The EU Charter of Fundamental Rights and the Federal Question

Abstract

Two years ago, von Bogdandy addressed in this journal the evolution of the core foundations of the European Union, by raising the central question whether the Union is or should be a human rights organization.1 The article followed Alston and Weiler’s powerful clamour, in the framework of a broader project, for an EU human rights policy,2 a claim with which von Bogdandy took issue. Since then, the EU Charter of fundamental rights has been finalized, and its scholarly fall-out is enormous, both because the final fate of the Charter is not yet settled and because the Charter is the centrepiece of the current EU constitutionalization process. Political developments are moving at such a pace that the questions whether the EU is in need of a human rights policy or whether it is becoming a human rights organization are now overshadowed by the tall presence of the Charter. The Convention on the future of the European Union is currently looking at how the Charter could be incorporated in the EU’s basic constitutional document. If such incorporation takes place, fundamental rights protection will, apparently at least, be at the core of the European integration process. What will the Charter do to that process? Past experience with bills of rights in federal States shows the strong centralizing force of such documents. It is perhaps for that reason that the Charter contains a strongly-worded horizontal provision which clearly seeks to contain any centralizing effect. Article 51 Charter provides: