Erik Oddvar Eriksen/John Erik Fossum/ Agustín José Menéndez (eds.) The Chartering of Europe The European Charter of Fundamental Rights and its Constitutional Implications Nomos Verlagsgessellschaft Baden-Baden Bibliografische Information Der Deutschen Bibliothek Die Deutsche Bibliothek verzeichnet diese Publikation in der Deutschen Nationalbibliografie ; detaillierte bibliografische Daten sind im Internet über http://dnb.ddn.de abrufbar Bibliographic information published by Die Deutsche Bibliothek Die Deutsche Bibliothek lists this publication in the Deutsche Nationalbibliografie; detailed bibliographic data is available in the Internet at http://dnb.ddb.de ISBN 3-8329-0162-0 1. Auflage 2003-12-08 © Nomos Verlagsgessellschaft, Baden-Baden 2003. Printed in Germany. Alle Rechte, auch die Nachdrucks von Auszügen, der photomechanischen Wiedergrabe und der Übersetzung, vorbehalten. Gedruckt auf alterungsbeständingem Papier. This work is subject to copyright. All rights are reserved, whether the whole or part of the material is concerned, specifically those of translation, reprinting, re-use of illus- trations, broadcasting, reproduction by photocopying machine or similar means, and storage in data banks. Under §54 of the German Copyright Law where copies are made for other than private use, a fee is payable to “Werwertungsgesellschaft Wort”, Munich Contents Foreword Neil MacCormick 9 1. The Charter in Context Erik Oddvar Eriksen, John Erik Fossum, and Agustín José Menéndez 17 Section I: Why a Charter? 2. Finalité Through Rights Agustín José Menéndez 30 3. Why a Constitutionalised Bill of Rights Erik Oddvar Eriksen 48 4. The Law Beneath Rights’ Feet Law, Politics and the Charter of Fundamental Rights of the European Union Massimo La Torre 71 5. The Canadian Experience of a Charter of Rights Alan C. Cairns 93 Section II: Which Process? 6. New Values for Europe? Deliberation, Compromise, and Coercion in Drafting the Preamble to the EU Charter of Fundamental Rights Justus Schönlau 112 7. Civil Society in the Constitution for Europe Olivier De Schutter 133 8. Goal Congestion Multi-Purpose Governance in the European Union Daniel Tarschys 161 Section III: Whose Rights? 9. ‘Rights to Solidarity’ Balancing Solidarity and Economic Freedoms Agustín José Menéndez 179 6 Contents 10. The Double Life of the Charter of Fundamental Rights Miguel Poiares Maduro 199 11. The European Charter Between Deep Diversity and Constitutional Patriotism John Erik Fossum 228 12. Why Europe Needs a Constitution Jürgen Habermas 256 Contributors Alan C. Cairns is Professor Emeritus at the University of British Columbia. He is the author and editor of numerous books and articles on federalism, the constitution, and the charter: Constitutionalism, Citizenship, and Society in Canada (1985), Charter versus Federalism: The Dilemmas of Constitutional Reform (1992), Citizenship, Diversity, and Pluralism: Canadian and Comparative Perspectives (1999), and Citizens Plus: Aboriginal Peoples and the Canadian State (2001). Erik Oddvar Eriksen is Professor of Political Science at ARENA at the University of Oslo. Recent publications include The Rationality of the Welfare State (co-edited with Jørn Loftager) (1996), Jürgen Habermas. Diskurs, rätt och demokrati (co-edited with Anders Molander) (1997), Kommunikativ ledelse (1999), Democracy in the European Union (co-edited with John Erik Fossum) (2000), Demokratiets sorte hull (2001), and Understanding Habermas (co-authored with Jarle Weigård) (2003). John Erik Fossum is Senior Researcher at ARENA, University of Oslo, and Associate Professor at the University of Bergen. Recent publications include Oil, the State, and Federalism (1997), Democracy in the European Union (co-edited with Erik Oddvar Eriksen) (2000), and “The European Union In Search of an Identity” (2003). Jürgen Habermas is Professor Emeritus of Philosophy and Sociology at the University of Frankfurt. A brief selection of some of his recent books includes The Theory of Communicative Action (1981), Moral Consciousness and Communicative Action (1983), The Philosophical Discourse of Modernity (1985), Postmetaphysical Thinking (1988), Justification and Application (1991), Between Facts and Norms (1996), The Inclusion of the Other (1998) and Die postnationale Konstellation (1998). Neil MacCormick is Regius Professor of Public Law and the Law of Nature and Nations at the University of Edinburgh. He is a Fellow of the British Academy and of the Royal Society of Edinburgh. He is the author of many books and articles on legal and political theory, among others Constructing Legal Systems: The European Union (ed.) (1997), Questioning Sovereignty: Law, State, and Nation in the European Commonwealth (1999), and Stands Scotland where She Did? New Unions for Old in these Islands (2000). Miguel Poiares Maduro is Professor of Community Law and Public International Law at the University Nova of Lisbon and co-director of the Academy of International Trade Law. Recent publications cover We the Court – The European Court of Justice and the European Economic 8 Contributors Constitution (1998), and “Europe and the Constitution: What if this is as Good as it Gets?” (2000). Agustín José Menéndez is Senior Researcher at ARENA, University of Oslo. He has recently published a book on the democratic theory of taxation, Justifying Taxes. Some Elements of a General Theory of Democratic Tax Law (2001). Olivier De Schutter is Professor at the Faculty of Law at the University of Louvain. He is also a Visiting Professor at the University of Limoges and Secretary General of the Human Rights League. He has published many books and articles, among others Le droit international des droits de l'homme devant le juge national (in collaboration with S. van Drooghenbroeck) (1999), and Les droits fondamentaux dans le Traité d'Amsterdam (in Le Traité d'Amsterdam. Espoirs et deceptions) (1998). Justus Schönlau holds a Ph.D. from the Department of Politics of the University of Reading. The title of his dissertation was The EU Charter of Fundamental Rights: Legitimation through Deliberation. During a prolonged stay in Brussels and from within the European Parliament, he followed the process of drafting the Charter very closely. Daniel Tarschys, formerly Secretary General of the Council of Europe, is Professor at the Department of Political Sciences at the University of Stockholm. A brief selection of his publications includes Beyond the State: the Future Policy in Classical Marxism (1972), Europe as Invention and Necessity (1999), Bra träffbild, fast utanför tavlan – en ESO-rapport om EU:s strukturpolitik (2000). Massimo La Torre is currently Professor at the Università di Catanzaro and at the Law School at the University of Hull. He has published several books and articles, among which European Citizenship: An Institutional Challenge (editor) (1998) and Norme, Instituzioni, Valori: Per une Teoria Instituzionalistica del Diritto (1999). Foreword Neil MacCormick The peoples of Europe, in creating an ever closer union among them, are resolved to share a peaceful future based on common values. Conscious of its spiritual and moral heritage, the Union is founded on the indivisible, universal values of human dignity, freedom, equality and solidarity; it is based on the principles of democracy and the rule of law. It places the individual at the heart of its activities, by establishing the citizenship of the Union and by creating an area of freedom, security and justice.1 It is surely true that any effective and enduring European Union will have to be based not merely on a shared body of common laws, but also on common values expressed in these laws. The shared resolve that is stated in the opening paragraphs of the Preamble to the Charter of Fundamental Rights of the European Union expresses an essential precondition for a peacefully achieved and constitutionally sustained union. The present work, ably edited by Professors Eriksen, Fossum and Menéndez, explores some of the presuppositions and implications, as well as the politics, of adopting such a Charter. The creation of the Charter, as this book explains in some detail, was achieved by a new and radically innovative method. Instead of referring the task of drafting a document to a Committee of Civil Servants, following this up with a meeting of the European Council or even an intergovernmental conference, preparation of the Charter was entrusted to a body of an essentially parliamentary, perhaps one should say, ‘parliamentarian’ character. The task was carried out by a ‘Convention’ of representatives from the European Parliament and from the parliaments of the Member States, together with representatives of each of their governments and of the Commission, chaired by Roman Herzog, former President of Germany. The finished document was handed over to the European Council and the Parliament, and came under consideration at the Intergovernmental Conference (‘IGC’) held in Nice in December 2000. As adopted by the Nice IGC, the Charter had only an equivocal status. It was embraced as a ‘political declaration’, not a legally binding instrument incorporated in or co-ordinate with the Treaty of European Union 1 Preamble to the Charter, opening two paragraphs. 10 Neil MacCormick or the European Community Treaty. As such a declaration, it was a set of reminders or reassurances to citizens. It reminded them what rights they already enjoyed under the two Treaties, under the common traditions of their various constitutional laws, and under the European Convention on Human