The ECJ has ruled on a number of cases concerning the social policy arrangements of the Member States of the EU in relation to free movement. All EU Member States reimburse medical expenses that occur in another Member State as long as prior authorisation is given for foreign medical treatment or if the medical treatment is urgent. However, two cases, Decker[3] and Kohll[4], were considered exceptions to the rule by the Court. In the former, a Luxembourg national who purchased a pair of spectacles in Belgium was denied reimbursement for them on the grounds that he purchased them without prior authorisation from his sickness fund. The latter concerned another Luxembourg national whose daughter was refused treatment by a German orthodontist since the same could be provided in Luxembourg and the treatment was not considered to be urgent. Keeping in mind that barriers of this kind may be imposed in order not to harm the financial balance of the social security systems, the Court ruled that these two particular cases did not pose such a threat to national social security systems. Thus the principle of free movement prevailed.

The ECJ has also played a key role in defining the notion of EU citizenship before it was mentioned in the EC Treaty.[5] It has done this through extending the principle of non-discrimination based on nationality, which was originally intended for the protection of workers and freedom to provide services. The Court has extended this principle to include the benefits of social security in relation to free movement and also to include those who are not the providers of services, but recipients of services. This was done for the first time in the case of Ian William Cowan v. Tresor Public[6]. This case concerned a British citizen, Mr. Cowan, who had been attacked at the exit of a metro station in Paris. Mr. Cowan had not gone to France as a worker or as a provider of services and since his attackers were not identified he was not eligible to receive compensation for his physical injury. Nevertheless, the Court decided that even foreign recipients of services are entitled to the same treatment as the Member State’s nationals.

However, the ECJ has not only extended “circle of beneficiaries as to include other EC nationals but has also broadened the ambit of national social rights to non-EC nationals and thereby moved beyond European citizenship.”[7] This refers to migrant workers whose native countries have association agreements with the Community, but even here the ECJ has extended the scope of the agreements. In Henia Babahenini v. Belgium[8], the wife of a retired Algerian worker was denied a disability allowance in Belgium, as she was not a migrant worker herself. The Court rules that the agreement between the Community and Algeria did also include the members of the family of the migrant worker.

The above examples of the ECJ’s case law serve to depict its socially activist role. Moreover, it is clear that many of the socio-economic rights included in the Charter of Fundamental Rights of the EU have already been established in the case law of the ECJ. It is stipulated in Article 52 (2) of the Charter that rights based on EC Treaties or the TEU are subject to the conditions and limits outlined in those Treaties. Thus, the Charter cannot either widen or reduce the scope of those rights. Nevertheless, in fulfilling its primary duty of making rights more visible to EU citizens, the Charter undoubtedly signals an advance in the public awareness of those rights that have already been established in the case law of the ECJ.

Apart from the innovations contained in the Charter which answer the needs arising from social development, certain other elements of originality can be highlighted. It is the aim of this essay to bring forth and examine those elements. The innovative aspects of the Charter can be divided into three categories, namely those pertaining to the drafting process itself, the form of the Charter and finally its substance.

The Convention, or the ‘body’ which drafted the Charter, has been praised for the way in which it operated. It “worked in an unusually open and transparent way, posting all of its documents and all of the materials submitted to it and the drafts discussed by it on a specially dedicated website, and holding its meetings openly.”[2] Furthermore, access to the debates in the Convention’s meeting rooms was given to all persons. “The process provides a striking contrast with the customary process of inter-governmental negotiations, which are characteristically conducted in secret….”[3] This method adopted in the drafting process of the Charter has already been pointed to as a model that will be applied at the next IGC. This signals an improvement in the process of constitution making in the EU, something to be view as a direct consequence of the drafting process of the Charter.[4]

In taking into consideration the criticism of various NGOs, the Convention allowed civil society to influence the drafting process directly. It should be noted that “more than 70 associations involved in the protection of all manner of interests were consulted at hearings or produced written contributions.”[5] Also consulted were the public institutions which were to be directly influenced by the Charter. Thus observers from the Council of Europe, the Economic and Social Committee, the Committee of the Regions and the Ombudsman participated in the drafting process and notably influenced the final outcome.

When examining the way in which the Charter is formulated one can discern a number of innovations. In answering to its primary objective of making more visible the importance of fundamental rights to the citizens of the European Union, the Charter was written in a clear and unambiguous manner. The members of the Convention “used short sentences and a style as simple as possible in order to promote the acceptance of such values by EU’s populations and the latter’s identification with those values.”[6] Furthermore, the Charter is divided in such a way, with titles that are at the same time easy to remember and that demonstrate a clear intention to stress the indivisibility of human rights. Namely, this is accomplished by avoiding a separation between the first, second and third generation rights and instead producing chapters entitled Dignity, Freedoms, Equality, Solidarity, Citizens’ Rights and Justice. Moreover, the Charter goes beyond the male oriented formulation of documents and acquires a gender-neutral character. In this way, like the indivisibility of human rights, the principles of non-discrimination and equality become evident in the very form and aesthetic aspect of the Charter.

After having outlined the innovative nature of the drafting process of the Charter and its form, I shall turn to the analysis of the elements of originality of its content. As we have already mentioned, the objective of the Charter was not one of creating new rights.[7] In fact, the European Convention on Human Rights (ECHR) is “the standard for interpretation of the Charter, [and] the interpreter will have to keep the Convention – and the case-law of the European Court – in mind when he or she is trying to find the meaning of a provision of the Charter.”[8] However, a key point to be noted here is that the various human rights instruments are combined in the Charter. Thus, the Council of Europe observers to the drafting of the Charter highlight the importance of the fact that certain provisions in the Charter are not to be found in the ECHR, but are to be found in the case law of the European Court of Human Rights.[9]

There are a number of provisions contained in the Charter which can be seen as an update to the ECHR. Article 5 of the Charter adds the prohibition of trafficking of human beings to the prohibition of slavery and forced labour. Article 10 adds to freedom of thought, conscience and religion the right to conscientious objection. Furthermore, there are two articles which are direct results of the need to make new provisions in light of technological and scientific advances and their potential threat to individuals. Namely, Article 3 proclaims the prohibition of the reproductive cloning of human beings and Article 8 deals with the protection of personal data. The last two articles may be said to be the most innovative features of the Charter and the need for their proclamation is, I believe, self-evident.[10]

The emphasis on the indivisibility of rights has already been mentioned in connection to the formulation of the Charter, but now we will proceed to examine the implications of this emphasis. In Annex IV of the Presidency Conclusions of the Cologne European Council, June 3 and 4, 1999, it is stated that in the drafting of the Charter “account should therefore be taken of economic and social rights as contained in the European Social Charter and the Community Charter of the Fundamental Social Rights of Workers (Article 136 TEC), insofar as they do not merely establish objectives for action by the Union.”[11]

Perhaps one may be tempted to discard this move of placing civil and political rights together with social and economic rights as insignificant given the fact that the Charter is not legally binding. However, one should take into account the fact that, when drafting the Charter, the members of the Convention “bound themselves in advance to formulating the Charter in such a way that it can at any time be incorporated into the treaties or can in some other way be made binding.”[12] Moreover, the Charter has already exerted its influence on European courts in the creation of new case law. Thus, it has already acquired the status of a text of reference. When viewed from this perspective the potential of the Charter for the advancement of the monitoring system to protect social and economic rights is encouraging, especially when we take into consideration that the “Charter may contribute to the development of a more rights-oriented system, both legally and more generally.”[13] This possibility creates the opinion that the Charter  “offers important constitutional change within the EU in favour of greater social solidarity and equality.”[14]

The importance of the novelties in the Charter rises with consideration of the European Union’s eastward expansion. The Charter, besides bringing forth to the citizens of the EU the importance of fundamental rights, also extends this visibility to applicant countries. The addition of the prohibition of human trafficking in Article 5 is thus significant in this respect, given the record of organized crime in some states that wish to join the EU eventually. This can be seen as a noteworthy step forward in the spreading of awareness of the various rights by listing them in one concise Charter, which may be used as a guiding text by applicant countries. The incorporation of the prohibition of human trafficking makes more visible also the EU’s external relations policy. This does not only apply to the EU’s policy towards applicant countries but even towards highly developed states with reference to the inclusion of the provision on the protection of personal data in Article 8.

We have thus shown that the Charter is not in any way a mere repetition of the ECHR. On the contrary, it goes beyond it in many respects. The elements of originality in the three aspects of the Charter, namely, the drafting process, the formulation and the content, awaken positive feelings from an optimistic perspective on the nature of European integration. If viewed from the stance that the Charter is useless because it is not legally binding, one considers only its short-term effects. With a projection into the future and optimism about the advancement towards an EU Constitution, the importance of the Charter in its present form as an example of a good and innovative drafting process gains ground. The model adopted for the drafting process of the Charter certainly reduces the fear of an ever-more powerful Union which makes secretive decisions on the behalf of the citizens of member states. The Charter itself contains the right to good administration in Article 41 and right of access to documents in Article 42.

What remains to be seen is whether the Charter will be incorporated into the Treaty and which of the two possible attitudes towards the Charter at present will prevail. Nevertheless, it must be acknowledged that Charter will undoubtedly influence the spread or perhaps even fashion the human rights culture in Europe. We can imagine the list of rights “in the Charter developing into a real European political conscience.”[15]