The General Provisions of the Charter of Fundamental Rights of the European Union

• Published date: 01 December 2002
• DOI: http://doi.org/10.1111/1468-0386.00162
• Author: R. Alonso García
• Date: 01 December 2002

The General Provisions of the

Charter of Fundamental Rights

of the European Union

R. Alonso Garcõ

Âa*

Abstract: The Charter of Fundamental Rights of the European Union provides the

Union with a `more evident' (as the European Council of Cologne asked for) framework

of protection of the individuals before the public authorities within the European context,

after more than thirty years (since the Stauder Case) of full con®dence in the leading

role played by the jurisprudence of the Court of Justice of the European Communities.

This new normative catalogue of fundamental rights (included the so called `aspirational

fundamental rights') implies one more instrument of protection which has to ®nd its own

place with regard to the protection aorded by the national Constitutions and the

international agreements on human rights, particularly the European Convention on

Human Rights, which are already a privileged source of inspiration for Court of Justi ce

of the European Communities. It is the main objective of the General Provisions of the

Charter to clarify which is that place and the relationship with those other levels of

protection as managed by their supreme interpreters (i.e., the ConstitutionalÐor

SupremeÐCourts of the Member States of the Union and the European Court of

Human Rights).

Introduction

The general provisions (or horizontal clauses) closing the Charter are located in

Chapter VII, Articles 51±54, and aim to settle issues regarding all the rights and

liberties proclaimed therein, particularly those related to: the scope of the Charter, the

limitations that may be set to the fundamental rights that are guaranteed, the

relationships with other instruments for the protection of human rights, and ®nally

on how to impede the abusive use of the Charter.

It must be noted that the following re¯ections are made under the Kantian

imperative commitment, `as if ' they made reference to a fully legally binding Charter.

1

European Law Journal, Vol. 8, No. 4, December 2002, pp. 492±514.

#Blackwell Publishers Ltd. 2002, 108 Cowley Road, Oxford OX4 1JF, UK

and 350 Main Street, Malden, MA 02148, USA

* Professor of Administrative and Community Law, Complutense University, Madrid

1

Paraphrasing A. Rodrõ

Âguez Bereijo, former President of the Spanish Constitutional Court and Govern-

mental representative in the Convention, when describing how the Convention approached the elaboration

of the Charter (La Carta de Derechos Fundamentales de la Unio

Ân Europea ±Leccio

Ân inaugural del Curso

Acade

Âmico 2000±2001, Universidad Autono

Âma de Madrid, at 12).

On the scope of the Charter while it is simply proclaimed by the European Parliament, the Council and

the Commission, I will only point out that lack of legally binding force does not imply lack of legal eects.

This can be proved by the role that the European Convention of Human Rights has played in the

Scope

2

To start o with what is clari®ed by the Charter, Section 1 in Article 51 puts an end to

the extravagant approach taken by the Maastricht Treaty and later the Treaty of

Amsterdam regarding the ®eld of application of the community fundamental rights

and their judicial control.

It is well known that respect for fundamental rights understood as general principles

of Community Law shaped by the Court of Justice, was built by the Court itself more

than thirty years ago as one of the foundations for the functioning of the community

institutional apparatus.

3

And in 1992, the Court was already demanding the afore-

mentioned respectÐto a certain extent and according to the terms that we will now be

analysingÐin the activity of Member States, under the ultimate control of Luxem-

bourg.

In Maastricht, when it was decided to give constitutional formality to the Court of

Justice doctrine, this was done, as I mentioned before, a little extravagantly:

4

Article

F.2 TEU con®rmed respect for fundamental rights by the Union (without mentioning

December 2002 General Provisions of the Charter

#Blackwell Publishers Ltd. 2002 493

Community legal order, acting as an essential source of inspiration for the Court of Justice in shaping the

community fundamental rights (a role which takes us to a soft law context as does the Joint Resolution of

the European Parliament, Council and Commission on fundamental rights, 5 April 1977: see my work `El

soft law comunitario', (2001) 154 Revista de Administracio

ÂnPu

Âblica, at 71, 83.)

As the Commission stated in its Communication on the legal nature of the Charter of Fundamental

Rights of the European Union (COM (2000) 644 ®nal, 11 October 2000), `it is reasonable to assume that

the Charter will produce all its eects, legal and others, whatever its nature'. `It is clear', it speci®ed, `that

it would be dicult for the Council and the Commission, who are to proclaim it solemnly, to ignore in the

future, in their legislative function, an instrument prepared at the request of the European Council by the

full range of sources and European Legitimacy acting in concert'. And `likewise', it added `it is highly

likely that the Court of Justice will seek inspiration in it, as it already does in other fundamental rights

instruments', in such a way that `it can reasonably be expected that the Charter will become mandatory

through the Court's interpretation of it as belonging to the general principles of Community law'

(notwithstanding, the Commission considered preferable `for the sake of visibility and certainty as to the

law, for the Charter to be made mandatory in its own right and not just through its judicial

interpretation').

Therefore, the criteria of action will still be determined by fundamental rights as general principles of

Community Law, and not by the Charter per se. But in the praetorian construction of such rights, the

Court of Justice can hardly ignore the Charter, considering it crystallises the sources of inspiration

handled by the Court itself, and constitutionally imposed by the Treaty of Maastricht.

That is precisely the argument raised in the Court by Advocate General Tizzano's Conclusions in the

BECTU case, 26 June 2001 (C-173/99),in support of the `con®rmation thesis' (by the Charter, of rights

provided in other legal instruments, including the Convention and the constitutional traditions of the

Member StatesÐL. Burgorgue-Larsen, `La Charte des droits fondamentaux de l'Union Europe

Âen

raconte

Âe au citoyen europe

Âen', Revue des Aaires Europe

Âennes, at 406). V. Constantinesco, for his

part, considers that we lie before an interinstitutional agreement, `whose binding authority towards the

Institutions that accepted it could be argued'. (`La Carta Europea de Derechos Fundamentales. Una

visio

Ân desde Francia', Anuario de Derechos Humanos (Instituto de Derechos Humanos. Universidad

Complutense, Madrid, 2001) at 179, 191).

2

Article 51. `1. The provisions of this Charter are addressed to the institutions and bodies of the Union

with due regard for the principle of subsidiarity and to the Member States only when they are

implementing Union law. They shall therefore respect the rights, observe the principles and promote

the application thereof in accordance with their respective powers. 2. This Charter does not establish any

new power or task for the Community of the Union, or modify powers and tasks de®ned by the Treaties.'

3

Case 29/69 Stauder v Stadt Ulm [1969].

4

Or `anomaly', as it is called by Tesauro in `Il ruolo della Corte di giustizia nell'elaborazione dei principi

generali dell'ordinamento europeo e dei diritti fondamentali', in La costituzione europea. Atti del XIV

Convegno Anuale della Asociazione italiana dei costituzionalisti (Cedam, Padova, 2000) at 319.