Talk:Treaty of Lisbon/Archive 5

The UK and Poland DO NOT HAVE OPT OUTS from the Charter of Fundamental Rights
Has Charter Protocol which clarifies legal effects for UK. Currently, this article - and that on opt outs - reads as though they do.


 * OH YES THEY DO (sorry, it's pantomime season). It is Protocol (30) of the consolidated treaty.  See page 399 of  http://register.consilium.europa.eu/pdf/en/08/st06/st06655.en08.pdf --Red King (talk) 22:38, 13 December 2009 (UTC)

Select Committee on European Union Tenth Report
Protocol 30 is what I meant by Charter Protocol. It is only to clarify the legal effects: http://www.parliament.the-stationery-office.co.uk/pa/ld200708/ldselect/ldeucom/62/6209.htm

'THE UK AND POLISH PROTOCOL

5.84. The United Kingdom and Poland have secured a Protocol, which under new Article 51 TEU will have the same legal value as the Treaties, on the application of the Charter in the UK and Poland. The recitals of the Protocol set out the context. Notably, recital 8 refers to the "wish of Poland and the United Kingdom to clarify certain aspects of the application of the Charter", and recital 9 explains that Member States are "desirous therefore of clarifying the application of the Charter in relation to the laws and administrative action of Poland and the United Kingdom and of its justiciability within Poland and within the United Kingdom". Recital 12 reaffirms that the Charter is without prejudice to other obligations of the United Kingdom and Poland deriving from Union law generally.

i. A Charter opt-out?

5.85. Some witnesses seemed to consider that the Protocol effectively constituted an opt-out from the Charter (pp E148, E156). However, Professor Dashwood considered the Protocol to play a role in assisting interpretation of the Charter only: "The Protocol is not an opt-out for the United Kingdom; it is an interpretative protocol" (Q E332). This was a view echoed by Dr Sariyiannidou: "[The Protocol] does not say that the Charter is not binding in the UK and in this respect it does not amount to an 'opt-out'" (p G36). The ETUC referred to "opt out" as "inaccurate terminology" (p G29).

5.86. The Government also viewed the Protocol as an interpretation guide rather than an opt-out. The DWP said categorically, "The UK Protocol does not constitute an 'opt-out'. It puts beyond doubt the legal position that nothing in the Charter creates any new rights, or extends the ability of any court to strike down UK law" (p G27). The DIUS and the DCSF referred to Articles 51 and 52 of the Charter and the Protocol as providing "some useful clarification of the effect of the Charter rights" (p G25). Professor Shaw suggested that in fact, the Protocol was a "Declaration masquerading as a Protocol" (Q E70). Indeed, she considered it extraordinary that the Member States should purport to instruct British courts as to how they were supposed to interpret the Charter (Q E73).

5.87. '''The Protocol is not an opt-out from the Charter. The Charter will apply in the UK, even if its interpretation may be affected by the terms of the Protocol.'''

ii. The terms of the Protocol

5.88. Article 1(1) of the Protocol stipulates that the Charter does not extend the ability of the ECJ or any British or Polish court to find the laws and practices of the United Kingdom or Poland inconsistent with the Charter.

5.89. Article 1(2) provides that, for the avoidance of doubt, nothing in Title IV of the Charter (the "Solidarity" rights) creates justiciable rights applicable to Poland or the UK except insofar as such rights are provided for in their national laws.

5.90. Article 2 of the Protocol provides that to the extent that the Charter refers to national laws and practices, it shall apply to the UK and Poland only to the extent that the rights or principles it contains are recognised by the laws and practices of the UK or Poland.

iii. The effect of the Protocol

5.91. As outlined above, the Charter itself contains articles concerning the scope and interpretation of the rights it contains. The question of whether the Protocol intends to depart from these articles and set out a different interpretation to be applied specifically in the UK and Poland has created some confusion.

5.92. Professor Guild pointed to the lack of clarity in the Protocol, saying "it is not entirely clear exactly what the objective of the Protocol is beyond some kind of statement about fundamental rights and their application in the UK and Poland". She considered a variety of interpretations to be possible (QQ E178-179). The Law Society of Scotland also pointed to the lack of clarity as to what would be the position in the UK and commented on the "unfortunate lack of legal certainty" that would result (p E165). Dr Sariyiannidou concluded that the Protocol was "a matter of presentation rather than content or substance" (p G37).

5.93. Given the lack of clarity as to the aim of the Protocol, witnesses found it difficult to judge what the Protocol's effects might be. Martin Howe QC noted: "one has to ask whether [the Protocol] is simply declaratory of the consequences of the Charter across the whole European Union or whether, alternatively, it is intended to create some different legal effect of the Charter inside the United Kingdom and Poland, as compared with the other Member States". He concluded that the Protocol might have no substantive legal effect and might simply be a reassertion of Article 51(1) of the Charter itself (QQ E283 & E285). As Professor Shaw highlighted, the recitals of the Protocol appear to indicate that there is no change intended to the status quo (Q E71).

5.94. In seeking to identify what would be the effect of the United Kingdom and Polish Protocol, the important question, according to Professor Peers, was the extent to which the rights in the Charter differed from the general principles of Union law: if the ECJ ruled that the Charter rights and the general principles were one and the same, then, in Professor Peers' view, "the distinction between the Charter and the general principles is irrelevant and therefore the British Protocol is meaningless".[93] However, if there was some scope for discussion as to whether the Charter and the general principles encompassed the same rights, then Professor Peers considered that the Charter might have some impact and the Protocol could be important. He concluded that even if the Charter and the general principles were to some extent different, the Protocol would not exclude the Charter entirely for the UK. It would simply prevent national courts and the ECJ from criticising national law in light of the Charter. However, as the recitals to the Protocol reaffirmed, the Protocol did not limit obligations incumbent on the UK as a result of Union law generally and those rules would continue to apply (Q E106). Andrew Duff MEP suggested that even if the Charter was not identical to the general principles at present, over time the case-law would develop in this direction (p E137).

5.95. Professor Chalmers thought that the Protocol was not worth a great deal (Q S31). However, this view was not shared by Professor Dashwood. He saw the Protocol as part of the belt-and-braces approach of the Government. In his view the Charter did not create new rights and did not enlarge the possibility of acts of Member States or EU institutions being challenged on fundamental grounds and the Protocol provided additional, but unnecessary, protection for the United Kingdom in this regard. For those who took the opposite view and considered that, to some extent at least, the Charter did create new rights, then for Professor Dashwood, the Protocol provided that as far as the United Kingdom was concerned the Charter must be interpreted as not creating new rights (Q E332). Jane Golding also emphasised that, in her view, the Protocol was secured by the United Kingdom in order to provide certainty that "it had covered all the angles" (Q E474).

5.96. Mr Straw was quite frank about the intention behind the Protocol and its likely effect: in his view, the Protocol was intended to reflect the terms of the Charter's horizontal articles themselves. He told us "[the Protocol] puts beyond doubt what should have been obvious from other provisions" (Q E541).

5.97. Professor Jacqueline Dutheil de la Rochère, of the University Paris II (Panthéon-Assas), did not consider that the Protocol would lead to any great change in the way the Charter was applied, given the careful drafting of the horizontal articles of the Charter itself. She concluded that although the Protocol would probably provoke a significant amount of discussion and debate among lawyers, it might in the end produce little in the way of case-law (p E141).

5.98. Some witnesses who welcomed the Charter were concerned about the operation of the Protocol. The Trades Union Congress (TUC) raised two issues. First, they were concerned that the Protocol might hinder the use of the ECJ to ensure access to existing EU-based workers' rights. They pointed to the recent practice of the Court to draw on the Charter when interpreting EU employment directives and considered that it would be "unacceptable" for the Protocol to restrict the Court's power to do so in future. Second, they expressed a concern that the Protocol would restrict the right of UK citizens to claim rights through the ECJ and that this would lead to a widening difference between rights for UK and other EU citizens over time (pp G39-40). The ETUC, however, noted that the Protocol did not allow the United Kingdom to evade its obligations under EU law (p G30).[94]

5.99. Witnesses who expressed concerns at the introduction of a legally binding Charter did not appear to be reassured by the existence of the Protocol. David Heathcoat-Amory MP complained that the Protocol was "wafer thin" and Neil O'Brien feared that the Court would interpret the Protocol however it liked (QQ S94-95). Sally DeBono was also dubious that the Government's "red line" would hold (p S131).

5.100. The Chartered Institute of Personnel and Development was concerned that the protection afforded by Article 1 of the Protocol in respect of the Title IV Solidarity provisions of the Charter might be traded at some future point in return for concessions in other areas, a worry shared by Professor Shackleton (pp G18, G38).

5.101. Dr Sariyiannidou suggested that the ECJ's obligation to ensure the uniform application of EU law would trump the UK Protocol. This could be relevant if the Court were to be asked to interpret, for example, UK implementation of EU labour and social legislation. She considered that the United Kingdom would have more success in resisting the Charter through insisting on a rigorous application of the principle of subsidiarity in Article 51(1) (pp G36-37).

5.102. The recitals make several references to the desire of Member States to "clarify"—not prescribe—the application of the Charter. Lord Goldsmith, who was to a large extent responsible for drafting the horizontal provisions of the Charter in his role as Government representative on the Convention and who also drafted the Protocol, emphasised this point in a recent paper to the British Institute of International and Comparative Law: "The negotiations at the June European Council and subsequent Intergovernmental Conference provided Government with the opportunity to bolster existing safeguards and set in stone how the Charter will operate in the UK, as in all Member States".[95]

55.103. '''We therefore see the broad legal effect of the Protocol as follows:

(a) Article 1(1) reflects the fact that the Charter does not create new rights—if a national law is inconsistent with a provision of the Charter then it is also inconsistent with an EU or international norm. This also reflects Article 51 of the Charter.

(b) Article 1(2) is in line with the frequent references in the Title IV rights to national laws and practices and also with Article 52(5) of the Charter which sets out the approach which should be taken to "principles" in the Charter. But it also brings some welcome clarity to Title IV. Article 52(5) read in the light of the Explanations could have led to a conclusion that some Title IV "rights", such as Article 33, represent enforceable rights which could be relied upon directly before British courts. The Protocol appears to put beyond doubt that this would not be possible. In these circumstances it must be regarded as very unlikely that the ECJ would, in interpreting the Charter, hold that Title IV involved justiciable rights in relation to any Member State, but Article 1 paragraph 2 of the Protocol would in our view preclude it making such a ruling in relation to the United Kingdom. However, Title IV reflects principles which could, we think, still bear on the interpretation, or even the validity, of legislative and executive acts under Union law, as provided by the last sentence of Charter Article 52(5), and so indirectly affect individual rights. We have also noted above that, to the extent that the Union legislates in areas which are within its competence quite apart from the Charter, national legislators and courts will anyway be subject to that legislation.

(c) Article 2 reflects a common-sense interpretation of those articles in the Charter which refer to national laws and practices and of Article 52(6) of the Charter, which stipulates that "full account" is to be taken of national laws and practices where there is a reference to them. But it is a useful clarification of what might otherwise have been open to argument. Again, however, we think it unlikely that Article 2 of the Protocol precludes the use in relation to the United Kingdom and Poland of any relevant Charter articles in the way contemplated by the last sentence of Charter Article 52(5), when interpreting or ruling on the validity of legislative or executive acts taking place under Union law on the basis of a Union competence not connected with the Charter.

(d) The Protocol should not lead to a different application of the Charter in the United Kingdom and Poland when compared with the rest of the Member States. But to the extent that the Explanations leave some ambiguity as to the scope and interpretation of the Charter rights, and as to the justiciability of the Title IV rights especially, the Protocol provides helpful clarification. We would not be surprised if, in considering the scope of the Charter in future, EU and domestic courts had regard to the terms of this Protocol in order to assist interpretation of the Charter's horizontal articles, even in cases where the United Kingdom and Poland were not involved. Indeed, given that, despite media reports, it is an interpretative Protocol rather than an opt-out, it is perhaps a matter of regret, and even a source of potential confusion, that it was not expressed to apply to all Member States.'''

5.104. In assessing the impact of the Protocol, it should be recalled, as highlighted by Professor Peers, that the Charter is not the only "door" to protection of fundamental rights in the EU. New Article 6(3) TEU on general principles of Union law also provides a means for challenge to EU law and UK implementing legislation on the basis of violations of fundamental rights, as is the case under existing Article 6(2). Nothing in the Protocol changes the position in this regard as the legally binding status of the Charter is irrelevant where a fundamental right constitutes a general principle (Q E106). The Court's approach to this has been clearly demonstrated in the context of the recent rulings on the right to collective action.[96] Where a Charter right is declared by the Court to constitute a general principle which would exist under EU law irrespective of the Charter, any protection afforded by the Protocol will fall. The extent of the ECJ's current interpretative practice is recognised by Martin Howe QC, who concluded that the power of the ECJ to rule on violations of the Charter (and therefore on violations of rights which presently exist only under international treaties outside the EU/ECHR context) might already exist because the Court recognised that the basic principles in the Charter were general principles common to the Member States (Q E283).

5.105. '''Ultimately, the interpretation of the Protocol is a matter for the courts and, in both the national and EU contexts, we do not think it is possible at this stage to predict precisely what courts would decide if faced with the task of interpreting the Protocol's language. Clearly, European and domestic courts could not ignore the text of the Protocol but it is likely that the ECJ will develop a tendency to refer to Charter rights and their origins, as well as new Article 6(3) TEU[97] on the general principles of EU law, and would develop its fundamental rights jurisprudence on that basis.'''

5.106. To the extent that the Protocol does in practice limit the application of the Charter in the United Kingdom, some witnesses suggested that there might well be an indirect application of the Charter in any case through rulings of the ECJ on how EU legislation should be interpreted. A ruling on a case not involving the United Kingdom and based on an interpretation of the Charter would in principle have to be respected and followed by UK courts (Q E284).

5.107. Andrew Duff MEP criticised the Government for negotiating a special Protocol and highlighted the risk of the UK's self-imposed exclusion from development of Charter case-law: he considered that in the long term the United Kingdom would inevitably be brought under the umbrella of the Charter but would have deprived itself of the opportunity to help shape the fundamental rights regime by preventing its courts from playing a role at this early stage of the Charter's development. He saw the Charter as having a symbolic value that, for example, Schengen did not and concluded that, "It does seem rather bizarre for any government—especially a social democratic one—to seek to deprive its people of the higher standards of rights protection now required by the rising level of European integration" (p E137).

5.108. Fair Trials International also condemned the Government's negotiation of the Charter Protocol, expressing deep disappointment at the signal such a move sent about the UK's commitment to securing equal rights for all EU citizens and, more broadly, the EU's commitment to fundamental rights. In FTI's view, the acceptance of different fundamental rights standards in the EU seriously compromised the EU's credibility and undermined the effectiveness of the EU's human rights policy (p E148). The ETUC said it "deplore[d] the political message" that the Protocol sent to citizens. They stressed the indivisibility of the Charter and the importance of avoiding an "à la carte" instrument which depended on the political considerations of the day (p G29).

5.109. '''One effect of the Protocol will be to discourage the ECJ from basing its analysis of fundamental rights solely on the Charter. British courts are therefore generally unlikely to be faced with the problem of deciding, in the light of the Protocol, how they should treat case-law of the ECJ interpreting EU law on the basis of the Charter alone.'''

5.110. '''The Protocol may have the effect of reassuring those who have concerns about giving the Charter legally binding status. '''

5.111. British courts already refer to the Charter in identifying the scope of fundamental rights.[98] Nothing in the Protocol will prevent them from continuing to do so in future, drawing on the Charter in the same way as they draw on many international human rights instruments, when interpreting the content of fundamental rights. '  —Preceding unsigned comment added by 128.86.150.106 (talk) 00:36, 28 January 2010 (UTC)

For convenience I attach the relevant texts below. Whether one ought to call such opt-outs or not can be further discussed. – Kaihsu (talk) 18:27, 14 December 2009 (UTC)

Protocol 30
"PROTOCOL (No 30) ON THE APPLICATION OF THE CHARTER OF FUNDAMENTAL RIGHTS OF THE EUROPEAN UNION TO POLAND AND TO THE UNITED KINGDOM

THE HIGH CONTRACTING PARTIES,

WHEREAS in Article 6 of the Treaty on European Union, the Union recognises the rights, freedoms and principles set out in the Charter of Fundamental Rights of the European Union,

WHEREAS the Charter is to be applied in strict accordance with the provisions of the aforementioned Article 6 and Title VII of the Charter itself,

WHEREAS the aforementioned Article 6 requires the Charter to be applied and interpreted by the courts of Poland and of the United Kingdom strictly in accordance with the explanations referred to in that Article,

WHEREAS the Charter contains both rights and principles,

WHEREAS the Charter contains both provisions which are civil and political in character and those which are economic and social in character,

WHEREAS the Charter reaffirms the rights, freedoms and principles recognised in the Union and makes those rights more visible, but does not create new rights or principles,

RECALLING the obligations devolving upon Poland and the United Kingdom under the Treaty on European Union, the Treaty on the Functioning of the European Union, and Union law generally,

NOTING the wish of Poland and the United Kingdom to clarify certain aspects of the application of the Charter,

DESIROUS therefore of clarifying the application of the Charter in relation to the laws and administrative action of Poland and of the United Kingdom and of its justiciability within Poland and within the United Kingdom,

REAFFIRMING that references in this Protocol to the operation of specific provisions of the Charter are strictly without prejudice to the operation of other provisions of the Charter,

REAFFIRMING that this Protocol is without prejudice to the application of the Charter to other Member States,

REAFFIRMING that this Protocol is without prejudice to other obligations devolving upon Poland and the United Kingdom under the Treaty on European Union, the Treaty on the Functioning of the European Union, and Union law generally,

HAVE AGREED UPON the following provisions, which shall be annexed to the Treaty on European Union and to the Treaty on the Functioning of the European Union:

Article 1

1. The Charter does not extend the ability of the Court of Justice of the European Union, or any court or tribunal of Poland or of the United Kingdom, to find that the laws, regulations or administrative provisions, practices or action of Poland or of the United Kingdom are inconsistent with the fundamental rights, freedoms and principles that it reaffirms.

2. In particular, and for the avoidance of doubt, nothing in Title IV of the Charter creates justiciable rights applicable to Poland or the United Kingdom except in so far as Poland or the United Kingdom has provided for such rights in its national law.

Article 2

To the extent that a provision of the Charter refers to national laws and practices, it shall only apply to Poland or the United Kingdom to the extent that the rights or principles that it contains are recognised in the law or practices of Poland or of the United Kingdom."

- C 115/314 EN Official Journal of the European Union 9.5.2008

Relevant Declarations by Poland
"61. Declaration by the Republic of Poland on the Charter of Fundamental Rights of the European Union

The Charter does not affect in any way the right of Member States to legislate in the sphere of public morality, family law, as well as the protection of human dignity and respect for human physical and moral integrity.

62. Declaration by the Republic of Poland concerning the Protocol on the application of the Charter of Fundamental Rights of the European Union in relation to Poland and the United Kingdom

Poland declares that, having regard to the tradition of social movement of ‘Solidarity’ and its significant contribution to the struggle for social and labour rights, it fully respects social and labour rights, as established by European Union law, and in particular those reaffirmed in Title IV of the Charter of Fundamental Rights of the European Union."

Declaration by Czechia
"53. Declaration by the Czech Republic on the Charter of Fundamental Rights of the European Union

1. The Czech Republic recalls that the provisions of the Charter of Fundamental Rights of the European Union are addressed to the institutions and bodies of the European Union with due regard for the principle of subsidiarity and division of competences between the European Union and its Member States, as reaffirmed in Declaration (No 18) in relation to the delimitation of competences. The Czech Republic stresses that its provisions are addressed to the Member States only when they are implementing Union law, and not when they are adopting and implementing national law independently from Union law.

2. The Czech Republic also emphasises that the Charter does not extend the field of application of Union law and does not establish any new power for the Union. It does not diminish the field of application of national law and does not restrain any current powers of the national authorities in this field.

3. The Czech Republic stresses that, in so far as the Charter recognises fundamental rights and principles as they result from constitutional traditions common to the Member States, those rights and principles are to be interpreted in harmony with those traditions.

4. The Czech Republic further stresses that nothing in the Charter may be interpreted as restricting or adversely affecting human rights and fundamental freedoms as recognised, in their respective field of application, by Union law and by international agreements to which the Union or all the Member States are party, including the European Convention for the Protection of Human Rights and Fundamental Freedoms, and by the Member States' Constitutions."

DOES ANYONE WANT TO CORRECT THIS PAGE TO CORRECTLY EXPLAIN THERE ARE NO OPT OUTS? Just a reminder; as it currently stands the article is very wrong.
PROTOCOL 30 WAS RENDERED ESSENTIALLY INEFFECTUAL BY THE N.S. & OTHERS V SECRETARY OF STATE FOR THE HOME DEPARTMENT JUDGMENT BY THE ECJ. AS SUCH NO opt-out EXISTS. LIKEWISE, EVEN LABOUR MINISTERS AT THE TIME OF THE LISBON TREATY ADMITTED THAT THIS WAS THE CASE: LOOK UP HANSARD: Jim Murphy MP, Minister for Europe:

Mr. Murphy: "The charter records existing rights; it does not create new rights. It is clear that the UK does not have an opt-out on the charter of fundamental rights, which binds European institutions and is an important, progressive move."

HANSARD (House of Commons): 21 Jan 2008, Column 1317 (vol 470, pt 34).
 * So if I understand correctly:

Maybe we should clarify that situation a bit then... L.tak (talk) 09:56, 5 January 2014 (UTC)
 * 1) the opt out still stands
 * 2) but it has not much material effect, as a result of a court case?
 * 3) (you like using capitals?)