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R 171653Z MAR 08
FM USEU BRUSSELS
TO RUEHC/SECSTATE WASHDC
INFO RUEHZL/EUROPEAN POLITICAL COLLECTIVE
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RUCNDT/USMISSION USUN NEW YORK
RUEHNO/USMISSION USNATO

UNCLAS SECTION 01 OF 04 BRUSSELS 000397 
 
SIPDIS 
 
SIPDIS 
 
DEPT FOR EUR/ERA 
DEPT ALSO FOR USTR 
 
E.O. 12958: N/A 
TAGS: PREL EUN ELAB PHUM
SUBJECT: EU TREATY OF LISBON: CHARTER OF FUNDAMENTAL RIGHTS 
AND SOCIAL POLICY 
 
REFs:  A) 2008 BRUSSELS 00303; (B) 2007 BRUSSELS 3488 
 
 
SUMMARY 
------- 
 
¶1.  With the Treaty of Lisbon (targeted for entry into 
force in 2009) the EU Charter of Fundamental Rights -- 
first proclaimed in 2000 as a political declaration Q- will 
become binding and acquire the same legal value as the 
Treaties without altering the Union's powers.  The UK and 
Poland secured a derogation (an "opt-out") designed to 
prevent the EU Court of Justice as well as British and 
Polish courts from assessing that legislation in both 
countries is not compatible with the Charter.  The Treaty 
of Lisbon also provides a legal framework to maintain and 
develop achievements in the field of EU social policy. 
Though the scope of EU policy will not be altered, some 
adjustments may occur by way of changes in the general 
objectives, voting rules, an increased emphasis on the 
"social dialogue," and provisions for keeping the European 
Parliament better informed. 
 
¶2.  This message, building on previous USEU reporting on 
the Treaty of Lisbon (REFTELS), is the third in a series 
that is meant to put the forthcoming EU reforms in 
perspective and to assess their potential impact on our 
relations with the EU.  Other messages will follow that 
will focus, among other issues, on foreign policy, defense, 
justice and home affairs, and economic policy.  End 
Summary. 
 
CHARTER BECOMES LEGALLY-BINDING 
------------------------------- 
 
¶3.  The EU Charter of Fundamental Rights was first 
proclaimed by the EU leaders, the European Commission, and 
the European Parliament in December 2000 as a political 
declaration setting out a range of civil, political, 
economic, and social rights.  The drafting of the document 
was prompted by a 1996 ruling by the EU Court of Justice 
that the treaties establishing the European Community did 
not empower the EC as such to accede to the European 
Convention on Human Rights, despite all member states being 
signatories to the Convention.  In a context also marked by 
the 50th anniversary of the Universal Declaration of Human 
Rights, EU leaders in June 1999 concurred that fundamental 
rights should be consolidated at the EU level and that a 
"Charter" would make such rights more visible to their 
citizens. 
 
¶4.  As published in 2000 and basically confirmed last year 
in "Lisbon," the Charter is divided into six sections, 
dealing with dignity, freedoms, equality, solidarity, 
citizens' rights, and justice.  The Charter appears like a 
catalogue drawing from the 1950 European Convention on 
Human Rights, the case-law of the EU Court of Justice, 
national constitutional traditions, the COE Social Charter 
and the 1989 Community Charter of Fundamental Social Rights 
of Workers.  The EU compendium differs from the 1950 
European Convention on Human Rights (COE text), which 
relates solely to civil and political rights, by going 
beyond traditional human rights and addressing modern 
issues such as bio-ethics and the protection of personal 
data. 
 
¶5.  Not designed to be a legal document, the Charter was 
given the ambiguous value of a "solemn proclamation."  As 
the text did not get the status of Community law, cases 
could not be brought solely on the ground of a breach with 
it.  Meanwhile, the Commission continued to press for a 
Treaty revision to allow the EU as such to accede to the 
European Convention on Human Rights.  The Charter was 
incorporated -- as part II -- into the draft Constitutional 
Treaty rejected by French and Dutch voters in 2005.  The 
agreement on the draft "Constitution" made it clear that 
the Charter, if it were to acquire legal force, would only 
be binding on the EU institutions and would not limit the 
competencies of member states under the Treaties. 
 
¶6.  The Treaty of Lisbon (ToL) signed in December 2007 no 
longer contains the text of the Charter but includes a 
reference to it, whereby the Charter gains legally binding 
force: "The Union recognizes the rights, freedoms and 
principles set out in the Charter of Fundamental Rights." 
 
BRUSSELS 00000397  002 OF 004 
 
 
The original (2000) version of the Charter was slightly 
amended before the Lisbon signing to adjust it to the text 
that was part of the rejected "Constitution."  The amended 
text was proclaimed and signed by the Presidents of the 
European Parliament (Pttering), Commission (Barroso), and 
European Council (Portuguese PM Socrates) at a plenary 
session of the EP on December 12, 2007.  It was published 
in the Official Journal of the European Union (number C 
303, December 14, 2007). 
 
¶7.  The ToL expressly mentions that the Charter of 
Fundamental Rights will have "the same legal value as the 
Treaties." (Article 6 TEU).  Other provisions specify, 
sometimes with redundancies, that: 
 
-- The Charter does not extend the field of Union 
competencies; it establishes no new powers or tasks 
for the Union; and it does not amend its powers or its 
tasks such as they are defined in the Treaties; 
 
-- The Charter applies to institutions and Member States 
only when they are implementing the UnionQs law; 
 
-- "Fundamental rights, as guaranteed by the European 
Convention on 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." 
 
UK AND POLAND GET "OPT-OUTS" 
---------------------------- 
 
¶8.  Such limitations were not sufficient guarantees for the 
British and Polish ToL negotiators.  Anxious to "clarify 
certain aspects of the application of the Charter," both 
countries secured a Protocol -- by itself having the same 
legal value as the Treaty -- establishing exceptions ("opt- 
outs") with regard to the jurisdiction of the EU Court of 
Justice (ECJ) and of their national courts for the 
protection of the rights recognized by the Charter.  The 
Protocol explicitly states that: 
 
-- "The Charter does not extend the ability of Court of 
Justice of the EU, or any court or tribunal" of the UK or 
Poland "to find that the laws, regulations or 
administrative provisions, practices or action by the UK or 
Poland are inconsistent with the fundamental rights, 
freedoms, and principles that it reaffirms"; 
 
-- "In particular () nothing in Title IV of the Charter 
creates justiciable rights" applicable to the UK or 
Poland, except in so far as the UK or Poland has 
provided for such rights in its national legislation." 
The provision refers to the section of the Charter 
concerning social rights such as the information of 
workers, collective bargaining, the right to strike, 
protection against dismissal, working conditions, 
child labor, family life, social security and 
assistance, health, access to services of general 
economic interest, protection of the environment and 
consumers. 
 
-- "To the extent that a provision of the Charter refers 
to national laws and practices, it shall only apply to 
Poland or the UK to the extent that the rights or 
principles that it contains are recognized in the law 
or practices of Poland or the UK." 
 
¶9.  In the 2007 ToL negotiations, the Polish government 
then headed by PM Jaroslav Kaczynski aligned itself with 
British demands.  In a unilateral Declaration annexed to 
the ToL, Poland stated that, having regard to the tradition 
of social movement of "Solidarity" ("Solidarnosc"), it 
"fully respects social and labor rights" as established by 
EU law and the Charter.  However, anxious to preserve its 
anti-abortion legislation, Poland also specified in another 
unilateral Declaration that the Charter "does not affect in 
any way the right of Member States to legislate in the 
sphere of public morality, family law, as well as the 
protection of human dignity and respect for human physical 
and moral integrity."  Shortly after the mid-October 2007 
deal on the new treaty, a newly-establish Polish government 
hinted it might reconsider the "opt-out."  PM Tusk 
nevertheless decided that his government would not take any 
decision in this respect pending ratification of the ToL. 
 
BRUSSELS 00000397  003 OF 004 
 
 
The Irish government, which had initially reserved its 
right to "opt-out" as well, did not follow up in the final 
round of the negotiations. 
 
TREATY CHANGES IN SOCIAL POLICY AREA 
------------------------------------ 
 
¶10.  Further to the Charter's section on "solidarity" 
listing a number of rights and principles directly relevant 
to social policy (para 8), the ToL provides a legal 
framework to maintain and develop EU social policies in 
full respect of national prerogatives.  Though the scope of 
EU policy will not be affected, there will be adjustments 
as follows: 
-- EU objectives:  A highly competitive social market 
economy aiming at full employment and social progress, 
the fight against "social exclusion and 
discrimination," as well as "social justice and 
protection, equality between women and men, solidarity 
between generations and protection of the rights of 
the child" are included among the general objectives 
of the EU; 
-- A new provision compels the Union "in defining and 
implementing its policies and actions" to take account 
of a series of "requirements," i.e. the promotion of a 
high level of employment, the guarantee of adequate 
social protection, the fight against social exclusion, 
and a high level of education, training and protection 
of human health (Article 9 TFEU).  Similarly, the 
Union must take into account the fight against certain 
types of discrimination Q on grounds of sex, race or 
ethnic origin, religion or beliefs, disability, age or 
sexual orientation (Article 10 TFEU); 
 
-- Matters related to social security rights for workers 
exercising their freedom of movement within the EU may 
be subject to qualfied majority voting (QMV) rather 
than unanimiy, as is currently the case (Article 42 
TFEU).  Per Germany's request, a safeguard procedure 
will allow for referral to the European Council 
(meaning: veto right) where a Member State considers 
that a proposal would "affect important aspects of its 
social security system."  Triggering the procedure 
will suspend the measure proposed by the Commission; 
 
-- The role of the "social partners" at EU level is 
spotlighted in a new article (136a TFEU), along with 
the necessity of "taking into account the diversity of 
national systems."  The "Social Summit" (top-level 
meeting with EU labor and employers' organizations) 
ahead of the "Spring" European Council is also 
enshrined in the Treaty.  The "social partners" may be 
given a mandate to transpose Directives based on 
collective bargaining (a possibility already existing 
for Directives based on the regular procedure -- i.e. 
without a collective agreement); 
 
-- The EP must be informed on agreements concluded 
between the "social partners," which was not the case 
until now (though the Commission informally conveyed 
that information to EP), and on actions taken by the 
Commission to facilitate cooperation between Member 
States.  Such actions may typically involve exchange 
of best practices, establishment of benchmarks, 
monitoring and evaluation (Articles 139-140 TFEU). 
 
COMMENT 
------- 
 
¶12.  Though the ToL gives the Charter the status of a legal 
instrument, member states took all precautions to limit the 
scope of its application.  According to some EU sources and 
practitioners, however, the UK and Polish "opt-outs" under 
"Lisbon" may be subject to future disputes and both 
countries may face cases and ECJ rulings concerning their 
compliance with fundamental rights enshrined in the 
Charter.  A Polish citizen denied the right to family 
regrouping with a same sex partner could invoke the 
Charter.  The UK (and U.S. companies in the UK) may become 
entangled in legal cases with the ECJ and the Commission 
over the right to "opt-out" from the 48-hour weekly limit 
in the EU "Working Time" Directive.  Should the British be 
outvoted in current attempts to remove that "opt-out" from 
the Directive, the Commission could feel bound to take the 
UK to the Court, which would put to test the real value of 
 
BRUSSELS 00000397  004 OF 004 
 
 
the other, more general UK "opt-out" in the Lisbon 
Protocol. 
 
MURRAY