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

Published date01 December 2002
AuthorR. Alonso García
Date01 December 2002
The General Provisions of the
Charter of Fundamental Rights
of the European Union
R. Alonso Garcõ
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).
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.
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
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
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
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.
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-
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:
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
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
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
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
Ân desde Francia', Anuario de Derechos Humanos (Instituto de Derechos Humanos. Universidad
Complutense, Madrid, 2001) at 179, 191).
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.'
Case 29/69 Stauder v Stadt Ulm [1969].
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.

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