The European Union's Charter of Fundamental Rights, proclaimed at the summit at Nice on 7 December 2000, includes provisions on freedom of association (Article 12), right of collective bargaining and collective action (Article 28), workers' right to information and consultation within the undertaking (Article 27), freedom to choose an occupation and right to engage in work (Article 15), prohibition of child labour and protection of young people at work (Article 32), fair and just working conditions (Article 31), protection of personal data (Article 8), non-discrimination (Article 21), equality between men and women (Article 23), and protection in the event of unjustified dismissal (Article 30).

The Charter breaks new ground by including in a single list of fundamental rights not only traditional civil and political rights, but also a long list of social and economic rights.

However, although the EU Charter was approved by the European Council, it was limited to a political declaration. It was not given a formal legal status. In the second 'Convention on the Future of Europe', a Working Group has recommended that the Charter be incorporated into the EU Treaties. If so, it will have an impact not only on the EU's institutions, but also on the Member States through the doctrine of supremacy of EU law.

First, as with equal pay for men and women (Article 141 EC), the European Court of Justice (ECJ) could attribute binding 'direct effect', vertical and horizontal, to provisions of the Charter which were considered sufficiently clear, precise and unconditional.

Secondly, the doctrine of 'indirect effect', which requires national courts to interpret national laws consistently with EC law, would apply with great force to the rights guaranteed in a Charter incorporated into the Treaty.

Thirdly, the violation by the EU or a Member State of a fundamental right guaranteed by the Charter in the Treaty would very likely constitute a breach of EU law giving rise to liability under the Francovich principle.

Fourthly, the competences of the Community and the Union are frequently a subject of litigation between those seeking to extend, or to limit them. It is likely that the ECJ will prefer to give an expanded interpretation of the powers and tasks of the Community and Union where these are necessary in order to safeguard the EU Charter rights.

Finally, social rights guaranteed by the Treaty would put pressure on the Commission to make proposals

for their implementation. The ECJ's view of fundamental rights is that they need not necessarily seek the lowest common denominator or minimum standard, as in Case C-84/94, where the Court rejected the UK's challenge to the Working Time Directive.

The case law of the ECJ

Up to 20 August 2002, there were 26 citations of the Charter before the European courts, including five in judgments of the European Court of First Instance. Every one of the eight Advocates General of the Court has referred to it in one or more Opinions, as has the Court of First Instance.

For example, the Opinion of Advocate General Tizzano in BECTU, Case 173/99, on 8 February 2001, states of the EU Charter (paragraph 28): '...we cannot ignore its clear purpose of serving, where its provisions so allow, as a substantive point of reference for all those involved...'. He describes the EU Charter as 'the most reliable and definitive confirmation of the fact that the right to paid annual leave constitutes a fundamental right'. In its decision of 30 January 2002 in Case T-54/99, the Court of First Instance twice refers to provisions of the EU Charter.

The Advocates General do not base the existence of a right on the Charter. They use the Charter as confirming the status of a fundamental right by referring to the Charter's content, not its formal status. The Advocates General are unanimously sending a clear message to the judges of the European Court to engage in a process of judicial recognition of the EU Charter. So far, the message has been ignored by the Court. At least four arguments may explain this.

First, the uncertain legal status of the Charter, in particular, the non-integration of the EU Charter into the Treaties is the main reason. A second, disputed, argument is that many provisions of the Charter cannot be used on their own as the basis for judicial review. A third argument is that for the Court to enforce fundamental rights based on the EU Charter would be regarded as the Court's assuming a controversial constitutional role. Finally, a more prosaic reason may be the Court's decisional procedures, which require unanimity. The eight Advocates General are free to give their own individual views. The judges of the Court have to produce a single judgment. One or more judges in the Court may be resisting a reference to the Charter. The question is whether, and how long, can this last.

The dynamism shown by the Court over the past 30 years as regards the recognition of fundamental rights as general principles of Community law, allows for the hope that the same judicial dynamism will eventually be applied to promote the fundamental rights in the EU Charter.

However, there are limits and drawbacks to relying on judicial recognition of fundamental rights. The ECJ's case law emerges slowly, and depends on haphazard claims brought before it. The Court's dilemma may be resolved by other EU institutions, and social actors, taking up the burden of enforcing fundamental social rights.

Fundamental trade union rights

The inclusion of fundamental trade union rights in an EU Charter incorporated into the EU Treaty may well confer on them a constitutional status within national legal orders.

The ECJ may interpret the Charter trade union rights consistently with the law in most Member States, which often exceeds the protection of UK law, or consistently with international labour standards, where, again, the UK often falls short.

For example, trade union collective action has often been restricted, allegedly to protect public and/or essential services. The ILO's Freedom of Association Committee has established international standards on collective action in public/essential services.

Relying on Article 28 of the EU Charter (right to collective action), trade unions could promote challenges to more restrictive national laws. Again, Article 12(1) of the Charter on freedom of association could be interpreted as guaranteeing rights which go beyond what is provided in some national laws, for example, regarding interference in a union's internal affairs, rights to recognition by an employer, access to union members at the workplace, or to take part in union activities.

In interpreting the EU Charter, the ECJ will be sensitive to where national laws have protected trade union rights. Carefully selected cases could enable trade unions to encourage the ECJ to adopt a more expansive interpretation of the trade union rights guaranteed by the EU Charter.

A balance sheet

It is suggested that the EU Charter is a positive contribution to the promotion of trade union rights in the EU for a number of reasons. The EU Charter is an independent source of rights and is not limited to national practice in individual Member States.

National provisions which reflect Charter rights may achieve higher legal ranking in the national system; perhaps even constitutional status. The EU Charter will reflect international sources of trade union rights, and may go beyond these. In the EU Charter, social and economic rights are recognised as having the same status as civil and political rights. The Charter puts pressure on EU institutions to promote a European social model.

This positive assessment should not overlook the potential risks. The EU Charter might be exploited by employers and others to re-open fundamental principles established in national systems. The challenge is to establish clearly justiciable trade union rights: e.g. trade union freedom of association, information and consultation, collective bargaining and collective action. The tasks of an implementation strategy include, first, with respect to justiciable rights, to develop effective implementation, looking to effective sanctions, preventing regressions, removing qualifications, thresholds, exclusions and modifications, and, secondly, to move more social and economic rights towards justiciability; formulating them as positive and enforceable rights; including effective sanctions. 
The EU Charter opens a new chapter in the legal enforcement of trade union rights, both at transnational and national levels. All efforts should be made to persuade the Convention on the Future of Europe to secure and reinforce these rights.