Liverpool Law Rev (2012) 33:281300

DOI 10.1007/s10991-012-9121-9

Human Dignity in the EU Charter of Fundamental

Rights and its Interpretation Before the European
Court of Justice
Jackie Jones

Published online: 29 December 2012

 Springer Science+Business Media Dordrecht 2012

Abstract This article argues that the EU Charters dignity provisions must be
given a specific, expansive European meaning that underpins the importance the EU
places on fundamental rights protection as a principle EU value. To this end, the
article examines the EU Charter provisions on dignity and critically analyses the
case law before the EU Charter had full legal effect and after it did. It finishes with
looking at three areas in which the potential for an expansive interpretation of
dignity could help bring the EU closer to its people and fully respect and protect
dignity: asylum, criminal justice and sexual orientation.
Keywords Human dignity
EU Charter
CJEU
Asylum
Equality

Judicial interpretation

Introduction
Two years after the entry into force of the Lisbon Treaty, the Charter of
Fundamental Rights of the European Union (the Charter) has become a point
of reference commonly used in the development of EU policies
The Commission not only guarantees that its proposals are compatible with
the Charter, it also ensures that the Charter is respected when Member States
implement EU law.1
In 2004 I argued that the European Court of Justice (CJEU) should take the
opportunity to imbue the dignity provisions within the Union Charter of

EU Commission (2012).

J. Jones (&)
Bristol Law School, UWE, Bristol, UK
e-mail: Jackie.jones@uwe.ac.uk

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Fundamental Rights (EU Charter)2 with a particular European understanding that

brings to the fore the social responsibility of the EU and social rights of individuals
and groups, rather than focussing exclusively on the economic union (Jones 2004).
At no other time in the EUs history has this been truer than right now and
particularly important in light of the statements above. I say this in the middle of the
Euro crises. If the EU can spend literally billions propping up financial institutions
and governments within the Euro-zone, it can do the same for its citizens. The two
are not the same. We have seen a long history of subsidies, bailouts and emphasis on
economic aspects of the EU. Some of these have clearly failed. If the EU is to have a
future, the rights of its citizens and those who are in its territories must be positively
protected and expanded in order for the economic union to have any chance of
succeeding. In other words, there is a symbiotic relationship between the two that
cannot be ignored. If this is not the case, what is the purpose of an ever closer
union? Whose interests does it serve?
The EU Charter is a manifestation of intent and purpose by member states,
articulated in the Preamble to the EU Charter to create that ever closer union
amongst its people and to strengthen the protection of fundamental rights in the
light of changes in society, social progress and scientific and technological
developments by making those rights more visible in a Charter. The Preamble also
places the individual at the heart of its activities To this end, the EU Charter
provides individuals the opportunity to, on the one hand, hold EU institutions and
member states acting under EU law to account for their actions and omissions, and,
on the other, to have those same actors protect and respect the rights of individuals
as articulated in the EU Charter. It is a modern human rights document that does not
divide the types of rights into hierarchies (political and civil, social and economic
rights), the significance being that the document incorporates both negative and
positive obligations on Member States and EU institutions. It is progressive.
To what extent can the EU Charter fulfill a progressive agenda, the aspirations of
its drafters and of the people of Europe? This article begins with an examination of
the EU Charter articles dealing with human dignity. In the second part the article
examines some of the jurisprudence on dignity before the EU Charter had full legal
effect. In the third part the article critically analyses some aspects of the case law
post-ratification of the Treaty of Lisbon and examines three possible areas for
expansive interpretation using human dignity as the foundational interpretative tool.
The piece then concludes with some final remarks on the possible future use of the
EU Charter.

The Union Charter of Fundamental Rights

The initiative for the Charter can be traced to the 1999 German Presidency of the
EU.3 Momentum gathered throughout the Presidency and culminated in a
conference co-hosted by the German Ministry of Justice and the Commission
2

Official Journal. C 364: 01.

De Burca (2001).

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representation in Germany entitled Towards a new Charter of Fundamental

Rights? in April 1999.4 As both the Cologne Presidency Conclusions and the
chairperson of the Convention drafting the Charter, Roman Herzog,5 made clear, the
Charter was to become a list of fundamental rights that would bring about a more
people-centred approach in the European Union.6 How this is to be achieved is still
unclear. The Union Charter of Fundamental Rights was adopted in December 2000
at the Nice European Summit.7 The aspirations of a Union respecting human and
fundamental rights were laid out in the Preamble to the EU Charter. Like most
Preambles, it is wide-reaching, truly people-centred. It talks in terms of strengthening the protections in an ever-changing society, thus setting out the interpretative
method to be used for the articles in the Charter. This is one of progressive, living
tree interpretation that recognizes the changing nature of society, its morals and
limitations. It should be remembered that the Charter was signed at Nice at a time
before the 9/11 attacks and the vast curtailment of rights and freedoms in the name
of public protection and the fight on terror that subsequently ensued. Perhaps this
is another reason why it took 9 years for the member states to finally ratify the
Charter: progressive rights interpretation was not the priority of governments at the
time. Quite the opposite in fact,8 especially as the EU Charter does not restrict
the enjoyment of the rights contained within it to the citizens of the EU. In addition,
for instance, the right to asylum and various solidarity rights are explicitly listed.9
Preamble
The peoples of Europe, in creating an ever closer union among them, are
resolved to share a peaceful future based on common values.
Conscious of its spiritual and moral heritage, the Union is founded on the
indivisible, universal values of human dignity, freedom, equality and
solidarity; it is based on the principles of democracy and the rule of law. It
places the individual at the heart of its activities, by establishing the
citizenship of the Union and by creating an area of freedom, security and
justice.

To this end, it is necessary to strengthen the protection of fundamental rights

in the light of changes in society, social progress and scientific and
technological developments by making those rights more visible in a Charter.
This Charter reaffirms, with due regard for the powers and tasks of the
Community and the Union and the principle of subsidiarity, the rights as they
4

De Burca (2001).

Former President of Germany.

De Burca (2001).

Official Journal 2000 C 364: 1, updated Official Journal 2010 C 83: 389.

See for instance, Strawson (2002).

This is (potentially) very different to the implicit references to them under the ECHR.

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result, in particular, from the constitutional traditions and international

obligations common to the Member States, the Treaty on European Union, the
Community Treaties, the European Convention for the Protection of Human
Rights and Fundamental Freedoms, the Social Charters adopted by the
Community and by the Council of Europe and the case-law of the Court of
Justice of the European Communities and of the European Court of Human
Rights.
Enjoyment of these rights entails responsibilities and duties with regard to
other persons, to the human community and to future generations.
The Union therefore recognises the rights, freedoms and principles set out
hereafter.
I want to make three preliminary observations concerning the Preamble. First, the
Preamble makes clear that the Union is founded on the indivisible, universal values
of human dignity, freedom, equality and solidarity. Because of this proclamation of
indivisibility, it will therefore come as no surprise that first, there is an entire chapter
on human dignity in the Charter, and, secondly, that the human dignity provisions
will be pleaded before the CJEU in conjunction with other articles: equality and
solidarity (in which there are two further articles that explicitly mention human
dignity [rights of the elderly and fair working conditions)], as well as freedom. This
statement clearly articulates how the concept and value of human dignity is the heart
and soul of this human and fundamental rights document: dignity flows through all
the articles of the Charter and cannot be separated from the substantive concept of
equality as developed by the CJEU and the EU institutions.
The second observation also in relation to the same quote from the Preamble, is
the fact that the Preamble recognizes the universality of human dignity, as well as
freedom, equality and solidarity. To say that this statement is controversial is an
understatement. One could spend the entire article discussing the differing meanings
of equality, solidarity and freedom let alone whether or not these values are truly
universal. When it comes to human dignity, however, I would argue it is universal,
as far as any human rights concept can be. It is contained in most, if not all, human
rights documents, whether explicitly or implicitly through case law and practice. It
covers many of the same concerns in the different legal cultures that exist in the
world: personality rights, human integrity and privacy. It is at the cusp of the public/
private divide, and arguably delineates legitimate from unlawful state interference
in a persons private sphere.
Finally, in order to further clarify the particular European conception of human
dignity to be utilized, the Preamble states that enjoyment of these rights entails
responsibilities and duties with regard to other persons, to the human community and to
the future generations. This statement is an articulation of Kantian values in relation to
dignity and could be interpreted as being similar to the German and some former
Eastern European societies conceptions of dignity. The individual is not an island:
s/he lives in a community and must adhere to that community for the common good.10
10

See Jones (2004).

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In order to guide courts in their interpretation of the substantive provisions of the

EU Charter, Explanatory Guidance was published alongside the EU Charter proper
in the Official Journal that was not accorded legal status for interpretation purposes.
That Guidance was updated in 2007.11 The Guidance is simply there to clarify the
provisions of the Charter, indicating the sources and scope of each of the rights set
out therein. It is for information only. However, the Charter is to be interpreted by
the courts of the Union and the Member States with due regard to these explanations.
The Guidance explains that many of the EU Charter articles have the same wording
as the European Convention of Human Rights (ECHR). As the case law of the
European Court of Human Rights (ECtHR) is part of the general principles of EU
law, the ECtHRs jurisprudence should be followed when the article in the EU
Charter matches that of the ECHR.12 It is in this way that a minimum European
standard of human rights and fundamental rights can be maintained and clearly
articulated. In a joint statement by the Presidents of both the CJEU and the ECtHR in
2011, Presidents Costa and Skouris observed that the Charter has
swiftly become of primary importance in the recent case-law of the CJEU.
Since 1 December 2009 [] it has been cited in some thirty judgments. Thus
the Charter has become the reference text and the starting point for the CJEUs
assessment of the fundamental rights which that legal instrument recognises. It
is thus important to ensure that there is the greatest coherence between the
Convention and the Charter insofar as the Charter contains rights which
correspond to those guaranteed by the Convention. Article 52(3) of the Charter
provides moreover that, in that case, the meaning and scope of the rights under
the Convention and the Charter are to be the same. In that connection, a
parallel interpretation of the two instruments could prove useful.
The Guidance and the judges will ensure that this happens.
Where there is no correlating article in the ECHR or no jurisprudence, the EU
Charter is able to move away from the ECtHRs approach. Regardless of this latter
point, it is open to the EU to provide better protection under any of the EU Charter
articles if it so chooses. There is therefore a real incentive for an EU progressive
meaning to develop under any of the articles that affords better protection to those
within the EU. This is particularly relevant in extreme situations like the treatment
of asylum seekers in Greece.13
When it comes to human dignity, there is no explicit mention of it in the ECHR.
But it has been read into the document. In Tyrer,14 the ECtHR refers to the need to
11

Official Journal. C 303: 17.

12

Article 52(3) EU Charter.

13

FRA (2011).

14

Tyrer v. the United Kingdom, 25 April 1978, 32, Series A no. 26, para 33. See X v. France, app.
18020/91, ECommHR report of 17 October 1991, SW v United Kingdom: CR v United Kingdom (1995)
21 EHRR 363; East African Asians v United Kingdom (3 E.H.R.R. 76). Held that publicly to single out a
group of persons for differential treatment on the basis of race might, in certain circumstances, constitute
a special form of affront to human dignity, a decision applied in Moldovan v Romania (41138/98;
64320/01), where the ECtHR upheld the claim of a number of Roma that their rights had been breached
under Article 14.

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respect human dignity in the context of article 3, the prohibition of inhuman and
degrading treatment. So as far back as 1978, the ECtHR proclaimed that
() Thus, although the applicant did not suffer any severe or long-lasting
physical effects, his punishment - whereby he was treated as an object in the
power of the authorities - constituted an assault on precisely that which it is
one of the main purposes of Article 3 to protect, namely a persons dignity and
physical integrity.
So despite the fact there is no explicit mention of human dignity in the ECHR, it has
been read into it by the ECtHR in specific situations and violations of various ECHR
articles. But this is not the same as explicitly writing into this new human rights
document an entire chapter on human dignity, the first article of which obligating
the EU and member states to respect and protect dignity at the same time writing
into EU secondary law the obligation to protect and respect dignity it in a variety of
different field (see below).
Title 1 Dignity
The entire first chapter of the EU Charter refers to the concept of dignity. This
demonstrates its importance.15 The chapter outlines when human dignity is to be
protected and safeguarded when the Union institutions and the member states act
within the remit of EU law.
Article 1:

Human dignity is inviolable. It must be respected and protected.

It is clear from the Guidance just how important human dignity is. The Guidance
recognises human dignity as a universal right when it states that human dignity is
not only a fundamental right but moreover constitutes the real basis of fundamental
rights. It is inspired by the Preamble to the 1948 Universal Declaration of Human
Rights: Whereas recognition of the inherent dignity and of the equal and
inalienable rights of all members of the human family is the foundation of freedom,
justice and peace in the world. Because of its inviolability, none of the rights laid
down in this Charter may be used to harm the dignity of another person, and that the
dignity of the human person is part of the substance of the rights laid down in this
Charter. It must therefore be respected, even where a right is restricted.
It can therefore be argued that this Article serves as a general clause protecting
and safeguarding human dignity and therefore potentially has the greatest (or least)
impact on future Union law and policy. As the Article does not specify in which
area(s) of Community law or policy it is to apply, it potentially offers one of the best
ways of positively expanding the rights of people in the EU in all areas of EU
activity.16
15

In national constitutions as well as international treaties the first articles are often viewed as the most
fundamental of the entire document. This is the case under the German Basic Law, with dignity as the first
and supreme fundamental right of all that follow. See below.

16

It should be remembered that the EU Charter is not only a catalogue of fundamental rights for the
citizens of the EU, it applies equally to all those found to be inside the EU territories, regardless of
citizenship.

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The EU institutions and member states are mandated to respect and protect the
dignity of the individual. That mandate extends to all acts and omissions of the
institutions and the member states in exercising EU law. It is a right of individuals
that is the responsibility of the EU and its member states to positively fulfil. That
includes making sure third parties do not violate the dignity of the individual. State
responsibility for actions by third parties will inevitably be tested under this article
(see below).
Whether article 1 will be a stand-alone right is yet to be seen. More often than
not, I would argue, article 1 will be combined with other articles in the EU Charter
that detail more specific rights. For instance, the right to life (abortion) or fair and
just working conditions (length of the working week). The effect could be similar to
Article 14 ECHR. However, I would argue, much stronger, as the right to human
dignity is a freestanding right which can be used by itself to found successful
claims. This is not possible with Article 14 ECHR. Finally, article 1 may not be
abridged in any way. Thus no other right in the EU Charter may be used to curtail
someones human dignity right under Article 1. Inviolable therefore means that
human dignity cannot be taken away from any person. It cannot be forfeited even
when a person wants to give their dignity away or sees no violation of their dignity.
It is inherent in being human. It is absolute.17
Article 2:Right to Life
1.
2.

Everyone has the right to life.

No one shall be condemned to the death penalty, or executed.

The Guidance states that Article 2(1) is based on the first sentence of Article 2(1)
ECHR, which reads:1. Everyones right to life shall be protected by law. Article
2(2) is based on Article 1 of Protocol No 6. The Guidance also states that the
negative definitions appearing in the ECHR must be regarded as also forming part
of the Charter. Thus Article 2(2) ECHR states: Deprivation of life shall not be
regarded as inflicted in contravention of this article when it results from the use of
force which is no more than absolutely necessary in three circumstances:
a. in defence of any person from unlawful violence;
b. in order to effect a lawful arrest or to prevent the escape of a person lawfully
detained;
c. in action lawfully taken for the purpose of quelling a riot or insurrection.
In addition, the Guidance states that Article 2 of Protocol No 6 to the ECHR
applies:
A State may make provision in its law for the death penalty in respect of acts
committed in time of war or of imminent threat of war; such penalty shall be
applied only in the instances laid down in the law and in accordance with its
provisions.18

17

This articulation of human dignity mirrors the philosophy of Kant (1959).

18

There is ample case law in relation to Article 2 ECHR; this will not be discussed here.

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Article 3: Right to the Integrity of the Person

1.
2.

Everyone has the right to respect for his or her physical and mental integrity.
In the fields of medicine and biology, the following must be respected in
particular:
a.

the free and informed consent of the person concerned, according to the
procedures laid down by law,
b. the prohibition of eugenic practices, in particular those aiming at the
selection of persons,
c. the prohibition on making the human body and its parts as such a source of
financial gain,
d. the prohibition of the reproductive cloning of human beings.
The Guidance does not mention article 3(1). This is surprising as right to physical
and mental integrity has been the subject of much national constitutional debate,
especially in Germany.19 Rather the Guidance focuses on the values to be found in
the Convention on Human Rights and Biomedicine, adopted by the Council of
Europe, stating that the EU Charter prohibits only reproductive cloning and is
particularly concerned with eugenic practices, especially those aiming at the
selection of persons. For instance, sterilisation, forced pregnancy, compulsory
ethnic marriage among others, all acts deemed to be international crimes in the
Statute of the International Criminal Court adopted in Rome on 17 July 1998 [see its
Article 7(1)(g)]. With this article, therefore, the EU strays into a vast area:
international humanitarian law. This article, if it indeed is this wide, could have a
widespread effect on the use of war crimes jurisprudence from the International
Criminal Court (ICC) and the various ad hoc tribunals in conflict and post-conflict20
situations in the CJEU. Until recently the EU has staid clear of substantive criminal
law. No longer. In the last few years, the EU has legislated on substantive criminal
law provisions in relation to human trafficking, organized crime, violence against
women, protection orders, forced marriage and many more. The area of criminal
law has been a major source of human dignity jurisprudence under the ECHR for
many years, in particular, the right to a fair trial (Article 6 ECHR). This right is also
contained within Article 47 EU Charter and therefore subject to EU law and subject
to being employed with Article 1 EU Charter. According to the EU Commission the
right to an effective remedy was the most quoted right in the decisions of the Court
of Justice of the EU referring to the Charter and it was mentioned in a third of all
these decisions.21
One example that may manifest itself under both Articles 3 and 4 EU Charter is
rape. It invariably breaches a persons dignity. Under international humanitarian
law, rape can be a form of torture.22 If perpetrated by EU nationals on a systematic
19

Article 2 German Basic Law.

20

The troubles in Northern Ireland have never been classified as conflict by the UK government (unlike
a strong lobby inside Northern Ireland itself), with the resulting application of Resolution 1325 that
should be applied and the ICC statute which could be as well.

21

EU Commission (2012).

22

The Prosecutor v. Jean-Paul Akayesu. Case No. ICTR-96-4-T. Judgment of 2 September 1998.

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scale abroad (for example contractors in conflict zones like Afghanistan) it could be
seen as a war crime. That may well be a step too far for the CJEU. But, I would
argue, not for hungry lawyers using the EU Charter creatively.
Article 4: Prohibition of Torture and Inhuman or Degrading Treatment or
Punishment
No one shall be subjected to torture or to inhuman or degrading treatment or
punishment.
This article has the same meaning as under Article 3 ECHR. As a consequence, all
the jurisprudence that mentions human dignity under this article, and there is a
substantial body now, is also applicable under EU law. So, just to illustrate the point,
in the recent case of MSS v Belgium and Greece23 the ECtHR interpreted inhuman
treatment as pre-meditated, applied for a long period of time and caused either
actual bodily injury or intense physical or mental suffering. In addition it held that
treatment is considered to be degrading when it humiliates or debases an
individual, showing a lack of respect for, or diminishing, his or her human dignity, or
arouses feelings of fear, anguish or inferiority capable of breaking an individuals
moral and physical resistance.24 It may suffice that the victim is humiliated in his or
her own eyes, even if not in the eyes of others.25 The EU may go further, however, to
provide deeper protection and to define degrading or inhuman treatment or
punishment more widely. This may be an area where the situation of the Roma in
different parts of the EU could be tested before the CJEU. The Roma have been and
continue to be subject to much harassment, bullying, discriminatory acts and
omissions as well as plain prejudice in many EU member states. For instance, the
segregation of Roma children in schools, lack of provision of housing by the state and
lack of job opportunities in addition to being the subjects of many hate crimes.
Article 5: Prohibition of Slavery and Forced Labour
1.
2.
3.

No one shall be held in slavery or servitude.

No one shall be required to perform forced or compulsory labour.
Trafficking in human beings is prohibited.26

Whereas the Guidance states that the rights in Article 5(1) and (2) matches Article
4(1) and (2) ECHR, Article 5(3) is different. It stems directly from the principle of
human dignity and takes account of recent developments in organised crime, such as
the organisation of lucrative illegal immigration or sexual exploitation networks.
Rather confusingly, the Guidance refers to the annex to the Europol Convention
contain[ing] the following definition which refers to trafficking for the purpose of
sexual exploitation: traffic in human beings: means subjection of a person to the real
23

MSS v. Belgium and Greece. Application no. 30696/09.

24

See also Pretty v. the United Kingdom. 2002. no. 2346/02 ECHR III. Para 92.

25

See, inter alia, Tyrer v. the United Kingdom. 1978. Series A no. 26. Para 52.

26

There are two further articles of the EU Charter that mention human dignity: rights of the elderly
(Article 25) and fair and just working conditions (Article 31). These will not be discussed here as the
purpose of the article is to examine Chapter 1(dignity) of the EU Charter.

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and illegal sway of other persons by using violence or menaces or by abuse of

authority or intrigue with a view to the exploitation of prostitution, forms of sexual
exploitation and assault of minors or trade in abandoned children. This definition is
not the one used in the Council of Europe Convention on Action against Trafficking
in Human Beings27 nor in the EU Anti-Trafficking Directive.28 This will invariably
lead to a different definition being followed in any court proceedings than the one
contained in the guidance, as both the Convention and the Directive have, more or
less, the same definition, which had been taken directly from the United Nations
Palermo Protocol of 2000.29 Seeing as the Guidance is merely that, guidance, this is
an example where it is safe to say the CJEU will have to put it aside. If it does, then
this opens the door open for the CJEU to do so in other areas as well, notably in areas
that are just emerging (for example, Internet crimes) or ones not yet thought about.

Case Law Pre-Legal Status of the EU Charter

Since its adoption in 2000 one of the most hotly debated issues surrounding the EU
Charter has not been the content of the supposed rights it was to confer, rather
whether it would have any force of law.30 Very early on it was made clear by the
Court of First Instance that the EU Charter was part of its jurisprudence. In one
judgment it used the EU Charter to dramatically change the requirements of
individual concern under Article 230.31 It also re-iterated that the Treaty
established a complete system of legal remedies and procedures. Pre-legal effect, it
was often quoted by Advocate Generals. For instance, Alber, Mischo, Stix-Hackl,
Jacobs, Geelhoed and Leger.32 It is clear that Advocate General Leger believes the
EU Charter to be a source of guidance as to the nature of the Community rules of
positive law.33 As national courts refer matters that concern human dignity to the
27

Available at: http://conventions.coe.int/Treaty/en/Treaties/Html/197.htm.

28

Directive 2011/36/EU of the EP and the Council of 5 April 2011 on preventing and combating
trafficking in human beings and protecting its victims. Official Journal L 101/1.

29

Protocol to Prevent, Suppress and Punish Trafficking in Persons, especially Women and Children,
supplementing the UN Convention against Transnational Organized Crime. United Nations Treaty Series.
2237: 39. Doc. A/55/383. Available at: http://treaties.un.org/Pages/ViewDetails.aspx?src=IND&mtdsg_
no=XVIII-12-a&chapter=18&lang=en.

30

For example, Bengoetxea et al. (2001); de Witte (2004); Lane (2007); Peers (2004).

31

Case T-177/01 Jego-Quere et Cie SA v Commission, judgment of 3 May 2002. Para 51.

32

See C-340/99 TNT Traco SpA v Poste Italiane SpA [2001] ECR I-4109; Case C-173/99 R (on the
application of BECTU) v Secretary of State for Trade and Industry [2001] ECR I-4881; Cases C 122 &
125/99P D v Council [2001] ECR I-4319; Cases C-20 and 64/00 Booker and Hydro v Scottish Ministers
[2003] NPC 89; Case C-49/00 Commission v Italy [2001] ECR I-8575; Case C-131/00 Nilsson,
unreported; Case C-459/00 MRAX, unreported; Case C-377/98 Netherlands v Parliament and Council
[2001] ECR I-7079; Case C-270/99 P Z v Parliament, unreported; Case C-50/00 P Union de Pequenos
Agricultores v Council [2002] ECR I-6677; Case C-413/99 Baumbast and R v Secretary of State for the
Home Department [2002] ECR I-7091; Case C-313/99 Mulligan, unreported; Case C-353/99P Council v
Hautala [2001] ECR I-9565; Case C-309/99 Wouters v Algemene Raad van de Nederlandse Orde van
Advocaten [2002] ECR I-1577. This is not a complete list, merely an illustration that many Advocates
General have referred to the Charter. All these are available at http://europa.eu.int/cj/en/transitpage.htm.
33

Case C-353/99P Council v Hautala [2001] E.C.R. I-9565. Quoted in CONV 116/02. June 18, 2002: 4.

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CJEU, the concept is being given a European Union meaning that encompasses the
common constitutional traditions of these member states which will be read into
national laws. In addition, the CJEU (and the Advocate Generals) have made use of
the EU Charters dignity articles to justify their interpretation of the concept as a
fundamental right of the EU. Long before the Charter had full legal status, the ECJ
made this concept mean more than a minimum standard in a variety of areas even if
not all Member States had interpreted it in same way, thereby already imbuing the
EU concept of dignity with substantive meaning. Significantly, it has done so in a
variety of different legal spheres, thus permitting human dignity to potentially be
utilized in any area of EU law and policy, including the examples below. That is
underscored by the 2001 CJEU judgment confirming that a fundamental right to
human dignity is part of European Union law34 and the variety of subjects already
adjudicated on before the EU Charters legal status became secure. For example, in
1993 Advocate General Jacobs conclusions expressly demonstrated the emergence
of the principle of respect for human dignity in the Community legal order. He
stated that the constitutional traditions of the Member States in general allow for
the conclusion that there exists a principle according to which the State must respect
not only the individuals physical well-being, but also his dignity, moral integrity
and sense of personal identity.35 In P v. S36 the Court, following the conclusions of
Advocate General Tesauro, added the reference to respect for human dignity with
regard to the treatment of transsexuals in the workplace to tolerate such
discrimination would be tantamount, as regards such a person, to a failure to
respect the dignity and freedom to which he or she is entitled, and which the Court
has a duty to safeguard, concluding that dismissal of such a person must therefore
be regarded as contrary to Article 5(1) of the directive. In Pupino,37 the Court
highlighted that Articles 2 and 8(4) of the Framework Decision required each
Member State to make every effort to ensure that victims are treated with due
respect for their personal dignity during proceedings, to ensure that particularly
vulnerable victims benefit from specific treatment best suited to their circumstances,
and to ensure that where there is a need to protect victims, particularly those most
vulnerable, from the effects of giving evidence in open court, victims may, by
decision taken by the court, be entitled to testify in a manner enabling that objective
to be achieved, by any appropriate means compatible with its basic legal principles.
This type of interpretation will become crucial for victims of human trafficking once
the EU Directive on Trafficking becomes operative in April 2013.
Omega38 is often described as the high water mark of human dignity
interpretation in the EU as it allowed the German prohibition on simulated
homicide in a game to trump free movement of services because it violated human
dignity and the sanctity of life. These are fundamental issues to the whole European
34

Case C-377/98 Netherlands v European Parliament and Council. 2001. ECR I-7079.

35

Case C-168/91 Christos Konstantinidis v. Stadt Altensteig Standesamt. 1993. 3 Common Market Law
Review 3: 401.

36

Case C-13/94 P v. S and Cornwall County Council. 1996. ICR 795.

37

Case C-105/03 Pupino. 2005. ECR I-5285.

38

Case C-36/02 Omega. 2004. ECR I-9609.

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J. Jones

project. I would argue it is only the beginning. The CJEU followed the line of
argument of the Advocate General, namely that human dignity was one of the
general principles of law recognised by the Community as in need of protection, and
that the measure taken in this context fulfilled the conditions for justifying the
service restriction. According to the CJEU, this finding was not incompatible with
the fact that the activity in question, which involved using laser guns to simulate
homicide, was not subject to any restrictions in the United Kingdom. ()
the Community legal order undeniably strives to ensure respect for human
dignity as a general principle of law. There can therefore be no doubt that the
objective of protecting human dignity is compatible with Community law, it
being immaterial in that respect that, in Germany, the principle of respect for
human dignity has a particular status as an independent fundamental right.
Since both the Community and its Member States are required to respect
fundamental rights, the protection of those rights is a legitimate interest that,
in principle, justifies a restriction of the obligations imposed by Community
law, even under a fundamental freedom guaranteed by the Treaty such as the
freedom to provide services (). However, measures which restrict the
freedom to provide services may be justified on public policy grounds only if
they are necessary for the protection of the interests which they are intended to
guarantee and only in so far as those objectives cannot be attained by less
restrictive measures (). It is not indispensable in that respect for the
restrictive measure issued by the authorities of a Member State to correspond
to a conception shared by all Member States as regards the precise way in
which the fundamental right or legitimate interest is to be protected.
Community law does not preclude an economic activity consisting of the
commercial exploitation of games simulating acts of homicide from being
made subject to a national prohibition measure adopted on grounds of
protecting public policy by reason of the fact that that activity is an affront to
human dignity.
These statements demonstrate the lengths that the Court will go to in order to secure an
interpretation of human dignity that also respects the national legal traditions. The
significance is that the national interpretation can be utilized by other member states as
well as the CJEU to create a distinctly European meaning to the concepts in the EU
Charter that are not matched to the ECtHRs jurisprudence or where the EU Charter
provisions are worded in a different manner to the ECHR. It does not follow, of course,
that this will automatically ensure a positive, expansive interpretation for fundamental
rights. This is something we as advocates to and before the court have to argue for. That
becomes easier in fields that the court and we are familiar with. For instance, equality.
In Coleman39 Advocate General Maduro stated:
the most obvious way in which such a persons dignity and autonomy may be
affected is when one is directly targeted because one has a suspect
characteristic. Treating someone less well on the basis of reasons such as
39

Case C-303/06 Coleman v. Attridge Law. 2007. IRLR 88.

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293

religious belief, age, disability and sexual orientation undermines this special
and unique value that people have by virtue of being human. Recognising the
equal worth of every human being means that we should be blind to
considerations of this type when we impose a burden on someone or deprive
someone of a benefit.
From a brief canter through some cases brought before the EU Charter became
legally binding, it is evident that human dignity is a legal value in the EU legal order
that will be used as a method of interpretation by the CJEU. It can be used as a public
policy ground to restrict even the most fundamental aspects of the EU: freedom of
services. It is equally evident that the legal concept of human dignity does not have to
be identical in all Member States. Indeed, it can be used as a common denominator
for the social welfare of all of the people living within the EU, or not. This is still
open to interpretation. In addition, the content of what constitutes the limits of human
dignity protection can be and are expanded and contracted according to a given set of
facts. It has to be remembered that the court can give or take away rights as seen from
the perspective of the litigant. There is therefore no guarantee that human dignity as a
legal concept will be expansively, positively interpreted. But it could be.
Post-Legal Status of the EU Charter
It took 3 years to ratify the Lisbon Treaty, not least because many member states
had to hold referendums and to try to persuade their nationals that what Herzog had
said would become reality, rather than merely to further corporate agendas. Once
ratified, Article 6 TEU became operative to make the EU Charter a binding
document that has the same legal value as the Treaties. This has the effect of
imbuing the EU Charter with a special status: it is not simply another international
human rights treaty obliging ratifying states to adhere to under public international
law. In other words, its status is different to that of the ECHR. There are limitations
to its scope however. For example, it is addressed to the EU and the member states
only when they are implementing EU law (Article 51 EU Charter). This is a
reflection of Wachauf40 in which the Advocate-General stated that
When acting in pursuance of powers granted under Community law, Member
States must be subject to the same constraints, in any event in relation to the
principle of respect for fundamental rights, as the Community legislator.
But what does that actually mean? In the Court it was held that
The requirements of the protection of fundamental rights in the Community
rules and so the Member States must, as far as possible, apply those rules in
accordance with those requirements.
The Court has made clear that it is the guardian of these rights, even in cases
involving questions of public policy.41 And this has been the position the Court has
40

Case 5-88 Wachauf v Bundesamt fur Ernahrung und Forstwirtschaft. 1989. ECR 2609.

41

C-260/89 ERT. 1991. ECR I-2925.

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J. Jones

taken in subsequent cases, for instance Kjell Karlsson42 and Chakroun.43 In

addition, EU human rights law applies to Member States not only when they are
implementing EU law, but whenever they are acting within the scope of
Community law. If this is the criterion, then the EU Charter applies not only
when States directly implement an EU norm, but also when they derogate
therefrom, maybe even when their acts may simply affect Union law in a general
context. Clearly the outer limits of the EU Charters reach are still to be ironed
outprobably by the CJEU.
Three Areas in Which Human Dignity Will Play a Significant Role
In this article, I want to draw attention to three distinct areas in which dignity is used in
order to ensure a minimum standard of humanity within the EU: asylum, victims of
crime and sexual orientation discrimination. The three areas demonstrate the possible
breadth of human dignity in creating an EU that truly is closer to its citizens if the EU
institutions and the member states recognize the importance human dignity plays in our
lived experience as humans now that the EU Charter has full legal effect.
The situation of asylum seekers is a fertile ground for litigation using the EU
Charter, not least because Article 18 talks in terms of a right to asylum. There is no
equivalent under the ECHR. The recent cases of Cimade44 and NS45 will be
examined in order to demonstrate the importance of Article 1 EU Charter, in
particular how the CJEU has interpreted the obligation of full protection of human
dignity as well as the crucial role recitals play in litigation. Cimade concerned the
interpretation of Council Directive 2003/9/EC of 27 January 2003 laying down
minimum standards for the reception of asylum seekers in the Member States.
France questioned whether it had to bear the financial burden and provide the
minimum protection as set out in the Directive if another member state was being
asked to take on the applicants claim. The Court stated that the Directive only
recognized one kind of asylum seeker, not a sub-category of someone being
transferred to another member state while still in the territory of the asking state. As
long as the person seeking asylum was in French territory, it also assumed the
financial burden. The Court had to look not only at the operative part of the
Directive but also stressed the importance of the recitals to the determination of
the concept of human dignity. Recital (5) of the Directive states
This Directive respects the fundamental rights and observes the principles
recognised in particular by the Charter of Fundamental Rights of the European
Union [(the Charter)]. In particular, this Directive seeks to ensure full
42

Case C-292/97 Kjell Karlsson. 2000. ECR I-2737.

43

Case C-578/08 Chakroun. 2010. ECR I-1839.

44

Case C-179/11 Cimade, Groupe dinformation et de soutien des immigres (GISTI) v Ministre de
lInterieur, de lOutre-mer, des Collectivites territoriales et de lImmigration. 2012. Not yet reported.
45

Joined Cases C-411/10 and C-493/10, N S. v. Secretary of State for the Home Department and M.E.,
ASM., MT., KP., EH. v. Refugee Applications Commissioner, Minister for Justice, Equality and Law
Reform. 2011. Available at: http://curia.europa.eu/juris/document/document.jsf?text=&docid=119024&
pageIndex=0&doclang=en&mode=req&dir=&occ=first&part=1&cid=340874.

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295

[emphasis added] respect for human dignity and to promote the application of
Articles 1 and 18 [right to asylum] of the said Charter.
Taking this into account, the Court held that
The provisions of Directive 2003/9 must also be interpreted in the light of the
general scheme and purpose of the directive and, in accordance with recital 5
in the preamble to that directive, while respecting the fundamental rights and
observing the principles recognised in particular by the Charter. According to
that recital, the directive aims in particular to ensure full respect for human
dignity and to promote the application of Articles 1 and 18 of the Charter.46
In addition, it made clear that
the observance of fundamental rights, in particular the requirements of Article
1 of the Charter, under which human dignity must be respected and protected, the
asylum seeker may not, as stated in paragraphs 41 to 44 above, be deprived
even for a temporary period of time after the making of the application for
asylum and before being actually transferred to another Member State of the
protection of the minimum standards laid down by that directive.47
Consideration of the protection of human dignity came through very clearly in this
judgment, even where the finances of the member states were affected. This is
significant as the piece by Grant in this collection demonstrates concerning South
Africa. It can therefore be argued that full protection of human dignity requires the
states and the EU to adhere to at least a minimum standard of human rights protection,
especially for those who find themselves in situations of extreme vulnerability. That
minimum standard has to reflect the fact that EU countries are considered advanced
economies and therefore much richer than other parts of the world, even in economic
hard times. The member states have signed up to a progressive human rights standard
that cannot be abandoned for purely economic reasons.
A second example in the same area is the NS case. It can be interpreted as an
example of the CJEU trying to grapple with the outer limits of fundamental rights
protection, the balancing of different rights as well as the content of those rights. In the
judgment, the CJEU pointed out that Article 18 EU Charter and Article 78 TFEU
provide that the rules of the Geneva Convention and the 1967 Protocol are to be
respected.48 But did this mean that an asylum seeker could legitimately not be returned
to another part of the EU given that fundamental rights protection should be the same in
all parts of the EU and despite that possibility under the Common European Asylum
System? The CJEU ruled that a minor infringement of a fundamental right was
unproblematic. However, where it was evident that there were systematic failings of
46

Para 14.

47

Para 56.

48

Para 75. Joined Cases C-411/10 and C-493/10, N S. v. Secretary of State for the Home Department and
M.E. (C-493/10), ASM., MT., KP., EH. v. Refugee Applications Commissioner, Minister for Justice,
Equality and Law Reform in which the Court also referred to recital 5 and article 1 human dignity, Official
Journal C 49: 8. See Joined Cases C-175/08, C-176/08, C-178/08 and C-179/08 Salahadin Abdulla and
Others. 2010. ECR I-1493, para 53, and Case C-31/09 Bolbol. 2010. ECR I-5539, para 38.

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human rights protection that the state had to be aware of, then it was a breach of article
4 EU Charter (inhuman and degrading treatment) for a state (here the UK) to send them
back to the EU state in which they first sought asylum (Greece). Otherwise there would
not be full protection of fundamental rights in the EU.
Each of those texts states that it respects the fundamental rights and observes
the principles recognised, in particular, by the Charter. Among others, recital
15 in the preamble to Regulation No 343/2003 states that it seeks to ensure full
observance of the right to asylum guaranteed by Article 18 of the Charter;
recital 5 in the preamble to Directive 2003/9 states that, in particular, that
directive seeks to ensure full respect for human dignity and to promote the
application of Articles 1 and 18 of the Charter; and recital 10 in the preamble
to Directive 2004/83 states that, in particular, that directive seeks to ensure full
respect for human dignity and the right to asylum of applicants for asylum and
their accompanying family members.49
As more Directives50 are issued in this area that seek to delineate the rights of nonEU nationals from EU nationals, the use of dignity will become more prevalent. Its
use will be tested in terms of the minimum content of a life with dignity as well as
state procedures for ensuring adherence to the minimum standards. It will not be
confined to inhuman and degrading treatment, although predictably, such an inquiry
will be very prevalent. It will be the CJEU that decides what a common minimum
standard in the EU means. For instance, Article 8 Directive 2008/115/EC on common
standards and procedures in Member States for returning illegally staying thirdcountry nationals states: in accordance with fundamental rights and with due respect
for the dignity and physical integrity of the third-country national concerned.51
What exactly is meant by the due respect will surely be the subject of litigation.
A second example is the protection of victims of crime. This is a cross-cutting
theme: it covers minors (for instance, protection from sexual abuse and sexual
exploitation, child pornography and solicitation of children for sexual purposes52),
49

Para 15.

50

Indeed, there are now many regulations, directives, opinions and decisions that include a similar recital
or operative part that includes respect for human dignity including: Council Regulation (EC) No
1236/2005 concerning trade in certain goods which could be used for capital punishment, torture or other
cruel, inhuman or degrading treatment or punishment, Official Journal L 200: 1; Regulation (EC) No
562/2006 of the European Parliament and of the Council of 15 March 2006 establishing a Community
Code on the rules governing the movement of persons across borders (Schengen Borders Code). Official
Journal L 105: 1; Directive 2011/99/EU of the European Parliament and of the Council of 13 December
2011 on the European protection order. Official Journal L 338: 1; Directive 2011/95/EU of the European
Parliament and of the Council of 13 December 2011 on standards for the qualification of third-country
nationals or stateless persons as beneficiaries of international protection, for a uniform status for refugees
or for persons eligible for subsidiary protection, and for the content of the protection granted. Official
Journal L 337: 9; Directive 2010/45/EU of the European Parliament and of the Council of 7 July 2010 on
standards of quality and safety of human organs intended for transplantation. Official Journal L 207: 14;
Council Decision of 29 May 2000 to combat child pornography on the Internet. Official Journal L 138: 1.
There are many more.

51

Official Journal. 2008. L 348: 98.

52

Directive 2011/92/EU of the European Parliament and of the Council of 13 December 2011 on
combating the sexual abuse and sexual exploitation of children and child pornography.

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297

victims of trafficking53 as well as protection orders in relation to possible victims

of crime. All of these (and others) form part of a coherent and comprehensive set
of measures on victims right.54 The latter concerns the mutual recognition of
protection measures taken in criminal matters and applies to protection measures
which aim specifically to protect a person against a criminal act of another person
which may, in any way, endanger that persons life or physical, psychological and
sexual integrity, for example by preventing any form of harassment, as well as that
persons dignity or personal liberty, for example by preventing abductions, stalking
and other forms of indirect coercion, and which aim to prevent new criminal acts or
to reduce the consequences of previous criminal acts.55 All three initiatives
specifically mention the protection and respect of human dignity. The litigation, I
would suggest, will come once there is a breach by (possibly) police or equality
bodies to fully and frankly investigate whether or not someones dignity has been
violated by an action or (more likely) inaction or inadequate action by an organ of
the state as was the case in Rantsev56 under the ECHR and recently in CN v. UK57 in
the context of investigating whether an individual had been trafficked. In the latter
judgment of November 2012, the specialist police unit dealing with human
trafficking was singled out as not adequately investigating a claim of trafficking
despite having looked into the matter three times. There is therefore a very high
threshold on the state to protect individuals, regardless of their immigration status.
This is a very positive sign by the ECtHR, especially in times of austerity. This case
is now precedent for the EU. So once the EU human trafficking directive becomes
law (which arguably contains even stronger protection and investigation obligations) it is only a matter of time before states are held accountable for their appalling
treatment of trafficking victims not as victims but as criminals, especially in the
asylum process.58
The final area I would like to analyse is same-sex marriage. Respect for dignity
has played a significant part in arguments before international and national courts
with regard to opening marriage to same-sex couples.59 I have argued elsewhere that
a positive CJEU decision on this subject will represent a major step forward in
fulfilling the EUs goal of substantive equality for all citizens.60
When it comes to marriage and founding a family the EU Charter wording in
Article 9 is different to that contained in Article 12 ECHR. The Guidance states that
Article 9 is based on Article 12 ECHR. However, the wording of the Article has
been modernised: Article 9 EU Charter states [t]he right to marry and the right to
53

See earlier. This also related to Article 2 EU Charter. It is possible therefore that both articles will be
invoked.

54

Directive 2011/99/EU of the European Parliament and of the Council of 13 December 2011 on the
European protection order.

55

Preamble. Para 9.

56

Rantsev v. Cyprus and Russia. 2010. Application no. 25965/04.

57

C.N. v. UK. 2012. Application no. 4239/08.

58

For an overview in the UK, see Jones (2010, 2012).

59

See Jones (2011a, b).

60

Jones (2011a, b).

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J. Jones

found a family shall be guaranteed in accordance with the national laws governing
the exercise of these rights.61 Article 12 ECHR, on the other hand, states that
[m]en and women of marriageable age have the right to marry and to found a
family, according to the national laws governing the exercise of this right. The fact
that the reference to men and women has been deleted from Article 9 is important
as it means the case law of the ECtHR need not necessarily be followed. This is
particularly significant as the case law in relation to Articles 8 and 12 ECHR has led
to confusion, as evidenced by the number of cases brought trying to clarify, for
example, who may legally marry, most notably in relation to transsexuals.62 The
Guidance goes on to state that the modernisation is to cover cases in which national
legislation recognises arrangements other than marriage for founding a family. This
Article neither prohibits nor imposes the granting of the status of marriage to unions
between people of the same sex. The right is thus similar to that afforded by the
ECHR, but its scope may be wider when national legislation so provides.63 Indeed,
the ECtHR even stated this back in 2002 in Goodwin:
The Court would also note that Article 9 of the recently adopted Charter of
Fundamental Rights of the European Union departs, no doubt deliberately,
from the wording of Article 12 of the Convention in removing the reference to
men and women. () [emphasis added]
The exercise of the right to marry gives rise to social, personal and legal
consequences. It is subject to the national laws of the Contracting States but
the limitations thereby introduced must not restrict or reduce the right in such
a way or to such an extent that the very essence of the right is impaired. ()64
The meaning of no doubt deliberately will become very significant once a samesex marriage case (as opposed to the rights attached to the status of marriage or
partnership) is brought before the CJEU. It wont be long as there is likely to be a
reference for a preliminary ruling from Ireland on behalf of a lesbian couple married
in a jurisdiction permitting same-sex marriage soon. The reference will undoubtedly
touch on rights attached to marriage, for instance, free movement of persons, as well
as conferment of the status of marriage itself. Denying access to marriage for samesex couples empties the right itself of all of its essence and, with six member states
permitting same-sex marriage and at least four others soon to do so, the margin of
appreciation is getting smaller. Indeed, I have argued elsewhere that if (or as)
substantive equality is one of the foundational values and principles of the EU, the
CJEU has to rule in favour of letting same-sex couples marry. Any other course of
action would mean the supremacy of EU law is in doubt. This argument has recently

61

Peers (2004).

62

Rees v. UK. 1986. Series A, No 106 9 EHRR; Cossey v. UK. 1990. Series A, No 184 13 EHRR;
Sheffield and Horsham v. UK. 1997. 27 EHRR 163; Goodwin v UK and I v. UK. 2002. 35 EHRR 18;
Karner v. Austria. 2004. 38 EHRR 24.

63

Official Journal C 303: 1. Explanatory Notes.

64

Paragraphs 100-101. See also Advocate Generals in P v. S (above) and Case C-117/01 K.B. v National
Health Service Pensions Agency and Secretary of State for Health. 2004. ECR I-541.

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299

been strengthened by the decision in Test-Achats65 and the scrutiny of the

Hungarian constitution with the European values of freedom, democracy, equality,
the rule of law, human dignity and the respect of human rights, including the rights
of persons belonging to minorities, without discrimination.66

Some Final Remarks

No one can object to respecting and protecting human dignity. It should be
inviolable. What can be debated is the parameters of the protection: should one
persons dignity give way to somebody elses autonomy or security, while
relatively minor infringements of dignity do not carry much weight when set against
serious incursions on other important values and interests?67 This is a difficult
question to answer and requires careful examination of the kind of society the EU
wants to be or become. Herzog (see above) is clear: it has to be one closer to its
people. Commissioner Viviane Reding is clear:
My key objective is to render as effective as possible the rights enshrined in
the Charter for the benefit of all people living in the EU.68
Protecting and respecting everyones dignity in an broad way can help with this.
The EU is not just an economic union it is equally a social union, based on a social
contract between it and its people. A court willing to uphold the essential elements
of what makes us humans, respect and protection of our bodily integrity and
vulnerability, is a court that will be remembered for standing up for people even in
very tough economic times. The court has a lot of help if it chooses to use it. The
concept of human dignity has been enshrined in over twenty EU member states
constitutions and secured implicitly through case law and judicial interpretation of
bills of rights in many more. The legal remit of the human dignity is broadly similar
in a number of spheres, including: integrity of the person, equality, security,
prevention of torture, privacy, development of personality, fair employment, decent
housing. These commonalities are contained within the EU Charter chapter on
dignity itself and in the solidarity rights in the EU Charter. In other words, there is
ample scope for an expansive interpretation to safeguard against the atrocities not
just in the distant past, but more recently in the former Eastern block countries.
Nothing should be taken for granted as recent banning of gay pride marches and a
claw back on equality laws in many member states demonstrates. However, it is my
argument here that the EU Charter has to be interpreted in a freestanding way, as a
European document, blending the common constitutional traditions with the
overarching human rights values of all (or the vast majority of) the Member States
65

See Case C-236/09 Association Belge des Consommateurs Test-Achats v Conseil des Ministres. 2011.
Common Market Law Review 2: 38.

66

EU Commission (2012). See Article 2 Treaty.

67

Feldman (2000).

68

V. Reding, Speech/10/324, How to make the Charter of Fundamental Rights the compass for all EU
policies?, Brussels, 22 June 2010.

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as well as incorporating the jurisprudence of the ECtHR in an expansive way,

twenty first century way. It is in this way that we secure the supremacy of EU
substantive dignity law.

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