Article 52 states:
"...limitations (on the
exercise of the rights and freedoms recognised by this Charter) may be made only
if they are necessary and genuinely meet objectives of general interest being
pursued by the Union..." Article 52 states:
"...limitations (on the
exercise of the rights and freedoms recognised by this Charter) may be made only
if they are necessary and genuinely meet objectives of general interest being
pursued by the Union..."
The
Dutch government attacked the new
European constitution yesterday, predicting
that it would spell the end of national
justice systems and give excessive
powers to Europol, the pan-Union police body.
Gijs de Vries, the Dutch envoy on the drafting convention, said plans for
a European Public Prosecutor with
jurisdiction over "cross-border crimes"
would set off an avalanche, allowing the European Union to take full
control over law enforcement. "The
vast majority of national criminal law will have to be harmonised in
the very near future," he said.
Under the latest draft released this week, the European Union would
acquire a justice ministry, Eurojust,
with powers to launch criminal investigations.
Europol would be able to take part in police raids
alongside national police, giving it the same sort of role as
The Government's proposals for the Convention on the Future of Europe were published this week. A draft Constitution for the EU, commissioned and partly funded by the Foreign Office, contains the proposals favoured by the British Government. Despite having said in 2000 that the EU's Charter of Fundamental Rights would not be incorporated into the treaties, and would be "no more legally binding than the Beano or the Sun", the draft would incorporate the Charter into article 2 of the new treaty. ("No" Bulletin 18/10/02)
According to article 52 of the EU Charter, the right not to be tortured may be restricted if necessary in "the pursuit of objectives of general interest recognised by the Union." (Eurofaq posting B Connolley 20/3/01)
There are radical differences, then, between the 'Charter of Fundamental Rights' (CFR) and the The European Convention on Human Rights. These reflect differences between the EU and the Council of Europe. The Council is based on independent nation states co-operating voluntarily. The EU is based on the forcible abolition of national boundaries. The ECHR is based on individual freedom, the 'CFR' reinvents collectivism. The intention behind the 'CFR' is to create a device whereby EU law overrules the European Convention on Human Rights (and hence the UK Human Rights Act). The ground is prepared for a growing power struggle between two concepts of human rights - not unlike the struggle between 'bourgeois democracy' and 'dictatorship of the proletariat'. The intention behind the 'CFR' is to increase the power of the state and enshrine its role as enforcer of 'equality'. The purpose of the ECHR is to limit the power of the state. They are therefore destined to clash repeatedly as the EU intrudes into new areas of politics and law. (12/3/01 Aidan Rankin (Researcher for EDD Group and UKIP))
The EU's Charter of Fundamental Rights has been taken into account for the first time by the European Court of Justice in a ground-breaking case that is expected to give workers on short-term contracts the right to paid holidays, writes the Telegraph. At the moment, Britain's Working Time Regulations do not comply with EU law because staff have to work 13 weeks continuously for the same employer before they become entitled to annual leave. According to the Telegraph, Britain signed the Nice charter in December with the understanding that it would not become law. The Advocate General, Antonio Tizzano, said he thought Britain was imposing restrictions on annual leave that were not permitted by EU law. If the European judges follow Mr Tizzano's recommendations, millions of freelance and contract workers in Britain will become entitled to annual leave. A ruling is expected later this year. (EUobserver.com 9/2/01)
The Political Parties, Referendums and Elections Act 2000 states that parties wishing to have a party election broadcast *must* be registered with the Electoral Commission. However, the charter of the Electoral Commission requires it to act in such a way as to, S13 of the act, 'promoting public awareness of the institutions of the European Union' (Eurofaq posting 15/12/00)
First the good news. The Charter of Fundamental Rights will not be included in the Treaty (of Nice). This is because the Irish would not be able to sign up to it without a referendum, and they have persuaded the Commission that such a referendum could not be won. The bad news, however, is that the Charter will be adopted as "soft" - that is not legally binding - law, and will be cited as an "inspiration" in the European Court of Justice, thus de facto becoming law in practice. (Eurofaq posting 5/12/00)
The British government has dropped its opposition to the European Union's new Charter of Fundamental Rights. The Prime Minister's Office said that on social and economic issues the document ‘does not assert any new rights’ and added that it would be a ‘valuable statement of the civil and political rights enjoyed by Europe's citizens’, (Electronic Telegraph. 3/10/2000)
The government last night denied Conservative allegations that its policy was "blown out of the water" by a European Commission statement that a planned European charter of rights was likely to become mandatory. The row over the charter, due to be adopted at the Nice summit next month, blew up again when the Commission published on its website a document suggesting the European Court of Justice would "seek inspiration" from the charter. The document said: "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." This appeared to go further than previous statements by the Commission, which favours eventually making the charter legally binding through incorporation in EU treaties. (Financial Times; Oct 31, 2000)
"There is good reason to accept this text as the basis for an eventual European constitution." - German Chancellor Gerhard Schroeder, 15 October 2000.
Former Europe Minister Keith Vaz: "This is not a litigators' Charter. Nobody can sue on it. Nobody will be able to litigate on it. People will be able to bring it up in the European Court as if it was the Beano or the Sun." ("No" Bulletin 13/12/01). On the Charter of Fundamental Human Rights Tony Blair said: "It has been agreed that this is a political declaration which is not legally binding" (Daily Telegraph, 15 October 2000).
"As the Commission sees it, the draft Charter of Fundamental Rights offers genuine value added, irrespective of the status it will initially enjoy. Sooner or later it will have to be incorporated into the Treaties." - EU Commission statement, (The Times, London, 13 October 2000)
'The Taoiseach warned fellow EU leaders on Saturday that even mentioning the new Charter of Fundamental Rights in the EU treaty could have the same legal effect as incorporation in the treaty.' - (The Irish Times, 16 October 2000)
'The charter's ultimate status in treaty terms will be decided later, but the vice-president of the 62-member (drafting) convention, France's Prof. Guy Braibant, told journalists that the charter would have an effect on law and politics whether or not it was part of the treaty. "If such a text exists, even if it is not legally binding, courts tend to refer to it," Prof. Braibant said. "Magistrates will refer to it and it will inform their jurisprudence." Before it had even been completed it has already been cited four times as a source of European values by the wise men group investigating Austria, he said.' - (The Irish Times, 16 October 2000)
"The Charter of Fundamental Rights should be seen as the central element of a process culminating in the European Union's adoption of a constitution." - Resolution of the European Parliament, (Agence Europe, 16-3-2000)
The Charter of Fundamental Rights has more to do with power than with rights. The only reason for seeking to give the EU a human rights competence is the desire to build up the Union further as a centralised quasi-Superstate, now that it has acquired its own currency in the euro, and will have its own army from 2003. This is because the historical experience of both national and multi-national federations has been that common human rights standards, enforced by a central legislative body and a federal Supreme Court, can be a powerful weapon in subordinating national and local Courts and Constitutions to central rule. The Charter's proponents in the Convention that drafted it have indicated clearly they have this in mind. The Charter does not strengthen the human rights or human rights protections of European citizens one whit. Rather it diminishes them by seeking to make the EU and its Court of Justice supreme over national Constitutions and Higher Courts in relation to a vast area of human life and society, supreme too over the Court of Human Rights in Strasbourg, which interprets the European Convention on Human Rights. (TEAM Briefing - European Parliament, 27/10/00) http://www.team-alliance.org
If the EU wishes to strengthen human rights protections for EU citizens, why does it not itself sign up to the European Convention of Human Rights, as its Member States have done? Finland urged this on the other EU States at the October 2000 EU summit meeting in Biarritz, but got little support. The reason is that such a step would subordinate the European Court of Justice in Luxembourg to the Court of Human Rights in Strasbourg. That would be intolerable to a body that sees itself as the Supeme Court of the developing EU Superstate. (TEAM Briefing - European Parliament, 27/10/00) http://www.team-alliance.org
One of the ECJ's judges once called it a "court with a mission." The Court of Justice is bound by the political objectives of the EU Treaty, which include furthering continual EU integration. The ECJ is broadly a "federalising" court that engages in continual judicial activism. In the tradition of continental jurisprudence it will interpret the "intent" of the framers of this Charter. For the ECJ political declarations tend to become a branch of EU common law. The Court is likely to view the Charter as another rich opportunity to extend EU jurisdiction. By contrast, the Council of Europe's Court of Human Rights in Strasbourg can adjudicate on human rights issues objectively and fairly. That is because it stands above the legal playing pitch as an impartial arbiter. It is not itself a player on the pitch, that is interested in increasing its own competence and powers by its own judgements. The ECJ on the other hand is not above the pitch. It is an active player on it. It should not be judge and jury in its own interest, as would happen if it obtains a say in people's human rights. (TEAM Briefing - European Parliament, 27/10/00) http://www.team-alliance.org
The Fundamental Rights Charter indicates that the rights set out in it are not so fundamental after all. Article 52 states: "...limitations (on the exercise of the rights and freedoms recognised by this Charter) may be made only if they are necessary and genuinely meet objectives of general interest being pursued by the Union..." This clause is extremely vague and could be subject to huge abuse in the future if this Charter should come into force. Criticisms may be made of several other specific articles in the Charter,when one considers the scope for judicial public policy-making they would create once they come to be interpreted by the judges of that "court with a mission", the ECJ. But this Article 52 is the most sinister. Most of the rights set out in the proposed Charter sound splendid - except that we already posssess them under our national Constitutions and the European Human Rights Convention, and they are already fully in being, guaranteed by our national laws and enforced by our own courts. What this Charter seeks to do is to enable the European Union and its Supreme Court, the ECJ, to get hold of our fundamental rights, as a key step in advancing its project of creating an EU Superstate and a 'harmonized' legal system in which the existing States of the EU are reduced to mere provinces, with their national democracy and independence wholly eroded. (TEAM Briefing - European Parliament, 27/10/00) http://www.team-alliance.org
The European Commissioner for the Intergovernmental Conference, Michel Barnier, has told the European Parliament that he will "fight" to ensure legal status for the Charter of Fundamental Human Rights. Speaking on Wednesday 25 October, he said: "I shall fight to give legal force to the Charter of Fundamental Rights." He went on to discuss the idea of a European "constitution", saying that the word "does not frighten me". He was responding to a report by a French Socialist MEP, Olivier Duhamel, who set out a programme for the creation of a European constitution. The report was adopted by the European Parliament. Michel Barnier’s comments are extremely embarrassing for the Government which has tried to claim that there is no real pressure for a legally binding Charter or a European constitution. (26/10/00 No-euro Briefing http://www.no-euro.com )
The EU Charter of Fundamental Rights. Drawn up by a "Convention" chaired by a former President of Germany, the Charter has apparently now been "solemnly accepted", according to a German newspaper. "Now it is a matter of making it legally binding," the paper continues. Britain, meanwhile, continues to pretend that the Charter will not have any legal force.The document has now been signed off after nine months consultation. Needless to say, this has occurred in the complete absence of any real public debate: the text of the Charter has been posted on the Internet but most people, including parliamentarians, are unaware of its existence. The European policy spokesman for the CDU/CSU group in the German Bundestag, Peter Hintze, captured the mood when he welcomed the Charter as "a milestone on the road to a European constitution". Meanwhile, the European Parliament’s delegate to the Convention, Inigo Mendez de Vigo, has said, "The preparation of the Charter implies the recognition of the Union’s political nature." For, as Die Welt also makes clear, the Charter is intended to regulate not only the European institutions, but also "all national institutions". It is, in short, the final nail in the coffin for national sovereignty. [Die Welt, 4th October 2000]
British business leaders and the Conservatives claimed that the charter - due to be approved by European leaders in December - would open the "floodgates" to new measures damaging to industry. It includes a new right to strike "at all levels" which business leaders believe could raise the possibility of cross-border industrial action, even though secondary strike action has been illegal since the 1980s. The Government fought hard to block the economic and social rights changes from being included in The European Charter of Fundamental Rights, fearing that they would undermine Britain's free-market economy. But Mr Blair's personal envoy, Lord Goldsmith, was outnumbered in the 62-strong drafting convention. Antonio Vitorino, the EU Justice and Home Affairs Commissioner, said that the European Court of Justice would use the charter as a reference text in reaching decisions even if it was purely a declaratory document. The Confederation of British Industry said it was "extremely disappointed" with the charter, which would damage business, creating "confusion and uncertainty for employers". Most sinisterly, Article 51 speaks of legitimate limitations on the exercise of rights in order to meet "objectives of general interest being pursued by the Union". This is the re-introduction of the raison d'état that the European Convention on Human Rights, drawn up after the defeat of fascism in the Second World War, sought to consign to oblivion. The drafting body has produced a Bill of Rights that will lay the foundation for a European Constitution. In June, the Brussels Commission described it as "the final transformation of European integration from its essentially economic origins to a fully fledged political union".We are confronted here with a quantum leap in European intervention. (Daily Telegraph 21st September 2000)
The president of the Federal Republic of Germany, Johannes Rau, has declared his support for the drawing-up of a European constitution. He has said that he welcomes the initiatives of Joschka Fischer, the German Foreign Minister, and Jacques Chirac, the French president, who have both said they want to see a European constitution. Mr. Rau said that he could see no alternative to a fundamental European constitution and that he preferred a major project to "seven separate treaties with 13 appendices and 25 amendments". Mr Rau made the claim that in such a Europe, individual states would regain the sovereignty which they had lost to globalisation. Mr. Rau further called for the creation of "a European federation" and said that within such a federal system, the aim had to be to separate power, not to centralise it. He called for political representation to be based on a principle of "one citizen, one vote" across Europe, together with equal representation for member states irrespective of their size: this is equivalent to calling for a directly elected executive and a senate of the states. Mr. Rau also said that the Charter of Fundamental Rights, which is due to be signed off at the Nice summit this December, would be the first step towards such a constitution. It would lay down basic social rights which would stipulate the powers of European institutions. He also called for a second part of the constitution to be drawn up to clarify the division of power between the EU and the member states. [Die Welt, 15th September 2000]
The European Court of Justice met on Tuesday to decide whether the European Union could restrict freedom of speech. The case involves Bernard Connolly, a British whistleblower who wrote The Rotten Heart of Europe after serving as a leading economist in Brussels. The European Commission tried to silence him. It was backed by the ECJ's lower court, the Court of First Instance, which ruled last year in a landmark case that "the general interest of the Communities" overrides freedom of speech. Now the issue has flared again. Connolly's lawyers argued this week in Luxembourg that this ruling gave Brussels the power to restrict hostile criticism and even punish offenders. They said it amounted to a raison d'etat claim of absolutism that violated the European Convention of Human Rights. The convention was drafted after the Second World War - largely by British lawyers - to check authoritarian government and to make it impossible for abusive regimes to suppress human rights by claiming raisons d'etat. The case is regarded as significant because Article 50 of the EU's new Charter of Fundamental Rights states in almost identical language that the rights of EU citizens can be suspended in pursuit of the "general interests of the Union", whatever those may be. The ECJ's 11 Euro-judges in this case will rule on whether the EU has given itself the power to limit political freedoms. The opinion will be written by Judge Melchior Wathelet, best known as the Belgian justice minister who bungled the Dutroux paedophile affair.( Daily Telegraph 16th September 2000)
Aspects of the Charter of Fundamental Human Rights are worrying the business world, according to The Times Business Diary. The government insists that the charter will be non-binding yet its proponents want it to be the fundamental constitution of the EU and given legal weight in the Court of Justice. While it has all the anodyne blather of a Corporation's *Mission Statement* it could effectively restore the right to secondary picketing in Britain and open the door to a host of legal actions as workers from one EU country were able to claim equal pay with workers from other member states. It would appear to give workers in (say) a plant in Bradford the right to come out in support of workers in (say) Bonn if they were in the same company. The timetable for discussion of the Charter has been speeded up and it is now headed for the Internal Governmental Conference in June. (The Times 5/4/00).
Work has begun on giving the EU that final, definitive attribute of statehood: a written constitution. The European constitution is camouflaged as a "Charter of Fundamental Rights". (http://db.consilium.eu.int/df/default.asp)Federalists want their charter to be justiciable before the European Court of Justice (ECJ), so forming an EU constitution. European judges would be empowered - or, rather, obliged - to strike down any parliamentary Act which they deemed to contravene the constitution. The transformation of the Union from an association of states into a state in its own right would, in juridical terms, be complete. A European constitution would threaten our own parliamentary democracy. The EU's judicial body, the ECJ, has a pronounced tendency to rule on the basis of what it thinks the law ought to say, rather than what it actually says. Given the way in which it has interpreted the Treaty of Rome it may not be long before its judges decide that we have a right to, say, a minimum wage, or to abortion on demand. Such decisions, surely, should be made by politicians whom we can sack, not by judges whom we can't. Once again, Britain is the EU's odd man out. The other 14 members are being asked to agree to a change in the level at which they are governed; but we are additionally being asked to accept a revolution in how we are governed. We are accustomed to the idea that we are free to do anything which is not expressly prohibited in law. Yet it is now proposed that we should be "given" our rights by a set of European judges. This amounts to a wrenching change in the relationship between government and citizen, and one which bodes ill for freedom. For, as Aldous Huxley once put it, liberties are not given - they are taken. (21/12/99 Daily Telegraph)
The London-based Democracy Movement today warned that the proposed new "European Charter of Fundamental Human Rights" would be a gigantic leap towards a federal superstate. The Charter is intended to codify "rights" granted under the EU Treaties and "deriving from the constitutional traditions of the EU member states". The Charter may contain "positive rights" (such as minimum levels of social security payments, state housing and education etc) which could be used to justify further transfer payments between member states. New mechanisms for transfer payments will in any case be necessary within the Eurozone to soften asymmetric shocks. The Charter would reinforce the Euro project by adding human rights as a justification for transfer payments not just from Eurozone members but from EU members who have retained their national currencies.(DM Press Release 20 July 1999)
A draft of the EU Charter of Fundamental Human Rights, obtained by The Times, has revealed that it would impose a raft of new regulation on British businesses, eroding their competitive advantage over the Eurozone. The Charter is being written by a "drafting convention" of 62 MEPs. Each government has also appointed an personal representative to the convention; the British representative is Lord Goldsmith Q.C, former head of the Bar Council. The Parliament and the European Commission have proposed that the Charter will assume legal force through incorporation into the new EU Treaty to be agreed at the Nice Summit in December. Business for Sterling, the Institute of Directors and the Federation of Small Business have called on the Prime Minister to make clear that he will oppose the incorporation of the Charter into the Nice Treaty. Even the CBI has signalled concern. John Cridland, director of human resources at the CBI, said: "We do not believe that the charter should make social policy by the back door. It's a Trojan horse and we believe the business community is right to be concerned about it." (Times, 1 June 2000). The Charter would also create legal uncertainty as it would cut across the existing European Convention on Human Rights which will take effect in Britain in September. (Business for Sterling 1/6/00)
The Cologne summit has affirmed the EU's commitment to establishing an "EU Charter of fundamental rights" and bringing this into the structure of the EU's legal order. It is obvious that such a move will completely destroy any last vestiges of national political and legal independence since all aspects of criminal and civil law will henceforth come under the aegis of the European Court of Justice. (European Foundation Intelligence Digest Issue No. 71 4th June 1999)
Article 19 of the Charter of Fundamental Rights says: "No one may be removed, expelled or extradited to a state where there is a serious risk that he may be subjected to the death penalty, torture or other inhuman or degrading treatment." This could prevent all extradition actions from Britain to the United States, which not only has the death penalty but also allows the use of restraining devices that have been deemed "inhuman and degrading". (D Telegraph 21/9/00)