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The EU Charter would become legally binding if it was incorporated into the Treaty. The legal consequences of such incorporation could be significant.

First, as with equal pay for men and women (Article 141, ex 119 EC), the Court could attribute binding direct effect to provisions of the Charter which were considered sufficiently clear, precise and unconditional.

Secondly, the doctrine of “indirect effect”, which requires national courts to interpret national laws consistently with EC law, would apply with great force to the rights guaranteed in a Charter incorporated into the Treaty.

Thirdly, the violation by the EU or a Member State of a fundamental right guaranteed by the Charter in the Treaty would very likely constitute a breach of EU law giving rise to liability under the Francovich principle.

Fourthly, despite Article 51(2) of the Charter, the competences of the Community and the Union are frequently a subject of litigation between those seeking to extend, or to limit them. It is likely that in such cases the ECJ will prefer to give an expanded interpretation of the powers and tasks of the Community and Union where these are necessary in order to safeguard the EU Charter rights.

Finally, social rights guaranteed by the Treaty would put pressure on the Commission to make proposals for their implementation.

The Charter’s references to national laws and practices affect the trade union and labour rights in Articles 27 (Workers’ right to information and consultation within the undertaking), 28 (Right of collective bargaining and action) and 30 (Protection in the event of unjustified dismissal). In contrast, no restrictions of this character are expressed in other Articles of the Charter, including Article 12 (Freedom of assembly and of association), Article 15 (Freedom to choose an occupation and right to engage in work, Article 21 (Non-discrimination), Article 23 Equality between men and women, and Article 31 (Fair and just working conditions).

Supremacy of EC law

The fundamental principle of the supremacy of Community law would be undermined if Charter rights were limited by national laws and practices. This would certainly be the case if the Charter were incorporated into the Treaty. Member State courts adjudicating on a dispute over violation of a Charter right could ignore the Charter if it conflicted with national laws and practices. The European Court of Justice (ECJ) would also have to give priority to national laws and practices. The ECJ is unlikely to agree to this.

Where national laws and practices restrict the rights granted, the supremacy of Community law requires that the objectives of the Community in granting these rights should allow for an interpretation overriding the limitations in national laws and practices.

 

 

 

 

 

National laws and practices and international standards

These “national” standards appear to be less national than international standards. Article 52(3) states that corresponding Charter rights, including those referring to national laws and practices, are to be the same as those in the ECHR. National laws and practices must not, and cannot, conflict with the ECHR, since all Member States have ratified the ECHR. Article 53 similarly binds the Charter to a level of protection not less favourable that various international standards. Again, national laws and practices should comply with these international standards. The EU Charter’s reference to national law means no more than compliance with these international standards. National laws and practices may not prescribe standards less favourable than international standards.

National laws and practices: the maximum standard?

If Charter rights are limited to national laws and practices, the national standard becomes not the minimum, but the maximum standard. This eliminates any added value of the Charter.

The added value of the Charter will only be realised if the references to national standards in the Charter are treated as fixing the minimum standards on which Charter rights may improve.

Diversity of standards among Member States

The most important justification for the Charter is that it established a common set of fundamental rights guaranteed to all citizens of the EU. This is lost if fundamental rights are subject to national laws and practices.

The danger of national laws providing different minimum fundamental rights will only be avoided if the Charter is interpreted as establishing a common set of fundamental rights which may go beyond national laws and practices.

Diversity of references to national laws and practices

The references to national laws and practices are in some twelve different Articles of the Charter and include six different formulations.

This diversity should be ignored as much as possible in favour of a common interpretation.

Interpreting the different formulation of limitations in national laws and practices

Interpretation of the Charter is complex enough without having to ascertain the precise meaning of the different references to national laws and practices. For reasons of supremacy, uniformity, EC objectives and maximum standards of human rights, the differences in the formulations should be interpreted to produce a minimum of (a) diversity among; and (b) deference to national standards.

Different formulations for different rights

The references to national laws and practices are concentrated in the Chapter on “Solidarity” rights. Formulations confining rights in general “in accordance with Community and national laws and practices” refer to some collective (collective bargaining/action) and individual (dismissal) rights in the chapter on Solidarity. But Article 12 (freedom of association including in trade unions) is not so confined. Formulations limiting rights to specific cases and conditions are only in one right in the Chapter on Solidarity (information/consultation).

Limitations on rights by reference in general to national laws and practices are concentrated in the rights in the Chapter on Solidarity. This contradicts the ethos of the Charter, which is to create solidarity by assuring a common floor of fundamental rights throughout the EU. The references to national laws and practices should be interpreted narrowly, in particular. so as not to contradict the objectives of solidarity.