This European Union (EU) Charter affirms fundamental rights of EU law, and contains some express provisions on disability. It has legal effect, but its importance as regards discrimination law has yet to be determined.
This Charter is now legally binding on EU institutions, and on member states (including the UK) so far as they are implementing EU law. A special protocol negotiated by the UK seems to have little effect as regards the discrimination provisions of the Charter.
The main practical effect of the Charter may be to give some protection where neither the Equality Act nor the Human Rights Act apply, but the discrimination happens in an area where the UK is implementing EU law. Accordingly the Charter may be most relevant if there is no Equality Act claim and the area does not fall with the scope of the European Convention on Human Rights – or if there is doubt whether it does.
Link: The EU Charter of Fundamental Rights: What can it do? (opensocietyfoundations.org) – February 2013.
The Charter of Fundamental Rights of the European Union was proclaimed (adopted) at the Nice summit on 7th December, 2000.
- Full text of the Charter of Fundamental Rights (link to Europarl website).
- Q&A Charter of Fundamental Rights (link to BBC News website), 16/7/07.
The Lisbon Treaty made the Charter legally binding from 1st December 2009. On how far it is binding, including the special UK Protocol, see below UK bound by the Charter when implementing EU law
Disability discrimination in the EU Charter
There are two provisions in the Charter expressly impacting on disabled people. Firstly Article 21 probibits discrimination on any ground including disability. Secondly, in Article 26: “The Union recognises and respects the right of persons with disabilities to benefit from measures designed to ensure their independence, social and occupational integration and participation in the life of the community.”
It remains to be seen how important these provisions will be. Being outside Title IV, they do not seem to be affected to a great extent by the UK Protocol discussed below. Article 21 in particular seems to be reaffirming a general principle of EU law prohibiting discrimination: Kücükdeveci, 2010. However, it is possible that the courts may be inclined to see the Framework Employment Directive already in place as defining the extent of this general principle, at least as regards disability discrimination in employment. A way in which this principle, as reaffirmed in the Charter, has had an effect is that it seems the directive may be directly applied against private companies, rather than just public bodies (see Kücükdeveci).
As outlined under the next heading, UK bound by the Charter when implementing EU law, the main effect of the Charter’s provisions on discrimination may be in areas were the Equality Act does not give protection.
UK bound by the Charter when implementing EU law
The Charter also applies to Member States (including the UK) when they are implementing EU law. Presumably this includes the Equality Act so far as it implements the Framework Employment Directive, especially the Act’s employment provisions.
However, looking at what practical effect the Charter may have, what is likely to be more interesting is any areas where there is not a claim under the Equality Act, but where the UK government or UK law discriminates in the way EU law is implemented. Here the Charter may require UK law or policy to be applied in a way which avoids discrimination, even where the situation is not covered by the Human Rights Act. See further above Summary.
The UK negotiated a written guarantee on the legal effect of the Charter in the UK. However since Articles 21 and 26 (see above) are outside Title IV, they do not seem to be affected to a great extent by this special Protocol. See below UK Protocol.
On the point that the Charter only binds the UK when implementing EU law, see:
- The EU Charter of Fundamental Rights: What can it do? (opensocietyfoundations.org}) – dated February 2013, from the Open Society European Policy Institute.
- Annual reports on the application of the Charter – contain a section on Equality.
The UK and Poland negotiated a Protocol which aims to limit – or perhaps rather ‘clarify’ – the effect of the Charter in their respective countries. For the text of the Protocol, see Lisbon Treaty (pdf) pages 157-8.
Article 1(1) of the Protocol says that the Charter is not to extend the ability of the EU Court of Justice or a national court to find that national laws are inconsistent with the fundamental rights, freedoms and principles in the Charter. However, this is not an opt-out. The UK Government has accepted (in the NS case, linked below) that ‘the fundamental rights set out in the Charter can be relied on as against the United Kingdom’ because the Charter simply restates the rights that already formed part of EU law, and does not create any new rights. The key word in Article 1(1) of the Protocol is ‘extend’.
Title IV – which does not include discrimination
The rest of the Protocol deals mainly with Title IV of the Charter, which sets out various economic and social rights. (Articles 21 and 26 on discrimination – see above – are not in Title IV.) Title IV was not under consideration in the NS case, so the position on Title IV has yet to be clarified:
- Article 1(2) says that in particular nothing in Title IV of the Charter creates justiciable rights applicable to the United Kingdom except in so far the United Kingdom has provided for such rights in its national law.
- Article 2 deals with provisions of the Charter (mainly in Title IV) which refer to national laws and practices. Article 2 says that to the extent that a provision of the Charter so refers, it shall only apply to the United Kingdom to the extent that the rights or principles that it contains are recognised in the law or practices of the United Kingdom.
Links on the Protocol:
- NS v Secretary of State for the Home Department (link to curia.europa.eu), EU Court of Justice, December 2011 – particularly from paragraph 116
- Equality and Human Rights
Comission‘NS v Secretary of State for the Home Department, Court of Appeal’ – regarding concession by UK government.