The Charter of Fundamental Rights of the European Union: Between Political Symbolism and Legal Realism

By von Danwitz, Thomas | Denver Journal of International Law and Policy, Summer-Fall 2001 | Go to article overview

The Charter of Fundamental Rights of the European Union: Between Political Symbolism and Legal Realism


von Danwitz, Thomas, Denver Journal of International Law and Policy


I. INTRODUCTION

The idea to adopt a Charter of Fundamental Rights (Charter) for the European Union (EU) is a long standing demand raised over and over again since the early nineteen seventies by national constitutional courts, governments and community institutions, most notably the European Parliament and many European law scholars. (1) But the fate of the failed projects striving for a European Constitution issued by the European Parliament in 1984, (2) 1989 (3) and 1994 (4), each including a significant Human Rights chapter, (5) might already hint at the considerable difficulties that the elaboration of a Charter of Fundamental Rights will face. However at the same time it explains the important symbolism inherent in this project.

It is indeed a breathtaking endeavor in which the EU engaged itself following the decision of the Cologne summit in June 1999. (6) The EU called for a Convention charged with the elaboration of a Fundamental Rights Charter to be solemnly proclaimed by the Nice summit at the end of 1999 and eventually given full legal force thereafter by inclusion in the treaties. (7) Significant difficulties will have to be overcome to find a consensus on the role fundamental rights should play as constitutional limitations to legislative and executive powers, on their inherent balance between individual and general interests and on their judicial protection. In this respect, the legal traditions of the member states of the EU differ considerably. In the constitutional order of the United Kingdom, the sovereignty of Parliament is still going strong as we have quite recently been able to witness by the way the Human Rights of the European Convention of Fundamental Rights and Basic Freedoms have been incorporated into British law. (8) In direct opposition to the British tradition, Germany, Austria, Italy and Spain have fully embraced the concept of Constitutional jurisdiction (9) and have established Constitutional Courts as intermediate bodies between the legislative branch of government and the people in the way it has already been designed in Alexander Hamilton's Federalist papers. (10) But this concept is far from meeting consensus on the European continent. Denmark, Sweden and the Netherlands do not operate a system of constitutional jurisdiction (11) and even under the French concept of preventive constitutional control, statutory laws are still largely conceived as volonte general, an expression which has become famous afar Rousseau. (12) Therefore the Conseil constitutionnel is generally tempted to a significant extent to uphold parliamentary statutes against Fundamental Right claims. (13)

The difficulties of finding a common language on the adequate degree of fundamental rights protection against statutory law-making in Europe can nicely be illustrated by referring to a joke about our practical experience with the linguistic difficulties occurring in the melting pot of European legal traditions, the European Court of Justice (ECJ). One advantage of the multi-lingual character of proceedings before the ECJ is that it sometimes provides moments of light relief. Visitors to the Court always enjoy watching the gesticulations of the interpreters. Something that causes interpreters particular difficulty is jokes, since these often only make sense in the language in which they are told. One quick-witted interpreter got round this problem by saying "Counsel is in the process of telling a joke. It is completely impossible to translate. However, I think it would be polite to laugh ... now!" The judges dutifully chuckled at the appropriate moment and Counsel could be seen preening himself on his wit. (14)

II. CAUSES AND OBJECTIVES OF THE PROJECT

In the diplomatic language of the Cologne summit (15) the Charter is designed to express the overall importance of fundamental rights for the EU's citizens by rendering them more visible in the solemnly declared Charter. (16) Starting off from this basis it has been argued that a Charter of Fundamental Rights will enhance the citizen's identification with the EU and will therefore--similar to the idea of constitutional patriotism--form the nucleus for a future European identity. …

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