* Professor, Instituto Universidad of Ortega y Gasset, Spain
1
2000 O.J. (C 364) 1, also available at http://www.europarl.eu.int/charter/pdf/text_en.pdf
[hereinafter Charter].
2
Cologne European Council, Presidency Conclusions (June 4, 1999), Doc. No. 150/99, S. 44, available
at http://ue.eu.int/Newsroom/related.asp?max 1&bid 76&grp 1799&lang 1.
3
Id. annex IV.
4
Déclaration des Droits de l'Homme et du Citoyen [Declaration of the Rights of Man],
August 26, 1789, available at http://www.justice.gouv.fr/textfond/ddhc.htm (in French) and at
http://www.yale.edu/lawweb/avalon/rightsof.htm (in English).
5
The Universal Declaration of Human Rights, Dec. 10, 1948, U.N. G.A. Res. 217 A (III), available
at http://www.unhchr.ch/udhr/.
6
The preamble of the Charter contains the provisions that the EU is founded on the universal and
indivisible values of human dignity, liberty, equality, and solidarity, the rights that it "reaffirms . . .
result . . . from the constitutional traditions and international obligations common to the Member
States, the Treaty on European Union, the Community Treaties, the European Convention . . . [on]
Human Rights . . ., the Social Charters adopted by the Community and by the Council of Europe
and the case-law of the Court of Justice of the European Communities and of the European Court
of Human Rights." Charter, supra note 1, at 8.
ARTICLE
A Charter of dubious utility
Francisco Rubio Llorente*
1. Introduction
The immediate aim of the Charter of Fundamental Rights of the European
Union1
is, in the words of its creating body, to consolidate "the fundamental
rights applicable at [the] Union level . . . and thereby ma[k]e [them] more
evident"2
and "to make their overriding importance and relevance more visi-
ble to the Union's citizens."3
Although these words evoke those employed
in the Declaration of the Rights of Man and Citizen,4
and the subsequent
preamble to the Universal Declaration of Human Rights,5
the similarities
(surely deliberate) end there. In contrast to those glorious texts, the Charter
was not created so that Europeans would become aware of the more or less
natural rights they possess but do not enjoy in practice. The Charter's goal,
rather, is simpler and more modest: to help us appreciate the rights that the
legal order of the European Union (EU) has guaranteed for years.6
This pedagogical and, in a certain sense, propagandistic purpose could
hardly justify the arduous task of creating a charter of rights, unless the
European Council expected to pursue some other political goals of greater
 Oxford University Press and New York University School of Law 2003, 405
I.CON, Volume 1, Number 3, 2003, pp. 405­426
importance. Specifically, the latter might include remedying the defects of the
present system of rights protection, and, most importantly, laying the founda-
tions for a future constitution of the EU. Of course, viewing the Charter from
the interpretive perspective of these two policy goals does not exhaust the
analytic possibilities. However, in my opinion, they inform the point of view
that is most relevant at this moment in the process of European integration,
and such is the approach I have adopted in this article. Thus, in sections 2 and
3, I begin by briefly recalling the origins and the current situation of the EU's
system for the protection of fundamental rights, its basic characteristics, and
the criticisms leveled against it. In section 4, I succinctly describe the
reasons why the Charter is viewed as the appropriate instrument to repair the
defects of the system, and, at the same time, the foundation upon which
to build a future European constitution. After summarizing the content of
the Charter in section 5, in the final section, I lay the bases for doubting the
Charter's utility in this regard.
2. The jurisprudential invention of rights
To ask why the founding fathers of European integration failed to include
a charter of rights in the treaties of Paris and Rome7
would be unreasonable,
both theoretically and historically; the possible reasons are many and
substantial. In European constitutionalism, in contrast to its North American
counterpart, the formal declaration of rights has not been considered, until
recently, an indispensable condition of the validity of those rights.8
But it is not
necessary to resort to this distinction to explain what only an ahistorical
standpoint could consider a gap. Nothing in the treaties of Paris and Rome
raised a fear that the discretion allotted to the communities would pose
406 F. R. Llorente
7
Consolidated Version of theTreaty Establishing the European Community, 1997 O.J. (C 340) 173
[hereinafter TEC], available at http://europa.eu.int/eur-lex/en/treaties/dat/ec_cons_treaty_en.pdf.
The only norms of "fundamental rights" found in the treaty are those that prohibit discrimination
on the basis of nationality (art. 12, originally art. 6) or sex (art. 141, originally art. 119). I do not
discuss here the "fundamental" character of the four Community liberties.
8
The difference between the European and North American approaches, however, should not be
exaggerated, given that the desire to ensure the protection of rights was neither the sole nor
principal motivation for the incorporation of the first ten amendments into the U.S. Constitution.
In the words of a well-known author, "The history of the framing and ratification of the Bill of
Rights indicates slight passion on the part of anyone to enshrine personal liberties in the funda-
mental law of the land. . . . Our precious Bill of Rights, at least in its immediate background,
resulted from the reluctant necessity of certain Federalists to capitalize on a cause that had been
originated, in vain, by the Anti Federalists for ulterior purposes. The party that had first opposed
the Bill of Rights inadvertently wound up with the responsibility for its framing and ratification,
whereas the people who had at first professedly wanted it discovered too late that it not only was
embarrassing, but disastrous for their ulterior purposes." LEONARD W. LEVY, ORIGINS OF THE BILL OF
RIGHTS 43 (Yale Univ. Press 1999).
a threat to the rights guaranteed in the constitutions of the member states.
Moreover, no one at that time would have doubted--if this improbable danger
were to become a reality--that the states themselves would take responsibility
for the protection of their own citizens.9
This straightforward assumption
remains alive today, but it is difficult to reconcile with the need for the uniform
interpretation and equal application of Community norms by the member
states' national judges. The desire to overcome this apparent contradiction has
provided the impulse for the construction of an admirable jurisprudential
doctrine whose very survival may be called into question by the Charter that is
meant to remedy its defects.
The European Court of Justice (ECJ) took upon itself the task of controlling
Community norms from the point of view of rights, not because of a need to
guarantee the protection of individual rights vis--vis the powers of the com-
munities, but in order to remove from national judges the function of protect-
ing rights. Naturally, given the treaties' silence on this issue, the Court had to
"discover" those rights. Community law was conceived as a new international
order, one whose norms could be invoked directly by the citizens of the mem-
ber states before their own courts and which were to be applied by those courts
as if they were norms of internal law, though still superior to internal law.10
This same concept implies that the control of the validity of Community law is
thus reserved to the ECJ, and is to be carried out in accordance with the norms
of Community law. The judges of the member states are obliged to refrain from
applying national laws that are contrary to Community law without first using
the procedures they would be obligated to follow if the invalidity of the law
derived from its contradiction with their own constitutions.11
However, judges
are denied the possibility of declaring invalid or inapplicable the norms of
European law when they contradict their own constitutions. This latter loss is
difficult to justify both in theory and in practice, particularly in those cases
where states rely on constitutional courts to ensure that all institutional
powers (including the legislature) respect the constitution and the rights
guaranteed therein. The judicial and political bodies of the member states
are responsible for applying Community laws. Therefore, denying their
A Charter of dubious utility 407
9
On this subject, see HJALTE RASMUSSEN, ON LAW AND POLICY IN THE EUROPEAN COURT OF JUSTICE:
A COMPARATIVE STUDY IN JUDICIAL POLICYMAKING 390 (Kluwer Academic Publishers 1986); Joseph H. H.
Weiler, Methods of Protection: Towards a Second and Third Generation of Protection, in EUROPEAN
UNION--THE HUMAN RIGHTS CHALLENGE VOL II: HUMAN RIGHTS AND THE EUROPEAN COMMUNITIES: METHODS
OF PROTECTION 555 (Antonio Cassese et al. eds., Nomos Verlagsgesellschaft 1991).
10
See Case 26/62, Van Gend en Loos v. Ned. Tariefcommissie, 1963 E.C.R. 1, [1963] 2 C.M.L.R.
105 (1963), and Case 6/64, Costa v. E.N.E.L., 1964 E.C.R. 1141, [1964] 3 C.M.L.R. 425 (1964).
11
Case 106/77, Amministrazione delle Finanze dello State v. Simmenthal SpA, 1978 E.C.R. 629,
[1978] 23 C.M.L.R. 263 (1978). In this decision, the ECJ invalidated an attempt by the Italian
Constitutional Court (Case 232/1978, Industrie Chemiche Case) to apply the Italian procedure for
handling unconstitutional laws to a contradiction between its domestic norms and Community law.
constitutional courts, and, by extension, the rest of the country's judges, the
ability to verify that Community norms conform with fundamental rights
suggests that states have broken free of the limitations of their own constitutions,
and, in doing so, have lost the basis for their legitimacy. The only way to avoid
such a conclusion is to accept that those constitutional limits, that is, the fun-
damental rights, are implicitly incorporated into the treaties of the EU, so that
by interpreting and applying the treaties, the ECJ guarantees their full force.
The ECJ did not hesitate to develop this idea of the implicit incorporation of
rights. Indeed, it constructed a bold and ingenious doctrine that introduced--
under the rubric of the "general principles" of Community law12
--fundamental
rights derived from both the constitutional traditions common among member
states and the international treaties ratified by member states, such as the
European Convention on Human Rights (ECHR).13
The application of this
408 F. R. Llorente
12
This appeal to "general principles," which forms the basis of the ECJ's doctrine, can be traced--
albeit with some effort--to one reference in the TEC (art. 288, originally art. 215), or to the idea
that the basic law of the European Community can be found outside the foundational treaty.
About the same time the ECJ was developing this doctrine, the French Constitutional Council
stated that "the fundamental principles recognized by the laws of the Republic" were included
among the norms it would consider when evaluating the constitutionality of a law: Decision
71-44, July 16, 1971, D. 1972 685, available at http://www.conseil-constitutionnel.fr/
decision/1971/7144dc.htm. For an analysis of this point, see LOUIS FAVOREU & LOC PHILIP, LES GRANDS
DECISIONS DU CONSEIL CONSTITUTIONNEL [MAJOR DECISIONS OF THE CONSTITUTIONAL COUNCIL] 239 (11th ed.,
Dalloz 2001). Within French law, however, there exists another legal doctrine with greater
similarity to the ECJ's doctrine that was better known and more celebrated, in the early 1970s,
than the French Constitutional Council's doctrine. From the beginning of the 1950s, the French
Conseil d'État used the idea of "general principles" as a norm to check the validity of regulations,
a practice initiated during the Vichy era to stop authoritarian excesses but remaining long after
those circumstances had dissipated. The appeal to general principles has been a frequent practice
of continental jurists, at least since the codification movement, to give the judge more flexibility
under the rule of law.
13
Convention for the Protection of Human Rights and Fundamental Freedoms, Nov. 4, 1950, ETS
No. 005, 213 U.N.T.S. 221 [hereinafter ECHR]. The Court embarked on this path with a case that
involved no violation of fundamental rights. See Case 26/69, Stauder v. City of Ulm--Socialamt,
1969 E.C.R. 419, [1970] 9 C.M.L.R. 112 (1970). The leading case in this area is Case 11/70,
Internationale Handelgesellschaft mbH v. Einfuhr-und Vorratsstelle für Getreide und Füttermittel, 1970
E.C.R. 1125, [1972] 11 C.M.L.R. 255 (1972), in which the Court unequivocally laid out the
connection between its two foundational decisions, where it (1) denied the national courts com-
petence to ensure the protection of fundamental rights in the new European order, and (2) gave
itself that competence on the basis of its "discovery" of the fundamental rights hidden in this
European order. After stating that "the validity of a Community measure or its effect within a
Member State cannot be affected by allegations that it runs counter to either fundamental rights
as formulated by the constitution of that state or the principles of a national constitutional struc-
ture," 1970 E.C.R.  3, the decision maintains that "an examination should be made as to whether
or not any analogous guarantee inherent in Community law has been disregarded. In fact, respect
for fundamental rights forms an integral part of the general principles of law protected by the
Court of Justice. The protection of such rights, whilst inspired by the constitutional traditions
doctrine over more than thirty years14
has allowed the ECJ to broaden the list
of fundamental rights in force in the European system, and to enlarge the
ambit of acts subject to its jurisdiction.15
In spite of the gigantic dimensions of
this undertaking, whose study has generated an already extensive literature,16
the doctrine has become the subject of criticism, and efforts have multiplied to
find other methods to ensure the protection of rights in the process of European
integration.
3. The system for the protection of rights:
Inadequacies and proposals for reform
Within the EU, the judicial origin of a system of rights, whose intrinsic
rationality has not been altered or added to by its "constitutionalization,"
decisively conditions the system's entire structure--the type of rights to be
included in its catalogue, their content, and the scope of the protections
guaranteed by the ECJ.
A Charter of dubious utility 409
common to the Member States, must be ensured within the framework of the structure and
objectives of the Community." 1970 E.C.R.  4.
The reference to international treaties, including the ECHR, as a source of inspiration for the ECJ
in the area of fundamental rights appears for the first time in Case 4/73, Firma J. Nold v. Commission,
1974 E.C.R. 491, [1974] 2 C.M.L.R. 338 (1974).
14
However, the doctrine was formally incorporated into the treaties only in 1992. Article F of the
Treaty of Maastricht, now article 6(2) of the Treaty on European Union, [1997] O.J. (C 340) 145
[hereinafter TEU], literally incorporated the formula adopted in the jurisprudence of the Court.
The Amsterdam text includes that article among the group of norms the Court should take into
account to judge the legitimacy of the decisions under its control, which now also include, in a
limited fashion, police and judicial cooperation in criminal matters (TEU, art. 46(b) and (d)).
In addition to paying greater attention to the fundamental rights of EU citizens, the Treaty of
Amsterdam contains a norm linking, for the first time, EU law with human rights, a connection
from which one can extract very important consequences. Respect for "human rights and funda-
mental freedoms," (TEU, art. 6(1)), is one of the principles on which the EU is based, and, there-
fore, a necessary condition for integration into the EU (TEU, art. 49), one of the stated aims of the
EU's foreign policy and security policy (TEU, art. 11), and an influential factor in its development
policy (TEC, supra note 7, art. 177(2)). Finally, the serious and persistent violation of these rights
(as with the rest of the principles) can lead to very serious sanctions (TEU, art. 7).
15
Beginning in 1998, the ECJ has extended its jurisdiction to include acts committed by states
when applying Community law. See Case 5/88, Wachauf v. Bundesamt für Ernährung und
Forstwirtschaft, 1989 E.C.R. 2609, [1991] 1 C.M.L.R. 328 (1991), and Case 260/89, Elliniki
Radiophonia Tiléorassi AE v. Dimotiki Etairia Pliroforisis, 1991 E.C.R. I-2925, [1994] 4 C.M.L.R.
540 (1994).
16
For a collection of this literature, see THE EU AND HUMAN RIGHTS (Philip Alston ed., Oxford Univ.
Press 1999), and RÉALITÉ ET PERSPECTIVES DU DROIT COMMUNAUTAIRE DE DROITS FONDAMENTAUX [REALITY
AND PERSPECTIVES ON COMMUNITY LAW ON FUNDAMENTAL RIGHTS] (Frédéric Sudre & Henri Labayle eds.,
Nemesis-Bruylant 2000) [hereinafter REALITY AND PERSPECTIVES].
In the first place, this catalogue can only include "classic" rights: that is, those
that secure limits on power or determine the manner in which power is exer-
cised, not rights that impose positive obligations, especially the distribution of
goods or services, the content of which cannot be determined by a judge.
In addition to equality, liberty, and procedural rights, the catalogue may
include rights that guarantee that the state will create and maintain certain
normative frameworks (in older terminology, "institutional guarantees").
These include, for example, along with the right to property, the rights that
enshrine basic labor law principles (pertaining to unionization, striking, col-
lective bargaining, maximum legal working hours, weekly rest, and the like).
But this purely negative delimitation of the right that are susceptible to
enforcement by the ECJ is not sufficient to achieve the desired goal: that
the member states leave in this supranational Court's hands the protection of
the fundamental rights enshrined in their own constitutions. It is also neces-
sary for the Community's "bill of rights" to coincide with those of the member
states. Finally, in order for the replacement of jurisdictions to occur without a
diminishment of rights, it is equally necessary that the level of protection
offered by the ECJ be similar to that offered by national courts. This is an even
more difficult requirement, and, consequently, one for which it is possible to
find only approximations in actual practice.
The formula forged by the Court, and now spelled out in article 6(2) of the
Treaty on European Union (TEU),17
attempts to make the EU legal order satisfy
the first two of the following three conditions.
The first condition--that only judicially enforceable rights be included
among the table of rights of the EU--has been accomplished with a reasonable
degree of success, thanks to the otherwise puzzling affirmation that the EU
will respect those rights as "general principles" of Community order. Within
the Community, as in any other legal order, general principles cannot be
"protected" or "developed" by the political organs; rather, they must be
"respected" by those bodies. These principles are unwritten norms that only
judges can define and utilize as the basis for their decisions, although they
should also be taken into account by the lawmaking institutions so as not to
infringe on them. General principles are norms of control, not of authorization
or mandate, and thus only include rights that limit power.
The attainment of the second condition--to correlate the EU's catalogue of
rights with the rights guaranteed by the internal laws of the member states--
is less certain. The connection between the two has been established to some
degree, at least to the extent that the rights respected by the EU are derived
from the common constitutional traditions and from the ECHR. Yet this
connection alone is insufficient to guarantee that the Union will respect all
justiciable fundamental rights as guaranteed by all member states, as logical
rigor would require. Rather, the connection indicates the contrary, given that
410 F. R. Llorente
17
TEU, supra note 14, art. 6(2).
the ECJ uses as its inspiring source only those rights common among states.18
The refusal of national courts to guarantee that the state will respect all of the
fundamental rights consecrated in its own constitution when applying
Community law, means that the peculiar rights of each state, namely, those
not common to all members of the Union, are left totally devoid of protection.
Although this refusal implies a formal infringement of the state's constitution,
its practical implications are limited, and almost imperceptible, because the
catalogue of actionable rights of each state is not so much the result of the text
of constitutional provisions as much as it is of judicial interpretation, and such
interpretation leads to a compendium of fundamental rights that is practically
common to all countries.19
The third condition the ECJ has set for itself cannot be accomplished by the
texts or the declarations of the Court alone. It consists of ensuring the equal-
ity between the level of protection offered by the ECJ and the national courts,
so that these entities have similar conceptions of the same rights, their scope
of protection, permissible limits, and so forth. This condition is extremely
important because, in practice as well as in theory, it is impossible to keep a
rigid separation between the jurisdictions of these bodies. When national
courts apply Community law, Community norms become inextricably inter-
woven with norms exclusively internal to the member states. More important,
it is simply impossible to maintain two distinct working concepts of rights
within one unified legal order. Status rights, being what they are, must be
equal for all persons, regardless of whether or not their activity has repercus-
sions for the Community. Basically, when a state applies Community norms,
it acts within the boundaries of its domestic legal order, because this includes
Community norms, despite the fact that the ECJ (and not the state's highest
courts) has the ultimate responsibility to interpret these norms definitively.
This is surely the system's weak point, producing among national constitu-
tional courts an acceptance of the above doctrine but accompanied by
reservations and conditions that cast doubt on the system's stability, and thus
generating in academia the most severe criticisms.
A Charter of dubious utility 411
18
As is obvious, the use of both common traditions and the ECHR as the relevant sources, rein-
forces the thesis that the only rights respected by the EU are "classic" rights. As is argued in this
article, using general principles as a source of rights leads to a similar result.
19
Thus, in the French doctrine, the inviolable rights of domicile, secret communications, personal
and familial privacy, derive from the right to individual liberty. In the Spanish Constitution, they
are considered separate rights. German law has derived the freedom of enterprise, a freedom also
expressly mentioned in the Spanish Constitution, from the freedom to elect one's profession or
occupation. Other examples can be found on both sides of the Atlantic. The effective coincidence
of prevailing rights in all constitutional democracies--which itself serves as another reason to
identify these rights as general principles--has sometimes been achieved, in the U.S., say, only by
stretching to the limit the letter of the Constitution, as well exemplified by the U.S. Supreme Court's
interpretation of due process.
Although the ECJ's use of the fundamental rights it "discovers" as the
general principles of European law (rooted in common constitutional tradi-
tions or the ECHR) has been the subject of reproach for many different
reasons--including, for example, the fact that stricter criteria are applied in
judging states than in judging the Community--the most substantial
criticisms are those arguing that the guarantee of rights offered by the ECJ is
necessarily defective and insufficient. This is not because of the Court's
incapacity, but because of the deficiencies inherent in the system itself.
A compendium of rights that does not appear in declarations but simply lies
latent among a collection of norms and traditions, all with imprecise
boundaries, makes it almost inevitable that a court charged with the duty of
applying these rights will vacillate, albeit unintentionally, between passivity
and excessive activism. And even leaving aside this risk, any such court's con-
trol would be inevitably superficial and crude, since the rights surface only in
relation to concrete cases, and the court is powerless to establish with precision
the intangible content and the permissible limiting conditions of the rights.20
To remedy these defects and to resolve the problem that could arise if there
were a divergence between the two courts (the ECJ and the European Court
of Human Rights), where both have competency to keep watch over the
respect for rights, and, at the same time, to establish an "external control"21
of
Community actions, the European Commission has supported--since 1979--
the Community's membership in the ECHR. This project was turned on its
head, however, at the moment it appeared most likely to succeed, when the ECJ
412 F. R. Llorente
20
A synthesizing and sharply critical exposition of these reproaches, developed in the German
doctrine, can be found in Armin von Bogdandy, Grundrechtsgemeinschaft als Integrationsziel, 56
JURISTENZEITUNG x, 162­68 (2001), where the author counters the proposal of Alston and Weiler
that became the basis for the Agenda of Human Rights for the Year 2000, which I mention infra
note 22. More detailed criticism can be found in THE EU AND HUMAN RIGHTS and REALITY AND
PERSPECTIVES, supra note 16. In Spanish, the best version of this criticism is found in Luis Maria
Diez-Picazo, Una Constitución sin declaración de derechos?: Reflexiones constitucionales sobre los
derechos fundamentales en la Comunidad Europea, 11(32) REVISTA ESPAOLA DE DERECHO CONSTITUCIONAL
(R.E.D.C.) 135 (1991).
21
The phrase "external control" that the European Commission has repeatedly used appears in its
two reports on the Charter, the Commission Communication on the Charter of Fundamental
Rights of the European Union, October 11, 2000, and Commission Communication of the Legal
Nature of the Charter of Fundamental Rights of the European Union, September 13, 2000, both
available at http://europa.eu.int/comm/justice_home/unit/charte/en/communications.html. The
use of this phrase appears to be inspired by the practice of private business and thus seems sur-
prising and hardly adequate in the present context. Perhaps the phrase has been chosen to avoid
the expression "international controls," which would seem paradoxical if one understands that
the EC, despite its peculiarities, is an organization of international law. In any case, the need for an
"external control" to ensure that the Community will adequately respect fundamental rights
seems incompatible with a desire to give the Community, or the EU, the job of guaranteeing that
the member states will respect those rights--a desire that, as I argue in the paper, the supporters
of the Charter probably have.
declared, in response to consultation sought by the European Council, that the
Community's membership was not possible without prior reform of the
treaty.22
4. The Charter of Fundamental Rights and
an EU constitution
It was only at this moment that the Commission and the Council embraced the
possibility of adopting a charter of rights, a notion supported for years by
certain political forces that had even produced a bill approved by the European
Parliament in 1989. This change in posture has both strategic and tactical
importance, because those who had supported the adoption of a charter of
rights of the EU for so long had not done so only, or even principally, because
they saw it to be the proper instrument to remedy the defects of the ECJ-created
system of rights protection. Rather, they envisioned the Charter as a critical
step toward a European constitution. Although neither the Cologne Council,
which decided to undertake the process of elaborating the Charter, nor the
Nice Council, which solemnly declared the Charter's existence, expressly
established the connection between the Charter of Rights and a
constitution,23
it would be absurd to think that they did not have it in mind,
given that the issue was already explicit in the German debate from which
the idea for a charter emerged.24
It seems probable, moreover, that it is this
function of the Charter, as the nucleus of a constitution, that has led some
to assign the Charter a more immediate end--that of making Europeans
more acutely aware of their rights, or perhaps more precisely, of constructing
A Charter of dubious utility 413
22
Opinion 2/94 of the Court of March 28, 1996. Accession by the Community to the European
Convention for the Protection of Human Rights and Fundamental Freedoms, 1996 E.C.R. I-1759.
It is possible to argue that this was only a temporary defeat because in its two Communications on
the Charter, supra note 21, the Commission forcefully and repeatedly insists on the possibility and
the appropriateness of membership as an additional protection to that offered by the Charter. In
support of membership, one also finds the Agenda of Human Rights for the European Union in the
Year 2000, prepared by a "committee of experts" designated by the Commission and presented in
Vienna in October 1998, reprinted in THE EU AND HUMAN RIGHTS, supra note 16, at 919. In the work
of Alston and Weiler, which clearly served as the basis for the Agenda, no reference is made to the
eventual Charter. In the opinion of these two authors, such membership in the ECHR does not
require a prior modification of the treaties because the reasoning of the ECJ in its 1996 decision
on the subject "is not persuasive." See Philip Alston & J. H. H. Weiler, An "Ever Closer Union" in Need
of a Human Rights Policy, in THE EU AND HUMAN RIGHTS, supra note 16, at 3.
23
In fact, at the Laeken Council (Dec. 15­16, 2001), a future EU constitution was discussed
simply as a possible consideration. See Laeken Declaration on the Future of the European Union
(Dec. 15, 2001), available at http://european-convention.eu.int/pdf/LKNEN.pdf.
24
The motivating impulse for a charter of rights of the European Union can be found in one of the
points of the Green Party's program, incorporated into Gerhard Schröder's coalition government.
a "European" consciousness of rights, which, until now, we have only
experienced as the rights guaranteed by our respective states.
It is not easy, however, to determine precisely what exigencies this new goal
creates for the Charter. On the one hand, this is because the concept of a
constitution, of which the Charter will form part is still nebulous, and can
be clearly defined only negatively. On the other, a charter-inspired constitution
is additionally difficult to grasp because the notion of the fundamental rights
proclaimed by the Charter is understood in Europe in various ways and retains
an ambiguous relationship with another similar notion, human rights, with
which it is frequently identified.
Logic forces one to conclude that those who believe the moment to
constitutionalize the EU has arrived also assume that it has not yet been
constitutionalized. As a result, the constitution they put forward must be
something different from the constitutional law whose existence the ECJ
affirmed in 1986 and put into the record on many other occasions, when it
defined the treaty as "basic constitutional law"25
responsible for producing
derived law and serving as the norm for resolving questions of a law's validity
or invalidity. The majority of those who would pursue a constitution--perhaps
even all of them--also seem to agree with the idea that the EU must refrain
from transforming itself into a state, and, therefore, its constitution must be
something very distinct from the member states' constitutions.
Beyond these two negative stipulations, however, what seems obvious
is that a European constitution should include a clearer delimitation of the
competencies of the EU and its constituent states, and maybe a more agile and
(perhaps) more expeditious decision-making procedure. But a tacit question
remains. Since such changes could only be obtained through a new treaty, it is
not easy to understand why what is legally still a treaty should be considered a
constitution, the legal consequences of which--as large as they may be--can
hardly be greater than the consequences of allowing the emergence of a new
legal order, independent of the order of the member states. The answer is prob-
ably that a new named constitution will represent a political, if not legal,
change. But even if we admit the separation between the political and legal
realms, the change appears unjustified. Thus, in the German debate, which is
of central importance here, the defenders of a European constitution view the
Charter as an instrument to construct a European political unity, not as the
projection of an already existing unity based on national, cultural, or some
other sort of sentiment. In the celebrated speech of Joschka Fischer at the
Humboldt University of Berlin, the "constitution" or "constituent treaty,"
which "will be the precondition for full integration," is the symbol of
"enhanced co-operation," and the product of a new "centre of gravity,"
created by member states firmly committed to the European ideal and capable of
414 F. R. Llorente
25
Les Verts v. Parliament, 1986 E.C.R. 1339, [1987] 2 C.M.L.R. 343 (1987).
advancing political integration.26
For others, including Jürgen Habermas, what
is important is not so much the final result--namely, the constitution itself--as
the path that leads to it, that is, the capacity of the constitutive process to cre-
ate the sociological preconditions that the existence of a European constitution
requires, including citizen sentiment, public opinion, and so forth.27
This diversity of views, although not mutually exclusive, raises the suspicion
that there are different versions of the argument that the Charter must be an
essential part of a future European constitution. And it seems probable that
the "constitutional" function assigned to the Charter is also determined by the
varying modes of conceiving of rights. Yet the argument itself, regarding
the central importance of the Charter, is popular among nearly all the sup-
porters of a future constitution, from the political and academic world equally.
If the rights of the Charter are identified with values, as discussed in Lionel
Jospin's widely-disseminated and celebrated speech of May 2001,28
the
Charter's function will become one of simply declaring values, not enunciating
binding legal rules. In other words, the Charter will be seen as laying out the
ideals that characterize the European conception of society and orienting the
actions of states that form the EU, and, therefore, the actions of the EU itself.
It will not determine the limits of state and Community powers, the concrete
objectives that these entities should pursue, or the legal safeguards of each;
and even less, will it establish the competency of the EU to ensure that the
member states respect those limits or pursue those objectives. Although, polit-
ically, the Charter's function can be of the utmost importance in emphasizing
the concurrence of values that makes the EU possible, its legal meaning is null.
The Charter becomes little more than a hortatory preamble to the normative
text that establishes a system of relationships between the EU, its citizens, and
its component states.
The only perspective from which it makes sense to analyze a charter
destined to form part of the constitution is one that understands the rights
enunciated in that charter to be not simply an expression of values but rather
as concrete instruments with which to check state and Community power, and
as tools that legally require certain actions or omissions from the states and
A Charter of dubious utility 415
26
Joschka Fischer, From Confederacy to Federation: Thoughts on the Finality of European
Integration, Speech at Humboldt University, Berlin, Germany (May 12, 2000). See also What Kind
of Constitution for What Kind of Polity? Responses to Joschka Fischer (Christian Joerges,Yves Mény,
J. H. H. Weiler eds.), available at http://www.jeanmonnetprogram.org/papers/00/symp.html.
27
As he explained in his lecture entitled Warum braucht Europa eine Verfassung [Why Europe
Needs a Constitution], given at the University of Hamburg on June 26, 2001, Habermas refers us
to the originating function of the debate, a particularly important point when studying the func-
tionality requirements of a constitution. Jürgen Habermas, Warum braucht Europa eine Verfassung
[Why Europe Needs a Constitution], 27 DIE ZEIT 12 (2001), available at http://www.zeit.de/
2001/27/Politik/200127_verfassung_lang.html (in German).
28
Lionel Jospin, Speech at the Center for the Reception of Foreign Press in Paris (May 26, 2001).
the EU. In this conception, the underlying values remain implicit while
the specifically legal content of the enunciated rights--the definition of
which represents the protected scope and objective of the rights--rises to the
forefront.
The first obligatory step for this analysis is to determine what rights are
referred to in the Charter. In current European doctrine, the subject "rights"
is generally accompanied by one of two different adjectives, "fundamental" or
"human," that sometimes are used interchangeably and, at other times,
denote distinct species of the same genus. Frequently, the adjectival descriptors
are even richer, as, for example, in the speech previously mentioned in which
Fischer argues that the constitution should focus on "basic, human, and civil
rights."29
The distinction between fundamental rights and civil rights, like
other distinctions that we will take up later, comes from the nature of the
protected good, and, eventually, from the type of protection. For the moment,
we will leave this issue aside, and focus on the contrast between fundamental
rights and human rights, the terms employed in the first two sections of
article 6 of the TEU, whose interpretation will reveal several points relevant to
our discussion.
Consider these formulas: "[t]he Union is founded on the principles of . . .
respect for human rights and fundamental freedoms . . ."30
and "shall respect
fundamental rights, as guaranteed. . . ."31
These sentences are so imprecise
and the wording so similar that it is not surprising that the differences between
the two are often lost; overemphasizing them brings with it the fear of
succumbing to the sort of legal nitpicking that transforms the jurist into a
pettifogging lawyer. Nevertheless, the differences do exist and require some
sort of explication. The fundamental rights accepted as general principles of
the Community order do not encompass all of the elements under the general
rubric "human rights and fundamental freedoms," but, rather, only those
rights guaranteed by the European Convention on Human Rights and
Fundamental Freedoms and derived from common traditions. The collection of
human rights, the protection of which forms the basis for the EU, is determined
from outside the EU. It is a legal datum that the EU must accept or reject in toto
and without modification.
Fundamental rights, in contrast, are a category from which the EU can
select those rights that it agrees to respect. Certainly, it is not easy to under-
stand the difference that exists between the declaration that the EU "is based
on the respect" of some rights and the declaration that it "respects" others.
416 F. R. Llorente
29
Fischer, supra note 26. The German expression that Fischer used--"die Verankerung der Grund,
Menschen- und Bürgerrechte" [the Incorporation of Fundamental, Human, and Civil Rights]--
summarizes the German version from the Cologne Council.
30
TEU, supra note 14, art. 6(1).
31
TEU, supra note 14, art. 6(2).
And the two groups are not closed to each other. But one cannot ignore the
shades of difference between the two sets of rights, a difference reinforced by the
fact that the treaty refers, in article 6(1), to human rights (not fundamental
rights) to govern the relationship between the EU and its current members
(art. 7(1) and (2)) or aspiring members (art. 49).32
In the TEU, as in common
usage, human rights are moral rights, a weakly legalized category within
international law, while fundamental rights form part of the positive internal
law of the specific community within which they operate. The content of both
types of rights are, for the most part, the same, but the arena in which each
type is invoked and its strength deployed is distinct. Fundamental rights are, in
principle, the rights of the citizens (or, more broadly, of the people subjected to
the laws of the state) vis--vis the political community of which they form a
part; it is the community's constitution that gives these rights their positive
legitimacy. On the other hand, "legalized" human rights constitute part of an
international order, which defines their content and force; they function
within the world of international relations, where individuals may take part
only in the most exceptional cases. Being moral rights, human rights are
similar to the old natural rights, which the state must both respect and enforce
among society.
Although a few of the Charter's precepts lead one to think that, perhaps, its
authors have not always had the distinction between human and fundamental
rights clear in their minds (deliberately or not), the Charter declared at Nice is
a charter of the EU's fundamental rights, not an (impossible) charter of
human rights. Even named and defined in this manner, the Charter's text must
continue to include rights of different types, not only because the class of
fundamental rights includes very diverse kinds of rights depending on its
content, but also because European legal and political language operates with
two distinct concepts of such rights, at the least. Fundamental rights are some-
times understood to mean rights that derive directly from a constitution, that
can be readily invoked before courts, and whose violation by any power--
including the legislature--is susceptible to judicial remedy. On other
occasions, fundamental rights refer to all those rights enunciated in the
constitution, independent of the system of their enforcement, whether
directly, before courts, or indirectly, by virtue of the laws enacted by the
legislature. These two types of fundamental rights--which the doctrine
frequently distinguishes through the use of explanatory adjectives (funda-
mental rights, in a legal or formal sense, as opposed to fundamental rights, in
the political or moral sense) and which some constitutions, such as the Spanish,
A Charter of dubious utility 417
32
The state actions that can unleash the sanctions envisioned in art. 7 of the TEU are serious and
persistent (emphasis mine) violations of human rights, a notion that is coherent with the moral
nature of those rights. The respect for human rights is also a state objective of common foreign
and security policy, (TEU, supra note 14, art. 11) along with the cooperation in development of the
EC (TEC, supra note 7, art. 177(2)­(3)).
mention in different chapters--obviously have distinct relationships with power
and perform very different functions.The role of fundamental rights, in a strict
sense, is to establish limits on power, while fundamental rights in a broad or
material sense, set the necessary goals for the exercise of that power, that is,
the objectives that must be pursued.33
In commissioning the drafting of the
Charter, the Cologne Council referred to both types of fundamental rights
without distinguishing the two. It is vital to take note of this fact in order to
fully understand the Charter's impact on the relationship between the EU and
the member states--i.e., its constitutional role.
5. The content of the Charter
According to the mandate of the Cologne Council, any charter that would bring
together and highlight the prevailing fundamental rights of the EU should
include the rights of liberty and equality, and the fundamental principles,
such as those recognized in the ECHR and in the common constitutional
traditions, as well as the basic rights that belong to the citizens of the Union.
The drafters were also instructed to take into consideration economic and
social rights, of the same style that are in the European Social and Economic
Charter and in the Community Charter of the Fundamental Social Rights of
Workers (TEU, art. 136).34
The execution of this mandate--which entailed an
all-encompassing conception of fundamental rights and was ambiguous with
regard to social, economic, and cultural rights--was given to an independent
body, commissioned by the Council, that completed its work within the time
allotted and then disappeared, without any further participation in the
Charter. During the four years between the declaration of the Charter and
the 2004 meeting of the Intergovernmental Conference (where the states
decide what to do with it), the Charter will remain in legal limbo, solemnly
declared but without obligatory force; subject to political and academic
criticism, but immutable.
Perhaps because the bizarre procedures described above permitted the
drafting body to act without assuming any responsibility over the future of its
418 F. R. Llorente
33
The distinction between rights as "limits" and rights as "goals" generally corresponds to the
usual differentiation between "classic" rights (civil and political rights), and "new" rights (social,
economic, and cultural rights); but, at least in Europe, these comparisons are not entirely analo-
gous. In Continental doctrine, mostly due to German influence, a different notion has become
widespread: namely, that "classic" rights--as "objective elements" of a legal order (or by virtue of
their "objective aspects")--impose positive obligations on the state to ensure the protection of the
underlying values in relationships among individuals in society. From this point of view, these
classic rights are also rights as goals, although in this case what the state must create is a norma-
tive framework. See, e.g., ROBERT ALEXY, THEORIE DER GRUNDRECHTE [THE THEORY OF BASIC RIGHTS] ch. IX,
part 2 (Nomos Verlagsgesellschaft 1985). For the English version of the book, see ROBERT ALEXY, A
THEORY OF CONSTITUTIONAL RIGHTS (Julian Rivers trans., Oxford Univ. Press 2002).
34
TEU, supra note 14, art. 136.
work, the self-described "convention" interpreted its mandate in a very lax
way, operating according to political, and not technical, criteria. Even though
the drafters made a commendable effort to demonstrate that all of the
Charter's precepts are founded on pertinent texts,35
it did not hesitate to look
for them wherever it could, without strictly following the Council's instruc-
tions, and in such a way that it becomes evident that the identification of
sources serves to justify their decisions, not to explain them. As could have
been expected given its composition, the convention did not endeavor to
"summarize" the prevailing rights but, rather, to produce the Charter of
Rights that, in the opinion of the majority of its members, the EU needs.
The text appears organized according to what the preamble identifies as
the "indivisible, universal values of human dignity, freedom, equality and
solidarity,"36
each of which respectively heads one of the first four chapters of
the Charter. Following these four are three additional chapters: the fifth,
dedicated to citizens' rights; the sixth, to justice; and the seventh, to general
provisions;37
which is crucial because it explains the reach and effects of the
proclaimed rights. Included within this framework are all of the rights
commonly found in recent constitutions, in Europe or Latin America, and even
some rights that have yet to be recognized by any constitution, involving the
prohibition of eugenic practices, the trafficking of human bodies and body
parts, and the reproductive cloning of human beings.38
The doctrinal debate
A Charter of dubious utility 419
35
The indications of the sources of various rights are contained in the "Explanations relating to
the Charter." See CHARTE 4473/00. CONVENT 49, also available at http://www.europarl.eu.int/
charter/convent49_en.htm.
36
It seems evident that even though it is desirable for a political community to strive to attain
respect for universal values, it cannot found itself on those values, given that those values, by def-
inition, do not separate the members of that political community from all other people. However,
the preamble does not offer any indication of which elements single out Europe from the rest of
humanity. It does allude, in vague terms, to the EU's awareness of its spiritual and moral heritage.
Yet, given that it also underlines the diversity of cultures and traditions among the peoples of
Europe, it is unclear whether its heritage holds anything specific and common to Europeans, and
if so, what. To make the situation still more ambiguous, even the characterization of cultural her-
itage is done in significantly different terms in the different linguistic versions of the Charter. In
fact, in most languages, the heritage in question is only "spiritual and cultural," while in the
German text, it is "geistig­religiös," an expression that, whatever the correct linguistic meaning,
seems hardly congruent with the decision of the convention to remove the allusion to the religious
past that appeared in a previous draft. For more on the drafting of the preamble, see Justus
Schönlau, Drafting Europe's Value Foundation: Deliberation and Arm-Twisting in Formulating
the Preamble to the EU Charter of Fundamental Rights, presented at the Advanced Research on
the Europeanization of the Nation States (ARENA) Workshop on the Charter of Rights as
Constitutive Instrument, (June 8­9, 2001).
37
Charter, supra note 1, ch. 1­4, 5, 6, and 7.
38
It is evident that, although the moral intuition may make sense, the inclusion of a right involv-
ing prohibitions introduces some curious, dogmatic problems. The right is not so much a prohibi-
tion on the state, but a mandate to establish a prohibition. It is a right that places limits not on the
power of the state, but on the freedoms of civil society.
over the inappropriateness of including rights that lack any relationship with
the competency of the EU had a limited effect at the heart of the convention,
where the majority decidedly favored an all-encompassing Charter, even
though what seems to have been the key argument in favor of this position--
the categorical differentiation between rights and competencies--is logically
very weak.39
The rights in the Charter have very diverse structures, so much so that only
an extremely broad definition of the category of "fundamental rights" could
include all of them. First, there are pure rights, which clearly bind all the
powers of the state, including the legislature. Other rights are stated as princi-
ples whose future form is left in the hands of a legislator (state or Community),
who apparently enjoys total liberty to complete this task.40
In yet other cases,
even the content of the right itself is entrusted to each state's own legislation
and practices, and in such a way that the Charter only ensures the principle of
equality.41
In addition, the Charter contains precepts that describe responsibil-
ities that have no correlation with any right whatsoever,42
and, finally, there
are statements that express feelings of benevolence and moral support for
certain human aspirations but whose legal content is indiscernible. Take
for example, the moving article 25, which announces to the universe that the
EU recognizes and respects the rights of the elderly to live a dignified and
independent life, and to participate in social and cultural activities.
Although the final phrase of the preamble mentions "rights, freedoms and
principles" as apparently separate categories, these are, from a normative point
420 F. R. Llorente
39
This argument, which the Secretary-General of the convention deduces from the ECJ's
Declaration on the EU's membership in the ECHR, is circular. See Jean-Paul Jacqué, La démarche ini-
tiée par la Conseil européen de Cologne [The process initiated by the Cologne European Council], 12 REVUE
UNIVERSELLE DES DROITS DE L'HOMME (R.U.D.H.) 3 (2000). This issue of the R.U.D.H. collects the
works--many authored by members of the convention--presented at the Symposium on the
Charter organized by the Institute of High European Studies of the University of Strasburg.
It is evident that behind the doctrinal arguments, there exists a difference of political postures.
Those who oppose the inclusion of rights unrelated to the competencies of the EU fear that includ-
ing such rights will expand the competencies of the EU, a fear not felt by those who would like to
see those competencies broadened, regardless of whether or not they believe the risk exists. The
inverted postures of the Constitutional Convention of Philadelphia and the convention in Brussels
are curious. If, at the former, it was the Federalists (led by Hamilton) who opposed the proclama-
tion of rights that did not correspond to competences of the Union, in Europe, this position has
more support among the Antifederalists.
40
For example, the freedom to create teaching institutions (art. 14(3)), the freedom of enterprise
(art. 16), workers' right to information (art. 27), the right to collective bargaining (art. 28), etc.
The reference made in all of these articles not only to the legislation of the states but also to
the "practices" is genuinely disconcerting, and not only because of the enigmatic concept of a
"practice." See Charter, supra note 1, arts. 14(3), 16, 27, and 28.
41
See, e.g., Charter, supra note 1, arts. 34 and 35.
42
See, e.g., Charter, supra note 1, arts. 37 and 38.
of view,43
divided into only two groups: rights, in the strict sense of the word,
and "principles." The first group places limits on the power of the institutions
and organs of the EU, and even on the power of the states in applying
Community law, since both entities are required to respect these rights. In
contrast, the "principles" impose an obligation to "observe . . . and promote the
application thereof in accordance with their respective powers."44
The exact
content of this obligation is not easily defined, but, given its nature as a positive
obligation, it will likely have an effect on the division of competencies between
the EU and the states, in spite of the emphatic affirmation that "the Charter
does not establish any new power . . . or modify powers and tasks defined by the
treaties."45
On the other hand, the purely negative obligation of respecting rights is not
neutral either, with regard to the distribution of competencies among the EU
and its members. Article 52 authorizes the institutions and organs of the EU
and the states to establish legal limits on rights yet specifies that those limits
will be considered legitimate only when, in light of the principle of propor-
tionality, they are necessary to protect the rights and liberties of everyone else
or to "genuinely meet objectives of general interest recognised by the Union."46
In this way, the EU's supervisory power is extended from certain concrete
subjects to all areas of state decisions.
The vagueness described above becomes even greater when one considers
the following omission: the Charter does not offer any indication of what
should be the criteria that distinguish rights from principles, a question that
cannot be solved by resorting to academic doctrine, where there exist many
different concepts of principles.47
Moreover, the next to last article (art. 53)
incorporates a common norm of international human rights treaties, and the
A Charter of dubious utility 421
43
Charter, supra note 1, art. 51.
44
Charter, supra note 1, art. 51(1).
45
Charter, supra note 1, art. 51(2).
46
Charter, supra note 1, art. 52. Emphasis mine.
47
Guy Braibant, the vice-president of the convention was apparently responsible for the decision
to introduce "principles" into the Charter. See Conclusions de Guy Braibant, 12 R.U.D.H. 66 (2000)
(where he argues that principles can be identified with positive rights). This can also be deduced
from the convention document in which this term is first mentioned. See CHARTE 4316/00.
CONVENT 34. An important aspect of this doctrine, which considers "principles" to be the norms
that impose responsibilities without correlative rights (for example, articles 37 and 38 of the
Charter), instead views positive rights as a tertium genus, a group of rights conceptually between
social rights and principles. See, e.g., Olivier De Schutter, La contribution de la Charte des droits fon-
damentaux de l'Union européenne  la garantie des droits sociaux dans l'ordre juridique communautaire
[The contribution of the Charter of fundamental rights of the European Union to the social rights
guarantee in the community judicial order], 12 R.U.D.H. 33, 43­44. There also are many scholars
who understand principles to be norms of a certain structure, regardless of their content. Given
this definition, one cannot use the category alone to establish distinctions based on content.
results are absurd and contradictory in a charter of rights that forms part of
the internal law of a fixed political community. Basically, article 53 guarantees
that the protection of rights granted by the EU cannot be understood as
damaging to, or restrictive of, the protection of rights granted by
international law and "by the Member States' constitutions."48
Elementary
logic, therefore, leads to the conclusion that in judging acts of member states
according to the law of the European Union, the ECJ must, at a minimum,
grant the same level of protection to the rights in question as that granted by
the member states with the highest protection of those rights; this must be
done in order to ensure a uniform interpretation and application of EU law
throughout its entire territory. Since the level of protection for a right,
whichever right that may be, inevitably influences the level of protection for
the remaining rights, and an equilibrium among them can be reached only
when taking into consideration the whole group of rights, an absurd situation
emerges in which it becomes impossible for the ECJ to maintain a coherent doc-
trine of rights protection. The principle of minimum protection of rights,
which makes sense for human rights in international law, lacks any meaning
when one tries to apply it to fundamental rights in internal law.49
6. Conclusion: The dubious utility of the Charter
Since the Nice Council in December 2000 left the final decision concerning the
Charter's legal meaning in the hands of the conference to be held in 2004, it
is not yet possible to firmly judge the Charter's utility in reaching its projected
goals. Yet given that the basic options are limited in number, one can still ven-
ture to make some advance judgments which, though hypothetical, are
nonetheless both founded on facts and relevant to the debate about the future
of Europe.
Although we can imagine an intermediate solution, one that would
establish distinct forms of legal enforcement for the different sections of the
Charter, there are basically two possible answers to the question, "What will be
the Charter's obligatory force, its legal efficacy?" These options are, simply,
either to deny or give the Charter such force. The latter option could be insti-
tuted, variously, either by directly integrating the Charter's text into the
treaties,50
or by indirectly including the Charter within the TEU's reference,
422 F. R. Llorente
48
Charter, supra note 1, art. 53. Emphasis mine.
49
A more complete analysis of this question can be found in the excellent work of Jonas Liisberg,
who was awarded the 2001 Mancini Prize. See Jonas B. Liisberg, Does the EU Charter of
Fundamental Rights Threaten the Supremacy of Community Law? available at http://www.
jeanmonnetprogram.org/papers/01/010401.html.
50
Direct integration could also happen in several diverse and not exactly equivalent forms; for my
analysis here, however, I have eliminated these different variations.
in article 6(2), to common constitutional traditions and the ECHR. I will
consider these separately, and, therefore, will speak of three possible options.
The first option--leaving the Charter in its present state of limbo, as no
more than a "proclaimed" document--would deprive it of utility for either
remedying the defects in the system of rights protection or advancing toward
a future European constitution. With respect to the first of the two goals, it is
clear that leaving the text as is would not only fail to improve Europeans'
knowledge of their rights but would lead, rather, to our further confusion.
The rights declared in the Charter only have legal meaning if they already
existed before the Charter collected them, and then only by virtue of this prior
existence, not their appearance in the Charter. It seems improbable that any
citizen from any member country would have discovered, thanks to the
Charter, rights already granted to her by her own constitution.
A charter that is merely a declaration cannot hope to contribute much to
the creation of a future European constitution. Perhaps those who believe that
the principal meaning of the Charter lies in its capacity to make common
values explicit will be satisfied that this goal has been achieved by the mere
proclamation of the Charter. But those values do not become immediately
apparent in the text of the Charter, which was drafted with other purposes in
mind; nor are these values specific to the EU, or even to Europeans. The
Charter's statement of rights, which includes all the reservations and
inevitable references typical of legal texts, uses general formulas whose con-
tent can be injected with diverse values and which, in many cases, reiterate a
corresponding formula of the national constitutions, themselves quite similar
to other Western constitutions. It seems disjointed to assign the job of setting
forth the European social model to a charter that, in announcing a right to
social protection, to organized labor, and to free education (the rights Jospin
singled out in his previously cited speech),51
refers to the legislation and the
practice of each country. I note these difficulties, only in passing, and without
entering into yet another problem, which I shall take up below: Can rights that
limit power found the creation of a new power?
However, it is hardly likely that the Charter will remain indefinitely in the
limbo of being a mere declaration, if only because of the energy with which
the European Parliament is demanding its incorporation into the treaties.52
As mentioned previously, such incorporation could occur by two different
methods whose usefulness in relation to each of the goals of the Charter are,
not coincidentally, in perfect opposition to each other. The method of direct
incorporation, by integration of the Charter into the treaties, is the only
method that could serve as a basis for a future constitution, but it is seriously
disturbing for the system of rights protection. The latter would be better served
A Charter of dubious utility 423
51
See supra note 28.
52
See its resolution of Nov. 30, 2000, on the preparation of the Nice Council, EUR. PARL. DOC.
(COM 596) (2000).
(or at least less harmed) by the method of indirect incorporation, which is
absolutely useless for a potential constitutionalization of Europe.
The explicit enumeration in the Charter of the prevailing fundamental
rights of the EU can help the ECJ construct a more complete jurisprudence
concerning these rights and apply a more refined method to enforce these
rights. It is not certain that the incorporation of the Charter into
the treaties will be enough to generate these changes, which are actually
more theoretical than practical. Perhaps, in this way one could guarantee that
the rights protection offered by the ECJ is equivalent to that dispensed by
national courts (which was, as previously mentioned, the third of the three
conditions necessary for the equilibrium of the system that I described in
section 2). However, even if these benefits were certain, and even if they prom-
ised to ensure the rights of the citizens of the EU, they could be attained
only at the cost of gravely damaging other essential elements of the system. In
particular, there is a risk of destroying the other two conditions of equilibrium,
now reasonably fulfilled. The necessary nexus between the catalogue of rights
protected by the EU and those ensured by the member states would be broken.
Moreover, by "substantiating" the protected rights, those rights could be
understood not only as limits on acts of power but also as the foundation of
that power, an implicit authorization of competency. This is even more
applicable where a charter, like the one discussed here, includes numerous
rights of social welfare.
The disturbing effects that would result from a direct incorporation of the
Charter into the original law of the EU (by way of integration into the treaties)
become quite attenuated if the incorporation is done indirectly--by including
the Charter among the sources of rights, referred to by article 6(2) of the TEU,
considered repositories of the "general principles" of the Community order.
This indirect incorporation provides sufficient binding force to the few rights
included in the Charter that do not figure, in one way or another, into the
common constitutional traditions and ensures the proper connection between
the Community and national orders. Above all, indirect incorporation
maintains the characterization of the rights as general principles, and their
value as norms of control, not of empowerment or authorization.
Undeniably, placing the Charter of Rights of the EU together with an
international treaty (the ECHR) to which the member states (but not the EU)
are party, along with the existence of an undefined group of common consti-
tutional traditions, creates a somewhat confusing situation. The utility of the
Charter is reduced because the ECJ would find itself unable to employ the
Charter as a basis for constructing its own doctrine of rights, in the same way
(theoretically) that the national tribunals would employ their respective
constitutions. The idea that the table of rights of national constitutions
determines the doctrine of those national courts is, however, an illusion.
The catalogue of rights, effectively protected in a concrete legal order along
with the content of such rights, depends very little on the literal meaning of
424 F. R. Llorente
the corresponding declaration, and almost entirely on judicial interpretation.
Such interpretation is determined, first, by the dominant ideas in the cultural
space in which the system operates, and, second, by the particular concepts of
the political community prevailing within that order.53
That is why the rights
protected in the different states are so similar, notwithstanding the literal
meaning of their respective constitutions. And that is why it is difficult for each
state to renounce its own conception of the appropriate balance between the
levels of protection of the different rights. From this point of view, the peculiar
structure of the EU poses a problem whose solution does not fit in any theory,
neither at the present moment nor in the foreseeable future. Rather, the
solution must be searched for through practice, without any other guide than
prudence.
Each national order remains divided, from the point of view of rights
protection, into two differentiated sectors: the first, comprising acts with no
relationship whatsoever to the law of the EU, where the protection of rights
remains exclusively in the hands of national courts; and the second, where the
protection of rights falls to the ECJ. Since it is evident that the unity of the
system requires that the content and the level of rights protection be the same
in all cases, regardless of the sector of activity, both the ECJ and the national
courts are equally obligated to act in a coordinated fashion. The ECJ cannot
attend only to a specific interest in ensuring integration, while the national
courts cannot dispense with that interest in favor of defining a national con-
ception concerning the equilibrium between the different rights. To complete
this difficult task, the relative lack of definition of the rights protected by the
EU is not an inconvenience, but an advantage.
As indicated earlier, the indirect incorporation of the Charter into the law
of the EU, the method least disturbing for the system of rights protection, is
nonetheless totally useless as a stepping stone toward a European constitution.
A future constitution will be served only by a Charter that has been integrated
into the treaties, preferably in some distinguished place within them. What
remains unclear, as expressed previously, is how such an integrated Charter
will serve the constitutionalization of Europe.
If the idea behind providing an integrated Europe with a constitution is to
create a new European political community with goals distinct from those of
its member states, as seems to be the reasoning of its supporters, one must
suppose that the integration of rights into the treaties arises out of the belief
that the desired end of all political association is to serve the natural and
inalienable rights of men and women. But if this is so, those who argue for
the integration of rights into the treaties are badly mistaken. The rights whose
A Charter of dubious utility 425
53
Along these lines, see Jochen Abr. Frowein, Wesentliche Elemente einer Verfassung [Essential
Characteristics of a Constitution], in L'ESPACE CONSTITUTIONNEL EUROPÉEN, DER EUROPÄISCHE
VERFASSUNGSRAUM, THE EUROPEAN CONSTITUTIONAL AREA 71 (Roland Bieber & Pierre Widmer eds.,
Schulthess Polygraphischer Verlag AG 1995).
protection justifies the exercise of a political community's power over its
members are not rights that place limits on power (which would be absurd),
but rather are those that private individuals have against each other, rights
that the political community will make effective through the creation and
application of positive law.54
The creation of a political community is a
function of its objectives or goals, and not of its limits, which only operate as a
condition placed upon that community.
In order for the Charter of Fundamental Rights to act as foundation for the
future European constitution, it is necessary to see in those rights not condi-
tions superimposed on the exercise of the EU's powers, or limits that have to be
respected, but rather objectives to be attained. Since, with a few insignificant
exceptions, those rights appear precisely defined as citizens' rights vis--vis
state or institutional power, to understand them as objectives of the EU leads to
the conclusion that the purpose of the EU, its raison d'tre, is to guarantee that
the member states respect those rights. This would make the delimitation
of competencies between the EU and its members even more obscure and
difficult, while leaving intact the apparatus in charge of its governance. It
would be a leap into nothingness, a leap that, fortunately, is impossible from a
political point of view.
In present-day Europe, those who resist increasing the powers of the EU at
the expense of the states are called "Euroskeptics," while those who hold the
opposite view are known as "Euroenthusiasts." The author of this paper is
sincerely convinced that it is necessary to strengthen the EU, but that the best
way to do so is not to endow the EU with a constitution in name only, but by
confronting its real and serious problems head on. Among these, for example,
and apart from the problems associated with a system of governance that has
exhausted its possibilities, is the total incapacity of the EU to redistribute
income or to execute a foreign policy of its own.
426 F. R. Llorente
54
So as not to engage in a longer explanation, I refer the reader to article 2 of the French
Declaration of the Rights of Man, supra note 4, or articles 1 and 2 of the Virginia Declaration of
Rights (United States) (1776), available at http://www.archives.gov/exhibit_hall/charters_of_
freedom/bill_of_rights/virginia_declaration_of_rights.html, or to the U.S. DECLARATION OF
INDEPENDENCE (1776), available at http://www.house.gov/house/Declaration.html.