The exact status of the EU Fundamental Rights Charter (FRC) has remained uncertain for many years, and certain doubts subsist even today. The authors of the draft claimed that it did not purport to create any new human rights, nor to re-define the existing ones, but that it solely assembled in one single text the fundamental rights that were already contained in the European Convention on Human Rights (ECHR), the European Social Charter, and other documents, with the purpose of “rendering them more visible”. By consequence, and although it was “solemnly proclaimed” at the Nice Summit in December 2000, the FRC remained a legally non-binding document.
However, it was from the outset unclear how a non-binding document that, with somewhat different words, sought to paraphrase existing human rights texts was going to add to the “visibility” or “transparency” of human rights, when in fact the co-existence of texts that express similar ideas with different words is more likely to lead to uncertainty and confusion. In addition, a closer examination of the FRC reveals that in actual fact its provisions in many cases differ considerably from the pre-existing documents it purported to render more visible. This is particularly true for sensitive issues like the right to life, or the right to marry and found a family. In all those cases, the FRC offers a lower level of protection than that foreseen by the ECHR in 1950 – and it opens new margins of interpretations to accommodate a neo-Marxist, feminist, or homosexualist understanding of human rights that are clearly at variance with those expressed in the Universal Declaration of Human Rights (UDHR) of 1948 or the ECHR of 1950.
In the first years of its existence, while not being a legally binding document, the FRC was repeatedly quoted by the Court of Justice of the EU as a “source of inspiration” for its jurisprudence. As a matter of consequence, the EU’s legal community as well as the wider public slowly became used to thinking of the Charter as a point of reference for human rights, and it came as no surprise that when the attempt was made to give a “Constitutional Treaty” to the EU the Charter was part of that Treaty. Finally, when the project of a Constitutional Treaty was abandoned as a result of the negative outcome of referendums held in the Netherlands and France, the FRC was without much discussion included into the Lisbon Treaty that, instead of the Constitutional Treaty, has become the new legal basis for the EU. Since 1 December 2009, the day on which the Lisbon Treaty entered into force, the Charter is therefore to be considered an integral part of the European Union’s primary law.