THE CHARTER OF FUNDAMENTAL RIGHTS OF THE EUROPEAN UNION, 20 YEARS AFTER ITS DECLARATION

The national event organised by ANF in the framework of the project Lawyers4Rights was inspired by an article by prof. Guido Alpa, where he made reference to the Charter of Fundamental Rights of the European Union. He considered what the Charter can still teach us and wondered about its future. While the Charter marked an important phase of European integration, now its role might look weakened, but prof. Alpa thinks that the values of dignity and solidarity as codified by the Charter would be the key to overcome the present crisis stronger and more united.

The importance of the Charter is the preamble of the whole webinar, not only because twenty years have passed since its adoption in Nice, but also because on 2nd December 2020 the Commission highlighted the need to empower legal professionals in order to increase the correct implementation of the Charter, to clarify its scope of application and disseminate knowledge of the Charter among citizens. The first topic addressed by prof. Castellaneta was indeed the scope of application of the Charter (article 51). After a brief analysis on the case-law of the Court, she explained how to correctly interpret article 51, focusing on the case where the harmonisation of European directives leaves a certain degree of flexibility to the Member States, which then intervene with national legislation.

Prof. Alpa focused on the relationship between the Charter and the courts. He considers that the implementation of the Charter was paid great attention by the academy, limited attention by judges and slightly more attention by the Cassation and Constitutional Courts. That was not what was expected in 2000 and 2009. And that’s why there’s a joint call addressed to lawyers to take more into consideration the Charter. If it was possible to apply its rules directly to the relations between private citizens, then that would be easier. He doesn’t think that the Charter could be updated and widened in the near future, nonetheless some topics are only marginally addressed in the Charter, but they are the object of detailed regulations, which allow lawyers to apply the principles of the Charter to the relations between private citizens.

Prof. Favilli then addressed the duty to give reasons in judicial decisions, in the context of the practice of the Court of Justice of the EU.

The final speaker was prof. Di Stasi, who is expert in the field of human rights with regards to foreigners, which is a field where persons are very weak, in comparison to the citizens of the EU. Actually, third-country nationals can’t claim any basic right in front of a Member State and are granted certain rights only as a consequence of the primary law granted to EU citizens. The right to access to justice is essential to such vulnerable categories, and is the only way to ensure their rights are recognised. Reference is made to the Dublin Regulation and to the rules on transfers of asylum-seekers. Appeal procedures to the ECHR and to national courts are numerous, nonetheless there is an appropriate case-law, which correctly applies the principles of the Charter. This is why the access to justice is so important, since structural problems are often solved thanks to the interpretation made by lawyers, judges and supreme courts.

In conclusions, it is recalled that the Fundamental Rights Agency, in its 2020 Report, recalled the Council conclusions of October 2019, which highlighted the need to train legal professions and spread knowledge on the Charter.

As final words, prof. Alpa explained fundamental rights are components of constitutionally-oriented democratic societies. He underlines three issues to address, since the recognition, protection and application of fundamental rights must be considered as an ongoing process: 1, the balance between rights; 2, the role of constitutional courts in the Member States; 3, the role of social rights. In this framework, the role of lawyers is important to solve these issues and, given that fundamental rights are not negotiable, lawyers play a social role. All the speakers agree on this social role and highlights the importance to be aware of the existence of multiple law sources and several layers of legislation. This complexity forces lawyers to high-quality, specialised training.