Sharon Ellul Bonici | Sunday, 26 April 2009

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The abortion protocol isn’t enough

It took some time before Roberta Metsola Tedesco Triccas explained why she disagreed with me over the effects of the Lisbon treaty, but in the end it came down to ‘the protocol’. Like many others, she believes the ‘abortion protocol’ annexed to Malta’s accession treaty will be worth anything more than the paper it is printed on after the EU Charter enters into force with the Lisbon treaty.
But the protocol changes absolutely nothing from what I pointed out. It is something I should have mentioned in two sentences. The Lisbon treaty’s ‘EU Charter of Fundamental Rights’ has the “same legal value as the Treaties” (Art. 6[1] Treaty of the EU). This means the Charter’s provisions supersede protocols and declarations, and this primacy is taken into full account when the EU Court of Justice (ECJ) is one day asked to rule over the issue. Protocol or not, it will be within the ECJ’s remit to rule that abortion is a fundamental right of all EU citizens.
Ireland, too, has a protocol on abortion. The Irish protocol is actually annexed to the Lisbon treaty. Yet the Irish government is still seeking a ‘guarantee’ on abortion before the second referendum on the Lisbon treaty in October.
I could stop there, yet I will go a step further and show not just the technical possibility, but also the actual probability of an eventual ECJ ruling in this direction. Let me therefore go through, and expand upon, what I had written in September 2008, and again earlier this month after ‘Gift of Life’ found it appropriate to condemn me for my personal views while choosing to ignore the Lisbon treaty.

The EU Charter of Fundamental Rights
The EU Charter started as a political declaration in 2000 and ended up as Part II of the EU Constitution in 2004. Following the rejection of the constitution the Charter was re-introduced into the second constitutional version, the Lisbon treaty.
The Charter is not much different from the ‘European Convention on Human Rights’ (ECHR). But whereas the ECHR provides the rule book for the European Court of Human Rights in Strasbourg (non-EU; Council of Europe), the Charter would fall squarely under the jurisdiction of the EU Court of Justice (ECJ) in Luxembourg. This means that the EU ‘federal supreme court’ would gain direct jurisdiction over the fundamental rights of EU citizens.

The EU Court of Justice
So far, the ECJ’s jurisdiction has been limited to EU law. Its function is to interpret EU laws and treaties, and rule over disputes in the internal market and other Community areas, such as monetary policy, agriculture, competition, employment policy, commercial policy, border control, immigration, among others. Over the years, the ECJ has also recognised fundamental EU rights, mainly relating to the four freedoms and to EU citizenship.
While the ECJ’s interpretation of the Treaties is supreme, its rulings override national laws and constitutions, establishing EU case law. So with our rights under its jurisdiction, its powers, and the Union’s, are greatly enhanced since this would open up new fields currently within the Member States’ jurisdiction.
Moreover, the ECJ has a special obligation in its remit: it is bound to rule in the spirit of the Union, which means it is biased in favour of establishing the uniform application of EU law across the EU. With the Charter, the ECJ’s remit would also be to establish the uniformity of fundamental rights of citizens throughout the EU. In time, when the ECJ is asked to rule, its decisions will be taken in this vein.

Uniformity, equality and non-discrimination
Let us say a woman is criminally charged with breaching local abortion laws. She pleads her case before the ECJ claiming a breach of her fundamental right as an EU citizen – something she would not be able to do today without the Charter. What factors will be at play here? Will the protocol on abortion hold more water than the Charter as interpreted by the ECJ?
As I said, the Charter supersedes the protocol and it is on the Charter’s provisions that the ECJ will base its ruling, overriding national laws, constitutions, EU protocols, declarations, and anything that hinders it from establishing uniformity of EU fundamental rights.
The Charter speaks of the ‘inviolability of human dignity’ (Art. 1) and respect for one’s ‘physical and mental integrity’ (Art. 3). These rights stand to interpretation and the Court will interpret them in the light of its remit to uniformly uphold equality and non-discrimination among all EU citizens (Art. 20 and 21).
Again, this uniformity favours the European norm. This norm is qualified not only by the fact that just two Member States have not decriminalised abortion, but also by the fact that in SPUC v Grogan* the ECJ has ruled that abortion constitutes a “service” under the Treaty. This is significant, since it can only further qualify the Charter’s provisions whenever the ECJ is asked to rule over a specific case.
So even if the Charter contains so-called ‘safeguard clauses’ in articles 51, 52 and 53, these do not restrict the ECJ from performing its role. These clauses say that the Charter itself “does not extend… the powers of the Union”, or “modify [its] powers and tasks as defined in the Treaties” and that nothing in it “shall be interpreted as restricting or adversely affecting human rights and fundamental freedoms as recognised.... by the Member States’ constitutions.” So while the Charter relates to Member States’ constitutions as far as human rights are concerned, it in no way limits the power of the ECJ to interpret the treaties and the Charter ‘in the spirit of the Union’.
Meanwhile, Art. 52(4) states that the Charter shall be interpreted in harmony with the Member States’ common constitutional traditions in fundamental rights. The word ‘common’ here is meant as another safeguard, but this clause is about not restricting any of these common fundamental rights, while the word ‘harmony’ relates to traditional fundamental rights, not traditional prohibitions. In this sense, the term ‘common’ translates into uniformity of EU norms, rather than the preservation of prohibitions of what in most Member States are regarded as rights.

Enhancing possibilities
The propensity for the ECJ to enhance Community competence has been evident for some time and it is also happening in areas: notwithstanding the fact that criminal law and procedure do not fall within the Community’s competence, in two judgements in 2005 (and a third in 2007) the ECJ established a list of serious environmental offences in respect of which the Member States must impose criminal penalties. The Commission had welcomed the first judgment as one that recognised the exclusive competence of the Community to adopt criminal law measures to ensure the effectiveness of Community law. In Opinion COM 2005/583 of 23.11.2005, the Commission states:
“In allowing the Commission’s application, brought with Parliament’s support, against the Council, the judgment of 13 September 2005 in Case C-176/03 clarifies a point concerning distribution of powers as between the first and the third pillar, a question which has been the subject of controversy for a number of years now. The consequences of this judgment go far beyond the subject matter of the dispute, namely the protection of the environment, and are likely to affect all Community policies and the fundamental freedoms recognised by the Treaty whenever recourse to criminal law measures appears necessary in order to ensure their effectiveness.”
Likewise, in the so-called ‘Pupino case’ (C-105/03), the ECJ approved the direct applicability of another third-pillar framework decision which, although binding, should not, according to the treaties, have direct effect.
If the ECJ can overrule the Treaties and rule the direct applicability of criminal laws for the sake of uniformity and effectiveness of a framework decision, it can easily overrule a protocol in order to ensure the uniform applicability of a binding Charter that has direct effect throughout the EU territory.
The 2006 ruling in Watt v. NHS (UK National Health Service) is another example of the ECJ empowering the Union with competences not provided by the treaties. In this case the ECJ ruled that patients having to seek treatment in a hospital in another Member State must have their expenses reimbursed in their own country if it is found that they had been waiting for treatment beyond “clinically acceptable” limits. Here, the ECJ also ruled that the principle of free movement of services applies “regardless of the way in which the national system… operates.”
This ruling flatly contradicts Art. 152(4) TEC, which stipulates that “Community action in the field of public health shall fully respect the responsibilities of the Member States for the organisation and delivery of health services and medical care.” Yet the ECJ’s ruling prompted the Commission to propose the ‘Patients directive’ (still in the co-decision stage), which establishes policies in this regard.
So, as we can see, the ECJ would override the provisions of the Treaties themselves if it deems that the uniform applicability and effectiveness of a higher provision is in jeopardy. In the case of abortion, this may not happen any time soon, but with the Charter in place, if a case is brought before the ECJ, it is neither the protocol, nor Malta’s laws that will define its ruling, but the Charter’s provisions requiring uniform applicability to all EU citizens throughout the EU.

* Society for the Protection of Unborn Children Ireland Ltd v Stephen Grogan, et al (C-159/90, 4 October 1991)

Sharon Ellul-Bonici is a Labour candidate for the MEP elections

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