Advisory letter 03: The Charter of Fundamental RightsFebruary 22, 2006 - nr.3
Professor F.H.J.J. Andriessen
Advisory Council on International Affairs
2500 EB Den Haag
12 January 2001
Dear Professor Andriessen,
On 9 November 2000 the Advisory Council on International Affairs (AIV) informed me of the results of its further consideration of what was then still the draft Charter of Fundamental Rights. I should like to thank the AIV for these conclusions, which the Government expressly took into account in determining its definitive position on the draft Charter.
This was clear, for example, from the letter of 17 November 2000 to the Lower House (Parliamentary Paper 2000-2001, 27 407 no. 7), which refers explicitly to the AIV's letter. All three of the points the AIV referred to in its letter of 9 November 2000 are also raised in the letters of 17 and 28 November 2000 (Parliamentary Papers 2000-2001, 27 407 no. 8). I shall therefore do no more than touch on them here.
As regards the general power to limit fundamental rights contained in article 52, paragraph 1, the Government takes the following view. The wording of Charter provisions may be improved and tightened up in the next stage of the process. In that case, the open, unequivocal definitions of fundamental rights adopted in the Charter should be accompanied by specific definitions of the limitations that may be applied to them. This is the system used in the ECHR and the Constitution.
As regards the new fundamental rights incorporated in the Charter and those that have been omitted from it, the letter of 17 November 2000 to the Lower House states that the Government believes that the right referred to in article 36 (access to services of general economic interest) does not really belong in a charter of fundamental rights. The right to housing, which the AIV also mentions, should perhaps be included instead.
The AIV is right to observe that different terms are used in the Charter, apparently at random, to denote those in whom rights are vested. The Government agrees that clarity on this point is desirable. This issue should be carefully considered in the review of the European treaties which should be undertaken over the next few years, partly to ensure that fundamental rights are firmly anchored in the treaties.
Lastly, the government would emphasise that it shares the AIV's view that the Charter as it now stands should be regarded as a step on the way to a catalogue of fundamental rights that can be incorporated into the Community legal order in binding form.The process of formulating and constitutionalising fundamental rights was certainly not completed when the Charter was ceremonially proclaimed in Nice. Making these rights legally binding will require an additional step, following a wider debate on the further development of the Union. The AIV's letter constitutes a very valuable contribution to this process.
J.J. van Aartsen
Minister of Foreign Affairs