Lisbon: the Charter of Fundamental Rights

This article was first published in the Tara Foundation blog on September 25 2009. 

The "Charter of Fundamental Rights" not what is claimed by Lisbon Treaty advocates

The Charter's "rights" are not "fundamental" at all. They are not only changeable but gain their actual definition and limit according to how they are interpreted by the European Court, as they must be under the Lisbon Treaty, whose primary commitment is not to human or workers' rights or environmental protection, but to the free market, undistorted competition, and the free movement of labour and capital.

Article 6 of the Lisbon Treaty states that the Charter of Fundamental Rights "shall have the same legal value as the Treaties." Annex A (1) states that the Charter confirms the rights guaranteed by the European Convention for the Protection of Human Rights and Fundamental Freedoms, and that it does not "extend the field of application of Union law beyond the powers of the Union or establish any new power or task for the Union, or modify powers and tasks as defined by the Treaties." These statements indicate that the Charter does not indicate any new competence for the EU, and imposes no special obligations. Therefore, the claim by supporters of the Treaty that the incorporation of the Charter

So what are fundamental rights according to the Charter? Everyone has the right to life and human dignity; no one is to be executed or tortured, enslaved, made to perform forced labour or trafficked (Title I, "Dignity," Articles 1-5). This must be a relief to those who thought that these things were being practiced in EU countries, and that a Charter was required to prevent them from happening. Regarding
"Freedoms," (Title II) everyone has the right to "liberty and security of person", the right to have a private life and to have a family (?), protection of data, the right to "freedom of thought, conscience and religion." Conscientious objection to military service is only a right "in accordance with the national

Social security (Article 34) is not an absolute right, given the ever-present qualifier of "in accordance with the rules laid down by Union law [i.e. the free market rules laid down in the Lisbon Treaty] and national laws and practices." A right to preventative health care and treatment is affirmed (Article 35), but it is not stated that these should be free or affordable. Title V, "Citizens' Rights," states that citizens have the right to vote and stand as a candidate at European elections, and that members of the European Parliament shall be elected by universal suffrage (Article 39). Likewise, EU citizens can vote and stand for municipal elections in any member state (Article 40). National elections and voting rights are not mentioned. The "right to good administration" (Article 41) only concerns citizens' relations with EU bodies and institutions, and there is no provision for good administration or fair and equitable treatment on the part of EU member state governments. The provisions in Title VI, "Justice," i.e. the right to a fair trial, presumption of innocence, proportionality of penalties etc., are once again minimal expressions of rights already declared in such conventions as the ECHR.

Workers' Rights

The most significant of the Charter's provisions are those on workers' rights, as given in Title II, Articles 15-17, with further definitions in Title IV, "Solidarity." Article 15.1 guarantees every European citizen "the right to engage in work," but does not state that employment itself is a fundamental right. One is entitled to "pursue a freely chosen or accepted occupation" (emphasis added). There is, however, no right to an occupation commensurate with one's skills and achievements. Title IV, Article 28 guarantees the right to collective bargaining, but what is remarkable in this article is that, though it appears to concern the right to strike action, it gives employers equal right to take action against employees in the event of "conflicts of interest." This seeming equivalence of rights effectively renders the right to strike meaningless. Article 30 gives workers "the right to protection against unjustified dismissal", but only in accordance with EU and national laws and practices. In other words, what counts as unjust dismissal is whatever is provided for already, as long as that does not conflict with the free market principles enshrined in the Treaty. In other words, this right, like the others, is not fundamental but stipulative, as it
can be changed according to political and economic requirements. The same can be said of Article 31, which guarantees working conditions that respect health, safety and dignity, and that workers are entitled to a limitation of maximum working hours, time off and paid leave. All of these requirements are quite weak statements of rights, as they could be satisfied by the most minimal of provisions.

15.2 entitles every citizen "to exercise the right of establishment and to provide services," which, it might be thought, is a rather unusual fundamental right, and one that only applies to businesses. Indeed, Article 16 guarantees "the freedom to conduct a business" in accord with EU and national law. Article 17 provides for the right to private property and, crucially, the protection of intellectual property. These articles state that, under to the stipulative interpretation of rights proposed in the Charter, businesses also have rights as though they were human beings, and indeed that these rights have the same standing as those applying to citizens of the EU.

An Attack on Rights

It is clear even from this brief overview of the Charter's provisions that exaggerated claims by supporters of the Treaty as to the far-reaching scope of the rights it guarantees conceal a potentially serious erosion of the notion of fundamental rights. There can be no doubt that the rights put forward by the Charter are significantly weaker than those already guaranteed by European constitutions, where the rights are presumed to be incapable of alteration or moderation with reference to other considerations. The common understanding reflected in these documents is that rights are natural and unalterable, which is the proper meaning of the word "fundamental." However, the Charter will
undermine existing constitutional guarantees, and for the first time business is awarded rights alongside human beings. Under the Charter, a business will be entitled to claim that its rights are infringed or restricted by environmental, labour, human or other considerations. The Charter's "rights" are not "fundamental" at all. They are not only changeable but gain their actual definition and limit according to how they are interpreted by the European Court, as they must be under the Lisbon Treaty, whose primary commitment is not to human or workers' rights or environmental protection, but to the free market, undistorted competition, and the free movement of labour and capital. 

The existing record of the EU in promoting business practices that are blatantly in breach of natural rights is plain for all to see; for instance, the aggressive promotion of GM foods by the Commission against overwhelming popular opposition, anti-worker rulings by the European Court, and the promotion of the nuclear industry. The Charter is designed at once to make human rights relative and to guarantee that the claims of corporations will take precedence where there is a conflict.