The double constitutional life of the Charter of Fundamental Rights

• Author: Miguel Poiares Maduro

INTRODUCTION ¹

Let me start with a cliché: the Charter of Fundamental Rights represents a constitutional paradox. It reflects an emerging trend to agree on the use of the language of constitutionalism in European integr ation without agreeing on the conception of constitutionalism underlying such language. For some, the Charter is the foundation upon which to build a true constitutional project for the European Union. It will promote the construction of a European political identity and mobilise European citizens around it. For others, the Charter is simply a constitutional guarantee that the European Union will not threaten the constitutional values of the States. It is a constitutional limit to the process of European integration. The Charter reflects this tension between its conception as a constitutional instrument for polity building and its conception as a simple consolidation of the previous fundamental rights acquis aimed at guaranteeing regime legitimacy.² These two conceptions confronted themselves in the drafting of the Charter³ and are reflected in many of its provisions. It is thus difficult to clearly establish the nature of the relationship between the Charter and European constitutionalism. Much will depend on which of those two constitutional conceptions becomes the dominant constitutional discourse on the Charter. In this chapter I will review the impact of the Charter of Fundamental Rights on European Constitutionalism, identifying and taking into account the underlying tension between those constitutional conceptions of the Charter. They are not linked, however, to a particular position on the legal value that ought to be given to the Charter. As a consequence, the analysis undertaken in this chapter is not dominated by the debate on the legal binding value of the Charter. In some cases, the impact of the charter on the European Constitution will be largely independently of its legal value. In other cases, however, that impact may vary depending on whether or not the Charter will have legal binding value.⁴ Thus, in some instances I will assume that the Charter will be given some form of legal binding value as the work of the current Convention on the future of Europe appears to indicate.⁵ But I will also highlight current instances in which the discussion on the legal value to be given to the Charter identifies different perceptions of its constitutional impact.

The discussion on the constitutional dimensions of the Charter will also be linked to the current constitutional debate on the future of Europe. It now appears clear that both the convention and the IGC of 2004 will adopt some form of constitutional document for the European Union. But this agreement on constitutional language may hide two different conceptions on the role of constitutionalism in the EU. Such conceptions are already identifiable in the Charter. In this way, the analysis of the Charter gains an added importance in the discussion of the constitutional future of the Union.

I will start by discussing how the Charter affects the constitutionalisation of the EU. Then I will explore both the extent to which it constitutes a different form of constitution-making in the European Union and what are and/or ought to be the consequences for the current constitutional debates on the Future of Europe. Following that, I will review the impact of the Charter on the acquis communautaire and the current constitutional model of the European Union regarding both its institutional balances and its constitutional values. I will address issues such as the impact of the Charter on the role of the European courts, the scope of application of EU fundamental rights, and the balance between the different constitutional values of the Union. Next, I will discuss the polity building value of such a constitutional document: will it help in forming a European political community and legitimising the process of European integration? Finally, I will review the impact of the Charter on the relationship between the EU legal order and European constitutions, notably on the issue of ultimate legal and political authority.

1. THE CHARTER AND CONSTITUTION-MAKING IN THE EUROPEAN UNION

   The process of constitutionalisation of the European Communities⁶ has been mainly a functional development from a set of Treaty rules centred on the promotion of a common market. Europe’s constitutional dimension has, therefore, been closely linked with the logic of economic integration. Europe assumed a constitutional body without a constitutional soul: it lacked a process of truly constitutional deliberation. In some respects, the process of constitutionalisation was an unintended consequence of an inter-governmental bargaining among States, albeit later ratified by the political practice of those States. As it is well known, those constitutional consequences were mainly a product of the European Court of Justice. In this way, some perceive the process of constitutionalisation as an illegitimate expansion of the ambitions of the European integration project. Others accept and favour such constitutionalisation, but see it as lacking a full constitutional expression backed by a classic process of constitutional deliberation. The Charter reflects these two perspectives. It marks a departure from the traditional way of “doing constitutional business” in Europe, and it does so by embracing a process of deliberation much closer to the traditional forms of constitutional deliberation. However, the way in which such process is embarked upon, reflects two different constitutional perspectives. There are those who accepted the idea of a Charter of Fundamental Rights because they saw it mainly as a process of codification of the EU fundamental rights which had already been recognised in the Treaties, legislation or the case law of the Court. The Charter would both reinforce the limits on EU powers and reinstate State’s control over the process of constitutionalisation. There are others, instead, who perceived the Charter as the starting point of a truly constitutional deliberative process and the construction of a European political identity. The role attributed to the Convention, its composition, and its decision-making process, reflected elements from these two perspectives.

   As it is now well known, it was in the European Council of June 1999 in Cologne that it was decided “to establish a Charter of Fundamental Rights in order to make their overriding importance and relevance more visible to the Union's citizens”.⁷ This aim limited the ambitions of the Charter: the proclaimed goal was to make the protection of fundamental rights already provided for in the EU more visible to its citizens, and not to change the nature and scope of that protection. This was reinforced by the attribution to the Charter of a mere role of consolidating the fundamental rights already recognised in the EU legal order. Seen in this light, the Charter would mainly serve as an additional instrument of constitutional control over the EU and not of constitutional building of its polity. It would reassure that the EU would not threaten the national constitutional values identified with the protection of fundamental rights, and, by making these rights clearer for European citizens, it would increase the degree of review of the powers exercised by the EU. Furthermore, it would reinstate political control over the EU catalogue of fundamental rights which, so far, had been mainly determined by the case law of the European Court of Justice.

   But the Council also agreed on an innovative process to draft the Charter. A body, that came to be known as the Convention, was set up to prepare such draft. It was composed of representatives of the Heads of State and Government and of the President of the Commission, as well as of members of the European Parliament and national parliaments.⁸ Its specific composition and working methods were established by the Tampere Council.⁹ Though the legal status to be assumed by the Charter was left open,¹⁰ the Convention decided to work on the assumption that the Charter would ultimately be given legal binding effect. Though such process also presented elements reflecting the narrower constitutional discourse on the Charter (the role attributed to national parliaments may be seen as ascertaining that Europe’s constitution- making can only proceed through national polities) it represented, in many other respects, a constitutional breakthrough for those who argue in favour of the adoption of a real process of constitutional deliberation in the Union.¹¹ It may not to be an overstatement to say that the most important constitutional dimension of the Charter stems from its process of deliberation. Though ultimately adopted simply as declaration from the EU institutions, the Charter was the result of a drafting process that constituted a kind of constitution-making experiment for the European Union. Instead of being subject to the traditional intergovernmental process, the drafting of the Charter was the product of a different kind of process: the Convention. The proclaimed success of such method led to a similar method being adopted in the context of the current constitutional process on the future of Europe. In this sense, the Convention on the Charter consisted in an experiment of constitution-making that spilled over into the current convention on the Future of Europe. Therefore, the extent to which this method has a truly constitutional character and the impact it may have in the outcome of the current debates can, at least in part, be assessed by looking at the Convention method of the Charter.

   But what makes such process more “constitutional”? And how does it impact on the constitutional outcome? Usually, the stress is placed on the broader scope of representation entailed in such a method. As stated, the Convention was composed of representatives of the EU institutions...