THE EU CHARTER OF FUNDAMENTAL RIGHTS: WASTE OF TIME OR WASTED OPPORTUNITY? BY K D EWING
Keith Ewing is President of the Institute of Employment Rights. He is Professor of Public Law at King’s College London. He wishes to thank Brian Bercusson for his comments on an earlier draft of this booklet, but also wishes to make clear that the views expressed are his alone. This publication, like all publications of the Institute, represents not the collective views of the Institute but only the views of the author. The responsibility of the Institute is limited to approving its publication as worthy of consideration within the labour movement.
ISBN 1 873271 94 8 May 2002 published by the Institute of Employment Rights 177 Abbeville Road London SW4 9RL 020 7498 6919 e-mail ier@gn.apc.org www.ier.org.uk printed by Upstream (TU) 020 7207 1560 £6.50 for trade unions and students £20 others THE
INSTITUTE OF
E M PLO Y M E N T RIGHTS
the EU Charter of Fundamental Rights: waste of time or wasted opportunity?
executive summary
by K D Ewing
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contents
FOREWORD
John Edmonds General Secretary GMB
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executive summary
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the Charter of Fundamental Rights of the European Union: waste of time or wasted opportunity? introduction conflicting visions reasons to be sceptical
why does Europe need a new Charter of Fundamental Rights?
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4
fundamental rights and the EU constitution the paradox of the EU constitution
the EU Charter of Fundamental Rights in outline: dignity, freedom and equality
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the EU Charter of Fundamental Rights
from dignity to freedom from freedom to equality
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the EU Charter of Fundamental Rights in outline: solidarity, citizenship and justice
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from solidarity to citizenship from citizenship to justice
empty rhetoric or sententious platitudes? vagueness and imprecision equivocation and qualification
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a dilution of standards?
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the dilution of workers’ rights? the dilution of trade union rights?
legal scope and status of the EU Charter
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legal scope of the EU Charter legal status of the EU Charter
but no new task or power
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the 1989 Charter compared the Social Charter compared
what needs to be done?
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scope and content of the EU Charter legal status of the EU Charter
conclusion: the constitutional convention
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obstacles to full incorporation dangers ahead APPENDIX ONE
EU Charter of Fundamental Rights, 2000
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EC member states and international labour standards
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endnotes
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recent Institute publications
60 waste of time or wasted opportunity?
APPENDIX TWO
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foreword
Although imperfect in content and standing, the Charter of Fundamental Rights marks a further step in Europe-wide social rights. Trade unions will campaign to improve the Charter and to make it legally enforceable in all Member States. Just as importantly, the Charter must be ‘brought home’ to the UK, to supplement the Human Rights Act with social and economic rights. This publication by the Institute helps us to see the way ahead.
the EU Charter of Fundamental Rights
John Edmonds General Secretary GMB
iv
executive summary
The EU Charter of Fundamental Rights was solemnly proclaimed by the heads of government at Nice in December 2000. The Charter is a wide-ranging document, drawing inspiration from existing human rights treaties – such as the European Convention on Human Rights and the Council of Europe’s Social Charters of 1961 and 1996. Most countries are in breach of these obligations by which they have been inspired.
This booklet provides a full analysis of the Charter, and concludes that there is a great deal to be done if it is to be regarded as a serious contribution to the protection of fundamental rights in the EU. Two areas of particular concern are highlighted. The first is that the provisions of the Charter are vague, imprecise and highly qualified. And the second is that the Charter has an uncertain legal status and is not directly enforceable in legal proceedings. There is now an opportunity to address these failings following the establishment of the Constitutional Convention which met for the first time in February 2002 to consider the future constitutional arrangements of the EU. If the EU is serious about the protection of rights, the next step should be for the Charter to be incorporated into the treaties, to be legally enforceable, and to be binding on the EU institutions, Member States and employers who operate within their borders.
waste of time or wasted opportunity?
But although the new EU Charter includes workers’ rights and trade union rights, it has failed to meet the expectations of the people of Europe. They have a Charter in which ‘rights’ are visible, in accordance with the ambitions of some of its authors. But although ‘visible’ they currently serve little practical purpose, being largely unenforceable. It is a Charter which teases and mocks, but does not yet deliver anything of substance.
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WHAT IS THE INSTITUTE? The Institute of Employment Rights was launched on 28th February 1989. As a labour law “think tank”, supported by the trade union movement, its purpose is to provide research, ideas and detailed argument. In 1994 the Institute was granted charitable status. The Institute has attracted wide and distinguished support. Among the membership are John Hendy QC, Professor Keith Ewing, Lord McCarthy and the general secretaries of Britain’s largest trade unions. The results of the work of the Institute are published in papers and booklets. It also provides short articles, free of legal jargon, for trade union journals and other publications. The Institute provides tools of analysis and debate for the trade union movement in the area of labour law. We are not a campaigning organisation. The Institute does not assume that legal measures can offer ultimate solutions for political, economic and social problems. However, it recognises that law has a part to play in influencing the employment relationship, both individually and collectively. Funding is from various sources, including subscriptions which entitle subscribers to a copy of all our new publications. If you are interested in subscribing or would like to know more about the Institute, then contact us at 177 Abbeville Road, London SW4 9RL, 020 7498 6919.
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