The Fundamental Rights Charter, Article 51: The Power of EU or Member States?
When advocating for the protection and promotion of fundamental rights in the EU, we – civil society – are often told that the EU cannot act, as it is beyond its power. This is due to Article 51 of the Charter of Fundamental Rights of the European Union (henceforth ‘the Charter’) that sets out that the EU only has a say on fundamental rights when linked to a specific EU law. Where there is no EU law, it is up to national laws and courts to decide if rights have been violated. The issue of power creates a dilemma when it is understood differently by Member States and the EU. On 23 February the European Parliament’s committee on Petitions held a public hearing on this timely topic, not least because the United Kingdom’s referendum on its EU membership will question the EU’s impact on national powers.
The hearing, during which the committee’s study on the interpretation of Article 51 of the Charter of Fundamental Rights was presented, highlighted the following:
- There is a lack of enforceability of the Charter, clashing with the expectations of people in the EU that their fundamental rights will be protected by the EU.
- Revision of Article 51 of the Charter could do more harm than good in the current political climate.
- The European Court of Justice (ECJ) does not examine whether Member States uphold fundamental rights because there is an unspoken principle of assuming that they can be trusted for respecting these rights, as this was one of the requirements for becoming a member of the EU in the first place.
- While Article 7 of the Treaty on European Union (TEU) allows the EU to act when a Member State seriously breaches the Union’s founding values to respect fundamental rights, it is considered a ‘nuclear bomb’ and has never been activated; Member States are afraid that if they evoke it against one state, it will be used against them at another time.
- While some question the functioning of the EU and the ECJ, others argue they are in fact human rights organisations, as it is embedded in the rule of law.
- If the European Commission would promote a bold interpretation of the Charter it is more likely that the ECJ would dare to apply the same approach.
Read my full report of the hearing here.