[Company name][Company address]

The Charter of Fundamental Rights of the EU brings together in a single

document the fundamental rights protected in the EU. The Charter contains
rights and freedoms under six titles: Dignity, Freedoms, Equality, Solidarity,
Citizens' Rights, and Justice. Proclaimed in 2000, the Charter has become
legally binding on the EU with the entry into force of the Treaty of Lisbon, in
December 2009.
It could be said that the area of fundamental rights was alien to legal order in
the EU as the EU was firmly based on economic foundations; and prior to the
creation of the Charter, the Courts refused to allow the EC Treaties to be
overridden by a plea based on fundamental rights. Fundamental rights are
seen to be universal, pertaining to all humans; however, these rights had
little importance and applicability in the ECJ and this was demonstrated by a
number of cases. The case of Geitling v High Authority shows how the ECJ
rejected the suggestion that Community law might give some protection to
fundamental rights contained in the German constitution. It was stated by
the ECJ, that Community law, does not contain any general principle
guaranteeing the maintenance of vested rights.' Likewise, in Stork v High
Authority, it was established that the Court could not examine a complaint
which maintains thatit infringed principles of German constitutional law'.
Despite fundamental rights being part of the general principles of German
constitutional law, the European Courts persisted in its refusal to consider
such rights which had been central place in German law. This demonstrated
that the protection of fundamental rights was far from adequate. It also
supports the view made by the President of the European Commission that
there was a need to make more visible and explicit to European citizens the
fundamental rights; the explanation that it needs to be more visible'
suggests that the EU wanted to be clearly seen to be protecting the citizens
of the Union Fortunately, the courts attitude began to change from that of
Stork, Sgarlata and Geitling to develop the protection of fundamental rights.

This suggests that it was also identified by the ECJ that this area was
inadequate, and shows that the ECJ supported the view that there was a
need to create a charter, it is necessary to strengthen the protection of
fundamental rightsby making those rights more visible in a charter'. It also
shows that the ECJ recognized the need to observe certain fundamental
rights when applying Community law. This could have been partly due to the
fact that challenges were made against community law as member states
felt EC legislation was encroaching upon important rights protected under
national law. Consequently the Charter of Fundamental Rights of the
European Union was drawn up by a democratic and efficient Convention'
and signed by 15 Member States as a political declaration at the Nice
Summit in December 2000. It contained a plethora of rights from civil and
political to social rights for all of the citizens of the European Union.
Unfortunately, although the charter had been proclaimed it was not
considered legally binding until December 2009 when the Lisbon Treaty
came into effect. The Lisbon Treaty being primary EU law made the Charter
directly applicable in courts across the EU. So, prior to 2009 the fundamental
rights were never expressly adopted by the European Courts and have only
recently come to play a significant role in common law.
During the year following the Charter's proclamation the ECJ dealt with 23
cases relating to fundamental rights, and although they were not bound by
the Charter the AG's made reference to it in 14 of the cases. This suggests
that the Advocates General of the Court of Justice were in support of the
Charter. In the case of Netherlands v European Parliament and Council of the
European Union Advocate General Jacobs referred to the Charter directly to
determine the fundamental status of the right to human dignity and the right
to free and informed consent' of the individual concerned in the fields of
medicine and biology; showing that having a document to refer to is an aid
for the courts to interpret the rights of individuals. AG Tizzano, in
Broadcasting, Entertainment, Cinematographic and Theatre Union (BECTU),

gave the Charter a central role in supporting the judgment contained in his
opinion. Although he acknowledged that the Charter was formally, not in
itself binding'; in paragraph 26, he referred to Article 31, section 2 of the
Charter as even more significant' legal evidence of the way by which one
should solve the case at hand. He went on further to state that the Charter
served as a substantive point of reference for all those involved' because it
appeared in large measures to reaffirm rights which are enshrined in other
instruments'. His statement suggests that it was necessary to have a Charter
as it is easier to refer to when the rights are laid down as clear as they are in
the Charter; previously if a case came before the courts they would have to
decide whether there was a fundamental right involved or not, the Charter
makes it clear exactly what these rights are. AG Mischo, in his part of the
opinion invoked the Charter as additional authority, adding major reflection
on the democratic qualities of the process through which the Charter was
drafted; I know that the Charter is not legally binding, but it is worthwhile
referring to it given that it constitutes the expression, at the highest level, of
a democratically established consensus on what must today be considered
as the catalogue of fundamental rights guaranteed by the Community legal
order.
The Advocates General were not alone in supporting the case for legal force,
In 2002 the Court of First Instance joined in the support of giving the Charter
legal force; in the case of Max.Mobil Telekommunikation Service GmbH v the
Commission it made reference to Articles 41 and 47 of the Charter, thus
demonstrating their willingness to use the Charter as a source for legal
reasoning. The Charter has also been used by the European Court of Human
Rights, where the Vice-President, judge Costa used the Charter in his
separate but concurrent opinion in Hatton and Others v The United Kingdom.
Costa referred to the provisions on the protection of the environment (Art 37)
in order to show that the case law of ECHR had not been alone' in becoming
increasingly aware of the importance of environmental issues.

Despite the diverse references made to the Charter the judges of the
European Court of Justice had not referred to the Charter, not even in cases
where the AGs had. The ratification of the Lisbon Treaty means that, in cases
concerning fundamental rights the ECJ are bound to call on the Charter. The
treaty of the European Union, Article 6 (1), declared that the union shall
recognize the rights, freedoms and principles set out in the Charter of
fundamental rights.' It goes on further to state that the principles shall have
the same legal value as the Treaties', one can see that the Union recognizes
fundamental rights and gives them growing importance. There is also the
addition of Article 6 (3) which states that Fundamental rightsshall
constitute general principles of the Unions law'. It can be inferred by this
addition that the EU would like to ensure that any future legislation which
they introduce does not infringe any of the fundamental rights; this
demonstrates the importance that the incorporation has as it alters the way
in which the Commission of the EU can legislate. It can be said that what
fuelled the EU to incorporate the Charter into the Treaty was that the legal
representatives of the parties before the Court of Justice were finding it
increasingly necessary to refer to the text of the Charter in their own
arguments, this could have eventually forced the ECJ to consider the Charter
and make reference to it in some form. On one hand it could be said that if
the Charter had been incorporated into the primary Treaties initially (under
the Treaty of European Union) then it would have been given immediate
constitutional force from the start; or it would have taken the form of
secondary legislation as directives, again giving it legal force and making it
directly applicable by the ECJ. On the other hand, it could be said that even if
the Charter had been incorporated into the primary Treaty, then it may not
have had much legal bite as the mandate to which the Convention worked
was only to consolidate the existing EU law of the ECHR. Therefore, it could
be argued that no new law was created. Prior to the Charter being legally
binding citizens would have been able to challenge EU law on any of the
rights within the Charter under the ECHR as many of the fundamental rights

are already contained in the Convention and so they were protected. So, it
could be said that no new legal force was required for the Charter and it did
not need to be incorporated into the Lisbon Treaty. Nonetheless if we are to
believe that the Charter is a proper consolidation of the existing law, then it
must be seen as an authoritative evidence of the law in force and thus
should be taken into account by legal actors, consequently giving it legal
force.
Discussion regarding the legal stance of the Charter was debated in 2002; it
was stated that, a very large majority of speakers supported incorporation of
the Chartermaking the Charter a legally binding text.' Others had
previously downplayed the significance of the Charter therefore questioning
the need for incorporation; in 2000, Tony Blair stated his disapproval of the
Charter by describing it as simply a statement of policy.' He went on to say,
the UK is not the only member state to oppose something of a binding legal
nature.' This argument can be reasoned by suggesting countries such as the
UK, feared that if the Charter became legally binding it would create new
legal obligations which would undermine their national sovereignty. However,
with hindsight it can now be said that EU citizen's rights are strengthened
and the level of protection of fundamental rights is raised, regardless of
where the citizen chooses to live, work or travel. It also makes the EU
accountable to its citizens as an EU citizen can now challenge the legality of
acts of the EU institutions and Member States when acting under Community
law, in regards to the Charter. Prior to the incorporation into the Lisbon Treaty
the citizen had no precise way of enforcing their rights under the Charter, so
essentially it was an insufficient form of protection just having the Charter
and not making it legally binding. One could infer that now that the Charter
has gained legal status, the law on fundamental rights will become stronger
and more precise.

Bibliography

Arnull, A et al. European Union Law, 5th edition (Sweet and Maxwell:
London, 2006), pp. 285-322

Chalmers, D. et al. European Union Law (Cambridge University Press:

Cambridge, 2006), pp. 246-58

Craig, P. The Lisbon Treaty: Process, Architecture, and Substance'

(2008) 33 European Law Review 137, at pp. 162-5

Craig, P. et al. EU Law: Text, Cases and Materials, 4th edition (Oxford
University Press: Oxford, 2007), pp. 412-8

Dougan, M The Treaty of Lisbon 2007: Winning Minds, Not Hearts'

(2008) 45 Common Market Law Review 617, at pp. 661-672

McColgan, A The EU Charter of Fundamental Rights' (2004) European

Human Rights Law Review, 2-5

Treaty of Lisbon amending the Treaty on European Union and the Treaty
establishing the European Community [2007] OJ C306/01

http://www.europarl.europa.eu/charter/pdf/text_en.pdf