workshop 17 dezembro - cristina pace - abstract
TRANSCRIPT
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7/29/2019 Workshop 17 Dezembro - Cristina Pace - Abstract
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Projecto - Soberania Ps-nacional: a Unio Europeia rumo a uma identidade
poltica
Cristina Pace - Resumo da apresentao de 17.12.2010 (15/20 min.):
Title
Behind the Charter: transparency, legal security, political participation. The
Charters added value?
Abstract
Since the Treaty of Lisbon came into force on 1 December 2009, the Charter of
Fundamental Rights of the European Union (hereafter the Charter), became legally
binding for the EU and all its Member States. Until that moment the Charters legal
status was uncertain and did not have full legal effect. Starting with the European
Council held in Cologne in 1999; it took a long time, approximately ten years, for the
Charter to get the status of primary law of the EU.1
The European Union must now act and legislate consistently with the Charter and EUs
courts will strike down EU legislations which contravenes it. The Charter applies first
of all to all EU institutions and bodies, which must conform and observe the principles
proclaimed by the Charter. It applies also to the Members States, but only when they are
implementing Union law, thus not extending the competences of the EU beyond the
competences given to it in the Treaties.
The Charter allows bearing on EUs institutions and providing citizens with effective
means of enforcing their rights either in national courts or in the ECJ.
It is also the first European instrument including in a single text all categories of rights:economic, social and cultural rights as well as civil and political; reinforcing
international understandings on the indivisibility of all human rights, democracy and the
rule of law reached at the United Nations Vienna World Conference on Human Rights
of 1993.
From an historical point of view, it is important to notice that the Charter was the end
product of a long debate within Europe over the form which recognition of fundamental
1
The Charter was in fact finally proclaimed on 7 December 2000 during the European Council in Nice,but became legally binding only with the coming into force of the Lisbon Treaty on 1 December 2009.
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rights within the European Community should take. An understanding of this broader
history is vital to an appreciation of several of the subsequent issues. To have an idea
about what reasons are behind the Charter, it is in fact necessary to know something
about its journey.
This paper try to give an answer, even if not complete, to the following questions: What
are the main reasons behind the Charter? Which is the methodology used in order to
obtain the final result and why is it innovative? What is the main difference between the
Charter and the ECHR and the relative field of competence of both ECtHR and ECJ?
What are the main implications following the access of the EU to the ECHR? Is the
Charter really helpful or sufficient in compensating the democratic deficit of the Union,
enhancing the protection of fundamental human rights in the Union, bringing more
transparency, legal security and political participation for European citizens, helping
them to become more conscious of their rights? In a few words: which is the Charters
added value and modernity justifying its necessity and its value?
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Contents
Introduction and Outline.
1 Brief history of the Charter: main steps.
2 Main Reasons behind the Charter: why was the Charter necessary?
3Why the Convention? Which is the methodology used in order to obtain the final
result and why is it innovative?
4 Horizontal issue:relationship with the ECHR, main differences and
similarities.
5 Main implications following the access of the EU to the ECHR.
6The Charters added value: what is new?
7 Conclusions, recommendations and proposals for action.
Bibliography
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Outline
The material in this paper is divided in seven sections.
The first section will give a short overview of the history of the Charter of Fundamental
Rights of the European Union and of the main steps which were put forward, first for its
conception and drafting, then for its discussion and multi-level analysis, lastly for its
final approval and proclamation in Nice in December 2000. The chain of events that
brought the Charter to get the status of primary law of the EU in 2009 will also be
discussed, underlying the reasons why it was not an easy process.
It will be underlined the fact that the Charter, which was written within a short nine-
months timetable, besides being strongly criticised at its outset2, garnered increasing
praise afterwards, especially thanks to the innovative Conventions method, which
despite its apparent complexity, demonstrated all its efficacy and value. 3
Such a method has in fact been considered as much important as the content of the
Charter itself, has been envisaged for the organisation of future debates and, as
highlighted by Florence Deloche-Gaudez in her research, has been considered as one
of the most important innovation in the functioning of the European Union since the
Maastricht Treaty.4
The second section will analyse which are the main reasons behind the need of an
European Charter for fundamental rights, explaining why it was considered as being
necessary since the European citizen seemed to be already well equipped in this respect,
in particular after the adoption of the Council of Europes Convention for the
Protection of Human Rights and Fundamental Freedoms (hereafterECHR), and the
remarkable work conducted by the European Court of Human Rights (hereafter
ECtHR), in Strasbourg during these last sixty years.
Despite the fact that a common European Bill of Rights was already contained in the
ECHR5 and that a corpus of Community fundamental rights could have continued to
2See, for example: "The EU and human rights necessary?", The Economist, 5 February 2000, and
J.H.H. Weiler, "Does the European Union Truly Need a Charter of Rights?", European Law Journal, vol.
6, No. 2, June 2000, p. 95-97.3
The effectiveness of the Conventions method is also compared with the traditional diplomatic method:the intergovernmental conference (ICG).4
Deloche-Gaudez, Florence - The convention on a charter of fundamental rights: a method for the
future?,Research and policy paper, 15. Notre Europe, Paris, France, 2001, foreword.5
The ECHR binds in fact on all 27 EU member states, which are all contracting parties of the ECHR. Theaccession to the ECHR is also a basic condition of accession to the European Union. The political criteria
for accession laid down by the 1993 Copenhagen European Council require candidate countries to have
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develop in the framework of the European Court of Justices (ECJ) law-making
practice, in its regular reference to the rights as codified by the ECHR; this analysis will
show how the European Charter for fundamental rights was still considered necessary,
in order to boost the legitimacy of the European integration, make rights more visible
for the citizen of the Union 6, and compensate the democratic deficit presented as a
permanent defect of European institutions.
The third section will further highlight and describe the role of the Convention in the
drafting of the Charter, its composition, working documents and methodology used in
order to obtain the final result.
It will be especially underlined the role of civil society in this process, able for the first
time to monitor and shape the Conventions debates, thus seemingly meeting the often-
mentioned need to strengthen citizen involvement in European decision-making
procedures.7
A fourth section will analyse the relationship and the main differences between the
ECHR and the Charter. The Charters advocates have in fact pointed out that the
standard of human rights protection of the Charter might well be higher than the
ECHRs standard of protection, usefully complementing the ECHR; bringing together,
within a single act, civil and political rights, as well as economic, social and cultural
rights.8 The Charter even extends the meaning of some traditional rights into new areas
and includes "new rights" or third generation rights, which protect issues of global
concern (environment, bioethics, data protection, governance etc).9 The Charter is
finally believed to be a more extensive and up-to-date declaration of rights for EU
citizens, containing rights that were not envisaged at the time of the ECHR in 1950, the
stable institutions guaranteeing democracy, the rule of law, human rights and the respect for and
protection of minorities.6
As underlined by the conclusions of the European Council of Cologne at the present stage of
development of the Union, it is necessary to establish a charter of these rights in order to anchor their
exceptional importance and their scope in a way which will make them visible for the citizens of the
Union.7
J.H.H. Weiler, The Constitution of Europe, 1999.8
The ECHR is in fact mostly confined to civil and political rights whereas the Charter contains both civiland political rights, on the one hand, and economic, social and cultural rights on the other.9
The inclusion of those rights in the Charter is the result of an intense debate as to the adaptation of
fundamental rights to the challenge of a constantly changing society. As underlined in the Preamble of the
Charter itself: it is necessary to strengthen the protection of fundamental rights in the light of changes insociety, social progress and scientific and technological developments by making those rights more
visible in a Charter.
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ECHR representing only a minimum basis and the ECJ being free to further develop
and go beyond the rights contained in the ECHR.10
The fifth section will analyze which are the main implications following the access of
the EU to the ECHR.
The sixth section will eventually consider which is the Charters added value, if any,
especially in the light of its scope, limitations and applicability, considering the coming
into force of the Lisbon Treaty, which made it legally binding, and the fact that it
contains a basic set of fundamental rights which has been distilled from more than thirty
legal sources which are currently in force.
The final section will eventually discuss some recommendations and proposals for
action, especially in relation to the implementation and follow up of the Charter and to
the necessity of human rights to be monitored in practice as well, bearing on clear rules
regarding possible sanction mechanisms to be used.
10It should be noted that the rights in the ECHR are considered to be a minimum standard of protection. It
is recognized in article 52(3) of the Charter that the EU might provide a higher standard since it provides
that this provision shall not prevent Union law providing more extensive protection. The result of thisprovision could be that the EU and national courts will build on and develop the ECHR rights through the
Charter.