The European Union's comprehensive system of fundamental rights protection under the Treaty of Lisbon

¶ … Treaty of Lisbon is the culmination of many years of negotiations highlighted by heated debates, compromise, and disappointments. All twenty seven members of the European Union signed the agreement with Czech Republic President Vaclac Klaus being the last signator opening a whole new era in human rights and responsibilities on the continent of Europe.

The European Union had struggled under a burgeoning bureaucracy and one of the original goals of the members was to streamline their operations as much as possible

Streamlining would make the Union more efficient and make it a more attractive trading partner. Unfortunately, in the first few months of operation under the new treaty arrangement problems developed in the management of the Union. Besides confusion relative to how the leadership was actually to work several cliques developed. There was also criticism relative to the appointment of the Union's President, Herman Van Rompuy, and the new foreign policy chief, Catherine Ashton. When Greece entered the brink of bankruptcy questions rose relative to how solid the euro, the European Union's common currency, was but the leaders of France and Germany stepped forward and exercised their influence to balance affairs

. Now the members are settling in and taking a look and see attitude in an effort to see how the provisions of the Lisbon Treaty will affect the operation of the fragile European Union.

The European Union has been a theory in the making for over sixty years. As the Lisbon Treaty represents the Union is a physical reality but as a theory it must be constantly tested and tested again in order to verify its theoretical value and its sustainability. As a theory the Union has its proponents and detractors. There are many who consider the theory to be a workable concept while there are many who believe that is has no real value

. Due to its nature and the environment in which it operates it is not surprising that any discussion regarding the Union and especially any attempt at adjusting its operation is surrounded by controversy. The debate surrounding the Lisbon Treaty, however, has been particularly acrimonious

. The political posturing has been intense and extremely partisan. Both the supporters and opponents of the Treaty have resorted to such tactics. Nevertheless the Treaty was eventually ratified by all twenty-seven (27) members and has been in effect for over two years. Its impact on the operation of the European Union remains a question as does its effect on the human rights.

History of the Treaty

Prior to the enactment of the Lisbon Treaty the European Union had attempted to ratify a prior constitution. Unfortunately, the voters in France and the Netherlands refused to approve it creating the need for a more acceptable agreement

. The drafters of the new agreement hope that the new treaty will serve to reduce the differences that have arose since the organization of the Union.

The negotiation process preceding the ratification of the Treaty was acrimonious and in order to satisfy all interests the wording of the agreement is lengthy and complex. The most striking difference between the old Union operation and the new Union under the Treaty was the creation of a presidency and a new foreign policy chief. It is the hope of Union members that the new foreign policy post will eventually develop into a position similar in prestige to that of the United States Secretary of State.

Planning for the eventual enactment of the Lisbon Treaty began in June of 2007

. The leadership of the European Union felt that there was a compelling need to reform the dated institutions within the Union. German Chancellor Angela Merkel was the driving force behind the movement and provided the outline for what was originally entitled the "Reform Treaty." In the initial stages two Union members, Poland and the United Kingdom, both offered resistance to the drive for a new agreement. Poland opposed the Merkel outline based upon their not agreeing with the proposed Council voting system that Poland leadership felt gave too much power and influence to the large Union members such as France and Germany. The United Kingdom, meanwhile, strongly opposed the concept of a "European foreign minister" and the incorporation of the Charter of Fundamental Rights which the UK felt would threaten their nation's flexible labor laws

. The hope of the Union leadership was that a new Treaty could be ironed out in time for the 2009 European elections so Poland and the United Kingdom's opposition was of grave concern. German Chancellor Merkel successfully convinced Polish President Lech Kaczynski and the Polish government to withdraw their opposition by promising the inclusion of an energy solidarity clause that soothed Polish concerns over tense relations with Russia. The United Kingdom's concerns were allayed by the Union's granting them an exemption from the Charter of Fundamental Rights and the rebranding the foreign minister post and naming it as the "High Representative of the Union for Foreign Affairs and Security Policy."

The first draft of the proposed treaty was introduced by the Portuguese President to the European Union foreign ministers at the Intergovernmental Conference on July 23, 2007. Fears that Poland might delay the negotiation process were quickly softened by the Polish foreign minister at the conference's opening. With this fear out of the way the ministers were optimistic that the terms of the treaty could be formulated with little delay.

Developments in Poland, however, soon caused the Conference attendees new concerns. Within days of the conference opening the Polish parliament announced their intent to hold early elections. It had been the intent of the Union leadership to have a proposed treaty available for the European elections and Poland's decision to conduct their elections earlier jeopardized the Union's timetable. In addition, Poland also announced that their government was seeking the same opt out guarantee that had been promised the United Kingdom regarding the Charter of Fundamental Rights

. Undaunted the Union proceeded with their plans with the hope that an agreement could be worked out prior to the Polish elections. Lifting the spirits of the Union leadership was the renewed support from the United Kingdom which had earlier voiced its opposition.

In mid-October 2007, the Union's foreign ministers met in Luxembourg in an effort to work out the final details in advance of the Polish elections. The ministers faced a number of significant problems that some considered could pose a problem to ultimate ratification. These problems included:

Poland's continued insistence on the inclusion of the "Ioannina Compromise." This compromise allowed a country to delay key decisions even in the absence of enough votes to block them

. Opposition to the inclusion of such provision was based fears that allowing such exception would block the Union from making any decisions on important issues.

Italy objected to the proposed distribution of seats in the Union Parliament. Italy was concerned with maintaining parity with France and the United Kingdom

The new nation of Sofia wanted to alter the spelling of the European currency from euro to evro. The European Central Bank objected to this proposal but none of the Union members felt that the spelling was worth jeopardizing the agreement

Austria expressed concerns over Treaty wording that would limit its universities from recruiting foreign students

None of the above listed problems were considered significant enough to hold up the initial approval of the agreement and this proved to be true as the agreement was signed by the various ministers on December 14, 2007 but the official signing ceremony was tempered by the absence of UK Prime Minister Gordon Brown. Brown's absence was viewed by many observers as a sign of British lack of commitment to the Union

. The signing of the agreement by the members' ministers, however, was only the first step in the process. The Treaty does not become operational until it has been ratified by the each other member nations either through legislative or voter approval. The Union's target date for beginning operations under the new Treaty remained January 1, 2010.

Within days of the ministers' signing the Lisbon Treaty Hungary stepped forward to become the first nation to ratify the Treaty with several more nations following in rapid succession. The Treaty appeared to be moving along toward ratification until it went before the Irish electors. Ireland was the only member of the Union that was required to submit the Lisbon Treaty to a popular vote and its defeat was a serious problem for the Union.

The reasons for the unpopularity of the Treaty in Ireland were varied. Among the reasons were how the Treaty handled social issues such as abortion, neutrality, tax sovereignty, military conscription, and the loss of an Irish commissioner on the Council. Unfortunately for the Union, there was little that could be done to satisfy the Irish concerns. To do so would have meant alienated other members of the Union who had pushed for included these provisions into the Treaty. After careful consideration the Union leadership decided to resubmit the treaty to the Irish electors for another vote, after some minor concessions, and the Irish voters approved the Treaty on October 2, 2009

. Six weeks later the Czech Republic became the 27th and final nation to sign the Treaty. On December 2, 2009 the Lisbon Treaty went into full effect one month prior to the date originally projected.

Ratification Procedure

The driving force behind the drafting and ratification of the Lisbon Treaty was German Chancellor Merkel. When she assumed her six-month presidency of the European Union in January of 2007 she was determined to effect a change in how the Union was operated. At the European Council meeting in June of 2007 she was able to convince other EU leaders to join her in amending the treaties under which the Union operated. A prior attempt at organizing the Union under a constitution had failed and so it was believed that proceeding under the treaty procedure would be more acceptable to the other member states. The constitution concept had been rejected several other times by the member nations and the treaty approach has received greater support.

Winning approval for the new Treaty was nearly as difficult as negotiating the terms. Because each nation had to approve it any one nation had the power to stop its ratification. One nation, in fact, Ireland actually voted down the Treaty on its first attempt but the Union placed the Treaty up for additional consideration. Between the two votes the Irish economy worsened. The real estate market flattened entirely and the Irish voters decided that the timing was not right for Ireland to be left out of the European Union.

The reasons for the Irish objection was based on their concern that the Lisbon Treaty created an unelected president and foreign minister; halved Ireland's voting rights within the Union while doubling Germany's; opened the door to tax harmonization within Europe; and generally gave the Union too much potential control of Irish internal affairs

In the rest of Europe the voting went relatively smoothly. The use of the euro was well accepted and the strength of the euro on the international market served to help the economies of the various Union members and, as a result, voters decided that a continuing membership in the European Union was in their best economic best interests.

The Irish vote, however, was not the only stumbling block. In the Czech Republic concerns were raised relative to the Treaty's Charter of Fundamental Rights. The Czech Republic government was concerned that if they were bound by the terms of said Charter that they would be exposed to a flood of property claims by Germans expelled from their country after World War II. Although this position may have some legitimacy, it also follows the party line of Czech Republic Vadac Klaus who has demonstrated his Eurosceptic concerns regarding the power of the European Union on several prior occasions

. Klaus, anticipating that the Czech constitutional court may rule negatively on his objections, capitulated and became the last of the 27 foreign ministers signing the Lisbon Treaty.

Treaty Overview

The Lisbon Treaty emerged from the efforts of the European Union leadership to attempt to establish a more workable entity. Concern relative to the balance of power between member nations has existed since the birth of the Common Market which was the predecessor of the European Market. This was a matter that the drafters of the Treaty wanted to address and an issue that created debate prior to its ratification. France, the Netherlands, and Ireland were all in the forefront of the debate on this issue. The framers of the Treaty also hoped that the Treaty would be more transparent and thereby draw in more active participation by the common population in the member states and that through the inclusion of the Charter of Fundamental Human Rights Europe would become the example for the rest of the world.

The Lisbon Treaty is the last in a long line of treaties that have been used to govern the European Union. It is an amendment to two earlier treaties, the Treaty on European Union and the Treaty on the Functioning of the European Union. Since 1993 the member nations have been governed by these two documents and now the Lisbon Treaty has become the prevailing document.

Effects of the Lisbon Treaty

What the long-term effects of the Treaty might be are unknown at the present time. The Treaty has been in effect for less than two years and is still undergoing growing pains but there were profound changes that should impact heavily upon how democracy and human rights operate inside Europe.

The legal framework established through the Lisbon Treaty is extensive and complicated but is designed to expand the European Union's influence in the areas of foreign policy, policing in general but particularly in the areas of organized crime and human trafficking, and the prosecution of international crimes. It is also a goal that the new Treaty will increase the role of the European Parliament, a branch of the European Union, in the day-to-day operation of the Union. The areas where it is hoped that Parliament will increase its role is in monetary matters, immigration policy and security considerations. The new Treaty also empowers the various national Parliaments of the member states to block legislation emanating from the European Parliament if said legislation impinges on the national sovereign of that nation. Further, individual citizens from member nations now have the right to petition the European Union for specific legislation. The process is arduous in that it requires the collection of a million signatures but the right exists thereby expanding the individual rights of the common Union citizen.

The intent of the Lisbon Treaty and all prior treaties since 1993 has been to establish the European Union as the supreme law on the continent but there have been a number of delays in having this occur. For example, for some time it has been legislated that there should be the free movement of services throughout Europe; yet, implementing this legislation has been difficult due to roadblocks being set up by various nations

. A similar delay was experienced in the implementing of free movement between individual nations but it eventually did occur. Similar delays are likely in the implementing of the full range of new rights and obligations under the new Lisbon Treaty.

The new Treaty implements a number of changes in the total operation of the Union. Changes that radically change how the Union will be administered and viewed by the rest of the world but it is the area of establishing and implementing policy that the Union has experienced it greatest difficulty and it is hoped that the new Treaty will cure this deficiency. The hope of the new Treaty is that the Union's influence in the areas of health, culture, tourism, education, sports, security, and overall human rights will increase substantially under the terms of the new Treaty

Institutional Changes

The Lisbon Treaty is a complex and lengthy document and most of the changes brought about by its ratification relate to European Union institutions and they function. These changes are important as they will hopefully improve the overall operation of the EU and allow for the EU to become more active in matters outside the economic arena. The Treaty permits the Union far more latitude in the foreign affairs, human rights, social policy, and security and a more efficiently operated Union should open the door for greater resources to be directed toward these areas.

It is important to note that Lisbon Treaty does not abolish either the Treaty on European Union (the so-called Maastricht Treaty signed in 1992)

or the Treaty of Rome

signed in 1957 that established the European Community. The new Treaty only amends both documents. These two prior documents established the European Union and remain the governing authority. The Lisbon Treaty, however, did bring some important changes that will directly and indirectly impact human rights in Europe.

The first major change is the creation of an entity entitled the "European Union." Although known by that name for some time the entity was never created as such. The Lisbon Treaty has done that and now the new European Union will operate legally under that name and will replace the former "three pillar" approach under which the European community formerly operated

. Under the "three pillar" the Union was only responsible for the internal and external trade relations (first pillar) of the member nations. The member nations dealt with common foreign and security policies (the second pillar) and police and judicial cooperation in criminal matters (third pillar). The Lisbon Treaty now creates a single entity, the European Union, so that now the Union has exclusive, shared or supporting authority with its member nations in all the areas that were formerly broken down into the pillars. The EU will also be responsible for establishing and reviewing all policy considerations in all the areas formerly overseen by the pillar system.

In an effort to make the European Commission more representative of the EU and less a board that advocates for the national interests of the member nations the Lisbon Treaty attempted to reduce the number of Commissioners but because Ireland objected and refused to possibly sign the Treaty the present system of one Commissioner per member nation was maintained as least for the present. The intent is to attempt to reduce the number in the future but political expediency required that Ireland's demands be met as Ireland had previously voted down the Treaty and it was feared that it might happen again unless their demand was met. Ireland's voting down the Treaty would have defeated its ratification as it required unanimity.

The jurisdiction of the European Court of Justice has been extended to cover all areas of EU activity with the exception of foreign and security policy. The most significant change here is in the area of police and judicial cooperation. Previously, litigants were forced to exhaust their remedies in the national courts before seeking redress in the EU courts but not national courts and tribunals will be able to refer questions regarding immigration, asylum, internal security and criminal law directly to the EU court.

Involving the individual citizenry in the legislative process of the European Union has been a serious problem. One of the goals of the Lisbon Treaty was to expand, as much as possible, this involvement and the incorporation of several new provisions will hopefully accomplish this task.

The Treaty provides the right to citizens of member states to petition the Union Commission. This right enables citizens to send a petition, signed by at least a million individuals to the Commission, requesting a legislative proposal

. The only restriction on the proposal's content is that it must be related to a stated Treaty objective. This provision was an attempt by the framers of the Treaty to make the operation of the Union more transparent and afford the citizens of Europe greater participation rights.

Security of the European community was a primary concern of the framers of the Lisbon Treaty. Organized crime and terrorism have had a substantial effect on Europe in recent years and the EU leadership was eager to have the framework available to address these issues in a cooperative manner. Under the terms of the Lisbon Treaty most of these issues can now be decided by a qualified majority of the Union members. The Lisbon Treaty confirms a joint immigration policy, a common asylum system, and a system to manage the Union's external borders. Although the Treaty failed to address the establishment of a common defense system for the Union it is hoped that the establishment of central foreign policy office in the form of the High Representative of the Union for Foreign and Security Policy will eventually lead to such. The Treaty still requires that all matters of defense must be made in unanimity but it also requires that all members have an obligation to aid and assist fellow members in the event of any armed aggression

. This obligation extends to any situation involving a terrorist attack or the occurrence of a natural disaster

Finally, the Treaty has placed a requirement on the Union that all its policies must take into account the Treaty goals of boosting employment, providing adequate social protection and banning social exclusion. Provisions of the Treaty encourage support for measures in the areas of intellectual property rights, data protection, sport, research, tourism, disaster protection and administrative cooperation. Combating climate change is expressly designated as part of the EU's environmental policy.

Human Rights

The Lisbon Treaty has incorporated within its terms the provisions of two important human rights' documents: the Charter of Fundamental Rights, and the European Convention of Human Rights and Fundamental Freedoms (ECHR). The importance of these being included in the Lisbon Treaty is that it now allows the European Union the power to challenge legislation enacted by its member nations on grounds of human rights.

The incorporation of the ECHR is of particular importance in that it now allows the European Union to establish the Strasbourg Court as the final authority on human rights standards in Europe. Prior to the ratification of the Lisbon Treaty the Union was unable to bring its human rights concerns to the Strasbourg Court. The precise procedure for how to effectuate appeals to the Strasbourg Court has not been established. This requires the member nations agreeing to the conditions under which cases can be referred to the Strasbourg Court. The likelihood that the conditions will be strenuous is strong as is the likelihood that fulfilling the conditions will be difficult but the option has at least been made available.

The inclusion of the Charter of Fundamental Rights was a highly contentious issue

. Several nations including the United Kingdom, Ireland, Poland and the Czech Republic had concerns regarding its being included in the new Treaty. Nevertheless, the Charter was included but in order to effectuate the ratification of the Treaty many special protocols were attached to the Charter modifying the terms of the Charter in its application to several of the objecting nations

. Two member nations, the United Kingdom and Poland, however, have been granted an opt-out in regard to the application of the Charter to their actions. Additionally, the Czech Republic has been granted an opt-out in regard to potential property claims arising from the expulsion of Germans subsequent to World War II.

The Charter itself is an all inclusive document covering a wide range of human rights concerns. Its 54 articles are divided into seven major titles. The first six titles are entitled "dignity, freedoms, equality, solidarity, citizens' rights, and justice. The seventh title sets for the procedure for interpreting and applying the provisions of the Charter. Contained in the language of the Charter are the following rights among others: right to marry, the right to raise a family, right to an education, right to equality before the law, the right to collective bargaining, the right to a fair trial.

Under the Lisbon Treaty the interpretation of the Charter of Fundamental Rights is a matter for the Union Courts to determine. The significant change for human rights advocates is that Charter now provides a proper legal basis for challenging human rights violations in legislation enacted by the Union and that the provisions of the Charter are much stronger than the human rights laws in effect in the individual member nations in the Union courts have the right to fine violators while most courts in the individual courts do not have that power. This power to assess fines included the right to impose punitive damages as well. This power to assess fines should make the Union courts an attractive choice for those seeking redress against human rights violators.

This talk about human rights guarantees, fines, and enforcement is fine in theory but, in actuality, what effect will it have it on human rights in Europe? Will the application of the Charter have any lasting and long-term effect on human rights in Europe?

Presently there are two distinct schools of thought that surround the issue of the effect of the Charter of Fundamental Rights and the future of human rights in Europe

. These two schools -- the maximalist and the minimalist- provide viewpoints on each end of the spectrum.

The minimalists view is based on two points. First, they argue that the Charter only applies to the member nations when they are implementing Union law. Second, they argue that the Charter's provisions set forth rights and principles. The rights that the Charter sets forth are already protected by the ECHR and that the principles are socio-economic in nature (rights of the elderly, rights of the disabled, right to strike, etc.). Minimalists argue that rights are enforceable through the Union courts but principles are not unless specific Union legislation so directs. Minimalists see the Charter of Fundamental Rights as a public relations tool. They view the Charter as a way of getting human rights before the public and not as providing a legal basis for redress.

The maximalist view is considerably different. The maximalist would argue that the Charter fails to clarify which articles are rights and which are principles. Therefore the maximalists would argue that all are stated articles are rights and enforceable through the Union courts.

Which viewpoint will ultimately prevail is unknown. Support for both arguments can be found in the text of the Charter. The most likely result is that the Union courts will play a major role in determining what are held as rights and what are simply principles. This process will take time and establishing a hard and fast rule at this point is impossible. The truth is at the present time some of the rights that are listed in the Charter such as access to preventative healthcare have no corresponding European Union legislation and will likely be found unenforceable. Some rights are nullified by language found elsewhere in the Charter or in the Treaty. For example, the right to marry is governed exclusively by the national laws of the member states and will not subject to the jurisdiction of the Union courts.

There is considerable hope among human rights advocates in Europe that the accession of the European Union to the European Convention of Human Rights, which was enabled by the ratification of the Lisbon Treaty, will complete the fight for democracy and the rule of law across the continent that was begun by visionaries such as French lawyer and Nobel Prize winner Rene Cassin subsequent to the Second World War

The EU, consisting of 27 nations, will join the other 20 European nations that are not members of the Union will join a system that brings them all under the same legal standards that will be governed by the same court. Now the EU members will join nations such as Turkey and Russia in litigation that was not possible prior to the Lisbon Treaty.

With all these new institutions and structure developing as a result of the Lisbon Treaty there is growing concern in Europe as to the fundamental issue of governance. As has been noted the balance between national interests and generalized European interests has been a continual problem. Views differ as to jurisdiction and authority between the member nations, the regional bodies, and the different and varied EU institutions. There is tension between those national agencies involved in the area of protecting human rights and those EU agencies entrusted with the same responsibilities and concerns. Add in the additional problems created by limited funds and manpower and you have a huge problem. As you add in the inevitable expansion of power, authority and institutional development caused by the ratification of the Lisbon Treaty and the problem is only acerbated.

With the European Union's presence being expanded in the area of human rights through the new Treaty jurisdiction over human rights matters is now divided between three entities. These three entities are the Council of Europe, the European Union, and the Organization for Security and Cooperation in Europe (OSCE).

The Council of Europe was the first organization to become involved in human rights matters in Europe. It arose subsequent to the end of World War II and its organization was compelled by the events that surrounded said war. The original Member States of the Council of Europe and drafters of the European Convention on Human Rights are Belgium, Denmark, France, Ireland, Italy, Luxembourg, Netherlands, Norway, Sweden and the United Kingdom. The Statute of the Council provides that each Member State must "[a]ccept the principles of the rule of law and of the enjoyment by all persons within its jurisdiction of human rights and fundamental freedoms

. Today membership on the Council is conditioned upon adherence to the European Convention for the Protection of Human Rights and Fundamental Freedoms and cooperation with the Council's enforcement machinery