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Access shows human rights as part of a power game

This is what we were not supposed to know

Now we now know why and how the Charter of Fundamental Rights was squeezed into to the Lisbon Treaty, with a dubious opt out for the UK, Poland and possible Czech republic. Repeated complaints to the Ombudsman have paid off.

Since 2008 the outcome of the high level negotiations has been known. The Lisbon Treaty contains a Charter of Fundamental Rights with some peculiarities:
On the one hand the charter is said to be legally binding but only when member states implement Union law (article 51.1).
On the other hand the Charter does not establish any new power or task for the Union (article 51.2).
And on top of that UK, and Poland got a protocol saying that no courts can find their national laws inconsistent with the fundamental rights. Also – just to be on the safe side – the Charter does not create justiciable rights applicable to Poland or the United Kingdom on economic and social matters.
Whether or not the Czech Republic also will join in to the protocol is still unclear.

Kept on asking

This confusing opt-out from something that is not supposed to introduce new EU-powers in the first place, was the result of diplomatic negotiations where arguments and positions were not to be known by the public, at the time.
But ECAS (European Citizen Action Service) a Brussels-based NGO has since 2007 repeatedly asked for access to central documents. After two interventions by the Ombudsman the Commission finally gave in.
The documents are not out in the open
”It is indeed a positive development that these documents have been released as this will make it difficult for governments to talk about EU democracy at home and then negotiate in secret in Brussels. This increased transparency is welcome and timely,” said Tony Venables, Director of ECAS.

A most serious instance....

The European Ombudsman, P. Nikiforos Diamandouros has called the long lasting refusal of disclosure "a most serious instance of maladministration", pointing to the fact that access to documents is itself one of the fundamental rights guaranteed by the Charter!
Not so surprisingly Mr Diamandouros is pleased with the final outcome:
"Public access to documents concerning how EU law is adopted is key to winning the trust of European citizens," he says in a comment.
So what do the released documents reveal?
Basically they show that the final outcome with the protocol for the UK and Poland was chosen to be the lesser of to evils.
It can be seen that UK tried to avoid an opt-out

”Hard to sell”

Michel Petite, head of the Commission's Legal Service noted (brackets and exclamation mark in the original document):
”UK itself does not like it (opt-out from fundamental rights is hard to sell!) Risk of contagion (if UK, then Poland, then France, …etc…)”
The documents also show that the General Secretariat of the Council favoured a solution where references to member states could be omitted because it did not matter:
Member State would be covered any way.
Six years later it can be argued that whoever proposed what solution does not really matter now.
But Tony Venables, Director of ECAS believe there are lessons to be learned:
”This suggests that governments cannot be trusted to negotiate on our fundamental rights on their own. It appears that the need to reach an agreement among themselves takes precedence over the maximum protection of our rights.”
And what does the Commission has to say?
Spokesperson Antonio Gravili writes in an email to EUobserver.com:
˘Things change, there has been more case law and the Lisbon Treaty has entered into force.




Staffan Dahllöf


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