As already stated in the title of this article I will present a German view on the European Charter of Fundamental Rights. In Germany, like almost everywhere else, the views of lawyers hardly ever coincide—at least not completely. This is also true concerning a matter which has often been regarded as a typical German problem or to use the less diplomatic French expression, une querelle allemande: that is the need for a proper dogmatic concept of the protection of human rights in EC law.

In the first part, I will follow the title to the letter and illustrate the legal effect of the Charter on the German Constitutional Court (Bundesverfassungsgericht) in a narrow sense. In the second part, I would like to extend my report, and consider the general acceptance of the Charter in Germany in a broader sense. I will conclude with a personal statement on the Charter.

The Framework Directive for equal treatment in employment adopted in November 2000 by the Council of Ministers marks an important event for the millions of lesbians and gay men within the European Union. It follows hard on the heels of the successful lobbying to have “sexual orientation” included within an anti-discrimination article inserted into the Community treaties by the Treaty of Amsterdam, as part of the development of European citizenship.

According to the traditional view, quantitative restrictions and discriminatory rules could be justified only according to the Treaty derogations contained in Article 30 of the EC Treaty. On the other hand, most indistinctly applicable measures, benefit also from other and broader grounds of justification: the mandatory (or imperative) requirements.

This distinction has been in recent years occasionally disregarded by the Court: this has led to a certain degree of confusion as to the theoretical explanation of the mandatory requirements doctrine. In particular doubts have been raised as to whether the mandatory requirements should not in fact be considered as additional grounds of derogation to those listed in Article 30 EC.

The choice of the word “flexibility” in the title of this paper rather than the term “closer co-operation” introduced by the Treaty of Amsterdam is not accidental: since the general Amsterdam provisions on closer co-operation have not so far been used, a paper on the experience of those provisions since their entry into force would be very short—even if they have given rise to an extensive literature. It should nevertheless be remembered that under the terms of the Amsterdam Treaty itself there are situations where those provisions are deemed to have been used: under Article 1 of the Protocol Integrating the Schengen acquis into the Framework of the European Union, Belgium, Denmark, Germany, Greece, Spain, France, Italy, Luxembourg, the Netherlands, Austria, Portugal, Finland and Sweden, as signatories to the Schengen agreements, are “authorised to establish closer co-operation among themselves” within the scope of those agreements and related provisions; furthermore, under Article 5 of that Protocol, where either Ireland or the United Kingdom or both have not notified the President of the Council in writing within a reasonable period that they wish to take part,

These two quotations, which appeared in articles published only twelve years apart, illustrate the complexity of contemporary challenges facing Australia’s international relations policy makers. It addresses the riddle of how to posit a still dominantly (ethnically and culturally speaking) European society, but one, which is located geographically nearer Asia, within the intricate web of inter-state intercourse which has become a hallmark of the modern world. The dilemma is, of course, far from new, but it has taken on enhanced proportions with the rise of regionalism, and the dissection of the planet into inter-governmental blocks.

The Vertical Agreements Regulation may be judged in one of two ways, each yielding a different conclusion. It may be regarded, on the one hand, merely as a limited measure required at a particular time in the development of competition policy to correct some of the more obvious errors of previous Regulations. On the other hand, it may be assessed for its potential as a template for future Regulations. Is it to be regarded as a means of rectifying historic block exemptions or is it at the cutting edge of progressive policy? Without doubt it appears chronologically at one of the most important shifts in competition policy in decades and that is why there is much to be gained from reviewing the Regulation critically for improvements that can be carried forward into future Regulations.