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Identifying Commonalities: L’ Europe S’habille

Until the mid-1980s, fundamental rights as well as the concept of democracy had not been mentioned in the operative parts of any of the treaty texts. In fact, while the original EC Treaty of 1957 made no reference at all to democracy or other political principles of the like, the Preamble to the Single European Act of 1986 for the first time spoke of a determination of member states

to work together to promote democracy on the basis of the fundamental rights recognized in the constitutions and laws of the Member States, in the Convention for the Protection of Human Rights and Fundamental Freedoms and the European Social Charter, notably freedom, equality and social justice.

From Maastricht to the European Convention

When at Maastricht first vague mention was made of democracy as an element of member states’ identity and of fundamental rights, that was perhaps intended more to constrain the new creature ‘EU’ in gentle cuffs, rather than the member states.

(1) The Union shall respect the national identities of its Member States, whose systems of government are founded on the principles of democracy.

(2) The Union shall respect fundamental rights, as guaranteed by the European Convention for the Protection of Human Rights and Fundamental Freedoms signed in Rome on 4 November 1950 and as they result from the consti­tutional traditions common to the Member States, as general principles of Community law.

Clearly, speaking of a promotion of democracy and fundamental rights, as the Single European Act did, by no means equals the wording of the Maastricht Treaty affirming the respect of these principles, which is to say their full recognition as legally binding. The assertion of a willingness to promote democracy, fundamental rights, freedom, equality and social justice was probably aimed at the relations of the Community with third states more than at the Community itself or even at its member states. In any case also, that wording by far remained behind the ambitious Preamble to the UN Charter of 1947, by which all the member states were already bound anyway.

Nonetheless, the Single European Act is significant insofar as it marks the initial step of mention, and therefore identification, of common European values not directly related to the Common Market. But because the mention was vague enough as to who would be bound by that declaration and to what extent, there was no need on the part of member states to counter the statement of common values in the Single European Act as a very soft step of non-economic integration by securing an opt-out from those values elsewhere.

At Maastricht, as was pointed out before, and at each of the treaty modifications from Maastricht onward, additional principles were identified and enshrined in Union law. The Amsterdam Treaty remodelled Maastricht’s Article F to a new and quite expanded Article 6 EU Treaty, which since reads as follows:

(1) The Union is founded on the principles of liberty, democracy, respect for human rights and fundamental freedoms, and the rule of law, principles which are common to the Member States.

(2) The Union shall respect fundamental rights, as guaranteed by the European Convention for the Protection of Human Rights and Fundamental Freedoms signed in Rome on 4 November 1950 and as they result from the consti­tutional traditions common to the Member States, as general principles of Community law.

Then in 1998, following the 50th anniversary of the Universal Declaration of Human Rights by the UN and in response to widespread criticism of the EU for not having an appropriate fundamental rights footing, the Council decided to begin work on a charter of fundamental rights. The aim was that the fundamental rights applicable at Union level should be consolidated in a single document to raise awareness of them. The work was entrusted to a special body-which decided to call itself the Conven­tion-made up of sixty-two members including representatives of the governments of the member states and of the President of the European Commission, and members of the European Parliament and national parliaments.

The Nice European Council solemnly proclaimed the Charter as embracing values to the Union and the member states, but it was unable to reach agreement on incorporating the Charter in the treaties and thus making it legally binding. Despite the Charter’s lack of legal force, the CFI has taken on a practice of frequent reference to the Charter in its judgments. Although this legal policy was not taken over by the ECJ, the reference of the CFI to the Charter likely alarmed those member states which had opposed its inclusion in primary law. Since it was not likely that agreement could be reached on this issue within the Council, the matter was referred to the Convention on the Future of Europe, which was set up at the initiative of the Nice Conference and commenced its works in 2002.

The works of the European Convention (leading to the signature of a Treaty establishing a Constitution for Europe in fall of 2004)25A finally constitute the latest step in this saga of weaving a thick common values basis for the Union on the one hand and the desire by member states to cut holes into it on the other. The aim of that Convention, which was organised according to a model similar to the one used for the body that drafted the Charter, later referred to as the ‘Constitutional Convention’, was to examine four key questions on the future of the Union, among them, as has just been said, the legal status of the Charter of Fundamental Rights. The approach of the Convention to the Charter remarkably displays the divided method employed by the Union and its member states in the progressive framing of common values. On the one hand, the Charter forms an integral part of the Draft Constitution as such. On the other hand, and quite to the contrary of stipulations by the Convention and the Council that the initial Charter would not be altered, the European Convention introduced a distinction to the Charter between ‘rights’ and ‘principles’.

(2) Rights recognised by this Charter for which provision is made in other Parts of the Constitution shall be exercised under the conditions and within the limits defined by these relevant Parts.

(5) The provisions of this Charter which contain principles may be implemented by legislative and executive acts taken by Institutions and bodies of the Union, and by acts of Member States when they are implementing Union law, in the exercise of their respective powers. They shall be judicially cognisable only in the interpretation of such acts and in the ruling on their legality.

It is due to this distinction between enforceable rights and not directly enforceable principles that a compromise to include the text of the Charter in the Constitution could be reached. The effect of this distinction, quite clearly, is to-in essence- limit the scope of enforceable fundamental rights to the status quo. After all, the economic and social rights contained in the Charter alongside traditional civil and political rights had essentially been its innovative trait. Even so, the remaining merit of the inclusion of the Charter in primary law lies in the highlighting of a whole set of common values, especially solidarity rights, which were already previously mentioned in the treaties but the importance of which for the common basis of the Union is now underscored.

This approach to the Charter aptly illustrates that member states seek to solve the legitimacy dilemma of the EU by endowing it with legal foundations reminiscent of those of a democratic nation state, but are all the while reluctant and apprehensive to surrender bits national sovereignty and national identity to the supranational entity. The solutions created by them to overcome this predicament are time and again imaginative in their outward appearance, but they all share the characteristic of being opt-outs from proclaimed or actual European commonalities. Nonetheless, gradually, the common fabric surrounding them becomes denser.