There is no future for Europe without an effective guarantee of fundamental rights and freedoms for women and men.

INTRODUCTORY NOTE

AFEM, a federation of Greek, French, Italian, Portuguese and Spanish NGOs, welcomes the convocation of the European Convention. AFEM, whose contribution to the work of the first Convention is generally recognised, agrees on the necessity to address the fundamental questions put by the Laeken Declaration, because, as the latter underlines:

“The Union needs to become more democratic, more transparent and more efficient. It also has to resolve three basic challenges: how to bring citizens, and primarily the young, closer to the European design and the European institutions, how to organise politics and the European political area in an enlarged Union and how to develop the Union into a stabilising factor and a model in the new, multipolar world.”

However, the Laeken Declaration does not address itself to the whole population of the Union, but only to “citizens”. In the languages in which there is a masculine and a feminine gender of this term, the Declaration forgets the latter. It also forgets all the other women and men who are on Union soil, several of whom have already acquired rights under EC/EU law.

The terms «woman», «gender», «discrimination», «inequality» do not appear in the Declaration. Õet, gender equality is a «task» and an «aim» of the EC/EU, according to the Treaty, which imposes the positive obligation «to eliminate inequalities and to promote equality between men and women» in all fields (mainstreaming) (Arts. 2 and 3(2) TEC). In complying with this imperative, the first Convention inserted Art. 23 («equality between men and women must be ensured in all fields») in the Charter.

In presenting its first contribution to the debate on the future of the Union, AFEM wishes to draw attention to certain issues of capital importance for this future:

I. Towards a Constitution for European citizens

The Convention has necessarily to base its work on all the principles which constitute the Union’s foundations and to fulfil the requirement “to maintain in full” and to “build on” the acquis communautaire. Fundamental rights and freedoms of women and men and substantive gender equality, in all fields, form an integral part of this acquis (Arts. 2 and 6 TEU, Arts. 2 and 3(2) TEC).

A Constitution worthy of its name must concern the whole population of the Union – men and women citizens and all other women and men who are on Union soil – and it must be based on the above fundamental principles.

As the Laeken Declaration recalls it, any simplification of the treaties and any constitutional text must respect the acquis communautaire, that is to say, in the first place, the fundamental rights and freedoms of women and men deriving fom the EC/EU Treaties and secondary Community law, international treaties ratified by Member States, our common constitutional traditions and the Court’s case law.

II. provisions which a basic treaty should not lack:

An eventual basic Treaty or a Constitution should include, at least, the following provisions:

A. Provisions of the EU Treaty (TEU):
1) The “common provisions” (Articles 1–7 TEU), modified as follows:

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 modified 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 […]».

Justification: It will thus be 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, modified 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 […].»

Justification:
- 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. Paragraphs 1 and 3 of Article 6 should be added. Thus, the Court will be able to review the conformity of these acts to the principles which 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: The Court’s power to review the conformity of Members States acts to paragraphs 1 and 2 of Article 6 TEU should also be added.

3) Article 49 TEU, modified 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».

Justification: It will thus be clear that the respect and guarantee of fundamental rights and freedoms which constitute an acquis communautaire is a conditio sine qua non for accession to the Union. Candidate States must prove not only that they have adapted their legislation, but also that they have taken all necessary measures for the protection and effective implementation of these rights and freedoms.

B. Provisions of the EC Treaty (TEC):
1) Articles 2, 3, 12 and 13 TEC, modified as follows:

Article 13 TEC:
«Without prejudice to the provisions of this treaty relating to discrimination on grounds of nationality, any kind of 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 shall be prohibited.».

Justification: This provision will thus have direct effect and the grounds of discrimination will be mentioned not in an exhaustive, but in an indicative way, 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 international Covenants on civil and political and economic, social and cultural rights, which have also inspired Article 21 of the Charter of fundamental rights of the EU. This provision will thus fulfil the requirement of the Treaty “to maintain in full” the acquis communautaire” relating to the fight against discrimination “and build on it” (Art. 2 TEU).

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.»

Justification: This provision satisfies the requirement “to maintain in full” the acquis communautaire relating to gender equality “and build on it”. It fulfils the positive obligation “to eliminate inequalities, and to promote equality, between men and women” in all fields. This provision is thus necessary for carrying out the “task” and achieving the “aim” imposed by the Treaty (Arts. 2 and 3(2) TEC), account being also taken of Declaration No 28 annexed to the Treaty of Amsterdam.

«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 they 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 the inequalities which they suffer are often multiple. 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 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 dealing with gender equality.

2) AFEM will shortly present to the Convention other proposals, including proposals relating to the express and effective guarantee of social rights.

III. THE FUTURE OF THE CHARTER OF FUNDAMENTAL RIGHTS

AFEM considers the Charter as an important step towards the guarantee of fundamental rights in the Union and wishes to do once more homage to the Convention which elaborated it.

However, in order to reach a decision on the “status” of the Charter, we first have to evaluate its contents, in particular in the light of the acquis communautaire.

The Charter’s objective was to make more “visible” those fundamental rights of men and women which exist in Europe, that is to say, to codify and strengthen, in the first place, the relevant acquis communautaire, without, however, blocking its future development, in conformity with the Treaty imperatives (Article 2 TEU).

AFEM firmly believes that it is necessary to guarantee effectively fundamental rights and freedoms of men and women in the Union and to consolidate this effective guarantee as the Union is being enlarged. This is why it has mobilised itself from the outset of the first Convention’s work and has tried to contribute to it, as much as possible.

The effective guarantee of fundamental rights and freedoms for women and men, at Union and national level, is today more necessary than ever. The Charter should in no way, even indirectly, be an excuse for regression in this matter. Therefore, it should become binding only after having been strengthened. AFEM will present concrete proposals on this subject.

With the reservation of further contributions, AFEM thanks the Convention for its attention and wishes a successful completion of its task.

14 February 2002.

AFEM, 48, rue de Vaugirard – 75006 Paris – Tél : 33.(0)1.43.25.54.98 / Fax : 33.(0)1.43.25.93.87 / E-mail : assafem@aol.com