This post is based on an article in the NICEM journal Migrant Rights Now available at http://minorityrightsnow.wordpress.com/2013/12/16/minority-rights-now-winter-2013-14-is-here/
As the Ministry of Justice is consulting on the EU Charter of Rights as part of the Balance of Competences review (deadline 13 January), this is a good opportunity to reflect on the potential for the EU Charter to enhance the protection of rights in Europe.
Traditionally the European Union (EU) did not focus on human rights issues but this has changed dramatically in the last few decades. Most notably, in 2000 the three EU institutions solemnly proclaimed the EU Charter of Fundamental Rights as a non-binding declaration. In 2004, during the discussion of a European Constitutional Treaty, it was proposed to include the Charter in the Treaty and give it legal force. As a consequence, several states successfully urged redrafting of parts of the Charter to clarify its precise legal effect. In 2009 the Treaty of Lisbon adopted important provisions in Article 6 and Article 7 Treaty on European Union. These confer the same legal status on the Charter as the treaties themselves possess.
The Charter is a complex document with numerous limitations; but it also offers some important potential to further human rights protection in Europe.
First, the Charter incorporates the rights in the familiar European Convention on Human Rights but in some important ways enhances them. Thus the prohibition on slavery and forced labour (Article 5) includes an explicit prohibition on human trafficking. The right to marry (Article 9) is expressed in gender neutral language. The equality clauses include a free standing guarantee of equality before the law (Article 20), while the list of prohibited grounds of discrimination explicitly include disability, age, sexual orientation, genetic features (none of these are explicitly included in the Convention provision).
Second, the Charter includes many rights which are not listed in the Convention (though in some cases they may be implicit). These include specific mention of academic freedom, freedom to conduct a business, asylum, the rights of the child, the rights of the elderly, integration of persons with disabilities, workers’ rights to information and consultation, collective bargaining and action, placement services, dismissal protection, fair and just working conditions, family and professional life, social security and assistance, health care, access to services of general economic interest, environmental protection and consumer protection. The Charter also includes ‘citizens’ rights’ which particularly relate to the relationship with Union institutions and provide for European Parliament and municipal elections, good administration, access to documents, an Ombudsman, right to petition, free movement and residence and diplomatic protection.
In relation to dignity, several developments are noteworthy. First, there is the Cimade and GISTI case, where the CJEU ruled that the minimum conditions of reception for asylum seekers must always be respected even if the state where the seeker is present is not the one responsible for determining the asylum claim (Cimade and GISTI v Ministre de l’Interieuer C-179/11, 27 September 2012). These minimum conditions include provision of housing, food, clothing and daily expenses allowance. In so interpreting the Directive 2003/9, the Court relied on Article 1 (dignity) and 18 (asylum) of the Charter. Also on dignity, in NS and ME, the CJEU ruled that EU law does not offer an irrebuttable presumption that all EU states respect fundamental human rights. Accordingly, EU state cannot return an asylum seeker to the EU state who would normally have responsibility for deciding the claim if that state permits the systematic breach of asylum seekers’ rights (NS and ME v Secretary of State for Home Department; Refugee Applications Commissioner Case C 411/10 and Case C 493/10, 21 December 2011). In a more recent case on the rights of a child asylum seeker, the CJEU invoked the best interests principle in the Charter to interpret EU law to require that when a child has lodged requests for asylum in multiple states and there is no adult relation of the child in a Member State, then the state where the child is present has responsibility for the chid (MA v Secretary of State for the Home Department Case C-648/11, 6 June 2013.).
The inclusion of social security has already given rise to an interesting decision, though unfortunately its implications will not apply to the UK and Ireland. The Directive on Third Country Nationals 2003/109/EC of 19 November 2003 recognises that states may limit the provision of social benefits for third country nationals to ‘core benefits’. It then becomes important to determine what counts as a core benefit. In Kamberaj the CJEU has ruled that housing benefit was a core benefit; in so doing the CJEU invoked Article 34 of the Charter which refers to social and housing assistance a providing for a decent life for all (Kamberaj v Istituto per l’Edilizia sociale della Provincia autonoma di Bolzano (IPES), Case C-571/10, 24 April 2012.). (The UK and Ireland are not bound by the relevant directive and so this reasoning, at least based on this directive, cannot apply in these jurisdictions.)
Third, a key potential of the Charter system stems from the specific legal status of EU law. These provide legal tools often considerably stronger than those within the Convention system. Thus claimants can argue that national law should be disapplied in the face of conflicting supreme EU law, and can seek compensation under the Francovich principle of state liability.
Fourth, the Charter system includes some important information tools provided by the Commission and the Fundamental Rights Agency. These include the FRA’s Charterpedia database which provides information on Charter related case law and the Commission’s e-justice portal which provides information on justice systems throughout the EU.
Fifth, the Charter system provides for monitoring of the state of human rights in the EU – this is provided by the Fundamental Rights Agency reports and by the Commission including the Commission’s Annual Charter Report. In relation to equality, the Commission’s Annual Report (European Union, 2012 Report on the Application of the EU Charter of Fundamental Rights (2013)) highlights a number of serious problems including xenophobic and racist violence, gender inequality and homophobia. On the former, the Report notes that nearly one-fifth of Roma and one-fifth of Sub-Saharan African interviewees reported having been the victim of violence assault or threat during the previous 12 months. The Report also noted that very few states (only four including the UK) compiled comprehensive data on this problem.
The Report also includes an annex on gender equality issues, including the gender pay gap, gender pensions gap and inequalities in the membership of decision-making bodies. These last points are included in a lengthy appendix and highlight a number of serious concerns:
- The economic crisis originally affected male employment more but since then cuts in the public sector have impacted on women;
- while women are 60% of university graduates, they are only 46% of PhD holders and only 11% of university heads;
- the gender pay gap was about 16%;
- four times as many single parent households are headed by a female parent;
- the gender pension gap is 39%.
Sixth, and perhaps most importantly, the Charter system has the possibility for an enforcer – the Commission has the power to take enforcement action against states if they are in breach of their EU obligations. This can result in a court case before the CJEU. Importantly for instance the Commission took a successful case against Hungary arising of its judicial reform laws and has begun another case against Hungary based on data protection laws. In the judicial reform case, the CJEU found that decision to lower the retirement age for judges by eight years without any staggering process constituted a disproportionate form of age discrimination (European Commission v Hungary C-286/12, 6 November 2012). It is notable that this case was expedited by the CJEU; the process took a mere five months.
While this is a high profile and high politics case, the Commission’s work covers a great deal else. It can receive communications alleging breaches of Union law and can make representations, engage in negotiations etc based on the information received. On homophobia the Commission has intervened with Maltese authorities on its laws impacting on same-sex partners of EU citizens who moved to Malta; the state amended its laws in response. The Commission also intervened in Council of Europe negotiations on a recommendation on blood donors to urge that no discrimination on sexual orientation be permitted.
In conclusion, the Charter is not a perfect instrument for the protection of human rights; there are question marks over its scope of application and its effectiveness in relation to the UK and Ireland in particular may be limited due to a number of opt-out possibilities for these countries. Nevertheless, the Charter expands the range of rights protected, contains mechanisms that provide important resources for disseminating information about human rights and human rights abuses and also offers the possibility for some redress either through the Court of Justice of the EU, or through the action of the Commission.