Draft EU Charter of fundamental rights stirs controversy

The preliminary draft EU Charter of fundamental rights, which sets out a variety of social, economic, political and civil rights, was published on 28 July 2000 to a mixed reception. For example, the European Trade Union Confederation is disappointed, owing to the perceived lack of clarity over economic and social rights and British employers believe that the draft Charter is "totally unacceptable". Meanwhile, the European Women's Lobby believes that the draft uses sexist language and ignores the concept of gender equality as a basic right.

A preliminary draft Charter of fundamental rights of the European Union was published on 28 July 2000 after eight months of deliberations. The publication of a preliminary draft is the penultimate 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 preliminary draft was originally due to be presented and discussed at the Feira European Council in June 2000 (EU0007258N). However, this was not possible and instead, it was decided that a preliminary draft would be published at the end of July and that, following discussion regarding this draft, a final draft should be presented to the European Council in advance of its meeting under the French Presidency in Biarritz in October 2000.

Background

The idea of drawing up an EU Charter of fundamental rights was discussed at the Cologne European Council in June 1999 (EU9906180N). This followed the publication of a European Commission report in February 1999, entitled Affirming fundamental rights in the European Union. Time to act.

The Tampere European Council, held in October 1999, decided to establish a body, known as the Convention, to draw up the Charter (EU9910202F) and meetings of the Convention have been taking place since December 1999.

The Convention has heard submissions from a variety of social partner and non-governmental organisations (NGO s), including the European Trade Union Confederation (ETUC) and the Union of Industrial and Employers' Confederations of Europe (UNICE), and the proposed Charter has been also debated in the European Parliament (EU0004242F).

Proposed contents

Following on from the discussions that have been taking place, in July the praesidium of the Convention published a preliminary draft Charter that contains 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 rights directly relevant to EIRO appear in Chapters 3 and 4.

Equality measures

Chapter 3 covers Articles 20 to 24 and enshrines rights relating to:

• equality between men and women before the law (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 covers Articles 25 to 36 and upholds employment and social security rights relating to:

• workers' information and consultation rights. According to the draft Charter, workers and their representatives must 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 the draft Charter, employers and workers have 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 draft Charter, 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 draft Charter, workers will have the right to protection from dismissal owing to pregnancy and have 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).

Controversial social rights

The European Trade Union Confederation (ETUC) reacted with a "feeling of disappointment" with regard to the social rights included in the draft Charter. According to the 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 that he is concerned that the lack of clear recognition of such rights will place a limit on trade union activities at European level at a time when the participation of trade unions is being called for to help implement the employment and economic strategy decided at the March 2000 Lisbon European Council (EU0004241F).

Mr Gabaglio stated that unless there are substantial changes in the preliminary draft Charter, ETUC would not be able to support it. He has 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".

The International Federation of Human Rights (FIDH) has backed ETUC's stance. It has called on the Convention to strengthen the economic and social rights contained in the preliminary draft. FIDH also regrets the omission of a right for workers' representatives to be protected within the company against prejudicial acts and the lack of a right to facilities to help worker representatives carry out their duties. It furthermore believes that a specific right to protection against harassment at the workplace should be included in the draft. FIDH has called on Member States to back a binding Charter which the European Court of Justice (ECJ) could enforce.

Meanwhile, the Confederation of British Industry (CBI) has voiced its concerns regarding the draft Charter and has restated its opposition to the project, saying that the drawing up of an EU Charter of fundamental rights is "totally unacceptable". It challenges the inclusion of economic and social rights within the draft Charter and is particularly critical of Article 25, which relates to workers' information and consultation rights. CBI believes that the proposed workers' right to information and consultation "in good time on matter which concern them" is too broad and vague and would be open to too wide an interpretation from the ECJ.

Sexist draft Charter

The European Women's Lobby (EWL) has criticised the preliminary draft because, in its view, it "does not introduce the concept of gender equality as a basic, unconditional and fundamental principle of the Union". EWL also states that sexist language has been used in certain translated versions of the text. For example, EWL claims that the French version of the draft Charter employs only the masculine gender when referring to terms such as "workers and their representatives".

The 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 praesidium has once again failed to integrate women's perspective into the Charter."

Next steps

The process for drawing up the Charter is now entering its final stages. Members of the Convention have been asked to forward their views on this preliminary draft to the Convention chair, Roman Herzog, before the next meeting of the Convention on 11-13 September 2000. Separate meetings will take place to enable different groupings of the Convention - representing governments, national parliaments and the European Parliament - to air their concerns.

Thus the preliminary draft could be subject to revision before it can be finally adopted by the Convention – final adoption of the draft Charter by the Convention is due to take place at a meeting on 25-26 September. After this, it will be forwarded to the European Council for discussion at its meeting in October.

Commentary

The scope and the proposed contents of the Charter are now clear. Although certain organisations may be disappointed at the perceived lack of clarity in the area of social and economic rights, the publication of a draft Charter must surely be seen as a step forward in clarifying the basic rights of all EU citizens.

Given that this is a preliminary draft, there is potentially still time for the concerns of organisations such as ETUC, FIDH, EWL and CBI to be incorporated into a final draft. Last-minute lobbying of the members of the Convention may be undertaken in an attempt to adapt the wording in the draft before it is submitted to the Biarritz European Council in October.

However, while the debate surrounding the contents of the draft Charter is preoccupying NGOs at the moment, the question of the legal status of the proposed Charter remains undecided. Over the past eight months, a debate has been gaining momentum on the issue of whether or not the Charter should be accorded Treaty basis when the EU Treaty is revised, therefore making the Charter legally binding on all Member States. The Treaty is due to be revised at the climax of the current Intergovernmental Conference on institutional reforms (EU0002229F) at the Nice European Council in December 2000. Support for enshrining the Charter in Community law has been expressed by the European Commission, the European Parliament, the Portuguese Presidency of the first half of 2000 and NGOs.

However, it is not clear whether the European Council will agree to this approach and this will be subject to a unanimous vote. It might prefer the Charter to take the form of a solemn declaration, which would not be legally binding and therefore less controversial. This dilemma remains to be resolved but now that the proposed contents of the Charter have been made public it is inevitable that the focus of the debate will shift in the coming weeks to the thorny question of legal status (Neil Bentley, IRS).