Margarida Vasconcelos: The Charter must be disapplied in the UK

Viviane Reding, Vice-President of the European Commission, presented last April the 2013 Report on the Application of the EU Charter of Fundamental Rights. While highlighting “the importance and prominence of the EU Charter”, she reiterated her ambition of having all fundamental rights directly applicable in all Member States. According to Viviane Reding “…one day citizens in all Member States will be able to rely directly on the Charter – without the need for a clear link to EU law”, whish “would effectively mean abolishing Article 51 of our Charter of which currently restricts its applicability.” This would entail the application of the Charter to member states national law. In this way the Commission would be able to bring infringement procedures on fundamental rights against Member States even if they are not acting in the implementation of EU law. It would be then able to launch infringement procedures on any alleged breach of any of the rights provided in the Charter and the CJEU would have jurisdiction to hear all these cases of member states allegedly breaching fundamental rights. Consequently, the CJEU would be provided with unrestricted jurisdiction, as every single policy would be subject to it. This would be unacceptable and clearly shows the Viviane Reding’s drive for a EU federal state.

It shall be recalled that Ms Reding has been saying “The time has come to build a European Federation.” According to Viviane Reding’s vision the Commission would be the government of a United States of Europe and then there would be two chambers – the European Parliament and a "Senate of Member States.” Moreover, she has already shown her desire to transform the Charter into something like the Federal Bill of Rights in the United States, she said, “The Charter should be Europe's very own Bill of Rights.”

Even before the EU Charter of Fundamental Rights has become legally binding the European Court of Justice had already explicitly referred to it in its judgments. Since 2009, the CJEU has jurisdiction to hear actions brought by the Commission against a Member State for infringing the Charter when implementing EU law. Furthermore, several issues have been referred to the Court by the preliminary reference procedures such as the compatibility of a Member State act while implementing EU law with the Charter or compatibility of EU legislation with the Charter. The ECJ interprets and assesses the validity of EU law as well as national measures implementing EU law according to the Charter. Moreover, the Charter has direct effect consequently individuals in any court can invoke it when the matter concerns EU law.

The Court can review and overrule national measures on the basis of its compliance with the Charter. As the ESC stressed the Charter can be used to enforce EU law “by national courts, under the supervisory jurisdiction of the ECJ, in invalidating national legislation and decisions of national public authorities, including courts, which are within the scope of EU law.”

Unsurprisingly, the Commission’s report particularly highlights that not only the ECJ but also national courts are increasingly referring to the Charter in their decisions. The number of decisions of the European Courts quoting the Charter in their reasoning has increased from 43 in 2011 to 87 in 2012 and then to 114 in 2013. There has also been an increase in the number of applications for preliminary rulings, containing a reference to the Charter, submitted by national judges to the ECJ. There has been, as initially predicted, a growing number in claims against the EU institutions and EU Member States, including the UK, based on Charter rights. In fact, as the Commission said, “This highlights the Charter’s increasing interaction with national legal systems.”

The European Foundation has been concerned with the impact of the EU Charter of Fundamental Rights in the UK, as it impinges on the UK’s parliamentary sovereignty. The Charter lays down rights, which have been interpreted by the CJEU and by the UK Courts in a way that not only overrides Parliament but also imposes further burdens on business. Due to the principle of supremacy of EU law UK national courts are required to disapply an Act of Parliament that is inconsistent with a Charter right.

The UK has a Protocol on the Application of the Charter (Protocol 30) which is not an opt out from the Charter, and it does not prevent the UK Courts from being bound by the CJEU interpretations of Union law measures based on the Charter. The Protocol has not excluded the UK from obligations under the Treaties, such as the duty of sincere cooperation, and, it is important to note if the CJEU recognizes a fundamental right as a general principle of EU law, the UK is legally bound by it, irrespective of the Charter and the protocol 30, as they are part of the EU’s primary law.

Hence, Bill Cash, who has been warning about the impact of the Charter in the UK, tabled several amendments relating to the Charter on the European Union (Amendment) Act 2008, implementing the Lisbon Treaty that would have excluded the UK from the charter by applying the formula “Notwithstanding...the European Communities Act 1972”. However, such provision has not been inserted and consequently the Charter applies to the UK and CJEU case law based on the Charter has an effect within the UK. In fact, in the so-called Saeedi case the European Court of Justice held “Article 1(1) of Protocol (No 30) explains Article 51 of the Charter with regard to the scope thereof and does not intend to exempt the Republic of Poland or the United Kingdom from the obligation to comply with the provisions of the Charter or to prevent a court of one of those Member States from ensuring compliance with those provisions.” The CJEU confirmed that the Charter applies in the UK and that Protocol 30 does not exempt the UK from the obligation to comply with the Charter's provisions and it does not prevent UK's courts from ensuring compliance with such provisions. Hence, any UK public authority when implementing EU law is required to comply with all of the rights provided in charter and such compliance is justiciable in the UK courts. As the European Scrutiny Committee noticed this “is a direct consequence of Sections 2 and 3 of the European Communities Act 1972”. All provisions of EU law that have direct effect are automatically incorporated and binding in national law, under Section 2(1) European Communities Act 1972. Under Section 2(4) and 3(1) UK courts are required to override any national legislation, which is deemed to be incompatible with EU law. Likewise, Parliament has always accepted the obligation to amend national law to comply with the European Court of Justice decisions. As the ESC pointed out the rights contained in the Charter “have supremacy over inconsistent national law or decisions of public authorities, by virtue of sections 2(4) and 3(1) of the European Communities Act 1972."

We have been told that EU fundamental rights can be relied only against public authorities and solely when they are acting within the scope of EU law. More importantly, we have been told “that nothing in the Charter extends the ability of any court to strike down UK law”. However this is not true as it is clearly showed by a judgement delivered on 4 October 2013 by the Employment Appeal Tribunal. In the Benkharbouche v Embassy of the Republic of Sudan and Janah v Libya, Mr Justice Langstaff noted that the provisions of the State Immunity Act were not only in conflict with a right recognised in the ECHR but also with a general principle of EU law, which concerns access to a court for the purpose of remedying unlawful discrimination. Mr Justice Langstaff took the view that since the EU Charter was now recognised as applicable in the UK, the Appeal Tribunal was bound by EU law, and the ECA 1972, to hold that so far as the claims fell within the material scope of EU law (included a discrimination claim and working time claims), primary legislation, in this case the provisions of SIA 1978 were to be disapplied. Under Article 51 (1) the Charter is expressly addressed to "the institutions, bodies, offices and agencies of the Union", yet following the CJEU's judgment in Kucukdeveci v Swedex GmbH and CO KG the Tribunal was bound by EU law to disapply primary law in conflict with recognised general principles of EU law even in a dispute between private litigants. In that case, the CJEU ruled, in February 2010, that the provisions of directives expressing general principles of European Union law have full direct effect, even in horizontal situations. In the Association de Médiation Sociale case the CJEU found that Article 27 of the Charter (workers’ right to information and consultation) couldn’t be invoked in a dispute between individuals in order to conclude that a national provision that is contrary to EU law should not be applied. However, the Court noted, “In this connection, the facts of the case may be distinguished from those which gave rise to Kücükdeveci in so far as the principle of non-discrimination on grounds of age at issue in that case, laid down in Article 21(1) of the Charter, is sufficient in itself to confer on individuals an individual right which they may invoke as such.” As Professor Craig pointed out, giving evidence to the ESC, “they are excluding it in relation to Article 27 but they are not shutting the door. In fact, they are leaving the door quite wide ajar in relation to Charter rights that they think are suitable and complete, and therefore susceptible to horizontality.” The ESC is concerned about the “legal uncertainty” created by this principle as “Private individuals and bodies (including employers and their employees) may as a consequence find it difficult to predict whether they may assert a legal right or be vulnerable to legal liability because of the Charter’s application.”

Under Article 51 (1) Member States are required to comply with the Charter when implementing EU law. In fact, the requirement “implementing EU law” has been broadly interpreted. The Charter applies not only when Member States are implementing regulations or transposing EU directives but also when they seek to derogate from EU law by invoking public interest to justify a national measure that limits treaty’s rights and when they are “acting within the scope of Community law.”

There is a general agreement that the Charter does apply in the UK in matters that fall within the scope of EU law. However, this is also subject to the CJEU interpretation, and ultimately the Court decides whether a member state is acting “in the scope of Union law”, extending, in this way, the application of the Charter. The Saeedi case clearly shows that the Court's interpretation of whether a member state is acting “in the scope of Union law” can have as effect extending the application of the Charter. Whereas the Secretary of State believes that the member states’ discretionary power on whether to examine an application for asylum which is not their responsibility does not fall within the scope of European Union law, the CJEU held that it is “merely an element of the Common European Asylum System.” Hence, it “must be considered as implementing European Union law for the purposes of Article 6 TEU and/or Article 51 of the Charter.”

Moreover, it is important to recall that the ECJ in Åkerberg Fransson case has taken another step in clarifying the interpretation of Article 51 of the Charter and defining the Charter’s application in the Member States by national judges. The ECJ has clearly expanded the scope of its jurisdiction in this case by making an extremely broad interpretation of the Charter’s scope. The Swedish, Czech, Danish, Ireland and the Netherlands Governments as well as the European Commission argued that the Court had no jurisdiction to answer the questions referred for a preliminary ruling as the tax penalties and the criminal proceedings in question did not arise from implementation of European Union law. The Court recalled that “settled case-law” states “that the fundamental rights guaranteed in the legal order of the European Union are applicable in all situations governed by European Union law, but not outside such situations.” Then, the Court found “…that tax penalties and criminal proceedings for tax evasion, such as those to which the defendant in the main proceedings has been or is subject because the information concerning VAT that was provided was false, constitute implementation of Articles 2, 250(1) and 273 of Directive 2006/112 (…) and of Article 325 TFEU and, therefore, of European Union law, for the purposes of Article 51(1) of the Charter.” The Court then stated, “The fact that the national legislation upon which those tax penalties and criminal proceedings are founded has not been adopted to transpose Directive 2006/112 cannot call that conclusion into question, since its application is designed to penalise an infringement of that directive and is therefore intended to implement the obligation imposed on the Member States by the Treaty to impose effective penalties for conduct prejudicial to the financial interests of the European Union.”

The Charter only binds Member States when they implement EU policies and law at national level. However, in the Fransson case the ECJ further clarify when Member State action comes “within the scope of EU law”. The ECJ held that the Charter could be triggered at national level even if member states just pursue objectives laid down in EU law rather than directly implementing EU legislation. It is therefore not required for the national measure at stake to implement an EU law. As the ESC pointed out “The ECJ specifically excludes the need for EU law to play a determinative role in the exercise of public authority in the Member State in question: all that is required is that “the situation is governed by EU law”.” Hence, as it stressed, “if the power being exercised by the Member States is ultimately derived from EU law, it falls within the scope of EU law.” Thus, the Charter is binding in the UK even if there is only a feeble link between the EU law and national action. As the ESC stressed, “Following Fransson, the test for whether EU law is implemented is not whether national legislation intends to implement an EU obligation, but whether it is ultimately governed by EU law.”

Chris Grayling said, at an ESC’s evidence session, that although the Government does not want it there is an increasing risk of the Charter becoming a “reference point” particularly as regards social security and free movement, which would allow “mission creep jurisprudence” and it would take the Charter into maters of legal consideration. However, Bill Cash asked him whether he would introduce primary legislation to make clear that the charter cannot and will not apply in the UK law by disapplying the Charter and the pre existing fundamental rights, Chris Grayling made it clear that the Coalition Government has no intention to introduce primary legislation to that effect. But, he recalled that the Conservative Party wants to renegotiate the UK’s relationship with the EU. Bill Cash said, “The inference from the Secretary of State for Justice’s evidence is that he, like me, is not content with this, but it is not clear what the Government is going to do about it.” Then, he stressed that “it is essential that Ministers act to make clear beyond any doubt that the Charter will not in future apply in the UK, in particular through an amendment to the European Communities Act 1972.”

The European Scrutiny Committee stressing “the certainty that the jurisdiction of the ECJ will range across an even wider field with increasingly unintended consequences”, recommended that “primary legislation is introduced by way of amendment to the European Communities Act 1972 to exclude, at the least, the applicability of the Charter in the UK.” It is important to recall that Bill Cash’s Sovereignty specifically provides “Notwithstanding any provision of the European Communities Act 1972, nothing in the European Charter of Fundamental Rights of the European Union shall be binding on any person or a public authority in any legal proceeding of the United Kingdom and shall not form part of the law applicable in any part of the United Kingdom'. In fact, it includes clauses on disapplication that will enable Parliament to disapply legally binding EU measures and introduces a unilateral veto over EU legislative proposals. Moreover, it would ensure that the European Court of Justice and UK Courts do not strike down Acts that are passed by voters democratic wish. Thus, Bill Cash’s Bill would reaffirm the supremacy of the sovereignty of the UK Parliament. It is therefore an essential instrument to defend the right and freedom of British people to make their choice at the ballot box, as it would allow Parliament to strike down EU laws and the ECJ damaging rulings, which are not in Britain's national interest.

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