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  • Essay / Protocol 30 - 627

    The European Union adapted the Charter of Fundamental Rights in Strasbourg in 2007. Their intention was to make existing human rights more visible, instead of creating new ones. The Charter is not incorporated into the Treaty of Lisbon, but under Article 51 TEU it has "the same legal value as the Treaties". Despite Article 6 of the TEU and Article 51 of the Charter, some EU states, such as the UK and Poland, were concerned about the ability of the CJEU to change their national law. Therefore, the United Kingdom and Poland achieved the adoption of a special protocol in which the Charter does not apply fully in both states. Protocol 30 was included in the Treaty of Lisbon: “Protocol on the application of the Charter of Fundamental Rights of the European Union to Poland and the United Kingdom”. The UK was primarily concerned with the CJEU's ability to impose any type of change to UK employment law, while Poland was primarily concerned with the rights to same-sex marriage and abortion. This protocol was presented as an “opt-out”, which aims to ensure that the Charter does not bind Poland and the United Kingdom. As Article 1(1) of Protocol 30 states, “The Charter does not extend the capacity of the Court of Justice of the European Union, or of any court or tribunal in Poland or the United Kingdom.” Thus, there are no legal rights which can be invoked against the United Kingdom or Poland in national or Union courts. Furthermore, Article 1(1) is worded unclearly and leads to different interpretations, but cannot be extended. For example, there are many cases in which UK courts rely on “freedom of expression” as a general principle of law; Article 1(1) therefore does not add much to existing case law. Another interpretation would be that, if the Charter of Fundamental Principles... middle of article ......in) by Justice Munby at paragraph 73: "the Charter is not currently legally binding in our domestic law and is therefore not a source of law in the strict sense. But it can, in my opinion, be consulted with good reason to the extent that it proclaims, reaffirms or explains the content of human rights which are generally recognized throughout the European family of nations, in particular nature and the scope of the fundamental rights guaranteed by the Convention”. Lisbon Treaty, 2009, Protocol 30, article 1(2) European Union Law, pp 229R (Saeedi) v Secretary of State at the Ministry of the Interior ( 2010) EWHC 705 (Admin) ibid, Lord Cranston J, para 155Lisbon Treaty, 2009, Protocol 30, article 2Attorney General v X [1992] 2 CMLR 277The Lisbon Treaty: a legal and policy analysis, p. 162European Union law: cases and documents, p. 258 ibid, p. 259