A
BILL
OF
RIGHTS
FOR
THE
EUROPEAN
UNION
Elizabeth
F.
Defeis"
The
inclusion
of
the Charter
of
Fundamental
Rights'
in
the
Draft
Treaty
Establishing
a
Constitution
for Europe
2
has
a
curious
history
that
in
some
ways
is
similar
to
the
history
of
the
Bill
of
Rights
of
the
United
States
Constitution.
The
Draft Constitution
for
the
European
Union,
signed
on
October
29,
2004
in
Brussels
by
the
member
states, was
the
product
of
a
Convention
that
commenced
its
work
on
February
28,
2002
and
completed
its
drafting
process
on
July
10,
2003.
The
first
European
Convention
drafted
the
Charter
of
Fundamental
Rights
proclaimed
at
Nice
in
2000.
The
mandate
of
the
second
Convention
was to
simplify
the
constituent
treaties,
to
increase
the democratic
legitimacy,
transparency
and efficiency
of
the European
Union
institutions,
and
to
consider
the
unification
of
the
treaties
into
a
basic treaty,
including
the
Charter
of
Fundamental
Rights.
While
incorporation
of
the
Charter
will
have
little
immediate
substantive
impact,
it
is
an
important
symbolic
step
for
the
European Union.
Neither
the
United
States
Constitution
as
originally adopted,
nor
the
Treaty
on
European
Union
(also
referred
to
as
the
Treaty
of
Rome)
4
establishing
the
European
Economic
Community
and
the
subsequent
constituent
treaties
contain
what
can
be
considered
a
Bill
of
Rights.
This
omission
in
these
documents
can
be
attributed
to
similar
causes
relating
to
the
perceived
limited
power
or
competence
of
the
central
authority.
The United
States
Constitution
was intended
to
set
forth
a
plan
of
governance
for
the
new
nation
in
which
the
central
government
was
to
act
pursuant
to
specific
enumerated
powers
set
out
in
the
Constitution.
Human
*
Professor
of
Law,
Seton
Hall
University
School
of
Law.
Professor Defeis
would
like
to
thank
her
research assistant
Jessica
Hargis,
Class
of
2006.
This
article
is
a
revised
reproduction
of
oral
remarks
presented
at the
International
Law
Weekend
2004,
held
at the
House
of
the
Association
of
the Bar
of
the
City
of
New
York,
from
October
20
to
22,
2004.
1.
CHARTER
OF
FUNDAMENTAL
RIGHTS
OF
THE
UNION,
Dec.
16,
2004,
2004
O.J.
(C
310)
[hereinafter
THE
CHARTER].
2.
DRAFT
TREATY
ESTABLISHING
A
CONSTITUTION
FOR
EUROPE,
July
18,
2003,
2003
O.J.
(C
169)
9
[hereinafter
DRAFT
TREATY
ESTABLISHING
CONSTITUTION].
Although
the
Draft Treaty
establishing
a
Constitution
for
Europe
is
technically
a
treaty, the
term Draft Constitution
for
the
European Union
or
Draft
Constitution
will
be used
throughout
to
refer
to
this
document.
3.
See
generally
PETER
NORMAN,
THE
ACCIDENTAL
CONSTITUTION
(EuroComment
2003).
4.
Consolidated
Version
of
the
Treaty
on
European
Union,
Dec.
24,
2002,
2002
O.J.
(C
325)
96
[hereinafter
ROME
TREATY].
472
ILSA
Journal
of
International
&
Comparative
Law
[Vol.
11:471
rights were
hardly
considered
during the
debates
at
the Constitutional
Conven-
tion
in
Philadelphia
although
human
rights
provisions
were featured pro-
minently
in
all
of
the
state
constitutions then in
effect.
In
the
Federalist
Papers,
Alexander
Hamilton
argued
that
a
Bill
of
Rights
would not only
be unnecessary
but
also
dangerous.'
He
argued
that
a
Bill
of
Rights
would
refer
to
power
not
granted
to
the
Federal
Government
and
on
this
very
ground
it
could
be
asserted
that
the
Federal
Government
had
more
powers
than
had specifically
been
granted
in
the
Constitution.
The omission
of
a
Bill
of
Rights
proved
to
be
one
of
the
most
formidable stumbling
blocks
for
the ratification
of
the
Constitution
and
it
became the unifying
force
of
the
anti-Federalists
who
were
opposed
to
a
strong
central
government
and
wished
to
defeat
the
Constitution.
Faced with
this
development,
the
supporters
of
the
Constitution
pledged
that
if
the
Constitution
were adopted,
the
adoption
of
a Bill
of
Rights
would
be
the
first
order
of
business
for
the
new
Congress.
If
the
pledge
were
not kept,
a
new
constitutional
convention
would
be convened that
could
once
again
reargue the
issue
of
redistribution
of
powers
between the
states
and
the
national
government.
We
now
know
the
argument
that the
federal
government
of
the
United
States
is
one
of
limited enumerated
powers
did
not
stand
the
test
of
time.
Through
the expansion
of
the
Commerce
Clause
and
the Necessary
and
Proper
Clause,
6
the
activities
of
the national
government have expanded
into areas
unanticipated by
the framers
at
the
Philadelphia Convention, such
as
education
and
social welfare.
It
is
only
recently
that the Supreme Court has
once
again
begun
to
question
the limits
of
federal
power.
What
are
the
similarities
between
the
experiences
of
the
European
Union
and
the
United
States
with
respect
to
human
rights?
When
the
European
Union
was
first
established
in
1957, its
primary
goal
was
the attainment
of
economic
integration,
7
albeit
with
political
overtones.
Moreover,
its
competence
to
act
was
limited
to
specific
areas
designed
to
further
economic integration.
Since
it
was
necessary
to
harmonize
the
work
force
throughout
the community,
the
Treaty
of
Rome
did
contain
a
social
chapter,
which
gives
limited mention
to
human
rights
and
addresses
worker's
rights.
Nevertheless
its
primary
focus was
to
improve
working
conditions
on
a
harmonized
basis throughout
the
European
community.
The
Treaty
of
Rome
was
not
viewed
as
a
guarantor
of
rights
and
indeed,
its
only substantive
provision
pertaining
to
rights
was
former Article
119
now
5.
THE
FEDERALIST
NO.
84
(Alexander
Hamilton).
6.
U.S.
CONST.
art.
1,
§
8.
7.
Elizabeth
F.
Defeis,
The
Treaty
ofAmsterdam:
The
Next Step Towards
Gender
Equality?,
23
B.C.
INT'L
&
COMP.
L.
REV.
1
(1999).
8
Article
141,
which
guaranteed
equal
pay for
equal work
to
women.
However,
even
this
provision
was
put
in
for
economic
rather
than
human
rights concerns.
Since
some
states
already
had
such
a
guarantee
(i.e.
France),
the
guarantee
was
necessary
so
that
such states
would not
be
placed at
an
economic
disadvantage.
As
originally
envisaged,
human
rights
were
to
be
protected
by
the
individual
member
states
through
their respective
national
constitutions
and
laws;
9
indeed
each
of
the
original
members
of
the
European
Union
had
strong
rights protections
in
their
national
Constitution
or
national
law.
In
addition
each
of
the
member
states
were
also party
to the European
Convention
for
the
Protection
of
Human
Rights and Fundamental
Freedoms
and
rights
would
be
protected
through
the Strasbourg
process."
However,
when
the
European
Court
of
Justice
("ECJ")
announced
the
doctrine
of
supremacy
of
community
law
over
national
legislation
in
1964,"
the
doctrine
was
resisted
by
some states
that
had strong
human
rights
provisions
in
their
national
constitutions.
These
states
argued that
as
long
as
the
Community
lacked
specific
human
rights
guarantees,
Community
legislation
must
be
viewed
through
the
lens
of
national
constitutional
guarantees.
In
response,
the
Euro-
pean
Court
of
Justice increasingly
stated
that the
Union
would be guided
by
constitutional
traditions
of
the
member
states
and
by
the
provisions
of
European
Convention
on
Human
Rights
and
Fundamental
Freedoms.
2
In
addition,
subsequent
treaties,
primarily
designed
to
strengthen
a
single
internal
market
and
foster monetary
integration, acknowledged
the
goal
of
promoting
demo-
cracy on
the
basis
of
fundamental
rights.
Although
the
European
Court
of
Justice early
recognized
human
rights
as
a
fundamental
aspect
of
community
law,
its
approach
to
human
rights
lacked
a
coherent
policy.
For example,
although
it
ruled
that
the
content
of
human
rights
protections
derived from the
constitutional
traditions
of
member
states
and
later
8.
ROME
TREATY
art.
141.
9.
Case
29/69,
Stauder
v.
City
of
Ulm.,
1969
E.C.R.
419, 427, C.M.L.R.
112(1970).
10.
Convention
for
the Protection
of
Human
Rights
and
Fundamental
Freedoms
signed
at
Rome,
Nov.
4,
1950,
213
U.N.T.S.
222.
See
also
Peter
Leuprecht,
Innovations
in
the
European
System
of
Human
Rights
Protection:
Is
Enlargement
Compatible
with
Reinforcement?,
8
TRANSNAT'L
L.
&
CONTEMP.
PROBS.
313 (1998).
The
European
Court
of
Human
Rights
sits
in
Strasbourg,
and
individuals,
as
well
as
Member
States,
may take
complaints
of
human rights
violations
directly before
the court.
Id.
at
316.
Jurisdiction
over
Member
States
is
compulsory.
Id.
at
326.
All
Member
States
of
the
EU
and
most potential
members,
such
as
Russia
and
Macedonia,
have
ratified the
Convention.
Id.
at
327.
The European Court
of
Human Rights
is
separate and
apart
from
the
European
Court
of
Justice
(ECJ)
and
the
other
mechanisms
of
the
EU,
such
as
the Commission
and
the
Council.
Id.
at
316.
11.
Case 6/64,
Costa
v.
E.N.E.L.,
1964
E.C.R.
585,
C.M.L.R.
425
(1964).
12.
Jean-Marie
Henckaerts,
The
Protection
of
Human
Rights
in
the
European Union:
Overview
and
Bibliography,
22
INT'L
J.
LEGAL
INFo.
228,
231
(1994).
2005]
Defeis
474
ILSA
Journal
of
International
&
Comparative
Law
[Vol.
11:471
to
international
agreements
to
which
states are
party,
13
it
did not
initially
apply
the
provisions
of
the
European
Convention
on
Human
Rights
to
cases
before
it,
nor
did
it
refer
to the
decisions
of
the
European
Court
of
Human
Rights
in its
opinions.
Although
it
had
referred
to
decisions
of
the
European
Court
of
Human
Rights,
it
had
also
ruled that
without
an
amendment
to
the
EEC Treaty,
the
EU could
not
itself
become
a
party
to the
European
Convention
on
Human
Rights.1
4
The
Draft
Constitution
for
the
European
Union now
provides
that
the
Union
will
enjoy
legal
personality
and
is
mandated
to
accede
to
the
European
Convention
on
Fundamental
Rights
and
Freedom.
15
As
the Union
directives
and
regulations
emanating
from
Brussels
become
more
complex
and
comprehensive
in
scope,
so
the
momentum
for
a
charter
of
rights
for
the
European Union
has
developed.
In
July
of
2000,
the
Charter
of
Fundamental
Rights
of
the EU
was
proclaimed
at
the
Nice Summit.
16
However,
even
though
the
document
has
political
force,
it
is
not
legally
binding
on
member
states.
Under
pressure
from
the
Parliament
and
various
non-govern-
mental
organizations,
the impetus
to include
the
Charter
as
a
binding
document
gained
momentum.
One
representative
who
worked
on
the
new
European
con-
stitution
remarked,
"It
was
a
Bill
of
Rights
that
created
American
identity...
it
will
be
the
same
with
Europeans."
Thus,
consistent
with
its
mandate,
and
with
relatively
little
discussion
at
the
Convention
itself,
a
Charter
of
Funda-
mental
Rights
is
included
in
the Draft
Constitution
for
the
European
Union."'
7
The Charter
contains
seven
chapters:
1)
Dignity;
2)
Freedoms;
3)
Equality;
4)
Solidarity;
5)
Citizens' Rights;
6)
Justice;
7)
General
Provisions.
The
Equality
Chapter
prohibits
"any
discrimination
based
on
any
ground
such
as
sex,
race,
colour,
ethnic
or
social
origin,
genetic
features, language,
religion
13.
Case 4/73,
Nold
v.
Commission,
1974
E.C.R.
491,
2
C.M.L.R.
338
(1974).
14.
Opinion
2/94,
Re
Accession
of
the
Community
to
the
European
Convention
for
the
Protection
of
Human
Rights
and
Fundamental
Freedoms,
1996
E.C.R.
1-1759,2
C.M.L.R.
265,291
(1996).
See
also
Case
C-249/96,
Grant
v.
South-West
Trains
Ltd.,
1998
E.C.R.
1-621,
1
C.M.L.R.
993
(1998).
15.
DRAFT
TREATY
ESTABLISHING
CONSTIrTTON
art.
6.
See
also
Re
Accession
by
the
Community,
1996
E.C.R.
at
265
(discussing
that
the
ECJ ruled that
absent Amendment
to
the
treaty,
the
European
Union
lacked
competence
to
accede
to
the Convention).
16.
NORMAN,
supra
note
3,
at
19.
17.
Draft
Treaty
establishing
Constitution
art.
I1-1-52.
or
belief,
political
or
any
other opinion,
membership
of
a
national
minority,
property,
birth,
disability,
age
or
sexual orientation.""
The
Draft
Constitution's
Charter
of
Fundamental
Rights
of
the Union
incorporates
fifty
paragraphs
enumerating
extensive
rights
including
a
"right
to
life"
(with
the death
penalty
proscribed);
a
"right
to
respect"
for
"one's
physical
and
mental
integrity"
(including
a
ban
on the
sale
of
human
body
parts);
a
"right
to
respect"
for
"private
and
family
life";
a
"right
to
the
protection
of
personal
data";
a
"right
to
marry";
a
"right
to
conscientious
objection";
the "freedom
to
hold
opinions";
a
right
"to
form
and
join
trade
unions";
a
right
"to
have
access
to
vocational
and
continuing
training"
and
the
right
"to
receive
free
compulsory
education";
a
"right
to
engage
in
work";
a
right
for
children
to
"express
their
views
freely"
and
to
have
those
views
"taken into
consideration";
"rights
of
the
elderly
to
lead
a
life
of
dignity
and
independence";
a
"right
of
persons
with
disabilities
to
benefit
from
measures
designed
to
ensure
their
independence";
the
"right
of
access
to
a
free
placement
service"
for
employment;
the
right
of
workers'
and
employers
to
take
"collective
action";
and
the
"right
to
paid
mater-
nity
leave
and
to
parental
leave."'
9
"Sexual
equality
is
to
be ensured
in
all
areas,
but
so
is
the
government's
ability
to
allow
'advantages
in
favor
of
the
under-
represented
sex.'
2
0
Although
a
few
countries,
including
France,
Germany,
Denmark
and
Sweden,
have
accepted
the
Charter
of
Fundamental
Rights,
the
document
is
not
without
controversy.
Some
member
states
have been
very
vocal
with
their
apprehension.
For
example,
initially
Great
Britain
was
reluctant
to
accept
the
Charter
as
an
integral
part
of
the
Constitution
in
part because
it
might
be
used
to
overturn
recently enacted
labor legislation.
2
Great
Britain
then
proposed
that
the
Charter
not
be
a
legally
binding
document
but
a
declaration
of
the rights
of
European
citizens.
22
However,
the U.K.
ultimately
accepted
incorporation
of
the
Charter
with the
additional
assurances
23
that
its
provisions
would
apply
to
member
states
only
when
they
are
implementing
Union
law.
Further,
in
a
bow
to state
autonomy,
the
Charter
is
to
be
interpreted
consistent
with
constitutional
provisions
of
member
states.
In
addition,
at
the
meeting
of
member
states
in
2004,
the
U.K.
succeeded
in
having
a new
paragraph
inserted
into
the
text
18.
Id.
at art.
-21.
19.
Id.
arts.
1-2-1-52;
see
also
Edward Rothstein,
Europe's
Constitution:
All
Hail
the
Bureaucracy,
N.Y.
TIMES,
July
5,
2003,
at
B9.
20.
See
Rothstein,
supra
note
19.
21.
Press
Release,
Scottish
Parliament,
European
Committee Questions
'Diluted'
EU
Charter
of
Fundamental
Rights
(Feb.
7,
2001),
available
at
http://www.scottish.partiament.uk/nmCentre/news/news-
comm-01/ceu0l
-00
.htm.
22.
Id.
23.
NORMAN,
supra
note
3,
at
89.
2005]
Defeis