EU TREATY OF LISBON: CHARTER OF FUNDAMENTAL RIGHTS

UNCLAS SECTION 01 OF 04 BRUSSELS 000397

SIPDIS

SIPDIS

DEPT FOR EUR/ERA
DEPT ALSO FOR USTR

E.O. 12958: N/A
TAGS: PREL EUN ELAB PHUM
SUBJECT: EU TREATY OF LISBON: CHARTER OF FUNDAMENTAL RIGHTS
AND SOCIAL POLICY

REFs: A) 2008 BRUSSELS 00303; (B) 2007 BRUSSELS 3488


SUMMARY
--------------


1. With the Treaty of Lisbon (targeted for entry into
force in 2009) the EU Charter of Fundamental Rights --
first proclaimed in 2000 as a political declaration Q- will
become binding and acquire the same legal value as the
Treaties without altering the Union's powers. The UK and
Poland secured a derogation (an "opt-out") designed to
prevent the EU Court of Justice as well as British and
Polish courts from assessing that legislation in both
countries is not compatible with the Charter. The Treaty
of Lisbon also provides a legal framework to maintain and
develop achievements in the field of EU social policy.
Though the scope of EU policy will not be altered, some
adjustments may occur by way of changes in the general
objectives, voting rules, an increased emphasis on the
"social dialogue," and provisions for keeping the European
Parliament better informed.


2. This message, building on previous USEU reporting on
the Treaty of Lisbon (REFTELS),is the third in a series
that is meant to put the forthcoming EU reforms in
perspective and to assess their potential impact on our
relations with the EU. Other messages will follow that
will focus, among other issues, on foreign policy, defense,
justice and home affairs, and economic policy. End
Summary.

CHARTER BECOMES LEGALLY-BINDING
--------------


3. The EU Charter of Fundamental Rights was first
proclaimed by the EU leaders, the European Commission, and
the European Parliament in December 2000 as a political
declaration setting out a range of civil, political,
economic, and social rights. The drafting of the document
was prompted by a 1996 ruling by the EU Court of Justice
that the treaties establishing the European Community did
not empower the EC as such to accede to the European
Convention on Human Rights, despite all member states being
signatories to the Convention. In a context also marked by
the 50th anniversary of the Universal Declaration of Human
Rights, EU leaders in June 1999 concurred that fundamental
rights should be consolidated at the EU level and that a
"Charter" would make such rights more visible to their
citizens.


4. As published in 2000 and basically confirmed last year
in "Lisbon," the Charter is divided into six sections,
dealing with dignity, freedoms, equality, solidarity,
citizens' rights, and justice. The Charter appears like a
catalogue drawing from the 1950 European Convention on
Human Rights, the case-law of the EU Court of Justice,
national constitutional traditions, the COE Social Charter
and the 1989 Community Charter of Fundamental Social Rights
of Workers. The EU compendium differs from the 1950
European Convention on Human Rights (COE text),which
relates solely to civil and political rights, by going
beyond traditional human rights and addressing modern
issues such as bio-ethics and the protection of personal
data.


5. Not designed to be a legal document, the Charter was
given the ambiguous value of a "solemn proclamation." As
the text did not get the status of Community law, cases
could not be brought solely on the ground of a breach with
it. Meanwhile, the Commission continued to press for a
Treaty revision to allow the EU as such to accede to the
European Convention on Human Rights. The Charter was
incorporated -- as part II -- into the draft Constitutional
Treaty rejected by French and Dutch voters in 2005. The
agreement on the draft "Constitution" made it clear that
the Charter, if it were to acquire legal force, would only
be binding on the EU institutions and would not limit the
competencies of member states under the Treaties.


6. The Treaty of Lisbon (ToL) signed in December 2007 no
longer contains the text of the Charter but includes a
reference to it, whereby the Charter gains legally binding
force: "The Union recognizes the rights, freedoms and
principles set out in the Charter of Fundamental Rights."

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The original (2000) version of the Charter was slightly
amended before the Lisbon signing to adjust it to the text
that was part of the rejected "Constitution." The amended
text was proclaimed and signed by the Presidents of the
European Parliament (Pttering),Commission (Barroso),and
European Council (Portuguese PM Socrates) at a plenary
session of the EP on December 12, 2007. It was published
in the Official Journal of the European Union (number C
303, December 14, 2007).


7. The ToL expressly mentions that the Charter of
Fundamental Rights will have "the same legal value as the
Treaties." (Article 6 TEU). Other provisions specify,
sometimes with redundancies, that:

-- The Charter does not extend the field of Union
competencies; it establishes no new powers or tasks
for the Union; and it does not amend its powers or its
tasks such as they are defined in the Treaties;

-- The Charter applies to institutions and Member States
only when they are implementing the UnionQs law;

-- "Fundamental rights, as guaranteed by the European
Convention on Human Rights and Fundamental Freedoms
and as they result from the constitutional traditions
common to the member states, shall constitute general
principles of the Union's law."

UK AND POLAND GET "OPT-OUTS"
--------------


8. Such limitations were not sufficient guarantees for the
British and Polish ToL negotiators. Anxious to "clarify
certain aspects of the application of the Charter," both
countries secured a Protocol -- by itself having the same
legal value as the Treaty -- establishing exceptions ("opt-
outs") with regard to the jurisdiction of the EU Court of
Justice (ECJ) and of their national courts for the
protection of the rights recognized by the Charter. The
Protocol explicitly states that:

-- "The Charter does not extend the ability of Court of
Justice of the EU, or any court or tribunal" of the UK or
Poland "to find that the laws, regulations or
administrative provisions, practices or action by the UK or
Poland are inconsistent with the fundamental rights,
freedoms, and principles that it reaffirms";

-- "In particular () nothing in Title IV of the Charter
creates justiciable rights" applicable to the UK or
Poland, except in so far as the UK or Poland has
provided for such rights in its national legislation."
The provision refers to the section of the Charter
concerning social rights such as the information of
workers, collective bargaining, the right to strike,
protection against dismissal, working conditions,
child labor, family life, social security and
assistance, health, access to services of general
economic interest, protection of the environment and
consumers.

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


9. In the 2007 ToL negotiations, the Polish government
then headed by PM Jaroslav Kaczynski aligned itself with
British demands. In a unilateral Declaration annexed to
the ToL, Poland stated that, having regard to the tradition
of social movement of "Solidarity" ("Solidarnosc"),it
"fully respects social and labor rights" as established by
EU law and the Charter. However, anxious to preserve its
anti-abortion legislation, Poland also specified in another
unilateral Declaration that 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." Shortly after the mid-October 2007
deal on the new treaty, a newly-establish Polish government
hinted it might reconsider the "opt-out." PM Tusk
nevertheless decided that his government would not take any
decision in this respect pending ratification of the ToL.

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The Irish government, which had initially reserved its
right to "opt-out" as well, did not follow up in the final
round of the negotiations.

TREATY CHANGES IN SOCIAL POLICY AREA
--------------


10. Further to the Charter's section on "solidarity"
listing a number of rights and principles directly relevant
to social policy (para 8),the ToL provides a legal
framework to maintain and develop EU social policies in
full respect of national prerogatives. Though the scope of
EU policy will not be affected, there will be adjustments
as follows:
-- EU objectives: A highly competitive social market
economy aiming at full employment and social progress,
the fight against "social exclusion and
discrimination," as well as "social justice and
protection, equality between women and men, solidarity
between generations and protection of the rights of
the child" are included among the general objectives
of the EU;
-- A new provision compels the Union "in defining and
implementing its policies and actions" to take account
of a series of "requirements," i.e. the promotion of a
high level of employment, the guarantee of adequate
social protection, the fight against social exclusion,
and a high level of education, training and protection
of human health (Article 9 TFEU). Similarly, the
Union must take into account the fight against certain
types of discrimination Q on grounds of sex, race or
ethnic origin, religion or beliefs, disability, age or
sexual orientation (Article 10 TFEU);

-- Matters related to social security rights for workers
exercising their freedom of movement within the EU may
be subject to qualfied majority voting (QMV) rather
than unanimiy, as is currently the case (Article 42
TFEU). Per Germany's request, a safeguard procedure
will allow for referral to the European Council
(meaning: veto right) where a Member State considers
that a proposal would "affect important aspects of its
social security system." Triggering the procedure
will suspend the measure proposed by the Commission;

-- The role of the "social partners" at EU level is
spotlighted in a new article (136a TFEU),along with
the necessity of "taking into account the diversity of
national systems." The "Social Summit" (top-level
meeting with EU labor and employers' organizations)
ahead of the "Spring" European Council is also
enshrined in the Treaty. The "social partners" may be
given a mandate to transpose Directives based on
collective bargaining (a possibility already existing
for Directives based on the regular procedure -- i.e.
without a collective agreement);

-- The EP must be informed on agreements concluded
between the "social partners," which was not the case
until now (though the Commission informally conveyed
that information to EP),and on actions taken by the
Commission to facilitate cooperation between Member
States. Such actions may typically involve exchange
of best practices, establishment of benchmarks,
monitoring and evaluation (Articles 139-140 TFEU).

COMMENT
--------------


12. Though the ToL gives the Charter the status of a legal
instrument, member states took all precautions to limit the
scope of its application. According to some EU sources and
practitioners, however, the UK and Polish "opt-outs" under
"Lisbon" may be subject to future disputes and both
countries may face cases and ECJ rulings concerning their
compliance with fundamental rights enshrined in the
Charter. A Polish citizen denied the right to family
regrouping with a same sex partner could invoke the
Charter. The UK (and U.S. companies in the UK) may become
entangled in legal cases with the ECJ and the Commission
over the right to "opt-out" from the 48-hour weekly limit
in the EU "Working Time" Directive. Should the British be
outvoted in current attempts to remove that "opt-out" from
the Directive, the Commission could feel bound to take the
UK to the Court, which would put to test the real value of

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the other, more general UK "opt-out" in the Lisbon
Protocol.

MURRAY