The Charter of the Fundamental Rights of the European Union
The Charter of Fundamental Rights of the European Union, in short "the Charter of Fundamental Rights", was solemnly proclaimed on December 7, 2000, at the summit of heads of state and government leaders in Nice. The Charter of Fundamental Rights will not only have a lasting impact within the EU in the future, it will also, as the most modern version of any proclamation on human rights, have a broad effect on existing regulations on fundamental and human rights internationally. With this charter, the European Union documents impressively, that it is not only an economic community, but also, and more importantly, a community of values. The Charter creates a clear orientation for the European model, fosters a joint identification with the European project1) among citizens of the Union, and reinforces the legal protection of citizens from European legislative organizations. Externally, the Charter of Fundamental Rights publicises the understanding of human rights within the Union, which is as important in political and economic negotiations, as it is in future membership negotiations with potential member countries.2)
2. The History of Origins of the Charter of Fundamental Rights
In the process of creating the Charter of Fundamental Rights, there have been a number of events and suggestions which overall promoted the "Charter Project". Basically, the Charter is absolutely necessary at the present level of [European] integration. Without codification of basic human rights, the legitimacy of the European Union could become increasingly questionable. Therefore, the proclamation of the Charter of Fundamental Rights can only be a first step, which has to be complemented by including the Charter in the European Treaties.3)
Even though the European Court of Justice (ECJ), after initial hesitation,4) started diffident jurisdiction based on basic rights at the end of the '60s,5) the decision of the German Constitutional Court of May 29, 1974 brought not only from the German perspective - a major breakthrough. In its "Solange-I-decision" the court ruled to evaluate secondary laws of the [European] Union based on German basic rights, "as long as the integration of the Union has not reached a level, where European laws contain a catalogue of basic rights, proclaimed and ratified, which are adequate to the basic rights in Germany."6) This controversial ruling was recognized all over Europe, and, among other events,7) surely contributed to the ECJ's move towards a more visible basic rights jurisdiction.8)
In 1986 this jurisdiction was "gentled"9) by the German Constitutional Court. It also coined the term "Charter of Basic Rights of the European Court of Justice" in academic publications.10)
Even though rulings by the European Court of Justice showed improvements, there have been repeated efforts to create a codified Charter of Basic Rights.11) The European Parliament (EP) has played an outstanding role in these efforts: in 1973 it passed a "resolution to recognize the basic rights of the citizens of the member countries in developing community legislature." In 1984 the European Parliament presented a draft version of a European constitution, and in 1989 a broad catalogue of basic rights, which, despite considerable efforts by parliamentarians,12) did not attract much attention.13)
The European Commission also tried on several occasions, to strengthen the protection of basic rights within the Union: it established an expert commission for the Charter of Fundamental Rights ("Simitis-Commission"),14) and suggested in 1979 and 1990 that the European Union join the European Convention on Human Rights (ECHR). In 1994, the [European] Council ordered a study by the European Court of Justice, on whether joining the ECHR would comply with European law. On March 28, 1996, the European Court of Justice presented its findings, namely that "the Union, at the present stage of [European] common law, is not competent to join the convention."15) This put an end to the discussion about joining the ECHR for the time being, even though sporadic discussions have been flaring up.16)
A breakthrough in the efforts to establish a Charter of Fundamental Rights came in 1999. It was preceded by a change of government in Germany in October of 1998,17) during which the Social Democratic Party (SPD) formed a coalition government with the "Buednis 90/Die Gruenen". In the coalition contract dated October 20, 1998, Chapter IX under the heading "EU Initiatives", the establishment of an EU Charter of Fundamental Rights was listed as a goal.
It was a historic coincidence, that just two months later the presidency of the European Council fell to the new government. The German government was able to maintain its position in the summary statement of the European Council Meeting in Cologne in June 1999: "The European Council is of the opinion that, at the present stage of development of the [European] Union, the basic rights within the Union should be summarized in a Charter, and as such made more visible."
In addition it was decided, that the Charter should also cover rights of freedom, equality and equal treatment before the law, the rights of citizens in the Union, as well as economic and social rights. As sources for these rights, the Agreement of Cologne named the ECHR, the constitutions of the member nations, the European Social Charter, and the Joint Charter of Social Fundamental Rights of Workers.
During the informal meeting of the European Council on October 15 and 16, 1999 in Tampere, additional important decisions were made: the composition of the Charter committee was fixed, and some procedural questions were clarified.
On December 17, 1999, the committee started its work in Brussels, and elected the personal representative of the German head of government, the former President of the Federal Republic of Germany and Chairman of the German Constitutional Court, Roman Herzog, as its chairman. During the second session on February 1, 2000, the committee renamed itself "Convention". On October 2, 2000, the Convention finalized its work, and presented the draft of the Charter to the heads of state or government during an informal council session in Biarritz on October 13 and 14, . The draft version was acknowledged and, according to the decision previously made in Cologne, solemnly proclaimed on December 7, 2000, at the summit of heads of state or government in Nice.
3. The Process of Drafting the Charter of Fundamental Rights by the Convention
Besides the text of the Charter itself, which will trigger a broader scientific debate in the future, the method of drafting the Charter can be seen as revolutionary. One has to assume that European governments in the future can no longer adopt methods inferior to the one chosen in drafting the Charter for important documents.18)
In the Cologne Resolution, the European Council very clearly formulated the function of the Charter, as seen by the government leaders: "to visibly and firmly establish the importance of fundamental rights and their scope of engagement to the citizens of the Union". The call for "visibility" was defined in the Tampere Agreement in a way, that all discussions in drafting the Charter should be public. It also recommended that all documents be publicly accessible.
The Convention for the Drafting of the Charter of Fundamental Rights followed this call, last but not least due to the composition of the Convention: the Convention consisted of 15 representatives of heads of state or government, a representative of the European Commission, 16 members of the European Parliament, and 30 delegates from the national parliaments. The German representatives in the Convention were: Roman Herzog for the German government, Jurgen Meyer for the German Parliament (the deputy was Peter Altmaier),19) the Minister for European Affairs of the State of Thuringia Juergen Gnauck for the Federal Council (the deputy was the Minister of Justice of the State of Lower Saxony Wolf Weber), and Jo Leinen, Ingo Friedrich and Sylvia-Yvonne Kaufmann for the European Parliament (the deputy was Peter Michael Mombauer).
The deputies, who were unrestricted in their right to speak during the mostly informal sessions, to some extent played important roles in the Convention (for example, Ieke van den Burg , Member of the European Parliament from the Netherlands). Formal assignments to the Convention alone did not allow any evaluation of actual participation and contributions.
The composition of the Convention drafting the Charter shows a majority - about 75% - of parliamentarians. This is surely a new development in the history of the European Union, in particular, when considering the importance of the document drafted.
The composition of the Convention had an effect on its operation, which can be summarized under the headline "transparency":
·All sessions in Brussels were fully accessible by the public.
·All documents the Convention turned out, or which were sent to the Convention could be accessed via Internet. It is remarkable that documents were not classified, but simply filed according to their date of issue or receipt.
·The Convention performed a hearing not only with the Economic and Social Committee, the Regional Committee, and the Representative of European Citizens in one of its sessions, but also scheduled a full-day hearing with NGOs. NGOs had a chance to reiterate their written petitions and discuss their positions with Convention members face-to-face.
·The national parliaments organized various hearings, which also contributed to the opinion-finding process of their parliamentarians and Convention members.
·During the drafting of the Charter numerous events, hearings, and panel discussions took place, during which the members of the Convention exchanged views on the contents of the Charter with interested citizens, associations, and NGOs.
·Also media coverage was impressive: the majority of regional and national newspapers ran articles on the Charter during the year 2000, and printed comments by scientists, lobbyists, Convention members, and even preliminary excerpts of the draft.
The German Parliament put high emphasis on its obligation to transparency: the Charter was not only a continuous topic on the agenda of the respective committee, the Committee for European Affairs, but almost all other parliamentarian committees discussed the Charter, and exchanged views and opinions with Convention members. In addition, the Committees for European Affairs of both the German Federal Parliament and Federal Council [Bundesrat] organized a full-day public hearing on April 5, 2000,20) in which NGOs and numerous experts voiced their opinions on the Charter. Besides the parliamentary parties, also the Parliament took issue with the Charter several times. All political parties organized events with NGOs and experts, to foster the internal mind-making process. Examples of this process are last, but not least, the numerous petitions by parliamentary parties.
Overall, a high level of transparency was achieved, which in comparison to the general process of a summit, is nothing short of revolutionary.
Between December 17, 1999 and October 2, 2000, the Convention convened a total of 18 times. In general, the sessions were scheduled for one and half days and at the peak of negotiations, there were also sessions scheduled for three days, accompanied by countless informal discussions.
Joining the chairmanship with Roman Herzog as representative of national parliaments were Gunnar Jansson, Inigo Mendez de Vigo as representative of the European Parliament, and the representative of the Commission, Antonio Vitorino. The Presidium had a very important role since it not only decided on the agenda and presided over the sessions, but also presented suggestions on formulating the articles of the Chapter.
Based on these suggestions, the delegates submitted written applications for changes, in which they either voted to delete or add certain articles, or suggested different wording. During the debates a total of over 1,000 applications were submitted, with some of them becoming subjects of very heated discussions among the delegates. Based on the results of these discussions, the Presidium continuously refined the Charter, until a finished draft, agreed upon by all sides as a good compromise, was ready at the end of September.
During the second session of the Convention it was decided not to convene in work groups, but to work in formal and informal sessions.
Before all informal sessions, members of the three "big groups" (representatives of the governments, the European Parliament, and national parliaments) convened first. During these sessions, the chairpersons of the respective groups informed their members about developments in the work of the Presidium, and during initial discussions delegates tried to gather majorities for their positions.21)
Before almost every session in Brussels, both formal and informal, the different factions would meet and discuss strategic and contextual questions. As a result of these meetings, joint applications were submitted, in which a group of delegates would approve changes jointly.22)
Especially during the meetings of different factions it became obvious, that all delegates had to converge three different aspects in their position: they were 1. representative of an "institution" (government, European Parliament, national parliament), and as such accountable for their actions, they were 2. influenced by national heritage and legal tradition, and 3. bound by their political or ideological convictions. The effects of these different influences on their work in the Convention differ considerably between each delegate and topic, and are very difficult to describe.
Except for the name change to "Convention", no ballots took place. Also the final draft of the Charter was, according to the Tampere-Conclusion, accepted without a formal ballot. "In case the chairman, in close consultation with the deputy chairman, is convinced that the draft of the Charter can be accepted by all sides, the draft shall be presented to the European Council as described in the general preparation procedures."
This process worked very well. During the final session on October 2, 2000, only a few delegates voiced their disagreement with the Charter text, whereas each member of the Presidium, representing the different groups, announced the group's agreement. One of the biggest critics of the whole project, the representative of the British government, Lord Goldsmith, had already announced his approval of the Charter text, under big applause, during the 17th session.
4. Contents of the Charter
During the beginning stages of the Convention, as during debates on specific articles, one question repeatedly surfaced: whether the Charter should only be a catalogue of fundamental rights tailored to the specific competencies of the Union, or a complete catalogue of fundamental rights. Even though the heads of state or governments had indicated in the Cologne-Conclusion, that they were looking for a complete catalogue of rights of freedom, economic and social rights, and the rights of citizens in the Union, the same agreement states that "the basic rights within the Union should be summarized in a Charter, and as such made more visible". In this regard, the Cologne Conclusion was not clear without ambiguity. After long discussions, the Convention finally agreed on a complete coverage of fundamental rights. Three reasons in particular influenced this decision:
Firstly, the overall conviction was that, considering the global impact of the Charter, a reduced coverage of fundamental rights could have negative effects. The Convention agreed that, for example, a ban on capital punishment would hardly fall under the authority of the Union, nevertheless skipping this fundamental right would have given a devastating signal internationally, particularly considering that the Union fights for a ban on capital punishment in the international arena.
Secondly, it became obvious again, that a clear-cut limitation of the Unions competencies is not possible. The German federal states, for example, tried to exclude the fundamental right to education, since education falls under the authority of the states, [and not the federal government] in Germany. Whereas Article 149 ff ECT states the Union's authority in certain areas of education policy, which require protection as fundamental rights.
Thirdly, the Convention agreed that a charter of fundamental rights is valid over a long period of time. The Convention tried to minimise future adjustments to the Charter, once competencies change within the Union.
An important advancement of the Charter, compared to other documents on human rights, is not only the inclusion of a number of "modern" basic rights, but also its thoroughly gender-neutral wording. Another achievement is the fact that the often-postulated indivisibility and interdependence of human rights find their expression in social rights being included in the Charter with equal importance. This makes the Charter the most modern document of human rights presently in existence.
The text of the Charter consists of a preamble and seven chapters, all of which carry a distinctive headline.
The first paragraph of the preamble is an avowal of the peoples of Europe to "common values".
In the second paragraph, human dignity is emphasized as the central value of the European Union, closely linked with the basic values of freedom, equality, and solidarity. A point of controversy in this paragraph was the wording "spiritual-religious and moral heritage". In particular the French delegates expressed their opposition, stating that France is not only a secular nation in that respect, but also that the Union does not need any transcendental references. The debate about this aspect almost led to an eclat, as on the other side a few conservative delegates made the inclusion of a religious reference in the Charter a precondition to their acceptance. The Chairing Committee decided to solve this contextual controversy with a "translation trick": in ten out of eleven language versions of the Charter, the word "religious" was omitted from the Charter text, whereas only in the German version the English expression "spiritual" was translated as "spiritual-religious".
The third paragraph of the preamble focuses on the diversity of cultures in Europe, and repeats the four basic freedoms of the Union.
Noticeable in the fifth paragraph of the preamble is that, in addition to the legal sources named in the Cologne Resolution (the European Convention on Human Rights, joint constitutional traditions, the European Charter on Social Rights, and the Joint Charter on the Rights of Workers), the international responsibilities of the member states, the European Treaties, as well as the jurisdiction of the European Court of Justice and the European Court of Human Rights in Strasbourg, were affirmed.
Chapter 1, entitled "Dignity", contains in Article 1 exactly the same regulation as the German constitution: "Human dignity is inviolable".23) This is the fundamental norm from which all basic and human rights derive.
Article 2 states the right to life and the prohibition of capital punishment. It is noticeable, that Article 2 does not contain any exclusion to the regulation, a rule applied throughout the whole Charter. This article goes even further than Protocol 6 of the European Convention on Human Rights, which lists exceptions to the prohibition of capital punishment. This interpretation does not contradict Article 52, Paragraph 3, which states that rights listed in the Charter and corresponding to rights in the European Convention on Human Rights, carry the same scope of engagement as the European Convention of Human Rights. Article 52, paragraph 3, sentence 2 states, that the law of the Union, and therefore also the Charter of Fundamental Rights, can supersede the European Convention of Human Rights.
Article 3 contains the right to the integrity of the person, and, besides the basic norm, a list of rights covering the fields of medicine and biology. The "open" listing ("in particular") highlights a new aspect of the Charter: the recognition of possible violations of human dignity by future biologic-technical developments. There has been occasional scepticism that the Charter offers a lower level of protection in Article 2 and 3, which use the expression "everyone", compared to Article 1 ("human") or Article 4 ("no one"), but these fears are unfounded.24) Even in Article 2, Paragraph 2 of the German Constitution, stipulating the rights to life and integrity of the person, the expression "human" is used instead of "everyone". A general commentary to the [German] Constitution explains the meaning of "human" as "every natural person", irrespective of that persons mental state. The Constitution does not contain a definition of "life unworthy of living".25)
The reason for using the wording "Jede Person" and not "Jeder" in the German version of the Charter, is solely its gender-neutral formulation. The English version uses "everyone", and the French version "toute personne" in Articles 2 and 3, which would have to be translated into German either by using "Jede Person", or the rather complicated expression "Jede und jeder".
Article 4 prohibits torture and inhuman or degrading treatment or punishment.
The word "cruel", which can be found in many human rights documents,26) is not used, because the wording was considered to properly describe and broadly cover the meaning of the article.
Article 5 prohibits slavery, forced labour, and slave trade.
Chapter 2 is entitled "Freedoms".
Article 6 contains the right to liberty and security of person.
Article 7 regulates the respect for private and family life, home, and communications. With the word "communications" the Charter adopted a wider and more modern definition, than can be found in many older texts on basic rights, which used the term "Brief-, Post- und Fernmeldegeheimnis" [confidentiality of letters, postal, and telephony matters].27)
Article 8 regulates protection of personal data, yet another "modern" basic right. The Convention not only set physical and legal rules, but also states that compliance with these rules shall be subject to control by an independent authority.
Article 9 covers the right to marry and the right to found a family. This article also contains the first reference, which can be found in a number of other articles,28) on the guarantee of rights "in according with the national laws governing the exercise of these rights".
The question arises, whether such a formulation limits the basic rights, as it yields their applicability to national laws.29) The background, under which this formulation was chosen in some articles, was that the Convention tried not to establish final definitions in political areas, which are not only highly controversial within the Union, but also in member countries. In Article 9, for example, no agreeable definition of "marriage" could be found, and applicability was therefor left to "the national laws".30)
Another reason to make applicability subject to national laws and customs was - the Convention tried to emphasize - that the Union has no authority in certain areas, and as such, has to respect the way such rights had developed in member countries. This actually shows the defensive character of the Charter, which contradicts fears of a "competency-adducting" effect.
What remains important in all articles with references to national law is the fact that the Union recognizes such laws: should shifting competencies create new authority of the Union in these areas, the European Court of Justice would have to clarify the content of such rights.
Article 10 covers the freedom of thought, conscience, and religion. Paragraph 2 recognizes the right to conscientious objection to military service. This paragraph was included in the Charter relatively late,31) and it took numerous discussions to convince the delegates of the necessity of this regulation.32)
The freedom of expression and information is covered in Article 10. In particular Paragraph 2, which covers the freedom of the media, was highly disputed: some journalists voiced their concern that the wording "... shall be respected" is actually weaker than the previously used term "... shall be guaranteed".33) The present article, quite to the contrary, is an improvement over previous human rights documents: Article 10, Paragraph 1 of the European Convention on Human Rights, which was the basis of Charter Article 11, does not even contain any regulation on freedom of the media. This right is covered by jurisdiction of the European Court of Human Rights in Strasbourg, only as a sub-case of the right of individual expression.34) Article 11, Paragraph 2 of the Charter is the first European law on human rights expressively covering the freedom of the media. The article also protects the plurality of the media, which includes, according to the German understanding, the dual broadcasting system.35)
The word "respected" in Article 11 does not limit protection, but caters to the fact that the Union, according to the principle of subsidiarity, has no competence to "guarantee" freedom of the media. Therefore, Article 11 is mostly a classical protection against interference by the Union, national constitutional standard remains explicitly protected.
Article 12 guarantees the right to freedom of assembly and of association. Like in Article 11 of the European Convention on Human Rights, association in trade unions is covered expressly. The coverage of political parties in Paragraph 2 underlines their importance in expressing the political will of the citizens of the Union.36)
Article 13 covers the freedom of the arts and sciences. Also this article was included in the Charter relatively late,37) since a number of delegates opposed the standard wording, excluding restrictive regulations. Attributed mostly to the German delegates who, beyond the boundaries of parliamentary parties, demanded an inclusion of these freedoms based on Article 5, Paragraph 3 of the German Constitution.
In discussing Article 14, the question of the Union's competency was debated most fiercely. Some delegates, among them also representatives of German Federal States, expressed reservations concerning the right to education. Paragraph 1 not only formulates the general right to education, but defines this right as a precondition to access of vocational and continuing training, same as in the Joint Charter of Social Rights and the European Charter of Social Rights. Whereas the wording "right to education" may eventually imply service aspects, as in Article 149 ECT, these are clearly invalidated by choosing "access to ..." in the second part of the sentence.
Paragraph 2 covers the right to access free compulsory education, and follows respective regulations in international treaties.38)
Paragraph 3 regulates, as part of the freedom to conduct a business, the freedom to found educational establishments subject to compliance with democratic principles. The same paragraph also covers the right of parents to ensure the education of their children in conformity with their religious, philosophical, and pedagogical convictions. Also this regulation, which the Chairing Committee decided not to comment on,39) follows international law.40)
Article 15 covers the right to choose an occupation and the right to engage in work. During the discussions about this article, the controversies between human rights of the first and second "dimension"41) became most obvious. The delegates who argued that the concept of "first dimension" human rights being protective rights, and "second dimension" rights being service rights is not sustainable and outdated, succeeded in the end.42)
To highlight the "respect" dimension of this article, in the German version the wording "Recht zu arbeiten" was chosen over "Recht auf Arbeit".43)
To show the importance of this human right, the Convention decided to use the word "everyone" in Paragraph 1 of the article.
Paragraph 2 is formulated as a right of the citizens of the Union, as it covers the right to seek employment, exercise the right of establishment, and to provide service in any member state. This paragraph again follows respective regulations in European laws.44)
Paragraph 3 covers the right of nationals from third countries to enjoy the same working conditions as citizens of the member states. This paragraph corresponds with Article 31, which guarantees all workers the right to fair and just working conditions.
Article 16 covers a right, which so far was not included in any human rights document: the freedom to conduct a business. This right, based on jurisdiction of the European Court of Justice, is part of the right to choose an occupation. Noticeable is the non-binding comment by the Chairing Committee, that this right can be restricted according to Article 52, Paragraph 1.45)
Article 17 covers the right to property for everyone. Even though the wording of this article does not cover the social responsibility of property, as in the German Constitution (Article 14, Paragraph 2), expropriation in the public interest is possible, but only if necessary for the general interest.
An important aspect is covered by the term "lawfully acquired possessions", which means that property is not protected automatically. This is particularly important in cases of expropriation of property or profits from illegal activities. Property acquired illegally is not protected.
Paragraph 2 regulates the protection of intellectual property, which, beside artistic property, also covers patent and brand laws.46)
Article 18 covers the right to asylum. Also in discussions about this article, the same controversies as already known in the member states, flared up in Brussels again. In particular the question whether an institutional guarantee or an individual right should be formulated was disputed. As a compromise, it was agreed to refer to applicable European law and two international treaties, which are used as references already in the EC Treaty.47) Nevertheless, this compromise only deferred the controversy over the content of the article, because the definition of the Geneva Treaty, on whether the regulation covers a "right to asylum" or the rights "in asylum", is also disputed. This controversy does for example not affect the Federal Republic of Germany though, as Article 53 of the Charter ensures that protection of human rights superior to the regulations of the Charter, for example in national constitutions, is not affected by Charter regulations. This guarantees that the right to asylum, as described in Article 16a of the German Constitution, will not be affected.
Article 19, Paragraph 2 covers protection against being removed, expelled or extradited, particularly to nations where some one may be subjected to the death penalty or torture. Paragraph 1 prohibits collective expulsions.
Chapter 3 is entitled "Equality"
Article 20 covers equality before the law. This article reflects a principle, which can be found in the constitutions of all member countries.
Article 21 compiles an extensive list of prohibited acts of discrimination, even more extensive than, for example, in the Universal Declaration on Human Rights. Besides "general" criteria,48) it contains the prohibition of discrimination based on genetic features, membership of a national minority, disability, age, or sexual orientation.
Paragraph 2 covers explicitly the prohibition of discrimination based on nationality, within the applicable area of the laws of the Union. The regulations in this paragraph correspond to Article 12 of the Treaty establishing the European Community.
Article 22 contains, for the first time, a regulation similar to a "Staatszielbestimmung" [political destination of the state]: the Union shall respect cultural, religious, and linguistic diversity. In addition to several references to the principle of subsidiarity throughout the Charter, a number of delegates insisted on the inclusion of this article, to counter potential tendencies of "homogenisation" within the Union.
Article 23 covers equality between men and women in all areas. By choosing the wording "... must be ensured ...", the Charter exceeds the coverage of a defensive component, demanding legal and political measures, which are already implemented to some extent by the Union. The article exceeds by far the "simple" prohibition of discrimination based on gender, and complements the jurisdiction of the European Court of Justice in this area. This makes article 23 one of the most modern human rights regulations on equality presently in existence.
Article 24 covers the rights of children, their rights to protection and care, the right to express their views freely, the obligation to take their views into consideration, and their well-being in all actions relating to children, as well as their right to have regular personal contact to both parents. All these aspects have been taken over from the UN Convention on the Rights of the Child, which, according to Article 53, is also part of the minimum protection level of the Charter. Therefore the regulations of Article 24 are not final, but have to be interpreted in the context of the respective UN Convention.
Article 25 covers the rights of the elderly. The wording "... recognizes and respects ..." signifies the protective dimension of this basic right. In its (non-binding) comment on this article, the Presidium referred to Article 23 of the revised European Social Charter and Articles 24 and 25 of the Joint Charter of Social Rights. This was factually correct and as such welcome, but caused a political controversy within the Convention on whether references to a revised Social Charter are allowable. The revised Social Charter was not named as a legal source in the Cologne Conclusion and had not been accepted yet by all member states. In its comments, the Presidium sided with those delegates, who wanted to recognize the revised Social Charter as an expression of the latest legal status.
In Article 26, the Union "recognizes and respects" the rights of persons with disabilities, and formulates, as in previous articles, a protective right. A different formulation would have made necessary additional measures for social and occupational integration, as well as participation in social life.49)
Like in many other articles, it was the opinion of the Presidium that it is within the obligations of the member states, to implement such measures. The Union is not authorized to counteract national measures.
Chapter 4 is entitled "Solidarity" and follows the "3-pillar-model" suggested by Juergen Meyer.50) This chapter was especially controversial and has been criticised in the evaluation of the Charter by "leftists" and "conservatives" under very different aspects.51)
Article 27 covers the workers' right to information and consultation within the undertaking. During the debates, positions on this article were highly controversial. One side wanted to replace "information and consultation" with "workers' participation", the other side doubted the sense of the article overall. In the end, the Convention based the formulation of the article on respective articles in the revised Social Charter and the Joint Charter of Social Rights of Workers. It is important that the wording "... at the appropriate levels..." as included in the article, as this includes not only the national, but also the European level. Under this background, the insertion "... provided for by ... national laws and practises ..." in the article is slightly inconsistent, because European regulations, which are also part of national laws, are already in place.52)
Article 28 covers the right of collective bargaining and action. This article is not only formulated as an individual right ("workers and employers"), but also includes the respective organisations. The concrete example of "strike action" was fiercely debated, because some delegates, based on the example, insisted on also including the employers' right of "lock outs". This opinion could not prevail, though, because there is no example in which respective international documents on human rights name both actions, but there are a number of cases in which the right to "strike action" is explicitly mentioned.53)
Article 29 covers the right of everyone to access free placement service. This right covers "everyone", because also Article 15, which defines the right to engage in work, was formulated as a human right.
Even though a number of delegates argued against the inclusion of Article 29, based on the efforts of deregulation, the spirit of the Cologne Conclusion demanded this norm, which is also included in the Social Charter and Joint Charter.
The wording of this article is nevertheless not clear-cut: it does not clearly define, whether it is a protective or service right. The wording "right of access to" supports the protective aspect. Considering Article 51 (no new competencies of the Union based on the Charter), the Union is not allowed to apply any measures to restrict the free and gratis access to placement services organized by Union members.
Article 30 covers, under reference to European law and national regulations, the right to protection against unjustified dismissal. This article solidifies the "European Model" and rejects the "hire and fire" principle.
Article 31 covers the right of every worker to healthy, safe, and dignified working conditions. The wording "dignified working conditions" is also a reference to Article 1 of the Charter.
Paragraph 2 covers the right to limitation of maximum daily and weekly working hours, as well as the right to an annual period of paid leave. Interpretation of this article can be based on a number of European guidelines, the revised Social Charter, the Joint Charter of Social Rights of Workers, and on various conventions of international labour organizations, which all contain detailed regulations.
Article 32 covers special protective labour regulations for children and young people. Interpretation of this article should also be based on respective European and international regulations, which are mostly more detailed.
Article 33 was also fiercely disputed: Paragraph 1 covers the legal, economic, and social protection of the family, whereas Paragraph 2 contains protection from dismissal for a reason connected with maternity and the right to paid maternity leave and to parental leave.
Some delegates tried to expand the applicability of this article to protect the ones caring for family members. Others opposed the article as going too far, and pleaded for an exclusion of the article. It has to be considered that the list of rights in Paragraph 2 can only be exemplary. Based on the more general norm of "Harmony of Family and Professional Life", additional measures may be derived at a later stage, for example the right to day care.
Article 34 focuses on social security and social assistance. In Paragraph 1, the Union "recognizes and respects" the entitlement to the "classic" social services in accordance with the rules laid down by Community law and national laws and practices. The terminology is chosen to emphasize the protective character of this article. A different, broader formulation would not have had the Conventions support. Those delegates who demanded "a right to housing" did not prevail and had to settle with Paragraph 3, recognizing the goal to combat social exclusion and poverty. As an instrument to achieve those goals, the Union "recognizes and respects" housing assistance. Also this paragraph is phrased rather conservatively, to emphasize the current lack of competency of the Union in this area. According to Article 53, this article will have to be interpreted under the background of international treaties, which prevent a decrease in its present protective level.
Article 35 consists of an individual right and a goal: Sentence 1 formulates the right of everyone to access preventive health care and medical treatment. This right is again subject to national laws and practises. Sentence 2, in which the Union pledges the provision of a high level of human health care, corresponds literally to Article 152 of the Treaty establishing the European Community.
Article 36 was included in the Charter following strong efforts by the French government: the Union commits itself to recognize access to services of general interest, "to promote the social and territorial cohesion of the Union". This article may play a role in future deregulation efforts by the Union. In particular, it stands in the way of judging public or publicly subsidised services for "preventive self-support" exclusively according to the principles of fair competition, and prohibiting such services. Existing tensions will only be resolved by "practical concordance".
Articles 37 and 38 formulate objectives for action by the Union. Even though the Cologne Conclusion did not provide the formulation of such objectives, it is well known that they, in combination with individual rights, could create material and legal relevancy.54) Because of a high level of scepticism towards these "rights of the third dimension" within the Convention, no individual rights were formulated for neither environmental protection (Article 37), nor consumer protection (Article 38), even though there would have been a number of references available.55)
Chapter 5 is entitled "Citizens Rights". It contains mainly rights of the citizens of the Union, but also human rights.56)
Article 39 covers the right of every citizen of the Union to vote and to stand as a candidate at elections to the European Parliament. Paragraph 2 states that the members of the European Parliament shall be elected by "direct universal suffrage in a free and secret ballot". The commentary of the Presidium mentions that, "the latter regulation represents the basic principles of any election process in a democratic country". It is noticeable, that the recognized principle of an "equal election" is not mentioned in the article. The Presidium hesitated in this respect because, even though there had been petitions in that regard, it is commonly known, that the "one man - one vote" principle is, due to comprehensive reasons,57) partially violated in the elections to the European Parliament.58)
Article 40 covers the right of every citizen of the Union to vote and to stand as a candidate at municipal elections. This article is literally identical to Article 39, and both articles follow Article 19 ECT.
Article 41 covers the right of every person to a good administration. This is again a "modern" basic right. The Convention derived it from jurisdiction by the European Court of Justice. Paragraph 1 covers the basic standard of an administrative process, which has to be impartial, fair, and handled within a reasonable time. In Paragraph 2, this standard is specified in more detail: it states the right of every person to be heard, to have access to his or her file, and the obligation of the administration to give reasons for their decisions. Paragraph 3 covers the right to compensation for damages, and Paragraph 4 contains the right to communicate in one of the languages of the Union.
Article 42 contains the right of access to documents for citizens of the Union, and any natural or legal person residing or having its registered office in the EU. The latter aspect was included with regard to multinational enterprises. The regulation was limited to documents of the European Parliament, the European Council, and the European Commission. Article 8, covering protection of personal data, does not have this restriction. This means that in a concrete case, Europol data, for example, could be queried based on Article 8.
Article 43 contains the right to refer to the ombudsman of the Union for citizens of the Union, and any natural or legal person residing or having its registered office in the EU. This article expands the regulations of Article 21 ECT, which only refers to citizens of the Union.
Article 44 corresponds almost literally to Article 194 ECT, and covers the right to petition the European Parliament. The Charter extends the spectrum of this right by excluding the limitation of "direct concern" stated in the EC Treaty. Article 52, Paragraph 2 of the Charter states, that rights taken over from European treaties have the same scope and limitation as originally set forth in those treaties. There were, nevertheless, different opinions in the Convention, on whether the Charter should only contain rights from already applicable European law, or whether the Convention had a certain legislative power in the Charter, to point out and correct deficits in existing European laws.59) An interpretation of the Charter by the European Court of Justice would, in case of a controversy, clarify the situation, but the Court would have to consider in its decision the wording of the Charter, the European Treaties, and, according to Article 53, all relevant international human rights documents.
The same problems could arise from Article 45, which in Paragraph 1 covers the right of freedom of movement and residence for any citizens of the Union. Because Article 18 of the EC Treaty, on which the Charter is based in this respect, includes general limitations of the European Treaties, and even secondary [national] regulations. The Convention had the overall opinion, that a limitation of the freedom of movement of citizens of the Union would violate existing international treaties.60) Considering Article 53 of the Charter, the European Court of Justice would have to convert the right of citizens into a human right.
Article 45, Paragraph 2 does not state a human right, but simply the possibility of granting the freedom of movement and residence to nationals of third countries, in accordance with the EC Treaty.
Article 46 covers the right to diplomatic and consular protection, as stated in Article 20 of the EC Treaty.
Chapter 6, entitled "Justice", covers "jurisdictional" rights, and as such not rights of citizens, but human rights.
Article 47 covers the right to an effective remedy and to a fair trial. In its (non-binding) commentary, the Presidium states that this article will not lead to changes of the present legal system of the Union. Here the basic question arises, whether a charter on human rights, which is neither legally enforceable, nor offering the possibility of an appeal, will really yield the envisioned identification of the citizens with the Union.61)
Article 47 also regulates the availability of legal advice, an aspect included in the Charter due to an initiative of Jrgen Meyer. The right to legal aid, which is mentioned in Paragraph 3, was derived from jurisdiction of the European Court of Human Rights.62)
Article 48 covers the presumption of innocence and the right of defence. Since these rights are part of the general basic rights, and are included in almost all constitutions and human rights documents, there was no dispute about this article in the Convention.
Article 49, Paragraph 1, features the classic principle of prohibiting retroactive jurisdiction.
Paragraph 2 states the possibility of trial and punishment for an illegal act according to "the general principles recognized by the community of nations". The quoted part of the sentence replaces the corresponding wording of Article 7 of the European Convention on Human Rights, which contains the phrase "general legal principles of civilized nations". This does not change the meaning of the article, but only eliminates an "imperialistic" connotation.
Article 49 covers the important principle of proportionality of criminal offences and penalties.
Article 50 covers the "ne bis in idem"-principle [the right not to be tried or punished twice in criminal proceedings for the same criminal offence], which is not only applied on a national-level jurisdictional system, but gains increasing importance in international jurisdiction among the member states.
Chapter 7, entitled "General Provisions", is the final chapter of the Charter and contains the so-called "horizontal" regulations, which provide guidance in the overall interpretation of the Charter. A final chapter was not planned in the beginning, and is also not mentioned in the Cologne Conclusions. The Convention decided on this chapter mainly for two reasons:
Firstly, it was highly emphasized to compose the Charter, especially the material and legal areas, in a way, which is easy to read and understand for the common citizen. Because of this, there were no limitations on the exercise of the rights and freedoms for each article, like, for example, in the European Convention on Human Rights. Instead, Article 52, Paragraph 1 contains a general horizontal regulation.
Furthermore, to improve the readability of the Charter, the Convention decided on a minimum protection level, which also provides guidance in interpretation, so that the articles could be formulated in a general style.
Secondly, it became obvious at an early stage, that some delegates were sceptical of the Charter project in general.
Therefore, Chapter 7 clearly defines the boundaries of the Charter, as well as the fact that the Union does not create a "competency-adducting" effect through the Charter.
This reason in particular prompted the inclusion of Article 51, which regulates that the Charter is binding for the institutions63) and bodies64) of the Union. The member states are only bound in areas where they apply Union law. This principle is reinforced in Paragraph 2, which states that no article of the Charter may be used to modify powers and tasks defined by the treaties. Without this article, a number of rightsespecially social rightscould not have been included. For the same reason, and political reasons, the principle of subsidiarity was included in this article again (like in the preamble).
Article 52, Paragraph 1 contains the general limitation of exercise already mentioned. The basic rights laid down in the Charter can only be limited a) by law, b) without limiting the essence of these rights and freedoms, c) subject to the principle of proportionality, d) based on necessity, and e) if they meet objectives of general interest recognized by the Union or the need to protect the rights and freedoms of others.
Article 52, Paragraph 2 states clearly, that rights of the Charter, as far as they are already included in other European treaties, are to be interpreted within the context of the treaties. The future applicability of this article is certainly controversial: since the European Court of Justice interprets human rights based on jurisdiction of the European Court of Human Rights (and Article 52, Paragraph 3 sets the European Convention on Human Rights as the minimum protection level of the Charter), a ruling by the European Court of Human Rights in Strasbourg65) could conclude, that existing primary EU/EC regulations are unconstitutional.
Article 53 recognizes the national constitutions and respective international laws on human rights as a minimum protection.66)
This will lead to a number of international regulations67) gaining influence in the interpretation of the Charter. It also adds a dynamic element to the Charter.68) The explicit reference to the European Convention on Human Rights is based on the Convention's conviction that it is one of the most important European documents on human rights. This conviction is supported by the fact that the European Court of Justice refers to jurisdiction of the European Court of Human Rights in its decisions on human rights.
The last article of the Charter, Article 54, covers the prohibition of the abuse of rights of the Charter, and is orientated towards respective regulations set forth in Article 17 of the European Convention on Human Rights.
A charter of fundamental rights, which is nicely worded, but has no legal relevance in the sense that its rights can not be claimed by citizens, will rather contribute to displeasure, than create identification effects.69) The formulation and solemn proclamation of the Charter was a first important and necessary step. But this step needs improvements: the Charter has to be quickly integrated into the European Treaties to be legally enforceable. Only the option of an individual constitutional appeal will guarantee effective protection of fundamental rights.70) The German example shows, that the possibility of an individual constitutional appeal greatly increases awareness of the constitution in Germany, and the Constitutional Court enjoys the highest respect among Germany's citizens. There has to be a comparable mechanism in Europe. Individual appeals should not only be possible against executive measures of the Union, but also against legislative acts. Political power is only legitimate if it complies with basic rights and allows independent institutions to monitor its compliance. This means that the European Court of Justice should not only see itself as a driving force of European integration, but should, to a much larger extent, control and curtail the European institutions if there are dangers to individuals' basic rights.
The fact that there is no alternative to European unity is widely undisputed. Many social, economic, and ecological questions, as well as questions regarding foreign policy and internal security can no longer be resolved by individual nations themselves. The citizens have to be part of the integration process. Therefore institutions, which are elected directly by the citizens, have to be supported. Concretely, it will be impossible to overcome the "democratic deficit" inside the Union, without reinforcing the power of the national parliaments, which control their governments, and the European Parliament.
The Charter of Fundamental Rights is an important step towards "more democracy". This step could have more consequent results, if the Charter would be incorporated in the treaties of a European-wide referendum.71) What better question could there be for a referendum, than the formulation and protection of basic rights of the individual against governmental institutions? This would oblige all European institutions, national governments, political parties and organizations, NGOs, and the media, to expand discussions about and coverage of the Charter. The Charter would get to the heart of every citizen, and European unification would be broader than economic integration, which finds its expression in the EURO. European law does not yet provide for a referendum, for which the European treaties would have to be amended. But that is not a legal problem, but a question of political will.
Finally, there will be no other way but to formulate a European constitution. When looking at a "constitution" from a factual perspective, it becomes clear that all the fears surrounding the discussion about a constitution are missing their target: a constitution first of all covers basic rights, which have to be respected by the government, and which the individual can claim. A constitution also regulates duties and responsibilities in a society, which means that there have to be clear definitions on the competencies of the Parliament, the Commission, and the Council, and competencies of the European Union, the member states, and regions have to be defined.
The goal is not the creation of a European "super nation", as often feared, and who would have an interest in that, anyway? The goal is to clarify processes and responsibilities, to create a comprehensive solution, for everyone to understand. This means, that the demand for a constitution of the European Union is a demand for transparency and democracy. Nothing more and nothing less!
The highly disputed question remains: Who should formulate such a constitution? During the negotiations and analysis of the Nice Summit, many media reports concluded that the "classic-style" summit had reached its limitations. Convention models, similar to the Convention drafting the Charter of Fundamental rights, are discussed widely. The convention concept was not only more transparent, but also more efficient than comparable conferences. Under this aspect the call for a convention to draft the [European] constitution seems to be well founded. As always, the devil is in the details: constitutional questions in Europe have to be decided, without doubt, unanimously. Presuming there would be a convention, which, under proper statutes, would draft a constitution (for example, with a majority of 2/3), then this would almost translate into a dilution of the majority rule on constitutional matters. A convention consisting of 62 members, for example, could easily decide against representatives of Germany, France, Great Britain, and Italy. Such a convention would surely not find any support by the heads of state or government. A convention can only be a counselling committee, a "council of elders". The Convention on Basic Rights in Brussels had exactly this function.
Experiences with the Charter Convention show, that a document's importance and power to convince are results of quality. From a purely legal standpoint, the heads of state or government could have changed the draft of the charter presented by the Convention. But it was well known that the Charter was a finely tuned compromise, where any amendment could have led to disaster. In addition, the high quality of the final draft was highly recognized.
Taking these experiences into consideration, it is recommended that a constitutional convention, under participation of the public, handle the preparatory work for a constitution. If the draft is of satisfactory quality, it is highly likely to become the Constitution of the European Union. The Charter of Fundamental Rights of the European Union will be the center piece of this constitution, or, in the words of the President of the Commission, Romano Prodi, "the soul of the European Union".
1) Prof. Ingolf Pernice, European Law specialist: "Die Debatte hierueer [ueber die Charta] loest einen europaweiten Diskurs ueber die gemeinsame Wertebasis der Union aus, ein moeglicher Konsens darueber wirkt legitimierend, identitaetsfoerdernd und integrierend."["The discussion about the Charter initiates a European-wide discussion about the common basis of values, a potential consensus will boost legitimacy, identity, and integration"] in: Pernice, Ingolf: Eine Grundrechte-Charta fuer die Europaeische Union, Deutsches Verwaltungsblatt, Heft 12 (15. Juni 2000 / June 15, 2000), pages 847бн859 (849).
2) Juergen Meyer at the ZRP-Rechtsgespraech "Die EU ist eine Wertegemeinschaft", ["The EU is a union of values"], in: Zeitschrift fuer Rechtspolitik, Heft 3/2000, pages 114бн116 (115).
3) See also: respective comments in chapter 5.
4) ECJ Slg. 1958/1959, page 43ff. "Stork", and ECJ Slg. 1965, 295ff. "Sgarlata".
5) ECJ Slg. 1970, page 1130 ff. "International trading company".
6) BVerGE 37 [Volume 37 of the German Constitutional Court], pages 37ff.
7) See also: rulings of the Italian Constitutional Court. Compare also: Wetter, Irmgard: Die Grundrechtecharta des Europaeischen Gerichtshofes. Die Konkretisierung der gemeinschaftlichen Grundrechte durch die Rechtssprechung des EuGH zu den allgemeinen Rechtsgrundsaetzen. [Irmgard Wetter: The Charter of Fundamental Rights of the European Court of Justice. The ascertainment of common basic rights in the rulings of the European Court of Justice regarding general legal principles] Frankfurt/Main, 1998, page 20.
8) See also: detailed sources in Wetter, (footnote 9), page 37 ff.
9) "Solange-II-decision", BVerGE 73 [Volume 73 of the German Constitutional Court], pages 339 ff.
10) See also: Wetter, (footnote 9); Rengeling, Hans-Werner: Grundrechtsschutz in der Europaeischen Gemeinschaft. [Hans-Werner Rengeling: Protection of Basic Rights in the European Community], Muenchen 1993, page 1. Chwolik-Lanfermann, Ellen: Grundrechsschutz in der Europaeischen Union. Bestand, Tendenzen und Entwicklungen. [Ellen Chwolik-Lanfermann: Protection of Basic Rights in the European Union. Present Situation, Tendencies and Development], Frankfurt/Main 1994, pages 47 ff. Baumgartner, Gerhard: EU-Mitgliedschaft und Grundrechtsschutz. [Gerhard Baumgartner: EU-Membership and Protection of Basic Rights], Vienna, 1997, pages 149 ff.
11) Regarding the problems of Judges Law ["Richterrecht"], in relation to jurisdiction of the European Court of Justice see also: Losch, Bernhard / Radau, Wiltrud Christine: Grundrechtskatalog fuer die Europaeische Union, in: Zeitschrift fuer Rechtspolitik, Heft 3/2000, [Bernhard Losch/Wiltrud Christine Radau: Catalogue of Basic Rights for the European Union, in: Journal for Legislative Politics, issue 3/2000, pages 84бн87 (85 f.)]
12) Martin-Bericht, EP Dok. A 3-270/90 [Martin-Report, EP document A 3-270/90]
13) The European High Court, in its jurisdiction, has not used the Charter of the EP as a legal source. See also: Wetter, (footnote 9), page 21.
14) European Commission (Publisher): Die Grundrechte in der Europaeischen Union verbuergen. Es ist Zeit zu handeln, Bericht der Expertengruppe "Grundrechte", Bruessel, 1999. [Guaranteeing the Basic Rights in the European Union - Time to Act. Report of the expert group "Basic Rights", Brussels, 1999.]
15) European Court of Justice, Assessment 2/94, dd. 1996/03/28: Membership of the [European] Union in the Convention on Human Rights and Basic Freedoms.
16) Individual delegates to the Convention of Basic Rights have repeatedly pushed for a membership of the [European] Union. The Convention decided that a statement on this question does not conform to the mandate of the Convention.
17) See also: Daeubler, Wolfgang: In bester Verfassung. Zur Verabschiedung der europaeischen Grundrechte-Charta, in: Blaetter fuer deutsche und internationale Politik. 45/2000, [Wolfgang Daeubler: In best condition (also: constitution) - Comments regarding the passing of the Charter of Fundamental Rights of the European Union, in: Leaflets for [Pages about] German and International Politics, 45/2000], pages 1315бн1321 (1317)
18) Compare also: the debate following the Nice Summit about whether "classic intergovernmental conferences" have come to an end.
See also (among others): "Was vom Reste uebrig bleibt", Sueddeutsche Zeitung dd. 2000/12/07, and "Europaparlament zeigt sich enttaeuscht von Nizza", Die Welt dd. 2000/12/13.
19) The representatives of the German Parliament were elected almost unanimously (with one abstention), on 1999/11/25. See session transcript 14/73, additional agenda topic 2.
20) Results of the hearing can be accessed via Internet on the web site of the Committee for European Affairs at http://www.bundestag.de, and in a series of publications by the Committee titled "Texte und Materialien"?"Texts and Materials"], which contain all results of the hearing.
21) Through information exchange by employees and modern communication technologies, it was possible for the delegates to follow the process of discussions in the other groups during the sessions.
22) See also: an application for a change by Pervenche Beres, to which all eight social-democrats among the delegates of the European Parliament agreed, and another application by Juergen Meyer, which was signed by thirteen delegates.
See also: Charter of Fundamental Rights (CFR) documents, dd. 2000/09/07, which contains all applications by Convention members regarding changes to the Charter (version "Convention 45").
23) The inclusion of this article is based on a discussion draft on the Charter of Fundamental Rights, which Juergen Meyer presented already in 1995. It was the first petition to the Convention. (CFR document contribution 2, 2000/01/06)
24) For example the application by the PDS dd. 2000/11/24, Federal Parliament Protocol 14/4720.
25) Jarass, Hans D./Pieroth, Bodo: Grundgesetz der Bundesrepublik Deutschland, Kommentar, [Hans D. Jarass/Bodo Pieroth: Constitution of the Federal Republic of Germany, Commentary], Munich, 5th Edition 2000, Comment 54 on Article 2.
26) For example in Article 5 of the General Resolution on Human Rights from 1948, and in the UN Agreement against Torture, inhuman and degrading Treatment or Punishment from 1984.
27) For example in Article 10, Paragraph 1 of the German Constitution.
28) Article 10, Paragraph 2; Article 14, Paragraph 3; Article 16, Paragraph 27; Article 28; Article 30; Article 34; Article 35; Article 36.
29) The question was submitted to the Chairing Committee in writing by 13 delegates, on the initiative of Juergen Meyer, on August 31, 1999: Due to systematic reasons, references to "national laws" and terminology like "according to laws of the Union" should be avoided. The undersigned suggest deletion of such references in Articles 9, 18, 25, 26, 32, 33, and 34. The "horizontal" regulations set forward in Article 49, Paragraph 1 and 2 (in the final version of the Charter Article 51) make such references unnecessary. The Convention decided, to improve the readability and therefor the chance of citizens of the Union to identify with the Charter, to deal with questions regarding "horizontal" regulations separately. The system presented in the "Convent 45" (the version of the Charter at that time) creates the impression in citizens, that specific articles are weakened. This does not comply with the intentions of the Charter or the spirit of the Cologne Resolution. Furthermore, there is a possibility to create an impression, that basic rights, which are considered law of highest authority, are limited by national regulations or future revisions of the Charter. Such an impression would be fatal [to the Charter] and contradict the spirit of Article 6, Paragraph 1 of the European Union Treaty, which clearly states that "the Union puts the highest priority on human and basic rights". The petition was signed by Juergen Meyer, Alima Bourmedine-Thiery, Andrew Duff, Caspar Einem, Ben Fayot, Michael Holobek, Ulpu Ilvari, Sylvia-Yvonne Kaufmann, Jo Leinen, Hans-Peter Martin, Elena Paciotti, Ieke van den Burg, and Johannes Voggenhuber.
30) Comment: There are fierce controversies even within the member nations in this political area, one being the discussion on registration of "life partnerships" in Germany. The debate in the Convention was only a reflection of controversies taking place within the member nations.
31) The version of the Charter of July 28 does not yet contain this paragraph. (see also: CFR document Convent 45)
32) Juergen Meyer demanded such a regulation already in a petition on 2000/03/16.
33) Charter version of September 14, 2000, CFR document Convent 47.
34) See also: Ruling dd. November 24, 1993 - "Lentia" - in: EuGRZ 1994, page 549 ff.
35) This position was also voiced in a letter of Juergen Meyer dd. August 31, 1999 (see also: footnote 31) jointly with other delegates. See also: protocol 23 of the Amsterdam Agreement, which contains a guarantee to protect the public broadcasting system.
36) See also Article 191 ECT.
37) CFR document Convent 45 dd. July 28, 2000, only mentions freedom of sciences.
38) Among others: Article 26 Universal Declaration on Human Rights, Article 13, Paragraph 2, International Covenant on Economic, Social, and Cultural Rights.
39) CFR document Convent 49 dd. October 11, 2000. This document is not an official commentary of the Convention, but has been compiled by the Presidium, following a request by the Convention, to aid the delegates. The contents of the commentary were not discussed in the Convention, and several delegates repeatedly pointed out its non-binding character. This was also confirmed by the Presidium and recorded in the preamble of Convent 49.
40) Article 18, Paragraph 4, International Covenant on Civil and Political Rights.
41) The "first dimension" defines, according to common opinion, the "classic" rights to freedom and protection, whereas the "second dimension" covers economic and social rights.
42) Regarding the overall discussion, and answer to the question whether political and social rights differ in character, see also: Engels, Markus: Verbesserter Menschenrechtsschutz durch Individualbeschwerde? Zur Frage der Einfuehrung eines Fakultativprotokolls fuer den Internationalen Pakt ueber wirtschaftliche, soziale und kulturelle Rechte [Markus Engels: Better Protection of Human Rights through Individual Complaints? Comments on the Introduction of a Optional Protocol for the International Covenant on Economic, Social and Cultural Rights], Munich, 2000.
43) In the English version translated "right to work" respectively.
44) Article 39, 43, and 49 ff. ECT.
45) CFR document Convent 49 dd. October 11, 2000, Article 16.
46) CFR document Convent 49, Article 17.
47) The Geneva Convention of July 28, 1951, and the Protocol of January 31, 1967. Both are referred to in Article 63ECT.
48) Sex, race, colour, ethnic or social origin, language, religion or belief, political or any other opinion, property, birth.
49) Subject to the regulations of Article 51, Paragraph 2.
50) See also: the letter of Juergen Meyer dd. May 2, 2000, in which he introduced his "3-pillar-model" to the Convention.
51) Whereas one side sees this chapter as a breakthrough of neo-liberalism, now also documented in a charter of fundamental rights, others consider it a danger to free competition, leading to an excessive "control-rage" of the Union, similar to socialistic states. As a summary of interim results on social rights during the debates in the Convention see also: Meyer, Juergen/Engels, Markus: Aufnahme von sozialen Grundrechten in die Europaeische Grundrechtscharta?, in: Zeitschrift fuer Rechtspolitik, [Juergen Meyer/Markus Engels: Including Social Rights in the Charter of Fundamental Rights of the European Union?, in: Journal for Legislative Politics, issue 9/2000, pages 368бн371.
52) Guideline 98/59/EG (mass-dismissals) and others.
53) For example in Article 8 of the International Covenant on Economic, Social, and Cultural Rights, and in Article 6, Paragraph 2 of the European Social Charter.
54) See also: jurisdiction of the German Constitutional Court to Article 20 in combination with Article 1 of the German Constitution.
55) See also: Article 20 of the Finnish Constitution, which, among others, contains citizens participation rights in the area of environmental protection.
56) During an event by the parliamentary party of the Social Democrats on July 3, 2000, Juergen Meyer pointed out that each right of the Charter has to be examined as to where it constitutes a human right or a citizens right. According to him, the latter could only be an exception. In agreement: Weber, Albrecht: Die Europaeische Grundrechtscharta auf dem Weg zu einer europaeischen Verfassung, [Albrecht Weber: The Charter of Fundamental Rights of the European Union on the way to a new European Constitution], in: "Neue Juristische Wochenschrift", issue 8/2000 pages 537бн608 (541 f.)
57) In case the "one man - one vote" principle would be strictly applied, the smaller member countries would have almost no representation in the European Parliament.
58) There is an ongoing discussion in Germany, as to how much the smaller parties are at a disadvantage, because they do in fact need more votes to gain seats in the German Parliament.
59) See also: Article 43, which already exceeds European law.
60) Among others: Article 12 of the International Covenant on Civil and Political Rights, Articles 2 and 4 of the Optional Protocol of the European Convention on Human Rights.
61) See also Chapter 5.
62) Ruling by the European Court for Human Rights, October 9, 1979, Aircy.
63) According to Article 7 of the EC Treaty, the institutions of the Union consist of the European Parliament, the European Council, the European Commission, the European Court of Justice, and the European Court of Auditors.
64) The "bodies" of the Union are instances, which were created based on primary or secondary laws, and which are not institutions.
65) For example in the area of freedom of movement.
66) See also request by: Schmuck, Otto: Die Ausarbeitung der Europaeischen Grundrechtscharta als Element der Verfassungsentwicklung, [Otto Schmuck: The Drafting of the Charter of Fundamental Rights of the European Union as an Element of Constitutional Development] in: Integration, Issue 1/2000, pages 48бн56 (52)
67) International treaties accepted by all member states are, for example: the European Convention on Human Rights, the two UN Human Rights Covenants, The European Social Charter, the UN Convention on the Rights of the Child, and many conventions by the International Labour Organisation.
68) In his letter to the Convention dd. May 2, 2000, Juergen Meyer requested such a "dynamic element" as the "third pillar" of his "3-pillar model".
69) Pernice criticizes rightly, that the passiveness of the Charter as a "solemn proclamation" is "a new proof of alienation between citizens and governments", in: Pernice: Grundrechte-Charta [Pernice: Charter of Fundamental Rights] (footnote 3), page 858.
70) On the basis that the European Court of Justice will interpret Article 6 of the Constitution of the European Union, which covers the Union's obligation to protect basic and human rights, since the Charter is an expression of the Cologne Conclusion and "common constitutional heritage" (see article 6).
71) Different models for such a referendum are possible. The most comprehensible would be a majority of votes in favour of the Charter, in every member state. A majority in each member state would be achievable, because the referendum about the Charter, different from the known referendums surrounding the EURO, would focus on improved protection of individuals against the Union.
CHARTER OF FUNDAMENTAL RIGHTS OF
THE EUROPEAN UNION (2000/C 364/01)
The peoples of Europe, in creating an ever closer union among them, are resolved to share a peaceful future based on common values.
Conscious of its spiritual and moral heritage, the Union is founded on the indivisible, universal values of human dignity, freedom, equality and solidarity; it is based on the principles of democracy and the rule of law. It places the individual at the heart of its activities, by establishing the citizenship of the Union and by creating an area of freedom, security and justice.
The Union contributes to the preservation and to the development of these common values while respecting the diversity of the cultures and traditions of the peoples of Europe as well as the national identities of the Member States and the organisation of their public authorities at national, regional and local levels; it seeks to promote balanced and sustainable development and ensures free movement of persons, goods, services and capital, and the freedom of establishment.
To this end, 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.
This Charter reaffirms, with due regard for the powers and tasks of the Community and the Union and the principle of subsidiarity, the rights as they result, in particular, from the constitutional traditions and international obligations common to the Member States, the Treaty on European Union, the Community Treaties, the European Convention for the Protection of Human Rights and Fundamental Freedoms, the Social Charters adopted by the Community and by the Council of Europe and the case-law of the Court of Justice of the European Communities and of the European Court of Human Rights.
Enjoyment of these rights entails responsibilities and duties with regard to other persons, to the human community and to future generations.
The Union therefore recognises the rights, freedoms and principles set out hereafter.
Human dignity is inviolable. It must be respected and protected.
Right to life
1. Everyone has the right to life.
2. No one shall be condemned to the death penalty, or executed.
Right to the integrity of the person
1. Everyone has the right to respect for his or her physical and mental integrity.
2. In the fields of medicine and biology, the following must be respected in particular:
- the free and informed consent of the person concerned, according to the procedures laid down by law,
- the prohibition of eugenic practices, in particular those aiming at the selection of persons,
- the prohibition on making the human body and its parts as such a source of financial gain,
- the prohibition of the reproductive cloning of human beings.
Prohibition of torture and inhuman or degrading treatment or punishment
No one shall be subjected to torture or to inhuman or degrading treatment or punishment.
Prohibition of slavery and forced labour
1. No one shall be held in slavery or servitude.
2. No one shall be required to perform forced or compulsory labour.
3. Trafficking in human beings is prohibited.
Right to liberty and security
Everyone has the right to liberty and security of person.
Respect for private and family life
Everyone has the right to respect for his or her private and family life, home and communications.
Protection of personal data
1. Everyone has the right to the protection of personal data concerning him or her.
2. Such data must be processed fairly for specified purposes and on the basis of the consent of the person concerned or some other legitimate basis laid down by law. Everyone has the right of access to data which has been collected concerning him or her, and the right to have it rectified.
3. Compliance with these rules shall be subject to control by an independent authority.
Right to marry and right to found a family
The right to marry and the right to found a family shall be guaranteed in accordance with the national laws governing the exercise of these rights.
Freedom of thought, conscience and religion
1. Everyone has the right to freedom of thought, conscience and religion. This right includes freedom to change religion or belief and freedom, either alone or in community with others and in public or in private, to manifest religion or belief, in worship, teaching, practice and observance.
2. The right to conscientious objection is recognised, in accordance with the national laws governing the exercise of this right.
Freedom of expression and information
1. Everyone has the right to freedom of expression. This right shall include freedom to hold opinions and to receive and impart information and ideas without interference by public authority and regardless of frontiers.
2. The freedom and pluralism of the media shall be respected.
Freedom of assembly and of association
1. Everyone has the right to freedom of peaceful assembly and to freedom of association at all levels, in particular in political, trade union and civic matters, which implies the right of everyone to form and to join trade unions for the protection of his or her interests.
2. Political parties at Union level contribute to expressing the political will of the citizens of the Union.
Freedom of the arts and sciences
The arts and scientific research shall be free of constraint. Academic freedom shall be respected.
Right to education
1. Everyone has the right to education and to have access to vocational and continuing training.
2. This right includes the possibility to receive free compulsory education.
3. The freedom to found educational establishments with due respect for democratic principles and the right of parents to ensure the education and teaching of their children in conformity with their religious, philosophical and pedagogical convictions shall be respected, in accordance with the national laws governing the exercise of such freedom and right.
Freedom to choose an occupation and right to engage in work
1. Everyone has the right to engage in work and to pursue a freely chosen or accepted occupation.
2. Every citizen of the Union has the freedom to seek employment, to work, to exercise the right of establishment and to provide services in any Member State.
3. Nationals of third countries who are authorised to work in the territories of the Member States are entitled to working conditions equivalent to those of citizens of the Union.
Freedom to conduct a business
The freedom to conduct a business in accordance with Community law and national laws and practices is recognised.
Right to property
1. Everyone has the right to own, use, dispose of and bequeath his or her lawfully acquired possessions. No one may be deprived of his or her possessions, except in the public interest and in the cases and under the conditions provided for by law, subject to fair compensation being paid in good time for their loss. The use of property may be regulated by law in so far as is necessary for the general interest.
2. Intellectual property shall be protected.
Right to asylum
The right to asylum shall be guaranteed with due respect for the rules of the Geneva Convention of 28 July 1951 and the Protocol of 31 January 1967 relating to the status of refugees and in accordance with the Treaty establishing the European Community.
Protection in the event of removal, expulsion or extradition
1. Collective expulsions are prohibited.
2. No one may be removed, expelled or extradited to a State where there is a serious risk that he or she would be subjected to the death penalty, torture or other inhuman or degrading treatment or punishment.
Equality before the law
Everyone is equal before the law.
1. Any discrimination based on any ground such as sex, race, colour, ethnic or social origin, genetic features, language, religion or belief, political or any other opinion, membership of a national minority, property, birth, disability, age or sexual orientation shall be prohibited.
2. Within the scope of application of the Treaty establishing the European Community and of the Treaty on European Union, and without prejudice to the special provisions of those Treaties, any discrimination on grounds of nationality shall be prohibited.
Cultural, religious and linguistic diversity
The Union shall respect cultural, religious and linguistic diversity.
Equality between men and women
Equality between men and women must be ensured in all areas, including employment, work and pay.
The principle of equality shall not prevent the maintenance or adoption of measures providing for specific advantages in favour of the under-represented sex.
The rights of the child
1. Children shall have the right to such protection and care as is necessary for their well-being. They may express their views freely. Such views shall be taken into consideration on matters which concern them in accordance with their age and maturity.
2. In all actions relating to children, whether taken by public authorities or private institutions, the child's best interests must be a primary consideration.
3. Every child shall have the right to maintain on a regular basis a personal relationship and direct contact with both his or her parents, unless that is contrary to his or her interests.
The rights of the elderly
The Union recognises and respects the rights of the elderly to lead a life of dignity and independence and to participate in social and cultural life.
Integration of persons with disabilities
The Union recognises and respects the right of persons with disabilities to benefit from measures designed to ensure their independence, social and occupational integration and participation in the life of the community.
Workers' right to information and consultation within the undertaking
Workers or their representatives must, at the appropriate levels, be guaranteed information and consultation in good time in the cases and under the conditions provided for by Community law and national laws and practices.
Right of collective bargaining and action
Workers and employers, or their respective organisations, have, in accordance with Community law and national laws and practices, the right to negotiate and conclude collective agreements at the appropriate levels and, in cases of conflicts of interest, to take collective action to defend their interests, including strike action.
Right of access to placement services
Everyone has the right of access to a free placement service.
Protection in the event of unjustified dismissal
Every worker has the right to protection against unjustified dismissal, in accordance with Community law and national laws and practices.
Fair and just working conditions
1. Every worker has the right to working conditions which respect his or her health, safety and dignity.
2. Every worker has the right to limitation of maximum working hours, to daily and weekly rest periods and to an annual period of paid leave.
Prohibition of child labour and protection of young people at work
The employment of children is prohibited. The minimum age of admission to employment may not be lower than the minimum school-leaving age, without prejudice to such rules as may be more favourable to young people and except for limited derogations.
Young people admitted to work must have working conditions appropriate to their age and be protected against economic exploitation and any work likely to harm their safety, health or physical, mental, moral or social development or to interfere with their education.
Family and professional life
1. The family shall enjoy legal, economic and social protection.
2. To reconcile family and professional life, everyone shall have the right to protection from dismissal for a reason connected with maternity and the right to paid maternity leave and to parental leave following the birth or adoption of a child.
Social security and social assistance
1. The Union recognises and respects the entitlement to social security benefits and social services providing protection in cases such as maternity, illness, industrial accidents, dependency or old age, and in the case of loss of employment, in accordance with the rules laid down by Community law and national laws and practices.
2. Everyone residing and moving legally within the European Union is entitled to social security benefits and social advantages in accordance with Community law and national laws and practices.
3. In order to combat social exclusion and poverty, the Union recognises and respects the right to social and housing assistance so as to ensure a decent existence for all those who lack sufficient resources, in accordance with the rules laid down by Community law and national laws and practices.
Everyone has the right of access to preventive health care and the right to benefit from medical treatment under the conditions established by national laws and practices. A high level of human health protection shall be ensured in the definition and implementation of all Union policies and activities.
Access to services of general economic interest
The Union recognises and respects access to services of general economic interest as provided for in national laws and practices, in accordance with the Treaty establishing the European Community, in order to promote the social and territorial cohesion of the Union.
A high level of environmental protection and the improvement of the quality of the environment must be integrated into the policies of the Union and ensured in accordance with the principle of sustainable development.
Union policies shall ensure a high level of consumer protection.
Right to vote and to stand as a candidate at elections to the European Parliament
1. Every citizen of the Union has the right to vote and to stand as a candidate at elections to the European Parliament in the Member State in which he or she resides, under the same conditions as nationals of that State.
2. Members of the European Parliament shall be elected by direct universal suffrage in a free and secret ballot.
Right to vote and to stand as a candidate at municipal elections
Every citizen of the Union has the right to vote and to stand as a candidate at municipal elections in the Member State in which he or she resides under the same conditions as nationals of that State.
Right to good administration
1. Every person has the right to have his or her affairs handled impartially, fairly and within a reasonable time by the institutions and bodies of the Union.
2. This right includes:
- the right of every person to be heard, before any individual measure which would affect him or her adversely is taken;
- the right of every person to have access to his or her file, while respecting the legitimate interests of confidentiality and of professional and business secrecy;
- the obligation of the administration to give reasons for its decisions.
3. Every person has the right to have the Community make good any damage caused by its institutions or by its servants in the performance of their duties, in accordance with the general principles common to the laws of the Member States.
4. Every person may write to the institutions of the Union in one of the languages of the Treaties and must have an answer in the same language.
Right of access to documents
Any citizen of the Union, and any natural or legal person residing or having its registered office in a Member State, has a right of access to European Parliament, Council and Commission documents.
Any citizen of the Union and any natural or legal person residing or having its registered office in a Member State has the right to refer to the Ombudsman of the Union cases of maladministration in the activities of the Community institutions or bodies, with the exception of the Court of Justice and the Court of First Instance acting in their judicial role.
Right to petition
Any citizen of the Union and any natural or legal person residing or having its registered office in a Member State has the right to petition the European Parliament.
Freedom of movement and of residence
1. Every citizen of the Union has the right to move and reside freely within the territory of the Member States.
2. Freedom of movement and residence may be granted, in accordance with the Treaty establishing the European Community, to nationals of third countries legally resident in the territory of a Member State.
Diplomatic and consular protection
Every citizen of the Union shall, in the territory of a third country in which the Member State of which he or she is a national is not represented, be entitled to protection by the diplomatic or consular authorities of any Member State, on the same conditions as the nationals of that Member State.
Right to an effective remedy and to a fair trial
Everyone whose rights and freedoms guaranteed by the law of the Union are violated has the right to an effective remedy before a tribunal in compliance with the conditions laid down in this Article.
Everyone is entitled to a fair and public hearing within a reasonable time by an independent and impartial tribunal previously established by law. Everyone shall have the possibility of being advised, defended and represented.
Legal aid shall be made available to those who lack sufficient resources in so far as such aid is necessary to ensure effective access to justice.
Presumption of innocence and right of defence
1. Everyone who has been charged shall be presumed innocent until proved guilty according to law.
2. Respect for the rights of the defence of anyone who has been charged shall be guaranteed.
Principles of legality and proportionality of criminal offences and penalties
1. No one shall be held guilty of any criminal offence on account of any act or omission which did not constitute a criminal offence under national law or international law at the time when it was committed. Nor shall a heavier penalty be imposed than that which was applicable at the time the criminal offence was committed. If, subsequent to the commission of a criminal offence, the law provides for a lighter penalty, that penalty shall be applicable.
2. This Article shall not prejudice the trial and punishment of any person for any act or omission which, at the time when it was committed, was criminal according to the general principles recognised by the community of nations.
3. The severity of penalties must not be disproportionate to the criminal offence.
Right not to be tried or punished twice in criminal proceedings for the same criminal offence
No one shall be liable to be tried or punished again in criminal proceedings for an offence for which he or she has already been finally acquitted or convicted within the Union in accordance with the law.
1. The provisions of this Charter are addressed to the institutions and bodies of the Union with due regard for the principle of subsidiarity and to the Member States only when they are implementing Union law. They shall therefore respect the rights, observe the principles and promote the application thereof in accordance with their respective powers.
2. This Charter does not establish any new power or task for the Community or the Union, or modify powers and tasks defined by the Treaties.
Scope of guaranteed rights
1. Any limitation on the exercise of the rights and freedoms recognised by this Charter must be provided for by law and respect the essence of those rights and freedoms. Subject to the principle of proportionality, limitations may be made only if they are necessary and genuinely meet objectives of general interest recognised by the Union or the need to protect the rights and freedoms of others.
2. Rights recognised by this Charter which are based on the Community Treaties or the Treaty on European Union shall be exercised under the conditions and within the limits defined by those Treaties.
3. In so far as this Charter contains rights which correspond to rights guaranteed by the Convention for the Protection of Human Rights and Fundamental Freedoms, the meaning and scope of those rights shall be the same as those laid down by the said Convention. This provision shall not prevent Union law providing more extensive protection.
Level of protection
Nothing in this Charter shall be interpreted as restricting or adversely affecting human rights and fundamental freedoms as recognised, in their respective fields of application, by Union law and international law and by international agreements to which the Union, the Community or all the Member States are party, including the European Convention for the Protection of Human Rights and Fundamental Freedoms, and by the Member States' constitutions.
Prohibition of abuse of rights
Nothing in this Charter shall be interpreted as implying any right to engage in any activity or to perform any act aimed at the destruction of any of the rights and freedoms recognised in this Charter or at their limitation to a greater extent than is provided for herein.