The Charter at 20: Returning to its origin as a critical juncture for fundamental rights protection in the EU

The Charter of Fundamental Rights of the European Union (‘the Charter’) was proclaimed exactly twenty years ago, on 7 December 2000, and its elevation to primary law status dates to 1 December 2009. Today is thus an important anniversary for the EU’s key instrument for the protection of fundamental rights. Since its proclamation, the Charter has deepened the embedment of fundamental rights in the EU. It has been increasingly used in adjudication, even in national law (see for example here or here). Whilst many are familiar with the Charter’s jurisprudential journey, its history up to 2009 is less explored. It is for this reason that we invite our readers to follow us on a journey towards a forgotten juncture in the Charter’s coming of age: its drafting history.

One might wonder what is so particular in this drafting history. Part of the answer is its role in reinforcing fundamental rights protection at the EU level. Another part is itgs crafting of a new method for constitutional drafting within the Union. Paralleled only by the Constitutional Treaty in 2004, the Charter of Fundamental Rights was drafted by a public convention during 1999 and 2000. The Convention’s members came from diverse backgrounds, with delegates representing the Member States’ governments, their national Parliaments, the European Parliament and the Commission. It is in this process that the Convention produced a broad and diverse array of documents as its basis of work, which will be the subject of enquiry of this blog post.

These travaux préparatoires, which are now available in a single publication, might permit scholars and practitioners alike to put the Charter into its historical context but also to rely on their legal value for its interpretation. We will therefore try to challenge the state of oubliette that surrounds the days of the Charter’s drafting, extract two stories from a much larger array of narratives hidden behind the Convention, its travaux and the 54 provisions which shape the understanding of the Charter. It is in this attempt that we will sketch how the Charter came to be an instrument respective of the equality of women and men (section I) and how the Convention debated to whom the Charter’s provisions should be addressed (section II).

I. The persons behind the Charter – equality between women and men and a truly deliberative exercise?

Digging into the context in which the delegates of the Convention operated allows one to understand and assess the intentions of the Charter’s drafters. The Charter’s provision on the equality of men and women is a fitting example for this purpose. Yet, reaching a Charter respective of equality was, as Sylvia-Yvonne Kaufmann (together with Pervenche Berès, one of the two Vice-Presidents of the European Parliament’s delegation) underlines, a “difficult path”.

The importance of the matter can be seen by the fact that the exchange on equality between men and women was amongst the most deliberative of the entire Convention. While in general, the Convention’s exchanges with civil society were not fully exploited for their potential, despite being embedded in its mandate (a lesson for the Conference on the Future of Europe?), the struggle for an equality-based Charter is a possible exception to this rule.

Starting with the Association des Femmes de l’Europe Méridionale (AFEM) (CHARTE 4120/00 dated 28 February 2000), these exchanges led to close cooperation among a network of civil society organisations, including the European Women’s Lobby, the Marangopoulos Foundation of Human Rights (s. CHARTE 4231/00) and the European Centre of the International Council of Women (see CHARTE 4364/00). Together, they argued vigorously for substantive equality of women and men.

Notably, however, this pressure for substantive equality (CHARTE 4231/00) alone was not enough to convince the all-male Praesidium of the Convention that was the master of drafting and the large majority of male delegates. Even until the Convention’s final days, the Charter was neither drafted in gender-neutral language nor did it include a clause establishing equality between women and men, as was called for by civil society. This is where a second, personal element comes into play: the joint initiative of all female delegates. Judging this draft as insufficient, Sylvia-Yvonne Kaufmann submitted a joint amendment that included the current formulations and overcame attempts by many male delegates, including President Herzog, to confine the equal treatment article to employment and work (Observations reçues relatives au document CHARTE 4422/00). Article 23, in its present version, therefore provides that “[e]quality between women and men must be ensured in all areas […]” and allows for positive action “in favour of the under-represented sex”. In fact, this provision even overcomes mere codification of previous law, which focused on the world of work. It also reaches beyond the prohibition of sex discrimination contained in Article 21 by establishing an anchor for substantive equality of women and men in the Charter. The Charter’s social rights include further guarantees against discrimination of women as they establish a right to paid maternity and to parental leave (Article 33 and 34).

This shows how the Charter as we know it today – with its strong commitment to equality – is a story of joint effort by various actors, and it exposes the role of the people behind the document.

II. The provisions in the Charter, their drafting and a simple question: rights for whom? [1]

Beyond revealing the stories behind the Charter, the travaux are valuable to its interpretation. Amongst the vast array of struggles hidden behind the 54 provisions, we have chosen to focus on Article 42 on the right of access to documents to explore for whom this Charter contains rights.

The answer to this question could have been a simple one. Until September 2000 (that is shortly before adoption), the Preamble proclaimed that “Every person is […] guaranteed the rights and freedoms set out hereafter” (CHARTE 4470/00). Yet, this far-reaching principle was replaced by the mere “[t]he Union […] recognises the rights, freedoms and principles set out hereafter”. To understand who is addressed by the Charter, one must look at the individual provisions.

Let us turn to Article 42, placed under the heading of Title V – Citizens’ Rights. The Convention’s mandate provided that it “should also include the fundamental rights that pertain only to the Union’s citizens”. On its face, Title V flows from this. Still, looking closely at these rights, some – including Article 42 – address not only Union citizens but larger groups of beneficiaries.

This odd nature is explained by the drafting history of Article 42, which derives from Article 255 of the Amsterdam Treaty (TEC). Interestingly, the Praesidium and Secretariat of the Convention – the Charter’s principal drafters – doubted whether access to documents was a right pertaining only to Union citizens (CHARTE 4111/00). It was initially considered a civil-political right, which might have been motivated by Article 255 addressing any citizen of the Union, and any natural or legal person residing or having its registered office in a Member State. Despite this firm anchoring in the Treaty, the initial drafts departed consciously from this formulation by referring to “anyone residing in the Union”. Another group of delegates had proposed to widen the personal scope to cover everyone and give up its exclusive relation to citizenship and the Union territory (CHARTE 4332/00). Eventually, none of these but the formulation of Article 255 TEC was chosen for Article 42. Yet, which learnings could be drawn from the Convention’s exchanges that go beyond the wording of Article 42 and other rights under Title V that target larger groups of beneficiaries?

Two important conclusions on the Charter’s rights-holders flow from there. First, the beneficiaries of Article 42 to 44, all linked to the Union’s institutions, are identical: they apply to any citizen of the Union, and any natural or legal person residing or having its registered office in a Member State. This relates to a broader debate in the Convention on whether the Charter should also apply to legal persons (Observations reçues relatives au document CHARTE 4422/00). In fact, those three provisions were the only to refer to legal persons, and one might have wondered about the impact of this reference on the Charter as a whole. By now, it is quite clear from the case-law (here or here) that, at least, Article 16 on the freedom to conduct a business does protect legal persons. The debate on Article 42 is, therefore, evidence of an issue deliberately left open by the Convention to adjudication.

Second, Article 42 expresses a broader debate, still undecided, on its relationship with Article 11 of the Charter on the freedom of expression and information. In a last round of amendments in August 2000, delegates voiced concerns about a conflict between these articles. Indeed, Article 11 still addresses to everyone the freedom of expression, including the right to receive and impart information and ideas without interference by public authority and regardless of frontiers. The scope of its previous version was, however, broader as, according to the second paragraph, the freedom of information would be guaranteed with due respect for pluralism and transparency (CHARTE 4422/00). It might have been this reference to transparency that caused the objections, as it was not included in the European Convention on Human Rights (ECHR) whose Article 10 served as drafting example. The decision by the Convention could not have been more explicit: Article 11 of the Charter follows the ECHR and the European Court of Human Rights (ECtHR) case-law (notably Leander) that explicitly does not confer on the individual a right of access to information held by a public authority nor oblige the Government to impart such information to the individual (except for some exceptions). No principle of transparency was to determine the access to information held by the public authorities, and Article 42 was to be the lex specialis that allows access to documents held by the Union’s institutions. The EU’s General Court has largely followed this reasoning, paradoxically leading to a specific right rather narrowing than widening the individual’s right to access information due to the restricted circle of beneficiaries of Article 42. More might yet be to come with the ECtHR slightly reversing its previous case-law and establishing a qualified right to access to information held by public authorities under Article 10 ECHR.

In conclusion, all this goes to show that the Convention very much foreshadows the Charter’s potential evolutions.

Is it time for a turn to the Charter’s origins?

With this modest contribution, we have attempted to show that the drafting history of the Charter of Fundamental Rights of the European Union can be a fascinating subject of scholarly work, but also an important element in applying and understanding the Charter practically. Certainly, there is more work to be done on the Union’s main instrument for the protection of fundamental rights. Briefly reflecting on the mentioned debate on the Charter’s beneficiaries, an avid investigator could explore the (sometimes) fierce discussions on the scope of its socio-economic rights. A mere twenty years after the Charter saw the light of day, and eleven years after it became hard law, we are convinced that the evolution of the Charter is still far from its apex. It will continue to – and increasingly – shape the European Union. We therefore invite scholars and practitioners alike to return to the Charter’s origins to help sculpt its future. In the words of the former Advocate General Eleanor Sharpston, the travaux, which are available in a single publication as of today, may enable us all to do exactly that and “to have a better grasp of what the Charter was, and was not, intended by its progenitors, to do for fundamental rights protection within the European Union”.

[1] The analysis of Article 42 was drafted exclusively by Marc Steiert.

Niall Coghlan and Marc Steiert are Ph.D. Researchers at the European University Institute in Florence. They are editing a forthcoming collection of the travaux préparatoires of the Charter of Fundamental Rights of the European Union: Niall Coghlan and Marc Steiert (Eds.), The Charter of Fundamental Rights of the European Union: travaux préparatoires and selected documents, (Florence: European University Institute, 2020).