The Binding Charter Ten Years on: More than a ‘Mere Entreaty’?

Abstract

In his seminal Opinion in Bauer, the late Advocate General Bot argued that fundamental rights listed in the Charter of Fundamental Rights (hereafter ‘Charter' or ‘CFR') should have a proper bite—that they are not, as he put it, ‘une simple incantation’—or ‘a mere entreaty’.1 This formulation becomes a useful prompt for framing this article, which seeks to cast a retrospective glance at the binding Charter, as it captures two key changes that the Charter has effected upon fundamental rights protection in the European Union.2 First, this phrase conjures up the irony of the Charter’s history, emerging through the Treaty of Nice precisely as a ‘simple incantation’. The attribution of ‘the same legal status as the Treaties’3 to this instrument as part of the Lisbon reforms ten years ago followed a nearly decade-long period of initial flirtation with the Charter in its non-binding dimension. Neither the Charter’s text nor its overall character as confirmatory of ‘existing rights’4 changed with the attribution of binding effect thereto. And yet, the symbolic effects of formal constitutionalization are, as the informed reader might already be able to remark, discernible in the way in which the Charter has been used in the case law after 2009. But, the question of whether fundamental rights are ‘more than a mere entreaty’ can be approached in another sense, too: whereas the Charter as a constitutional instrument may be well recognized and extensively relied upon, can this be said of all of its provisions? That question was, indeed, at the heart of the Advocate General’s reasoning in Bauer: he was concerned not with whether the Charter as a whole was effective, but with whether a particular subset of Charter rights—fundamental social rights—could be considered as anything more than a mere entreaty within the Charter.