The EU Charter of Fundamental Rights Back in the Spotlight
By Schona Jolly
The EU Charter of Fundamental Rights, yet again, finds itself amidst controversy in Britain as it gets tossed into the domestic Leave/Remain referendum debate. Does it impinge upon national sovereignty? Did Britain really sign up to this extension of rights? Does the Charter extend dramatically beyond the rights enshrined and protected in the European Convention on Human Rights to which the United Kingdom remains, at least for now, signed up? Digging down into the reality of the reach and application of the Charter requires a degree of hard work.
Fortunately, the EU Commission has done some of this analysis itself.
Amidst a series of extreme challenges on migration and terrorism in Europe, as well as an atmosphere of rising xenophobia and intolerance, the EU Commission has published its sixth annual report (http://ec.europa.eu/justice/fundamental-rights/files/2015_annual_charter_report_en.pdf) on the application of the Charter in 2015. The short report provides a useful overview of how fundamental rights actually have been applied and used across a range of EU policies and in Member States.
The Charter, which became legally binding with the entry into force of the Lisbon Treaty on 1st December 2009, has direct effect in the UK pursuant to the 1972 European Communities Act and has supremacy over inconsistent domestic law provisions. It is therefore a useful aid to interpreting and enforcing EU law, and can be used in domestic courts either alongside the European Convention or alone, if appropriate on areas of EU law only (although that concept can be interpreted broadly). It has proven also to be an important safeguard against any over-reaching or expansion of the EU itself, in cases such as in Digital Rights Ireland or Schrems, since EU institutions are obliged to comply with the Charter in all of their own actions.
Proposed Directives and measures concerning fundamental rights
The new EU Report usefully summarises how the provisions of the Charter have been applied by EU institutions, the CJEU and national courts over the last year. These include directives agreed by the EU Parliament and Council on the presumption of innocence and the right to be present at trial, the provision of special safeguards in criminal proceedings as well as promoting the fundamental rights to an effective remedy and a fair trial, the presumption of innocence and the rights of defence (Articles 47 and 48 of the Charter). The Victims’ Rights Directive also entered into force last year, laying down binding rights for victims, including the right to be recognised and treated in a respectful, professional and non-discriminatory manner. Equally importantly, the EU Parliament and Council have sought to strengthen the right to privacy and protection of personal data (Articles 7 and 8 of the Charter) by agreeing a data protection reform package, including a Data Protection Directive which will come into force in 2018. Further measures include those highlighting security (a proposed Directive on Terrorism) and many already-publicised measures on migration, asylum and refugees, both issues at the forefront of European policy and challenge at present.
Controversial decisions from the CJEU on discrimination
There have been two highly controversial decisions from the CJEU in the last year, applying Article 21 of the Charter (non-discrimination) with which discrimination lawyers already will be familiar already. Chez Razpredelenie is the first case on Roma discrimination before the Luxembourg court, in which it was held that the installation of electricity meters at an inaccessible height in a district densely populated by Roma was liable to constitute discrimination on the grounds of ethnic origin, given that in other districts such meters are installed at an accessible height. The Court sought to apply the Race Directive broadly, reasoning that the Directive is an expression of the principle of equality, which is one of the general principles of EU law, as recognised in Article 21 of the Charter. However, the reasoning of the Court has faced some considerable criticism (See https://www.cloisters.com/latest/indirect-discrimination-by-association-a-regressive-step and https://www.cloisters.com/latest/the-cjeu-judgment-in-chez-indirect-discrimination-by-association) and it remains to be seen how, and to what extent, it will be applied by domestic courts and tribunals.
In Léger v Ministre des Affaires sociales de la Santé et des Droits des femmes, the CJEU considered the compatibility of domestic measures in France which sought to ban permanently blood donations by men who had or have sexual relations with other men. Considering Article 21 (non-discrimination) and Article 52(1) of the Charter, the Court accepted that the ban amounted to a violation of Article 21, and was perhaps troubled by the permanency of the ban, but nevertheless held that such a ban could be justified in strict circumstances, if there were no alternative scientific means by which the recipients of blood donations could be protected from infectious diseases. The Court’s analysis of European discrimination provisions was extremely narrow, and its discussion of proportionality under the remit of Article 51 justification was somewhat muddled.
Considering both cases, the result is a mixed message from the CJEU on how it seeks to protect discrimination pursuant to Article 21 of the Charter. Although Chez Razpredelenie appears to permit a more expansive interpretation of indirect discrimination, it is too early to see how that will translate into domestic decision-making. Moreover, the Léger decision represents the narrower and more cautious, pragmatic face of the CJEU.
How does this tally with the argument that Charter permits an ever-expanding encroachment into domestic law-making? Notwithstanding these controversial decisions, non-discrimination is and remains a fundamental core principle at the heart of the EU value system, enshrined equally in a number of Directives and other case law, as well as the European Convention on Human Rights itself. Questions of interpretation aside, the right to equality is protected in domestic law by the Equality Act 2010 in any event, which is almost always the first port of call for discrimination claims. The CJEU has taken no steps in respect of the Charter over the last year which give cause to argue with any conviction that the Charter has ripped up the realm of national sovereignty.
Any place for the Charter in Britain?
The current political climate remains deeply sceptical about both human rights and Europe: Theresa May has stated recently her desire for Britain to withdraw from the European Convention on Human Rights altogether. If that were to happen – however unlikely – and Britain remained a part of the EU, after the June referendum, the Charter then would become a key external source of protection of fundamental rights. Many of those supporting Brexit have attacked the Charter as expansive and posing a real threat to national sovereignty. A careful examination, however, of the CJEU’s jurisprudence across the last six years does not readily support that analysis, in particular because it has been read in a way broadly consistent with those provisions already protected and enshrined in the European Convention, through the Human Rights Act or Equality Act or in other directives and provisions which have been transposed into domestic law.
Cloisters’ barristers are able to provide expert advice on the application and interpretation of EU Charter, Human Rights Act, Equality Act and other EU equality and human rights law.