Sylvie Estriga

Sophie Zietek

Research dossier audit on

“The legal impact of the inclusion of the Charter on Fundamental Rights into the EU Constitutional Treaty for the protection of social rights”, by Emilie Meyer

I. Introduction :

-The topic :

In this research dossier, the author, Emilie Mayer, studied one aspect of the European Draft Constitutional Treaty, that of the Charter of Fundamental Rights and particularly the social rights enshrined in this Charter. She specified in her introduction what social rights are, that is to say workers’ rights but also rights relating to the actual existence of people in a broader understanding.

After a brief presentation of the historical background of the Charter, she justifies in a way her reason for having chosen this subject: the Charter was designed to be a synthesis of European Human Rights Law under the form of an autonomous document. For the first time, the EU had listed in a single text all the civil, political, economic and social rights enjoyed by European Citizens and all the people living in the EU. All laws, decisions, and policies produced by the EU institutions had to comply with the provisions of the Charter. So the "constitutionalisation" of the Charter might be considered to be a great step forward.

However, the author casts a critical glance at the event: the Charter of Fundamental Rights did not include all the rights figuring in the previous documents, and neither did it create new social rights, being a compromise on the values that the EU embodied. Some people also considered that the text was not far-reaching enough. However these issues will not be deeply discussed. The author wanted above all to analyse the legal influence or impact of this Charter on the European institutions and Member States. In this connection, the Charter was not only analysed in terms of legal status and impact for the protection of social rights, but also in terms of content, which amounts to assessing the catalogue of social rights granted by it.

The author deliberately excluded from her work issues relative to the cogency of the presence of social rights in a Constitution, or the issue of the so-called “European Social Model”.

Thus this dossier, through various press articles, as well as papers by academics and leading experts in the field of Social Law, aimed to assess the achievements and limitations of the insertion of the Charter and the social rights it entailed, and their potential domestic enforcement, particularly in the UK. Recent developments were also scrutinized, especially amendments in the very wording of the articles.

-Topicality context:

When the Charter was adopted, there had been a debate concerning social rights in the EU because different European countries have very different social legislations. That is to say that for some people, this text might be a progress, but not at all for some others. Thus, social rights were the mostly hotly debated point when the Charter was drawn up. For this reason, and since the polemic, it was more than necessary to understand the legal impact of this Charter and to see what the main stakes were.

II. Complete inventory

1. Form

The author made some mistakes (her vocabulary is not always appropriate and there are a few spelling mistakes).

The design is quite sober but clear. However the document lacks some links between the parts (transitions) and it would have been easier to read if it had been more spacing between the texts.

2. Contents

The author strove to write a real introduction which delineates the framework of the research dossier, analysing only the legal and judicial impact of the Charter of Fundamental Rights, and she has provided an accurate definition of social rights.

She also carried out a great task of translation: four texts out of seven were in French and the author of the RD translated them all into English.

III. Critical analysis

1. Form

The general form of the dossier is correct, except the lack of an outline, a structure which would enable the visitor to have a global view of the way the issue will be treated. This loophole is incidentally the cause of a vague, hesitating and imprecise approach to the problem.

The dossier should also provide links so that the reader may navigate easily from one part/text to another and make the reading easier.

We also noticed some language mistakes.

2. Contents

▪ Positive points:

This dossier provides quite good presentations of the sources as well as interesting summaries. It also displays different points of view on the issue of the impact of the Charter, especially regarding social rights. The author sometimes makes criticisms.

We have to stress an important work of translation, since many texts were originally in French and translated into English. Finally, a good lexicon provides some very useful juridical terms as well as other idioms.

▪ Negative points:

The first text could have been included in the introduction, since it takes up the same general things and does not provide an answer to the problem.

There is also a discrepancy between the scope of the problem which is well defined in the introduction and the treatment of the issue. The author pretends not to deal with the contents of the Charter and wants to address its legal impact on social rights only, although it seems quite vain to try to separate things which are intrinsically linked. Besides, the author ends up by dealing with the contents of the Charter several times. Some texts do not even really treat the issue (see for example text 4 which deals more with the potential economic consequences and costs resulting from the Charter). Even the commentaries do not always contribute much to the issue.

Sometimes the author misses some fundamental debates which might have been tackled in her commentaries. For example, when she dealt with people who assert that the Charter brings no advance for citizens’ rights, she should have specified in her commentary that it is not so simple. Even though it is true that all the EU-Member States have ratified the European Convention on Human Rights, that is not the point. Here it is Community law and the EU Institutions that have to be subjected to the fundamental rights enshrined in the Charter, as well as the States when they implement Community law, that is to say precisely when they apply EU legislation directly, or when they depart from the rules by dispensation explicitly stipulated in a EU provision.

Moreover, we deplore the lack of a text concerning the European Court of Justice, even if the author mentions it in the conclusion.

Finally, one may observe that sometimes the contents of the French and English summaries are very unequal.

IV. Verdict :

The research dossier highlights several important points linked to all the debates which took place around the Charter and the protection of social rights that stems from it. Unfortunately, the issue is treated in too narrow a frame, and also in a vague way. There is no answer to the question; no clear position emerges from the dossier. The treatment of the issue should be better targeted and one might expect some answer, a position, from the student.

Finally, a few technical improvements should be carried out.