The reasons for drafting a Charter

Article 6 of the Treaty on European Union says that the European Union respects fundamental rights. This is an important promise to citizens. However, the Treaty does not tell citizens what the fundamental rights are. The Article also mentions the European Convention on Human Rights (ECHR), but the ECHR is not enforceable against the Union institutions in the same way as it is against the Member States, which have all signed it.

To remedy this situation, the Commission proposed nearly ten years ago that the Community should also sign up to the European Convention of Human Rights. In March 1996, the Court of Justice decided that the existing EC Treaty does not allow that to happen(1).

That was the starting point for the idea of a Charter of Fundamental Rights of the European Union.

The drafting process

The decision to draft the Charter was made in June 1999, at the European Council in Cologne. The task was given to a special body called the Convention. The experiment was a success and inspired the present Convention, which is drafting a constitution for the European Union.

The European Ombudsman was an Observer at the first - Charter - Convention. He has the same status at the constitutional or, as it calls itself, the European Convention.

The Charter Convention began and completed its work in the year 2000. It elected as chairman Roman Herzog, a former president of Germany and of the German constitutional court. Under his leadership, the Convention adopted a wise strategy. It seemed clear that some Member States would oppose a legally binding Charter. The Convention did not waste time debating the point, but drafted the Charter as if it would become legally binding. That meant that the text could be given legal force in the future, when there was the political will to do so.

What the Charter contains

The Charter is a re-statement of existing fundamental rights in a more accessible form.

Some of the Charter rights correspond to rights in the ECHR. The meaning and scope of these rights are the same in the ECHR and the Charter, even when the Charter uses more modern wording (Article 52 (3) Charter). Naturally, this does not prevent Union law from providing more extensive protection.

In addition, the Charter contains economic and social rights, as well as rights of European citizenship. The latter include the right to good administration (Article 41), which is the first time this right is explicitly mentioned in an international human rights instrument.

The Charter is proclaimed

On 7 December 2000, the Presidents of the European Parliament, the Council and the Commission jointly proclaimed the Charter at the same time as the Treaty of Nice was signed.

This action taken in the name of the highest authorities of the European Union entitles citizens to believe that the fundamental rights mentioned in Article 6 of the Treaty are the same as those set forth in the Charter.

Although the Charter is not legally binding in itself, it is persuasive as to what existing legal rights individuals have. Judgements of both the Court of First Instance(2) and the European Court of Human Rights(3) have mentioned the Charter. Advocates General of the Court of Justice also refer to it regularly.

The European Ombudsman and the Charter

The European Ombudsman’s view is that the solemn proclamation of the Charter by the Presidents of the European Parliament, the Council and the Commission commits those three institutions to respect the rights that it contains. Failure to do so would be maladministration.

Since the proclamation, the Ombudsman has tried to encourage the institutions and bodies to respect the Charter rights.

We carried out three own-initiative inquiries on specific Charter rights:

• Inquiries into officials' freedom of expression and right to parental leave led the Commission to propose amendments to the Staff Regulations.
• An inquiry into age discrimination in recruitment led the Presidents of the European Parliament and the Commission to agree to end the use of age limits in recruitment with immediate effect.

We have used the Charter in dealing with complaints:

• The Ombudsman made a special report to the European Parliament about indirect sex discrimination against women in the secondment of national officials. In response, the Commission abolished the rule concerned.
• The Ombudsman also dealt with a complaint about racial imbalance in recruitment to the institutions and bodies of the European Union. In response, the Commission undertook to encourage applications from members of minority communities and to prepare an action plan on equal opportunities.

The right to good administration

The Ombudsman took the initiative to draft a Code of Good Administrative Behaviour, setting out in detail what good administration means. The European Parliament approved the Code, with some changes, on 6 September 2001.

Parliament called on the Ombudsman to apply the Code in examining whether there is maladministration, so as to give effect to the right to good administration, mentioned in Article 41 of the Charter. This we now do, having informed all the Community institutions and bodies of the Code.

Parliament also called on the Commission to make a proposal for a European administrative law, which would apply uniformly to all Union the institutions and bodies.

The Ombudsman has supported this idea by proposing that the constitution should include good administration as an objective of the Union, as well as specific provision for the adoption of a law on good administration.

The Ombudsman also suggested that the Commission should adopt a special code, in conformity with Article 41 of the Charter, for its administrative handling of Article 226 complaints about infringements of Community law by Member States. In response, the Commission published a Communication last year, which represents real progress towards fair administrative procedure for complainants.

The Charter should be legally binding

Unfortunately, there is still resistance in the administration of the Council and in the administration of the Court of Justice. We learnt recently that they are trying to delay a final decision by the new European Recruitment Office not to use age limits, despite the public commitments already made by most of the participating institutions and bodies.

Unfortunately the will to discriminate and to violate other fundamental rights remains strong, even in the rich and civilised countries that make up the European Union. I have heard it argued by some high officials that the Charter is just a promise made by politicians and that no one should expect it to be followed. That is why I believe the Convention is right to insist that the future constitution of the Union must give legal force to the Charter. It should bind the Union’s institutions and bodies and the Member States in matters governed by Community law.

Remedies and the Rule of Law

To make the Charter legally binding is essential, but not enough. I come from a country that used to have another Union as a close neighbour: the Soviet Union. The Soviet Union had a constitution which contained some wonderful rights. The problem was that no one followed them and there were no effective procedures for citizens to enforce their rights.

In societies governed by the rule of law, rights and remedies go together. That is made clear in Article 47 of the Charter, which says that everyone whose rights and freedoms guaranteed by the law of the Union are violated has the right to an effective remedy before a tribunal.

This provision tells citizens they have the right to a remedy, but not what the remedies are.

That is why I proposed to the European Convention that the constitution should contain a chapter on remedies, to inform citizens of the remedies available when their rights under European law, including fundamental rights, are not respected.

The chapter should begin with the courts: they are the main guarantors of the rule of law. We should inform citizens that they have the right to go to national courts to defend their rights under European law. The important constitutional role of the Court of Justice should be duly mentioned.

An ombudsman in all Member States

Having worked as an ombudsman for more than 13 years ─ first as a national ombudsman and then as Ombudsman of the European Union ─ I believe that European citizens should also have the right to an extra-judicial remedy when they have a dispute with the public administration. This remedy can either be an ombudsman, or a similar body with a constitutional mandate. For the citizen, it is good to have such an remedy because it is flexible, quick and without cost to the complainant.

It is of course for every Member State to decide for itself on the scope and powers of this body, as long as it guarantees the promotion of good administration and the rule of law, thus enhancing relations between the administration and the citizens. In the case of a dispute with a public administration, a body should exist with a remit to solve individual complaints. This body may also take initiatives to promote better administrative procedures and practices.

It is possible to have both a committee on petitions and an ombudsman, which co-operate successfully. This is the situation in the European Union where the co-operation works clearly to the benefit of the citizens. The committee on petitions, as a political body, should focus on matters of principle where political experience and influence are needed to put things right. The ombudsman should deal, as a rule, with citizens' individual complaints. It is useful for the committee to oversee the work of the ombudsman by dealing with his annual report and thus giving the ombudsman guidance and advice.

National ombudsmen are currently established in 12 of the 15 Member States of the European Union. There are also about 40 ombudsman and similar bodies operating at the regional level.

Germany has well-functioning committees on petitions at the Federal level and in the Länder. Some Länder also have ombudsmen. Italy does not currently have a national ombudsman or committee on petitions, but has an active network of regional and municipal ombudsmen. In Luxembourg, there is for the moment no extra-judicial remedy for individual disputes with the public administration. There are however proposals in both Italy and Luxembourg to establish a national ombudsman. All 10 of the countries due to join the European Union in 2004 have national ombudsmen or similar bodies already established.

The remedies chapter of the constitution should therefore mention that citizens have the right to complain to an ombudsman or similar body in each Member State.

The network of Ombudsmen and similar bodies

The European Ombudsman and the existing ombudsmen and similar bodies in the European Union cooperate in a network. We provide information about European law and transfer cases rapidly to the body best able to deal with them. The national and regional Ombudsmen are competent to deal with cases involving Community law and also have long experience with human rights issues. They could play an important part in helping to make the Charter of Fundamental Rights a living reality.

The network and the implementation of the Charter would both be strengthened if the European Ombudsman could refer fundamental rights cases to the Court of Justice, if no solution could be found in a normal ombudsman investigation. This could limit the number of cases in which individuals might themselves seek to bring fundamental rights cases before the Community courts.

The remedies chapter of the constitution should also make clear that citizens have the right to petition the European Parliament about infringements of European law by Member States. The Commission should have a duty to cooperate with the European Parliament in ensuring that the complaint is examined using a fair and open procedure.

Unfortunately the preliminary draft Constitutional Treaty published at the end of October last year does not seem to envisage a chapter on remedies. I hope that everyone here will do everything in their power to encourage the Convention to look at this issue seriously and to include a chapter on remedies.

The establishment of a discussion circle on the Court, chaired by Commissioner Vitorino, provides a good opportunity to address the issue.

Accession to international human rights instruments

Experience shows that the possibility of international supervision further enhances and strengthens the protection of fundamental rights.

The ECHR is the most developed and effective system of this kind in the world. All the Union’s Member States accept international supervision through the Convention system, which they played an active part in creating and developing over a long period. It therefore seems right that the institutions and bodies of the Union should also accept this supervision, through accession to the Convention.

The Council of Europe has also developed other important international human rights instruments, such as the European Social Charter, the European Convention for the Prevention of Torture and Inhuman or Degrading Treatment or Punishment and the Framework Convention for the Protection of National Minorities.

There are also United Nations instruments such as the Universal Declaration of Human Rights, the International Covenant on Economic, Social and Cultural Rights, and the International Covenant on Civil and Political Rights, as well as a number of ILO conventions such as those concerning Freedom of Association and Protection of the Right to Organise (C87, 1948) and the Worst Forms of Child Labour (C182, 1999).

As presently drafted, Article 5 (2) of the constitution, would prevent the Union from acceding to any international human rights agreement other than the ECHR.

I believe that the Constitution should leave open the possibility for the Union to follow the good example of most of the Member States by acceding to other international instruments for the protection and promotion of human rights.

I have therefore presented an amendment to make the authorising provision in the constitution more general in scope.

Conclusion

So far, matters of human rights have progressed well in the European Convention. This is thanks to the commitment to human rights shown by Commissioner Vitorino and the members of the Working Group on the Charter and accession to the ECHR.

It seems that the Convention has accepted in principle that the Charter should be made binding in Community law and that the Union could adhere to the ECHR.

It is important to underline that these great steps forward should be supported by a well-functioning system of remedies, in which the primary role of the courts is accompanied by additional extra-judicial remedies. The citizen who wants to know what remedies are available if his or her rights under European law are infringed should be able to find the answer clearly set out in the constitution of the Union.

---

(1) Opinion 2/94 [1996] ECR I-1759. The Court held that Article 308 (ex Article 235) of the EC Treaty (ECT), which gives the Council the power to take appropriate measures if action of the Community is necessary to attain one of the objectives of the Community, was not a sufficient legal basis, given the “fundamental institutional implications” for the Community and the Member States of accession to the European Convention.

(2) See Case T-54/99, max.mobil Telekommunikation Service GmbH v Commission, 2002 ECR II-00313, paras 48 and 57; Case T-177/01, Jégo-Quéré & Cie SA v Commission, 2002 ECR II-02365, paras 42 and 47; Case T-211/02 Tideland Signal Limited v. Commission, Judgement of 27 September 2002, para 37; Joined Cases T-377/00, T-379/00, T-380/00, T-260/01 and T-272/01, Philip Morris International, Inc.and others v Commission, judgement of 15 January 2003, paragraph 122.

(3) See Goodwin v United Kingdom, Judgement of 11 July 2002 paragraph 100; I. v United Kingdom, Judgement of 11 July 2002, paragraph 80.