and action, the right of access to placement services, protection in the event of unjustified dismissal, fair and just working conditions, prohibition of child labour and protection of young people at work, family and professional life, social security and social assistance, health care, access to services of general economic interest, environmental protection, consumer protection);

Chapter V: citizens’ rights (the right to vote and stand as a candidate at elections to the European Parliament and at municipal elections, the right to good administration, the right of access to documents, European Ombudsman, the right to petition, freedom of movement and residence, diplomatic and consular protection);

Chapter VI: justice (the right to an effective remedy and a fair trial, presumption of innocence and the right of defence, principles of legality and proportionality of criminal offences and penalties, the right not to be tried or punished twice in criminal proceedings for the same criminal offence);

Chapter VII: general provisions.