THE LEGAL SIGNIFICANCE OF THE STATUS OF THE CHARTER OF FUNDAMENTAL RIGHTS IN THE TREATY OF LISBON AND THE POLISH-UK PROTOCOL

By virtue of the Lisbon Treaty, and upon coming into force of this Treaty, the Charter of Fundamental Rights shall be included in the primary legislation of the EU, thereby acquiring the same status as treaties. The scope of application of the Charter, and doubts, expressed particularly by the UK, about its excessive influence on the domestic law, constituted a real problem from the very beginning of the work on the list of fundamental rights protected within the EU. Consequently, several duplicate provisions were included both in the Charter and in the Lisbon Treaty itself. These provisions specify the limits of application of the Charter. Despite all these guarantees, the UK has managed to negotiate a special protocol, later joined by Poland. The reasons for which the two states have bound themselves by the protocol are completely different. For the UK, it was important to reconfirm that social rights constitute the principles and not justiciable rights. By contrast, Poland wanted, above all, to protect its domestic legal system against the standards of fundamental rights protection inconsistent with that system or opposite to Polish sense of morality concerning, inter alia, homosexuality, abortion, euthanasia, family law etc. The protocol has not been adjusted to take account of the needs of Polish law. It is not clearly articulated which may lead to unnecessary confusion. Nor it provides an opt-out capability, which was suggested in the first political comments in Poland. The Charter will be legally binding in Poland, however, its application (with respect to Polish law) will be limited to those rights which are confirmed by the Polish legal system.. This limitation in relation to Poland has, in fact, no significance. Poland's Constitution itself contains a catalogue of fundamental rights, and Poland is bound by all major international agreements protecting those rights. The Polish-UK protocol repeats the same limitations on the application of the Charter which ensue from the Charter itself and from the Treaty of Lisbon. Therefore, it does not introduce much new matter, and rather blurs the clarity of EU law for the individual.