The Relation between the Charter of Fundamental Rights of the European Union and the European Convention on Human Rights – Substantive Aspects
| Published date | 01 March 2001 |
| DOI | 10.1177/1023263X0100800104 |
| Author | Paul Lemmens |
| Date | 01 March 2001 |
| Subject Matter | Article |
Paul Lemmens∗
49 8 MJ 1 (2001)
The Relation between the Charter of Fundamental Rights of
the European Union and the European Convention on
Human Rights – Substantive Aspects
§ 1. Introduction
1. As soon as the European Council of Cologne had decided that an EU Charter of
Fundamental Rights was to be drafted, there was concern within the Council of Europe
about possible negative effects of this initiative on the European Convention on Human
Rights and its protection machinery. As the Chairman-in-Office of the Committee of
Ministers stated before the Parliamentary Assembly of the Council of Europe, ‘the
(Council’s) achievements in human rights protection (were) so precious that any risk of
dilution or duplication should be avoided at all costs’.1
The Parliamentary Assembly took up the matter, and adopted a resolution in which it
invited the EU ‘to incorporate the rights guaranteed in the European Convention on
Human Rights and its protocols in the Charter of Fundamental Rights and to do its
utmost to safeguard the coherence of the protection of human rights in Europe and to
avoid diverging interpretations of those rights’.2
In this article, an attempt will be made to ascertain whether the drafters of the Charter
have acknowledged the need to preserve the integrity of the Convention, and whether
the ‘risk of dilution or duplication’ of this instrument has been avoided.
* K.U. Leuven.
1. Reply of Mr. Ásgrímsson, Chairman-in-Office, to oral questions by Messrs. Jaskierna, Bindig,
Chapman, Laakso and Ms. Durrieu, Parl. Ass., 21 September 1999.
2. Resolution 1210 (2000) of 25 January 2000 on the Charter of Fundamental Rights of the European
Union.
The Relation between the Charter and the ECHR
50 8 MJ 1 (2001)
§ 2. The European Convention as the Standard for Interpretation of the
Charter
2. The relationship between the Charter and the European Convention has been at the
heart of the discussions. Already at the first meeting of the ‘Convention’,3 Mr.
Fischbach, judge at the European Court of Human Rights and one of the two Council of
Europe observers, suggested that, as far as civil and political rights were concerned, ‘the
Charter should build on the European Convention on Human Rights. The rights and
freedoms contained in the Convention and its additional protocols are worded in such a
way that they could be incorporated lock, stock and barrel into Community law’.4
The suggestion to simply copy the text of the European Convention, at least with
respect to the part of the Charter on civil and political rights, has not been followed. But
the discussion in the ‘Convention’ took place on the basis, as expressed in a preparatory
document of the Secretariat, that the European Convention was to be considered as a
‘minimum standard’, in relation to which the Charter could not ‘take a step
backwards’.5 In the same document, it was also stated that it might be ‘useful to
consider a clause that would establish that there is nothing in the Charter to restrict the
protection offered by the European Convention on Human Rights and the common
constitutional traditions and by other instruments which would have to be identified
(United Nations Covenant, European Social Charter, etc.)’.6
3. In the first drafts relating to the so-called ‘horizontal questions’, i.e. questions
generally relating to all the rights and freedoms to be proclaimed by the Charter, the
Praesidium effectively included an article according to which no provision of the
Charter could be interpreted as placing restrictions on the protection afforded by the
European Convention. In the commentary, it was explained that the level of protection
of human rights in the EU could not be inferior to that afforded by the European
Convention, ‘regardless of the wording of the Charter’.7
The discussion would take a somewhat different direction, as soon as it became clear
that the Charter would take the form of a declaration, stating rights and freedoms as
matters of principle, without providing for specific limitation grounds for each of the
rights and freedoms proclaimed. In such a construction, the Charter, like e.g. the
German Constitution, would contain only a general limitation clause, included among
3. When the term ‘Convention’, between quotation marks, is used, reference is made to the body
entrusted with the drafting of the Charter.
4. Record of the first meeting of the ‘Convention’, 17 December 1999, Body 1, Annex VI, 25, no. 2.
5. Secretariat of the ‘Convention’, Information note on horizontal questions, 20 January 2000, Body 3, 5,
§ 16.
6. Ibid., 5, § 18.
7. Article Z (‘Level of protection’) of the draft of 15 February 2000, Convent 5, 11; Article Y (‘Level of
protection’) of the draft of 8 March 2000, Convent 13, 18.
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