THE ROLE of national supreme courts and constitutional courts in the EU could, over time, be eclipsed by the Charter of Fundamental Rights, according to a leading constitutional lawyer. The Charter of Fundamental Rights will become enforceable under the proposed Lisbon Treaty.
Gerard Hogan SC was speaking at a private conference of the Irish European Law Forum in UCD last January last.
At it he reiterated many of the issues he raised on previous occasions, including in The Irish Times, concerning the charter and its predecessor, the Declaration on Fundamental Rights.
He went on to say at the conference that much would depend on the interpretation given by the European Court of Justice to key phrases in the new charter that related to the implementation of EU law.
The charter states the rights it enshrines are only enforceable by the courts when EU law is being implemented.
Depending on how this is interpreted, the charter could amount to "the most profound change" in relation to judicial review and the protection of fundamental rights since the adoption of the Constitution, Mr Hogan said.
He questioned the inclusion of certain rights in the charter, as they do not fall under the competence of EU legislation.
One example is the right to marry and found a family. He pointed out there is no EU competence in relation to national marriage legislation, so it is unclear why such a right should be stated, as it is only enforceable if EU law is being implemented.
The same could be said of many of the other rights in the charter, he said, including the rights of the child, the right to criminal due process and the right to healthcare, he said.
Mr Hogan stated the charter had many positive aspects, including that it created a proper legal basis for a challenge to the validity of EU legislation on human rights grounds, but still contained problematic aspects.
In particular, it was unclear as to when a state would be "implementing Union law" and when it would be implementing purely domestic law, given the transposition of EU directives into domestic law.
The "implementation of EU law" condition could also be triggered by accidental factors like nationality or travel, he said.
However, Fine Gael Senator and barrister Eugene Regan, who specialises in EU law, said that the charter and the accompanying explanations were unambiguous about not extending the powers of the EU into new areas.
He pointed to Article 51, stating: "the charter does not extend the field of application of Union law beyond the power of the Union or establish any new power or task for the Union."
In addition, "the charter is going to be interpreted by national courts primarily and then by reference of our Supreme Court," he said.