Britain was told yesterday that it had all but lost its fight to stop the Charter of Fundamental Rights becoming legally binding in the new EU treaty set to replace the failed European Constitution, sources claimed yesterday.

A “considerable majority” of the EU’s 27 member states want to give the charter legal force, according to senior German officials who are drawing up the treaty.

But they hinted that Tony Blair could yet win opt-outs from parts of the document which interfere with British social or employment law, when EU leaders start talks on the detail of the new treaty at a summit in Brussels today.

The charter was drawn up as a political declaration in 2000 and legal experts believe that, if given legal force, some of its sweeping generalisations will allow the European Court of Justice to overrule British law in some areas. These include:

Strike ballots and secondary picketing: The right to strike is enshrined in the charter, with no reference to the system of workplace ballots established in Britain. There is no prohibition put on secondary strike action. The CBI believes there is a risk that British laws could end up being challenged to allow wildcat strikes or secondary picketing. Richard Lambert, head of the CBI, said this week: “By giving the charter greater status, we would run the risk of allowing the European Court of Justice — a purposeful body, looking to stamp its own interpretation on the law — to overrule carefully crafted rules on how strikes operate in the UK.”

Union recognition: The charter gives “the right to negotiate and conclude collective agreements” but British laws permitting union recognition do not apply to businesses with less than 20 employees. The Federation of Small Businesses said: “The exemption from trade union legislation could come through the back door because of decisions at the European Court of Justice, rather than through the decision of politicians in Westminster. Not only could you have more conflict in small businesses but more red tape as well.”

Working hours: Britain has an opt-out from the European Working Time Directive which limits the working week to 48 hours and sets rules for rest periods.

The charter declares that “every worker has the right to limitation of maximum working hours”, leaving Britain’s opt-out open to challenge at the European Court of Justice.Saturday jobs: The charter declares that “the employment of children is prohibited”, defining the working age as the legal school-leaving age. This has led to fears that small family businesses such as corner shops could eventually find that European law prevents teenage children from helping out. The Federation of Small Businesses said: “While not condoning child labour, the traditional British paper round could be open to question at the ECJ. If a representative group decided that working under 16 was a bad thing, they could take it to the ECJ and claim that the UK has not implemented the Charter of Fundamental Rights.”

Health litigation: “Everyone has the right of access to preventative health care,” according to the charter. But lawyers believe that this very loose definition could lead to a surge in demands for compensation when patients are denied drugs or therapies that they claim would have helped avoid serious illness. Timothy Kirkhope, leader of the Tory MEPs and a commercial lawyer, said: “If preventative medicine is set out as a right — interfering with our position because we have never accepted the EU has control over health, social security or employment — if we sign up, all of these areas of law are going to have to be revisited.”

Abortion: The “right to the integrity of the person” in the charter states that, “in the field of medicine and biology, the following must be respected... the prohibition of eugenic practices, in particular those aiming at the selection of persons”.

Some pro-life advocates believe that this could eventually pave the way for a challenge at the European Court of Justice on Britain’s laws permitting the abortion of a disabled foetus.

The ECJ has already started citing the Charter of Fundamental Rights to back up rulings and opinions, notably in two finely balanced cases on the rights of trade unions to defend collective agreements against the rights of employers.

In one case, Viking Line, a Finnish shipping company, planned to reflag a loss-making ferry as an Estonian vessel so that it could be run by a cheaper Estonian crew. In the second case, a Latvian construction company won a contract to refurbish a school in Sweden and wanted to use Latvian workers at lower wages than usual in Sweden.

In both, the ECJ Advocate General said in a preliminary opinion that unions could take collective action to persuade a company to pay foreign workers in line with domestic rates. A final judgment has yet to be made in either case.

Neil O’Brien, of the Open Europe think-tank, said: “Trade unions in Sweden and Finland are already using the charter to try and tip the balance in cases where they want to prevent employers from bringing in cheaper labour.”

Britain was last night coming under intense pressure to sign up to as much of the Charter of Fundamental Rights as possible. In the version included in the failed EU Constitution, Britain secured a paragraph on the “scope and interpretation of rights and principles” which sought to limit the impact of the document to EU law.

But George Arestis, a European Court judge, has said that the charter includes provisions that are fundamental trade union rights. He added: “It has the potential to renew labour law in the member states. The potential of the trade union and labour rights in the charter will be apparent when they are compared with member state laws which restrict or inhibit the rights of workers and their representatives ...The incorporation of the charter into the primary constitutional law of the EU will have an impact on the member states, bound by the charter through the doctrine of supremacy of EU law.”

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