- SIXTH CONTRIBUTION OF EWLA ON THE FUTURE OF THE UNION

Following its previous contributions, EWLA would like to draw attention to the following:

I. The «drafting adjustments» proposed by the Working Group «Charter» affect the substance of the Charter and go beyond the competence of the Convention.

1. In its final Report (CONV 354/02), the Working Group «Charter» underlines that «the whole Charter – includng its statements of rights and principles, its preamble and, as a crucial element, its ‘general provisions’ – should be respected by this Convention and not be re-opened by it». Indeed, the Convention’s mandate is to examine only «whether the Charter should be included in the basic Treaty» (Laeken Declaration). The Convention has no competence to re-open the Charter.

2. However, as very knowledgeable members of the group observed, most of the «drafting adjustments» constitute in fact a re-opening of the Charter; they affect its substance and limit its scope . The justification given by the Report is that it was necessary to clarify that the Charter does not modify the allocation of competences between the Union and the Member States. Yet, as Commissioner A. Vitorino has shown very clearly (Working Document 3), the current text of the Charter in no way affects this allocation.

3. Article 51(1) of the Charter provides for the application of the Charter by the Union and the Member States «in accordance with their respective powers». According to Article 51(2) of the Charter, the latter «does not establish any new power or task for the Community or the Union, or modify powers and tasks defined by the treaties». What could be more clear? The only «adjustment» allowed would be an addition at the end of Art. 51(2) as proposed by Commissioner A.Vitorino (Working Document 9): «powers and tasks defined by other provisions/parts of this treaty». The other additions to Art. 51 proposed by the Report complicate unnecessarily the texts and risk creating uncertainty.

4. Article 52(4) (new) contains a «rule of interpretation», according to which the rights resulting from common constitutional traditions «shall be interpreted in harmony with those traditions». This rule is addressed to national judges only, since the Court determines itself its methods of interpretation. The Court evaluates freely the common constitutional traditions and, with a view to ensuring a high standard of protection to fundamental rights, it does not apply the «lowest common denominator» . However, Art. 52(4), as proposed, risks creating the opposite impression and a big confusion, which may well mean further limitations of the rights in question.

5. Article 52(5) (new) contains a distinction between «rights» and «principles» which disregards the legal nature of the principles. Indeed, according to well-established case law of the Court, principles, whether they are proclaimed by the Treaty (e.g. the principles of free movement of workers, of equal pay, Arts. 39 and 141 TEC) or elaborated by the Court (e.g. the principle of judicial protection and its more particular expressions), constitute rules of Community law of direct effect which create individual rights. By relegating the principles to the rank of rules for the interpretation and review of the lawfulness of national acts, Art. 52(5) disregards their well established legal nature. Moreover, by providing that the principles «may» be implemented by the Union and Member States, this provision gives the impression that principles are not binding norms, which is contrary to the Court’s case law and contradicts Art. 51(1) of the Charter.

6. According to Article 52(6) (new), «full account shall be taken of national laws and practices as specified in this Charter». This is not necessary and risks restricting further the Charter’s rights.

EWLA calls on the Convention to reject all these «drafting adjustments».

7. We consider as opportune only the addition proposed by Commissioner A. Vitorino to Art. 51(2) (see supra No 3) and the following, likewise purely technical, adjustment to Article 53 (which has not been made): «Nothing in this Charter may be interpreted as restricting or adversly affecting human rights and fundamental freedoms recognised […] by other provisions and principles of Union law […]».

II. The future of the Charter and of fundamental rights more generally

a) Any provision relating to amendments of the Charter must contain a strict clause of non regression.

8. The acquis in fundamental rights constitutes the cornerstone of the Union (Art. 6(1) TEU); it defines our European identity. It is the hard core of the acquis communautaire. The EU Treaty requires that the Union «maintain it in full» and «build on» it. Since the Charter is part of this acquis, it is susceptible only of improvement. Consequently, any eventual provision of the new Treaty relating to a future amendment of the Charter must contain an explicit and very strict clause of non-regression.

b) The «incorporation» of the Charter and the enrichment of the Constitutional Treaty.

9. The Charter is an important step towards the guarantee of fundamental rights and we must be grateful to the Convention which has elaborated it. However, while it contains provisions that reflect very well the acquis communautaire, it also has certain gaps and inadequacies in comparison with the acquis. In our previous contributions we have insisted on the latter not because we are in favour of an immediate amendment of the Charter, for which this Convention is not competent, but with a view to:

Underline the necessity to preserve the acquis that the Charter represents, while maintaining in full and developing the other fundamental rights as well, which, although they are an integral part of the acquis communautaire, are not enshrined in or are insufficiently recognised by the Charter;
For this prpose, we have proposed as a modality of «incorporation» a “reference” to the Charter in the Constitutional Treaty, along with all the other sources of fundamental rights recognised by the Court, and we have called to vigilance, so that both the rights of the Charter and the other rights can be effectively applied and developed.

Propose that the Constitutional Treaty be enriched by .certain additions to the objectives of the Union and provisions of direct effect, which will serve as a legal basis for secondary law instruments (e.g; re-wording of Art. 13 TEC; new provisions requiring equal rights for women and men in all fields, protection of maternity and reconciling of family and professional life by both men and women, protection against trafficking and any kind of violence, children’s rights, environment protection) .

c) Effective judicial protection: conditions of access of individuals to the Court; jurisdiction of the Court in all pillars

10. The Court, in UPA, has referred to the legislator of the Union the issue of the conditions of access of individuals to the Court for the annulment of Community acts of general applicability (Art. 230(4) TEC), while recalling that national courts must ensure an effective judicial protection. However, national courts have the power to annul national acts only, not Community or Union acts. Thus, access of individuals to the Court for the protection of all their individual rights, including those of the Charter must be ensured . Furthermore, the jurisdiction of the Court and the full application of Art. 234 TEC must be extended to all three pillars .

EWLA thanks the Convention for its attention and wishes it all the best in bringing its important work to fruition.

Contact: info@ewla.org; www.ewla.org