Abstract
The Agreement on the European Economic Area (EEA) extends the internal market of the EU to Iceland, Liechtenstein and Norway. The special relationship is predicated on a set of common constitutional values and traditions that allow an area without internal borders to be created and maintained. Within the EEA EU pillar, the association agreement constitutes an integral part of Union law. Its application will trigger the Charter of Fundamental Rights of the EU. Within the EEA EFTA pillar, the EFTA Court still resorts to the European Convention on Human Rights. Its approach resembles the jurisprudence of the ECJ before the entry into force of the Charter. The current lack of homogeneity rejects the common values upon which the association agreement is founded and undermines the foreseeability that is the prerequisite for a ‘practical and effective’ protection of fundamental rights. It is time to recognize the Charter as an expression of general principles that are intrinsic to the structure and objectives of EEA law.
Keywords
Introduction
In the first recital to the Agreement on the European Economic Area (EEA), the contracting parties confirm the contribution that the European Economic Area ‘will bring to the construction of a Europe based on peace, democracy and human rights’. The operative parts of the association agreement do not establish or refer to a specific catalogue of fundamental rights. The undisputed, but somewhat open, starting point is that fundamental rights constitute general principles of the acquis that governs the European Area without internal borders. 1 The task of specifying them and clarifying their scope and reach is left to the courts. 2
The judgment of the EFTA Court in Criminal proceedings against MH captures its current approach to fundamental rights protection within the EEA EFTA pillar: It is settled case law that fundamental rights form part of the general principles of EEA law. The Court has held that the provisions of the European Convention on Human Rights (‘ECHR’) and the judgments of the European Court of Human Rights are important sources for determining the scope of these fundamental rights. In that regard, it must be noted that the EEA States, in particular their courts, must not only interpret their national law in a manner consistent with EEA law but are also under an obligation to ensure that the interpretation and application of acts incorporated into the EEA Agreement does not result in a conflict with fundamental rights protected by EEA law.
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Approach and outline
There is only one reply to the question raised in the title of this article that can possibly explain the rejection of the application of the Charter within the EEA EFTA pillar: The lack of state consent, or in short: sovereignty.
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It may be argued that by adopting the Charter, and affording it status as primary law, the EU Member States have expressly approved of its applicability.
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In contrast, the EEA EFTA States have not. In the words of the Norwegian Government: an automatic application of the Charter, which is not incorporated in the EEA Agreement, would challenge State sovereignty and the principle of consent as the source of international legal obligations. In its view, the Charter provides, in some respects, for fundamental rights beyond those common to the EEA States.
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Since the fundamental rights guaranteed by the Charter must therefore be complied with where national legislation falls within the scope of European Union law, situations cannot exist which are covered in that way by European Union law without those fundamental rights being applicable. The applicability of European Union law entails applicability of the fundamental rights guaranteed by the Charter.
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The Charter is not indispensable as a means to guarantee respect for fundamental rights. That is provided for by national constitutions as well as the ECHR. 17 Rather, ‘the underlying rationale of ERT is that of coherence in the interpretation and application of EU law’. 18 The principle of proportionality is vague and affords discretion to decision-makers. The Charter helps fine-tune the application of the principle of free movement, much in the same manner as regulations or directives that harmonize the functioning of the internal market. In this respect, Weatherill observes that there is no protection of sovereignty where its exercise contradicts the demands of the internal market even in situations where the EU is disabled from intervening through a legislative act. ‘Negative law – free movement law, competition law – goes further than positive law, because it is driven by the functionally broad concern to make an internal market.’ 19
Based on the considerations above, the present article does not address the applicability of the general principles of the Charter within the framework of the EEA as a matter of ‘yes’ or ‘no’ to fundamental rights. 20 Instead, the issue is approached as a matter of common values to which the EU, its Member States and the EEA EFTA States subscribe. 21 Common values are the prerequisite for the principle of mutual trust that underpin the special relationship between the EU Member States and the EEA EFTA States. The functionality provided for by that principle is of ‘fundamental importance…in so far as it allows a European area without internal borders to be created and maintained’. 22 From a normative point of view, borders cannot be removed unless the states at both sides subscribe to shared values. The principle of homogeneity does not prescribe common values – it is predicated upon them. In the descriptive sense, borders are not removed unless the EEA States within both the EU and the EFTA pillar subscribe to common values, trust that others do and apply identical rules. 23
Section 3 provides a brief presentation of the application of the ECHR by the CJEU and the EFTA Court. Section 4 exposes the shortcomings of the EFTA Court’s reliance on the European Convention: the all-encompassing lack of homogeneity, the lack of effective judicial protection and the lack of foreseeability. Section 5 recalls that the general principles of the Charter of Fundamental Rights reaffirm the civil and political rights of the ECHR and the social and economic rights of the European Social Charter (ESC). These are the common values upon which the internal market is constructed, and to which the EEA EFTA States confirmed that they subscribe. Section 6 argues that the general principles of the Charter of Fundamental Rights must be ensured within the framework of the structure and objectives of the EEA: in the substantive sense to avoid discrimination between the EU and EFTA pillar of the EEA; in the structural sense to provide for mutual trust; and in the intrinsic sense, as the shadow of EEA law. Section 7 rejects a ‘rights-by-rights’ approach to the general principles of the Charter. Both the European Court of Human Rights (ECtHR) and the CJEU apply a holistic approach to the identification and protection of common values. Section 8 concludes. The EFTA Court should openly refer to the general principles of the Charter of Fundamental Rights and the relevant case law of the CJEU. The recognition and transparent application of the common values upon which the EEA Agreement is founded and to which it refers are necessary for the creation and maintenance of a homogeneous European area without borders.
Why the ECHR?
The approach of the CJEU and its rationale
The approach of the CJEU and its underpinnings have been described elsewhere and shall only briefly be recalled here. 24
The first reason that the Court protects fundamental rights as recognized by the ECHR can be referred to as common heritage. In Stauder, the CJEU declared without further analysis that ‘fundamental human rights [are] enshrined in the general principles of Community law and protected by the Court’. 25 In Handelsgesellschaft, the Court repeated that ‘respect for fundamental rights forms an integral part of the general principles of law protected by the Court of Justice’. It added that 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 Community’. 26 Five years later, in Rutili, the CJEU referred to the European Convention of Human Rights for the first time and noted that it was ratified by all the Member States. 27 The short, self-evident style of reasoning reflects that the protection of human rights is common heritage that forms an integral part of any (Western) legal system. Obviously, the ECHR is the most important source to identify such rights. 28
The second reason is that of supremacy. The protection of human rights as prescribed by the constitutions of the Member States is one of the very few concerns that would motivate national courts to depart from EU law. The risk of conflict must be eliminated. It would deprive Union law of its very nature if it were ‘overridden by rules of national law’. 29
The third reason is that of autonomy. In the absence of equivalent protection of human rights, 30 the implementation and application of the EU Member States of acts and decisions stemming from the EU legal order would come under the scrutiny of the European Court of Human Rights. 31
The fourth reason is that of the unity of the legal order. 32 Nothing is gained if the response to the challenges described above creates new disparities. The CJEU’s directive in Handelsgesellschaft, that the protection of fundamental rights ‘must be ensured within the framework of the structure and objectives of the Community’, is crucial. That requirement explains why external sources referred to by the CJEU are never presented as binding, but as ‘inspiration’. 33 The promulgation of the Charter of Fundamental Rights of the European Union pursues the same rationale.
Article F.2 of the Maastricht Treaty codified the case law of the Court. It entered into force on 1 November 1993, and was the first Treaty article ever to contain a reference to the ECHR. Today, it is found in Article 6.3 TEU, which stipulates: Fundamental rights, as guaranteed by the European Convention for the Protection of Human Rights and Fundamental Freedoms and as they result from the constitutional traditions common to the Member States, shall constitute general principles of the Union’s law.
Second, the codification provided for the transposition of general principles that had developed within the framework of the internal market to any other area of EU law. It was superfluous within its field of origin. The law of the internal market has always been at the forefront of matters. Within that area, the identification and development of general principles progressed further, long before the Maastricht Treaty and the EEA Agreement were enacted. The European Social Charter (ESC 1961) was a particularly important source of inspiration. The landmark ruling in Defrenne concerned the horizontal direct effect of the principle of equal pay between men and women. According to the CJEU, that principle
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forms part of the social objectives of the Community, which is not merely an economic union, but is at the same time intended, by common action, to ensure social progress and seek the constant improvement of the living and working conditions of their peoples, as is emphasized by the Preamble to the Treaty.
Third, within the pillar of the internal market the Court’s case law was given written confirmation even before the enactment of the Maastricht Treaty. The preamble to the Single European Act (SEA) asserted that the contracting parties were determined:
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to work together to promote democracy on the basis of the fundamental rights recognized in the constitutions and laws of the Member States in the Convention for the Protection of Human Rights and Fundamental Freedoms and the European Social Charter, notably freedom, equality and social justice.
The foundations of the approach of the EFTA Court
The EFTA Court has never provided explicit reasons to justify why it regards the ECHR as an important source for determining the reach and scope of the general principles of EEA law. We do not fully believe in the explanation of homogeneity. If that was the case: Why not the Charter? After all, as noted by Judge Wahl, ‘EEA law is far more closely intertwined with EU law than with the ECHR system set up under the auspices of the Council of Europe’. 39 It may be added that economic and social rights such as those in the ESC and the Charter are far more closely intertwined with EEA law than civil and political rights as enshrined in the ECHR.
Three other explanations are more likely. First, the reference of the preamble to ‘human rights’ provides a clear and robust legal foundation for the protection of such rights within the framework of the EEA. How could the EFTA Court possibly reject that human rights form part of EEA law when the very first sentence of the Agreement says that they do? 40
Second, as we saw above, the CJEU arrived at the same conclusion in the 1970s, even in the absence of any written support. Being common heritage, fundamental rights have the same status in the EEA EFTA States as in the EU Member States. The similarity between the EEA pillar and EU pillar appears to be a matter of substantive law, shaped by common values, to which the second recital of the EEA Agreement explicitly refers. 41
Third, as stated by the EFTA Court in Holship: ‘Fundamental rights form part of the unwritten principles of EEA law.’ 42 While the first part of the statement clarifies the status of fundamental rights, the latter part is as important. It is one of many confirmations that the EFTA Court applies a method of interpretation that is similar to that which is stipulated by the Statute of interpretation of the International Court of Justice (ICJ). 43 According to Article 38.1(c), the ICJ shall apply ‘general principles of law recognized by civilized nations’. So does the CJEU, and the European Court of Human Rights, because it is the conventional approach in public international law. Its implication is that that the written text of the EEA Agreement does not exhaust the mandate of the EFTA Court. 44 The explicit consent of all the contracting parties is not required for a source to be legally relevant. Other instruments of international law that confirm the practice of the parties, reflect their common values and mark an emerging European consensus must also be taken into consideration. 45
The reasons above explain why the EFTA Court’s adherence to the ECHR is wholly uncontroversial and generally accepted. 46 As we shall return to, it is the hesitance towards the Charter of Fundamental Rights that is ground for concern as the latter codifies general principles of EU law, expresses the common values of (at least) 27 of the 30 EEA States and is drafted upon instruments to which all the 30 EEA States subscribe.
The shortcomings of the current approach
Lack of homogeneity
The Charter is omnipresent in EU law, including in the EEA EU pillar. 47 Non-application within the EEA EFTA pillar will produce a lack of homogeneity. The criteria that describe the two situations in which the Charter is applicable against the Member States are telling. The notions of ‘implementation’ (Wachauf) and ‘application’ (ERT) are identical to those of Article 6 EEA which expresses the principle of uniform interpretation. The article stipulates that in their implementation and application provisions of the association agreement that correspond to EU law, shall be interpreted in conformity with the relevant rulings of the Court of Justice. Preservation of uniformity will become impossible unless the ‘shadow’ effect of the Charter within EEA law and EU law is similar.
As a guardian against fragmentation, the CJEU has reiterated that fundamental rights, as recognized in particular by the Charter, must be interpreted and applied in accordance with the constitutional structures of EU law. 48 Such legal uniformity provides for the functional outcome of EU law: it allows ‘an area without internal borders to be created and maintained’. 49 A state that takes part in that common area, in which there is mutual recognition, must be able to trust, without any reservations, that a set of shared values and rights is respected, implemented and applied by the others. Correspondingly, the review of fundamental rights undertaken by that state must adapt to the special relationship and presume that the others comply with their obligations. 50
If the reasoning of the CJEU is transposed to the context of the EEA Agreement, it becomes evident that the (non-)application of the Charter is more than a matter of uniform interpretation. From a functional point of view, it is not relevant whether participants in a European area without borders take part in the capacity of being an EU Member State or an EEA EFTA State. In the absence of the Charter, the creation and maintenance of a ‘homogeneous European Economic Area’ without borders, as prescribed by Article 1 EEA, is not possible to achieve.
The lack of homogeneity would mark the rejection of ‘common values’ to which the second recital to the EEA Agreement refers and undermine the normative foundation of the ‘privileged relationship’. While we are not there yet, it is timely that the EFTA Court responds to the clear signals from the CJEU. 51
Undermining effective judicial protection
The EEA Agreement is constructed upon the fundamental principle of reciprocity. 52 Further, the EFTA Court has consistently held that effective judicial protection is a general principle of EEA law. 53 A straightforward definition is that individuals and economic operators must be able to rely on the rights intended for their benefit. 54
Correspondingly, the CJEU has observed that the privileged relationship enables nationals of the EEA EFTA States to benefit from free movement ‘under the same social conditions as EU citizens’.
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In return, EU citizens can rely on their rights in Iceland, Liechtenstein and Norway.
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The CJEU has thus extended a particular conception of the principle of effective judicial protection to the EEA, which can be labelled civis europeus sum. In the words of AG Jacobs, the conceptual idea that underpinned Community law at the time that the EEA was negotiated and drafted was that: a Community national who goes to another Member State as a worker or self-employed person is entitled not just to pursue his trade or profession and to enjoy the same living and working conditions as nationals of the host State; he is in addition entitled to assume that, wherever he goes to earn his living in the European Community, he will be treated in accordance with a common code of fundamental values, in particular those laid down in the European Convention on Human Rights. In other words, he is entitled to say ‘civis europeus sum’ and to invoke that status in order to oppose any violation of his fundamental rights.
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No foreseeability
A useful protection of fundamental rights presupposes that their existence, observance, scope and rank are known in advance, so that individuals can act upon the promises and freedom they provide. Paradoxically, the EFTA Court’s reliance on the European Convention of Human Rights and the case law of the European Court of Human Rights obviates the first commandment of that Court, namely that fundamental rights must be interpreted and applied in a manner that renders them ‘practical and effective, not theoretical and illusory’. 58 It might be contended that de facto the EFTA Court compensates for its formal reluctance through a concealed and arguably quite substantive application of the Charter. 59 The absence of transparency is, however, highly unsatisfactory.
First, it is unclear what fundamental rights EEA law recognizes in addition to the ECHR (if any). From a practical point of view, the most important Charter rights are those that do not correspond to similar provisions in the ECHR. One example is Article 16 CFR on the right to conduct a business, which was invoked before the EFTA Court in Deveci. The Court replied that it found ‘no reason to address the question of Article 16 of the Charter’. 60 There is one good reason, however: there is a need to ascertain whether that hugely important Article is applicable within the framework of the EEA. 61 Instead, the EFTA Court commented that: ‘The freedom to conduct a business lies therefore at the heart of the EEA Agreement and must be recognised in accordance with EEA law and national law and practices.’ The resort to the metaphor (‘heart of’) can be interpreted in two ways: (a) the freedom to conduct a business is a general principle of EEA law, or (b), it is not, since the both the question and the legal notion were deliberately avoided.
From a practical point of view, it is important to recognize that the EEA Agreement is mainly a framework of economic and social rights. While the interpretation and application of such rights must respect civil and political rights (the ECHR), the interdependency is limited and the risk of violations small. In contrast, it is a truism that Charter rights that correspond to the ESC and/or the Charter of the Fundamental Social Rights of Workers are ‘at the heart of the EEA Agreement’. 62 These instruments protect the same values and interests, overlap and are interrelated. Still, the case law of the EFTA Court provides no foreseeability on which social and economic rights it will protect or consider relevant to its own framework of social and economic rights.
Second, while the civil and political rights of the CFR correspond to those in the ECHR, the level of protection within EEA law remains unclear. As is well known, Article 52.3 CFR stipulates that: In so far as this Charter contains rights which correspond to rights guaranteed by the Convention for the Protection of Human Rights and Fundamental Freedoms, the meaning and scope of those rights shall be the same as those laid down by the said Convention. This provision shall not prevent Union law providing more extensive protection.
Third, the relevance of the case law of the CJEU in matters that touch upon fundamental rights protection is an unresolved issue. It could be argued that if the Charter of Fundamental Rights is inapplicable within the EEA EFTA pillar of the EEA, so is the corresponding jurisprudence of the CJEU. That is indeed what the interpretative guideline of the EFTA Court would seem to indicate, by referring to the judgments of the European Court of Human Rights in particular. 64 The problem of that approach is that the practical application of fundamental rights must always adapt to the context. To mention just one example, it may appear unclear to what extent ‘the right to the protection of trade secrets’ is a contextual application of the right to private life pursuant to Article 7 CFR, or goes further than that right and, correspondingly, Article 8 ECHR. 65 It is difficult to make (full) use of that right within the framework of the EEA if its applicability depends on highly theoretical considerations that are best suited for an academic seminar.
Unfortunately, matters are not easier in simple cases. Imagine that we are within the safe area: the Charter right corresponds to a right in the European Convention, and the level of protection within the respective systems is equal. If we apply the jurisprudence of Strasbourg in such situations, it will redirect us to Luxembourg. One of the rationales of the Bosphorus doctrine is that the governance of equivalent fundamental rights shall remain within the framework of the legal order that offers such equivalent protection. That rationale would suggest that the jurisprudence of the CJEU is the relevant source in all instances where the EFTA Court relies on provisions of the ECHR that are equivalent to the CFR – which for practical purposes are all instances. It could be argued, therefore, that the interpretative guideline of the EFTA Court will always, in the first place, refer us to the wrong Court (the ECtHR), but that luckily, the jurisprudence of the ECtHR will redirect us to apply the practice of the right court (the CJEU). But who would dare give that advice to their clients?
Fourth, the approach and interpretative guideline of the EFTA Court makes the supremacy and rank between the fundamental freedoms of the EEA and the fundamental rights of the ECHR incomprehensible. In principle, there are three possible ways to manage conflicts between the two: (i) fundamental rights may be regarded as the main rule, the fundamental freedoms as the exception, or (ii) fundamental rights and fundamental freedoms may be balanced against each other on equal terms, or (iii) the fundamental freedoms may serve as the main rule, fundamental rights as the exception.
The Holship case concerned the conflict between rights that derive from Article 31 EEA (freedom of establishment) and Article 11 ECHR (freedom of association). Following the practice of the CJEU, the EFTA Court applied a combination of approaches (ii) and (iii). Eventually, the case ended up before the ECtHR, which rejected applying the Bosphorus presumption to EEA law. That finding appears correct. In the absence of an express recognition of the Charter, the ECHR is the highest-ranking source of law. Accordingly, the ECtHR is the highest-ranking external court. It cannot react to that appointment by showing self-restraint. Applied on its own terms, the interpretative guideline of the EFTA Court requires that the ECtHR undertakes a full and complete review. When doing so, the ECtHR observed that under the supremacy of the European Convention, approaches (ii) and (iii) are wrong: From the perspective of Article 11 of the Convention, EEA freedom of establishment is not a counterbalancing fundamental right to freedom of association but rather one element, albeit an important one, to be taken into consideration in the assessment of proportionality under Article 11, paragraph 2.
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Remedying the shortcomings
The four observations above show that if the EFTA Court rejects the Charter, but still tries to create an illusion of homogeneity, its approach will suffer from a lack of foundation and justification that ultimately will create a manifest absence of foreseeability. When the Charter becomes increasingly more important to the jurisprudence of the CJEU, the shortcomings of the current approach of the EFTA Court will become ever more pressing.
According to the ruling in Handelsgesellschaft, the identification of general principles ‘whilst inspired by the constitutional traditions common to the Member States, must be ensured within the framework of the structure and objectives of the community’. It is time to analyze what the general principles of EEA law are (i) by reference to the common values of the contracting parties, (ii) with due regard to the structure and objectives of the European Economic Area and (iii) in accordance with established interpretative principles of public international law. We shall address these issues in sections 5–7.
Common constitutional traditions and values
Introduction
The second recital to the EEA Agreement confirms that the EEA EFTA States subscribed to the same values as the EU Member States when the EEA Agreement was enacted. Numerous dynamic notions were employed to emphasize that the contracting parties aimed to progressively strengthen the realization of the shared values upon which the association is founded. 67 What are the common values that the contracting parties refer to?
The preamble to the Charter of Fundamental Rights suggests a clear answer. It asserts that the Charter preserves and develops the ‘common values’ of the European Union and that it ‘reaffirms’ fundamental rights as they result, in particular, from the constitutional traditions and international obligations common to the Member States, the Treaty on European Union, the Community Treaties, the European Convention for the Protection of Human Rights and Fundamental Freedoms, the Social Charters adopted by the Community and by the Council of Europe and the case-law of the Court of Justice of the European Communities and of the European Court of Human Rights.
The European Social Charter in the context of EU law
The Single European Act foresaw the progressive development of the internal market based on the political and civil rights in the ECHR and the economic and social rights in the European Social Charter. The latter has been far less visible than the former. A main explanation is that the law of the internal market is a framework on economic and social rights, and the balancing of the two. The full and unreserved adoption of the ESC would potentially affect the autonomy and nature of EU law. Instead, the Court's directive in Handelsgesellschaft – that the protection of fundamental rights must be inspired by the common constitutional traditions of the Member States, but ensured within the framework of the structure and objectives of the Community – prevailed in the field of economic and social rights. The Community made a ‘deliberate choice to adopt a catalogue of social rights specific to the European Economic Community, rather than to seek to implement the acquis of the Council of Europe in this regard’.
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The Charter of the Fundamental Social Rights of Workers – the other Charter to which the preamble to the Charter of Fundamental Rights refers – was enacted in 1989, in the form of a political declaration adopted by 11 of the 12 Member States.
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It drew ‘inspiration…from the Conventions of the International Labour Organization and from the European Social Charter’ with the aim being to ‘declare solemnly that the implementation of the Single European Act must take full account of the social dimension of the Community’.
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In this way the reference from the Single European Act to the European Social Charter was accounted for, without resorting to it. Among the reasons that explain the careful approach are that:
- Within limits, the European Social Charter is constructed to allow the contracting parties to choose by which of its provisions it will be bound.
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It can therefore be argued that its principles are not general in the fundamental sense, or at least, that further specification is necessary. - Some of the ‘rights’ in the ESC are not regarded as rights within the EU legal order, but rather as objectives. - Other rights enshrined in the European Social Charter are principles rather than individual rights, that is, they do not have direct effect and cannot be relied upon before courts.
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The adoption and implementation of such rights need careful consideration to ensure that they fit with the legislative and judicial system of the Union. - While the European Social Charter differentiates between core rights and other rights, it is still only a convention, and thus has only one level. Within the more nuanced construction of EU law, not all of them are necessarily ‘fundamental’, and should only be afforded protection at the level of secondary legislation.
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- There are discrepancies between the rights enshrined in the European Social Charter and the competences of the EU. The EU has not been attributed competence in all the areas concerned.
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- The European Social Charter is comprehensive and detailed. Not all the nuances therein are generally accepted among the EU Member States.
Compared to the European Social Charter, the EU's Charter of the Fundamental Social Rights of Workers has been described as a ‘directly competing, albeit significantly narrower, document’. 75 The enactment of the Charter of Fundamental Rights is a continuum of the watered-down approach. The CFR ‘reaffirms’ social rights that are accepted among the Member States and that fit with the EU legal order. Its distinction between ‘rights’ and ‘principles’ ensures that social rights do not gain direct effect merely because of their inclusion in the Charter. Further, while Article 53.2 CFR refers to the ECHR as a floor, there is no such quasi-implementation of the ESC. Finally, Article 51.2 CFR and Article 6.1 TEU make clear that the rights enshrined in the Charter do not establish any new power or task for the Union. It has been observed that as a whole, ‘the list of social rights, freedoms and principles of the EU Charter of Fundamental Rights pales in comparison with the full list of the 1961 and 1996 versions of the European Social Charter’. 76
The European Social Charter in the context of the EEA Agreement
Norway ratified the ESC in 1962 and the revised Charter in 2001. Iceland ratified the ESC in 1976 and the revised Charter in 2024. Liechtenstein signed the ESC in 1991. The European Social Charter thus expresses common values that are shared amongst the EU Member States and the EEA EFTA States.
While economic and social rights are accepted as ideal values, their enforcement may still remain controversial. Important issues are whether such rights are justiciable, whether individuals have standing, before whom and in what context. It may be argued that the pressing question is not whether the EEA EFTA States subscribe to the European Social Charter, but whether the rights and values enshrined therein are relevant in the context of the EEA. There is overwhelming evidence in support of the latter.
First, as was described above, the European Convention of Human Rights and the European Social Charter were both referred to in the preamble to the Single European Act (1986). The fundamental rights of the ECHR and the ESC were regarded as common values that the Member States were ‘determined’ to promote. After its completion by the end of 1992, the internal market was eventually extended to the EEA EFTA States. The reference to ‘common values’ in the second recital to the EEA Agreement is thus very specific. Far from being a random expression that pursues an aesthetic purpose, it provides concrete confirmation that the EEA EFTA States subscribe to the values to which the Single European Act explicitly refers, within the context of the EEA Agreement.
Second, as the Community chose a more specific path to the preservation of the social and economic rights, by the enactment of the Charter of the Fundamental Social Rights of Workers in 1989, the EEA EFTA States followed. Homogeneous to the declaration issued by the EU Member States, the EEA EFTA States declared that: The Governments of the EFTA States share the view that enlarged economic cooperation must be accompanied by progress in the social dimension of integration, to be achieved in full cooperation with the social partners. The EFTA States wish actively to contribute to the development of the social dimension of the European Economic Area. They therefore welcome the strengthened cooperation in the social field with the Community and its Member States established under this Agreement. Recognizing the importance of guaranteeing, in this context, the fundamental social rights for workers within the whole EEA, the abovementioned Governments endorse the principles and basic rights laid down in the Charter of the Fundamental Social Rights of Workers of 9 December 1989…
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Third, it is important to note how the Charter of Fundamental Social Rights for Workers was changed throughout the drafting process.
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It was first introduced as an instrument that aimed to implement a ‘social policy at Community level’, that is, in general, but was adjusted to address the social aspects of the internal market. In other words, these aspects are regarded as intrinsic to the market. Recital two stipulates that: in the context of the establishment of the single European market, the same importance must be attached to the social aspects as to the economic aspects and whereas, therefore, they must be developed in a balanced manner. the completion of the internal market is the most effective means of creating employment and ensuring maximum well-being in the Community; whereas employment development and creation must be given first priority in the completion of the internal market. It is more particularly the responsibility of the Member States, in accordance with the national practices, notably through legislative measures or collective agreements, to guarantee the fundamental social rights in this Charter and to implement the social measures indispensable to the smooth operation of the internal market as part of a strategy of economic and social cohesion.
Fourth, as a confirmation of the observations above, it is remarkable how the preamble to the EEA Agreement reproduces the specific and carefully chosen notions of the final version of the Charter of Fundamental Social Rights for Workers. The eleventh recital emphasizes the importance of the development of the social dimension, including equal treatment of men and women, in the European Economic Area and wishing to ensure economic and social progress and to promote conditions for full employment, an improved standard of living and improved working conditions within the European Economic Area.
To sum up, the observations above confirm that the notion of ‘common values’ in the preamble to the EEA Agreement is not merely a reference to the ECHR. Within the context of the EEA, the notion of ‘common values’ does also include ‘the Social Charters adopted by the Community and by the Council of Europe and the case-law of the Court of Justice of the European Communities’. 79
The Charter of Fundamental Rights within the ‘structure and objectives’ of the EEA
The substantive dimension of the ‘special relationship’
Just as in EU law, the general principles of EEA law must be identified and ensured within the framework of ‘the structure and objectives’ of the European Economic Area. The CJEU considers the association agreement to be the foundation of a ‘special relationship’. 80 The far-reaching substantive rights that the Court identified in Ruska Federacija v. I.N. suggest that ‘the special relationship’ carries a constitutional dimension. 81 As observed by Petti, the case ‘marked a step forward in the establishment and consolidation of the homogeneous EEA legal space’. 82 The latter is confirmed by the more conceptual ruling in Alchaster.
The I.N. ruling concerned a Russian who fled to Iceland and acquired double citizenship. He then travelled to Croatia for holiday but was arrested at the border, as the Russian Federation had requested his extradition. The CJEU confirmed that EEA nationals benefit from the same rights protection as EU citizens and extended the principle of civis europeus sum to the European Economic Area.
I.N. was a recipient of services as, amongst other things, he held a valid bus ticket. A crucial question was whether Article 36 EEA should be interpreted as broadly as Article 56 TFEU. The right of individuals to travel to another Member State under the cover of receiving services there has always been a proxy for ‘European citizenship’. 83 In Demirkan, the CJEU rejected the existence of such right under the EEC–Turkey association agreement. It noted that the EEC–Turkey agreement has a ‘purely economic’ aim and does not pursue the objective of establishing an ‘area without internal borders’. 84 To the contrary of that judgment, and by reference to the special relationship between the EEA EFTA States and the EU, the ruling in I.N. stipulates that Article 36 EEA affords protection to service recipients. 85
Three observations of a general nature can be derived from I.N.. First, as noted by the CJEU, the legal situation of an EEA national is ‘objectively comparable with that of an EU citizen’. 86 The broad interpretation of Article 36 EEA within the framework of the ‘special relationship’ flows from Article 1 EEA, which establishes that the creation of a ‘homogeneous European Economic Area’ shall entail ‘the free movement of persons’. 87 The principal objective of the association agreement is ‘to provide for the fullest possible realization of the free movement of goods, persons, services and capital within the whole EEA, so that the internal market established within the European Union is extended to the EFTA States’. 88
The second observation is that a general right of free movement of persons in the European Economic Area makes the protection of fundamental rights within the framework of the ‘special relationship’ equally important as in EU law. Accordingly, the CJEU applied Article 36 EEA in conjunction with Article 19 of the Charter of Fundamental Rights. For the main part, the reasoning was substantive: 89 ‘Article 4 of the EEA Agreement requires equal treatment for persons in a situation governed by that agreement’. 90 The principle of non-discrimination fosters an EEA-wide principle of civis europeus sum. Imagine that next time, ‘I.N.’ is a Russian-Croatian who is stopped at the Icelandic border. If the reasoning in Ruska Federacija v. I.N. is transposed to that situation, the protection that Iceland offers to its own nationals is irrelevant in comparison. It is also irrelevant that, formally, the EU Charter of Fundamental Rights has not been implemented into the EEA Agreement. Within the framework of the structure and objectives of the ‘special relationship’, the relevant consideration is whether the Croatian citizen enjoys the same protection in Iceland as an Icelandic citizen enjoys in Croatia. 91 That is not possible to achieve unless, as a matter of Article 4 EEA, EU citizens are allowed to rely on the Charter within the scope of the EEA Agreement.
The third observation is that the substantive findings in the I.N. ruling flow from the structure and objective of the ‘special relationship’ and are influenced by considerations of equality, homogeneity and human rights protection. Their fundamental character signals that the ‘special relationship’ is a conceptual notion, which not only provides privileges, but carries with it a set of constitutional requirements.
The structural dimension of the ‘special relationship’
The subsequent ruling of the CJEU in Alchaster clarifies the constitutional dimension of the ‘special relationship’. The case concerned the execution of four arrest warrants issued by Northern Ireland (United Kingdom), who demanded that Ireland surrender MA, an alleged terrorist. MA claimed that the surrender to the UK would violate Article 49.1 CFR, on the ground that the UK had enacted new conditions for release on licence that were less favourable than those which applied on the day of the alleged crime. The main question before the CJEU was how Irish courts should undertake the assessment of conformity with the Charter, more particularly if the surrender to the UK under the Trade and Cooperation Agreement (TCA) should be carried out as if it were a Member State. 92
Between the EU Member States the so-called ‘two-step test’ introduces a procedure that requires ‘each of those States, save in exceptional circumstances, to consider all the other Member States to be complying with EU law and particularly with the fundamental rights recognised by EU law’. 93 As the main rule, the two-step test prevents a substantive review of whether other Member States will observe fundamental rights in a specific case. 94 To the opposite, the extradition of a person to a third country requires a specific and substantive examination of whether there are valid reasons to believe that there is a real risk of a breach of fundamental rights. 95
Procedurally, the ‘two-step test’ applies in relation to Iceland and Norway, who are on the same footing as the EU Member States, but not in relation to the UK. The UK’s relationship to the EU is not as special as the relationship of the EEA EFTA States; 96 that is to say, a surrender to the UK shall not be examined as if it were a Member State.
Conceptually, the CJEU's description of the ‘special relationship’ implies that the principle of mutual trust underpins the relationship between the EU Member States and the EEA EFTA States. According to the CJEU, mutual trust is the prerequisite for a European area without internal borders. 97 The principle is based on ‘the fundamental premiss that each Member State shares with all the other Member States, and recognises that they share with it, a set of common values on which the European Union is founded, as stated in Article 2 TEU’. 98 While the Alchaster ruling did not concern the EEA Agreement, the EFTA Court has acknowledged the composite approach of the CJEU to the Schengen acquis, the common European asylum system and the Agreement on the surrender procedure. According to the EFTA Court, ‘it is clear that international agreements beyond the EEA Agreement itself are relevant in determining the extent of this special relationship’. 99 If the reasoning in Alchaster is transposed to the EEA Agreement, it implies that there is no European Economic Area unless the EEA EFTA States subscribe to the common values that permeate the composite special relationship.
Substantively, the absence of borders presupposes that the common area is guarded by a shared set of values, principles and rules. According to the CJEU, the EU Member States are required ‘to ensure respect for the fundamental rights afforded by the Charter’. 100 Further, the application of the two-step test presupposes that the other states comply with ‘the fundamental rights recognised by EU law’. 101 Arguably, unless the EEA EFTA States recognize and apply the Charter, there is a ‘real risk’ that it will not be complied with. 102 The ruling in Alchaster may therefore be taken to confirm what the ruling in I.N. suggests: the concept of ‘special relationship’ and the part-taking in a European area without borders presupposes that the EEA EFTA States subscribe to and apply the general principles of law that are reaffirmed by the Charter.
The general principles of the Charter are intrinsic to the special relationship
Because of its name and content, the Charter of Fundamental Rights is sometimes compared to a ‘bill of rights’ or to the ECHR. Indeed, it is controversial to impose a bill of rights upon a state without its consent. Would anyone apply the ECHR against a state that is not party to that convention? Probably not. The parallels are wrong and misleading, however. Far from being a bill of rights, the Charter lacks the two most defining features of such catalogues: it is not universal, nor is it autonomous. The applicability of the Charter is intrinsic to the law that governs the European area without borders.
Within the framework of EU and EEA law, any outcome that is prescribed by the Charter will lie within the range that is stipulated by enforceable Treaty rules in the first place. The Charter does not add to the scope and reach of such rules, it only provides for their uniform implementation and application. Its applicability is triggered by EU law, and by extension EEA law – that is, EU law, and by extension EEA law is the legal basis. Within that specific context, the observance of the general principles of the Charter forms part of the interpretative process.
In the implementation situation, the intrinsic nature of the Charter will normally be self-evident. Secondary legislation makes specific fundamental rights operational such as, for example, the GDPR, 103 or adapts them to a specific context, such as the various provisions that protect private life by affording derived rights to family members. 104 After the incorporation of such acts into the EEA Agreement, the issue of legal basis does not occur. What remains is only a matter of interpretation. The Charter is relevant to understand the substantive law and cannot be disregarded by reference to formal considerations. As we have seen, the Charter ‘reaffirms’ general principles. The preamble to the EEA Agreement confirms that the EEA EFTA States subscribe to ‘common values’. Not even sceptics disregard such statements as irrelevant but will contend that they are ‘too general’ or ‘not binding’. Be that as it may, with regard to secondary EEA legislation, the consent of the contracting parties in the form of a Joint Committee decision provides specificity and bindingness. 105
If we turn to the derogation situation, the starting point is that the fundamental freedoms prohibit any restriction on free movement, prima facie. While they are not applied in such rigid manner, the written Treaty articles provide a far-reaching legal basis to strike down national measures. Exceptions, on the other hand, do not require a specific, textual legal basis. The Court-made doctrine of mandatory requirements is the obvious example.
106
Discretion forms an inherent part of the judicial review of proportionality.
107
Courts may uphold the main rule, for example by rejecting economic or administrative considerations as a justification for restrictions on free movement or by imposing requirements such as consistency, necessity and proportionality in the strict sense.
108
The general principles of the Charter guides the way in which courts exercise their discretion, as the extent to which the Member States may validly derogate from freedoms of movement is undoubtedly a matter of EU law. The scope of that option depends on the interpretation of the provisions of the Treaties relating to such freedoms and cannot be determined by each Member State on the basis of its own values without undermining the effectiveness and uniform application of those freedoms in all Member States. That option must be defined in the light of the EU's principles and values.
109
Where it is apparent that national legislation is such as to obstruct the exercise of one or more fundamental freedoms guaranteed by the EEA Agreement, it may benefit from the exceptions provided for by EEA law in order to justify that fact only in so far as that complies with the fundamental rights enforced by the Court. That obligation to comply with fundamental rights manifestly comes within the scope of EEA law….
Identifying and acknowledging the general principles of EEA law
Rights-by-rights approach or general principles?
The final question is how the general principles are identified and acknowledged. Should the EFTA Court recognize the Charter as an expression of general principles of EU and EEA law, rooted in common values? Or should it instead adopt a rights-by-rights approach? A rights-by-rights approach will typically rely on the detailed mapping of rights and principles in other legal instruments by which the EEA EFTA States are bound – with the aim of deducting general principles that correspond to the scope and reach of the external sources.
The arguments against a rights-by-rights approach are, first, that it does not remedy the shortcomings of the current approach, identified in section 4. Second, a concealed approach which does not openly acknowledge the influence of the Charter, such as in Fred Olsen cited above, is arguably the worst of two worlds. If the EFTA Court considers it illegitimate to refer to the Charter, it can hardly rely on it either. Third, a rights-by-rights approach finds little support in legal method. For our purposes it suffices to sketch out how the CJEU, the ECtHR and the EEA contracting parties approach general principles.
Message from EU law: Framework of the structure and objectives
In EU law, the fundamental starting point is that the Treaties are an ‘independent source of law’. 112 For this reason alone, it is obvious that the CJEU will not engage in nitty-gritty analysis of the scope and reach of rights contained in other treaties or legal systems. As observed by Douglas-Scott, the Court does ‘not really undertake comparison of law utilizing standards of academics’. 113 Another reason is that the general principles of EU law cannot be copied from elsewhere but must be constructed to fit the ‘framework of the structure and objectives’ of that system. 114 In the formal, negative sense, external sources are ‘inspiration’ only, that is, not binding. In the methodological, positive sense external sources are still important because they enable, justify and even demand creativity. That explains why, occasionally, the approach to such material is marked by ‘a lack of organization and definition which corresponds to the rather untidy jurisdictional overlap. Most of the references are short and do not involve much analysis of the relevant case’. 115 Methodologically, said approach would be wrong if the external sources were binding. When not binding, it would, however, be wrong to approach them as if they were.
The lesson from EU law is that while nitty-gritty deduction may seem more advanced and academic, it is not necessarily better, nor does it provide clarity. Most importantly, while general principles may be inspired by external sources of law, their application is rooted in the structure and objectives of the framework that governs the European Area without internal borders. The proposition of EU law to EEA law is that the Charter expresses the general principles that are relevant within the framework of that legal order.
Message of the ECtHR: European consensus, not lowest common denominator
The judgment of the grand chamber of the ECtHR in Demir and Baykara concerned the interpretation of Article 11 ECHR (freedom of association). The ruling is famous because the court departed from its previous case law and established that the right to bargain collectively has become one of the essential elements of the right to form and to join trade unions for the protection of one's interests. 116 That development was highly influenced by other sources of international law, Article 28 of the EU Charter of Fundamental Rights and Article 6 of the European Social Charter in particular. 117
Before the grand chamber, Turkey invoked ‘the Norwegian defense’ 118 and argued that the case was inadmissible because ‘it was impossible to rely against them on international instruments other than the Convention, particularly instruments that Turkey had not ratified’. Turkey contended that the ECtHR could not create new obligations that were not provided for in the Convention. 119 The ECtHR did not agree. Three observations deserve to be highlighted.
First, by reference to its previous judgment in Golder, the ECtHR reiterated that the relevant rules of international law applicable in the relations between the parties also include ‘general principles of law recognised by civilized nations’. 120 By quoting Article 38.1(c) of the statute of the ICJ, the ECtHR emphasizes that the identification of general principles of law is a legal issue governed by legal method, not a political issue governed by political consent.
Second, as a matter of methodological approach, the ruling in Demir and Baykara explains in length why the ECHR is not the sole framework of reference for the interpretation. The ECtHR will take ‘any relevant rules and principles of international law applicable in relations between the Contracting Parties into account’. 121
Third, the ECtHR observed that ‘the common international or domestic law standards of European States reflect a reality that the Court cannot disregard’. The ECtHR rejected distinguishing between sources of law ‘according to whether or not they have been signed or ratified by the respondent State’. Instead, it affords weight to rules and principles that are accepted by ‘the vast majority of states’. 122
The message that can be derived from the methodological approach of the ECtHR is neatly encapsulated by the explanatory memorandum to the EU Charter of Fundamental Rights: rather than following a rigid approach of ‘a lowest common denominator’, the Charter rights concerned should be interpreted in a way offering a high standard of protection which is adequate for the law of the Union and in harmony with the common constitutional traditions.
Message of the EEA contracting parties: Common values
In fact, it is possible to argue that the EEA Agreement has been updated and revised in a manner that reflects the enactment of the Charter of Fundamental Rights. The most bureaucratic and boring provision of the EEA Agreement, Article 117, stipulates that: Provisions governing the Financial Mechanisms are set out in Protocol 38, Protocol 38a, the Addendum to Protocol 38a, Protocol 38b, the Addendum to Protocol 38b and Protocol 38c.
Protocols 38a and 38b did not refer to overarching values. Protocol 38c introduced a remarkable clarification. Its Article 1.2 stipulates that: All programmes and activities funded by the EEA Financial Mechanism 2014–2021 shall be based on the common values of respect for human dignity, freedom, democracy, equality, the rule of law and the respect for human rights including the rights of persons belonging to minorities.
The newly enacted Protocol 38d adds a further paragraph: All programmes and activities funded by the EEA Financial Mechanism shall be consistent with respect for these values and principles and abstain from supporting operations that may fail to do so. Their implementation shall comply with the fundamental rights and obligations enshrined in relevant instruments and standards.
Concluding remarks
The paper has argued that the ‘special relationship’ between the EEA EFTA States, the EU and its Member States is founded upon a set of common values. Common values and common rules are necessary for the creation and maintenance of a homogeneous European area without borders. The Charter of Fundamental Rights of the EU expresses general principles of law that govern the functioning of that area. The EEA EFTA States have confirmed and re-confirmed that they subscribe to the values and rights upon which homogeneity is premised and constructed.
In 1651, Thomas Hobbes described life outside society as ‘solitary, poor, nasty, brutish, and short’. He argued in favour of a community among people: the state. The same experiences and ideas fostered the creation of a community among peoples: the EU. While its internal market is important, unruly times reveal what the EU is all about. Within the framework of the ‘special relationship’, it is not controversial to regard the ‘common values’ to which the second recital of the EEA Agreement refers as a constitutional underpinning, equivalent to Article 2 TEU. Within this context, the legal sources that have been identified and examined in this paper justify that the Charter of Fundamental Rights of the EU is recognized as an expression of general principles that are intrinsic to the structure and objectives of the EEA Agreement. 125
Footnotes
Declaration of conflicting interests
The author declared no potential conflicts of interest with respect to the research, authorship, and/or publication of this article.
Funding
The author(s) disclosed receipt of the following financial support for the research, authorship, and/or publication of this article: The Article is part of research project 325328, Welfare across borders: solidarity, equality and free movement (LEVEL). This work was supported by the Norges Forskningsråd (Norwegian Research Council), grant number 325328.
