THE DURHAM RESEARCH POSTGRADUATE CONFERENCE - JULY 2001

Ph.D. student, Law School, University of Edinburgh
<K.Kyriakou@sms.ed.ac.uk>

* I would like to thank Dr. Eugenia Caracciolo di Torella, Dr.Emilios Christodoulidis, Dr. Panos Koutrakos and Mr. Stephen Tierney for their comments on an earlier draft of this article.

© Copyright 2001 Tania Kyriakou
First Published in Web Journal of Current Legal Issues in association with Blackstone Press.

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This paper examines the normative impact of the EU Charter of Fundamental Rights. Its aim is two-fold: first, to highlight the main problems which have arisen so far in terms of human rights protection in the EU and, second, to examine whether the new Charter in its current shape promises to address these problems. The analysis will emphasise the following three issues: a) democratic legitimacy b) rule of law and c) marketisation. It concludes that the Charter in its current legal shape, although a step forward, leaves the EC/EU constitutional structure unaffected and is, therefore, not an adequate response to deeper problems.

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Contents

a) The judicial development of the EU rights and its implications: the lack of democratic legitimacy and certainty

b) The marketisation of fundamental rights

II) The EU Charter of Fundamental rights

a) Genesis and legal status of the Charter

b) The effects of the Charter in regard to the existing problems of fundamental rights’ protection

Conclusions

Bibliography

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In this paper my aim is two-fold: firstly, to sketch out the main problems, which have arisen so far in terms of human rights protection in the EU and, secondly, to examine whether the new Charter adequately addresses these difficulties.

The first part of this article is longer than the second. This is due to the fact that the list of the existing problems is a long one and one can only appreciate the normative impact of the Charter by reference to the problems it should be addressing in the first place. I believe that in constitutional issues of such fundamental importance one should adopt a holistic approach. It is only by considering the whole that the single details can also be understood properly in their interconnectedness. In taking this approach, however, I do not contend that the relevant material is exhausted.⁽¹⁾ In this paper the focus will be placed on the following issues: a) lack of democratic legitimacy, b) lack of certainty (these two, although different, will be developed together, because they are connected with the judicial development of human rights in the EU) and c) the marketisation of the concept of fundamental rights in the EU.

After having given an outline of the existing problems in the first part, I will then turn to the new EU Charter of Fundamental Rights in the second part. My analysis of the Charter will show that the current legal status of the new Charter leaves the constitutional structure of the Union practically unaffected, and, thus, fails to respond to most of the deeper problems which underlie the fundamental rights’ protection in the EU. I will conclude that the Charter is part of a generalised EU human rights rhetoric, which uses the concept of the right as a legitimising factor of the Community legal and political order without actually satisfying the conditions necessary for a consistent and coherent rights’ protection.⁽²⁾

In the original Treaties there was no legal basis for human rights (for an analysis see Dauses, 1985, at 398-399 and Ipsen, 1972, at 721). It was only when the concepts of the direct effect and the supremacy of European law were asserted by the ECJ, that it became legally and politically imperative to find a way to vindicate fundamental rights at the Community level. In response to the threat that national courts would opt for the supremacy of their own constitutional provisions on fundamental rights (see the decision of the BVerfG, Solange I [1974] 2CMLR 540) the ECJ discovered the protection of fundamental rights as a general principle of EC law (Mancini, 1989 at 595). The detailed story of the development of the ECJ’s case law on fundamental rights has been told many times and does not need to be repeated here (see Hilf, 1976, Pescatore, 1981, Clapham, 1990, Coppel & O’Neill, 1992 and Weiler & Lockhart, 1995).

The Court has held that

‘...fundamental rights form an integral part of the general principles of Community law whose observance it ensures. For that purpose, the Court draws inspiration from the constitutional traditions common to the member states and from the guidelines supplied by international treaties for the protection of human rights on which the member states have collaborated or of which they are signatories. The ECHR has special significance in that respect.’ (Case C-299/95, Friedrich Kriemzow v. Austrian State [1997] ECR I-2629, at 2645. See also Case 44/79, Liselotte Hauer [1979] ECR 3727 at 3744-3745, Case 4/73, Nold [1974] ECR 491).

It was only in 1992 that the Treaty on European Union codified the Court’s approach to fundamental rights in what is now Art. 6(2) TEU.

The Court’s reasoning, as laid out in a number of cases, makes it quite clear that the general principles of law are to be regarded as a primary source of law. However, it must be noted that the common constitutional traditions of the member states and the international treaties for the protection of human rights, to which the ECJ resorts as sources of inspiration, do not constitute a primary source of law in the Community legal order, but are mere sources of recognition of law (Dauses, 1985, at 411). This means that, although these sources offer inspiration and guidance and can help to ascertain the fundamental rights of the Community legal order, the EC/EU protection of fundamental rights is, nevertheless, autonomous in the sense that its interpretation has also to be consistent with the framework of the structure and objectives of the Community (Tridimas, 1999, at 4).

This state of protection of fundamental rights in the communities has repeatedly been the subject of scepticism and disapproval. It has been contended that the jurisprudential nature of the solution adopted by the ECJ was inconsistent with the notion of fundamental rights as constituent factors of a society which claims to be based on the rule of law and that, in a pluralistic society, systematic protection of fundamental rights can only be provided by representative institutions with democratic legitimacy.

There are two important issues raised here. The first is that of democratic legitimacy. Human rights are a fundamental part of the constitutional structure of a polity and the regulation of their protection is connected with the exercise of constituent power. Essentially the constituent power is the power of a collective body to exercise (through the very act of constitution giving) its right to self-rule and is, therefore, inseparably connected with the principle of democratic sovereignty. The ECJ’s initiative to exercise constituent power by transforming what was initially signed as an international treaty into a constitutional charter is problematic, due to the fact that only the non-constituted power, namely the people, can own the constituent power (Preuss, 1993, at 655).

The second issue raised above is connected with the concept of the rule of law. The ECJ justified recourse to general principles and, thus to fundamental rights, by reference to Art. 220 EC Treaty: ‘the European Court is to ensure that in the interpretation and application of the Treaties the law is observed’. This article was interpreted as establishing the principle of legality and as mandating the Court to develop, or rather to extrapolate the principles, which correspond to the notion of rule of law (for an analysis of the concept within the EU context see Bradley and Sutton, 1994, at 229-266). The rule of law is widely accepted as a fundamental requirement of any modern system of democratic government, but there is no clear consensus as to its exact content (Harris, 1980, at 128-138). The answers to the question ‘what is the rule of law?’ cross the political spectrum from right to left. A minimalist definition of the rule of law would be that everyone should be ruled by law; not only citizens, but also government. However, if the citizens and the government are to be ruled by the law, that means that the law must be capable of being obeyed and effectively guiding action, which brings to the fore the requirement of legal certainty. The development of the Community rights corpus as undertaken by the ECJ has offered the advantage of flexibility, but at the same time it has been unable to offer the citizens a definite and coherent code of rights.

Unlike what happens in the Community legal order, where fundamental rights are protected as general principles, at the national and the international level, these same rights usually take the form of rules. Although it has been attempted to establish a terminological distinction between non-obligatory principles of law, and binding rules of law, it is nowadays accepted that both principles and rules fall under the general category of norms. If one reads too much into the rule/principle distinction, one can say that there is a difference in normative density and that rules tend to dictate certain results, where principles incorporate a minimum substantive content and can only provide arguments for certain solutions (Cornell, 1992, at 106; compare Dworkin, 1998, at 225).

I do not believe that the distinction between principles and rules carries by itself a great normative significance as to the discretion allowed to judges. Principles of a lesser generality can be readily confused with those legal rules, which are formulated in a very general way. Besides, modern theories defy the positivist assumption that by employing deductive reasoning alone one can interpret all rules. Reasoning with principles involves recourse to second order justification (MacCormick, 1978, at 100-129), but so does reasoning with rules when these are not sufficiently clear. Indeed at the level of the national constitutions, although the fundamental rights are protected in the form of rules, these rules are very often quite general in their phrasing and a judicial decision that is based on them is allowed a wide scope of second order justification. Having said that, however, I do accept that the difference in the form of protection (rules in national constitutional and international orders - principles in the Community) may have repercussions both on the level of their hierarchical status and the restrictions imposed on them.

Under the system of hierarchy of rules, rules of a lower tier derive their validity from the rules of higher tiers and are bound to respect them. At the national level, where fundamental rights usually take the form of constitutional provisions, these are treated as the highest criteria of validation and take precedence vis a vis any other consideration, including the democratic principle, whose majoritarian-based processes they restrict. In the Community legal order, fundamental rights are part of the general principles, which are unwritten and therefore it is more difficult to define with accuracy their position in the Community pyramid of norms.

It has been accepted that fundamental rights, as general principles, are a primary source of law and, thus, take precedence over secondary Community law. Hence, they provide a standard against which to assess secondary Community law and provisions found to be incompatible with them may be declared void, invalid or inapplicable by the court. What has not yet been settled, however, is their hierarchical relationship with the Community Treaties, which of course also constitute primary law. Are all provisions of primary law of equal rank or is there some prioritisation between them? It seems that the relationship between the general principles and primary Community law requires further analysis. Different writers put forward different theories (see Tridimas, 1999, at 4-17, Dauses, 1985, at 411-412 and Meehan, 2000, at 87-93), but the Court has not given a comprehensive theoretical account of the hierarchical position of the general principles of law. I will now turn to abstracts from certain cases, which in my opinion illustrate how the fundamental rights are in fact restricted by and effectively subordinated to the economic objectives of the Treaties.

According to theoretical orthodoxy, when a legal order recognises a right as fundamental, this means that the public authorities have the burden of justifying restrictions upon it, or to use Dworkinian terminology, the individual has a trump card against public authorities given to him by the law (Dworkin, 1978, at 184-206). However, restrictions on the exercise or scope of fundamental rights may be introduced in order to safeguard other fundamental values. The restrictions are usually permitted in deference to ideas like the general interest, public order or the like and in any case, the possibilities of limiting the exercise of human rights are themselves restricted. Any limitation must be based on and justified by the constitution. Similarly, within the ECHR context, restrictions on the exercise of human rights must be prescribed by law and be necessary in a democratic society to safeguard a sort of greater good.

The ECJ has confirmed that a person’s rights may be restricted provided that the restrictions correspond to objectives of general public interest and do not constitute a disproportionate and intolerable interference with the very substance of the right protected. However, these restrictions are not prescribed by law, and it is doubtful whether ad hoc decisions of the ECJ can guarantee legal certainty in this field.

In Case 4/73 Nold v. Commission [1974] ECR 491, at 508, para 14, the Court made clear that fundamental rights had meaning in European Community law only so far as they were fitted into the Community framework. The protection of rights ‘is always subject to limitations laid down in accordance with the public interest’ and ‘within the Community legal order it likewise seems legitimate that these rights should, if necessary be subject to certain limits justified by the overall objectives pursued by the Community, on condition that the substance of these rights is left untouched’. This approach, which has been interpreted as subjecting the fundamental rights to the objectives of the Community, was strengthened in Case 5/88 Wachauf v. Germany [1989] ECR 2639, where the concept of social function was added as a limitation.

In this case the ECJ stated that:

The fundamental rights recognised by the court are not absolute, but must be considered in relation to their social function. Consequently, restrictions may be imposed on the exercise of those rights, in particular in the context of a common organisation of a market, provided that those restrictions in fact correspond to objectives of general interest pursued by the Community and do not constitute, with regard to the aim pursued, a disproportionate and intolerable interference impairing the very substance of those rights (para 18).

Hence, it follows from the ECJ reasoning that, since all rights are subject to limitations, restrictions on the EU fundamental rights are also legitimate. So far, so good. The crucial shift takes place when the limitations on human rights are justified by reference to the objectives of the Community and in particular the organisation of the common market. Both the national constitutional orders and the ECHR allow those restrictions on fundamental rights, which are considered to be necessary in a democratic society and in a democratic society politics is connected with the contestability of what counts as common good. It seems that on the EU level the common good, which justifies restrictions on fundamental rights, is identified ipso facto with the good of the common market and a fixed idea of utility. The market is effectively the substitute for democracy.

In the same vein, in Case 240/83 Procureur de la Republique v. ADBHU, [1985] ECR 520 at 531 the Court stated that ‘the principles of free movement of goods and freedom of competition, together with freedom of trade as a fundamental right, are general principles of Community law of which the Court ensures observance.’ This means that the free market rights (freedom of movement of workers, services, goods and capital) arising out of the Community Treaties are effectively translated into fundamental rights of the individual. However, if the market rights, upon which all Community law is in one or the other way grounded, are indeed treated as fundamental rights, one cannot speak of any hierarchical relationship between the market freedoms and the basic human rights as known from the national constitutions and the European Convention on Human Rights.

As Coppel and O’Neill have pointedly argued:

The invocation of the idea of fundamental rights by the European Court does not set essential limits to lawful executive action, because executive action which has as its object the promotion of the four market freedoms is itself, in the vocabulary of the European Court, instantiating a fundamental right. A claim to violation of certain fundamental human rights, hence, ceases to be a trump-card against executive action. It is no longer possible to speak of a validation of a lower norm by a higher norm. Instead two norms of equal qualitative significance are balanced against the other. (Coppel and O’Neill, 1992, at 690).

I agree with the biggest part of the critique levelled by Coppel and O’Neill against the current state of protection of human rights within the EU (see also Ward, 1994, at 315-329, Derrida, 1992 and Snyder, 1987, at 167-182). Unlike them, however, I do not believe that the deficiencies of the EU fundamental rights system should be imputed solely to the choices of the ECJ and the judges it is composed of⁽³⁾. In my view this unsatisfactory and incoherent state of affairs is due to the fact that the political structure of the EU has been built upon an aggregated system of economic integration. Given this fundamental choice, it was inevitable to end up with a system, which subordinates political freedoms to economic ones. Hence, my argument is that the reasons behind this fundamental subordination are connected with the structure of the EC rather than the institutional choices of the ECJ (for a more analytical discussion see Peebles, 1998, at 600-618 and Phelan, 1992, at 670-689).

The Treaty, which is now considered to be the constitutional charter of the Community, is concerned mostly with economic matters and deals with social questions only to the extent that they are relevant to the attainment of economic objectives. It has been contended that the successive amendments of the Treaty have introduced new competencies, which have effectively diluted its initial solely economic focus. However, the interpretation of fundamental rights still takes place in light of the objectives of the Community Treaty, which are still primarily economic. Thus, it seems that the EU Treaties as a constitution are structured in such a way as to protect individuals when they can establish some kind of economic nexus.

Let me use Case 159/90, Society for the Protection of the Unborn Ltd. V. Grogan and others [1991] ECR 4685, [1991] 3 CMLRev. 849 as an example of this (for an analysis see Phelan, 1992, at 670-689). In 1989 the Society for the Protection of the Unborn Child (SPUC) brought a case against various students’ unions in Ireland, which were distributing information about clinics performing abortions in Great Britain. The Society was in fact seeking an injunction to prevent students from distributing such information. When the Irish Court referred the case to the ECJ for a preliminary judgement (asking whether the interdiction to advertise commercially available abortions in other member states constituted a prohibited restriction of the freedom to provide services), the ECJ accepted that the Irish constitutional protection of the unborn child was a restriction on abortion and that abortion came under the definition of services, but it pronounced that the legislation at issue did not constitute a prohibited restriction, because it was primarily applicable to Irish student associations and not to clinics trying to market their services from abroad.

Grogan exemplifies how people must assert their objectified economic status in order to fall within the protection of EU law. In this case the students’ unions did not fall within the ambit of EU law, because they were not economically linked with the providers of the abortion services. Had the society for the protection of the unborn child brought a case against an economic operator, the latter would have received full protection against the specific provision of the Irish constitution. Hence, EC law protects commercial advertising, but not the liberty of information through non- profit organisations, which are not economic agents within the common market. It seems that human rights are only conferred by the EU legal apparatus on those individuals who are part of the production and circulation process. Participation in this process stands as the essential criterion of personhood that allows one properly to assume status as a citizen. As a result, one is effectively not a member of the EU civil society unless one can somehow show connection to an economic activity (Peebles, 1998, at 608).

The court has tried to dilute the concept of economic activity, but, despite all efforts, human protection under EU law is ultimately bound to economic definitions (Peebles, 1998, at 615-616). In any case, and independently of the degree of its own responsibility, the fact remains that the Court is now caught between protecting fundamental rights on the basis of some economic nexus, on the one hand, and extending human rights protection beyond the economic sphere, on the other. In this latter case, that is when the court tries to confront the economic structures of the Treaties and accord protection of rights on some other basis, it ends up expanding the competencies of the Union by the back door, which effectively amounts to a usurpation of national sovereignty. ⁽⁴⁾

In view of the fact that the EU faced a legitimacy and credibility crisis (e.g. resignation of the Commission because of allegations of corruption, abstention of the voters from the European parliament elections) and in the absence of accession to the ECHR (see Opinion 2/94 Accession by the Community to the European Convention for the Protection of Fundamental Rights and Freedoms [1996] E.C.R. I-1759), which meant that the EU institutions were not directly bound by any international human rights treaties⁽⁵⁾, it was decided to create a Charter of fundamental rights. The decision was taken by the European Council, when it met in Cologne, Germany in June 1999.

The official rationale given was the following:

Protection of fundamental rights is a founding principle of the Union and an indispensable prerequisite for her legitimacy..... There appears to be a need, at the present stage of the Union’s development to establish a Charter of fundamental rights in order to make their overriding importance and relevance more visible to the Union’s citizens. (Cologne European Council Conclusions, Annex IV, http://db.consilium.eu.int/df/default.asp?lang=en).

It is interesting to note that according to the official rationale, there appear to be no shortcomings in the protection of human rights in the Union. Hence, the Charter’s objective was to make more visible to the union’s citizens the fundamental rights that they already enjoy and not to improve an unsatisfactory situation.

The Charter, which was finally signed during the Intergovernmental Conference in Nice, was supposed, among other things, to function as a symbol that would ‘counterbalance the euro and become part of the iconography of European integration and contribute both to the identity of and identification with Europe^’ (Weiler, 2000, at 1-2). However, as Weiler had predicted, some prominent member states were opposed to enshrining the Charter in the Treaties or giving it any other binding legal character. As a result its final legal status – that of a declaratory, non-binding document- instead of consolidating a commitment to human rights, has backfired as ‘a symbol of the European impotence and refusal to take rights seriously’ (Weiler, 2000, at 2).

Being declaratory, the Charter is a soft-law instrument (Liisberg, 2001, p.7), which does not confer direct and tangible benefits on the individuals, because it lacks justiciability. However, if the rights of the Charter are not justiciable, then what are the legal effects of the Charter? Is there any surplus value that the Charter brings to the protection of fundamental rights in the EU? The answers to these questions are somehow ambiguous. It has been argued that, although the Charter is not legally binding, it creates expectations and provides a more solid basis- though not necessarily a legal one - for the commitment of the EU institutions to the protection of fundamental rights.

The Charter gives a codified catalogue of the existing rights and raises their visibility, contributing at the same time to their invocability by the subjects of the EU legal order (Lenaerts and de Smijter, 2001, at 281). It furthermore gives the judicial enforcement of fundamental rights in the EU a legally more stable foundation (Lenaerts and de Smijter, 2001, at 274) and it, thus, remedies to a certain extent the lack of clarity in the protection of EU human rights.

The Charter also offers a definition of the ‘human rights and fundamental freedoms’ upon which, according to article 6(1) of the Treaty of European Union (TEU) the Union is founded, and which according to article 6(2) the Union is bound to respect. Furthermore, the Charter can be seen as clarifying the obligations of the EU institutions and as providing a definition of fundamental rights on which to base the power of the council to suspend one of its members under title 7 of the Treaty. It is also clear that the institutions that have proclaimed the Charter, have committed themselves to respecting it (Commission Communication, COM (2000) 644, 11 October 2000). Hence, although non-binding, the ECJ might regard the Charter as a binding inter-institutional agreement (Wathelet, 2000, at 591).

Besides, according to the information offered on the Charter by the official website of the EU, it is not correct to say that the Charter has no binding force as:

...it is probable that the Court of Justice of the European Communities will draw inspiration from it. We can therefore look forward to the Charter becoming binding through its being interpreted by the Court of Justice as enshrining the general principles of Community law (http://www.europa.eu.int/comm/justice_home/unit/c.../welcome.htm).

In the same vein, Eeckhout argues that:

....there can be little doubt that counsel for parties involved in litigation with a human rights dimension before the European Courts will try to find support for their case in the text of the Charter. They will not argue that the Charter applies as such, but they will refer to it in support of their arguments. Although the Charter is not legally binding the courts can use it as confirmation rather than legal basis of their rulings on fundamental rights issues. And it is well-known that courts are very able at playing with those notions; in other words it is relatively easy for courts to characterise an element of law as mere confirmation of the court’s reasoning whereas that element was effectively the basis for the Court’s decision. (Eeckhout, 2000, at 104-105).

Once again, it is clear that the courts do not have the obligation to use the Charter as a legal basis for the cases they decide, but it is anticipated that they will refer to it for simple inspiration or confirmation of their rulings⁽⁶⁾. In other words, it is believed that the Charter will take effect in the courts through Arts. 220, 230 and 288 of the EEC Treaty as an expression of the general principles of Community law and it will, thus, eventually form part of the constitutional law of the EU. In my opinion, this is a somehow self-defeating argument. If the Charter has been created in order to address among other things the problem of democratic legitimacy and ‘to provide judges with an explicit guide to their reading of fundamental rights’ (Commission website, frequently asked questions, question no.13, http://europa.eu.int/comm/justice_home/unit/charte/en/faq.html) how can we assign its becoming binding to (one of) the institution(s), which should be bound by it?

In any case it is obvious from the above that the declaratory character of the Charter does not have any practical value as far as the normative status of fundamental rights within the EU is concerned. Had the Charter been enshrined in the Treaties, it would have become directly binding. For the time being, though, and until the next intergovernmental conference, there is no change in the constitutional status quo. The fundamental rights are still protected on the basis that they are an integral part of the general principles of Community law.

Having clarified the legal status of the charter, I will now turn to the list of problems I mentioned earlier and check whether the Charter deals with them adequately.

i) Let us start with the argument about the lack of democratic legitimacy. This was an objection to the Court’s exercising constituent power. It has to be recognised that the Charter process has been prototypical in that it was characterised by parliamentary predominance. The Convention, as the body responsible for drawing up the charter was called, included representatives of four constituencies; the member state governments (15), the commission (1), the European Parliament (16) and the national parliaments (30).

It has been argued that the drafting process ‘was not to be a genuinely participative process, but one which, albeit deliberative in nature, was to be composed only of institutional representatives from the national and European level’ (de Burca, 2001, at 131). Although there is a strong argument to be made about the need to involve in the deliberative processes the actors within civil society as well as the organs of government, there is no doubt that the drafting process of the Charter constitutes a clear improvement in the so far records of deliberative/discursive methods followed in the EU decision-making system. The fact, however, that the Charter, which is the outcome of a deliberative and democratic decision-making process, will only become binding if the Court refers to it as being part of the general principles, undermines the process itself and may backfire by discouraging involvement in such processes in the future. After all, what is the point of setting up open and inclusive processes, if their end-result is devoid of any legal strength?

If the Charter had been incorporated in the Treaties, it would have become binding and it would have privileged the democratically legitimised decision-making process over the judicial judgements. The way things stand now, the Charter will probably become binding through the Court’s referring to it as an expression of the general principles of law. The Charter may even eventually be incorporated in the Treaties. If this happens as a legislative confirmation of the judicial development that will have in the meantime taken place, I am not convinced that the problem of democratic legitimacy will have been effectively dealt with (see above, II (a): ‘Genesis and status’).

ii) As for the second issue, the one connected with the rule of law, we saw that there was a lack of certainty concerning the corpus of rights, their hierarchical status vis a vis the other Treaty protected rights and the restrictions imposed upon them. It is true that the enumeration of fundamental rights has now become clearer, in the sense that the rights protected by the Charter are obviously considered to be fundamental. Thus, the uncertainty regarding the corpus of rights no longer exists. However, due to the Charter’s non-binding character, the legal status of the EU fundamental rights’ protection has not changed. As a consequence the uncertainties which stemmed from the fact that protection of rights was granted in the form of general principles, namely the uncertainty concerning their hierarchical status vis a vis the Treaties and the restrictions imposed on them, remain as they were.

There is a lot to be gained in this direction from the Charter’s incorporation in the Treaties, especially through the function of its general provisions. By virtue of Arts. 52(3) and 53 – if the Charter becomes binding law - it is ensured that the rights and freedoms protected by the instrument will be applied as minimum standards and will not be seen as a ceiling of protection. At the same time it is clarified that in the case of Charter rights, which correspond to rights guaranteed by the ECHR, the latter will serve as a minimum in determining their meaning and scope. Hence, through articles 52 and 53 the role of the ECHR is officially confirmed as the minimum standard of fundamental rights protection in the EU. Furthermore, the Charter’s insertion into the founding Treaties, apart from extending the ECJ’s jurisdiction to the entire European Union (now it is restricted to the first pillar), would also entail that limitations on the exercise of rights recognised by the Charter could only be introduced by law (Art. 52(1) ).

On the other hand, even if the Charter becomes binding, it will still be part of EU law and ‘as such, subject to normal teleological, dynamic and effectiveness-oriented rules of interpretation that the Court applies to EU law’ (Liisberg, 2001, at 44,48). Besides, Art. 52(1) states that ‘limitations may be made only if they are necessary and genuinely meet objectives of general interest recognised by the Union or the need to protect the rights and freedoms of others’(my underlining). Hence a restriction of rights recognised by the Charter through the operation of provisions of the EC or EU Treaty will seldom be problematic (Lenaerts and de Smijter, 2001, at 283).

iii) It is clear from the above that even if the Charter becomes binding, the problem of the economic definition of fundamental rights will still be present. The marketisation of fundamental rights is connected with the deepest structures of the Community and the choice to build a political entity upon an aggregated economic one. Its solution would entail a comprehensive re-conceptualisation of the EU constitutional order and no Charter would ever be sufficient a tool to achieve this on its own.

The European legal order started as a functional legal order aiming to integrate the peoples of Europe through an integration of their economies. Despite the successive amendments of the Treaties, the introduction of new competencies and the development of human rights in the EU order, according to Art. 2 TEU and 2 EC ‘the common market still towers over all other objectives’ (von Bogdandy, 2000 at 1308). Thus, the real problem is that the EC/EU is a goal-oriented entity and its goals seem to have been decided prior to its constituency as a political entity. The EU structure will only be able to satisfy the conditions necessary for a properly constructed rights-based legal order, if it reconsiders its market foundations and re-defines its own telos.

The role of the EU Charter of fundamental rights has been the subject of widely divergent opinions. On the one hand, the Charter has been presented as a simple visibility exercise with no independent legal significance. On the other hand, it has been viewed as an important constitutional change, which will prepare the way for a federal Europe. In this article, the legal status of the Charter has been seen as the ultimate touchstone by which to measure its current importance (Lenaerts and de Smijter, 2000, at 274) and, as a result, the former stance has been adopted.

I accept that the Charter is a further step in the protection of the fundamental rights in the EU legal order in that it codifies the already existing rights, and thus offers a higher degree of legal certainty. However, the Charter - in its current legal form - does not change the status of protection of fundamental rights. Thus, it can only be seen as part of a generalised human rights talk, which aims at securing a higher degree of popular legitimacy for the Union. It is questionable whether the adoption of the Charter as a non-enforceable declaration will achieve this aim. It may very well be the case that by creating tension between its self-proclaimed aspirations and its actual effects, it will constitute ‘a recipe for further disenchantment with Europe’ (Eeckhout, 2000, at 102).

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⁽¹⁾ There are other human rights related issues such as the absence of accession to the ECHR, the lack of an EU human rights competence or the restriction of the ECJ jurisdiction to the first pillar of the Union, which, although important, will not be analysed in this article.

⁽²⁾ The argument put forward in this paper is based upon the assumption that commitment to human rights is indeed a quality, which every legal system should be striving for. I accept as a precondition for my argument that human rights talk in general can be legal reality and is not necessarily always a rhetorical instrument. My argument obviously loses its power as a critique of the EU if one embraces postmodernist approaches which refute the overall importance of rights and treat all talk of rights as rhetoric. Although I cannot defend the concept of human rights against postmodernism in this paper, my argument can retain its theoretical reliability as an internal critique of a system, which declares its commitment to human rights.

⁽³⁾ It seems that the animated debate between J. Coppel & A. O’Neill, 1992 and J. Weiler & N. Lockhart, 1995, has focused mainly on the issue of responsibility of the Court without paying due attention to the structure of the Treaties.

⁽⁴⁾ National sovereignty too can be analysed in terms of human rights, as the aggregate sum total of the political rights of the citizens of the polity/polities, whose sovereignty is being limited.

⁽⁵⁾ This means that the individual’s rights of recourse against EU institutions are more limited than they are against national authorities. The individual has no recourse to Strasbourg in the case of breaches of the ECHR by Union or Community institutions. The ECJ, on the other hand, will consider allegations of breaches of the ECHR by Union or Community institutions only in the context of a breach of community law.

⁽⁶⁾ In fact the Charter has already been cited in two opinions by advocates General of the Court. See opinion of March 22, 2001, by advocate general Jacobs in Case-270/99P, Z. v. European Parliament, para. 40 “The Charter while itself not legally binding, proclaims a generally recognised principle” on the right to have affairs handled by the institutions within a reasonable time. Also opinion of February 8, 2001, by Advocate General Tizzano in case C-173/99, BECTU, paras. 26-28 “Formally the Charter is not in itself binding, but it includes statements which appear in large measure to reaffirm rights which are enshrined in other instruments..... Accordingly I consider that the Charter provides us with the most reliable and definitive confirmation of the fact that the right to paid annual leave constitutes a fundamental right”.