Handvest van Grondrechten veroorzaakt verdeeldheid over het nieuwe EU-verdrag (en)
Auteur: | By Honor Mahony and Lucia Kubosova
EUOBSERVER / BRUSSELS - A short 22-page document signed seven years ago in the French city of Nice laying out citizen's civil, political and social rights is one of the major sticking points of the current negotiations on a new treaty for the EU.
It is the Charter of Fundamental Rights. Under the proposed EU constitution - given the thumbs-down by French and Dutch voters two years ago - its 54 articles were integrated into the text and became a legally-binding part of the treaty.
Now with negotiations underway to rejig the treaty, its legal status is once again under question.
For some, the charter, which says people should have daily and weekly rest periods during work, the right to preventative health care, paid maternity leave as well as social and housing assistance, is a strong symbol of the bloc's values.
They argue that that the charter only brings together existing rights as defined in EU treaties, the European Convention on Human Rights (which all member states have signed up to) and those coming from the EU's case law.
But others say the charter is going to mean an increase in the scope of European law as the European Court of Justice is called to judge issues covered in the treaty, including the right of collective bargaining and action; the right to protection of personal data; and the right to good administration as well as certain principles on bioethics.
The last three issues (data, administration and bioethics) are "new rights" in that before being listed in the charter they had not been explicitly protected as EU fundamental rights.
The UK and the Netherlands are leading the charge against giving the charter full legal status with Britain particularly fearing that it will give too many rights to trade unions and goes too far on social rights.
A UK official told EUobserver that London is not against a charter that recoups the rights of citizens from the treaties and the 1950 human rights convention but it "must not create new ones."
Germany, currently heading the negotiations as EU presidency, has indicated that this is where a consensus is going.
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"A vast majority is in favour of making it legally-binding, without necessarily extending the competences of the EU institutions," said foreign minister Frank-Walter Steinmeier this week.
Johanna Engstrom, an expert from the Trier-based European Academy of Law, said that "countries like Britain are afraid of [the EU] turning into a human-rights union."
She noted that Article 51 which says that the charter "does not establish any new power or task" for the EU foresees the worries that some countries have over their national sovereignty - although critics question whether this article will be enough to prevent clashes.
According to Jan Wouters, Professor of international law at Leuven University, making the charter legally-binding would build a whole new set of case law in the area, with judges in the bloc's highest court already using the document, which currently has the weight of a political declaration, as a point of reference.
"If it gets under the jurisdiction of the European Court of Justice, it could be interpreted in a more dynamic and active way than some countries would like and if the charter was indeed part of the treaty, it would be up to courts to have the final word with some states then fearing too much activism in human rights," said Professor Wouters.
As part of the efforts to make the new treaty less constitution-like, member states are also considering whether to remove the charter entirely from the new text and refer to it in just one article.
If the language is clear about it being legall-binding then it will make no difference that it is only referred to rather than spelled out in the treaty, say legal experts.
Patricia Conlan, a lecturer in European law in the University of Limerick, notes that the actual wording will have to be looked at very carefully to see if it is "precise and mandatory" or whether it is just "encouraging and supportive."
The issue is set to be a point of strong discussion when EU leaders gather for a treaty discussion in Brussels next week.
"I cannot understand how any democrat can oppose the Charter of Fundamental Rights," European Commission chief Barroso said earlier this week, emphasizing that the charter must not lose its "legal force."