|Gonzaga Journal of International Law||
Cite as: Dr. Donald D.A. Schaefer, The Need for a Charter or Bill of Rights for Guidance for the European Courts on Fundamental Rights in the EU: The Treaty of Amsterdam and Beyond, 7 Gonz. J. Int'l L. (2003-04), available at http://www.gonzagajil.org/.
The Need for a Charter or Bill of Rights for Guidance for the European Courts on Fundamental Rights in the EU: The Treaty of Amsterdam and Beyond
Dr. Donald D.A. Schaefer
This paper will argue that the recent changes in the European Union regarding fundamental rights have not gone far enough in the direction of ensuring those rights. After reviewing the changes made before the Treaty of Amsterdam, it will next lay a foundation from which the more persuasive facts will allow a better understanding of why human/fundamental rights are so central to the European Court of Justice (ECJ). This court has the power to determine whether a Member State has fulfilled its obligations under Community law, but it may do so only with guidance in the form of European Union law which is, to date, lacking. Though the 1999 Treaty of Nice allowed the introduction of the Charter of Fundamental Rights of the European Union (Charter), not until it (or a Bill of Rights) is passed will the ECJ finally have the legal framework to enforce fundamental rights. This may soon occur, if the European Union Constitution with the Charter embedded is finally ratified in 2004. Until such time as the Charter (or Bill of Rights) becomes law, however, the European courts, plaintiffs/prosecutors, and defendants will operate in uncertainty about when or how the ECJ will rely upon the existing treaties or case law regarding fundamental rights.
The purpose of this paper is to explore the changes regarding human-rights cases, violations, and prosecutions brought before the European Court of Justice (ECJ) both before and after the Treaty of Amsterdam went into force in 1999. It will also speculate about future changes and their impact on the European human-rights landscape. The paper will argue that while the changes have been positive, they have clearly not gone far enough in the direction of protecting the human/fundamental rights of citizens of the European Community (EC). In addition, there remains a degree of uncertainty as to the future of the EC regarding rights for the accused. Until recently, Europe appeared headed toward passage of the Charter of Fundamental Rights of the European Union (Charter). That, however, changed on December 14, 2003, with the collapse of negotiations on the European Union Constitution (EU Constitution), which foundered when Poland and Spain objected to proposals by Germany to reduce their voting power within an enlarged European Union (EU) of 25 states. German Chancellor Gerhard Schroeder, said however, in December 2003, "[I] am expecting the European Union Constitution to be unanimously approved next year [in 2004]." Until an agreement such as the Charter contained within the EU Constitution is signed into law, those involved in the European courts will face difficulties arising from an incomplete set of regulations addressing fundamental rights.
This is especially true of the ECJ, which is a reactive body; that is, it will review actions of the EU Member States with reference to violations of fundamental rights only if those actions fall within the scope of Community law. If the link between the EU and this field of law is not clear, the ECJ will decline jurisdiction to review the Member State's actions. This is especially true as it relates to challenging the fundamental-rights laws contained within the Member States' national constitutions. Accordingly, the Luxembourg-based court has refused to intervene to protect fundamental rights in the case of national legislation that lies outside of the boundaries of Community law.
Without a clear set of pan-European laws, there will remain uncertainty for judges, lawyers, and defendants alike. In the meantime, the ECJ has thus created a de facto charter for human rights, relying upon its own interpretation of the existing laws governing human rights when making judicial decisions, while waiting for a charter to emerge from the political process. For this reason, there is a clear necessity for enacting an EU Bill of Rights either by itself or within the proposed EU Constitution; this would allow the EU courts to address the European Community's general concerns over human rights consistently.
This paper will first begin by looking at the history of the ECJ and reviewing how it has dealt with human-rights issues from its inception. This will be followed by a review of changes since the 1997 Treaty of Amsterdam, including the Treaty of Nice, which introduced the Charter in 2000.
Pre-Treaty of Amsterdam Years
The ECJ, which was established in 1952 as the Court of Justice of the European Coal and Steel Community, grew in power and influence with the 1957 Treaty of Rome, which created the European Economic Community (EEC). This treaty is the foundation of the European Community and of the current European Union. As McCormick points out, "it first created the European Economic Community . . . and articulated a vision for the level of economic cooperation that exists in Europe today." From the beginning, therefore, the focus of the ECJ was on economics and not human rights. The fifteen Member States that formed the EEC had as their common motive a wish for strong economic ties, and, in a period when gender rights, for example, were still largely unrecognized, the issue of human rights remained on the back burner, so to speak. "In 1959, the ECJ declared itself without power to review Community acts with reference to fundamental rights."
One of the major difficulties facing the ECJ and human-rights advocates in general is that every Member State has its own constitutional version of what human rights entail; furthermore (as will be seen later), many states still rely upon their courts for specific interpretations of human-rights laws. With regard to the ECJ, the Member States clearly have felt a conflict between the right to interpret their own constitutions, that is, individual state sovereignty, on the one hand, and the general wish for a court with powers to make widespread changes to countries throughout the EU on the other. However, as Europe has grown more unified and the ECJ's power has accordingly grown, the Member States' human-rights laws have been challenged.
As Hunnings points out, "The court does indeed vary in its boldness or timidity on individual cases, and its attitude is quite possibly influenced by extraneous factors…." With this in mind, it was perhaps simply the right historic time and place – in the late 1960s, while the Vietnam War was underway and amid the rise of civil rights – that allowed one of the most important decisions in the ECJ's history to take place. In 1969 the ECJ declared "that it would ensure respect for fundamental human rights" by Member States, in the context of the ECJ in future cases brought before the court.
In Stauder v. City of Ulm the court held that the fundamental human rights are "enshrined in the general principles of Community law and protected by the [ECJ]." This was the first case that implied that Member States' measures and laws would be set aside if they did not respect those general principles. It was from this point forward that a series of changes would alter the way that the ECJ deals with human-rights issues. Uncertainty over court precedent regarding fundamental rights prevailed, however, for the next thirteen months, until the court revisited this issue and partially lifted the veil in stating that although those rights are inspired by the constitutional traditions common to the Member States, a more general European standard of human rights must come into play. In Internationale Handelsgesellschaft mbH v. Einfuhr- und Vorratsstelle für Getreide, the court held that respect for fundamental rights forms an integral part of the general principles of law protected by the Court of Justice. The protection of such rights, whilst inspired by the constitutional traditions common to the Member States, must be ensured within the framework of the structure and objectives of the Community.
From these two cases, the ECJ gave itself more latitude to address the fundamental principles of human-rights issues in Member States' constitutional laws.
As the court established in the 1971 Internationale Handelsgesellschaft, possible infringement of human rights by measures within the Community, e.g., actions by individuals or Member States, must be examined through the encompassing "lens" or framework of precedent established via EC case law. This new and wider lens allowed the ECJ to take a more active role in deciding cases that relate to fundamental human rights. This extension of its jurisdiction and power allowed the ECJ to overrule EC legislation of Member States, as implied above, on the grounds of a breach of fundamental rights. The changes were dramatic and impressive. In many ways, these decisions started the process of opening the doors for more human-rights concerns to be addressed within the ECJ. Yet, as Bell points out, Internationale Handelsgesellschaft puts two limitations on just what the court can do: first, measures may be challenged only if they fall within the scope of ECJ case law, and, "second, given the absence of any statement of fundamental rights in the founding Treaties, it is up to the court to decide the nature and extent of these rights on a case-by-case basis."
It was in the 1970s that the ECJ began to exert itself in the area of human rights. It did so in a case involving not Member State measures but those of the Commission of the European Communities (Commission). In 1974 the court held in Nold v. Commission that, because fundamental rights are a foundational principle of the EC law, the court cannot "uphold the Commission's measures which are incompatible with the fundamental rights established and guaranteed by the Constitutions of these States."
The 1970s marked a period in which the court was attempting to exert itself in the area of fundamental/human rights while attempting to find a balance with Member States' constitutions (even as, paradoxically, it invoked the constitutional traditions of those nations). It would not be until the end of the Cold War, however (as will be addressed later), that the court started to render judgments regarding human rights upon the EU. It therefore began to come into conflict with the European Court of Human Rights (ECtHR). Simultaneously, even while wishing to uphold fundamental rights, the court was at this time unwilling to "step on the toes" of individual Member States. The court later stated that it "is bound to draw inspiration from constitutional traditions common to the Member States, and it cannot therefore uphold measures which are incompatible with fundamental rights recognized and protected by the Constitutions of those States." Thus, at this time there remained a degree of autonomy for individual Member States, an autonomy which the court clearly wished to protect. Yet in the Nold decision it reaffirmed its power to rule in such cases, stating that "fundamental rights form an integral part of the [EU's] general principles of law, the observance of which the court ensures."
It was also in Nold that the court announced that international human-rights treaties signed by the Member States would "supply guidelines"  to the court. The court from that time onward referred to the European Convention on Human Rights and Fundamental Freedoms (ECHR), which entered into force on September 3, 1953, as a basic source of EC rights. A year later, in 1975, it became more explicit on this point: it held in Rutili v. Minister for the Interior that it could review issues under the guidelines set out in the ECHR, i.e., under clear human-rights standards, in addition to the constitutional provisions of the individual Member States.
The Rutili case continued to move the court in the direction of consistency with regard to human-rights protections. The court wished to expand its review of cases that addressed issues of fundamental rights within boundaries dictated to it by the wider European Community, as opposed to individual Member States, in, for example, its 1975 decision in Amministrazione delle Fananze dello Stato v. Simmenthal, in which the court held that every national court must, in a case within its jurisdiction, apply Community law in its entirety and protect rights which the latter confers on individuals and must accordingly set aside any provision of national law which may conflict with it, whether prior or subsequent to the Community rule. . . . [N]ational courts must protect rights conferred by provisions of the Community legal order and . . . it is not necessary for such courts to request or await the actual setting aside by the national authorities empowered so to act of any national measures which might impede the direct and immediate application of Community rules.
With this ruling, the court clearly suggested that it, and not Member States, would ultimately have the last word on fundamental rights in Europe.
In summary, during the 1970s the fundamental rights accorded to individuals were expanded upon by the ECJ but remained somewhat limited. The case law strongly suggests that, like the United States Supreme Court in Brown v. The Board of Education, the court chose, albeit cautiously, to instigate social change. At the same time, its hesitancy to force dramatic changes allowed the EC time to expound upon the fundamental rights that were becoming more central to the Community in the 1980s.
Fundamental-rights principles were successfully pleaded in 1984 in Regina v. Kirk, where the court held that one law that is common to all Member States is that "penal provisions may not have retroactive effects."  It went on to declare that such a principle is a fundamental right respected by this court. Here again, the court invoked Member States' laws even as it reinforced both its own authority and a more general standard. Throughout this period, however, the court still lacked clear statutory guidance in the form of an enforceable treaty regarding human rights. As will be argued below, it was not until the Treaty of Amsterdam went into force in 1999 that such guidance was codified in law.
In this regard, too, arguably, the court is largely a creature of the times. As Europe became more aware of the need for human-rights legal protections, so did the ECJ. The context for this awareness is the difficulties European economies faced during the 1980s. During the decade, the U.S. and Asian economies grew while much of Europe lay stagnant. In these straits, Europe's geopolitical status also declined. In an effort to revive its flagging economies, in February 1986 the Single European Act (SEA) was passed; it went into force on July 1, 1987. The SEA allowed for a greater unity of power and influence than had ever been seen in modern Europe. The SEA worked to unify the EC around a common economic outer frontier without internal borders. While the primary purpose was to move toward economic integration in order to increase European economic competitiveness, it also expounded further upon fundamental rights. The Preamble states that all the Member States are
DETERMINED to work together to promote democracy on the basis of the fundamental rights recognized in the constitutions and laws of the Member States, in the Convention for the Protection of Human Rights and Fundamental Freedoms and the European Social Charter, notably freedom, equality, and social justice . . . .
While the SEA was designed to allow the EC membership population of 370 million to trade freely, it also had the important additional element of strengthening the ECJ's powers to rule in cases regarding the human rights of this population. This can be understood in terms of the recognition that, as the EC was moving toward becoming more a single body, the rules and laws governing this body logically also had to work in harmony. Therefore, the ECJ was empowered to ensure that issues involving human rights were settled on par throughout the EC.
Following the SEA, the next significant accord was the 1993 Maastricht Treaty (MT). This brought with it a new Treaty on European Union (TEU), which added a political entity, the "European Union" (EU). The EU has been described as being comprised of "three pillars." While human rights may be addressed by the court for Second and Third Pillar matters, the ECJ's focus is clearly on the First Pillar; furthermore, this focus allows the ECJ to rule on matters concerning the EU, thereby giving it precedence over Member State laws. Importantly, with the MT, furthermore, came a greater commitment to human rights, as the treaty reinforced the promotion of the ECHR.
With the end of the Cold War, the 1990s saw the court enlarge its role with regard to human rights. In November 1993 the EEC was officially renamed the "Treaty establishing the European Community," today referred to as the "EC Treaty." Although the agreement "contains a social chapter," as Defeis notes, "which deals with human rights to some extent and guarantees workers' rights, its primary goal is to improve working conditions and standards of living on a harmonized basis throughout the EU." These extended employment and economic rights, however, might logically be considered the continuation of a process in which enlarged notions of human rights were emerging in a Europe previously driven almost exclusively by economics.
With the MT, the EU in effect turned over – albeit somewhat cautiously – some of the power held by the judiciaries of the individual Member States to a central court with the ability to enforce human rights throughout the EU. Armed with these new powers, the ECJ began to shift its own emphasis, becoming in the process a more general court – that is, one focused on issues of human rights as well as economic issues. Yet, as will be argued, only in the post-Treaty of Amsterdam era has the court ventured significantly further into an area that had previously been dominated by the ECtHR, i.e., that of the laws concerning human rights within individual Member States. A year after the MT, however, in 1994 the ECJ was not yet willing to aggressively challenge national laws of individual Member States if those laws fell outside of the boundaries of Community Law – that is, both its own case law and the many statutes and articles that comprise the treaties governing the EU.
To conclude this section, the ECJ has noted some if its limitations on human-rights issues. Thus, in the absence of clear legislative guidance, the ECJ was still struggling in the mid-1980s with the question of how to set a single standard for Member States on the issue of human rights. The pre-Treaty of Amsterdam years were a period of formation for the eventual ensuing period of critical change within Europe and the ECJ regarding human rights.
Real transformation would begin in the period from the latter half of the 1980s to the early 1990s. Following the fall of the Soviet Union, the EC began to see itself less as a mix of countries bound by common borders and economic interests than as a single entity needing to regularize and make consistent its principles on human rights, as well as requiring a unified jurisdiction that could enforce on Member States a single, common set of standards regarding these fundamental rights.
The Treaty of Amsterdam and Human Rights
Perhaps few other events in recent history have been as important as the Treaty of Amsterdam for human rights in Europe, both West and East. The Treaty came into force on May 1, 1999. Its framers sought to bring to the forefront the issue of human rights through formal recognition. The treaty states that the EU "‘is founded upon the principles of liberty, democracy, respect for human rights and fundamental freedoms, and the rule of law, principles which are common to the Member States.'" Fundamentally, therefore, the treaty moves beyond earlier accords in affirming the respect for and enforcement of rights – rights which are now more firmly established in a Europe that is itself more culturally as well as economically integrated – within the legal system of the EU. As a result of the Treaty of Amsterdam, recent EC Directives have focused on such issues as racial discrimination and gender equality in employment. Yet, as will be argued later in this paper, it will be not be until the future enactment of the Charter, an EU Bill of Rights, or alternatively an EU Constitution that these fundamental rights will be fully enforceable by the ECJ.
This became apparent in an ECJ ruling issued just months after the signing of the Treaty of Amsterdam. In October 1999, citing national security reasons, the ECJ in Sirdar v. Secretary of State for Defence held that gender equality as established under the ECHR does not require Member States under the EC Treaty to accept women into their elite armed forces (in this case the British Royal Marines); in its decision, the Court cited security reasons. Even though the plaintiff worked as a chef, the defendant, the British Secretary of State for Defence, argued successfully that all Royal Marines were expected to take part in front-line defense and, therefore, it was legally permissible to exclude her. The question underscored by this ruling is whether true equality under the law can exist without the passage of an EU Bill of Rights, the adoption of the Charter into EU law, or an EU Constitution.
Despite a reluctance to impose human-rights standards on Member States in a case such as Sirdar, in general the legal landscape appears to have changed once again in favor of greater interference by the EU through its chief tribunal, the ECJ. This is seen in the way fundamental human rights were made central in the Treaty of Amsterdam. As TEU Article 6(2) states,
The Union shall respect fundamental rights, as guaranteed by the European Convention for the Protection of Human Rights and Fundamental Freedoms signed in Rome on 4 November 1950 and as they result from the constitutional traditions common to the Member States, as general principles of Community law.
What this article reinforces is the explicit recognition of fundamental-rights principles within the EU. Further, as with a federal legal statute signed by the President of the United States, having these rights codified gives the ECJ a basis from which to decide cases regarding human-rights issues, even as it in some sense binds the court to clear standards.
Moreover, in recognizing rights not listed in the ECHR, the Treaty of Amsterdam went further than the ECHR. An addition to TEU 6(2), for example, Article 13 of the EC Treaty, as amended and renumbered by the Treaty of Amsterdam, now provides,
Without prejudice to the other provisions of this Treaty and within the limits of the powers conferred by it upon the Community, the Council [of the European Union], acting unanimously on a proposal from the [European] Commission and after consulting the European Parliament, may take appropriate action to combat discrimination based on sex, racial or ethnic orientation, religious or belief, disability, age or sexual orientation.
Thus, an EU governing body may – and, implicitly, will – issue directives in these areas. More importantly here, these additional rights form a foundation for future ECJ decisions. Thus, in explicit language in amendments to both the TEU and the EC Treaty, human rights are more solidly established within the EU (and the EC).
One criticism, however, of the Treaty of Amsterdam is directed at the lack of human-rights protections for citizens of non-EU states who are geographically part of Europe. Yet there are bound to be spillover effects of provisions of the treaty, as EU influence expands and ECJ jurisdiction – and rulings – have an impact beyond Europe. Defeis has argued that, given this treaty, the ECJ's influence will extend beyond the EU. Indeed, the spillover effect will first happen more directly, as more countries join the EU. This is especially true in light of the Treaty of Nice and the concomitant integration of ten Eastern European countries in May 2004. This growth of the EU can be expected to ensure that fundamental rights are furthered throughout the Continent. This is because the countries that choose to join the EU are obligated to accept the Union's laws and the responsibilities of upholding them, as well as the jurisdiction of its courts. In this way, the ECJ – with its enforcement powers – can have a dramatic effect on a growing population in Europe. As Shelton points out,
With membership in the Council of Europe and the EU growing, the boundaries of human rights jurisdiction in Europe thus continue to expand both geographically and legally. Horizontal and vertical tensions in governance can be expected to continue and provide further fruit for discussion on the means and methods to best guarantee respect for human rights in Europe.
As this suggests, human rights have moved from the margins to the center of European consciousness and concern. Finally in this regard, the EU and the ECJ arguably have the potential to influence fundamental rights outside Europe, to the extent that a large part of that population growth comes through immigrants who may in turn exert influence on the values of the non-European countries from which they came. Thus, it is more than ever crucial that the EU give its chief court clear guidance in the form of a European Charter.
The Treaty of Amsterdam, along with the TEU and the EC Treaty, has brought fundamental changes to the legal landscape of the EU regarding human rights. Under Article 7 of the TEU, as amended by the Treaty, the Council of the European Union (Council) is empowered to sanction Member States that violate the fundamental principles on which the EU is founded. Furthermore, as Verhoeven points out, this Article has had great "symbolical value" by ensuring – at least in theory – that these rights will be enforced.
Before the ECJ can go further, however, the final, definitive legislative guidance, such as that found in the Bill of Rights of the U.S. Constitution, remains necessary. As will be argued, this may come with the passage of the Charter or the EU Constitution.
Beyond the Treaty of Amsterdam
The Treaty of Nice, a response to the end of the Cold War, represented the best opportunity to expand the EU eastward. It also formally introduced the Charter, one of the most encompassing documents in European history with regard to human-rights law. The treaty's foundation was written in the "politically charged atmosphere" of meetings of the European Council in Cologne and Helsinki in 1999. In December 2000, the European heads of government met in Nice to convene a new Intergovernmental Conference (IGC) for the purpose of discussing among other things the proposed Charter. This represented a way to clear up many of the Treaty of Amsterdam's "leftovers." It was, as Monar argues, a "‘packaged solution' which consists of four interrelated elements: the reform of the Commission, the re-weighting of votes, the new qualified majority [of Member States] and the reallocation of seats."
Hefferman has argued that the Treaty of Nice "was neither able nor was disposed to give reform" that the judicial system deserved. It has also been argued that, among other things, the treaty "will not fundamentally change the status quo in social policy" or cause any major changes to the status provisions on EU citizenship. In fact, however, the Charter promises to make a tremendous difference in European human-rights jurisprudence.
Besides amending TEU Article 46 to allow for the enforcement of the "‘purely procedural stipulations' of the Article 7 regime", the Treaty of Nice stipulated a series of amendments that both solidified the ability of the EU courts, including the ECJ and the Court of First Instance of the European Community (the court just below the ECJ), to enforce fundamental rights while at the same time arguably making the jurisprudence potentially confusing to understand. In the first place, under TEU Article 46, the legal system consequently resembled, according to Lyons, "a very patchy structure." At the same time, among other things, Article 46 broadened the laws governing matters of fundamental rights and immigration, while expanding the ECJ's jurisdiction from EC treaties and provisions of the TEU to include the Third Pillar matters, e.g., the police and criminal matters.
The Charter was not adopted at the formation of the Treaty of Nice, as the Member States could not reach agreement; still unratified, it therefore lacks the full force of law. The Report from the Presidency of the Convention (which is formalizing the final draft of the proposed EU Constitution and within it the Charter) to the President of the European Council stated, "The Constitution incorporates, as its Part II, the Charter of Fundamental Rights proclaimed at the Nice European Council." The Charter has since been incorporated into the Draft Treaty Establishing a Constitution for Europe, the EU Constitution. It is hoped that the EU Constitution will be ratified in 2004. If it remains attached – with the passage of the EU Constitution in May 2004 – the impact will be dramatic. With this action, the EU will set itself on the path toward greater respect for human rights. Article II-21 of the Charter contained within the proposed EU Constitution – Non-discrimination – states,
1. Any discrimination based on any ground such as sex, race, colour, ethnic or social origin, genetic features, language, religion or belief, political or any other opinion, membership of a national minority, property, birth, disability, age or sexual orientation shall be prohibited.
2. Within the scope of application of the Constitution and without prejudice to any of its specific provisions, any discrimination on grounds of nationality shall be prohibited.
With this language human rights were made far clearer in the proposed Constitution than in any previous treaty or other proposed document in European history. When and if it is ratified, perhaps as incorporated in the proposed EU Constitution, the Charter will be binding upon both the ECtHR and the ECJ. In the meantime, however, courts including the ECJ may rely upon the Charter as written.
Even if ratified, however, the Charter is far from a perfect legal instrument. Perhaps the most serious criticism has centered around the fact that, as stipulated in Article II-51(2) – Field of application, "This Charter 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 defined in the other Parts of the Constitution"; significantly, no new enforcement capabilities are added. As Bell further notes, "[T]he Charter is seriously compromised by its non-binding legal status." Thus, in this article, as argued by Bell, the Charter "is not a radical break with the past, but rather a logical progression from the existing fundamental-rights case law of the court." In other words, the Charter will expound upon fundamental-rights laws already in existence, but in a far more limited way compared to what some (including this author) would wish. This "logical progression," however, to the extent that it further clarifies existing case law, clearly goes beyond both the TEU and the EC Treaty regarding fundamental rights.
However, until it is ratified, the Charter may actually present a more confusing situation for judges, lawyers, and clients. Although it is already currently an important source of law for EU courts, the Charter is non-binding on these courts as well as on defendants in cases brought before them.
Yet the Charter has arguably already begun to have an impact on human rights in the EU. Although not yet adopted into law, as noted by Shelton, the European Commission of Human Rights' "opinion is that the Charter may be regarded at present, even by the ECJ, as an important source of binding principles of fundamental rights." The Charter thus already, prior to its ratification, provides some guidance for the ECJ in its formulation of opinions. In fact, the Commission for the Charter asserts that the document does in fact strengthen human rights, noting,
[T]he Charter sets out clear rules regarding fundamental rights, thereby providing the applicant countries and citizens in general with legal certainty. In doing so, it demonstrates that it is an extremely important milestone in the development of Europe as a political force.
To be sure, this may overstate the "legal certainty" which the Charter supplies. However, the Charter, which, importantly, asserts six basic values – dignity, freedoms, equality, solidarity, citizens' rights and justice – remains an important source of law for both the ECtHR and the ECJ in their opinions.
That the Charter has already substantially changed the legal landscape of Europe is apparent. Perhaps most significantly, the Charter furthermore demonstrates that the EU remains committed to broadening its horizons from solely economics to cultural and social values such as fundamental rights. With its focus on human rights, the Charter continues the EU's evolution from a primarily economic to a social entity. Furthermore, as Quinn has noted, the long-term impact of the Charter may also include its influence on a future Bill of Rights for the EU, a proposed document which would constitute a radical rewriting of the relationship between human rights and Member States.
More to the point here, however, the unratified Charter's provisions may nonetheless be used as a tool and a guide by the ECJ as well as the ECtHR. The ECJ today has the option of using the Charter for human-rights cases that are brought before it – even if its willingness to use the Charter's fundamental rights laws in particular instances remains up for question.
But if a recent case is any indication of the ECJ's response to the Charter, its immediate legal impact may be greater than many have imagined. In R. v. Secretary of State for Trade and Industry, the ECJ held in 2001 that every worker is entitled to paid leave, regardless of whether the individual has a fixed-term contract for employment or is regularly employed with a given company. More important than the upholding of certain employment rights was a key statement addressing the applicability of the Charter:
Admittedly, like some of the instruments cited above, the Charter of Fundamental Rights of the European Union has not been recognised as having genuine legislative scope in the strict sense. In other words, formally, it is not in itself binding. However, without wishing to participate here in the wide-ranging debate now going on as to the effects which, in other forms and by other means, the Charter may nevertheless produce, the fact remains that it includes statements which appear in large measure to reaffirm rights which are enshrined in other instruments. In its preamble, it is, moreover, stated:
This Charter reaffirms, with due regard for the powers and tasks of the Community and the Union and the principle of subsidiarity, the rights as they result, in particular, from the constitutional traditions and international obligations common to the Member States, the Treaty on European Union, the Community Treaties, the European Convention for the Protection of Human Rights and Fundamental Freedoms, the Social Charters adopted by the Community and by the Council of Europe and the case-law of the Court of Justice of the European Communities and of the European Court of Human Rights.
I think, therefore, that, in proceedings concerned with the nature and scope of a fundamental right, the relevant statements of the Charter cannot be ignored; in particular, we cannot ignore its clear purpose of serving, where its provisions so allow, as a substantive point of reference for all those involved – Member States, institutions, natural and legal persons – in the Community context. Accordingly, I consider that the Charter provides us with the most reliable and definitive confirmation of the fact that the right to paid annual leave constitutes a fundamental right. (Italics added.)
By means of this single, key statement, the ECJ has affirmed the value of the still- unratified Charter, recognized its application to issues dealing with fundamental rights, and has clearly and explicitly stated that it is an instrument that should be used by the court. At the same time, however, it has also noted the limitations of the unratified Charter in acknowledging it "has not been recognized as having genuine legislative scope in the strict sense." Therefore, while the Charter is clearly important to the ECJ (and to the ECtHR), the former may ignore it – and has indeed done so – when it chooses.
This ability to "take or leave" the Charter will continue to have a direct impact on the courts. The issue of fundamental rights in EU society is especially crucial as it relates to criminal defendants. In 2000, the ECJ in Krombach v. Bamberski used the ECHR and not the Charter as a guide in holding that a court in a defendant's country of residence (in this case, Germany) may take into account that a court in another Member State (France) refused to hear his defense because he was not present at the trial. It did so without reference to Title VI (Justice) of the Charter, of which Article II-47 – Right to an effective remedy and to a fair trial – states, in part, "Everyone is entitled to a fair and public hearing within a reasonable time by an independent and impartial tribunal previously established by law. Everyone shall have the possibility of being advised, defended and represented." In this case, the court effectively ignored the Charter's relevant provisions. It would, however, be helpful to the lawyers and courts alike if these and other rights specified in the Charter were codified into some form of law. Until such time, the lawyers and defendants alike may only guess as to when the ECJ will use the Charter, thereby making it an unnecessary and overly-burdensome to go forward in legal cases before the ECJ.
It is therefore necessary to conclude that, while the MT and the later Treaty of Amsterdam have helped to further fundamental rights, that furtherance was inadequate, specifically, in lacking a legal framework binding the EU under one legally enforceable set of laws guaranteeing fundamental rights.
At present, then, the ECJ and the ECtHR have discretion to use or not to use the Charter as a guideline, leaving both lawyers and clients without the necessary solid foundation when they go before these courts. The valid criticism, therefore, has been of the unratified Charter's non-binding force, which will no doubt keep plaintiffs/prosecutors and defendants alike guessing as to whether and when an EU court may take the Charter into account. Thus, what is needed to clarify the legal landscape is either a ratification of the Charter by the Member States or the creation of a binding and enforceable EU Bill of Rights. Either would provide a more secure framework for addressing fundamental human-rights issues.
At the beginning of this paper it was suggested that the events leading up to the Treaty of Amsterdam, the treaty itself, and the proclamation of the proposed Charter in Nice would set the course for the EU's future on human rights within the ECJ. Analysis reveals, however, that that conclusion is both right and wrong.
The foundation of the laws governing fundamental rights was initially laid out in the 1957 EEC that was the basis for the 1993 EC Treaty, which contained some reference to human rights. Yet in the ensuing years the focus remained on economics and not human rights. It was not until Stauder in 1969 that the ECJ started to set precedent for human-rights issues. Over the next several years, the ECJ would continue to set precedent in human-rights law.
By the late 1980s, with the fall of the Soviet Union and the end of the Cold War, the pace of change accelerated, notably with the SEA, which reflected the goal of greater European unification and integration. The significant difference from earlier treaties, moreover, was that now the notion of unity extended beyond economics to social questions, as the laws governing fundamental rights were also being debated within the European legal community. With the SEA taking effect in 1992 and the MT ratified in 1993 (and with the latter, the redefined "EU" established under the new Three Pillars), the foundation was finally laid to provide a measure of guidance to the ECJ with regard to human-rights issues. What was still needed, however, were EU laws that would take precedence over national laws. Thus, the ECJ still saw itself in 1994 as limited in its ability to affect and overrule national laws pertaining to fundamental/human rights.
The 1999 Treaty of Amsterdam would provide some necessary guidance and lessen some of the ambiguity for both the ECJ and the ECtHR. With this treaty came new definitions of fundamental rights and freedoms and relevant amendments to both the TEU and the EC Treaty. For the first time, specific protections were added against discrimination on the basis of sex, racial or ethnic orientation, religion or belief, disability, age, or sexual orientation. These new rights form a foundation from which future case law may be developed. Yet the ECJ reinforced certain limitations on human-rights' protections, specifically with regard to gender protection, as was illustrated with Sirdar.
The Charter introduced at Nice was created with the goal of giving the ECJ greater guidance (and greater latitude to overrule Member States) in the area of fundamental rights. It also gave credence to the hopes that the EU would put more emphasis on the enforcement of human-rights standards. As a practical matter, however, while its drafting and the subsequent debate addressed concerns with fundamental rights, they did so, arguably, without advancing these substantially, to the extent that the failure to ratify the Charter made its provisions both non-binding on and ultimately unenforceable by EU courts.
Without clearer guidance for both the ECJ and the Court of First Instance of the European Communities (and the ECtHR), as well as for the lawyers who represent defendants in such cases as Krombach, however, the status of human rights in the European legal system continues to be a gray area which only the passage of the Charter into EU law – perhaps as incorporated in the EU Constitution which may be ratified in May 2004 – or a new European Bill of Rights will likely be able to clarify.
For now, the ECJ continues to take on more cases involving human-rights issues and has in the process contradicted holdings in similar cases decided by the ECtHR. These conflicts between the two courts and the resulting contradictory rulings/case law will continue until such time as the EU sets jurisdictional and legislative boundaries within which both courts will operate. Should a Bill of Rights or Charter be enacted, either separately or under the proposed EU Constitution, the ECJ will have both clearer guidelines and more clearly defined power than it has had up to the present to rule in human-rights cases involving Member States. In this way, a solid document on fundamental rights will provide the necessary guidance for defendants, plaintiffs/prosecutors, lawyers, and the judges of the European Court of Justice alike.
 This court has in recent times been referred to as the Court of Justice of the European Communities, especially since the ratification of the Treaty of Amsterdam. For consistency, "ECJ" will refer to the court, regardless of which name has been used in the original. The ECJ's English language website is located at: http://www.curia.eu.int/en/transitpage.htm (last modified December 29, 2003).
 The EC was originally the European Economic Community (EEC), which was created in 1957 with the Treaty of Rome. The change from the EEC to the EC in 1993 "was symbolic of the expanded political, social and other non-economic roles of the Community in European Affairs." Ralph H. Folsom, European Union Law in a Nutshell 8 (3d ed. 1999).
 George Jones, MPs Barrack Blair over Collapse of EU Summit, The Daily Telegraph (London), December 16, 2003, at 10.
 EU Constitution will come in 2004: German Leader, Agence France Presse, December 21, 2003, available at LEXIS.
 Kieran S. Bradley, The European Court of Justice, in The Institutions of the European Union 118, 123 (John Peterson & Michael Shackleton eds., 2002).
 Amaryllis Verhoeven, The European Union in Search of a Democratic and Constitutional Theory 354 (2002).
 Mark Janis et al., European Human Rights Law: Text and Material 505 (2d ed. 2000).
 The Secretariat for the European Convention has the proposed the Draft Treaty establishing a Constitution for Europe at the following site: http://european-convention.eu.int/docs/Treaty/cv00850.en03.pdf (last modified December 29, 2003). Under Title II of the of Fundamental Rights of the European Union (Charter), Article 7 – Fundamental Rights – Section 3 states, "Fundamental rights, as guaranteed by the European Convention for the Protection of 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." Id.
 Bradley, supra note 5, at 120.
 Michael J. McCormick, A Primer on the European Union and Its Legal System, 2002 Army Law 1, 2 (2002).
 The fifteen original members, all still current, are Austria, Belgium, Denmark, Finland, France, Germany, Greece, Ireland, Italy, Luxembourg, Netherlands, Portugal, Spain, Sweden, and the United Kingdom. McCormick, supra note 12, at 1.
 Verhoeven, supra note 6, at 326.
 Janis et al., supra note 8, at 504.
 Neville M. Hunnings, The European Courts 157 (1996).
 Janis et al., supra note 8, at 505; Verhoeven, supra note 6, at 326.
 Case 29/69, Stauder v. City of Ulm,  ECR 419.
 Stephen Hall, Fundamental Rights, National Sovereignty and Europe's New Citizens, in Rewriting Rights in Europe 191, 193 (Linda Hancock & Carolyn O'Brien eds., 2000).
 See generally Case 11/70, Internationale Handelsgesellschaft mbH v. Einfuhr- und Vorratsstelle fur Getreide,  ECR 1125.
 Hunnings, supra note 18, at 159.
 Anne-Marieke Widmann, Undermining the Impact of the Charter of Fundamental Rights, 8 Colum. J. Eur. L. 342, 344 (2002).
 Mark Bell, Anti-Discrimination law and the European Union 19 (2002).
 Id. at 19-20.
 The Commission of the European Communities, the Community's governing board, is referred to throughout this article as "Commission."
 Case 4/73, Nold v. Commission,  ECR 491.
 The ECJ has the right to rule on Member States of the European Union (EU), whereas the European Court of Human Rights (ECtHR) does not, though the ECJ may take into account rulings of the ECtHR. See Elizabeth F. Defeis, Human Rights and the European Union: Who Decides? Possible Conflict Between the European Court of Justice and the European Court of Human Rights, 19 Dick. J. Int'l L. 301, 317 (2001). Defies has stated that early on it was argued that the EU should join the ECtHR as a member. However, she noted that the "ECJ . . . makes clear that absent treaty modification, the EU could not accede" to the ECtHR. Id. at 329. Dr. Ninon Colneric, Judge of the Court of Justice of the European Communities, has written, "In 1994 the Council of the European Union requested the opinion of the Court of Justice on the question whether the accession of the European Community to the Convention for the Protection of Human Rights and Fundamental Freedoms [ECHR] would be compatible with the Treaty establishing the European Community. The Court held in 1996 that the Community, as Community law stood then, had no competence to accede to that convention." Ninon Colneric, The Charter of Fundamental Rights and Legal Practice, available at http://www.ewla.org/wf_dl/Paper_Colneric.doc (last modified December 31, 2003).
 Nold, supra note 29.
 Alec S. Sweet, Constitutional Dialogues in the European Community, in The European Court and National Courts – Doctrine and Jurisprudence 305, 318 (Anne-Marie Slaughter et al. eds., 1998). Before the Treaty of Amsterdam, the ECJ had deferred a substantial number of human-rights cases to the ECtHR, which had been largely responsible for the application of the ECHR. This deference first began to change in 1974 when the ECJ held in Nold v. Commission that fundamental rights are to be protected by the Court. The ECtHR, however, has never had enforcement powers comparable to those of the Court. It is the power of enforcement that gives the ECJ a special place within the European Community.
 Sweet, supra note 33, at 318 (Anne-Marie Slaughter et al. eds., 1998).
 See Council of Europe Treaties: Human Rights Protection, Summaries, available at http://www.pfc.org.uk/legal/echr-sum.htm (last modified December 29, 2003).
 Sweet, supra note 34, at 318.
 See Case 36/75, Rutili v. Minister for the Interior,  ECR 1219, cited in Defeis, supra note 30, at 311.
 See generally Case 106/77, Amministrazione delle Fananze dello Stato v. Simmenthal,  ECR. 629.
 See generally Brown v. Board of Education, 347 U.S. 483 (1954).
 Case 63/83, Regina v. Kirk,  ECR 2689.
 McCormick, supra note 12, at 2.
 See generally George A. Bermann et al., Cases and Materials on European Union Law 13-14 (2d ed. 2002).
 Council of the European Communities, Single European Act and Final Act 4 (1986). Note: the capitals letters in "DETERMINED" are from the original document.
 McCormick, supra note 12, at 2-3.
 The TEU was superimposed onto the Treaty of Rome. The new document is entitled "Treaty of European Union together with the Treaty establishing the European Community." Folsom, supra note 2, at 8.
 Bermann et al., supra note 44, at 19.
 The Three Pillars are defined as follows: "First pillar: the European Communities. . . . The first pillar embodies Community jurisdiction in its most highly developed form. Within the framework of the EC, the Community institutions may draw up legislation in their respective areas of responsibility which applies directly in the Member States and may claim precedence over national law. . . . Second pillar: common foreign and security policy. In the EU Treaty, the Heads of State or Government have now agreed to gradually develop a common foreign and security policy . . . . Third pillar: cooperation in justice and home affairs. The aim underlying cooperation between police and judicial authorities is to afford citizens freedom, security and justice by jointly preventing and combating crime (especially terrorism, trafficking in human beings, illicit drug and arms trafficking, corruption and fraud), racism and xenophobia (Articles 29 and 30 TEU)." Structure of the European Union: The Three Pillars, available at http://europa.eu.int/eur-lex/en/about/abc/abc_12.html (Last modified May 21, 2003).
 Linda Hancock & Carolyn O'Brien, Introduction to Rewriting Rights in Europe, 1, 5 (Linda Hancock & Carolyn O'Brien eds., Ashgate Publ'g Ltd 2000).
 Folsom, supra note 2, at 8.
 Elizabeth F. Defeis, The Treaty of Amsterdam: The Next Step Towards Gender Equality?, 23 B.C. Int'l & Comp. L. Rev. 1, 2 (1999).
 See e.g., for example, Regina, supra note 41.
 David O'Keeffe & Patrick Twomey, Introduction, Legal Issues of the Amsterdam Treaty xxxv (1999).
 European Commission, The Amsterdam Treaty: A Comprehensive Guide 11 (1999).
 Hancock & O'Brien, supra note 51, at 5.
 See the article by Defeis, supra note 53, at 6.
 Case C-273/97, Sirdar v. Secretary of State for Defence,  All ER (EC) 928.
 Folsom, supra note 2, at 342. See also Dominic McGoldrick, The European Union after Amsterdam: An Organisation with General Human Rights Competence?, in Legal Issues of the Amsterdam Treaty 249, 252 (David O'Keeffe & Patrick Twomey eds., 1999).
 Folsom, supra note 2, at 382.
 Elizabeth S. Duquette, Human Rights in the European Union: Internal Versus External Objectives, 34 Cornell Int'l L. J. 363, 374 (2001).
 See Defeis, supra note 30, at 301.
 Those ten countries include: the Czech Republic, Cyprus, Estonia, Hungary, Latvia, Lithuania, Malta, Poland, Slovakia and Slovenia. EU Commissioner Dismisses Berlusconi's Enlargement Vision, Agence France Presse, July 8, 2003, available at LEXIS.
 Dinah Shelton, The Boundaries of Human Rights Jurisdiction in Europe, 13 Duke J. Comp. & Int'l L. 95, 152-3 (2003).
 The Council of the European Union will be referred to as "the Council". This council is different from the Council of Europe. "The Council [of Europe] was set up to: defend human rights, parliamentary democracy and the rule of law; develop continent-wide agreements to standardise member countries' social and legal practices; promote awareness of a European identity based on shared values and cutting across different cultures." The Council of Europe, available at http://www.coe.int/T/e/Com/about_coe/ (last modified December 31, 2003).
 The sanctions that may be imposed based upon TEU Article 7, according to Quinn, involve "the suspension of certain rights, including voting rights of the Member States concerned. The political costs involved in invoking Article 7 are formidably high." Gerard Quinn, Special Section of European Integration/Dossier Special Sur L'Integration Europeenne: The European Union and the Council of Europe on the Issue of Human Rights: Twins Separated at Birth?, 46 McGill L.J. 849, 870 (2001).
 Verhoeven, supra note 6, at 349.
 McCormick, supra note 12, at 4.
 See generally Bermann et al., supra note 44, at 24-25.
 Liz Heffernan, Enduring and Empowering: The Bill of Rights in the Third Millennium: The Treaty of Nice: Arming the Courts to Defend a European Bill of Rights, 65 Law & Contemp. Prob. 189, 189 (2002).
 Id. at 197.
 Jorg Monar, Continuing and Building on Amsterdam: The Reforms of the Treaty of Nice, in The European Union after the Treaty of Amsterdam 321, 322 (Jorg Monar & Wolfgang Wessels eds., 2001).
 Heffernan, supra note 72, at 197.
 Bell, supra note 26, at 17.
 Id. at 18.
 Bermann et al., supra note 44, at 222.
 Carole Lyons, Flexibility and the European Court of Justice, in Constitutional Change in the EU From Uniformity to Flexibility? 95, 97-8 (Grainne De Burca & Joanne Scott eds., 2000).
 Id. at 98-9.
 Secretariat to The Convention, Report from the Presidency of the Convention to the President of the European Council, available at http://european-convention.eu.int/docs/Treaty/cv00851.en03.pdf (last modified July 26, 2003).
 See The Draft Treaty establishing a Constitution for Europe, supra note 10.
 The articles of the Charter continue to evolve as the document is revised up until its ratification. This evolving document, obviously, serves to further confuse the situation for both potential plaintiffs and defendants.
 The Draft Treaty establishing a Constitution for Europe, supra note 10.
 Bell, supra note 26, at 24.
 Shelton, supra note 65, at 117.
 Commission Communication on the Charter of Fundamental Rights of the European Union, available at http://europa.eu.int/eur-lex/en/com/cnc/2000/com2000_0559en01.pdf (Last Modified May 24, 2003).
 Bermann et al., supra note 44, at 224.
 Quinn, supra note 67, at 873.
 Hancock & O'Brien, supra note 51, at 7.
 See Bell, supra note 26, at 25.
 Case C-173/99, In R. v. Secretary of State for Trade and Industry,  All ER (EC) 647.
 Case C-7/98, Krombach v. Bamberski,  All ER (EC) 584.
 Charter Article II-47 – Right to an effective remedy and to a fair trial – states (in whole), "Everyone whose rights and freedoms guaranteed by the law of the Union are violated has the right to an effective remedy before a tribunal in compliance with the conditions laid down in this Article. Everyone is entitled to a fair and public hearing within a reasonable time by an independent and impartial tribunal previously established by law. Everyone shall have the possibility of being advised, defended and represented. Legal aid shall be made available to those who lack sufficient resources insofar as such aid is necessary to ensure effective access to justice." The Draft Treaty establishing a Constitution for Europe, supra note 10. See also Shelton, supra note 65, at 118.
 In Union de Pequenos Agricultores v.Council of the European Union, the ECJ noted, however, regarding Article 47 of the Charter, "[W]hile itself [is] not legally binding, [the Charter] proclaims a generally recognised principle in stating in art 47 that '[e]veryone whose rights and freedoms guaranteed by the law of the Union are violated has the right to an effective remedy before a tribunal'." Case C-50/00 P,  All ER (EC) 893. Again, the court notes that the Charter can be used, but gives the clear impression that until it is formally adopted by the EU, it may use the Charter only when it so chooses.
 Stauder, supra note 20.
 See Janis et al., supra note 8, at 505; Verhoeven, supra note 6, at 326.
 See generally Bradley, supra note 5, at 118-38.
 See generally the definitions of the Three Pillars, supra note 50.
 See Case 2/92, R. v. Ministry of Agriculture, Fisheries and Food,  3 CMLR 547.
 See EC Treaty Article 13. Folsom, supra note 2, at 382.
 See Sirdar, supra note 59.
 Id. at 59.
 Case Krombach, supra note 97.
 See Defeis, supra note 30.
 See The Draft Treaty establishing a Constitution for Europe, supra note 10.