The EU Charter of Fundamental Rights as a Constitutional Document
European Human Rights Law Review (2004) 37
10 Pages Posted: 26 Jun 2014
Date Written: 2004
This paper examines the possibility of using the Charter of Fundamental Rights proclaimed at Nice in 2000 as a Bill of Rights in the proposed European Constitution. The Charter's constitutional status and effects are explored through three inquiries.
First the EU constitutional mechanisms that created it are considered, and the effects of the Charter Convention are contrasted with international examples.
Secondly, an inquiry into the Charter's actual content and justiciability questions its ability of serving a serious constitutional function. In this process the author discusses the Charter's impact to date in the courts and points out that it has barely been mentioned by the European Court of Justice (ECJ). The breadth of the rights, values, and principles stated within the Charter are assessed alongside their perhaps controversial and difficult to enforce implications for the current system of EC law.
The third line of inquiry analyses to what extent the Charter may serve as a federalising force, in that it appears to be primarily designed to control the European Union and not its Member States, yet its comprehensive nature may be inadequately explained. It is argued that the capacity of the Charter to have an impact on Member State action may be extended by the ECJ through interpretation despite limiting clauses.
Overall the constitutional problems and tensions surrounding the Charter are contended to stem from the unsteady constitutional status of the European Union itself.
Keywords: EU law, human rights, Bills of Rights, Constitutions, constitutionalism
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