The Fundamental Rights of the EU on the 20th anniversary of the Charter

The Charter of Fundamental Rights was published in the Official Journal of the European Union on December 18, 2000, following its proclamation by the Parliament, the Council and the Commission. The Charter is therefore twenty years old, and as such, it is appropriate to take stock of its existential baggage. First of all, a clarification is in order: the formally accredited age - which leads one to believe that we are dealing with a young, fresh creature (you know, twenty years is nothing) - is misleading, since it does not reflect the real age of its content. And the fact is, the rights that the Charter incorporates in its text, with a few exceptions, are not of its own creation: they were already part of the Community order for a much longer time. This situation gives us cause to recall that the biography of the fundamental rights of the Union shows a process of progressive maturation, developed over a very long period of time and in which the Charter emerges as an essential, though not isolated, milestone.

It is well known that the European Communities created at the end of the 1950s showed an essentially economic orientation based on demands for the implementation of a common market - without internal borders, and whose primary elements were the freedom of movement of workers, capital, services, and goods. As a direct consequence of this approach, the original Community legislation came into being without fundamental rights.

With the passage of time, however, this shortcoming was remedied thanks to the action of the Court of Justice of the Union, which affirmed (Stauder judgment, 1969) not only that such rights formed part of the Community legal order as general principles, but also that, in order to determine their content, it is necessary to determine the content of the fundamental rights; it also stated that, in order to determine their content, it was essential to take into consideration, in addition to their own legislation, the common constitutional traditions of the member states ('Internationale Handelsgesellschaft' judgment, 1970) and the international treaties on the subject to which these member states are party ('Nold' judgment, 1973), including the European Convention on Human Rights ('Rutili' judgment, 1975).

Thus conceived, the EU’s system of fundamental rights of the Union was forged on a legal foundation of a pluralist nature (which remains to this day) in which the affirmation of its autonomy is combined with the reception of the state constitutional culture and with that derived from the European Convention. This jurisprudential conception, moreover, will allow the gradual incorporation of new rights into the Community universe, binding in any case the actions of its institutions as well as those of the member states, although only when they apply or develop European norms. It is in this precise sphere that the law of the Union enjoys primacy and direct effect, which generates the displacement of domestic provisions, which are inapplicable even if they have constitutional rank. From the outset, this approach generated serious reservations among certain national constitutional courts (especially in Germany) which, in the exercise of their function as the highest guarantors of their own Constitution, set insurmountable limits to the Europeanization of fundamental rights at the domestic level.

Even so, the blood did not run to the river and peaceful coexistence was maintained in practice and the European process continued to advance. Thus, the original economic integration was joined by important elements of political integration, with democracy, freedom, the rule of law and also fundamental rights being affirmed as values of the Union. As early as the Maastricht Treaty, respect for these values was affirmed as a principle of the Union, and in the Amsterdam Treaty (1997) the commitment to respect them became a condition for the accession of new states.

This dynamic of openness did not, however, bring with it the incorporation into the treaties of a specific European 'Bill of Rights'. Fundamental rights did exist in the Union, but they were not expressly systematized at the highest normative level. Precisely to fill this gap, the Charter was proclaimed following the approval of the Treaty of Nice (2000). But, it did so without any legal value or binding effect. The reluctance expressed by the United Kingdom and Denmark was decisive in this regard. The Charter was thus born without the attributes of a legal norm which limited its effects to the symbolic realm. After the failure of the European Constitution project (2004) as a result of the rejection expressed by the citizens of France and Holland in the consultations which called for its ratification, the status of the Charter -inserted in the former- did not undergo any modification. The moment of truth would come with the Treaty of Lisbon (2007), in which it finally came of age legally by being attributed a legal value similar to that of the treaties.

The present Charter of Fundamental Rights is thus the culmination of a long and arduous journey. It endows the Union with a substantial and highly democratic element, contributing decisively to underpinning its constitutional nature.

However, one should not lose sight of the fact that the Charter limits its effects exclusively to the sphere of competence of the Union, without being able to produce effects beyond that sphere. This means that the declarations of fundamental rights contained in the constitutions of the member states, although they remain in force, have a significantly diminishing effect in relation to those matters ceded to Brussels. This is because when the state authorities act within the scope of application of European law, the provisions of the Charter also prevail over domestic constitutional provisions. The traditional dialectic between legal systems, therefore, far from disappearing, continues to be in force, calling for the strengthening of the dynamics of reciprocal accommodation to resolve possible discrepancies.

After many more years in force, twenty years have passed since, thanks to the Charter, the fundamental rights of the EU obtained express visibility in the treaties. The achievements are unquestionable, but there is no room for complacency. The serious coercion coming from Poland and Hungary, which grievously threatens basic elements of the rule of law, including respect for fundamental rights, highlights the need for the Union to place among its immediate priorities the strengthening of its commitment to them.