EWLA welcomes the convening of the European Convention. EWLA hopes that, although the participation of men and women in the Convention is not balanced, in spite of the calls of civil society and the Convention’s President himself to this effect, the Convention will be able to contribute to a European Union within which the fundamental rights and freedoms of men and women will be effectively guaranteed.

I. There can be no Constitution of the Union without an effective guarantee of fundamental rights and freedoms of women and men

The Cologne Council of June 1999, in deciding the drafting of the Charter, recalled that “protection of fundamental rights is a founding principle of the Union and an indispensable prerequisite of her legitimacy”. The Laeken Declaration underlined that “the European Union’s one boundary is democracy and human rights”.

The Laeken Declaration put the question “whether the simplification and reorganisation of the Treaties might not lead in the long run to the adoption of a Constitutional text in the Union”. It further asked: “what might the basic features of such a Constitution be? The values which the Union cherishes, the fundamental rights and obligations of its citizens, the relationship between the Member States and the Union?”

A Constitution is not only a division and definition of competencies.

A Constitution worth its name is above all an effective guarantee of fundamental rights and freedoms of women and men. If the Union wants to fulfil the expectations of its citizens and play a leading role in the world, it should first and foremost consolidate and guarantee its acquis in fundamental rights and freedoms and build on it, in accordance with the imperatives of Articles 2 and 6 EU Treaty. It is these rights and freedoms that are the foundations of the Union and the fundamental values which it cherishes. Indeed, they are its very raison d’être. They should, therefore, be the hard core of any Constitutional text.

The Charter of Fundamental Rights of the Union

According to the Laeken Declaration, “thought would also have to be given to whether the Charter of Fundamental Rights should be included in the basic Treaty”. In view of the foregoing, EWLA considers that, before any final decision on the Charter’s future is made, the Charter should be revisited, in particular in the light of the acquis communautaire.

By a Resolution on the Charter, adopted by its General Assembly at Seville, Spain, on 3 June 2001, EWLA welcomed the Charter as an important step in guaranteeing fundamental rights in the Union. It recalled, however, that the objective of the Charter, as fixed by the Cologne Council, was to make ‘existing’ fundamental rights “visible”. It should, therefore, be made sure that the Charter embodies, at least, the acquis communautaire, which reflects the values of European civilisation. The Resolution concluded that an improved version of the Charter should become legally binding in the context of the Constitutional process to be initiated in the Union and recalled that only improvements of the Charter are permitted by Article 2 EU Treaty.

EWLA considers that, nowadays, an effective guarantee of fundamental rights and freedoms is more necessary than ever in the Union. In certain respects the Charter has fulfilled its objective, but in certain other respects it falls short of the acquis. Thus, if the Charter, in its present form, is incorporated in the Treaty or in a Constitutional text, it risks creating confusion and legal uncertainty as to the content and scope of fundamental rights in the Union, which will lead to regression in their protection.

EWLA, therefore, suggests that one of the working groups to be set up by the Convention should deal with this problem and submit an opinion to the Convention.

EWLA will shortly present an updated position on the Charter.

III. The Simplification of the Union’s Instruments

A simplification of the Treaties, with a view to making them more accessible and understandable, is necessary. However, in accordance with the EU Treaty (Art. 2) and as recalled by both the Nice and the Laeken Declarations, any simplification must “maintain in full the acquis communautaire and build on it”.

The same applies to secondary EC legislation. In particular, the matters to be regulated by “framework legislation” or ‘co-regulation’ should be chosen very carefully, as the use of such methods risks resulting in regression. The Commission’s White Paper on Governance rightly warned against the use of “co-regulation” in matters related to fundamental rights or major political choices.

Neither framework legislation nor co-regulation should, therefore, be used in any matter relating to fundamental rights and freedoms, including gender equality, a fundamental principle and right, which it is an EC/EU task to promote in all areas (Articles 2 and 3(2) TEC). In such sensitive areas as employment, social policy or environment, in particular, these methods risk resulting in de-regulation that will disfigure the social, indeed the human face of the Union.

IV. Certain fundamental provisions to be included in a Constitutional text of the Union

EWLA agrees with AFEM’s first contribution to the European Convention, dated 14 February 2002, that at least the following provisions should be included in a Constitutional text:

A. Provisions of the EU Treaty (TEU):
1) The “common provisions” (Articles 1–7 TEU), with the following amendments:

Article 6 TEU
«1. The Union is founded on the principles of liberty, democracy, respect for fundamental rights and freedoms of men and women […]»

Article 7 TEU (as amended by the Nice Treaty):
«1 […] the Council […] may determine that there is a clear risk of a serious breach by a Member State of principles mentioned in Article 6 (1)and 2 […]».

Explanation: By this amendment it will be made clear that the sanctions against Member States provided by Article 7 must be imposed in case of a risk of a breach of fundamental rights and freedoms of women and men which constitute an acquis communautaire.

2) Article 46 TEU, amended as follows:
«The Court […] has the power to review […] the conformity of acts of the institutions and organs of the EU to paragraphs 1, 2 and 3 of Article 6 TEU and the conformity of acts of Member States to paragraphs 1 and 2 of Article 6 TEU […].»

Explanation:
- Acts of EC/EU institutions: Article 46 actually provides for the power of the Court to review the conformity of these acts to paragraph 2 of Article 6 TEU. By this amendment, paras. 1 and 3 of Article 6 are added. Thus, the Court will be able to review the conformity of these acts to the principles that constitute the foundations of the Union, such as those of liberty, democracy, respect for fundamental rights and freedoms of women and men, and the rule of law (Art. 6(1) TEU), to the fundamental rights that constitute an acquis communautaire (Art. 6(2) TEU), as well as to the obligation to respect the national identity of Member States (Art. 6(3) TEU); the latter includes their cultural heritage, whose respect Article 151 TEC more particularly requires.

- Acts of Member States: By this amendment the Court’s power to review the conformity of Members States acts to paragraphs 1 and 2 of Article 6 TEU is also added.

3) Article 49 TEU, amended as follows:
«1. Any European State which respects the principles set out in Article 6(1) and (2), and ensures their effective application may apply to become a member of the Union».

Explanation: By this amendment it is made clear that the guarantee of fundamental rights and freedoms which constitute an acquis is a conditio sine qua non for applying for accession to the Union. States which wish to be candidates must prove not only that they have an adequate legislation, but also that they have taken all necessary measures for the effective implementation of fundamental rights and freedoms.

B. Provisions of the EC Treaty (TEC):
1) Articles 2, 3, 12 TEC, as well as Art. 13 TEC which should be amended as follows:

Article 13 TEC:
«Without prejudice to the provisions of this treaty relating to discrimination on grounds of nationality, any direct or indirect discrimination based on any ground such as sex, race, ethnic or social origine, genetic features, language, religion or belief, political or any other opinion, membership of a national minority, fortune, birth, disability, age or sexual orientation is prohibited.».

Explanation: By this amendment, this provision will acquire direct effect. Moreover, the grounds of discrimination will be mentioned not exhaustively (as in the actual Art. 13), but indicatively, as they are in Article 14 of the European Convention on Human Rights and its Protocol No 12, Article E (Part V) of the European Social Charter (revised) and the corresponding provisions of the UN Covenants on Civil and Political and Economic, Social and Cultural Rights, which have also inspired Article 21 of the Charter of Fundamental Rights. This provision will thus fulfil, in respect of the fight against discrimination, the requirement of the EU Treaty “to maintain in full the acquis communautaire and build on it” (Art. 2 TEU) and will enable the Union to pursue more effectively its strategic social and economic goals.

2) Article 13A (new):
«1. Women and men have equal rights in all fields. 2. With a view to ensuring full equality in practice between men and women, positive measures are indicated, aiming in the first instance at improving the situation of women.»

Explanation: This new provision is necessary in order to satisfy the requirement “to maintain in full” the acquis communautaire relating to gender equality “and build on it”. It fulfils the positive obligation imposed by Arts. 2 and 3(2) EC Treaty “to eliminate inequalities, and to promote equality, between men and women” in all fields, which is a “task” and an “aim” assigned to the Community by these same EC Treaty provisions. It takes also account of Declaration No 28 annexed to the Amsterdam Treaty, which, in interpreting authentically Art. 141(4) EC, provides that positive measures “should, in the first instance, aim at improving the situation of women”.

«Inequalities» on grounds of sex, whose «elimination» the Treaty requires, are de facto situations which affect mainly women. They violate women’s human rights and maintain their inferior status, as the Court acknowledges and Community institutions constantly deplore. Women are neither a group nor a minority. They are one of the two forms in which the human being is incarnated, present by one half in any group or minority, and they often suffer multiple inequalities. These inequalities are due to prejudices, which have infiltrated economic and social structures and cannot be eliminated without positive action. Positive measures do not constitute discrimination or derogations from the gender equality principle, but are necessary means for its effective implementation, according to the Treaty (Art. 141(4) TEC) and the Convention for the Elimination of Discrimination against Women (CEDAW), which is ratified by all Member States and constantly invoked in Community instruments relating to gender equality and discrimination dealt with by Art. 13 TEC.

EWLA wishes the Convention a big success in their work, which it will follow with great attention. EWLA will shortly present a further contribution.

Brussels, April 2002
For the Board of EWLA
The President
The Vice-president

European Women Lawyers Association
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