1. Treaty Establishing a Constitution for Europe, OJ 2004/C 310. The TCE incorporated the Charter with only minor changes, as part II; it would have given the Charter legally binding force just as with the TCE itself.
2. Charter of Fundamental Rights of the European Union, OJ 2000/C 364. On the genesis of the Charter, see G de Burca, “The Drafting of the European Union Charter of Fundamental Rights” (2001) 26 European Law Review, 126–138; O de Schutter, “Europe in Search of its Civil Society” (2002) 8 European Law Journal, 206–212.
3. On the nature of the Charter as, in principle, legally non-binding, see, for example, I Rogers, “From the Human Rights Act to the Charter: Not Another Human Rights Instrument to Consider” (2002) 2 European Human Rights Law Review, 346–347. To be sure, the Charter can be given legal relevance indirectly by being referenced in legal acts (cf. K Lenaerts and T Corthaut, “Of Birds and Hedges: The Role of Primacy in Invoking Norms of EU Law” (2006) European Law Review, 301–302) or in court decisions. First, secondary law now frequently contains a clause—usually in a recital in the preamble—to the effect that the legal act observes the principles recognised in the Charter. Since this reference is contained in valid secondary law, the Charter, in the field of application of this legal act, is incorporated by valid binding law—even if this incorporation, owing to the nature of the act that gives rise to the incorporation, can have only the status of secondary law. Secondary law cannot create primary law. Thus, where a conflict of the Charter as “indirect secondary law” with primary law (for example, providing for collective goods that are usually considered to be limiting reasons for fundamental rights) arises, then according to the rule “lex superior derogat legi inferiori” primary law will always prevail. Thus, unlike primary law, the Charter as “indirect secondary law” cannot be used simply as a yardstick for “the validity…of legislation” (as suggested in Lenaerts and Corthaut, ibid, 302). Second, while the institutions referred to the Charter on various occasions, the Court of Justice was initially quite hesitant to do so, see Rogers, “From the Human Rights Act to the Charter” 348–350; S Douglas-Scott, “The Charter of Fundamental Rights as a Constitutional Document” (2004) 4 European Human Rights Law Review, 43–44. The Court of Justice, in 2006, has finally begun to refer to the Charter, which may grant to the Charter a modicum of legal force by way of precedent. To be sure, one ought to read the cases accurately. In Case 540/03,Parliament and Council[2006] ECR I-0000, the Court emphazised first that “the Charter is not a legally binding instrument” (para 38). The Court then proceeded to approve of the binding force of the Charter via incorporation by secondary law as described above (para 38). This is far from being a comprehensive approval of the Charter as legally binding. The Courts adds that the aim of the Charter is to “reaffirm” rights as they stem, in particular, from the constitutional traditions and international obligations common to the Member States (para 38). This “reaffirmation” has been mentioned, without any explicit caveat, in more recent decisions, too. In case 432/05Unibet(Judgment of the Grand Chamber of 13 March 2007) one reads that the principle of effective judicial protection “has also been reaffirmed by Article 47 of the Charter of fundamental rights of the European Union” (para 37). In case 303/05Advocaten voor de Wereld VZW v Leden van de Ministerraad(Judgment of the Grand Chamber of 3 May 2007) the principle of the legality of criminal offences and penalties and the principle of equality and non-discrimination are “also reaffirmed respectively in Articles 49, 20 and 21 of the Charter of Fundamental Rights of the European Union” (para 46). To be sure, this reaffirmation is mentioned only in support of the application of binding law, and to state that something is a “reaffirmation” is not to emphazise its independent legal force. In addition, one ought not to forget that in classic continental legal methodology, precedents do not represent sources of law, see K Larenz,Methodenlehre der Rechtswissenschaft(Berlin ea, Springer, 6th ed, 1991), 430–1. Even in so far as modern approaches recognize the relevance of precedents in legal argumentation, they are regarded as inferior to statutes, M Kriele,Theorie der Rechtsgewinnung(Berlin, Duncker & Humblot, 2nd ed, 1976), 243; H-J Koch/H Rüßmann,Juristische Begründungslehre(Munich, C H Beck, 1982), 187–188. To sum up, it can scarcely be missed that the legal binding force conferred to the Charter by being “indirect secondary law” or being referred to in precedents is only indirect and weak, and is not to be compared to explicit provisions in primary law.
4. Presidency Conclusions of the Brussels European Council of 21/22 June 2007, 11177/07, CONCL 2, Annex 1, 17. On the Protocol regarding the status of the Charter in United Kingdom, see ibid, 25, note 19.
5. Amendment of art 6(1) TEU as provided for by the Presidency Conclusions of the Brussels European Council of 21/22 June 2007, 11177/07, CONCL 2, Annex 1, 25 regarding the Charter: “which shall have the same legal value as the Treaties.”