The European Union and
the Council of Europe on the Issue of
Human Rights: Twins Separated at Birth?
Gerard Quinn*
Originally an economic union to further market inte-
gration, the European Union has gradually and paradoxi-
cally become a major force in human rights both within
and outside Europe. The author surveys this development,
from early inchoate principles in treaties up to the recent
Charter of Fundamental Rights of the European Union. He
argues that the issue of human rights is closely linked to the
still-controversial goal of European political integration,
and its further development depends on the future direction
of that integration.
After the Second World War, different yet comple-
mentary approaches to European reconstruction emerged,
exemplified by the Council of Europe on the one hand and
the European Union on the other. The former’s interstate
approach augmented existing nation-states on the basis of
shared ideals, while the latter’s supranational approach
used a common economic space to erode national bounda-
ries. As the Union’s vision of political integration was
gradually realized it drew closer to the human rights prin-
ciples championed by the Council. During the 1990s this
latent convergence became visible, and human rights pro-
vided a core instrument for re-legitimating the economic
project by increasing the Union’s relevance in ordinary
people’s lives.
The author concludes by considering the future of the
human rights agenda in Europe. Its challenges and chang-
ing nature necessitate redefining the relationship between
Council and Union towards greater co-operation. These in-
stitutions are, in a sense, twin organizations only now be-
ginning to come to terms with each other.
Alors qu’elle constituait h ses diuts tnz union &6o-
issus de traits jecqu’h
nomique destinde h promouvoir rintdgration d-s march~s,
l’Union europeme est gr,.uelleamt –
et pardaale-
ment –
devenue un acteur important dan I domain: dan
droits de l’homme, autan en Europe qua dams d’autres r&
gions. L’auteur fait dtat d
principes gnaumr.
la rdceata
Charte des droits fondamrnLr de I’Unian europeme.
Selon lui, la question des droits d Momi=m
t dtroitumnt
fide i l’objectif encore controversd d’utr intr ioa politi-
que europlenne et, en coas6quence. sea progLa futurs d-
pendent de l’orientation qtu prendra cwe inidgration.
t ce dvolution, da- praem
La crEation du Conseil de I’Europ, d’um pat et d
l’Union europ nne, d’autr part, illustra lIs approchan dif-
f&entes quoiqtr comp!&nentairs comcrnant intrgration
europ~enn- adopt6s apr s la Sconda gume mondialv.
Alors qua Ia premie-e –
un approchm in=ratiq,. –
renfor~ait les dtats-nations en confornitd avc dan id-caux
communs, Ia second –
une- approch supranationaa –
utilisait l’espace dconomique commun pour c-tomper les
frontire ent les eats mm*rm. Le suaZ- du pjro .
d’intdgration politique rapprocha graduzallaman celui-ci
des prineipas relatifs aux droits de I’homa, dont I conail
se faisait le promoteur. Cette convergence latente devint vi-
sible dans les ann(es 1990, et les droits de I’homma foaumi-
rent alors un instrument de base pour lMgitimnzr & nouveau
le projet d’intgration 6conomiqua en d&montrant la pati-
nence de l’Union pour la vie quotidicam dan citoyens.
L’autar conelut en abordant I’av-nir da proran umr
europan des droits de I’haomm. Las nouvan.x dfis t a
nature changeante de cc promramm
cessitrnt unr reudi-
nition de Ia relation entre le Consail at I’Unon afin dr
p
e=tr une mcilleura coophration. Ces incsitution qui
sont en un sans jumells n: font qu commera r a dl’h –
lopper una vritable relation.
“Professor of Law and incoming Dean of the Faculty of Law at the National University of Ireland,
Galway; Member of the Human Rights Commission of Ireland,
McGill Law Journal 2001
Revue de droit de McGill 2001
To be cited as: (2001) 46 McGill LJ. 849
Mode de r~fdrence: (2001) 46 R.D. McGill 849
MCGILL LAW JOURNAL / REVUE DE DROIT DE MCGILL
[Vol. 46
Introduction
1. Backdrop: The “Problem” of the “Nation-State” and the “Solution” of
Competing Models of European Integration
A. The Nation-State in Europe
B. Augmenting the Nation-State: The Council of Europe and the Human
Rights Agenda
C. Eroding the Lines between Nation-States in Limited Sectors: The EU
and the Market Integration Agenda
I1. The Slow Rise of Human Rights Doctrine in EU Law
A. Early Treaty Articles of Human Rights Resonance
B. The Emergence of General Principles of Community Law in ECJ
Jurisprudence
Ill. Options for Enhancing the Human Rights Dimension
IV. The 1990s-The Human Rights Issue to the Fore in the EU
A. Background: The 1980s Market-Building Agenda
B. Preparing the Ground: Three “ComitW des Sages” Reports on Human
Rights
C. Report of the Westendorp Reflection Group (1996)
V. Human Rights and Treaty Changes at Amsterdam (1997)
VI. The Charter of Fundamental Rights (2000)
Conclusion
2001]
G. QUINN- HUMAN RIGHTS AND THE EU
The Union is not and does not want to be a super-state. 1et it is far more
than a market. It is a unique design based on conunon values. We should
strengthen those values …’
Introduction
Unlike the Council of Europe (“Council”), the European Economic Community
(“EEC”) was not generally known in the past as a human rights organization and cer-
tainly did not see itself as such. Instead, it saw itself as pioneering an historically
unique experiment of cross-border economic integration-an experiment that was not
obviously or visibly based on high principles such as human rights.
All of this is changing.- In the short space of a decade the European Union (“EU”,
“Union”)-since 1992 the successor to the EEC-has become the single largest fun-
der of human rights activities throughout the world.’ Successive waves of treaty revi-
sion have led to the accretion of human rights competences at the level of the Union.
The EU presents a common front at major international forums dealing with human
rights issues, including the United Nations Commission on Human Rights: It has a
near-global diplomatic reach which, together with its trading prowess on the world
stage, enables it to flex its diplomatic and economic muscle to leverage change. Hu-
man rights issues now figure prominently in the external relations of the EU and in its
development co-operation programs. Since 1999 the EU has begun publishing an An-
nual Human Rights Report and organizes a large discussion forum with considerable
NGO involvement around its publication each year’ The latest and highly visible
‘Report of the Reflection Group on the Intergovernmental Conference, SN 520195 (1996) at M.
2 The leading textbook in the field is P. Alston with M. Bustelo & J. Heenan, eds., The EU and Hi-
man Rights (Oxfordi Oxford University Press, 1999). Most textbooks in the field date from the early
1990s onwards: A. Cassese, A. Clapham & J. Weiler, Human Rights and the European Communio, 3
vols. (Baden-Baden: Nomos, 1991); N. Neuwahl & A. Roasas, eds., The European Union and Hu-
man Rights (The Hague: Martinus Nijhoff, 1995); His Honour Judge A. Geddes, Protection of Indi-
vidual Rights under EC Lmv (London: Butterwortbs, 1995); 1A. Colvin, E. Guild & A. Owers, eds.,
Judging the European Union: Judicial Accountability and Hiuman Rights (London: JUSTICE, 1996);
L. Betten & N. Grief, EULmv and Hwnan Rights (London: Longman, 1998).
3 For a review of the legal basis for these funds and how they were disbursed by the Commission,
see Report from the Coimnission on the Implenentation of Measures Intended to Promote Obser-
vance of Hwnan Rights and Democratic Principles in Erternal Relations for 1996-1999,
COM(2000)726 final (Brussels, 14 November 2000).
‘ See Part IV, below. See also J.H.H. Weiler & S.C. Fries, “A Human Rights Policy for the European
Community and Union: The Question of Competences” in Alston, supra note 2, 147.
‘ But see A. Clapham, “Where Is the EU’s Human Rights Common Foreign Policy, and How Is It
Manifested in International Fora?” in Alston, ibid., 627.
6 EU Annual Report on Human Rights (European Initiative for Democracy and Human Rights,
1999), online: Europa (The European Union On-line)
and Commission, Paris, December 2000), online: Europa (The European Union On-line)
of a Discussion Forum organized around the First Report of 1999 have also been published. See
Conference Report-EU Human Rights Discussion Fonm (30 November, 1 December 1999), online:
Euro-Mediterranean Human Rights Network
’18 December 2000, [2000] OJ. C. 364/1 [hereinafter Charter].
On the dramatic events of the 1990s that led to the spectacular and controversial rise in member-
ship of the Council of Europe, see D. Huber, A Decade Which Made History: The Council of Europe
1989-1999 (Strasbourg: Council of Europe, 1999).
2001]
G. QUINN- HUMAN RIGHTS AND THE EU
This theme of the place of the nation-state reverberates through the decades since
1945. Even now Europe seems to have the greatest of difficulties in addressing the
core question of whether the modem idea of Europe is larger than the nation-state or
whether it is built on-and ultimately bounded by-the nation-state. This seemingly
theoretical issue is not merely interesting in its own right, but also holds the key to
understanding the place of human rights in the evolving EU legal order. To many the
growth of human rights in EU law signifies a trend towards greater European federal-
ism-a trend that can be applauded or deplored depending of course on the political
view one takes of the nature of European integration.
I then recount the various attempts through the decades to enhance the visibility
and role of human rights in the EU legal order. As is well known, the original EEC
was grounded on a particular model of integration (“functionalist integration”) that
did not obviously rest on principles of human rights? Nevertheless, it was equally
plain that the ultimate–if frustratingly unarticulated-object of functionalist integra-
tion was quintessentially political in character, and therefore cohered very well indeed
with high principles of human rights. To a certain extent, those who have consistently
argued for greater prominence for human rights in EU law and policy have tended to fo-
cus on this end goal of political integration–an end goal that is fatally incomplete with-
out human rights. Those who have argued against greater provision for human rights in
the EU have often done so on the basis that it fits only too well with a proto-federation.
Last, I take a look at the process for reform underway within the EU. Perhaps
surprisingly, most of the practical steps taken towards further provision for human
rights in the early days were taken by the European Court of Justice (“ECJ”). The
movement for greater human rights visibility now seems irresistible, and has been de-
scribed as a train that has left the station but with no obvious destination.” I wvill con-
clude by reconsidering the complementarity of the Council of Europe and the Euro-
pean Union generally and specifically in the field of human rights.
I. Backdrop: The “Problem” of the “Nation-State” and the
“Solution” of Competing Models of European Integration
To understand the “fit’ of human rights with EU law it is first necessary to reflect
on the nature of European integration. This process is both reactive and proactive. It is
reactive in the sense that integration reacts against the excesses of the nation-state-
excesses that were perceived to contribute to the slide towards war. It is proactive in
the sense that it conjures up an image of a Europe that can transcend its parts.
‘ See generally B. Rosamond, Theories of European Integration (New YorL: St Martin’s Press,
2000) at 31ff.
‘0 P Alston, Address (EU Annual Human Rights Discussion Forum, De-cember 1999).
854
MCGILL LAW JOURNAL / REVUE DE DROIT DE MCGILL
[Vol. 46
A. The Nation-State in Europe
To start our analysis with the nation-state may seem strange. It is important to re-
call, however, that there was a real feeling in Europe in the late 1940s that Europe
needed to become once again greater than the sum of its parts. Much of the blame for
the catastrophe of the Second World War was laid at the foot of the traditional nation-
state.
Indeed, in the context of European history the state itself is a relatively recent le-
gal ideal, emerging from the implosion of the feudal legal order throughout Europe
from the seventeenth century onwards.” Its chief characteristic is that, unlike the
situation under feudalism, power or sovereignty was reconceptualized as focussed and
concentrated in one core entity within the polity. This concentration of power tempted
potentates who were formerly the notional rulers of their fiefdoms to arrogate power
and to wield it absolutely. The great constitutional struggles against this absolutism
led eventually to the liberal (and latterly the liberal-democratic) revolution. Rather
than seeking to put the clock back and to diffuse power among the dispersed feudal
rmnkings, the liberal revolution accepted the concentration of power (and sovereignty)
but sought instead to legitimate it on a new political theory-one that rested at least
ostensibly on the rights and interests of the person. A cordon sanitaire between the
person and the state emerged in the distinction between the public and the private. It is
important to understand that this buffer sanitized the use of public power and also cre-
ated space for civil societies to emerge and for market economies to consolidate.
By way of contrast, concepts of the nation are ancient. It is possible to think of
nations as culturally, ethnically, or linguistically distinct.'” Nations were scattered
across Europe before and during the feudal period. Potentates generally ruled over
parts of several nations and could often be “foreign” themselves. In other words, there
was no automatic assumption that the political community should congeal around a
single homogeneous nation. It was the commingling of the state with the nation that
in time led to the notion that the best or most enduring political community should be
one that is defined ethnically. The high point of the European nation-state was reached
during the nineteenth century.
The nation-state itself was felt in the late 1940s to be the core problem of Europe.
Why? First, it explicitly restricted membership of the political community along the
lines of ethnicity. It is, of course, never possible to carve out discrete political com-
munities along purely ethnic lines. The inevitable presence of presumptively disloyal
” See C. Tilly, “Reflections on the History of European State-Making” in C. Tilly, ed., The Forma-
tion of National States in Western Europe (Princeton, NJ.: Princeton University Press, 1975) 3.
,2 See J.A. Armstrong, Nations before Nationalism (Chapel Hill, N.C.: The University of North
Carolina Press, 1982). On cultural nationalism see R.R. Ergang, Herder and the Foundations of Ger-
man Nationalism (New York: Columbia University Press, 1931) at 85-90, 115ff.
2001]
G. QUINN- HUMAN RIGHTS AND THE EU
national minorities was itself felt to be a major contributing factor to the slide towards
war. The problem was a theory of state that did not make space for the presence of
difference. Second, the burgeoning markets that the nation-state cultivated and pro-
tected were deflected away by protectionist measures towards Africa and the ex-
ploitative process of colonization. This only meant that conflict took place at one geo-
graphical remove from European soil, and it was only a matter of time before it re-
turned to Europe. A better form was needed to channel economic activity for the
benefit of all. Third, within the nation-states themselves the constant threat (or per-
ceived threat) of outsiders lent credence to arguments that authoritarian forms of gov-
ernment were “temporarily” needed to maintain a high state of readiness. Absolute
notions of sovereignty and associated notions of non-interference in internal matters
created a barrier that concealed iniquity and worse from the outside world. The whole
system appeared permanently set on a bloody collision course.
It was plain that something had to be done-and not just because President
Truman and Secretary of State Marshall, to their credit, demanded some gesture of
reconciliation and unity as a condition for Marshall aid.” Europe had travelled a long
way from the common citizenship of the Roman Republic and even from the Respub-
lica Christiana. Europe needed to retrieve that which united it and not what divided it.
Thinkers and writers of the time were mindful that Europe had a more civilized past
and that a better future could be imagined. Altiero Spinelli and Ernesto Rossi issued
their famous Ventotene Manifesto in 1941, which asserted, among other things, that
the principle of non-intervention in the internal affairs of nation-states had only led to
a (false) freedom for each population to choose its own form of despotic government
“as if the constitution of each of the single states were not a question of vital interest
for all other European nations.””
These writers caught the imagination of political giants. Winston Churchill added
immense impetus to the European movement by calling explicitly for a “United States
of Europe” in a speech at the University of Zurich in 1946. He asked rhetorically
“why should there not be a European Group which could give a sense of enlarged pa-
triotism and common citizenship” and which could take its rightful place in the world.
He spoke of the establishment of a Council of Europe as a “first step”.”
It is important to realize that two radically different paths towards European inte-
gration were pursued from the late 1940s. One path, exemplified by the Council of
Europe, sought to avoid the excesses of nation-states and the tendency towards self-
“See generally D. McCullough, Trunum (New York Simon & Schuster, 1992) at 562-65.
A. Spinelli & E. Rossi, “The Ventotene Manifesto” in B.F. Nelson & A.C.-G. Stubb, The Euro-
pean Union: Readings on the Theory and Practice of European Integration, 2d ed. (Boulder, Col.:
Lynne Rienner Publishers, 1998) 3 at 5.
5W.S. Churchill, ‘The Tragedy of Europe” in ibid., 7 at 9.
856
MCGILL LAW JOURNAL / REVUE DE DROITDE MCGILL
[Vol. 46
destruction. It did so by placing a floor beneath which they would not be allowed to
fall. This floor was composed of common European standards of human rights. The
other path, pursued by the EEC, represented an altogether different model of integra-
tion-one that focussed on taming and harnessing economic forces. The unity it
sought was a unity of mutually interlocking self-interest-not a unity of shared values.
B. Augmenting the Nation-State: The Council of Europe and the
Human Rights Agenda
The “first step” set out by Churchill was taken by the establishment of the Coun-
cil of Europe in 1949.” In purely formal terms the Council of Europe is a classical in-
terstate organization.” It offers an interstate forum within which to conclude conven-
tions and it can also adopt softer instruments such as recommendations to guide the
policies of its Member States.
The Council of Europe is different, however, from more classical interstate or-
ganizations in that it exists not merely to provide a forum for its Member States, but
also to pursue a mission of its own with respect to those states. This mission is predi-
cated on the theory first announced by Spinelli that the internal constitutional ar-
rangements of its Member States are not merely of internal concern but also implicate
all of Europe. Although it accepts existing nation-states that were built on theories of
ethnicity, it seeks to identify and “enforce” a new pan-European ethics-one based on
human rights.” That is, it insists on the notion of a common European public moral-
ity-one that all peoples can subscribe to regardless of their ethnicity.
At least a dozen or so conventions out of the current total of 178 concluded by the
Council of Europe deal with a variety of human rights issues. The most famous of
these is the Convention for the Protection of Human Rights and Fundamental Free-
doms.” The debates surrounding the drafting of the ECHR are revealing. It was plain
‘6 Statute of the Council of Europe, 5 May 1949, 87 U.N.T.S. 103.
See generally V. Hurd, The Council of Europe: Design for a United States of Europe (New York:
Manhattan Publishing, 1958); A.H. Robertson, The Council of Europe: Its Structure, Ftmctions and
Achievements (London: Stevens and Sons, 1961).
” The Statute of the Council of Europe, supra note 16, art. 1(a) [emphasis added], states the statute’s
core objective as follows:
The aim of the Council of Europe is to achieve a greater unity between its Members for
the purpose of safeguarding and realizing the ideals and principles which are their
common heritage and facilitating their economic and social progress.
‘9 4 November 1950,213 U.N.T.S. 221, Eur. T.S. 5 [hereinafter ECHR]. For works on the ECHR see
generally RG. Jacobs & R.C.A. White, The European Convention on Human Rights, 2d ed. (Oxford:
Clarendon Press, 1996); P. van Dijk & GJ.H. van Hoof, Theory and Practice of the European Con-
vention on Human Rights (The Hague: Kiuwer Law International, 1998); C.A. Gearty, ed., European
Civil Liberties and the European Convention on Human Rights: A Comparative Study (The Hague:
2001]
G. QUINN- HUMAN RIGHTS AND THE EU
857
that the intention of the framers was to protect certain core rights that honoured indi-
vidual dignity and autonomy. But it was equally plain that a more “instrumental” in-
tention was at play-namely, that by protecting such rights the ECHR mechanism
could also lay the foundations for a particular kind of political community founded on
liberal-democratic principles? The faith behind this form of instrumentalism was (and
is) that by preserving a particular form of governance, human rights will be spontane-
ously honoured. Hence the much vaunted (but often overstated) symbiotic relation-
ship between democracy and human rights. Hence also the obvious connection be-
tween international guarantees of human rights and the maintenance of peace between
nations.
The European Court of Human Rights in Strasbourg has jurisdiction over the in-
terpretation of the ECHR and can hold Member States in violation. The Court (along
with other treaty-monitoring mechanisms within the Council of Europe) provides a
mechanism for peering behind the lines that divide Europe’s nation-states, and it en-
ables a detached and independent entity to arbitrate disputes within Member States
(and exceptionally between them). But the important point is that this mechanism
leaves intact those lines between nation-states. Member States are free to ratify Coun-
cil of Europe conventions or not, as the case may be. They can make derogations
within reason from obligations arising under Council of Europe conventions. In ex-
tremis, a Member State may withdraw from the Council of Europe if it feels unable or
unwilling to comply with rulings from the European Court of Human Rights. All of
this underscores the interstate and voluntaristic nature of the Council of Europe!’
C. Eroding the Lines between Nation-States in Limited Sectors: The
EU and the Market Integration Agenda
The model of integration pursued by the EEC/EU is strikingly different.
Whereas the Council of Europe leaves the lines between nation-states intact, the
whole purpose of the EEC/EU is to erode those lines. This process of erosion is not,
Martinus Nijhoff, 1997); DJ. Harris, IV. O’Boyle & C. WVarbrick, Law of the European Comention
on Hwnan Rights (London: Butterworths, 1995).
‘ See the following revealing extracts from the remarks of Mr. Ungoed-Thomas: “What we are
concerned with is not every case of injustice which happens in a particular country, but with the ques-
tion whether a country is ceasing to be democratic”; “Have those freedoms, give effect to those free-
donas, and you will ensure that each State remains democratic!” See Council of Europe, Collected
Edition of the “Travaux Prriaratoires” of the European Com’ention on Human Rights, vol. 2 (The
Hague: Martinus Nijhoff, 1975) at 166, 60.
” This should not be overstated, since the political cost of remaining recalcitrant can be prohibitive.
In this respect the mobilization of shame and the use of “soft power” can be just as effective as the use
of direct legal sanction.
” See generally R Craig & G. de Bdrca, eds., The Evolution of EU Law (Oxford: Oxford University
Press, 1999).
MCGILL LAW JOURNAL / REVUE DE DROIT DE MCGILL
[Vol. 46
of course, wholesale, or at least it did not start out as wholesale. The founders of the
EU decided to stay away from high politics and to concentrate instead on the integra-
tion of limited but important cross-border economic sectors. The theory rests on the
depressing but successful insight that people (and nations) co-operate best when they
calculate such co-operation to be in their own self-interest. In comparative terms, it is
at least worthy of note that the main impulse behind the movement away from a con-
federate to a federal constitution in the United States was the problem of regulating
interstate commerce.’ In the U.S. it was problems of interstate commerce that led to
moves for greater political unity. In the EEC it was the need for greater political unity
that led to an initial focus on integrating interstate commerce.
In a speech in May 1950, Robert Schuman, foreign minister of France, put for-
ward a profoundly influential thesis. He asserted that “Europe will not be made all at
once, or according to a single plan. It will be built through concrete achievements
which first create a de facto solidarity”‘2″ A first start was made in the coal and steel
industry.’ This sector was symbolically important because it showed a commitment
on the part of nation-states to place the means of waging war beyond their own exclu-
sive control. To ensure that the sector would continue to be animated by common
goals rather than national interests, a novel supranational institution was inaugu-
rated-the High Authority for Coal and Steel. This reveals in turn a commitment to
the notion of an identifiable European public interest separable from the interests of
the nation-states and that can best be secured by supranational institutions. To this day
the European Commission embodies that supranational faith and ideal.”
The European Coal & Steel Community (“ECSC”) experiment was successful.
Jean Monnet, who was a French civil servant and diplomat, persuaded Robert Schu-
man to take the next logical step and to propose a new entity that was to become the
EEC. In a famous speech Monnet asserted that
[t]he Europeans had to overcome the mistrust born of centuries of feuds and
wars. The governments and peoples of Europe still thought in the old terms of
victors and vanquished. Yet, if a basis for peace in the world was to be estab-
‘ For a review of the debates that led to the convention in Philadelphia, see generally B.J. Hendrick,
Bulwark of the Republic: A Biography of the Constitution (Boston: Little, Brown & Co., 1937). “The
cradle of the American Constitution was … the home of Washington, and the chief impelling purpose
that led to this new form of government was the necessity of regulating commerce” (ibid. at 11). For
further comparative perspectives on federalism, see M. Tushnett, ed., Comparative Constitutional
Federalism: Europe and America (New York: Greenwood Press, 1990).
24R. Schuman, “The Schuman Declaration” in Nelson & Stubb, supra note 14, 13 at 14.
Treaty instituting the European Coal and Steel Community, 18 April 1951, 261 U.N.T.S. 140
(Treaty of Paris).
See generally M. Cini, The European Commission: Leadership, Organisation and Culture in the
EUAdministration (Manchester: Manchester University Press, 1996) at 13ff.
2001]
G. QUINN- HUMAN RIGHTS AND THE EU
859
lished, these notions had to be eliminated. Here again, one had to go beyond
the nation and the conception of national interest as an end in itself.”
The Treaty of Rome’ established the EEC. The main aim of the EEC was to en-
sure economic and social progress “by common action in eliminating the barriers
which divide Europe:” More and more sectors of the national economies were hence-
forth to be integrated into a “common market”. The Euratom treaty was also signed in
1957′ 0 which with the ECSC and EEC made three “communities” in all. In 1965 a
merger treaty-the Treaty establishing a single cotmcil and a single commission of
the European coinunzities”-merged the High Authorities of the three communities.
Market integration in the EEC was to be advanced by conferring “four freedoms”:
free movement of workers’
the right of establishment,” free movement of capital,’
and the right to provide services.” It is of course possible to view the four freedoms
listed above from the perspective of human rights theory and doctrine. But the reality
is that they were granted because of their purely instrumental value in helping to forge
a new common market. Hence an accident of history tends to have the effect of tele-
scoping principles of more general import. The Community acts through Regulations
that are directly effective and Directives which may have direct legal effect.’
Through the project of constructing a common market, it was felt (or hoped) that
the EEC model would lead to more avowedly political integration in two ways. First,
any common market requires common efforts at maintaining and stabilizing it. Purely
national rules would not do, since there was always the standing danger that such laws
would reflect purely national interests and not a common European public interest.
Second, all markets have impacts that require regulation. Effective regulation inevita-
bly entails a common approach-something that can only be achieved through more
political integration. Hence it was hoped at least in some quarters that there would be
2 j Monnet, “A Ferment of Change” in Nelson & Stubb, supra note 14, 19 at 21-22 (emphasis
added].
Treaty establishing the European Economic Canmunity, 25 March 1957, 298 U.N.T.S. 11 [here-
inafter EEC Treaty].
29lbd, Preamble.
” Treaty establishing the European Atomic Energy Comnunity, 25 March 1957, 298 U.N.T.S. 167.
3″8 April 1965, [1967] OJ. 152.
“Consolidated Version of the Treaty establishing the European Connunity, 10 November 1997,
[1997] OJ. C. 34013, 37 IL.M. 79, arts. 39-42 [hereinafter EC Treat,]; EEC Treat, supra note 28,
arts. 48-51. Subsequent references in connection with the EC Treaty to former article numbers refer to
the treaty prior to amendments effected by the Treaty of Ansterdam, infra note 73.
33 EC Treaty, ibid., arts. 43-48 (formerly arts. 52-58).
!Ibid, arts. 56-60 (formerly arts. 67-73).
“Ibid, arts. 49-55 (formerly arts. 59-66).
/Ibid, art. 249 (formerly art. 189).
MCGILL LAW JOURNAL / REVUE DE DROIT DE MCGILL
[Vol. 46
a natural spillover from the exigencies of economic integration into an unstoppable
dynamic for political integration.
Note the contrast with the Council of Europe. Unlike conventions and recom-
mendations, the legal tools of the EEC (Regulations, Directives) were designed and
intended to override national law (even national constitutional law) and therefore
erode the lines between nation-states. The veil of national sovereignty is not just
pierced but lifted. This was made palatable by applying this lifting of the veil only to
discrete areas of economic activity. But as the expected spillover effect began to mate-
rialize, the lifting of the veil became increasingly political, and therefore much more
problematic.
At a deep level, it could be said that human rights were always necessarily impli-
cated by the theory of functionalist integration. If one extrapolates from the economic
focus of the project, it is fairly plain that the ultimate form of political integration en-
visaged could sit well with principles that were common to the Member States, in-
cluding respect for human rights. Hence it could be argued-and often is-that the
Council of Europe and the European Union share the same ultimate goal of a Europe
at peace with itself and its neighbours.
Yet, crucially, the original treaties did not spell out this vision, and understandably
so, since these treaties focussed in the main on means (especially economic means)
rather than ends. This fixation on economic means (and the legal tools needed to ef-
fectuate them) rather than on grand political ends allowed those who held diametri-
cally opposed visions of the ultimate ends of European integration to sign up together
to the technocratic process of economic integration. In other words, the fixation on
economic means allowed those countries that viewed Europe as a transcendent ideal
and those countries that viewed Europe as founded on (and bounded by) the nation-
state to contribute equally to the economic experiment.
The argument between these competing visions of Europe provides the prism
through which human rights are viewed in an EU context. The argument for more
visible human rights provision in EU treaty law fits perfectly with the march towards
greater political integration and the movement towards a federal Europe. But herein
lies the problem. Precisely because of the neatness of the fit, many who favour a
Europe of the nations argue against more human rights provision because it would
entail ceding more sovereign power to the Institutions of the Union to pry (at least
potentially) into purely domestic affairs. Instead, they tend to argue for continued reli-
ance on Council of Europe mechanisms.
II. The Slow Rise of Human Rights Doctrine in EU Law
Despite the originally narrow economic focus of the EEC, a human rights dimen-
sion was gradually developed by the ECJ. Indeed, the original EEC treaty did contain
a few weak trace elements of a concern for human rights, although they were not
thought of as such at the time.
2001]
G. QUINN – HUMAN RIGHTS AND THE EU
A. Early Treaty Articles of Human Rights Resonance
Article 127 forbids discrimination on the basis of nationality. It was inserted to
ensure that a common market in labour could emerge. Although it is possible to think
of it in terms of non-discrimination on the grounds of nationality and ethnic origin, it
was not looked on thus. Article 141′ forbids discrimination on the basis of gender
with respect to equal pay for equal work. It was inserted to ensure that French social
standards would not be diluted by membership in the common market. Although this
could theoretically be put under the rubric of equality between the sexes, it was in-
spired more to preserve social advantage in France. Indeed, to this day there are many
who argue that “equal opportunities” is a term reserved exclusively for gender in EU
law and policy. That is more a result of history than logic.
The early focus on equality in the EC Treaty (or on instances of the application of
the equality idea) is interesting for two reasons. First, its mere presence inspired agi-
tation to broaden and deepen it to apply to other groups (e.g. persons with disabilities)
and in contexts outside the purely economic. Second, it supports the thesis that equal-
ity is not merely a civilizing factor worth having for itself, but is also a productive
factor in advanced market economies. Articles 136 to 145″ set out EC competences in
the field of social policy. It is important to bear in mind the reality that we are here
dealing with the social dimension of one peculiar kind of market-namely a cross-
border market-and not with the full plenitude of social policy as understood domes-
tically.0
B. The Emergence of General Principles of Community Law in ECJ
Jurisprudence
Notwithstanding the weak provision for human rights in the treaties, the ECJ felt
obliged to develop a rich jurisprudence in this field almost from the start. This juris-
prudence is important because it was eventually formalized in treaty law and because
it has always emboldened those who seek more human rights provision in the EU.
The key to this jurisprudence lies in a consideration of the exigencies of market
building. Building a common market requires common rules and institutions that are
sufficiently removed from the national scene to be capable of comprehending the
European public interest. The ECJ is the ultimate interpreter of the treaties.’ Perhaps
surprisingly, the treaties did not contain any assertion of the supremacy of Community
‘Iid (formerly art. 6).
“IbiW
(formerly art. 119).
!bid (formerly arts. 117-28).
, 0See generally T. Hervey, European Social Lnv and Policy (London: Longman, 1998).
, 1EC Treaty, supra note 32, art. 220 (formerly art. 164).
862
MCGILL LAW JOURNAL / REVUE DE DROIT DE MCGILL
[Vol. 46
law over national law. Yet the supremacy of Community law is vital in maintaining
the integrity of the market-building endeavour. If each nation-state were allowed to
define and implement Community law as it wished, then the standing danger would
arise that it might interpret such laws in a self-serving manner.
Hence the ECJ fashioned the notion of the supremacy of Community law,2 which
can take precedence over domestic constitutions as well as over positive domestic law.
At one level this is fully in keeping with Article 27 of the Vienna Convention on the
Law of Treaties,” to the effect that states cannot plead the content of their own consti-
tutions as an excuse for not implementing international obligations which they have
freely chosen. But it goes further. It enables provisions in domestic constitutions that
are at odds with EC/EU law to be set to one side.
This innocuous-sounding doctrine of the supremacy of Community law led to a
revolution of sorts among the constitutional courts of Europe.’ If Community law
were truly supreme, then the hard-won constitutional norms on human rights could
theoretically be set at naught and overridden by Community law to the contrary. I say
theoretically because of course the competences of the Community were generally in
the pure economic field where the opportunities for an interface, let alone a clash,
with human rights were minimal. Yet these opportunities were real enough, at least in
principle, to impel some of the national constitutional courts to announce that they
would pronounce on the validity of Community law within their jurisdiction and
having sole regard to the terms of their own constitutions.” This would have halted the
doctrine of the supremacy of Community law dead in its tracks with profoundly
negative implications for the integrity and coherence of the process of economic inte-
gration.
The ECJ had to react somehow to salvage the doctrine of the supremacy of
Community law. It did so by placing limits on the outer bounds of that law. In a long
line of cases commencing in 1969 with Stauder v. Ulm (City oj9,4″ the Court an-
42 The classic statement on supremacy is contained in Reference for a preliminary rding under Arti-
cle 177 of the EEC Treaty made by the Tariefcommissie, Amsterdam, on 16 August 1962 in the pro-
ceedings between N.V Algemene Transport-en Expeditie Onderneming van Gend & Loos and
Nederlandse administratie der belastingen (Netherlands Inland Revenue Administration): “[Ihe
Community constitutes a new legal order of international law for the benefit of which the states have
limited their sovereign rights, albeit within limited fields” (C-26/62, [1963] E.C.R. 1 at 12, [1963] 2
C.M.L.R. 105).
4′ 23 May 1969, 1155 U.N.T.S. 331 (entered into force 27 January 1980).
‘” See M. O’Neill, “Fundamental Rights and the European Union” in G. Quinn, ed., Irish Human
Rights Yearbook (Dublin: Sweet & Maxwell, 1995) 67.
41 See generally ibid.
4 Stauder v. Ulm (City of), Sozialamt (Reference for a preliminary ruling by the Venvaltungsgericht
Stuttgart), C-29162, [1969] E.C.R. 419, [1970] C.M.L.R. 112.
2001]
G. QUINN- HUMAN RIGHTS AND THE EU
nounced that these limits were not to be found in the treaties, but instead in the “gen-
eral principles of Community law”. The classic statement of the formula is contained
in the ECJ’s judgment in Internationale Handelsgesellschaft:
[R]espect for fundamental rights forms an integral part of the general principles
of law protected by the Court of Justice. The protection of such rights, whilst
inspired by the constitutional traditions common to the Member States, must be
ensured within the framework of the structure and objectives of the Commu-
nity.7
The judgment of the Court in the Nold case of 1974 was to the effect that cogni-
zance could be taken of international conventions to which the Member States were
party. 7 This includes the ECHR. General principles of Community law (including
human rights) can be used to challenge the validity of Community law and of national
measures of transposition under certain restrictive conditions of standing.f They can-
not be invoked to challenge the validity of purely domestic law. It has to be remem-
bered that the Member States are each individually answerable to the Council of
Europe system in Strasbourg for their purely domestic law.
Among the rights recognized and enforced by the ECJ under this jurisprudence
are freedom of expression’ freedom of association,’ the right to religion,”- the right to
property,7 the right to privacy,- and the right to pursue a business.’ The interpretation
put on these rights by the ECJ did not always accord with the precedents of the Euro-
pean Court of Human Rights in Strasbourg.’ Notwithstanding the difficulties of locus
Internationale Handelsgesellschaft ,nbH v. Einfidir- tnd Vorratsstelle filr Getreide find Futter-
mittel (Reference for a preliminary riding by the Veraltugsgerid:t Franfirt), C-i 1l, [1970]
E.C.R. 1125 at 1134, [1972] C.M.L.R. 255 [hereinafter Internationale Handelsgeselschaft].
J. No”i Kohlen- und Baustoffgrflhandlung v. Comnmission, C-4/73, [1974] E.C.R. 491, [1974] 2
C.M.L.R. 338 [hereinafterNold].
” For an exceptionally clear account and evaluation of the case law, see generally B. de Witte, “The
Past and Future Role of the European Court of Justice in the Protection of Human Rights” in Alston.
supra note 2,859.
” Elliniki Radiophonia 7ileorassi AE v. Dimotiki Etairia Plimforissis and Sotirios Kouv-elas (Refer-
ence for a preliminary ruling fivn the Mfonomneles Protodikejo (Regional Court) Thessaloniki), C-
260189, [1991] E.C.R. 1-2925.
“‘ Union Royale Beige des Soct&s de FootballAssociation ASBL and Others v. Jean-Marc Bosman
and Others (Reference for a preliminary ruling firon the Cour d’Appel, Lige), C-415/93, [1995]
E.C.R_ 1-4921, [1996] 1 C.M.L.R 645.
Prais v. Concil, C-130175, [1976] E.C.R. 1589, [1976] 2 C.M.L.R. 703.
ANok,
supra note 48.
National Panasonic (UK) v. Conunission, C-13679, [1980] F.C.R. 2033, [1980] 3 C.M.L.R 169.
Regina v. Kent Kirk (reference for a preliminary rdingfromn the Crown Court at Nercastle-upon-
Tyne), C-63/83, [1984] E.C.R. 2689, [1984] 3 C.M.L.R. 522.
‘ See generally D. Speilmann, “Human Rights Case Law in the Strasbourg and Luxembourg
Courts: Conflicts, Inconsistencies, and Complementarities” in Alston, supra note 2, 757. See also .
MCGILL LAW JOURNAL / REVUE DE DROIT DE MCGILL
[Vol. 46
standi, the case law is of huge symbolic importance. In jurisprudential terms, it links
the Community legal order to high principles, even though these principles are not
self-evidently provided for in the text of the treaties. This underscores the point that
an economic community cannot be completely divorced from a broader community-
one based on shared values.
III. Options for Enhancing the Human Rights Dimension
From early on it was clear that a gap had arisen in the coverage of human rights.
On the one hand, each Member State was bound by the ECHR and answerable to the
European Court of Human Rights in Strasbourg. On the other hand, the Institutions of
the Community were bound by loose principles of Community law that were even
more loosely inspired by the ECHR. And, as intimated in the formula contained in
Internationale Handelsgesellschaft, it was unclear whether the chief departure point
for the ECJ in the interpretation of such general principles was the “objectives of the
Community” or human rights as inspired by the ECHR’
Clearly, doing nothing was not an option, since the ECJ had already signalled that
there was a human rights dimension to the EC/EU. Indeed, the Institutions had also
signalled their enthusiasm for this jurisprudence through soft law.’
Many felt-and continue to feel-that the most viable option to enhance human
rights provision in EU law lay in the ratification by the EC/EU of the ECHR. Many
modalities are possible-including the possibility of the ECJ requesting advisory
opinions from the European Court of Human Rights. This option would have ensured
uniformity in the interpretation of the human rights obligations as between the Mem-
ber States and the Institutions of the Community. It would have required some techni-
cal changes to the ECHR to enable an international institution (as distinct from a state)
to ratify the convention. These technicalities were never the problem. The problem
was-and is-that ratification would have meant that the Community would be
bound by the rulings of the European Court of Human Rights, and so one interna-
tional organization would have to surrender or share sovereignty with another. In any
event, this debate was rendered academic in 1996, when the ECJ ruled in an advisory
Canor, “Primus inter Pares. Who Is the Ultimate Guardian of Fundamental Rights in Europe?” (2000)
25 Eur. L. Rev. 3.
“7 See the debate about the significance of this jurisprudence: J. Coppel & A. O’Neill, “The Euro-
pean Court of Justice: Taking Rights Seriously?” (1992) 29 C.M.L. Rev. 669; J.H.H. Weler & NJ.S.
Lockhart, ‘Taking Rights Seriously: The European Court and Its Fundamental Rights Jurisprudence”
(1995) 32 C.M.L. Rev. 51 & 579.
55Supra note 47.
5′ EC, Joint Declaration by the European Parliament, The Council and The Commission, [1977]
O.J. C. 103/1.
2001]
G. QUINN- HUMAN RIGHTS AND THE EU
865
opinion that it would be beyond the competence of the Community to ratify the
ECHR absent treaty changes.’ So far, no such treaty changes have been proposed.
Another option might involve the drafting of a Bill of Rights for the Union and
giving it legal status by adding it to the treaties. This option has the merit of logic and
clarity. It suffers, however, through its close connection with federalism. It is fairly
plain that the addition of this Bill of Rights would go a long way towards openly ac-
knowledging an evolving EU constitutional order. At some point, the equivalent to the
Fourteenth Amendment to the U.S. Constitution would have to be considered, which
would turn the content of the Bill of Rights around and make it effective against the
Member States as well as against the Institutions of the Union. For the moment this
option is not being pushed, but it will probably be revived when the Union gets
around to debating whether the treaties need to be crunched down into a single coher-
ent document that will partake of the form of a nascent constitution.’
Yet another option would involve making explicit what is already implicit-
namely, that only those states that adhere to human rights are eligible for entry into
and participation in the Union. This could be coupled with adding piecemeal
protection of certain kinds of rights-rights that serve directly to enhance the
legitimacy of market building. Equality and non-discrimination are the obvious
examples. These options have now been used.’
A last option entails the drafting of a non-binding declaration on human rights in
the Union. In fact, such a charter was adopted by way of solemn proclamation as re-
cently as December 2000.’ It is not clear how this will materially advance respect for
human rights in the Union apart from providing a focal point.
IV. The 1 990s-The Human Rights Issue to the Fore in the EU
The question of the status of human rights within the EC/EU simmered away
throughout the 1980s and finally reached the top of the political agenda in the 1990s.
60 Opinion Pursuant to Article 228(6) of the EC Treaty (Accession by the Communities to the Con-
vention for the Protection of Human Rights and Fundazental Freedoms), Opinion 294, [1996]
E.C.R. 1-1759. For commentary see G. Gaja, “Opinion 2194, Accession by the Community to the
European Convention for the Protection of Human Rights and Fundamental Freedoms” Case Com-
ment (1996) 33 C.vL. Rev. 973; A.G. Toth, “‘The European Union and Human Rights: The Way
Forvard” (1997) 34 C.LL. Rev. 491.
6 This is not as fancifu1 as it seems. See European Parliament, What Fonn of Constitution for the
European Union? (Working Paper) (Political Series, Poli 105A EN) (December 1999). See also ‘Our
Constitution for Europe” The Economist 357:8194 (28 October 2000) 11 (which issue contains a draft
constitution for the EU at 17).
62See Part V, below.
See supra note 7; Part VI, below.
866
MCGILL LAW JOURNAL / REVUE DE DROITDE MCGILL
[Vol. 46
The reason has less to do with human rights as such and more to do with a crisis of
confidence in the integration process itself.
A. Background: The 1980s Market-Building Agenda
In the 1980s most effort was focussed on making economic and monetary union a
reality. To that end a new treaty with the misleading title of the Single European Act’
was concluded in 1986. Most of this convention was taken up with political and eco-
nomic issues. The preamble to the SEA genuflected to human rights: “Aware of the re-
sponsibility incumbent upon Europe … to display the principles of democracy and
compliance with the law and with human rights to which they are attached ..:” The
European Commission under Jacques Delors had managed to persuade the heads of
state to adopt a non-binding Community Charter of the Fundamental Social Rights of
Workers” in December 1989. As befits its title, this document focussed chiefly on the
economic and social rights of workers. It did not have any legal status as such, but
was probably intended by Delors to provide the basis for negotiating comparable legal
provisions in the treaties. When the Treaty on European Union’ was being negotiated
in the early 1990s, it was clear that at least one Member State (the U.K.) would not
agree to enhanced provision for social rights in the treaties. Instead, eleven out of the
twelve Member States agreed to a separate protocol whereby they would use the In-
stitutions of the Community (now Union) to adopt measures under a social agreement
to have effect only as between themselves. This was very sparingly used to avoid a
two-speed social Europe.
The Maastricht Treaty gave birth to the EU, which is comprised of three pillars:
the EC, common foreign and security policy, and justice and home affairs. The latter
two pillars are purely intergovernmental in character, while only the first is fully su-
pranational. The treaty set in train the process for full economic and monetary union.
A feeble effort was made in the Maastricht Treaty to embrace the jurisprudence of the
ECJ on human rights,” but this did no more than acknowledge formally the long-
standing jurisprudence of the ECJ. Furthermore, and for the avoidance of doubt, Arti-
cle L made it plain that Article F(2) was non-justiciable.’
‘A[1987] OJ. L. 169/1, [1987] 2 C.M.L.R. 741 [hereinafter SEA].
Ibid., Preamble.
EC, Commission, Community Charter of the Fundamental Social Rights of Workers (Luxem-
bourg: EC, 1990).
67 7 February 1992, [1992] OJ. C. 224/1, 1757 U.N.T.S. 3, [hereinafter Maastricht Treaty], now
Consolidated Version of the Treaty on European Union, [1997] O.J. C. 340/2, 37 I.L.M. 67 [hereinaf-
ter TEU.
6′ See text accompanying note 83.
“Maastricht Treaty, supra note 67.
2001]
G. QUINN – HUMAN RIGHTS AND THE EU
The ink was barely dry on the Maastricht Treaty when a clamour arose among
Europe’s peoples that the EU was woefully out of touch with the concerns of the
common person. The fixation on further and deeper economic and monetary union
suggested an enterprise obsessed with markets over people. The dream of a European
Union felt like a nightmare to those who had long felt estranged from an endeavour
that showed little direct concern for the problems that affected them. Long-term un-
employment in particular was high at the time, and yet the EU seemed uninterested.
Denmark voted against adoption of the treaty, and only voted for it once certain opt-
outs were given in respect of economic and monetary union. France almost voted
against it. In short, the very legitimacy of the market-building project was put at issue.
That something more had to be done to revive the legitimacy of the process of
integration was clear. From the early 1990s onwards, the Euro elites began talking
openly about the construction of a “People’s Europe”-one whose relevance to the
lives of ordinary people was plain. Human rights became part of that mantra. It is hard
to know whether this new-found interest in human rights was purely instrumental in
the sense of reviving the legitimacy of the integration endeavour, or whether it had
other more honourable wellsprings. Regardless of its provenance, it was real and in-
spired the NGO community (which had been curiously dormant at the EU level) to
begin agitating for treaty revisions to make human rights more central and visible:,
They did not have long to wait for an opportunity to ventilate their arguments-Arti-
cle N(2) of the Maastricht Treaty required yet another intergovernmental conference
(“IGC”) to revise the treaties in 1996V’
B. Preparing the Ground: Three “ComitW des Sages” Reports on
Human Rights
Meanwhile, and mindful of the need to do something and to be seen as doing
something in the field of human rights, the European Commission convened three
separate comitis des sages to reflect on the future of human rights in the EU. Inter-
estingly, they came to different conclusions as to the best way forward.
The first of these groups reported in February 1996 This group, which was
chaired by Mine Pintasilgo, favoured the drafting of an enforceable Bill of Rights to
‘ For a review of the views of NGOs and the Member States during the period leading up to the
adoption of the Treaty ofAnsterdam, infra note 73, see G. Quinn, “The Drafting of the EU Charter on
Human Rights-Issues and Perspectives” in U.K, H.L., Select Committee on European Union, EU
Charter of Fundanental Rights (HL Paper 67) (London: The Stationery Office, 2000) 161 at 172-74.
71 Supra note 67.
72 EC, For a Europe of Civil and Social Rights-Report by the Conit des Sages (Luxembourg: EC,
1996). The group’s members were Maria de Lourdes Pintasilgo (chair), Eduardo Garcfa de Enterria,
Hartmut Kaelble, Louka Katseli, Frd&ldic Pascal, Bengt Westerberg, and Shirley Williams.
868
MCGILL LAW JOURNAL / REVUE DE DROITDE MCGILL
[Vol. 46
be added to the treaties with sufficient flexibility to add social and economic rights as
a Europe-wide consensus emerged as to which ones lent themselves to judicial en-
forcement. This was the only one of the three reports to be published before the con-
clusion of the IGC negotiations leading up to the Treaty of Amsterdam.”
The second group, chaired by Mine Lalumi~re, reported in December 1998.” It
focussed principally on practical steps that could be taken within existing arrange-
ments to enhance the visibility and role of human rights. It pointed to the contrast
between the highly visible role of human rights in the external relations of the Union
and the almost complete absence of a formal role for human rights in the internal af-
fairs of the Union. It argued that this gap had to be closed because it went, inter alia,
to the question of the credibility of the EU in international forums. This group also
argued for ratification of the ECHR, but more practical matters dominated its delib-
erations (e.g. the need to appoint a commissioner with responsibility for human
rights).”
The third group, which was chaired by Professor Simitis, reported in February
1999. Its primary recommendation was for the immediate ratification by the EC/EU
of the ECHR.
7’ Treaty of Amsterdam amending the Treaty on European Union, the Treaties establishing the
European Communities and certain related acts, 2 October 1997, [1997] OJ. C. 340/1 [hereinafter
Treaty of Amsterdam].
” Leading by Example: A Human Rights Agenda for the European Union for the Year 2000 (Flor-
ence: European University Institute, 1998). The research for this group was organized by the Acad-
emy of European Law at the European University Institute in Florence under the direction of Profes-
sor Philip Alston. The members of the group were Antonio Cassese, Catherine Lalumire (chair),
Peter Leuprecht, and Mary Robinson. The project received financial support from DG Relex of the
European Commission.
‘ To achieve their objectives the comitd recommended a variety of initiatives including (1) the ap-
pointment of a commissioner with responsibility for human rights; (2) the development of a specialist
human rights office within Council to assist the work of Monsieur Pesc; (3) more ready access to the
ECJ to press human rights claims; (4) the creation of a European Union Human Rights Monitoring
Agency; (5) the publication of an annual EU human rights review; (6) the development of the Parlia-
ment’s capacity in the human rights field; (7) accession to the ECHR; (8) greater interaction between
the Member States in addition to the mechanism of COHOM, the working group on human rights; (9)
expansion of the Commission’s development co-operation program along the lines of human rights;
(10) the elaboration of an EU Code of Conduct for business; (11) greater use of human rights clauses
in trade agreements; (12) a study of procedures to be used to suspend membership rights of deviant
regimes; (13) more consultation with NGOs; and (14) high priority for human rights education.
76 European Commission, Expert Group on Fundamental Rights, Affirming Fundamental Rights in
the European Union: Time to Act (Luxembourg: Office for Official Publications of the European
Communities, 1999). The members of the group were Christine Bell, Lammy Betten, Jochen
Frowein, Pirkko Koskinen, Lorenzo Martin Retortillo, Alessandro Pizzorusso, Jean Rossetto, and Spi-
ros Simitis (chair).
2001]
G. QUINN – HUMAN RIGHTS AND THE EU
869
C. Report of the Westendorp Reflection Group (1996)
Before the 1997 IGC commenced, the heads of government appointed a reflection
group to survey, clarify, and systematize the main issues that would arise for consid-
eration and to provide them with the benefit of their own views. The reflection group
was chaired by Carlos Westendorp, formerly the foreign minister of Spain.
The Institutions, as well as many Euro-level NGOs, made submissions to the
Westendorp Reflection Group. The European Commission’s submission was divided
into two parts, (1) Democracy and Transparency in the Union, and (2) Effectiveness
and Consistency of the Union’s Policies.’ Significantly, the Commission report
looked to the development of citizen’s rights as the primary means for enhancing the
legitimacy of the EU enterprise. It asserted that
mhe first challenge is obvious-to make Europe the business of every citizen.
… That is why the Commission does not regard the Treaty’s objective of a
Community closer to the citizen as an empty formula, but as an overriding
principle which guides its actions.7′
It went on:
Democracy comprises the very essence of the Union. … One of the Treaty’s ba-
sic innovations in terms of democracy is the concept of European citizenship.
The object of this is not to replace national citizenship but to give Europa’s citi-
zens an added benefit and strengthen their sense of belonging to the Union. The
Treaty makes citizenship an evolving concept and the Commission recom-
mends developing it to the full. Moreover, although the task of building Europe
is centered on democracy and human rights, citizens of the Union hare at this
stage nofundamental text whid they can inroke as a sunmmary of their rights
and duties. The Conunission thinks this gap should be filled, more especially
since such an instrwnent would constitute a powerfid means of promoting
equal opportunities and combating racism and xenophobia.’
What is interesting is that the Commission’s submission foresaw the drafting of a
charter. The final report of the Westendorp Reflection Group strongly supported the
claims being made by NGOs for clear treaty revision in the area of human rights.
V. Human Rights and Treaty Changes at Amsterdam (1997)
A variety of new provisions were agreed to by the heads of state and enshrined in
the Treaty of Antsterdan (which amends the provisions of the original treaties). No
European Commission: Directorate-General for Information, Communication, Culture and
Audiovisual Media Publications Unit, Connission Report for the Reflection Group (Luxembourg:
Office for Official Publications of the European Communities, 1995).
7’Tbid at3.
lbid at 6 [emphasis added].
MCGILL LAW JOURNAL / REVUE DE DROIT DE MCGILL
[Vol. 46
concrete proposal to add a Bill of Rights or to amend the treaties to enable the Union
to accede to the ECHR or any other international human rights treaties was put to the
Amsterdam Council, although the Dublin General Outline (draft text prepared by the
Irish presidency of the Council during the IGC) did refer to the possibility of incorpo-
rating a new article to clarify judicial control of respect for fundamental rights.” In-
stead-and very much along the lines recommended by the report of the Westendorp
Reflection Group-steps were taken to heighten the profile of the Union as one based
more visibly on the principles of human rights as follows.
First, Article 6(1) of the TEU now states that the Union as such is founded “on the
principles of liberty, democracy, respect for human rights and fundamental freedoms,
and the rule of law.” Second, Article 49 states that only those European states that re-
spect the principles set out under Article 6(1) may apply to become members of the
Union.’ Third, Article 6(2) states that the Union “shall respect fundamental rights, as
guaranteed by the European Convention on Human Rights … and as they result from
the constitutional traditions common to the Member States, as general principles of
Community law.”‘ Fourth, a new mechanism is provided in a new Article 7 of the
TEU to deal with Member States that persistently and seriously violate the principles
set out in Article 6(1).’ An elaborate (and exclusively political) process is set out ac-
cording to which the relevant determinations are to be made. The sanction is the sus-
pension of certain rights, including voting rights of the Member States concerned. The
political costs involved in invoking Article 7 are formidably high. It must be pointed
out that this provision was not invoked against Austria in 2000Y
The non-discrimination rules of the treaty were an obvious (and easy) target for
change. A new article was inserted to the effect that
[w]ithout prejudice to the other provisions of this Treaty and within the limits
of the powers conferred by it upon the Community, the Council, acting unani-
mously on a proposal from the Commission and after consulting the European
“Conference of the Representatives of the Governments of the Member States, The European Un-
ion Today and Tomorrow-Adapting the European Union for the Benefit of its Peoples and Preparing
It for the Future-A General Outline for a Draft Revision of the Treaties, Doc. CONF 2500/96 (Brus-
sels, 5 December 1996) at 14.
S, Supra note 67 (originally Maastricht Treaty, supra note 67, art. F(l)).
Ibid, (originally Maastricht Treaty, ibid., art. 0).
“Ibid. (originally Maastricht Treaty, ibid., art. F(2)).
84 Ibid.
See M. Ahtisaari, J. Frowein & M. Oreja (comitd des sages), Report (Paris: 2000). Interestingly,
the comitd des sages felt that the TEU, ibid., art. 6(1), “constitutes, therefore a legal obligation on the
part of EU Member States” This is probably an overstatement.
2001]
G. QUINN- HUMAN RIGHTS AND THE EU
Parliament, may take appropriate action to combat discrimination based on sex,
racial or ethnic origin, religion or belief, disability, age or sexual orientation.2!
Two landmark Directives have already been adopted on the basis of this new
competence. The first, which focusses on racial discrimination in many different
spheres beyond the purely economic, was adopted by Council on 29 June 2000.’ The
second, adopted by Council on 27 November 2000,’ is confined to discrimination in
the field of employment, and covers all categories mentioned in Article 13 save for
gender (already covered under a web of EU Directives) and race, which now has a
stand-alone Directive. An “action programme” accompanies and augments the legis-
lative menu.
VI. The Charter of Fundamental Rights (2000)
Apart from a declaration marking the fiftieth anniversary of the Universal Decla-
ration of HWnan Rights3 in December 1998,”‘ nothing much happened in response to
the Lalumire comitd des sages, as had been expected. Then, quite suddenly, the
German government proposed the drafting of an EU Charter on Fundamental Rights.
The proposal was accepted at a meeting of the European Council (heads of state) in
Cologne on 3-4 June 1999. The summit concluded:
Protection of Fundamental Rights is a founding principle of the Union and an
indispensable prerequisite for her legitimacy … There appears to be a need, at
the present stage of the Union’s Development, to establish a Charter of funda-
mental rights in order to make their overriding importance and relevance more
visible to the Union’s citizens.92
EC Treaty, supra note 32, art. 13. See generally L Flynn, “The Implications of Article 13 EC-
After Amsterdam, Will Some Forms of Discrimination Be More Equal Than Others?” (1999) 36
C.M.L. Rev. 1127.
EC, Council Directive 2000/43 of 19 July 2000 implementing the principle of equal treatment
betiveen persons irrespective of racial or ethnic origin, [2000] OJ. L 180/22.
‘ EC, Council Directive 2000/78/EC of 27 November 2000 establishing a general framteork for
equal treatment in employment and occupation, [2000] OJ. L 303/16.
EC, Council Decision 20001750 of 27 November 2000 establishing a Communiy action pro-
gramme to combat discrimination (2001 to 2006), [2000] OJ. L 303/23.
GA Res. 217(IM, UN GAOR, 3d Sess., Supp. No. 13, UN Doe. A/810 (1948) 71.
9 European Union, “Declaration of the European Union on the Occasion of the 50th Anniversary of
the Universal Declaration on Human Rights” (10 December 1998). This declaration, like its counter-
part in 1977, was proclaimed by the Council, Commission, and Parliament.
9- European Union, News Release 150199 “Cologne European Council. Presidency Conclusions” (4
June 1999), Annex IV, “European Council Decision on the Drawing up of a Charter of Fundamental
Rights of the European Union’.
MCGILL LAW JOURNAL / REVUE DE DROIT DE MCGILL
[Vol. 46
The summit called for the convening of a broadly representative drafting body. The
composition of that body (called the “convention”) was agreed at a European Council
summit in Tampere, Finland, on 15-16 October 1999.” It was composed of fifteen
representatives of national governments, one representative from the European Com-
mission, sixteen members of the European Parliament, and thirty members of national
parliaments (the Council of Europe had observer status in the persons of the deputy
secretary-general and a member of the European Court of Human Rights). It held the
first of its seventeen formal meetings on 17 December 1999 and its last on 2 October
2000, and engaged in extensive consultation with NGOs. The Charter was pro-
claimed by the heads of state at their Nice Summit in December 2000.
Throughout the drafting process the convention operated on the basis that the text
should be sufficiently flexible to allow for its possible insertion into the treaties.
Eventually, the heads of state opted not to include the Charter in the treaties, but sim-
ply to declare it on a purely political basis. There is, however, nothing to stop the ECJ
from using the Charter as a guide to general principles of Community law-thus con-
ferring on it legal status of sorts through the back door. But the real relevance of the
Charter is that it forms the basis for negotiations as to the content of a future Bill of
Rights with treaty status.
Space constraints prohibit a detailed account of the content of the Charter. Suffice
it to say that it contains seven chapters as follows: (1) Dignity (Articles 1-5), (2) Free-
doms (Articles 6-19), (3) Equality (Articles 20-26), (4) Solidarity (Articles 27-38), (5)
Citizens’ Rights (Articles 39-46), (6) Justice (Articles 47-50), and (7) General Provi-
sions (Articles 51-54). Regarding its substance, two general observations appear war-
ranted. First, the drafters did not seem too concerned that the standards they were set-
ting would diverge from established international practice. On occasion the Charter
standards exceed international standards, and on other occasions they seem to fall
below such standards. As if in acknowledgement of this, a belt and braces provision
was inserted in Article 53 to the effect that nothing in the Charter should be inter-
preted as restricting rights as established under international law. Furthermore, Article
52(3) is to the effect that those rights in the Charter that have equivalent protection in
the ECHR shall have the exact same meaning and scope. Second, by far the largest
section (Solidarity) deals with economic, social, and cultural rights. While this is
greatly to be welcomed, it is nevertheless curious, since these rights do not correspond
with any existing competences at the level of the Union.
3 Tampere European Council, Presidency Conclusions, Annex, “Composition, Method of Work and
Practical Arrangements for the Body to Elaborate a Draft EU Charter of Fundamental Rights” (15-16
October
European Union
1999),
online:
2001]
G. QUINN – HUMAN RIGHTS AND THE EU
873
The Charter is addressed to the Institutions of the Union and to the Member
States only when they are implementing EU law. The Charter is expressly stated not
to “establish any new power or task for the Community or the Union, or modify pow-
ers and tasks defined by the Treaties” ‘ But, as mentioned earlier, that the ECJ might
use this instrument as a guide to general principles of Community law in any event
might entail some theoretical modification of the treaty tasks.
Conclusion
What conclusions can be drawn from the above? First, Europe has successfully
tamed nation-states and indeed remoulded them. The Council of Europe sets out and
polices vital normative anchors. The EU integrates in a way that seems to make the
classic nation-state seem anachronistic. Both institutions are wedded to a political vi-
sion of democracy, the rule of law, and human rights. No market mechanism can exist
in a vacuum. The EU was always and will remain primarily a community of shared
values. If, as in the early 1990s, the EU views itself merely as a technocratic mecha-
nism for merging markets or for sharing limited government power, it will lose le-
gitimacy. The people have always expected more from European unification than have
their politicians. In an interesting communication commenting on the Charter in its
draft form, the European Commission stated that “There is a need for a Charter of
Fundamental Rights because the European Union has entered a new, more resolutely
political phase of integration” The reasoning fits with the analysis in the earlier part
of this article, in that it is the advance towards political integration that is making the
issue of human rights pressing and controversial.
Second, it is fairly predictable that some concrete moves to simplify the treaties
will be made over the coming years. Almost inevitably-whether intended or not-
this will ignite a debate about whether the EU should have its own recognizably
constitutional text. It is too early to say how that debate will turn out. Either way, the
drafting of such an instrument would be fatally incomplete without a Bill of Rights.
One can therefore predict that the drafting of such a Bill of Rights will sooner or later
dominate the debate about human rights in the EU.
Third, the Charter of Fundamental Rights of 2000 might yet seep into the juris-
prudence of the ECJ through the doctrine of general principles of Community law. Its
very existence means that human rights issues cannot go away. But probably its most
important long-term impact will be on the drafting of a future Bill of Rights for the
Union.
Supra note 7, art. 51(2).
“Commission Communication on the Charter of Fundamental Rights of the European Union”,
COM(2000)559 final at para. 8.
874
MCGILL LAW JOURNAL / REVUE DE DROIT DE MCGILL
[Vol. 46
Last, the evolution of the constitutional character of the Union to the point that it
has its own Bill of Rights will have implications for the Council of Europe. To one
who tends to see the EU and Council of Europe as twins separated at birth, this devel-
opment is not necessarily bad for Europe or for the Council of Europe. But it does
heighten the importance of more sustained and formalized co-operation between the
two bodies. Perhaps even a system of rotation of judges between the ECJ and the
European Court of Human Rights should be considered. Human rights are too im-
portant in the construction of Europe to justify one body (the EU) trying to reinvent
the wheel. Likewise, they are too important for the other body (the Council of Europe)
to stand on the past and not to recognize that the future is constantly being made. It
would, of course, have been useful if Churchill had also outlined the “next step”.
