Projecto - Soberania Ps-nacional: a Unio Europeia rumo a uma identidade poltica

Cristina Pace - Resumo da apresentao de 17.12.2010 (15/20 min.):

Title Behind the Charter: transparency, legal security, political participation. The Charters added value?

Abstract

Since the Treaty of Lisbon came into force on 1 December 2009, the Charter of Fundamental Rights of the European Union (hereafter the Charter), became legally binding for the EU and all its Member States. Until that moment the Charters legal status was uncertain and did not have full legal effect. Starting with the European Council held in Cologne in 1999; it took a long time, approximately ten years, for the Charter to get the status of primary law of the EU.1 The European Union must now act and legislate consistently with the Charter and EUs courts will strike down EU legislations which contravenes it. The Charter applies first of all to all EU institutions and bodies, which must conform and observe the principles proclaimed by the Charter. It applies also to the Members States, but only when they are implementing Union law, thus not extending the competences of the EU beyond the competences given to it in the Treaties. The Charter allows bearing on EUs institutions and providing citizens with effective means of enforcing their rights either in national courts or in the ECJ. It is also the first European instrument including in a single text all categories of rights: economic, social and cultural rights as well as civil and political; reinforcing international understandings on the indivisibility of all human rights, democracy and the rule of law reached at the United Nations Vienna World Conference on Human Rights of 1993. From an historical point of view, it is important to notice that the Charter was the end product of a long debate within Europe over the form which recognition of fundamental
1

The Charter was in fact finally proclaimed on 7 December 2000 during the European Council in Nice, but became legally binding only with the coming into force of the Lisbon Treaty on 1 December 2009.

rights within the European Community should take. An understanding of this broader history is vital to an appreciation of several of the subsequent issues. To have an idea about what reasons are behind the Charter, it is in fact necessary to know something about its journey. This paper try to give an answer, even if not complete, to the following questions: What are the main reasons behind the Charter? Which is the methodology used in order to obtain the final result and why is it innovative? What is the main difference between the Charter and the ECHR and the relative field of competence of both ECtHR and ECJ? What are the main implications following the access of the EU to the ECHR? Is the Charter really helpful or sufficient in compensating the democratic deficit of the Union, enhancing the protection of fundamental human rights in the Union, bringing more transparency, legal security and political participation for European citizens, helping them to become more conscious of their rights? In a few words: which is the Charters added value and modernity justifying its necessity and its value?

Contents

Introduction and Outline. 1 Brief history of the Charter: main steps. 2 Main Reasons behind the Charter: why was the Charter necessary? 3 Why the Convention? Which is the methodology used in order to obtain the final result and why is it innovative? 4 Horizontal issue: relationship with the ECHR, main differences and similarities. 5 Main implications following the access of the EU to the ECHR. 6 The Charters added value: what is new? 7 Conclusions, recommendations and proposals for action. Bibliography

Outline

The material in this paper is divided in seven sections. The first section will give a short overview of the history of the Charter of Fundamental Rights of the European Union and of the main steps which were put forward, first for its conception and drafting, then for its discussion and multi-level analysis, lastly for its final approval and proclamation in Nice in December 2000. The chain of events that brought the Charter to get the status of primary law of the EU in 2009 will also be discussed, underlying the reasons why it was not an easy process. It will be underlined the fact that the Charter, which was written within a short ninemonths timetable, besides being strongly criticised at its outset2, garnered increasing praise afterwards, especially thanks to the innovative Conventions method, which despite its apparent complexity, demonstrated all its efficacy and value.3 Such a method has in fact been considered as much important as the content of the Charter itself, has been envisaged for the organisation of future debates and, as highlighted by Florence Deloche-Gaudez in her research, has been considered as one of the most important innovation in the functioning of the European Union since the Maastricht Treaty.4 The second section will analyse which are the main reasons behind the need of an European Charter for fundamental rights, explaining why it was considered as being necessary since the European citizen seemed to be already well equipped in this respect, in particular after the adoption of the Council of Europes Convention for the Protection of Human Rights and Fundamental Freedoms (hereafter ECHR), and the remarkable work conducted by the European Court of Human Rights (hereafter ECtHR), in Strasbourg during these last sixty years. Despite the fact that a common European Bill of Rights was already contained in the ECHR5 and that a corpus of Community fundamental rights could have continued to

See, for example: "The EU and human rights necessary?", The Economist, 5 February 2000, and J.H.H. Weiler, "Does the European Union Truly Need a Charter of Rights?", European Law Journal, vol. 6, No. 2, June 2000, p. 95-97. 3 The effectiveness of the Conventions method is also compared with the traditional diplomatic method: the intergovernmental conference (ICG). 4 Deloche-Gaudez, Florence - The convention on a charter of fundamental rights: a method for the future?, Research and policy paper, 15. Notre Europe, Paris, France, 2001, foreword. 5 The ECHR binds in fact on all 27 EU member states, which are all contracting parties of the ECHR. The accession to the ECHR is also a basic condition of accession to the European Union. The political criteria for accession laid down by the 1993 Copenhagen European Council require candidate countries to have

develop in the framework of the European Court of Justices (ECJ) law-making practice, in its regular reference to the rights as codified by the ECHR; this analysis will show how the European Charter for fundamental rights was still considered necessary, in order to boost the legitimacy of the European integration, make rights more visible for the citizen of the Union 6, and compensate the democratic deficit presented as a permanent defect of European institutions. The third section will further highlight and describe the role of the Convention in the drafting of the Charter, its composition, working documents and methodology used in order to obtain the final result. It will be especially underlined the role of civil society in this process, able for the first time to monitor and shape the Conventions debates, thus seemingly meeting the oftenmentioned need to strengthen citizen involvement in European decision-making procedures.7 A fourth section will analyse the relationship and the main differences between the ECHR and the Charter. The Charters advocates have in fact pointed out that the standard of human rights protection of the Charter might well be higher than the ECHRs standard of protection, usefully complementing the ECHR; bringing together, within a single act, civil and political rights, as well as economic, social and cultural rights.8 The Charter even extends the meaning of some traditional rights into new areas and includes "new rights" or third generation rights, which protect issues of global concern (environment, bioethics, data protection, governance etc).9 The Charter is finally believed to be a more extensive and up-to-date declaration of rights for EU citizens, containing rights that were not envisaged at the time of the ECHR in 1950, the

stable institutions guaranteeing democracy, the rule of law, human rights and the respect for and protection of minorities. 6 As underlined by the conclusions of the European Council of Cologne at the present stage of development of the Union, it is necessary to establish a charter of these rights in order to anchor their exceptional importance and their scope in a way which will make them visible for the citizens of the Union. 7 J.H.H. Weiler, The Constitution of Europe, 1999. 8 The ECHR is in fact mostly confined to civil and political rights whereas the Charter contains both civil and political rights, on the one hand, and economic, social and cultural rights on the other. 9 The inclusion of those rights in the Charter is the result of an intense debate as to the adaptation of fundamental rights to the challenge of a constantly changing society. As underlined in the Preamble of the Charter itself: it is necessary to strengthen the protection of fundamental rights in the light of changes in society, social progress and scientific and technological developments by making those rights more visible in a Charter.

ECHR representing only a minimum basis and the ECJ being free to further develop and go beyond the rights contained in the ECHR.10 The fifth section will analyze which are the main implications following the access of the EU to the ECHR. The sixth section will eventually consider which is the Charters added value, if any, especially in the light of its scope, limitations and applicability, considering the coming into force of the Lisbon Treaty, which made it legally binding, and the fact that it contains a basic set of fundamental rights which has been distilled from more than thirty legal sources which are currently in force. The final section will eventually discuss some recommendations and proposals for action, especially in relation to the implementation and follow up of the Charter and to the necessity of human rights to be monitored in practice as well, bearing on clear rules regarding possible sanction mechanisms to be used.

10

It should be noted that the rights in the ECHR are considered to be a minimum standard of protection. It is recognized in article 52(3) of the Charter that the EU might provide a higher standard since it provides that this provision shall not prevent Union law providing more extensive protection . The result of this provision could be that the EU and national courts will build on and develop the ECHR rights through the Charter.