The Charter of Fundamental Rights of the European Union: Central European Opt-Outs and the Politics of Power

Abstract

The proclamation of the Charter for Fundamental Rights of the European Union, in December 2000 at Nice, France, followed by its inclusion within the failed Constitutional Treaty and its current status as a legally binding document under the Treaty of Lisbon, charts the changing fortunes of European Union politics dealing with fundamental rights protection. This article outlines the main rationales and hopes behind the enactment of the Charter and notes that through the process of political conditionality it may have been devalued from its very conception. The article suggests that, following their accession, Poland, and later the Czech Republic, used the Charter and Lisbon Treaty negotiations, including their opt-outs from the Charter, to engage in a game of power politics that had both domestic and European undertones. This politics of power game-play reflected a need by both states, and Poland in particular, to respond to both the political conditionality that they had been required to sign up to as part of the accession process and to emphasise how membership had improved their negotiating power. The article suggests that the consequence of this action by both states has not only further devalued the Charter but potentially undermined the rights of Polish and Czech citizens.

Notes

¹ See also the Lisbon Treaty new title V, Article 21. For the latest consolidated version of the EU Treaties see Official Journal of the European Union, OJ C 326 and C 237 of 26 October 2012, available at: http://europa.eu/lisbon_treaty/full_text/, accessed 2 April 2010.

² J. Tazbir commented that the French ‘Histoire de Europe’, which was going to be the prototype of the textbook on the history of Europe sanctioned by the European Union, mentions Poland only sparingly and only as a country on the periphery of Europe proper. Tazbir points out that almost all texts on the history of Europe stop on the Elbe line. Anything beyond this are the ‘far provinces of Europe’. According to this particular mapping exercise, Poland and the Baltic states are placed in Central Eastern Europe, France or Germany belong to the Western and not the Central-Western part of the continent.

³ ‘Convening of the Intergovernmental Conference: Opinion of the European Parliament (debate)’, Document A6-0279/2007, 11 July 2007, Strasbourg, available at: http://www.europarl.europa.eu/sides/getDoc.do?pubRef = -//EP//TEXT+CRE+20070711+ITEM-005+DOC+XML+V0//EN&query = INTERV&detail = 3-081, accessed 26 July 2013.

⁴ ‘European Parliament Resolution of 11 July 2007 on the Convening of the Intergovernmental Conference (IGC): The European Parliament's Opinion (Article 48 of the EU Treaty) (11222/2007—C6-0206/2007—2007/0808(CNS))’, 11 July 2007, available at: http://www.europarl.europa.eu/sides/getDoc.do?pubRef = -//EP//TEXT+TA+P6-TA-2007-0328+0+DOC+XML+V0//EN, accessed 26 July 2013.

⁵ See Dougan (2008, p. 665) on potential problems with interpreting the ‘implementation of Union law’.

⁶ ‘IGC 2000: Contribution from the Government of Poland’, CONFER/VAR 3967/00, 3 July 2000, Brussels, available at: http://www.proyectos.cchs.csic.es/euroconstitution/library/historic%20documents/Nice/Negotiation/Contribution%20from%20the%20government%20of%20Poland.pdf, accessed 26 July 2013.

⁷ 2007/C 306/02—The Final Act of Brussels Conference, 17 December 2007, at which the Treaty of Lisbon was adopted, available at: http://eurlex.europa.eu/en/treaties/dat/12007L/htm/C2007306EN.01027002.htm, accessed 14 March 2010.

⁸ The ‘Ioannina compromise’ takes its name from an informal meeting of foreign ministers in the Greek city of Ioannina on 29 March 1994. At the meeting the Council adopted a decision concerning the specific question of qualified majority voting in an enlarged 16-member Union. This made it possible to form a blocking minority against the EU Council's decision. The Nice Treaty replaced this with new voting rules. Poland, however, considered it favourable and was pushing for its re-instatement. See: http://europa.eu/legislation_summaries/glossary/ioannina_compromise_en.htm, accessed 24 March 2010.

⁹ ‘Dylematy z Kartą Praw Podstawowych’, interview with Andrzej Zoll, Fundacja Prawo Europejskie, 10 August 2007 (Warszawa, Wolters Kluwer), available at: http://www.lex.pl/adres/-/adreson/fundacja-prawo-europejskie, accessed 23 March 2010.

¹⁰ ‘Karta praw podstawowych z krainy utopii’, Rzeczpospolita, 29 November 2007, available at: http://www.rp.pl/artykul/72780.html, accessed 15 March 2013.

¹¹ ‘Czy obawy przed przyjęciem Karty Praw Podstawowych UE są uzasadnione?’, available at: http://www.tvn24.pl/1000617,1,1,czy-obawy-przed-przyjeciem-karty-praw-podstawowych-ue-sa-uzasadnione,sondy.html, accessed 13 July 2013.

¹² The Polish government, on the other hand, asserts that debates and consultations over the Charter have been ongoing since December 2000.

¹³ The lack of knowledge and understanding of the EU and its laws was also prevalent among Polish governing elites. See, for instance, Kaczyński (2007).