EC: Draft EU charter of fundamental rights agreed

The final draft EU charter of fundamental rights, which sets out a variety of social and economic rights, was adopted in October after 10 months of preparation. The draft recognises key rights such as trade union rights, the right to strike, the right to collective bargaining and the right of workers to information and consultation. Here, we review the process that led to the final draft charter and the controversy surrounding its legal status.

The final version of the draft EU charter of fundamental rights was agreed on 28 September 2000 and adopted on 2 October by the committee set up to draft the charter1 - the Convention - after some 10 months of deliberations. The work on the final version was based on the preliminary draft charter that was issued on 28 July 2000.

The publication of a final draft is the last stage prior to the adoption of a charter, the aim of which is to consolidate the basic rights of EU citizens into a single text. The final draft was due be presented to the European Council in advance of its meeting in Biarritz on 13-14 October 2000 and the final decision on whether to endorse the charter is due to be taken at the European Council in Nice on 7-8 December 2000.

Background

The idea of drawing up an EU charter of fundamental rights was backed by the European Commission in its report published in February 1999 entitled Affirming fundamental rights in the European Union. Time to Act2. The report was subsequently discussed at the Cologne European Council in June 1999 and the Tampere European Council, held on 15-16 October 1999, decided to establish a body, known as the Convention, to draw up the charter. The Convention comprises 62 members - 15 representatives of the heads of state or governments of member states, one representative from the European Commission, 16 members of the European Parliament and 30 members of national parliaments.

The Convention first met in December 1999 and meetings have been taking place since then with a view to finalising a draft charter to present to the European Council in Santa Maria da Feira on 19 and 20 June 2000. However, the draft was not ready to be presented then and further work continued and a preliminary draft was published at the end of July 2000.

During the preparation period, the Convention heard submissions from the European Trade Union Confederation (ETUC), the Permanent Forum of Civil Society, the Platform of European Social NGOs and the Coordination of NGOs on Fundamental Rights. The Union of Industrial and Employers' Confederations of Europe (UNICE), which represents private sector employers, welcomed the drafting of a charter as a means of making existing human rights and fundamental freedoms for Europeans citizens more visible. UNICE stated: "A forward-looking charter should not miss the opportunity to express Europe's readiness to meet the upcoming challenges of developing a well-functioning market economy throughout the European Union ... In focusing on the rights of European citizens, it is vital that the rights of European undertakings are also respected."

First draft

Following the discussions that took place during the first six months of 2000, the Convention published a preliminary draft charter that contained a variety of civil, political, economic and social rights under the headings of: Dignity (chapter 1); Freedoms (chapter 2); Equality (chapter 3); Solidarity (chapter 4); Citizenship (chapter 5); and Justice (chapter 6). In the social affairs field, the majority of pertinent rights appeared in chapters 3 and 4.

Equality measures

Chapter 3 covered Articles 20 to 24 and enshrined rights relating to:

  • equality between men and women (Article 20);

  • the prohibition of discrimination based on sex, race, colour, gender, 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 (Article 21.1);

  • the prohibition of discrimination on the grounds of nationality (Article 21.2);

  • equal opportunities and equal treatment for men and women with regard to employment and work, including equal pay for equal work or for work of equal value (Article 22); and

  • the social and occupational integration of people with disabilities (Article 24).

    Solidarity measures

    Chapter 4 covered Articles 25 to 36 and upheld employment and social security rights relating to:

  • workers' information and consultation rights. According to the first draft charter, workers and their representatives were to be guaranteed information and consultation in good time on matters that concern them within the undertaking, in accordance with Community law and national laws and practices (Article 25);

  • collective bargaining and action. Under this version of the draft, employers and workers had the right to negotiate and conclude collective agreements and take collective action to defend their interests, in accordance with Community law and national laws and practices (Article 26);

  • protection against unfair dismissal (Article 28);

  • working conditions that respect employees' health, safety and dignity (Article 29.1);

  • limits on maximum working hours, and guaranteed daily and weekly rest periods and annual periods of paid leave (Article 29.2);

  • the prohibition of child labour. According to the preliminary draft, the minimum age of employment must not be lower than the minimum school-leaving age without prejudice to regulations that may be more favourable to young people and except for limited derogations. In addition, young people must enjoy working conditions appropriate to their age and be protected against exploitation and any work that would jeopardise their health and safety or interfere with their education (Article 30);

  • reconciling family and working life. Under the first draft, workers had the right to protection from dismissal owing to pregnancy and the right to paid maternity leave and to parental leave following the birth or adoption of a child (Article 31); and

  • entitlement to social security benefits and social services in the event of pregnancy, illness, industrial accidents, dependency, old age or loss of employment (Article 32).

    Other measures

    A number of other social policy-related measures appear elsewhere in the proposed text. These include:

  • the prohibition of forced labour (Article 5.2);

  • the right to freedom of assembly and association, in particular in relation to trade union matters (Article 12);

  • the right to access to vocational and continuing education (Article 14.1);

  • the freedom to choose an occupation, earn a living, seek employment and work. Third country nationals should also be entitled to working conditions equivalent to those of citizens of the Union (Article 15); and

  • the freedom to conduct a business (Article 16).

    Controversy over social rights

    Following publication of the preliminary draft in July 2000, the ETUC and the platform of European social non-governmental organisations (NGOs) rejected many elements of the text. The ETUC reacted with a "feeling of disappointment" with regard to the social rights contained in the draft. According to ETUC general secretary Emilio Gabaglio, the social rights "are only set out with great reluctance and in vague wording that could even prove to be counterproductive." He also said that there was a lack of clarity regarding the rights of trade unions, the right to engage in collective bargaining and the right to strike.

    Mr Gabaglio said he was concerned that the lack of clear recognition of such rights would place a limit on trade union activities at European level at a time when the participation of trade unions was being called for to help implement the employment and economic strategy decided at the Lisbon European Council in March 2000. Mr Gabaglio stated that unless there were substantial changes in the preliminary draft charter, the ETUC would not be able to support it. He therefore called on the European Council not to approve "a charter, the content of which would be backsliding in relation to the goal of building a social and citizens' Europe ... It would be better to put off a decision in Nice than vote in a failed charter."

    The European Women's Lobby (EWL) criticised the preliminary draft because, in its view, it did "not introduce the concept of gender equality as a basic, unconditional and fundamental principle of the Union." The EWL also stated that sexist language had been used in certain translated versions of the text. For example, the EWL claimed that the French version of the draft charter employed only the masculine gender when referring to terms such as "workers and their representatives". EWL president, Denise Fuchs, stated: "The charter, as presently drafted, constitutes a devastating step backwards in the fight against the persistent structure of discrimination faced by women all over Europe... .This exclusively male presidium has once again failed to integrate women's perspective into the charter."

    Meanwhile, the Confederation of British Industry (CBI) voiced its concerns regarding the draft charter and restated its opposition to the project, saying that the drawing up of an EU charter of fundamental rights was "totally unacceptable". It challenged the inclusion of economic and social rights within the draft charter and was particularly critical of Article 25, which related to workers' information and consultation rights. The CBI believed that workers' right to information and consultation "in good time on matters which concern them" was too broad and vague and would be open to too wide an interpretation from the European Court of Justice.

    The UK government also campaigned against the extension of social and economic rights, which, it believed, could have a detrimental impact on the UK's comparatively deregulated labour market. While the economic and social rights proposed in the draft charter reflect laws and practices found across much of the EU, the UK government was keen to resist the encroachment of such practices in the UK.

    Lobbying continued

    The ETUC and the Platform of European social NGOs subsequently began to engage in further lobbying in an attempt to improve the charter. They believed that the first draft should be amended to rectify certain omissions, including:

  • the recognition of social partners at European level in the framework of a system of European industrial relations in Article 12;

  • the right to work and engage in a freely chosen occupation in Article 15;

  • the rights to equal opportunity and treatment in all fields of life and work between men and women and the right to the respect of cultural diversity in chapter 3;.

  • national and transnational rights of association, collective bargaining, trade union action, including cross-border sympathy action, and the right to strike and national and transnational rights of workers in enterprises to information, consultation and participation, prior to decision-making in Articles 25 and 26; and

  • the right of all individuals, regardless of status, to a decent minimum income, the right to retirement, the right of older people to a decent income enabling them to live a dignified life, the right to protection against poverty and social exclusion and the right to social security for people with a disability in Article 32.

    The ETUC and the NGOs also believed that the draft charter represented a step backwards on several grounds, including:

  • the fact that numerous social rights are guaranteed "in accordance with Community law and national laws" (Articles 25, 26, 32, 33, 34). According to the ETUC, this goes against the momentum established in the Treaty for upward social harmonisation; and

  • Article 28 (Protection in the event of unjustified dismissal). The ETUC and the NGOs recommended that this Article should be entitled: "Protection in the event of dismissal", thus providing protection against all forms of dismissal.

    In other areas, the ETUC and the NGOs wanted the wording of certain Articles to be tightened up to prevent ambiguity, principally:

  • Article 16 (Freedom to conduct a business), which should include a reference to the social responsibilities of businesses;

  • Article 29 should refer to the rights to health and safety protection in the workplace;

  • Articles 32 (Social security and social assistance) and 34 (Access to services of general economic interest) should be reformulated from "Everyone has access to ... " into "The Union recognises and respects the entitlement to ... " (Article 32) or "The Union respects the access to ... "(Article 34); and

  • Article 49 (Scope) should make a reference to the social partners in the bodies to which the charter is addressed, given that the Treaty of the European Community has conferred powers upon them in the framework of social policy.

    The continuing interventions from interested lobbying groups during September 2000 resulted in a delay in the adoption of a final draft text by the Convention. This was because the three colleges in the Convention - representatives from the European Parliament, national parliaments and the representatives of the heads of state and government - found it difficult to reach a consensus on the proposed amendments. The meeting of the Convention on 11 September was therefore inconclusive and it was decided that the adoption of a final draft would have to be delayed until the meeting of 25 and 26 September.

    Meanwhile, the European Commission issued a Communication on 13 September in support of the future charter. The Commission stated: "The Union cannot be based exclusively on purely economic considerations. On the contrary, it must henceforth seek its roots in the fundamental human values common to all European countries. This is a necessary precondition if the people of Europe are to place their trust in the continuing task of European integration. We must prove to them that the Union provides a framework with which they can identify."

    The Commission underlined that the charter would promote neither an extension nor a reduction of European Union competence, would not call for amendments to the constitutions of member states and would not prevent access to the European Convention on Human Rights. Commissioner for Justice and Interior Affairs Antonio Vitorino emphasised the innovative character of the charter through the indivisibility of civil and political rights and social and economic rights.

    Interim draft

    On 14 September, the Convention published an interim draft charter to show the amendments that had been made to the preliminary draft. Important modifications were inserted in the equality and solidarity chapters. Although not all the points raised by the ETUC and the social NGOs were adopted, modifications were made in the areas of:

  • equality between men and women. Article 23 (Article 22 in the preliminary draft) was amended to state that: "Equality between men and women must be ensured in all areas, including employment, work and pay. The principle of equality should not prevent the maintenance or adoption of measures in favour of the underrepresented sex";

  • workers' rights to information and consultation within the undertaking. Article 26 (Article 25 under the preliminary draft) was modified to state that: "Workers or their representatives must at all levels be guaranteed information and consultation in good time on matters which concern them within the undertaking, in the cases and under the conditions provided for by Community laws and practices";

  • right of collective bargaining and action. Article 27 (Article 26 under the preliminary draft) was amended to read: "Workers and employers, or their respective organisations, have, at all levels, the right to negotiate and conclude collective agreements and, in cases of conflict of interest, to take collective action to defend their interests, including strike action, in accordance with Community law and national laws and practices"; and

  • social security and social assistance. A new sub-clause was inserted into Article 33 (Article 32 under the preliminary draft) which stated: "Every person residing and moving legally within the European Union is entitled to social security benefits and social advantages in accordance with Community law and national laws and practices."

    Amendments were also made to the following rights:

  • freedom of assembly and association. The wording of Article 12 was amended to state that: "In particular, everyone has the right to form and join trade unions for the protection of their interests";

  • right to education. Under Article 14, the right to receive free compulsory education was added; and

  • freedom to choose an occupation. The wording of Article 15 was modified to read: "Everyone has the right to work for his living and to engage in a freely chosen or accepted occupation."

    The CBI reacted by saying that it was "extremely disappointed" with the interim draft and was particularly concerned about the proposed right to strike "at all levels" (European, national, sectoral and company levels). It feared that this would raise the possibility of cross-border industrial action, especially given that secondary strike action has been illegal in the UK since the 1980s. The CBI also raised its concerns about the proposed right to information and consultation that would also apply "at all levels". It stated that the inclusion of such a broad right in the charter would put pressure on countries, including the UK, which are blocking a proposed Directive on national-level workers' information and consultation rights.

    Final draft

    Following the meeting of the Convention on 25-26 September, the final draft of the charter was agreed on 28 September and adopted by the Convention on 2 October. This final draft, which will be forwarded to the European Council in Biarritz contains some further last-minute rewording of Articles and some amendments. In the field of social affairs, the amendments focus on:

  • freedom to conduct a business (Article 16). This Article was amended from: "The freedom to conduct a business is recognised" to: "The freedom to conduct a business in accordance with Community law and national laws and practices is recognised";

  • workers' right to information and consultation within the undertaking (Article 27). The phrase "at all levels" has been replaced with "at the appropriate levels" and the content of information and consultation, to which workers have a right, is no longer clarified;

  • right of collective bargaining and action (Article 28). The phrase "at all levels" has been replaced with "at the appropriate levels";

  • protection in the event of unfair dimissal (Article 30). This Article has been amended from: "Every worker has the right to protection against unjustified dismissal" to: "Every worker has the right to protection against unjustified dismissal, in accordance with Community law and national laws and practices."

    The UK government and the CBI, which have been the most vociferous national critics of the draft, are pleased with the last-minute amendments as they believe that they address their concerns about the impact of the charter on business. By replacing the phrase "at all levels" with "at the appropriate levels" the scope of trade union action has been limited while the right to protection in the event of unfair dismissal has also been curtailed with the reference back to national law - in the UK, such protection exists only after one year's service.

    However, the ETUC is disappointed with the final draft because it incorporates few of the amendments suggested by the ETUC and the Platform of European Social NGOs and because it believes that the social rights are formulated in a way that limits their reach. In addition, the ETUC wants further clarification on trade union rights: "In light of the European single market and economic integration, it is logical and important to guarantee the right to collective bargaining and trade union action, including strikes, at European level." In order to push forward its demands, the ETUC has called for a major European trade union rally to take place in Nice on 6 December 2000 ahead of the European Council meeting which will decide the fate of the charter.

    Legal status

    Alongside the discussions on the contents of the charter, the question of its actual legal status is seen of equal importance. The original objective was for the charter to form the basis of a solemn declaration that would not be legally binding on member states. The possible integration of the charter into the Treaty was due to be decided at a later date only after the charter had been approved.

    However, the European Parliament, the NGOs, the ETUC and certain national governments want to see the charter enshrined in Community law when the Treaty is revised by the Intergovernmental Conference (IGC) on institutional reform, within the framework of which discussions will reach a climax at the Nice European Council in December 2000. In this way, the charter could be binding on all member states from the outset.

    At the plenary session of the European Parliament on 16 March 2000, MEPs welcomed the drafting of the charter - stating that it should be "seen as the central element of a process culminating in the European Union's adoption of a constitution" - and consequently voted overwhelmingly for the charter to be legally binding and written into the Treaty. Meanwhile, Mr Vitrino stated that the Commission shared the views expressed by Parliament regarding the binding nature of the charter and its inclusion in the revised Treaty.

    The ETUC and the Platform of European Social NGOs launched a joint campaign on 27 March 2000 to promote the inclusion of a future charter in the Treaty. According to the ETUC, the aim of the campaign is to raise awareness amongst both the general public and decision-makers on the need to incorporate into the Treaty social, trade union, economic, political and cultural rights and to make them binding on member states. The ETUC stated: "Fundamental rights cannot be separated from the European social model. Reducing the charter on fundamental rights to a solemn declaration would be unacceptable and would be an inadequate response to the expectations of citizens and to the goals of European integration and enlargement."

    Despite this pressure, there has been considerable debate within the European Council over whether to make the charter legally binding. For example, the UK government has been opposed to awarding the charter a legal basis because it believes that it is too prescriptive, especially in terms of social and economic rights, while the German government has been reported to be in favour because it believes that it will help bring the European Union "closer to its citizens".

    With the publication of the final draft, the debate surrounding legal status is set to intensify. The UK government remains adamant that the charter should be adopted as a non-binding declaration and according to reports in European Voice (28 September - 4 October 2000), the French Presidency has abandoned plans to make the charter legally binding. While the French government supported the integration of the charter into a revised Treaty, it is reported to have taken the pragmatic view that in order to ensure consensus support for the charter it will have to remain a non-binding declaration.

    While this will satisfy the UK government, this approach has dismayed those who support the text being given Treaty basis. Such supporters are hoping that countries that want to see the text awarded legal status, such as Germany, may be able to put pressure on the UK government at the Biarritz Council to accept the charter as an item of the IGC agenda. The supporters contend that because the text is simply a consolidation of existing rights and awards no new powers to the EU, there is no reason for the charter not to be accorded Treaty basis.

    Next steps

    The debate surrounding the legal status of the charter is now set to take centre stage at the European Councils in October and December. While it remains to be seen which side of the debate will prevail on this thorny issue, at least the scope and contents of the draft charter have now been finalised. Although certain organisations and members of the Convention may be disappointed with the outcome, the publication of a draft charter can be seen as a step forward in clarifying the basic social, economic and other rights of all EU citizens.

    However, the process for further discussion and adoption of the charter is not clear because the process is entering new territory. This is the first time such a Convention has been established and there are no regulations or guidelines regarding how it fits in with established policy processes and how its relates to the European Council.

    If the European Council decides to adopt the charter as it currently stands, there may be no problem. However, if further amendments are inserted by individual governments, it is not clear whether the charter will be referred back to the Convention for further discussion or whether the Council will be able vote on amendments. If the Council decides to vote, will there need to unanimity or can a decision be based on qualified majority voting? Such questions will remain unanswered until the European Council has met in October and its opinion on the charter has been made known.

    Contents of the final draft charter

    The final draft of the EU charter on fundamental rights was adopted by the Convention on 2 October 2000 - the Convention is the 62-member committee set up to design the charter. The proposed charter is due to be discussed at the Biarritz European Council on 13-14 October and at the Nice European Council on 7-8 December, when EU leaders will decide on whether to make the charter legally binding on all member states or whether to adopt it solely as a declaration.

    The social and economic contents of the final draft charter are principally found in four chapters:

    Dignity

  • forced labour. Nobody shall be required to perform forced or compulsory labour (Article 5.2);

    Freedoms

  • association. Everyone has the right to ... freedom of association at all levels, in particular in political, trade union and civic matters, which implies the right of everyone to form and to join trade unions for the protection of his or her interests (Article 12.1);

  • education. Everyone has the right to education and access to vocational and continuing training. This right includes the possibility to receive free compulsory education (Article 14.1 and 14.2);

  • work. Everyone has the right to engage in work and pursue a freely chosen or accepted occupation. Every citizen of the Union has the freedom to seek employment, to work, to exercise the right of establishment and to provide services in any member state. Nationals of third countries who are authorised to work in the territories of the member states are entitled to working conditions equivalent to those of citizens of the Union (Articles 15.1, 15.2 and 15.3);

  • entrepreneurship. The freedom to conduct a business in accordance with Community law and national laws and practices is recognised (Article 16);

    Equality

  • equality. Everyone is equal before the law (Article 20);

  • discrimination. Any discrimination based on any ground such as sex, race, colour, ethnic or social origin, genetic features, language, religion or belief, political or other opinion, membership of a national minority, property, birth, disability, age or sexual orientation shall be prohibited [ ... ] any discrimination on grounds of nationality shall be prohibited (Articles 21.1 and 21.2);

  • gender. Equality between men and women must be ensured in all areas including employment, work and pay. The principle of equality shall not prevent the maintenance or adoption of measures providing for specific advantages in favour of the underrepresented sex (Articles 23.1 and 23.2);

  • disability. The Union recognises and respects the rights of persons with disabilities to benefit from measures designed to ensure their independence, social and occupational integration and participation in the life of the community (Article 26);

    Solidarity

  • information and consultation. Workers or their representatives must, at the appropriate levels, be guaranteed information and consultation in good time in the cases and under the conditions provided for by Community law and national laws and practices (Article 27);

  • collective bargaining. Workers and employers, or their respective organisations, have, in accordance with Community law and national laws and practices, the right to negotiate and conclude collective agreements at the appropriate levels and, in cases of conflict of interest, to take collective action to defend their interests, including strike action (Article 28);

  • placement. Everyone has the right of access to a free placement service (Article 29);

  • unfair dismissal. Every worker has the right to protection against unjustified dismissal, in accordance with Community law and national laws and practices (Article 30);

  • working conditions. Every worker has the right to working conditions which respect his or her health, safety and dignity. Every worker has the right to limitation of maximum working hours, to daily and weekly rest periods and to an annual period of paid leave (Articles 31.1 and 31.2);

  • child labour. The employment of children is prohibited. The minimum age of admission to employment may not be lower than the minimum school-leaving age, without prejudice to such rules as may be more favourable to young people and except limited derogation. Young people admitted to work must have working conditions appropriate to their age and be protected against economic exploitation and any work likely to harm their safety, health or physical, mental, moral or social development or to interfere with their education (Articles 32.1 and 32.2);

  • family. The family shall enjoy legal, economic and social protection. To reconcile family and professional life, everyone shall have the right to protection from dismissal for a reason connected with maternity and the right to paid maternity leave and to parental leave following the birth or adoption of child (Articles 33.1 and 33.2); and

  • social security. The Union recognises and respects the entitlement to social security benefits and social services providing protection in cases such as maternity, illness, industrial accidents, dependency or old age, and in the case of loss of employment, in accordance with the procedures laid down by Community law and national laws and practices. Everyone residing and moving legally within the European Union is entitled to social security benefits and social advantages in accordance with Community law and national laws and practices. In order to combat social exclusion and poverty, the Union recognises and respects the right to social and housing assistance so as to ensure a decent existence for all those who lack sufficient resources, in accordance with the procedures laid down by Community law and national laws and practices (Articles 34.1, 34.2 and 34.3).

    1The final draft charter can be seen at the following web site: http://db.consilium.eu.int/dfdocs/EN/04487En.pdf

    2This report can be viewed at the following web site: http://www.europa.eu.int/comm/dg05/fundamri/expertgroup/report_en.pdf