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The Charter of Fundamental Rights and Beyond
Published online by Cambridge University Press: 27 October 2017
Extract
Rounding off a highly innovative process of elaboration, the European Union’s Charter of Fundamental Rights was officially proclaimed by the European Parliament, the Commission and the Council as planned at the Nice Summit, on 7 December 2000. According to the Cologne European Council of 3 and 4 June 1999, ‘it will then have to be considered whether and, if so, how the Charter should be integrated into the treaties’. Indeed, this is one of the points which, under the terms of Declaration 23 annexed to the Nice Treaty, will have to be considered during the ongoing process of institutional reform.
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- Copyright © Centre for European Legal Studies, Faculty of Law, University of Cambridge 2001
References
1 OJ 2000 C 364 /1.
2 Declaration on Art. 10 of the Treaty establishing the European Community; above n 1 at 77.
3 Case 11/70 Internationale Handelsgesellschaft [1970] ECR 1125; Case 36/75 Rutili [1975] ECR 1219; Case 222/84 Johnston [1986] ECR 1651; Case 222/86 Heylens [1987] ECR 4097.
4 The Charter was written ‘as if’ it would one day be legally binding.
5 SEC (2000) 380/3.
6 COM (2001) 127.
7 COM (2001) 181; OJ 2001 C 213/286.
8 Art. 14(4) TEU.
9 Art. 21 TEU.
10 Art. 34(2) TEU.
11 The French Comité d’éthique has already done so in its report of October 2000 concerning the law on bio-ethics.
12 Case C–173/99 BECTU v. Secretary of State for Trade and Industry, Opinion of 8 February 2001.
13 Para 28 of the Opinion.
14 Art. 31(2) of the Charter.
15 Case C–377/98, Kingdom of the Netherlands v. European Parliament and Council, Opinion of 9 October 2001.
16 Para 197.
17 Para 210.
18 Para 211.
19 Case C–353/99 P Council v. Hautala et al., Opinion of 10 July 2001.
20 Para 80.
21 Para 83.
22 Case C–122/99 P and C–125/99 P D. v. Council, Opinion of 22 February 2001, see in particu lar para 97.
23 Case C–270/99P Z. v. European Parliament, Opinion of 22 March 2001.
24 Para 40.
25 Case C–340/99 TNT Traco [2001] ECR I–4109; Opinion of 1 February 2001, see in particular para 94.
26 Case C–94/00 Commission v. Italy; Opinion of 31 May 2001, note 11.
27 See also AG Stix-Hackl’s Opinion of 12 July 2001 in Case C–413/19 Nilsson, Opinion of AG Geelhoed of 5 July 2001 in Case C–413/19 Baumbast and R. v. Secretary for the Home Department, about the right to privacy in one’s private and family life (para 59); also his Opinion of 12 July 2001 in Case C–313/99 Mulligan e.a. v. Minister of agriculture and food Ireland and Attorney General, about the right of property (para 28); AG Léger of 10 July 2001, in Case C–309/99 Wouters, about the rule of law; AG Jacobs of 21 March 2002, in Case C–50/00 P Union de Pequeños Agricoltores v. Council, about right to an effective remedy and a fair trial.
28 In particular AG Tizzano Opinion in BECTU, above n 12.
29 Case T–112/98 Mannesmannrohren-Werke AG v. Commission [2001] ECR II–729.
30 Ibid., para 15.
31 ‘In so far as this Charter contains rights which correspond to rights guaranteed by the Convention … the meaning and scope of those rights shall be the same as those laid down in the said Convention’.
32 Para 76.
33 T–54/99 max. mobil Telekommunikation Service GmbH v. Commission, judgment of 30 January 2002, point 48.
34 T–177/01, Jégo–Quéré et Cie SA v. Commission, judgment of 3 May 2002.
35 Para 43.
36 See above.
37 For example: Case C–466/00 Arben Kaba v. Secretary of State for the Home Department; Case C–63/01, Evans Regions and Motor Insurers Bureau, about the right to legal protection and a fair trial for all the rights and freedoms guaranteed by EU law (Art. 47 of the Charter); Case C–187/01, Procédure pénale v. Hüseyin Gözütok, it is the first reference on a Third Pillar issue, based on Art. 35 TEU, which questions how to apply the principle non bis in idem across the European Union as a whole and not within a single State (Art. 50 of the Charter).
38 Art. 51(1) reads: ‘The provisions of this Charter are addressed to … the Member States only when they are implementing Union law’; versus the explanations of Art. 51, ‘when they act in the context of Community law’.
39 STC 292/2000, de 30 de novembre de 2000 recurso de inconstitutionalidad num 1463–2000. A reference to Arts. 7 and 52 of the Charter has also been made by the Italian Constitutional Court: Corte Constituzionale, Sentenza n.135, Anno 2002, 1–11, at 9 and 10.
40 Notably Art. 41 on the right to good administration and Art. 42 on the right of access to documents.
41 Von Bogdandy, A. ‘The European Union as a human rights organisation? Human rights and the core of the European Union’, 37 (2000) CMLRev 1307 Google Scholar, 1318.
42 Art. 51(1) of the Charter uses the word ‘only’.
43 Q P–1546/01, by MEP Sichrovski, not yet published in OJ.
44 Q E–2200, by MEP Cappato, OJ 2001 C 151/2.
45 Cases 5/88 Wachauf [1989] ECR 2069 and C–260/89 ERT [1991] ECR I–2925, as well as the problems of interpretation surrounding Art. 51(1) of the Charter.
46 COM (1999) 619.
47 Five years later, on 12 April 1989, the European Parliament adopted a Declaration of freedom and fundamental rights; OJ 1989 C120/51.
48 The ‘explanations’ could be annexed to the treaty in a declaration.
49 Arts. 52(2) and 53 of the Charter.
50 Art. 53 of the Charter.
51 Case 11/70 Internationale Handelsgesellschaft [1970] ECR 1125.
52 In Italy, Granital SpA v. Administrazione delle Finanze, Dec. 170 of 8 June 1984; In Germany, the Bundesverfassungsgericht decisions in Wunsche Handelsgeslleschaft (‘Solange II) [1987] 3 CMLR 225 and The Constitutional Review of EC Regulation on Bananas (‘Solange III), 7 June 2000, (2000) EuZW, 702.