ANALYSIS:THE PROJECT of having a Charter of Fundamental Rights for the EU has had a long gestation period, and has generated a lot of debate. It began as a political declaration by the EU institutions on December 7th, 2000, and was approved in the Nice Treaty, but was not made enforceable.
It is now proposed to make an amended version of the declaration enforceable in the European Court of Justice through the Lisbon Treaty.
Even that process was not straightforward. During the debate on the treaty, it was agreed to remove the text of the charter from the treaty, but to make it legally binding through the treaty that refers to it. The full text is on the reform treaty website.
According to the Government White Paper on the Lisbon Treaty, the charter sets out the rights that citizens currently enjoy under EU treaties and related case law; the European Convention on Human Rights; the Social Charters of the Union and the Council of Europe; and the constitutional traditions and international obligations common in the member states.
It contains a preamble and 54 articles, which fall under seven headings or "titles". The first six are dignity, freedoms, equality, solidarity, citizens' rights and justice and the seventh deals with provisions for interpreting and applying the charter. Among the rights listed are the right to marry and found a family, the right to education, the right to asylum, the right to equality before the law, the rights of the child, the elderly and those suffering from disabilities, the right to collective bargaining, and justice rights including the right to a fair trial.
It is stressed that the charter "does not extend the field of application of Union law beyond the powers of the Union or establish any new power or task for the Union." Thus the Court of Justice, which will implement rights under the charter, will only review the actions of the member states when they "fall within the scope of Union law, including fundamental rights standards", according to the White Paper.
It distinguishes between rights and principles. Rights are justiciable, that is, they can be enforced by the Court of Justice; principles are not, and depend on a positive legislative act by a member state. Articles containing principles include those relating to the rights of the elderly, the rights of people with disabilities and environmental protection, according to the White Paper.
Fine Gael Senator and EU law expert Eugene Regan states that this is similar to the Irish Constitution, which contains a statement of socio-economic rights, which are principles and are not enforceable.
However, leading constitutional lawyer Gerard Hogan has suggested that there is nothing in the charter itself that makes clear which "rights" are rights in the full, justiciable sense of the word, and which "rights" are merely principles.
"Rights are justiciable at Union level only if the Union has a competence in the relevant field. The charter may not be used as a basis for extending the scope of the Court of Justice's competence," the White Paper states.
Thus the charter rights can only be asserted in the Court of Justice if they come under the implementation of European law. Issues linked to national constitutions and domestic law will not arise.
This is not a simple matter, however. Increasingly domestic law in many areas derives from EU law.
Mr Regan acknowledged that it will be up to the Court of Justice itself to decide when EU law is being implemented, and when domestic law only is involved.
These two experienced lawyers are unlikely to be the only ones considering what the Charter of Fundamental Rights will mean when it comes into operation.