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The Fundamental Rights of the European Union: Individual Rights or Welfare-State Privileges? Part 1


Thirty years ago, British economist William R. Lewis wrote a monograph for the Institute of Economic Affairs in London entitled Rome or Brussels…? His theme was the contrast between the original motives and purposes behind the establishment of the European Economic Community (EEC) in 1957 through the Treaty of Rome and what the EEC had become by the early 1970s with its headquarters in Brussels. Lewis explained that it was “designed to establish free trade and a free economy in the territory of its members.”

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ON SEPTEMBER 28, 2000, a committee of the European Union (EU) issued a draft charter of Fundamental Rights of the European Union. The member governments in Western and Central Europe are expected to vote on and accept this charter as the basis for articulating and defending human rights within the jurisdiction of the EU.

The charter’s preamble states that its purpose is to create a closer union among the peoples of Europe and to share a peaceful future based on common values. The European Union, the preamble continues, 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 creating an area of freedom, security, and justice.

After the devastation of two world wars in the first half of the 20th century and a Cold War that divided the continent of Europe into two armed camps during most of the second half of the 20th century, the desire for peace, freedom, and prosperity among the people of Europe is easily understood and heartily welcomed by any friend of humanity. Tens of millions have perished in Europe during the last 100 years because of totalitarian tyrannies that showed no regard for individual freedom, private property rights, the rule of law, or constitutionally restrained representative government.

With the end of Soviet-style regimes in Eastern Europe, there is a sense that Europe as a whole can reclaim a common heritage of civilization and civilized human association. All men of goodwill must wish that it could be so. But the question arises: Are the values and “rights” enunciated in the EU’s declaration ones that actually can ensure the establishment of the good and free society?

Recognizing traditional civil liberties

Many of the articles in the declaration do reaffirm concepts of rights and freedoms that are inseparable from the Western heritage of human liberty. For example, Articles 4 and 5 ban the use of torture or inhumane and degrading punishment, and prohibit slavery, involuntary servitude, and compulsory labor. Article 6 ensures that everyone has the right to liberty and security of his person, while Article 10 declares that everyone has the right to freedom of thought, conscience, and religion.

Article 11 affirms everyone’s right of freedom of expression, meaning the right of every individual to hold views and opinions even if they are not held by the majority and meaning that governmental authority may not abridge a person’s freedom to communicate and acquire information about any ideas he wishes to share or learn about.

Article 12 states, “Everyone has the right of freedom of peaceful assembly and freedom of association at all levels, in particular in political, trade union, and civic matters.” And Article 15 ensures that “everyone has the right to engage in work and pursue a freely chosen or accepted occupation” and “every citizen of the Union has the freedom to seek employment, to work, to exercise the right of establishment and to provide services in any Member State.” And consistent with this, Article 45 guarantees that “every citizen of the Union has the right to move and reside freely within the territory of the Member States.”

When an individual is standing before the law, Article 48 states that he “shall be presumed innocent until proven guilty according to law.” Articles 49 and 50 assert that justice shall be impartial and no punishment will be arbitrary or in excess of what the established law declares to be the punishment fitted to that crime, and no one will be subject to double jeopardy.

While the wordings under some of these articles may not be as distinct and clear as the classical liberal may desire, the spirit behind them is the recognition and respect for what has historically developed in the West as an individual’s basic civil and personal liberties. But much of the ambiguity and fuzziness in the wording is due precisely to the fact that the EU’s proposed charter of Fundamental Rights makes “rights” out of what are in reality redistributive and interventionist “entitlements” of the modern welfare state.

Entitlements as human rights

As examples: Article 14 states that “everyone has the right to education and to have access to vocational and continuing training.” And this includes “the possibility to receive free compulsory education.” Article 16 refers to the “freedom to conduct a business.” But Article 17, while stating that “everyone has the right to own, use, dispose of, and bequeath his or her lawfully acquired possessions” and that no individual may be deprived of his property without “fair compensation being paid in good time for their loss,” goes on to say that “the use of property may be regulated insofar as is necessary for the general interest.” This latter point is reinforced by Article 38, which states that EU “policies shall ensure a high level of consumer protection.”

And while Article 12 speaks of “freedom of association at all levels,” Article 21 says that “any discrimination based on any ground such as sex, race, ethnic or social origin, genetic features, language, religion or belief, political or any other opinion, membership of a national minority, property, birth, disability, age, or sexual orientation shall be prohibited.”

This abridgement of the principle of freedom of association is extended further in Article 23, when it declares, “Equality between men and women must be ensured in all areas, including employment, work, and pay.” But this article also permits governments to discriminate among groups by providing mandatory affirmative-action rules: “The principle of equality shall not prevent the maintenance or adoption of measures providing for specific advantages in favor of the under-represented sex.”

At the same time, in Article 25 the European Union “recognizes and respects the rights of the elderly to lead a life of dignity and independence and to participate in social and cultural life.” In Article 26 the Union “recognizes and respects the rights of persons with disabilities to benefit from measures designed to ensure their independence, social and occupational integration, and participation in the life of the community.”

To ensure these employment opportunities, Article 29 insists that “everyone has the right of access to a free placement service,” while Articles 30 and 31 guarantee that “every worker has the right to protection against unjustified dismissal” and that “every worker has the right to working conditions which respect his or her health, safety, and dignity.” Furthermore, Article 31 states that “every worker has a right to limitation of maximum working hours” and is to be given “an annual period of paid leave.” Similarly, Article 33 states that “everyone shall have the right to protection from dismissal for a reason connected with maternity and the right to maternity leave and to parental leave following the birth or adoption of a child.” Not surprisingly, Article 32 says, “The employment of children is prohibited.”

Article 34 states that the EU “recognizes and respects the entitlement to social security benefits and social services providing protection in cases such as maternity, illness, industrial accidents, dependency, or old age, and in the case of loss of employment.” Also recognized is “the right to social and housing assistance so as to ensure a decent existence for all those who lack sufficient resources.” Article 35 says, “Everyone has the right of access to preventative health care and the right to benefit from medical treatment.”

And, finally, Article 37 insists that “a high level of environmental protection and the improvement of the quality of the environment must be integrated into the policies of the Union and ensured in accordance with the principles of sustainable development.”

Free trade and the original common market ideal

Thirty years ago, British economist William R. Lewis wrote a monograph for the Institute of Economic Affairs in London entitled Rome or Brussels…? His theme was the contrast between the original motives and purposes behind the establishment of the European Economic Community (EEC) in 1957 through the Treaty of Rome and what the EEC had become by the early 1970s with its headquarters in Brussels. Lewis explained that it was “designed to establish free trade and a free economy in the territory of its members.”

The theory is stated in the preamble of the Treaty [of Rome] and the opening chapter on principles: that with the removal of the checks on the free movement of goods and the factors of production and with the ironing out of political, legal, and other institutional obstacles to competition, the Community will reap the benefits of optimum allocation of resources, product specialization, economies of scale, the constant pressure of competitive forces towards increasing efficiency, and the maximum range of consumer choice.

The hope was that with more economic interdependency and mutual economic improvement, there would come about “a closer union of the European peoples.” Thus, there was a political motivation, but the road to diminished political and economic nationalism was enhanced market freedom for the people of Europe.

But overlaid on this vision of making Europe a free-trade zone for both peace and prosperity was a parallel ideology throughout Europe insistent upon the retention and expansion of the interventionist-welfare state. The German free-market economist Wilhelm Roepke pointed out in 1964 that those who were “the permanent heads of the EEC are mostly socialists and ingrained interventionists in harmony with the stances of most of the component governments,” men who believed in the “presence of the state.” Roepke wondered how it would be “possible to achieve a real common market in the interventionist climate of the twentieth century.”

In 1971 Lewis emphasized the benefits that Europe had gained during the EEC’s first 25 years of existence through customs and tariff reductions and through a greater freedom of movement of goods across the borders of the member European states.

But he also pointed out that the interventionist spirit that dominated the actual policies of the European Economic Community from its headquarters in Brussels had resulted in a vast network of subsidies for the farmers of Europe, known as Common Agricultural Policy (CAP); cross-country development projects financed by the member states; limits on competition and market pricing so as not to undermine the welfare-state programs of the various member countries; restrictions on the movement of people among the members; and other regulatory restraints on trade and commerce to protect special groups in the various countries.

Now 30 years later, Europe is rapidly moving toward greater political, economic, and monetary integration. Almost all the former communist countries of Eastern Europe and several former Soviet republics are now petitioning to enter the European Union as full members. Leading European political figures view these developments as the cornerstone to make a united Europe a great power on the international stage.

British prime minister Tony Blair, for example, said as much in a speech in Warsaw, Poland, on October 6, 2000. “Europe’s citizens need Europe to be strong and united,” he said. “They need it to be a power in the world. Whatever its origin, Europe today is no longer just about peace. It is about projecting collective power…. Such a Europe can, in its economic and political strength, be a superpower; a superpower, but not a superstate…. A continent joined together in its belief in social justice.”

But what kind of “superpower” will Europe be if it defends and enforces the redistributive and welfare-statist charter of “fundamental rights” that is now quickly moving towards passage and adoption by the member countries? How can Europe fail to become a “superstate” lording and ruling over all of its citizen-subjects if its declared mandate is to impose and enforce a Europeanwide entitlement society that is to be set in stone as the essence of the meaning of “human rights”? It is the dilemma Europe faces because of the loss of an understanding what freedom really means.

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    Dr. Richard M. Ebeling is the BB&T Distinguished Professor of Ethics and Free Enterprise Leadership at The Citadel. He was formerly professor of Economics at Northwood University, president of The Foundation for Economic Education (2003–2008), was the Ludwig von Mises Professor of Economics at Hillsdale College (1988–2003) in Hillsdale, Michigan, and served as vice president of academic affairs for The Future of Freedom Foundation (1989–2003).