Article 53: Undermining the Impact of the Charter of Fundamental Rights

8 Colum. J. Eur. L. 342 (2002)

Anne-Marieke Widmann. J.D. Candidate, Columbia University School of Law, Class of 2002.

“The solemn declaration of such a charter, whatever its provisional or its final legal status, might be part of an ongoing process that has the potential to transform substantially the Union and its legal order.”

ABSTRACT: Article 53 of the Charter of Fundamental Rights constitutes a “savings clause” common to human rights treaties. The article ensures that the Charter will not restrict already recognized protections. Although such clauses have proven functional for traditional international organizations, Article 53 fails to address the practical realities of Europe’s unique supranational order. When national implementing measures are assessed by the EU, the article contradicts the longstanding doctrine of EU supremacy by deferring to a local standard of protection. When EU regulations are reviewed, an autonomous EU standard is to apply which will inevitably lead to restriction of national protections as EU policy and the Charter interact. More fundamentally, because it uses a “max”/”min” language of protection, Article 53 does not address the potential conflicts between rights when differing value systems and institutions are at issue. The Charter consequently offers no practical guidance for the ECJ as it brings human rights to the forefront.

Some have asserted that the EU Charter of Fundamental Rights (“the Charter”) will serve as the constitution to bind the European Union (EU). Declared on December 7, 2000, at the European Council meeting in Nice by the presidents of the European Parliament, European Commission and Council of Ministers, the Charter codifies the rights of EU citizens vis-à-vis the supranational authority of the EU. In defining a body of EU rights distinct from national rights, the inevitable concern, which surrounded the drafting of the Charter, was the level of protection to be afforded to the rights delineated therein. Article 53, entitled “Levels of Protection,” addresses this concern, providing that nothing within the Charter is to be interpreted as restricting protections already recognized by EU law, international agreements or Member State constitutions. However, as a “savings clause” commonly found in international human rights treaties, Article 53 fails to address the substantive and procedural needs of the distinct, supranational order of Europe. The express terms of the article undermine the supremacy of EU law, allow for the restriction of protections afforded at the national level as EU policy and the Charter interact, and fail to address the conflicts which will arise between protected rights. As such, the Charter cannot and will not come to constitute the Constitution for the EU.