a charter of fundamental rights of the european u

7/23/2019 A Charter of Fundamental Rights of the European U

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A Charter of Fundamental Rights of the European Union: Unified Human Rights

protection in Europe

Ken Collinson

European Union Law

Professor Daniela CarusoSpring 2000


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A CHARTER OF FUNDAMENTAL RIGHTS OF THE EUROPEAN UNION:

UNIFIED HUMAN RIGHTS PROTECTION IN EUROPE

Ken Collinson

I. Introduction..1

II. THE INSTITUTIONS JURISDICTIONAL AND PROCEDURAL

DEFICITS.2

A.THE EUROPEAN COURT OF

JUSTICE..2

1. Primary Community Law2

2. Secondary Community Law and Member State Legislation within Community Law33. Member State Legislation outside Community Law...6

4. Procedural Aspects of Protection.8

B.THE EUROPEAN COURT OF HUMAN

RIGHTS.9

1. The Convention9

2. Procedural Aspects of Protection...11


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III. INTERFACE BETWEEN

INSTITUTIONS..12

INTERFACE BETWEEN THE EUROPEAN COURT OF JUSTICE AND THE EUROPEAN COURT

OF HUMAN

RIGHTS

..12

IV. COMMUNITY ACCESSION TO THE EUROPEAN CHARTER OF HUMAN

RIGHTS OR A CHARTER OF FUNDAMENTAL RIGHTS OF THE EUROPEAN

UNION...14

A.COMMUNITY ACCESSION TO THE EUROPEAN CHARTER OF HUMAN

RIGHTS.14

1. Call for Community Accession to the European Convention on Human Rights..14

2. The Arguments in Favor of Accession..153. The Arguments against Accession.18

4. The European Court of Justice Holding: Opinion 2/94.19

B.ACHARTER OF FUNDAMENTAL RIGHTS OF THE EUROPEAN

UNION...20

1. The Charter of Fundamental Rights of the European Union.20

2. Developments of the Treaty of Amsterdam...21

3. The Cologne European Council.224. The Tampere European Council23

5. Council of Europe Report on the Charter of Fundamental Rights of the European

Union.....24

V.CONCLUSION.25

APPENDICES

Appendix IiAppendix II..ii

Appendix III.ii

Appendix IVii


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Appendix V.iii


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I. INTRODUCTION

The European Court of Justice (the ECJ) and the European Court of Human Rights (the

ECHR) have over time developed two distinct legal systems regarding the protection of

fundamental human rights. While the rights protected in many cases overlap, uniform

enforcement of these rights and freedoms has not been realized.1

Through its case law, the ECJ has established jurisdiction over European Community

Law with regard to human rights.2 These rights are based upon the rights as guaranteed by the

European Convention for the Protection of Human Rights and Fundamental Freedoms (the

Convention)3and the constitutional traditions common to all the Member States, and have

become general principles of Community law.4 The ECHR bases its jurisdiction on the Articles

of the Convention. Since all European Union (the EU) Member States are signatories to the

Convention, claims originating within these States could be heard by either Court depending

upon the basis of the claim.5

Until recently, the ECHR respected the monopoly jurisdiction of the ECJ to hear claims

based on the effects of Community law. This has now changed as the ECHR moves to fill the

gaps left by the protective provisions of the Treaty on European Union (the TEU), the Treaty

establishing the European Community (the TEC), and other Community Treaties. The overlap

in interpretive and substantive jurisdiction of the Convention and the additional rights recognized

by the ECJ have led to growing problems of access and jurisdictional conflict. The European

1Jean M. Sera, The Case for Accession by the European Union to the European Convention for the Protection of

Human Rights, 14 B.U. Intl L.J. 151, 171 (1996).2European Community Law is the law set forth in the Community Treaties as interpreted by the ECJ.3European Convention for the Protection of Human Rights and Fundamental Freedoms, Nov. 4, 1950, 213 U.N.T.S.

222, 1950.4Treaty on European Union, February 7, 1992, art. 6(2) (ex Article F).


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Communitys (the EC) proposal to develop a Charter of Fundamental Rights of the European

Union and the Council of Europes6proposal for Community accession to the Convention

leaves competency, jurisdictional and constitutional questions unresolved. In the end, only a true

integration of the European bodies may resolve these problems.

II. THE INSTITUTIONS JURISDICTIONAL AND PROCEDURAL DEFICITS

A.THE EUROPEAN COURT OF JUSTICE

Article 292 (ex Article 219) TEC establishes the ECJs monopoly over all interpretation

and application of Community Treaties. This Article is binding on all EU Member States.

Article 220 (ex Article 164) TEC provides an express provision of power to carry out this

objective. There are, however, three main areas where limitations on the jurisdiction of the ECJ

leave gaps in the protection of fundamental human rights within the Community. The first is the

area of Primary Community law, which is subject to the prerogatives of the Member States

alone. The second area is that of secondary Community law and resulting Member State

legislation that effects rights beyond the scope of Community law protections. The third area is

where Member State legislation is completely outside and independent from Community law.

1. Primary Community Law

The primary Community law of the Treaty itself is not an act of the Community within

the meaning of Article 7 (ex Article 4) and Article 230 (ex Article 173), and is therefore not

subject to the jurisdiction of the ECJ.7 Thus, primary Community law is not reviewable by the

Court for the legality of its provisions. The ECJ only protects the general principles of this

5A.G. Toth, The European Union and Human Rights: The Way Forward, Common Mkt. L. Rev. 34: 491-529 , 496

(1997).6The Council of Europe is an organization based on an international Treaty with 41 signatory States. Its main roleis to strengthen democracy, human rights and the rule of law throughout its member states.


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primary Community law against violation by secondary Community legislation and by Member

State measures based on this secondary Community law.8 The Community itself, therefore,

cannot be brought before the jurisdiction of the ECJ for Treaty provisions and is immune from its

judgements in this area. This obstacle was the central issue in the case ofMatthews, where the

ECJ refused to hear the case based on its lack of review jurisdiction over Treaty rules governing

the election of the European Parliament.9 This exemption from ECJ jurisdiction is the most

problematic obstacle to comprehensive and universal protection of fundamental rights in Europe.

Not only can it prevent redress for human rights violations, but it is also at the center of the most

complex competency issues blocking resolution of European human rights integration.

2. Secondary Community Law and Member State Legislation within

Community Law

Fundamental human rights crept into the protective scope of the ECJ through its case law.

In its early decisions, the ECJ stuck to the explicit provisions of the Treaties and rejected

acknowledgement of national and international laws on fundamental rights.10

The ECJ

eventually articulated an analytical approach that allowed for the consideration of national and

international human rights laws. In the case of Stauder, the ECJ let stand the basis of a claim

founded on a German national constitutional right.11

The decision sidestepped the main

jurisdictional issue by simply holding that the Community act did not violate such a right. This

left the question of the origin of Community fundamental rights open for debate. The Advocate

7Iris Canor,Primus inter pares. Who is the ultimate guardian of fundamental rights in Europe?, 5 Eur. L. Rev., vol.25 No. 1, 3-21, 5 (February 2000).8Id. at 6.9Case [1999] 28 EHRR 361, Matthews v. United Kingdom, February 18, 1999.10See C-Case 1/58, Stork v. High Authority 1959 E.C.R. 17; Cases C-36, 37, 38, and 40/59, Geitling v. HighAuthority 1960 E.C.R. 423; and Case C-40/64, Sgarlata and others v. Commission 1965 E.C.R. 215, [1966] CMLR

314.11Case C-29/69, Stauder v. City of Ulm 1969 E.C.R. 419, [1970] C.M.L.R. 112 (1970).


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General did try to clarify. While not addressing the question of compatibility between

Community and national constitutional law, he stated that the question was the legitimacy of the

Commissions decision in light of the general principles of Community law in force. He

proclaimed that Community law is guided by reference to general qualitative concepts of the

fundamental principles of national law. These fundamental principles form an unwritten

constituent part of Community law and must be observed in making secondary Community

law.12

In the later caseInternationale Handelsgesellschaft, the ECJ clarified its position on the

proper method of analysis when determining the compatibility of Community secondary

legislation and the founding Treaties.13

It held that while constitutional traditions of

fundamental rights have inspired their incorporation as integral parts of the general principles of

Community law, it is this standing as general principles of Community law that guides the

decisions, not the national constitutional traditions.14

The ECJ extended its reference to national

constitutional traditions in the caseNold v. Commission.15

The Court held that it was bound to

draw inspiration from constitutional traditions common to the Member States, and must strike

down measures that are incompatible with fundamental rights recognized and protected by the

Constitutional traditions of those states. It further held that international treaties for the

protection of human rights could also supply guidelines, which the framework of Community

law should follow.16

12Id. at 428.13Case C-11/70, Internationale Handelsgesellschaft v. Einfuhr-und Vorratstelle fur Getreide und Futtermittel 1970

E.C.R. 1125, [1972] CMLR 255 (1972).14Id.15Case C-4/73, Nold v. Commission 1974 E.C.R. 491, [1974] C.M.L.R. 338(1974).16Id.


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This expansion of the jurisdictional basis for the Court was reemphasized and continued.

The ECJ made its first specific reference to the Convention as a source of Community law in the

Rutilicase.17

Here the Court held that express provisions of Community law could have their

base in general principles contained in the Convention. The cases ofJohnson18

andP v. S&

Cornwall19

were also based on this connection. The Courts logic is that these international

declarations represent basic principles to which all the members of the Community had

subscribed. They are, therefore, valuable indicators of the Communitys principles.

On April 5, 1977, the Parliament, Council, and Commission issued a joint declaration on

fundamental rights.

20

The relevant text below confirms and attempts to codify the support for the

ECJs direction in interpretation of fundamental human rights protection within the Community.

THE EUROPEAN PARLIAMENT, THE COUNCIL AND THE COMMISSION,

Whereas the Treaties establishing the European Communities are based on the principle of

respect for the law;

Whereas, as the Court of Justice has recognized, that law comprises, over and above the rulesembodied in the Treaties and secondary Community legislation, the general principles of law and

in particular the fundamental rights, principles and rights on which the constitutional law of the

Member States is based;Whereas, in particular, all the Member States are Contracting Parties to the European

Convention for the Protection of Human Rights and Fundamental Freedoms signed in Rome on 4

November 1950.

HAVE ADOPTED THE FOLLOWING DECLARATION:

1. The European Parliament, the Council and the Commission stress the prime importance they

attach to the protection of fundamental rights, as derived in particular from the constitutions of the

Member States and the European Convention for the Protection of Human Rights andFundamental Freedoms.

2. In the exercise of their powers and in pursuance of the aims of the European Communities

they respect and will continue to respect these rights.

The ECJ put the expansion of its jurisdictional basis in context in the case of Hauer.21

In

that case, a Council Regulation prohibited the applicant from growing grapevines where she

17Case C-36/75,Rutili v. Minister for the Interior1975 E.C.R. 1219, [1976] 1 C.M.L.R. 140, para. 32 (1976).18Case C-410/92, Johnson v. Chief Adjudication Officer, 1994 E.C.R. I-5483, [1994].19Case C-13/94, P v. S & Cornwall County Council, 1996 E.C.R. I-2143.20[1977] OJ C103/1.21Case C-44/79, Hauer v. Land Rheinland-Pfalz 1979 E.C.R. 3727, [1980] 3 CMLR 42 (1980).


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wanted. The German court referred the case to the ECJ, stating that if the Council Regulation

was found to be incompatible with fundamental German constitutional rights, the Regulation

might be inapplicable in Germany. The ECJ stated that assessment based on a particular

Member States legislative or constitutional law would damage the unity and efficacy of

Community law, the Common Market and the Community itself. Following the logic laid out in

previous decisions (Internationale and Nold) and the above joint declaration, the compatibility of

Community provisions would be examined as against Community law which is based on the

national views on fundamental rights. In deciding the case, the ECJ referred to the property

rights outlined in the Convention. It also made specific reference to the German, Italian, and

Irish Constitutions, and to the legislative provisions of all the Member States.22

Again in this

case, however, a disturbing trend was continued where the ECJ upheld the right to be protected,

but failed to find a significant enough violation of that right to warrant voiding the Regulation.23

The balancing of Community economic objectives against human rights objectives fell in favor

of market factors.

3. Member State Legislation outside Community Law

In the case of Cinetheque, the ECJ held that Member State legislative action that violated

conditions of the Convention could not be adjudicated by the ECJ if the action was taken

pursuant an exception allowed by a Treaty Article.24

In this case, since an exception in Article

30 (ex Article 36) TEC allowed the action by the Member State, the ECJ would consider this act

outside the realm of Community law.25

TheDemirelcase further developed the ECJs view of

22Id.23Jean M. Sera, The Case for Accession by the European Union to the European Convention for the Protection of

Human Rights, 14 B.U. Intl L.J. 151, 159-160 (1996).24Cases 60 & 61/84, Cinetheque v. Federation Nationale des Cinemas Francais [1985] ECR 2605, [1986] 1 CMLR

365.25Id.


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this category of its jurisdiction over protection of fundamental rights.26

In this case a Turkish

woman was forced to leave Germany after her visa expired. The ECJ held that the rights to

family reunification were not covered by Community law. It held that it could not review the

compatibility of national legislation with the Convention if the legislation was outside

Community law. Since there was no community law directing the terms of reunification of

Turkish workers lawfully settled in the Community, the ECJ did not have jurisdiction to

determine the question.27

This case also revealed the jurisdictional gap, whereby the ECJ could

not protect the human rights of non-EU nationals.28

The ECJ eventually reversed its position on violations of fundamental rights based on

exclusions created by Treaty exceptions. InERT, The Greek government legislated a private TV

broadcast monopoly.29

The respondents opened a small station in violation of this statute. They

were taken to court, and as part of their defense they invoked the Convention provision of

freedom on expression.30

The ECJ reiterated that when national rules fall within the scope of

Community law, and reference is made to the ECJ for preliminary ruling, it may interpret and

consider the compatibility of that national rule with the principles of the Convention. In this

case, the justification to violate Article 10 of the Convention was based on the exceptions

provided by Articles 46 (ex Article 56) TEC and 55 (ex Article 66) TEC. Since these exceptions

were now to be considered within the scope on Community law, the national rule could be

reviewed for compatibility with the Convention principles expressions in Community law. The

Court also held that it would provide all the interpretation of the Convention needed by national

26Case C-12/86, Demirel v. Stadt Schwabisch Gmund 1987 E.C.R. 3719, [1989] 1 CMLR 421(1989).27Id.28A.G. Toth, The European Union and Human Rights: The Way Forward, Common Mkt. L. Rev. 34: 491-529,29Case C-260/89, Elliniki Radiophonia Tileorassi AE v. Dimotiki Etairia Plitoforissis and Sotirios Kouvelas [1991]ECR I-2925, [1994] 4 CMLR 540.30European Convention for the Protection of Human Rights and Fundamental Freedoms, Nov. 4, 1950, 213

U.N.T.S. 222, 1950, art. 10.


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courts. This not only exceeds the ECJs mandate, but it is in direct conflict with the ECHR.31

The ECJ ruled that exceptions provided by Treaty Articles are only available when the rules to

be applied under them comply with the fundamental rights protections of the Convention and

constitutional traditions as expressed in Community law. When referred back to the national

court, that court must decide the case based on these considerations.32

While these decisions

identified and attempted to correct jurisdictional weaknesses, the ECJs competency became

even shakier.

4. Procedural Aspects of Protection

Member States and Community institutions have a number of Treaty provisions through

which they may reach the ECJ. Access, enforcement and procedural mechanisms are provided

through Articles 225 (ex Article 168a) TEC to 245 (ex Article 188) TEC. They may challenge

any secondary Community law or Member State action for violating Treaty provisions.33

Individuals may bring a claim for violation of fundamental rights by Community directives or

regulations to the ECJ under Article 230 (ex Article 173) TEC. The same Article imposes a

severe restriction, however, by requiring that the Community act must be addressed against or be

of direct and individual concern to the applicant. Article 232 (ex Article 175) TEC also requires

an individual to first direct a request for relief to the institution that promulgated the offending

decision or regulation. Only after that institution fails to act may the application be forwarded to

the ECJ.

31A.G. Toth, The European Union and Human Rights: The Way Forward, Common Mkt. L. Rev. 34: 491-529 , 496

(1997).32Case C-260/89, Elliniki Radiophonia Tileorassi AE v. Dimotiki Etairia Plitoforissis and Sotirios Kouvelas 1991ECR I-2925, [1994] 4 CMLR 540 (1994).33Jean M. Sera, The Case for Accession by the European Union to the European Convention for the Protection of

Human Rights, 14 B.U. Intl L.J. 151, 158 (1996).


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Individuals may also seek remedy before national courts, when Member State legislation

allegedly violates Treaty provisions. The national court may refer the case to the ECJ under

Article 234 (ex Article 177) TEC. But the rules of standing before national courts may prevent

valid claims from ever reaching the ECJ, and there is no guarantee that these courts will make

the reference even if they hear the case.34

Another important practical limitation on the

individuals access to protection is the lack of any legal aid program.

Beyond the cumbersome structure of individual protections are other institutional reasons

for a more comprehensive approach to European human rights protection. While the Treaty of

Amsterdam states in its Title VI the objective of providing an area of freedom security and

justice, it places no requirement on the Third Pillar to act within the rules of human rights

applicable to the First Pillar. The expansion of police and criminal enforcement powers within

the Third Pillar increases the need for human rights regulations within that institution. There are

also express provisions and jurisprudence that excludes Member State legislation from the

jurisdiction of the ECJ. Article 35 (ex Article K.7) TEU excludes Member State police and

internal security from the jurisdiction of ECJ preliminary rulings. This exempts a major body of

legislation coming from one of the Community pillars.

B.THE EUROPEAN COURT OF HUMAN RIGHTS

1. The Convention

Organized to enforce protection of human rights in Europe, the Convention has been

ratified by 41 nations, including all EU Member States.35 The Convention sets out the ECHRs

jurisdiction over all matters concerning the interpretation and application of the Convention and

34Philip Alston and J.H.H. Weiler,An Ever Closer Union in Need of a Human Rights Policy: The European Unionand Human Rights, Harvard Jean Monnet Working Paper 1/99 (1999).35 www.echr.coe.int/eng/INFORMATION%20NOTES/infodoc%20revised%202.htm.


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the protocols thereto.36

Like the ECJs relationship to Community law, the ECHR is also

granted exclusive jurisdiction over its interpretation and application of the Convention.37

This

Article of Protocol 11, now ratified by all 41 states, sets up a direct conflict between the two

courts. When a Member State that is a party to both the Convention and the EU has a case in its

national Court that concerns both Community law and the Conventions protections, the State is

technically precluded by each agreement from submitting the issue to the alternate agreements

judicial body.

Another difficulty found in the Convention is Article 46 which states that rulings of the

ECHR bind only the High Contracting States, the signatory Member States. While all the

Communitys Member States are signatories, the EU itself is not. The ECHR has held that

Convention parties are responsible for all acts and omissions of their domestic organs whether

the basis is domestic or international obligations.38

This ostensibly creates liability for EU

Member States that implement Community legislation in violation of the convention, while

leaving the Community itself untouchable. Through regulations, the Community may violate

Convention protections without the intermediary of a Member State. Under these circumstances,

the ECHR would be completely without jurisdiction to enforce the Convention.39

InMatthews, the ECHR circumvented this jurisdictional gap by extrapolating from the

principles of Article 1 of the Convention, where Member States commit to be bound to the

Convention and attached liability to the Member State within which the violation occurred. The

ECHR determined that the power underlying the States commitment to be bound emanated from

36European Convention for the Protection of Human Rights and Fundamental Freedoms, Nov. 4, 1950, 213

U.N.T.S. 222, 1950, art. 32.37European Convention for the Protection of Human Rights and Fundamental Freedoms, Nov. 4, 1950, 213

U.N.T.S. 222, 1950, art. 55.38Id.39Jean M. Sera, The Case for Accession by the European Union to the European Convention for the Protection of

Human Rights, 14 B.U. Intl L.J. 151, 153.


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the sovereign power of the Member States. It held that accession by Member States to the

Community Treaties was a transfer of some of the Member States sovereign power to the

institutions of the Community. This created a new entity that had the power to effect the human

rights protected by the Convention. The ECHR held that the Member States commitment to be

bound to the Convention should also transfer to the Community, since Community power was

merely an extension of the sovereign power of the Member States.40

2. Procedural Aspects of Protection

The Convention provides enforcement mechanisms for individuals, groups and Member

States that believe Convention rights have been violated. Member States may bring claims of

Convention violations against each other directly to the Court at Strasbourg, under Article 33 of

the Convention. Individuals may bring claims against Member States under Article 34.

Applications are assigned to either a three-member Committee or a Chamber. Committees may

strike an application as inadmissible or refer them on to a Chamber. The Chamber examines the

applications to determine admissibility and merit. In cases which raise serious interpretational

questions or where departure from established precedent is likely, the case may be referred by a

Chamber, up to a Grand Chamber. Both levels of Chambers decide cases by majority vote.

Parties wishing to challenge the judgement of a Chamber may request referral of the case to the

Grand Chamber. The decision of the Grand Chamber is final.41

In an attempt to lessen the procedural burden, the Council of Europe has now developed

legal aid programs for those unable to afford representation for their claims.42

It has also

established procedures whereby third parties relevant to the proceedings may be invited to

40Case [1999] 28 EHRR 361,Matthewsv. United Kingdom, February 18, 1999.41 http://www.echr.coe.int/eng/INFORMATION%20NOTES/infodoc%20revised%202.htm42Id.


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submit written comments or participate under Convention Article 36.43

Still contributing to the

complainants burden, is the potentially arduous admissibility requirement of complete

exhaustion of all domestic remedies under Article 35.

III. INTERFACE BETWEEN INSTITUTIONS

INTERFACE BETWEEN THE EUROPEAN COURT OF JUSTICE AND THE EUROPEAN COURT

OF HUMAN RIGHTS

Through the ad hoc inclusion of the rights guaranteed by the Convention, the ECJ has

tried to secure for itself jurisdiction over an area of law previously monitored by the ECHR.

This sets up a situation where the ECJ may compete with the ECHR for competence over areas

concerning some fundamental human rights and EU Member States.44

While this could lead to

broader and greater protection of these rights, there is a serious concern that ECJ competency

may dilute the power and effect of the ECHR in protecting these rights.45

The ECJ is viewed by

many as building a strong rhetorical base for the protection of fundamental rights, while being

substantively biased in favor of market rights and commercial interests at the expense of

genuinely fundamental human rights.46

In the area concerning Community law and its possible conflict with the Convention, the

commitments made to the Convention create liability for EU Member States. As has been

shown, this can put Member States at odds with Community interests. The ECJ holds that

Article 220 (ex Article 164) TEC establishes that it alone has exclusive province over decisions

concerning inter-Community power balances. But under Article 3, Protocol 1 of the Convention,

if a body of the Community is determined by the ECHR to be the legislative body of the

43http://www.coe.fr/eng/legaltxt/155e.htm.44A.G. Toth, The European Union and Human Rights: The Way Forward, Common Mkt. L. Rev. 34: 491-529, .45Id.


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Community, the ECHR has jurisdiction over acts promulgated by that body. Since Article 220

(ex Article 164) TEC does not control the ECHR, the ECHR could still decide a fundamental

question of the Communitys internal power structure.

InMatthews, the ECHR directly confronts this problematic jurisdictional clash by

holding that the European Parliament is sufficiently involved in the specific legislative process

to constitute part of the legislature of the EU.47

Despite its politically tactful wording, the

ECHR finds that the Community legislation has violated the Convention.48

ThroughMatthews,

the ECHR has for the first time subjected primary Community law to its jurisdiction. A subtle

distinction offered in ECHR comments is that the ECHR bases decisions on the effectson human

rights, rather that the legitimacy of the legislation itself.

InKennedy, the ECHR found jurisdiction to review the effects of secondary Community

law.49

It held that when secondary Community law was implemented through national

legislation, the implementing Member State is still bound by its commitments to the

Convention.50

The ECHR included Community regulations and their direct effect, since they

automatically became part of the law of the Member State. This makes clear the situation where

the Community remains immune from sanctions for human rights violations caused by

Community law.

The ECHR may now be moving back into what it sees as its rightful territory. It has been

passive while the ECJ used the Convention and the ECHR jurisprudence to justify its holdings in

the area of fundamental human rights. Following the EUs debates and shifts in policy on the

46Paul Craig & Grainne De Burca,EU Law: Text, Cases, and Materials, at 337.47Iris Canor,Primus inter pares. Who is the ultimate guardian of fundamental rights in Europe?, 5 Eur. L. Rev.,

vol. 25 No. 1, 3-21, 16 (February 2000).48Matthews v. United Kingdom, App. No. 24833/94, Eur. Ct. H.R., 28 E.H.R.R. 361, February 18, 1999.49Iris Canor,Primus inter pares. Who is the ultimate guardian of fundamental rights in Europe?, 5 Eur. L. Rev.,

vol. 25 No. 1, 3-21, 10 (February 2000).50Id. at 21.


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incorporation of the Convention into the EU or the EUs accession to the Convention, the ECHR

may now be acting strategically to force the Communitys hand.

IV. COMMUNITY ACCESSION TO THE EUROPEAN CONVENTION ON HUMAN

RIGHTS OR A NEW EUROPEAN CHARTER OF FUNDAMENTAL RIGHTS

A.COMMUNITY ACCESSION TO THE EUROPEAN CONVENTION OF HUMAN RIGHTS

1. Call for Community Accession to the Convention

While the ECJ expanded the language of protection through its decisions and Treaty

interpretations, there were increasing calls for stronger substantive support and possible

accession to the Convention. Recommendations from expert groups for incorporation of or

accession to the Convention were followed by official institutional support for such action.51

The Commission, the Community institution empowered through Article 211 (ex Article 155)

TEC to form recommendations and opinions, proposed accession of the Community to the

Convention in 1978.52

The European Parliament reiterated its support of accession to the

Convention in three resolutions, on January 18, 1994, on May 4, 1994, and on April 11, 1995.

Finally, the Council of the European Union (the Council) requested an opinion

concerning the proposed accession, from the ECJ pursuant Article 300(6) (ex Article 228(6))

TEC. This Article provides that an Opinion of the ECJ may be sought to determine the

compatibility of an envisaged agreement with the provisions of the Treaty, in this case as to

whether the European Community could agree to accede to the Convention without violating the

TEU.53

The Council held that no negotiations could take place before this question of

51Comit des Sages: March 1996.52Memorandum adopted by the Commission, 4 April 1979, Bulletin of the European Communities, Supp. 2/79.53European Court Reports, Opinion 2/94 of 28.3. 1996, I-1759, I-1760.


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compatibility was answered.54

It proposed that the Community would agree to submit to the

machinery for individual petitions and inter-State applications; but that actions between the

Community and its Member States would have to be excluded in recognition of the monopoly

conferred on the ECJ for such matters, by Article 292 (ex Article 219) TEC.55

2. The Arguments in Favor of Accession

The arguments in favor of accession were put forth by the Commission, the Parliament

and the Belgian, Danish, Finnish, German, Greek, Italian and Swedish governments, with the

Austrian government presenting a subsidiary argument. The main argument was that in the

absence of specific provisions, Article 308 (ex Article 235) TEC provides the legal basis for

appropriate measures; in this case, accession.56

They assert that the conditions necessary for

the application of Article 308 (ex Article 235) TEC, the necessity to act for the attainment of

a Community objective in maintaining the operation of the common market were met.57

The

Commission argued that ECJ jurisprudence holds that the Community objectives may be found

in the preamble of the Treaty.58

The preamble of the Single European Act (the SEA) makes

reference to the Convention and the respect for human rights. The Parliament also argued that

the objectives sought through accession to the Convention are Community objectives under the

meaning of Article 308 (ex Article 235) TEC, thus allowing accession as an appropriate action.59

Article 2 (ex Article B) TEU and Article 17 (ex Article 8) TEC establish the Community

objective of protecting fundamental rights to Union citizens.60

The Parliament also argued that

54Id..55Id.56Id. at I-1759, I-1773.57Id.58Case C-43/75Defrenne[1976] ECR 455.59European Court Reports, Opinion 2/94 of 28.3. 1996, I-1759, I-1773.60Id.


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the international judicial control of the ECHR must apply uniformly not only to the Member

States, as current signatories of the Convention, but also to the Community and the ECJ.61

The governments in favor of accession further noted that the protection of human rights is

a general horizontal principle applying to all the activities of the Community and that such

protection is essential for the proper functioning of the common market.62

They continued that

the roles of the Convention and the general principle of human rights protection is embodied in

the preamble of the SEA, the preamble of the TEU, and Articles 11 (ex Article J.1), 30 (ex

Article K.2) and now deleted Article F(2) TEU.63

There is also mention of Article 130u(2) and

its objective of respecting human rights in development programs. The Italian government adds

the salient point that all the Member States of the Community have submitted to the international

machinery of the Convention and the ECHR. Community submission to the same authority and

machinery would restore the balance originally envisioned by the Member States.64

The arguments purporting that accession is compatible with Articles 220 (ex Article 164)

and 292 (ex Article 219) of the TEC, were put forth by the Commission, the Parliament, and the

Austrian, Belgian, Danish, German, Finnish, Greek, Italian and Swedish governments. Article

220 (ex Article 164) TEC declares that the ECJ has the power to interpret and apply Community

law. Article 292 (ex Article 219) TEC restricts Member States and establishes the ECJ as the

sole adjudicator of disputes concerning Community law. The Commission argued that the

Convention simply provides classic international-law control machinery and that the ECHR

would have no direct effect on the Communitys internal legal order. It asserts that the ECHR

would not decide on the division of competence between the member states and the Community.

61Id.62Id.63Id. at I-1774.64Id.


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It also asserts that the Convention simply provides a minimum standard. Finally, the

Commission argued that since the Convention is compatible with the constitutional principles of

the Member States, it must be compatible with Community law.65

In its support, the Parliament referred again to Opinion 1/91, where the ECJ held that the

Community has the power to submit to jurisdiction of an international court.66

Submission to the

ECHR would be in keeping with the Communitys development of human rights as fundamental

Community objectives. To this end, Parliament had previously issued resolutions noting the

need to be able to bring a direct action in an international court to examine the human rights

effects of Community acts.

67

The Belgian government argued that accession would not violate

ECJ exclusivity, by noting that Article 62 of the Convention allows for the exclusion of actions

between the Community and its Member States from ECHR jurisdiction.68

The Article provides

an allowance for previously ratified treaties. The Belgian government also argued, however, that

complete independence from oversight on human rights issues was not desirable.

The governments also argued that the Community had the authority to accede so long as

the manner by which it achieved the accession did not impinge upon the autonomy of the

Community legal order or the ECJs jurisdictional monopoly, thus leaving the mandate of

Articles 220 (ex Article 164) and 292 (ex Article 219) intact.69

An implicit collateral argument

put forth by the Swedish government was that without some sort of proposed agreement, the ECJ

could not possibly decide the accession to be incompatible with Community law since any

agreement could contain terms to avoid these issues. A special agreement to keep disputes

65Id. at I-1777.66Id.67Id.68Id. at I-1778.69Id. at I-1779.


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between Member States and the Community under the ECJ jurisdiction could be included.70

The

Danish government added that the Community would only be considering Convention case-law

in the area of human rights and that since that case-law already influences the ECJ, accession

would be of no practical difference.71

3. The Arguments against Accession

The arguments against accession were put forth by the French, Portuguese and Spanish

governments with Ireland and the United Kingdom. They argued that there are no provisions

granting the alleged power in either Treaty, and that there is therefore no legal basis. Their

position is that the now deleted Article F(2) TEU simply granted constitutional status to the

existing human rights case law. The Article authorizes protection of human rights only through

these general principles of Community law.72

They object to the invocation of the powers of

Article 308 (ex Article 235) TEC arguing that Articles 2 and 3 TEC do not contain such a human

rights objective. They also argue that the rights and protections outlined in the Convention have

already been incorporated into Community law. They state that the ECJ has already upheld all

the rights enumerated in the Convention.73

Since Community law already protects the rights in

the Convention and provides individuals with remedies, accession is not necessary.

The arguments purporting that accession is incompatible with Articles 220 (ex Article

164) and 292 (ex Article 219) TEC, were put forth by the French, Portuguese and Spanish

governments and Ireland and the United Kingdom. The Spanish government noted the

Convention mechanisms that establish inter-state and individual petitions, the ECHRs

jurisdiction over interpretation of the Convention, the binding character of the decisions, the final

70Id. at I-1780.71Id. at I-1779.72Id. at I-1775.73Id.


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nature of the judgements and the obligation to abide by them. It also emphasized the oversight

granted to the Committee of Ministers and submission to the ECHR for all interpretation and

application of the Convention. They concluded that the organs of the Convention would

examine the legality of Community law, not just interpret it.74

The French government raised the

issue of prior exhaustion of domestic remedies in actions open to individuals. It found that the

limited access to the ECJ is incompatible with the broader access to the Convention organs.75

4. The ECJ Holding: Opinion 2/94

The ECJ noted that Article 5 (ex Article 3(b)) TEC states that the Community shall act

within the limits of the powers conferred upon it by [the] Treaty and of the objectives assigned to

it therein, and that it has only those powers which have been conferred upon it.76

The

Community normally acts on the basis of specific powers that may either be expressed or

implied through clearly articulated provisions. The conferred powers sought here are allegedly

vested through Article 308 (ex Article 235). That Article provides that the ECJ may, in the

absence of express provisions, use general conferred powers. In order to invoke such powers

they must be necessary to enable the Community to attain an objective laid down by the

Treaty.77

While the ECJ recognized the principle of the conferred power of the Community,78

it

drew the line at any act that would serve as a basis for widening the scope of Community

powers beyond the general framework created by provisions of the Treaty as a whole; those acts

that would in effect amend the Treaty.79

74Id. at I-1781.75Id.76Id. at I-1787.77Id.78Id. at I-1061.79Id.


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The ECJ found that accession to the Convention would require integration of all

provisions into the Community legal order, and that such modification would be of constitutional

significance. It found no basis for asserting that any Community Treaty provision conferred a

general power to create rules on human rights or to enter into international Conventions in this

area.80

It further held that such modification was beyond the scope of powers conferred by the

Treaty, even through Article 308 (ex 235) TEC. The ECJ noted the importance of human rights

to the Community, its institutions and the Member States. It also noted the doctrinal significance

of reference to human rights in the preamble to the SEA, the preamble to and Articles F(2), 12

(ex Article J.1(2)) and 30 (ex Article K.2(1)) of the TEU, and references to the Convention itself.

It finally found, however, that these rights were not enshrined in the Treaty in a way that gave

conferred power under Article 308 (ex Article 235) TEC to enter into an international agreement

with constitutionally significant effects.81

The final word from the ECJ was that [a]s

Community law now stands, the Community has no competence to accede to the European

Convention for the Protection of Human Rights and Fundamental Freedoms.

B. ACHARTER OF FUNDAMENTAL RIGHTS OF THE EUROPEAN UNION

1. The Charter of Fundamental Rights of the European Union

Following the ECJ Opinion, an Expert Group was appointed by the European

Commission and composed of eight academic experts, chaired by Professor S. Simitis. They

were charged with reviewing the status of fundamental social rights in the treaties, and their

relations to other legal and constitutional matters.82 Specifically, the group was asked to review

the possibility of including a Bill of Rights in the next Treaty revision. The group designed ten

80Id. at I-1787.81Id. at I-1789.


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recommendations for achieving explicit recognition of fundamental rights in the European

Union. The recommendations can be found in Appendix I.

The Expert Group concluded that the recognition of fundamental rights should be based

on the Convention. Through case law, the Convention has become a common Bill of Rights.83

The rights embodied in the Convention and its Protocols should be incorporated into

Union/Community law. There must also be added clauses detailing and complementing the

Convention. The enumeration of these rights should be inserted into a special part or under a

particular title of the Treaties.84

The recommended list of enumerated rights can be found in

Appendices II and III.

The ECJ has repeatedly confirmed that the Convention is an essential element of

Community law. To limit ECJ jurisdiction to the first pillar, ignores the reality of the other

pillars impact on the fundamental rights of individuals. The development of these ECJ

jurisdictional limitations runs counter to the development of an ever closer union of European

peoples and a common constitutional order.85

To resolve these problems, the jurisdiction of the

ECJ must be clearly defined and uniformly distributed across all three pillars.

2. Developments of the Treaty of Amsterdam

The Treaty of Amsterdam establishes a clearer recognition of a general principle of

fundamental rights protection by the EU. It affirms the EUs commitment to human rights and

fundamental freedoms through Article 6(1) (ex Article F(1)) TEU and social rights through the

Preamble. Through Article 6(2) (ex Article F(2)) TEU it stresses respect for the rights

82Report of the Expert Group on Fundamental Rights, Affirming Fundamental Rights in the European Union: Time

to Act, Brussels, February 1999, (www.steff.suite.dk/news.htm).83Id.84Id.85Id. at 9.


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enumerated in the Convention, the common constitutional traditions and general principles of

Community law.

The Treaty also has changed the jurisdiction of the ECJ in a manner that affects the

protection of human rights. The ECJ, through Article 46 (ex Article L) TEU, now has

jurisdiction that empowers it to enforce the observation of Article 6(2) (ex Article F(2)) TEU by

the Community institutions.86

Except for actions covered by Article 35 (ex Article K.7) TEU

(preliminary rulings on the validity or interpretation of decisions, Conventions and implementing

measures under Title VI) or Article 40 (ex Article K.12) TEU (inter-state cooperative

agreements), the ECJs jurisdiction is essentially restricted to the Community law of the first

pillar.87

Under Article 46 (ex Article L) TEU, the ECJ has the power to give preliminary rulings

on the legality, validity and interpretation of Council decisions under Article 29 (ex Article K.1)

TEU (providing citizens with a high level of safety within an area of freedom, security and

justice) and Article 34(2) (ex Article K.6) TEU (promote cooperation contributing to

Community objectives), and to hear disputes between Member States.88

3. The Cologne European Council: June 3-4, 1999

As an alternative to outright accession to the Convention, the European Council decided

that in order to make the Unions fundamental rights more evident they should be consolidated

into a Charter. It adopted the European Council Decision on the Drawing Up of A Charter of

Fundamental Rights of the European Union.89

It began with the declaration that the protection

of fundamental rights was a prerequisite for the legitimacy of the Union and that this relevance

and importance should be more visible to the citizens. The Council declared that the Charter

86Id. at 7.87Id.88Id.89Presidency Conclusions, Cologne European Council, 3 and 4 June, 1999, SN 150/99 CAB EN 18 (44).


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should contain the rights guaranteed by the Convention and the constitutional traditions of the

Member States. There should also be an account of the rights outlined in the European Social

Charter and the Community Charter of the Fundamental Social Rights of Workers.90

Recommendations on who should make up the members of the drafting body were also made.

They include: Heads of State and Government, the President of the Commission, members of the

European and national Parliaments, observers from the ECJ, and presenters from the Economic

and Social Committee, the Committee of the Regions, social groups and experts.91

The text of

this Decision appears at Appendix IV.

4. The Tampere European Council: October 15-16, 1999

The Cologne Council was built upon by the Tampere European Council Presidency

Conclusion where the commitment to the development of an area of freedom, security and

justice in the European Union was reiterated. It declared that the fundamental freedoms

respected within the Union must be extended to all people within the Union, not just citizens. It

called for greater access to the courts and a diminution of the incompatibility and complexity of

the various legal and administrative systems.92

It also finalized the methods and members of the

body to draft the Charter. In relevant part, the procedure will be to have the European

Parliament and the Commission join the Council in proclaiming a European Charter of

Fundamental Rights based upon the Draft. The method of Treaty integration would be

considered after this declaration. Two representatives from the Council of Europe will have

observer status, including one from the ECHR. The full member composition, methods and

arrangements are listed at Appendix V.

90Id.91Id. at 45 & Annex IV.92Presidency Conclusions, Tampere European Council, 15 and 16 October, 1999 (28).


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5. Council of Europe Report on the Charter of Fundamental Rights of the

European Union: January 14, 2000

Whereas the European Councils development of this Charter could potentially have

direct impact on the central question of who the adjudicator of European Human Rights may be,

the Council of Europe produced a report expressing its position on the proper development of the

Charter. Their main concern is that variations in the laws between the Convention and a Charter

would lead to two sets of possibly conflicting fundamental rights which would weaken the

ECHR.93

The European Council contends that at the least, citizens of different state, those

within and outside the EU, would have different rights.

The Council of Europe expressed its opinion that adoption of the new Charter does not

rule out accession to the Convention. It points out that the EU already grants protection of a

greater number of diverse rights than the Convention alone. It recommends that the drafting of

the Charter should consider the revised European Social Charter and all of the Articles and

Protocols of the Convention.94

The Council of Europe is concerned that following the

recommendations of the Simitis report would leave a number of important rights out of the

Charter.

As a final list of ways to correct the conflict between the two courts, the European

Council recommended that the Union first make the necessary Treaty amendments so that the

Union itself can accede to the Convention.95

It specifically calls for the adoption of the entire

Convention, including all of its protocols. It proposes that that the ECHR keep competence to

interpret the Convention, while the ECJ would keep its competence over the other rights

93Council of Europe Parliamentary Assembly Report, Charter of Fundamental Rights of the European Union, 14January 2000, Doc. 8611, (http://stars.coe.fr/doc/doc00/edoc8611.htm).94Id. at 12.95Id.


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including in particular the alleged violations of human rights by Community institutions without

Member State intervention.96

The problem of Community immunity from Community

mandated acts of Member States could, claims the Council of Europe, be overcome by the

Communitys accession to the Convention.97

V. CONCLUSION

The competency problems, as they now exist, can no longer be allowed to linger. The

ECJs Opinion 2/94 has severely undermined the legal basis for any protection of human rights

under Community law.98

The jurisdictional immunity of Community institutions for Convention

violations continues, and a deterioration of the comity that has existed between the ECHR and

the ECJ is unavoidable if changes are not made. Proposed solutions range from the original plan

of accession, with added Treaty Amendments, to the enumeration of separate Community rights

in the relevant treaties.99

Ignoring the multitudes of political problems, the main structural

obstacles are clear.

Designing its own set of human rights guarantees and enforcing them through the ECJ

would leave the EU with jurisdictional autonomy and an internally cohesive Community legal

order. However, if EU Member States opt out of the Convention, the potential for divergent

interpretations and inconsistent remedies persist. This dual judicial system would weaken the

authority of the Convention itself.100

Without Treaty Amendments of Constitutional magnitude,

the ECJ would still remain unable to review primary Community law for violations of human

96Id. at 12.97Id. at 13.98A.G. Toth, The European Union and Human Rights: The Way Forward, Common Mkt. L. Rev. 34: 491-529, 492(1997).99See Id., generally.100Id. at 501.


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rights. These fundamental obstacles cannot be overcome through a parallel yet divided pair of

jurisdictions.

Community accession to the Convention could be facilitated through appropriate

Amendments to Community Treaties. Article 303 (ex Article 230) TEC could be amended to

explicitly allow Community accession to the Convention.101

The other articles key to objections

to this path could also be easily worded to allow ECHR jurisdiction over human rights issues.

The remaining and most fundamental issue would be the possibility that the protection of human

rights would be in direct conflict with the objectives of the Community, thus violating the

Treaties.

102

Frequently there are obvious and inherent tensions between economic and human

rights, but the validity and acceptability of a balancing of these interests under Treaty law has

already been demonstrated by the ECJ through its case law. While a shift of jurisdiction to the

ECHR could alter the weighting of these interests, it would not change the fact that the ECJ has

already found its authority to interpret Community law in a way that conforms to the human

rights guarantees of the Convention.

The question comes down to which Europe is growing and which will be subsumed. If

the EU is the way of the future and will eventually be joined by all parties to the Convention,

then an approach leading to the absorption of the Convention by the Community should be

pursued. Appropriate interim measures should not impede progress toward this end. If,

however, the Convention is determined to be the dominant and future protector of human rights

in Europe, the mechanisms of accession should be adopted.

101Id. at 503.102Id. at


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APPENDIX I

1. A comprehensive approach: The aspirations of the Union depend upon the ability

of the people to realize them. The guarantee of fundamental human and social

rights is the guarantee of the Unions success.

2.

Range of application: These guarantees must apply to all people present in theUnion, not just citizens.

3. Visibility: In order to realize their goals, people must be aware of the rights they

possess. The present lack of visibility violates the principle of transparency.Concealing and rendering incomprehensible the fundamental rights so clearly

enumerated in national constitutions and international treaties must be ended.

4. Justicability: There must be a comprehensive legal procedure based on clearlyenumerated rights and remedies. The protection of human rights should be a

positive duty of the Union. Directives should create concrete duties from the

general Treaty principles.5. Competence of the European Union and its Member States: There must be a

coordinated standard. The Convention is such a standard.6. Role of the ECJ Relationship to the ECHR: the role of the ECJ must remain

clear. Individuals must be allowed to exercise their rights. Competence of theECJ should not extend into the area of the ECHR without serious consideration.

The ECJ should incorporate the decisions of the ECHR into EU law. The ECJ

could refer questions concerning human rights to the ECHR for interpretation.The mechanism could be similar to Article 234 (ex Article 177) where national

courts may submit questions of interpretation to the ECJ.

7. Organizational Measures: Article 286(2) provides a model of the type ofsafeguard mechanism that could be employed to protect the interests and

competencies of the different bodies. It provides for an independent controlagency to monitor the rules and decisions.

8.

Indivisibility: Both civil and social rights must be explicitly recognized in order to

protect either. The foundation of the social rights already acknowledged, genderand employment rights, is undermined by ignoring the genuine basic significance

of the value and interconnected nature of both social and civil rights.

9. The Explicit Recognition of Fundamental Rights An Open Process:

Reevaluating the issue of what constitute fundamental rights is unnecessary andcounterproductive. The Convention is a comprehensive program of rights which

has become a common European Bill of Rights and should be recognized

officially. Time and effort should not be wasted on developing a new Bill ofRights. The rights in the Convention Articles 2 to 13 and the relevant Protocols

should be incorporated into Community law in their entirety (see Appendix I).

There should also be clauses inserted to detail and complement the Convention(see Appendix II). Other international agreements should be considered as well,

as should all issues that arise over time. The focus on rights must not lead to a

neglect of the policies that drive them.10.

Form and Location: All rights should be set out in a single text for clarity.

They should be inserted into a special part, or a particular Title of the Treaties.


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This placement should reflect the significance of the rights, and unequivocally

state that all activities of the EU must be guided by and in compliance with them.

APPENDIX II

the right to life;

the prohibition of torture, inhuman or degrading treatment, or punishment; the prohibition ofslavery, servitude and forced or compulsory labour; the right to liberty and security;

the right to a fair and public hearing by an independent and impartial tribunal; the right not to be held guilty of any criminal offence on account of any act or omission

which did not constitute a criminal offence under national or international law at the time

when it was committed;

the right to respect for private and family life; the right to freedom of thought, conscience

and religion; the right to freedom of expression; the right to freedom of peaceful assembly and to freedom of association; the right to marry

and to found a family; the right to have an effective remedy in case of a violation of any of these rights and

freedoms; the right to property; the right to vote; and the right to free movement.

APPENDIX III

the right to equality of opportunity and treatment, without any distinction such as race,

colour, ethnic, national or social origin, culture or language, religion, conscience, beliefpolitical opinion, sex or gender, marital status, family responsibilities, sexual orientation, age

or disability;

the freedom of choice of occupation; the right to determine the use of personal data; the rightto family reunion;

the right to bargain collectively, and to resort to collective action in the event of a conflict ofinterests; and

the right to information, consultation and participation, in respect of decisions affecting the

interests of workers.

APPENDIX IV

EUROPEAN COUNCIL DECISION ON THE DRAWING UP OF A CHARTER OF

FUNDAMENTAL RIGHTS OF THE EUROPEAN UNION

Protection of fundamental rights is a founding principle of the Union and an indispensableprerequisite for her legitimacy. The obligation of the Union to respect fundamental rights hasbeen confirmed and defined by the jurisprudence of the European Court of Justice. There appears

to be a need, at the present stage of the Unions development, to establish a Charter of

fundamental rights in order to make their overriding importance and relevance more visible tothe Unions citizens.


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The European Council believes that this Charter should contain the fundamental rights and

freedoms as well as basic procedural rights guaranteed by the European Convention for theProtection of Human Rights and Fundamental Freedoms and derived from the constitutional

traditions common to the Member States, as general principles of Community law. The Charter

should also include the fundamental rights that pertain only to the Unions citizens. In drawing

up such a Charter account should furthermore be taken of economic and social rights ascontained in the European Social Charter and the Community Charter of the Fundamental Social

Rights of Workers (Article 136 TEC), insofar as they do not merely establish objectives for

action by the Union.

In the view of the European Council, a draft of such a Charter of Fundamental Rights of the

European Union should be elaborated by a body composed of representatives of the Heads ofState and Government and of the President of the Commission as well as of members of the

European Parliament and national parliaments. Representatives of the European Court of Justice

should participate as observers. Representatives of the Economic and Social Committee, theCommittee of the Regions and social groups as well as experts should be invited to give their

views. Secretariat services should be provided by the General Secretariat of the Council.

This body should present a draft document in advance of the European Council in December2000. The European Council will propose to the European Parliament and the Commission that,

together with the Council, they should solemnly proclaim on the basis of the draft document a

European Charter of Fundamental Rights. It will then have to be considered whether and, if so,how the Charter should be integrated into the treaties. The European Council mandates the

General Affairs Council to take the necessary steps prior to the Tampere European Council.

APPENDIX V

COMPOSITION METHOD OF WORK AND PRACTICAL ARRANGEMENTS FOR THEBODY TO ELABORATE A DRAFT EU CHARTER OF FUNDAMENTAL RIGHTS,

AS SET OUT IN THE COLOGNE CONCLUSIONS

A. COMPOSITION OF THE BODYi) Members

(a) Heads of State or Government of Member States

Fifteen representatives of the Heads of State or Government of Member States.(b) Commission

One representative of the President of the European Commission.

(c) European Parliament

Sixteen members of the European Parliament to be designated by itself.

(d) National ParliamentsThirty members of national Parliaments (two from each national Parliament) to be

designated by national Parliaments themselves. Members of the Body may be replaced byalternates in the event of being unable to attend meetings of the Body.

ii) Chairperson and Vice-Chairpersons of the Body

The Chairperson of the Body shall be elected by the Body. A member of the EuropeanParliament, a member of a national Parliament, and the representative of the President of


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the European Council if not elected to the Chair, shall act as Vice-Chairpersons of the

Body.The member of the European Parliament acting as Vice-Chairperson shall be elected by

the members of the European Parliament serving on the Body. The member of a national

Parliament acting as Vice-Chairperson shall be elected by the members of national

Parliaments serving on the Body.

iii) ObserversTwo representatives of the Court of Justice of the European Communities to be

designated by the Court. Two representatives of the Council of Europe, including one

from the European Court of Human Rights. iv) Bodies of the European Union to beinvited to give their views

The Economic and Social Committee The Committee of the Regions The Ombudsman

v) Exchange of views with the applicant StatesAn appropriate exchange of views should be held by the Body or by the Chairperson with

the applicant States.vi) Other bodies, social groups or experts to be invited to give their views

Other bodies, social groups and experts may be invited by the Body to give their views.vii) Secretariat

The General Secretariat of the Council shall provide the Body with secretariat services.

To ensure proper coordination, close contacts will be established with the GeneralSecretariat of the European Parliament, with the Commission and, to the extent

necessary, with the secretariats of the national Parliaments.

B. WORKING METHODS OF THE BODY1) Preparation

The Chairperson of the Body shall, in close concertation with the Vice-Chairpersons, proposea work plan for the Body and perform other appropriate preparatory work.

ii) Transparency of the proceedings

In principle, hearings held by the Body and documents submitted at such hearings shouldbe public.

iii) Working groups

The Body may establish ad hoc working groups, which shall be open to all members of

the Body.iv) Drafting

On the basis of the work plan agreed by the Body, a Drafting Committee composed of the

Chairperson, the Vice-Chairpersons and the representative of the Commission andassisted by the General Secretariat of the Council, shall elaborate a preliminary Draft

Charter, taking account of drafting proposals submitted by any member of the Body.

Each of the three Vice-Chairpersons shall regularly consult with the respectivecomponent part of the Body from which he or she emanates.

v) Elaboration of the Draft Charter by the Body

When the Chairperson, in close concertation with the Vice-Chairpersons, deems that thetext of the draft Charter elaborated by the Body can eventually be subscribed to by all the

parties, it shall be forwarded to the European Council through the normal preparatory

procedure.


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C. PRACTICAL ARRANGEMENTS

The Body shall hold its meetings in Brussels, alternately in the Council and the EuropeanParliament buildings.

A complete language regime shall be applicable for sessions of the Body.

a charter of fundamental rights of the european u

Documents