Does the EU Charter of Fundamental Rights threaten the supremacy of Community Law? Article 53 of the Charter: a fountain of law or just an inkblot?

Abstract:

This paper examines Article 53 (the-level-of-protection provision) of the newly adopted EU Charter of Fundamental Rights and its possible legal implications in the Community on the assumption that the Charter is incorporated into EU law. The analysis includes an investigation of the drafting history and a comparative survey of similar provisions in other instruments, especially Article 53 of the ECHR and the case law from the European Court of Human Rights pertaining to this provision. Four theories of possible legal implications are discussed, with an emphasis on the theory which suggests that the provision poses a threat to the supremacy of Community law over Member State constitutions. All four theories are rejected on the basis of textual analysis, the drafting history and the comparative survey. The paper ends by suggesting changes to the text of Article 53 in the unlikely event that the Charter is reopened in connection with the IGC 2004.

Apart from the legal analysis, the paper also considers the political context in which the drafting of the Charter in general and Article 53 took place. The strengths and weaknesses of the drafting method are discussed, including the issue of whether the new, inclusive and supposedly more transparent drafting method may have negative implications for accountability and the future human rights jurisprudence of the European Court of Justice. Comparisons are made to the American federal system in general and the Ninth Amendment of the Bill of Rights in particular. The perspective is first and foremost EU law, but the paper also touches on national legal systems and draws on theory from public international law as well as international human rights law.

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