1. In 1989, all but one member of the Council adopted the EC Charter on Fundamental Rights for Workers.

2. EC Bull 9–1999, 35; http://db.consilium.eu.int/df/intro.asp.

3. Conclusions of the Presidency of the Cologne European Council, 3 and 4 June 1999, Annex IV.

4. On the Legal Nature of the Charter of Fundamental Rights of the European Union COM (2000) 644 final, 3–4;the European Parliament Resolutions A5–0064/2000 of 16 March 2000 and B5–767/2000 of 2 Oct. 2000.

5. Annex IV to the Treaty of Nice, provisional text, Conference of the Representatives of the Governments of the Member States, SN 533/1/00 REV 1, Brussels 22 Dec. 2000, 83–84.

6. The Times and The Guardian 20 June 2000; according to PM Blair, Denmark, Finland, Spain, Sweden and Ireland supported the British position that the Charter should not become legally binding.

7. To draw inspiration from international human rights treaties, the ECJ does not require that Member States have actually signed or ratified a treaty, it is sufficient they “have collaborated” on them. See Case 4/73 Nold v. Commission [1974] E.C.R. 491, para. 13, repeated in Case 44/79 Hauer v. Rheinland Pfalz [1979] E.C.R. 3727, para. 15. It has, subsequently, become a standard formula.

8. See Advocate-General Tizzano in Case C–173/99 Broadcasting, Entertainment, Cinematographic and Theatre Union (BECTU) v. Secretary of State for Trade and Industry, Opinion delivered 8 Feb. 2001, http://www.curia.eu.int/jurisp.

9. Lenaerts, “Fundamental rights in the European Union” (2000) 25 E.L.Rev. 575, p. 600.Google Scholar

10. Sola, Fernandez A quelle nécessité juridique répond la négociation d'une charte des droits fondamentaux de I'Union européenne? (2000) 442 Revue du Marché commun et de l'Union européenne, 595, p.596.Google Scholar

11. Questions remain with regard to those provisions in the EU Charter which have not been expressly recognised in other international human rights treaties and do not belong to the common constitutional principles (e.g. the rights referring to biogenetics). How can these be reaffirmed as “common fundamental principles” of Community law if they have not been recognised as such before?

12. One representing the ECHR.

13. EC-Bulletin 9–1999, 35–36. E.g. the Economic and Social Committee, the Committee of the Regions and the Ombudsman.

14. The ESC was revised in 1996. So far, all Member States except the Netherlands, Germany and Spain have ratified this revised version of the Charter.

15. Some of them have been included through the interpretation of the supervisory body, e.g. the European Court on Human Rights (see further section 5 infra).

16. Certain rights are related to EU citizenship (e.g. right to vote and stand for election, diplomatic protection) or related to a certain status (e.g. children, workers).

17. See also the omission of mentioning nationality as a ground for discrimination in Article 13 TEC and in instruments relating to that provision, e.g. Directive 2000/78 (OJ L303/16) establishing a framework for equal treatment in employment and occupation, which expressly excludes “nationality” from its scope (Article 3(2)).

18. COM(2000) 644 final, supra n.4, p.2.

19. For the procedural aspects, see section 4 infra.

20. One of the pre-conditions for upholding the right to a fair and just hearing, for instance, requires the maintenance of a judicial system which is a considerable financial burden for governments.

21. The result was that two instruments were adopted: 1966 International Covenant on Civil and Political Rights and the 1966 International Covenant on Economic and Social Rights.

22. See, e.g. Alston, P., “The Committee on Economic, Social and Cultural Rights” in ed. Alston, , The United Nations and Human Rights, A Critical Appraisal (Oxford, 1992) 473.Google Scholar

23. See further section 3 infra.

24. In most cases in which the applicants invoked the 1989 Charter (also after the U.K. had signed it), the ECJ ignored these references and solved the questions on the basis of Community law. In only one case did the ECJ itself refer to the Charter: Case C–84/94 U.K. v. Council [1996] E.C.R. 1–5755, in which the Working Time Directive was also at issue.

25. See on this aspect Lenaerts, supra n.9, pp.588–589.

26. A political procedure similar to Article 7 TEU would be wholly inappropriate in relation to a legally binding Charter aimed at judicial protection of human rights of European citizens.

27. See also Eicke “The European Charter of Fundamental Rights—unique opportunity or unwelcome distraction” [2000] E.H.R.L.R. 280 and King, “Ensuring human rights review of intergovernmental acts in Europe” (2000) 25 E.L.Rev. 79.Google Scholar

28. This opens the interesting possibility that the European Court on Human Rights will have to review the Member States' actions in the areas covered by the second and third pillar. See further section 4 infra.

29. See, e.g. Article 230 TEC with limited (although much expanded by the ECJ case law) access to the ECJ and Articles 226 and 227 TEC where the role of the individual is limited to “informer” of a Member State violation. Under the Article 234 TEC procedure the individual is dependent on the national court to ask the questions.

30. There are as yet no signs that a special procedure will be created. This begs, again, the question of remedies under the second and third pillar. See also Grigolli, The EU Fundamental Rights Charter in current debate: Origins, Positions, Further Prospects (The European Legal Forum, 2000/2001) 2, pp.5–6.Google Scholar

31. This would be reminiscent although not exactly similar to the situation in the Netherlands where formal acts fall outside constitutional review. (In the EU the constitutional acts fall outside the review.) According to the Dutch Constitution, however, formal acts can be reviewed in the light of international treaty provisions, in so far as these are self-executing. This would raise the question of whether primary Community law can be reviewed on the basis of the ECHR, if the EU were to accede. It is submitted that it could be raised already on the basis of Article 6 TEU, but it remains doubtful that the ECJ would be prepared to review primary Community law in the light of the European Convention so long as there is no formal link between the EU and the ECHR.

32. See, e.g., Case 12/86 Demirel [1987] E.C.R. 3719, Case C–260/89 Elliniki Radiophonia Tileorassi (ERT) [1991] E.C.R. 1–2925 and Case 5/88 Wachauf [1989] E.C.R. 2609.

33. Joined Cases C–300/98 and C–392/98 Parfums Christian Dior SA v. Tuk Consultancy BV and Assco Geruste GmbH and Rob van Dijk v. Wilhelm Layher GmbH & Co KG and Layher BV Judgment of 14 Dec. 2000, http://europa.eu.int/jurispr/cgi-bin/ge.

34. In this case the instrument was a Directive aimed at harmonising trade mark laws. The ECJ held that it concerned a uniform rule of Community law. It could be argued that, if the Member States had wanted a uniform rule, they would have adopted a Regulation to achieve that effect.

35. Supra n.33, paras 42–49. It concerned the interpretation of Article 50 of the TRIPs agreement. The ECJ held that, although the WTO Agreement did not fall within the scope of judicial review ex Article 230 TEC, in a field (in casu: trade marks) to which TRIPs (an annex to the WTO Agreement) applies and in respect of which the Community has legislated, judicial authorities of the Member States are required, by virtue of Community law, to apply national rules “as far as possible in the light of the wording and purpose of Article 50 TRIPs” (para. 47).

36. OJ 1994 1 336/1.

37. See further on this issue: Eeckhout, “The Domestic legal Status of the WTO Agreement: Interconnecting Legal Systems” (1997) 34 C.M.L.Rev, 11.Google Scholar

38. Case C–368/95 Familiapress [1997] E.C.R. 1–3689, in which the ECJ accepted the mandatory character of national rules maintaining press diversity provided they contributed to the freedom of expression as safeguarded in Article 10 ECHR (which forms part of the fundamental principles of Community law).

39. Lenaerts supra, n.9, p.591.

40. According to Article 51(2) the Charter “does not establish any new power or task for the Community or the Union, or modify powers and tasks defined by the Treaties.”

41. The Times, 9 Feb. 2001 (“Freelancers will gain right to paid leave”).

42. Case C–173/99 supra n.8.

43. The 1936 Convention on Holidays with Pay (No. 52); the 1952 Convention on Holiday with Pay (Agriculture) (No. 101), the 1970 Convention on Holidays with Pay (Revised) (No. 132); the 1974 Convention on Paid Educational Leave (No. 140). Although these particular Conventions are possibly less suitable to reaffirm the fundamental character of the right to paid leave, they could be useful instruments for the “substantive interpretation” of the relevant provisions of the Working Time Directive.

44. All EU Member States collaborate (nowadays in co-operation with the EC Commission) on the adoption of ILO Conventions, even though they have not all ratified all or even the same Conventions. There is a relatively small number of—important—Conventions which have been ratified by all EU Member States, notably those on freedom of association, collective bargaining, child labour, forced labour and equal treatment of workers.

45. Supra n.42, para. 28.

46. The challenged provision in national law states requires a period of 13 weeks of employment before the right to paid annual leave can be exercised.

47. House of Lords European Union—Eighth Report Session 1999–2000, http://www.parliament.the-stationery-of…a/ld199900/ldselect/ldeucom/67/6701.htm, paras 96–98.

48. Parliamentary Assembly Council of Europe, Resolution 1210 (2000) Charter of fundamental rights of the European Union, Official Gazette Council of Europe, Jan. 2000. Parliamentary Assembly Committee on Legal Affairs and Human Rights Charter of Fundamental Rights of the European Union, Doc, 8611, 14 Jan. 2000. It is remarkable that, although inviting the Community “to make sure that when referring to social rights the revised European Social Charter of the Council of Europe will be taken into account” (para 10.iii of resolution 1210), the Assembly does not invite the Union to accede to the revised 1996 ESC. This is even more remarkable in the light of its Recommendation 1415 (1999) in which it pledges a strong commitment to the protection of social rights (Official Gazette of the Council of Europe June 1999).

49. House of Lords European Union—Eighth Report, supra n.47, para. 99.

50. Ibid., para. 101.

51. Apart from the question of whether the term “subordination” would be a correct characterisation of the relationship—this solution would not avoid rulings of the Strasbourg Court in cases in which the ECJ has no jurisdiction in Union law, nor would it solve the problem of the “grey areas”.

52. Supra n. 47, para. 112.

53. Ibid., para. 104.

54. Ibid., para. 107.

55. Ibid., para. 109.

56. Ibid., para. 110.

57. In this sense also: Canor, “Primus inter pares. Who is the ultimate guardian of fundamental rights in Europe” (2000) 25 E.L.Rev. 3, p.21 Google Scholar and Eicke, supra n.27.

58. van Dijk Judicial Protection in the European Union—Divergence, Coordination, Integration Exeter Paper in European Law No. 1, Centre for European Legal Studies, Exeter 1996.

59. ECJ Advisory Opinion 1/91 Concerning the European Economic Space [1991] E.C.R. 1–6079, 6106.

60. Van Dijk, supra n.58, ibid.

61. Ibid., at 10.

62. As mentioned above, the 1961 European Social Charter was revised in 1996. The fact that three EU Member States have not yet ratified the 1996 Charter does not prevent it from being used. See supra n.7.

63. Now called the European Committee of Social Rights.

64. Moreover, there has been a long period of disagreement between the Committee of Experts and the Intergovernmental Committee on the interpretation of the Charter's rights, although nowadays the latter refrains from commenting on the Experts' interpretation.

65. It did so, for instance, with regard to aspects of environmental rights. See Grief, “Convention Rights and the Environment” in ed. Betten, The Human Rights Act 1998 What It Means (Martinus Nijhoff, 1999) p.141 Google Scholar

66. E.g. Tyrer v. United Kingdom 25 April 1978, Series A, vol. 26.

67. See Mahoney, further “Principles of Judicial Review” in ed. Betten, supra n.65.Google Scholar

68. Even more so, because there are limits to what the Strasbourg Court can do.

69. COM(2000) 644 final, supra n.4., pp.4–5.

70. Article 6 EU Charter, Article 5 ECHR. The latter wording is far more extensive and detailed than Article 6 EU Charter which reads, simply that “Everyone has the right to liberty and security of person.”

71. Appl 24833/94 Judgment of 18 Feb. 1999 [1999] E.H.H.R., 361.

72. See also King, supra n.27.

73. See Rochère, Dutheil de la La Convention sur la Charte des Droits Fondamentaux et le Processus de Construction Européenne [2000] 437 Revue du Marché commun et de l'Union européenne, p.223.Google Scholar

74. ECJ, Opinion 2/94 [1996] E.C.R. 1–1759.