APPLICATION OF THE CHARTER OF FUNDAMENTAL RIGHTS OF THE EU IN THE UNITED KINGDOM AND POLAND
                                   ACCORDING TO THE LISBON TREATY

   

                                            JAN JIRÁSEK

                                 Faculty of Law, Masaryk University



                                            VLADIMÍR TÝČ

   

   

   Key words

   European Union, Lisbon Treaty, human rights, Charter of Fundamental Rights of the European
   Union, legal force, the United Kingdom, Poland, Protocol, European Court of Justice.

   

   The Charter in General, its Legal Force and its Inclusion in the Lisbon Treaty

   

   It is a well-known fact that the Charter of Fundamental Rights of the European Union
   (hereinafter “the Charter”) was solemnly proclaimed by the Presidents of the European
   Parliament, the Council of the European Union and the European Commission in Nice European
   Council on the 7^th December 2000. The Charter was not annexed to the fundamental Treaties and
   its legal force remained undetermined. However, there are several reasons why the Charter
   should by legally binding. First, the Charter shall be binding at least on the European
   Parliament, European Commission and European Council due to the fact that the Charter was
   proclaimed by the presidents of these institutions. As the Commission put it nicely, “the
   institutions that have proclaimed the Charter, have committed themselves to respecting it”.
   The Charter could be there fore regarded as a binding inter-institutional agreement. Second,
   certain provisions of the Charter must be considered as binding on all institutions of the EU
   and also on Member States. These are provisions that consolidate the existing law (mainly the
   case law of the ECJ). Moreover, we cannot hide the fact, that the Charter has been already
   used by the European Court of Human Rights in its decisions and also the ECJ mentioned the
   Charter (although very carefully).

   

   The debate on legal force of the Charter shall be finished when the Lisbon Treaty comes into
   effect. After the ratification process is finished, the Charter shall be legally binding for
   institutions of the EU and for the Member States when they are implementing Union law.

   

   The Approach of the United Kingdom and Poland towards the Charter

   

   The United Kingdom expressed its general objection against a legal binding European bill of
   rights already during drafting the Charter. The British politicians were afraid that such bill
   of rights (administered by the ECJ) could mean more interference from Europe in British
   domestic affairs. Particularly, the British opposed a large concept of the so called rights of
   solidarity (Title IV of the Charter) because of very liberal conditions and rules governing
   this area in the UK. An acceptation of this part of the Charter as legally binding would
   visibly change the legal system of the United Kingdom. There fore the UK decided to attach a
   special protocol to the text of the Lisbon Treaty in which an opt-out from the Charter was
   realized

   

   The Polish reason to object the Charter is a more political one. The Polish government led by
   the Prime Minister Jaroslaw Kaczynski was not satisfied with the provision of the Charter
   prohibiting discrimination on the grounds of sex and with the definition of the right to marry
   and the right to found a family. These provisions aim among others to the legal recognition of
   the same-sex union; however, the Polish government assumed that such recognition would violate
   the country’s cultural heritage. There fore Poland joined the UK protocol. The new Polish
   government, formed after elections in October 2007, has no such objection. Nevertheless, the
   new government needed the support of Jaroslaw Kaczynski’s party in order to reach the
   two-thirds majority required to ratify the Lisbon Treaty as a whole. As a result, the Polish
   attitude towards the Charter remained unchanged.

   

   The Possible Practical Results

   

   Although there is not any express ban on applying the Charter in Poland and the UK in article
   1 paragraph 1 of the Protocol on the application of the Charter of Fundamental Rights of the
   European Union to Poland and to the United Kingdom (hereinafter “the Protocol”), this
   provision does not allow the ECJ and national courts to find out that some Polish or UK legal
   rules are incompatible with the Charter. Paragraph 2 of the article 1 of he Protocol seems to
   limit this general ban only to Title IV of the Charter (solidarity rights). However, such
   interpretation would be contrary to the aim of Poland which objects to rights contained in
   other parts of the Charter. There fore the second paragraph of art. 1 of the Protocol
   apparently has just an illustrative or explanatory character. The same could be said about two
   Polish declarations annexed to the Final Act of the conference that adopted the Lisbon Treaty,
   i. e. these declarations do not limit the scope of general ban on application of the Charter
   in Poland.

   

   However, the idea of the Protocol that the Charter will not be applicable in Poland and the
   United Kingdom could be easily overcome by one important European actor – the ECJ. As
   mentioned above, fundamental rights as a general principle of EU law are protected through the
   case law of the ECJ until now. This case law is then based on legal cultures and
   constitutional traditions of Member States, on European Convention on Human Rights and other
   international human rights instruments and of course on the case law of the European Court of
   Human Rights. Although it is presumable that the ECJ will respect the provisions of the
   Charter and apply them, nothing can possibly prevent the court from adopting an extensive
   interpretation of the Charter and rule beyond its provisions. We must also bear in mind that
   the scope of application of the Charter is limited only to EU institutions and to the Member
   States when applying the EU law. However, the case law of the ECJ on the field of human rights
   has no such limitation. More over, the ECJ is a well-known protector of the single market and
   the four freedoms. Thus if some human rights (particularly the solidarity rights) are more
   restricted in one Member State than in others, the ECJ could regard it as a hindrance to the
   single market or infringement of the said freedoms and promote the protection of such rights
   only on the basis of the provisions of the fundamental Treaties without any regard to the
   Charter.

   

   In Conclusion, the United Kingdom and Poland will not be formally bound by the Charter
   provisions. However, if the ECJ decides that a certain human right (e.g. right to strike or
   right to live in a same-sex union) form a human right which is inherent with the EU or whose
   restriction could threaten the single market, the United Kingdom and Poland will be bound by
   this decision – and indirectly by the Charter. Nevertheless, such decision of the ECJ would be
   a political one and it is hard to say whether the ECJ finds courage to rule in this sense.

   

   Contact – e-mail:

   jan.jirasek@nssoud.cz