|
Home
>
FINAL ACT
>
A. Declarations concerning provisions of the Constitution
>
12. Declaration concerning the explanations relating to the Charter of Fundamental Rights
|
Previous
Next 
|
|
|
|
|
The Conference takes note of the explanations relating to
the Charter of Fundamental
Rights prepared under the authority of the Praesidium of the Convention which drafted
the Charter and updated under the responsibility of the Praesidium of the European
Convention, as set out below.
|
|
|
|
The explanations referred to are those presented
in the document CONV 828/1/03,
Subject: 'Updated Explanations relating to the text of the Charter of Fundamental Rights'.
CONV 828/1/03/ in turn refers to working
document number 27 from Working Groups II
on the Charter/ECHR.
|
|
|
These explanations were originally prepared under the authority
of the Praesidium of the
Convention which drafted the Charter of Fundamental Rights of the European Union.
They have been updated under the responsibility of the Praesidium of the European
Convention, in the light of the drafting adjustments made to the text of the Charter by that
Convention (notably to Articles 51 and 52 1) and of further developments of Union law.
Although they do not as such have the status of law, they are a valuable tool of
interpretation intended to clarify the provisions of the Charter.
|
|
|
|
The Article texts are presented in Part
II of
the Constitution. In this hypertextual version,
the texts are not duplicated. The original headers in Declaration concerning the
explanations are kept, and the note marks referring to Articles of the Constitution are
here replaced with links to the corresponding Articles presented in Part II. Use the 'back
button' to return to the explanation.
References to other Articles of the Constitution
are inserted as Notes with hypertextual
links to the referenced Article. Notes are marked with the font type '1', and placed
between two lines in the colour 'dark salmon' (as the lines surrounding this comment).
All links are displayed in this colour when your cursor ('pointer') moves over them. |
|
|
|
|
|
|
|
|
|
|
|
The dignity of the human person is not only a fundamental
right in itself but constitutes
the real basis of fundamental rights. The 1948 Universal Declaration of Human Rights
enshrined human dignity in its preamble: "Whereas recognition of the inherent dignity
and of the equal and inalienable rights of all members of the human family is the
foundation of freedom, justice and peace in the world." In its judgment of 9 October 2001
in case C-377/98 Netherlands v. European Parliament and Council, 2001 ECR 7079, at
grounds No 70 - 77, the Court of Justice confirmed that a fundamental right to human
dignity is part of Union law.
It results that none of the rights laid down in this Charter
may be used to harm the dignity
of another person, and that the dignity of the human person is part of the substance of
the rights laid down in this Charter. It must therefore be respected, even where a right is
restricted. |
|
|
|
|
1. Paragraph 1 of this Article is based on the first sentence
of Article 2(1) of the ECHR,
which reads as follows: "1. Everyone's right to life shall be protected by law…"
2. The second sentence of the provision, which referred to
the death penalty, was
superseded by the entry into force of Article 1 of Protocol No 6 to the ECHR, which
reads as follows: "The death penalty shall be abolished. No-one shall be condemned to
such penalty or executed." Article 2(2) of the Charter 2 is based on that provision.
3. The provisions of Article 2 of the Charter 1
correspond to those of the above Articles of
the ECHR and its Protocol. They have the same meaning and the same scope, in
accordance with Article 52(3) of the Charter 3. Therefore, the "negative"
definitions
appearing in the ECHR must be regarded as also forming part of the Charter:
(a) Article 2(2) of the ECHR:
"Deprivation of life shall not be regarded as inflicted
in contravention of this article when it
results from the use of force which is no more than absolutely necessary:
(a) in defence of any person from unlawful violence;
(b) in order to effect a lawful arrest or to prevent the
escape of a person lawfully
detained;
(c) in action lawfully taken for the purpose of quelling
a riot or insurrection."
(b)Article 2 of Protocol No 6 to the ECHR:
"A State may make provision in its law for the death
penalty in respect of acts committed
in time of war or of imminent threat of war; such penalty shall be applied only in the
instances laid down in the law and in accordance with its provisions…"
|
|
|
|
1 Article II-62 of the Constitution.
2 Article II-62(2) of the Constitution.
|
|
|
Right to
the integrity of the person
|
|
1. In its judgment of 9 October 2001 in case C-377/98 Netherlands
v. European
Parliament and Council, 2001 ECR 7079, at grounds No 70, 78 -80, the Court of Justice
confirmed that a fundamental right to human integrity is part of Union law and
encompasses, in the context of medicine and biology, the free and informed consent of
the donor and recipient.
2. The principles of Article 3 of the Charter 1
are already included in the Convention on
Human Rights and Biomedicine, adopted by the Council of Europe (ETS 164 and
additional protocol ETS 168). The Charter does not set out to depart from those
principles, and therefore prohibits only reproductive cloning. It neither authorises nor
prohibits other forms of cloning. Thus it does not in any way prevent the legislature from
prohibiting other forms of cloning.
3. The reference to eugenic practices, in particular those
aiming at the selection of
persons, relates to possible situations in which selection programmes are organised
and implemented, involving campaigns for sterilisation, forced pregnancy, compulsory
ethnic marriage among others, all acts deemed to be international crimes in the Statute
of the International Criminal Court adopted in Rome on 17 July 1998 (see its Article
7(1)(g)). |
|
Prohibition
of torture and inhuman or degrading treatment or punishment
|
|
The right in Article 4 1 is the right guaranteed by Article 3
of the ECHR, which has the
same wording: "No one shall be subjected to torture or to inhuman or degrading
treatment or punishment". By virtue of Article 52(3) of the Charter 2, it therefore has the
same meaning and the same scope as the ECHR Article.
|
|
|
|
1 Article II-64 of the Constitution.
|
|
|
Prohibition
of slavery and forced labour
|
|
1. The right in Article 5(1) and (2) 1
corresponds to Article 4(1) and (2) of the ECHR,
which has the same wording. It therefore has the same meaning and scope as the
ECHR Article, by virtue of Article 52(3) of the Charter 2 . Consequently:
– no limitation may legitimately affect the right provided
for in paragraph 1;
– in paragraph 2, "forced or compulsory labour"
must be understood in the light of the
"negative" definitions contained in Article 4(3) of the ECHR:
"For the purpose of this article the term "forced
or compulsory labour" shall not include:
(a) any work required to be done in the ordinary course of
detention imposed according
to the provisions of Article 5 of this Convention or during conditional release from such
detention;
(b) any service of a military character or, in case of conscientious
objectors in countries
where they are recognised, service exacted instead of compulsory military service;
(c) any service exacted in case of an emergency or calamity
threatening the life or well-
being of the community;
(d) any work or service which forms part of normal civic
obligations."
2. Paragraph 3 stems directly from human dignity and takes
account of recent
developments in organised crime, such as the organisation of lucrative illegal
immigration or sexual exploitation networks. The annex to the Europol Convention
contains the following definition which refers to trafficking for the purpose of sexual
exploitation: "traffic in human beings: means subjection of a person to the real and illegal
sway of other persons by using violence or menaces or by abuse of authority or intrigue
with a view to the exploitation of prostitution, forms of sexual exploitation and assault of
minors or trade in abandoned children". Chapter VI of the Convention implementing the
Schengen Agreement, which has been integrated into the Union's acquis, in which the
United Kingdom and Ireland participate, contains the following wording in Article 27(1)
which refers to illegal immigration networks: " The Contracting Parties undertake to
impose appropriate penalties on any person who, for financial gain, assists or tries to
assist an alien to enter or reside within the territory of one of the Contracting Parties in
breach of that Contracting Party's laws on the entry and residence of aliens." On 19 July
2002, the Council adopted a framework decision on combating trafficking in human
beings (OJ L 203/1) whose Article 1 defines in detail the offences concerning trafficking
in human beings for the purposes of labour exploitation or sexual exploitation, which the
Member States must make punishable by virtue of that framework decision.
|
|
|
|
1 Article II-65 of the Constitution.
3 Article II-65 of the Constitution. |
|
|
|
|
|
Right to
liberty and security
|
|
The rights in Article 6 1 are the rights guaranteed by Article
5 of the ECHR, and in
accordance with Article 52(3) of the Charter 2, they have the same meaning and scope.
Consequently, the limitations which may legitimately be imposed on them may not
exceed those permitted by the ECHR, in the wording of Article 5:
"1. Everyone has the right to liberty and security of
person. No one shall be deprived of
his liberty save in the following cases and in accordance with a procedure prescribed by
law:
(a) the lawful detention of a person after conviction by
a competent court;
(b) the lawful arrest or detention of a person for non-compliance
with the lawful order of a
court or in order to secure the fulfilment of any obligation prescribed by law;
(c) the lawful arrest or detention of a person effected for
the purpose of bringing him
before the competent legal authority on reasonable suspicion of having committed an
offence or when it is reasonably considered necessary to prevent his committing an
offence or fleeing after having done so;
(d) the detention of a minor by lawful order for the purpose
of educational supervision or
his lawful detention for the purpose of bringing him before the competent legal authority;
(e) the lawful detention of persons for the prevention of
the spreading of infectious
diseases, of persons of unsound mind, alcoholics or drug addicts or vagrants;
(f) the lawful arrest or detention of a person to prevent
his effecting an unauthorised entry
into the country or of a person against whom action is being taken with a view to
deportation or extradition.
2. Everyone who is arrested shall be informed promptly, in
a language which he
understands, of the reasons for his arrest and of any charge against him.
3. Everyone arrested or detained in accordance with the provisions
of paragraph 1.c of
this article shall be brought promptly before a judge or other officer authorised by law to
exercise judicial power and shall be entitled to trial within a reasonable time or to release
pending trial. Release may be conditioned by guarantees to appear for trial.
4. Everyone who is deprived of his liberty by arrest or detention
shall be entitled to take
proceedings by which the lawfulness of his detention shall be decided speedily by a
court and his release ordered if the detention is not lawful.
5. Everyone who has been the victim of arrest or detention
in contravention of the
provisions of this Article shall have an enforceable right to compensation."
The rights enshrined in Article 6 1 must be respected particularly when the
European
Parliament and the Council adopt laws and framework laws in the area of judicial
cooperation in criminal matters, on the basis of Articles III-270, III-271 and III-273 of the
Constitution, notably to define common minimum provisions as regards the
categorisation of offences and punishments and certain aspects of procedural law.
|
|
|
|
1 Article II-62 of the Constitution.
|
|
|
Respect for
private and family life
|
|
The rights guaranteed in Article 7 2 correspond to those guaranteed by Article
8 of the
ECHR. To take account of developments in technology the word "correspondence" has
been replaced by "communications".
In accordance with Article 52(3) 1, the meaning and scope of this right
are the same as
those of the corresponding article of the ECHR. Consequently, the limitations which may
legitimately be imposed on this right are the same as those allowed by Article 8 of the
ECHR:
"1. Everyone has the right to respect for his private
and family life, his home and his
correspondence.
2. There shall be no interference by a public authority with
the exercise of this right
except such as is in accordance with the law and is necessary in a democratic society
in the interests of national security, public safety or the economic well- being of the
country, for the prevention of disorder or crime, for the protection of health or morals, or
for the protection of the rights and freedoms of others."
|
|
|
|
2 Article II-67 of the Constitution.
|
|
|
Protection
of personal data
|
|
This Article has been based on Article 286 of the Treaty
establishing the European
Community and Directive 95/46/EC of the European Parliament and of the Council on
the protection of individuals with regard to the processing of personal data and on the
free movement of such data (OJ L 281, 23.11.1995) as well as on Article 8 of the ECHR
and on the Council of Europe Convention of 28 January 1981 for the Protection of
Individuals with regard to Automatic Processing of Personal Data, which has been
ratified by all the Member States. Article 286 EC Treaty is now replaced by Article I-51 of
the Constitution. Reference is also made to Regulation No 45/2001 of the European
Parliament and of the Council on the protection of individuals with regard to the
processing of personal data by the Community institutions and bodies and on the free
movement of such data (OJ L 8, 12.1.2001). The abovementioned Directive and
Regulation contain conditions and limitations for the exercise of the right to the protection
of personal data. |
|
|
|
|
This Article is based on Article 12 of the ECHR, which reads
as follows: "Men and
women of marriageable age have the right to marry and to found a family according to
the national laws governing the exercising of this right." The wording of the Article has
been modernised to cover cases in which national legislation recognises arrangements
other than marriage for founding a family. This Article neither prohibits nor imposes the
granting of the status of marriage to unions between people of the same sex. This right
is thus similar to that afforded by the ECHR, but its scope may be wider when national
legislation so provides. |
|
Freedom of
thought, conscience and religion
|
|
The right guaranteed in paragraph 1 corresponds to the right
guaranteed in Article 9 of
the ECHR and, in accordance with Article 52(3) of the Charter 1, has the same meaning
and scope. Limitations must therefore respect Article 9(2) of the Convention, which
reads as follows: "Freedom to manifest one's religion or beliefs shall be subject only to
such limitations as are prescribed by law and are necessary in a democratic society in
the interests of public safety, for the protection of public order, health or morals, or for
the protection of the rights and freedoms of others."
The right guaranteed in paragraph 2 corresponds to national
constitutional traditions and
to the development of national legislation on this issue. |
|
Freedom of
expression and information
|
|
1. Article 11 1 corresponds to Article 10 of the European
Convention on Human Rights,
which reads as follows:
"1. Everyone has the right to freedom of expression.
This right shall include freedom to
hold opinions and to receive and impart information and ideas without interference by
public authority and regardless of frontiers. This Article shall not prevent States from
requiring the licensing of broadcasting, television or cinema enterprises.
2. The exercise of these freedoms, since it carries with
it duties and responsibilities,
may be subject to such formalities, conditions, restrictions or penalties as are
prescribed by law and are necessary in a democratic society, in the interests of national
security, territorial integrity or public safety, for the prevention of disorder or crime, for the
protection of health or morals, for the protection of the reputation or rights of others, for
preventing the disclosure of information received in confidence, or for maintaining the
authority and impartiality of the judiciary."
Pursuant to Article 52(3) of the Charter 2,
the meaning and scope of this right are the
same as those guaranteed by the ECHR. The limitations which may be imposed on it
may therefore not exceed those provided for in Article 10(2) of the Convention, without
prejudice to any restrictions which competition law of the Union may impose on Member
States' right to introduce the licensing arrangements referred to in the third sentence of
Article 10(1) of the ECHR.
2. Paragraph 2 of this Article spells out the consequences
of paragraph 1 regarding
freedom of the media. It is based in particular on Court of Justice case law regarding
television, particularly in case C-288/89 (judgment of 25 July 1991, Stichting Collectieve
Antennevoorziening Gouda and others [1991] ECR I-4007), and on the Protocol on the
system of public broadcasting in the Member States annexed to the EC Treaty and now
to the Constitution, and on Council Directive 89/552/EC (particularly its seventeenth
recital).
|
|
|
|
1 Article II-71 of the Constitution.
|
|
|
Freedom of
assembly and of association
|
|
Paragraph 1 of this Article corresponds to Article 11 of
the ECHR, which reads as
follows:
"1. Everyone has the right to freedom of peaceful assembly
and to freedom of
association with others, including the right to form and to join trade unions for the
protection of his interests.
2. No restrictions shall be placed on the exercise of these
rights other than such as are
prescribed by law and are necessary in a democratic society in the interests of national
security or public safety, for the prevention of disorder or crime, for the protection of
health or morals or for the protection of the rights and freedoms of others. This article
shall not prevent the imposition of lawful restrictions on the exercise of these rights by
members of the armed forces, of the police or of the administration of the State."
The meaning of the provisions of paragraph 1 is the same
as that of the ECHR, but their
scope is wider since they apply at all levels including European level. In accordance with
Article 52(3) of the Charter 1, limitations on that right may not exceed those considered
legitimate by virtue of Article 11(2) of the ECHR.
2. This right is also based on Article 11 of the Community
Charter of the Fundamental
Social Rights of Workers.
3. Paragraph 2 of this Article corresponds to Article I-46(4) of the Constitution. |
|
Freedom of
the arts and sciences
|
|
This right is deduced primarily from the right to freedom
of thought and expression. It is
to be exercised having regard to Article 1 2 and may be subject to the limitations
authorised by Article 10 of the ECHR. |
|
|
|
|
1. This Article is based on the common constitutional traditions
of Member States and on
Article 2 of the Protocol to the ECHR, which reads as follows:
"No person shall be denied the right to education. In
the exercise of any functions which
it assumes in relation to education and to teaching, the State shall respect the right of
parents to ensure such education and teaching in conformity with their own religious and
philosophical convictions."
It was considered useful to extend this article to access
to vocational and continuing
training (see point 15 of the Community Charter of the Fundamental Social Rights of
Workers and Article 10 of the Social Charter) and to add the principle of free compulsory
education. As it is worded, the latter principle merely implies that as regards compulsory
education, each child has the possibility of attending an establishment which offers free
education. It does not require all establishments which provide education or vocational
and continuing training, in particular private ones, to be free of charge. Nor does it
exclude certain specific forms of education having to be paid for, if the State takes
measures to grant financial compensation. Insofar as the Charter applies to the Union,
this means that in its training policies the Union must respect free compulsory
education, but this does not, of course, create new powers. Regarding the right of
parents, it must be interpreted in conjunction with the provisions of Article 24 1
.
2. Freedom to found public or private educational establishments
is guaranteed as one
of the aspects of freedom to conduct a business but it is limited by respect for
democratic principles and is exercised in accordance with the arrangements defined by
national legislation. |
|
Freedom to
choose an occupation and right to engage in work
|
|
Freedom to choose an occupation, as enshrined in Article
15(1) 1, is recognised in
Court of Justice case law (see inter alia judgment of 14 May 1974, Case 4/73 Nold
[1974] ECR 491, paragraphs 12 to 14 of the grounds; judgment of 13 December 1979,
Case 44/79 Hauer [1979] ECR 3727; judgment of 8 October 1986, Case 234/85 Keller
[1986] ECR 2897, paragraph 8 of the grounds).
This paragraph also draws upon Article 1(2) of the European
Social Charter, which was
signed on 18 October 1961 and has been ratified by all the Member States, and on point
4 of the Community Charter of the Fundamental Social Rights of Workers of 9
December 1989. The expression "working conditions" is to be understood in the sense
of Article III-213 of the Constitution.
Paragraph 2 deals with the three freedoms guaranteed by Articles I-4 and III-133, III-137
and III-144 of the Constitution, namely freedom of movement for workers, freedom of
establishment and freedom to provide services.
Paragraph 3 has been based on TEC Article 137(3), fourth
indent, now replaced by
Article III-210(1)(g) of the Constitution, and on Article 19(4) of the European Social
Charter signed on 18 October 1961 and ratified by all the Member States. Article 52(2) of
the Charter 2 is therefore applicable. The question of recruitment of seamen having the
nationality of third States for the crews of vessels flying the flag of a Member State of the
Union is governed by Union law and national legislation and practice.
|
|
|
|
1 Article II-75 of the Constitution.
|
|
|
Freedom to
conduct a business
|
|
This Article is based on Court of Justice case law which
has recognised freedom to
exercise an economic or commercial activity (see judgments of 14 May 1974, Case 4/73
Nold [1974] ECR 491, paragraph 14 of the grounds, and of 27 September 1979, Case
230-78 SPA Eridiana and others [1979] ECR 2749, paragraphs 20 and 31 of the
grounds) and freedom of contract (see inter alia Sukkerfabriken Nykøbing judgment,
Case 151/78 [1979] ECR 1, paragraph 19 of the grounds, and judgment of 5 October
1999, C-240/97 Spain v. Commission, [1999] ECR I- 6571, paragraph 99 of the grounds)
and Article I-3(2) of the Constitution, which recognises
free competition. Of course, this
right is to be exercised with respect for Union law and national legislation. It may be
subject to the limitations provided for in Article 52(1) of the Charter 1 . |
|
|
|
|
This Article is based on Article 1 of the Protocol to the
ECHR:
"Every natural or legal person is entitled to the peaceful
enjoyment of his possessions.
No one shall be deprived of his possessions except in the public interest and subject to
the conditions provided for by law and by the general principles of international law.
The preceding provisions shall not, however, in any way impair
the right of a State to
enforce such laws as it deems necessary to control the use of property in accordance
with the general interest or to secure the payment of taxes or other contributions or
penalties."
This is a fundamental right common to all national constitutions.
It has been recognised
on numerous occasions by the case law of the Court of Justice, initially in the Hauer
judgment (13 December 1979, ECR [1979] 3727). The wording has been updated but, in
accordance with Article 52(3) 1, the meaning and scope of the right are the same as
those of the right guaranteed by the ECHR and the limitations may not exceed those
provided for there.
Protection of intellectual property, one aspect of the right
of property, is explicitly
mentioned in paragraph 2 because of its growing importance and Community secondary
legislation. Intellectual property covers not only literary and artistic property but also inter
alia patent and trademark rights and associated rights. The guarantees laid down in
paragraph 1 shall apply as appropriate to intellectual property. |
|
|
|
|
The text of the Article has been based on TEC Article 63,
now replaced by Article III-266
of the Constitution, which requires the Union to respect the Geneva Convention on
refugees. Reference should be made to the Protocols relating to the United Kingdom
and Ireland annexed to the [Treaty of Amsterdam] Constitution and to Denmark to
determine the extent to which those Member States implement Union law in this area
and the extent to which this Article is applicable to them. This Article is in line with the
Protocol on Asylum annexed to the Constitution. |
|
Protection
in the event of removal, expulsion or extradition
|
|
Paragraph 1 of this Article has the same meaning and scope
as Article 4 of Protocol No
4 to the ECHR concerning collective expulsion. Its purpose is to guarantee that every
decision is based on a specific examination and that no single measure can be taken to
expel all persons having the nationality of a particular State (see also Article 13 of the
Covenant on Civil and Political Rights).
Paragraph 2 incorporates the relevant case law from the European
Court of Human
Rights regarding Article 3 of the ECHR (see Ahmed v. Austria, judgment of 17
December 1996, [1996] ECR VI-2206 and Soering, judgment of 7 July 1989). |
|
|
|
|
|
|
|
This Article corresponds to a general principle of law which
is included in all European
constitutions and has also been recognised by the Court of Justice as a basic principle
of Community law (judgment of 13 November 1984, Case 283/83 Racke [1984] ECR
3791, judgment of 17 April 1997, Case 15/95 EARL [1997] ECR I–1961, and judgment of
13 April 2000, Case 292/97 Karlsson [2000] ECR 2737). |
|
|
|
|
Paragraph 1 draws on Article 13 of the EC Treaty, now replaced
by Article III-124 of the
Constitution, Article 14 of the ECHR and Article 11 of the Convention on Human Rights
and Biomedicine as regards genetic heritage. Insofar as this corresponds to Article 14 of
the ECHR, it applies in compliance with it.
There is no contradiction or incompatibility between paragraph
1 and Article III-124 of the
Constitution which has a different scope and purpose: Article III-124 confers power on
the Union to adopt legislative acts, including harmonisation of the Member States' laws
and regulations, to combat certain forms of discrimination, listed exhaustively in that
Article. Such legislation may cover action of Member State authorities (as well as
relations between private individuals) in any area within the limits of the Union's powers.
In contrast, the provision in paragraph 1 does not create any power to enact anti-
discrimination laws in these areas of Member State or private action, nor does it lay
down a sweeping ban of discrimination in such wide-ranging areas. Instead, it only
addresses discriminations by the institutions and bodies of the Union themselves, when
exercising powers conferred under other articles of Parts I and III of the Constitution, and
by Member States only when they are implementing Union law. Paragraph 1 therefore
does not alter the extent of powers granted under Article III-124 nor the interpretation
given to that Article.
Paragraph 2 corresponds to Article I-4(2) of the Constitution and must be
applied in
compliance with that Article. |
|
Cultural,
religious and linguistic diversity
|
|
This Article has been based on Article 6 of the Treaty on
European Union and on Article
151(1) and
(4) of the EC Treaty, now replaced by Article III-280(1) and (4) of the Constitution,
concerning culture. Respect for cultural and linguistic diversity is now also laid down in
Article I-3(3) of the Constitution. The Article is also inspired by Declaration No 11 to the
Final Act of the Amsterdam Treaty on the status of churches and non-confessional
organisations, now taken over in Article I-52 of the Constitution. |
|
Equality
between women and men
|
|
The first paragraph has been based on Articles 2 and 3(2)
of the EC Treaty, now
replaced by Articles I-3 and III-116 of the Constitution which impose
the objective of
promoting equality between men and women on the Union, and on Article 141(1) of the
EC Treaty, now replaced by Article III-214(1) of the Constitution. It draws
on Article 20 of
the revised European Social Charter of 3 May 1996 and on point 16 of the Community
Charter on the rights of workers.
It is also based on Article 141(3) of the EC Treaty, now
replaced by Article III-214(3) of
the Constitution, and Article 2(4) of Council Directive 76/207/EEC on the implementation
of the principle of equal treatment for men and women as regards access to
employment, vocational training and promotion, and working conditions.
The second paragraph takes over in shorter form Article III-214(4)
of the Constitution
which provides that the principle of equal treatment does not prevent the maintenance or
adoption of measures providing for specific advantages in order to make it easier for the
under-represented sex to pursue a vocational activity or to prevent or compensate for
disadvantages in professional careers. In accordance with Article 52(2) 1, the present
paragraph does not amend Article III-214(4). |
|
|
|
|
This Article is based on the New York Convention on the Rights
of the Child signed on 20
November 1989 and ratified by all the Member States, particularly Articles 3, 9, 12 and 13
thereof.
Paragraph 3 takes account of the fact that, as part of the
establishment of an area of
freedom, security and justice, Union legislation on civil matters having cross-border
implications, for which Article III-269 of the Constitution confers power,
may include
notably visiting rights ensuring that children can maintain on a regular basis a personal
and direct contact with both his or her parents. |
|
The rights
of the elderly
|
|
This Article draws on Article 23 of the revised European
Social Charter and Articles 24
and 25 of the Community Charter of the Fundamental Social Rights of Workers. Of
course, participation in social and cultural life also covers participation in political life. |
|
Integration
of persons with disabilities
|
|
The principle set out in this Article is based on Article
15 of the European Social Charter
and also draws on point 26 of the Community Charter of the Fundamental Social Rights
of Workers. |
|
|
|
|
Workers'
right to information and consultation within the undertaking
|
|
This Article appears in the revised European Social Charter
(Article 21) and in the
Community Charter on the rights of workers (points 17 and 18). It applies under the
conditions laid down by Union law and by national laws. The reference to appropriate
levels refers to the levels laid down by Union law or by national laws and practices,
which might include the European level when Union legislation so provides. There is a
considerable Union acquis in this field: Articles III-211 and III-212 of the Constitution, and
Directives 2002/14/EC (general framework for informing and consulting employees in
the European Community), 98/59/EC (collective redundancies), 2001/23/EC (transfers
of undertakings) and 94/45/EC (European works councils). |
|
Right of
collective bargaining and action
|
|
This Article is based on Article 6 of the European Social
Charter and on the Community
Charter of the Fundamental Social Rights of Workers (points 12 to 14). The right of
collective action was recognised by the European Court of Human Rights as one of the
elements of trade union rights laid down by Article 11 of the ECHR. As regards the
appropriate levels at which collective negotiation might take place, see the explanation
given for the above Article. The modalities and limits for the exercise of collective action,
including strike action, come under national laws and practices, including the question of
whether it may be carried out in parallel in several Member States. |
|
Right of
access to placement services
|
|
This Article is based on Article 1(3) of the European Social
Charter and point 13 of the
Community Charter of the Fundamental Social Rights of Workers. |
|
Protection
in the event of unjustified dismissal
|
|
This Article draws on Article 24 of the revised Social Charter.
See also Directive
2001/23/EC on the safeguarding of employees' rights in the event of transfers of
undertakings, and Directive 80/987/EEC on the protection of employees in the event of
the insolvency of their employer, as amended by Directive 2002/74/EC. |
|
Fair and
just working conditions
|
|
1. Paragraph 1 of this Article is based on Directive 89/391/EEC
on the introduction of
measures to encourage improvements in the safety and health of workers at work. It
also draws on Article 3 of the Social Charter and point 19 of the Community Charter on
the rights of workers, and, as regards dignity at work, on Article 26 of the revised Social
Charter. The expression "working conditions" must be understood in the sense of Article
III-213 of the Constitution.
2. Paragraph 2 is based on Directive 93/104/EC concerning
certain aspects of the
organisation of working time, Article 2 of the European Social Charter and point 8 of the
Community Charter on the rights of workers. |
|
Prohibition
of child labour and protection of young people at work
|
|
This Article is based on Directive 94/33/EC on the protection
of young people at work,
Article 7 of the European Social Charter and points 20 to 23 of the Community Charter of
the Fundamental Social Rights of Workers. |
|
Family and
professional life
|
|
Article 33(1) is based on Article 16 of the European Social
Charter. The second
paragraph draws on Council Directive 92/85/EEC on the introduction of measures to
encourage improvements in the safety and health at work of pregnant workers and
workers who have recently given birth or are breastfeeding and Directive 96/34/EC on
the framework agreement on parental leave concluded by UNICE, CEEP and the ETUC.
It is also based on Article 8 (protection of maternity) of the European Social Charter and
draws on Article 27 (right of workers with family responsibilities to equal opportunities
and equal treatment) of the revised Social Charter. "Maternity" covers the period from
conception to weaning. |
|
Social security
and social assistance
|
|
The principle set out in Article 34(1) is based on Articles
137 and 140 of the EC Treaty,
now replaced by Articles III-210 and III-213 and on Article 12 of the European Social
Charter and point 10 of the Community Charter on the rights of workers. The Union must
respect it when exercising the powers conferred on it by Articles III-210 and III-213 of the
Constitution. The reference to social services relates to cases in which such services
have been introduced to provide certain advantages but does not imply that such
services must be created where they do not exist. "Maternity" must be understood in the
same sense as in the preceding Article.
Paragraph 2 is based on Articles 12(4) and 13(4) of the European
Social Charter and
point 2 of the Community Charter of the Fundamental Social Rights of Workers and
reflects the rules arising from Regulation No 1408/71 and Regulation No 1612/68.
Paragraph 3 draws on Article 13 of the European Social Charter
and Articles 30 and 31
of the revised Social Charter and point 10 of the Community Charter. The Union must
respect it in the context of policies based on Article III-210 of the Constitution. |
|
|
|
|
The principles set out in this Article are based on Article
152 of the EC Treaty, now
replaced by Article III-278 of the Constitution, and on Articles
11 and 13 of the European
Social Charter. The second sentence of the Article takes over Article III-278(1). |
|
Access to
services of general economic interest
|
|
This Article is fully in line with Article III-122 of the Constitution and does not create any
new right. It merely sets out the principle of respect by the Union for the access to
services of general economic interest as provided for by national provisions, when those
provisions are compatible with Union law. |
|
|
|
|
The principles set out in this Article have been based on
Articles 2, 6 and 174 of the EC
Treaty, which have now been replaced by Articles I-3(3), III-119 and III-233 of the
Constitution. It also draws on the provisions of some national constitutions. |
|
|
|
|
The principles set out in this Article have been based on
Article 153 of the EC Treaty,
now replaced by Article III-235 of the Constitution. |
|
|
|
|
Right to
vote and to stand as a candidate at elections to the European Parliament
|
|
Article 39 1 applies under the conditions laid down
in Parts I and III of the Constitution, in
accordance with Article 52(2) of the Charter 2 . Article 39(1) corresponds to the
right
guaranteed in Article I-10(2) of the Constitution (cf. also
the legal base in Article III-126 for
the adoption of detailed arrangements for the exercise of that right) and Article 39(2)
corresponds to Article I-20(2) of the Constitution. Article 39(2)
1 takes over the basic
principles of the electoral system in a democratic State.
|
|
|
|
1 Article II-99 of the Constitution. |
|
|
Right to
vote and to stand as a candidate at municipal elections
|
|
This Article corresponds to the right guaranteed by Article I-10(2) of the Constitution (cf.
also the legal base in Article III-126 for the adoption of detailed arrangements
for the
exercise of that right). In accordance with Article 52(2) of the Charter 2, it applies under
the conditions set out in these Articles of Parts I and III of the Constitution. |
|
Right to
good administration
|
|
Article 41 1 is based on the existence of the Union
as subject to the rule of law whose
characteristics were developed in the case law which enshrined inter alia good
administration as a general principle of law (see inter alia Court of Justice judgment of 31
March 1992 in Case C-255/90 P, Burban [1992] ECR I- 2253, and Court of First Instance
judgments of 18 September 1995 in Case T-167/94 Nölle [1995] ECR II-2589, and 9 July
1999 in Case T-231/97 New Europe Consulting and others [1999] ECR II-2403). The
wording for that right in the first two paragraphs results from the case law (Court of
Justice judgment of 15 October 1987 in Case 222/86 Heylens [1987] ECR 4097,
paragraph 15 of the grounds, judgment of 18 October 1989 in Case 374/87 Orkem
[1989] ECR 3283, judgment of 21 November 1991 in Case C-269/90 TU München [1991]
ECR I-5469, and Court of First Instance judgments of 6 December 1994 in Case T-
450/93 Lisrestal [1994] ECR II- 1177, 18 September 1995 in Case T-167/94 Nölle [1995]
ECR II-258) and the wording regarding the obligation to give reasons comes from Article
253 of the EC Treaty, now replaced by Article I-38(2) of the Constitution (cf. also
the
legal base in Article III-398 of the Constitution for the adoption of legislation in the interest
of an open, efficient and independent European administration).
Paragraph 3 reproduces the right now guaranteed by Article III-431 of the Constitution.
Paragraph 4 reproduces the right now guaranteed by Articles I-10(2)(d) and III-129 of the
Constitution. In accordance with Article 52(2) of the Charter 2, those rights are to be
applied under the conditions and within the limits defined by Part III of the Constitution.
The right to an effective remedy, which is an important aspect
of this question, is
guaranteed in Article 47 of this Charter 3 .
|
|
|
|
1 Article II-101 of the Constitution.
3 Article II-107 of the Constitution. |
|
|
Right of
access to documents
|
|
The right guaranteed in this Article has been taken over
from Article 255 of the EC
Treaty, on the basis of which Regulation 1049/2001 has subsequently been adopted.
The European Convention has extended this right to documents of institutions, bodies
and agencies generally, regardless of their form, see Article I-50(3) of the Constitution. In
accordance with Article 52(2) of the Charter 2 , the right of access to documents is
exercised under the conditions and within the limits for which provision is made in
Articles I-50(3) and III-399. |
|
|
|
|
The right guaranteed in this Article is the right guaranteed
by Articles I-10 and III-335 of
the Constitution. In accordance with Article 52(2) of the Charter 1, it applies under the
conditions defined in these two Articles. |
|
|
|
|
The right guaranteed in this Article is the right guaranteed
by Articles I-10 and III-334 of
the Constitution. In accordance with Article 52(2) of the Charter 1, it applies under the
conditions defined in these two Articles. |
|
Freedom of
movement and of residence
|
|
The right guaranteed by paragraph 1 is the right guaranteed
by Article I-10(2)(a) of the
Constitution (cf. also the legal base in Article III-125; and the judgement of the Court
of
Justice of 17 September 2002, C-413/99 Baumbast, [2002] ECR 709). In accordance
with Article 52(2) of the Charter 1, it applies under the conditions and within the limits
defined for which provision is made in Part III of the Constitution.
Paragraph 2 refers to the power granted to the Union by Articles III-265 to III-267 of the
Constitution. Consequently, the granting of this right depends on the institutions
exercising that power. |
|
Diplomatic
and consular protection
|
|
The right guaranteed by this Article is the right guaranteed
by Article I-10 of the
Constitution; cf. also the legal base in Article III-127. In accordance with Article 52(2)
of
the Charter 1, it applies under the conditions defined in these Articles. |
|
|
|
|
Right to
an effective remedy and to a fair trial
|
|
The first paragraph is based on Article 13 of the ECHR:
"Everyone whose rights and freedoms as set forth in
this Convention are violated shall
have an effective remedy before a national authority notwithstanding that the violation
has been committed by persons acting in an official capacity."
However, in Union law the protection is more extensive since
it guarantees the right to an
effective remedy before a court. The Court of Justice enshrined that right in its judgment
of 15 May 1986 as a general principle of Union law (Case 222/84 Johnston [1986] ECR
1651; see also judgment of 15 October 1987, Case 222/86 Heylens [1987] ECR 4097
and judgment of 3 December 1992, Case C-97/91 Borelli [1992] ECR I-6313). According
to the Court, that general principle of Union law also applies to the Member States when
they are implementing Union law. The inclusion of this precedent in the Charter has not
been intended to change the system of judicial review laid down by the Treaties, and
particularly the rules relating to admissibility for direct actions before the Court of Justice
of the European Union. The European Convention has considered the Union's system of
judicial review including the rules on admissibility, and confirmed them while amending
them as to certain aspects, as reflected in Articles III-353 to III-381 of the Constitution,
and in particular in Article III-365(4). Article 47 applies to the
institutions of the Union and
of Member States when they are implementing Union law and does so for all rights
guaranteed by Union law.
The second paragraph corresponds to Article 6(1) of the ECHR
which reads as follows:
"In the determination of his civil rights and obligations
or of any criminal charge against
him, everyone is entitled to a fair and public hearing within a reasonable time by an
independent and impartial tribunal established by law. Judgment shall be pronounced
publicly but the press and public may be excluded from all or part of the trial in the
interests of morals, public order or national security in a democratic society, where the
interests of juveniles or the protection of the private life of the parties so require, or to the
extent strictly necessary in the opinion of the court in special circumstances where
publicity would prejudice the interests of justice."
In Union law, the right to a fair hearing is not confined
to disputes relating to civil law
rights and obligations. That is one of the consequences of the fact that the Union is a
community based on the rule of law as stated by the Court in Case 294/83, "Les Verts"
v. European Parliament (judgment of 23 April 1986, [1988] ECR 1339). Nevertheless, in
all respects other than their scope, the guarantees afforded by the ECHR apply in a
similar way to the Union.
With regard to the third paragraph, it should be noted that
in accordance with the case
law of the European Court of Human Rights, provision should be made for legal aid
where the absence of such aid would make it impossible to ensure an effective remedy
(ECHR Judgment of 9.10.1979, Airey, Series A, Volume 32, 11). There is also a system
of legal assistance for cases before the Court of Justice of the European Union. |
|
Presumption
of innocence and right of defence
|
|
Article 48 is the same as Article 6(2) and (3) of the ECHR,
which reads as follows:
"2. Everyone charged with a criminal offence shall be
presumed innocent until proved
guilty according to law.
3. Everyone charged with a criminal offence has the following
minimum rights:
(a) to be informed promptly, in a language which he understands
and in detail, of the
nature and cause of the accusation against him;
(b) to have adequate time and facilities for the preparation
of his defence;
(c) to defend himself in person or through legal assistance
of his own choosing or, if he
has not sufficient means to pay for legal assistance, to be given it free when the
interests of justice so require;
(d) to examine or have examined witnesses against him and
to obtain the attendance
and examination of witnesses on his behalf under the same conditions as witnesses
against him;
(e) to have the free assistance of an interpreter if he cannot
understand or speak the
language used in court."
In accordance with Article 52(3) , this right has the same
meaning and scope as the right
guaranteed by the ECHR. |
|
Principles
of legality and proportionality of criminal offences and penalties
|
|
This Article follows the traditional rule of the non-retroactivity
of laws and criminal
sanctions. There has been added the rule of the retroactivity of a more lenient penal law,
which exists in a number of Member States and which features in Article 15 of the
Covenant on Civil and Political Rights.
Article 7 of the ECHR is worded as follows:
"1. No one shall 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. Nor shall a heavier penalty be imposed than the one that was
applicable at the time the criminal offence was committed.
2. This Article shall not prejudice the trial and punishment
of any person for any act or
omission which, at the time when it was committed, was criminal according to the
general principles of law recognised by civilised nations."
In paragraph 2, the reference to "civilised" nations
has been deleted; this does not
change the meaning of this paragraph, which refers to crimes against humanity in
particular. In accordance with Article 52(3) 1, the right guaranteed here therefore
has the
same meaning and scope as the right guaranteed by the ECHR.
Paragraph 3 states the general principle of proportionality
between penalties and criminal
offences which is enshrined in the common constitutional traditions of the Member
States and in the case law of the Court of Justice of the Communities. |
|
Right not
to be tried or punished twice in criminal proceedings for the same criminal offence
|
|
Article 4 of Protocol No 7 to the ECHR reads as follows:
"1. No one shall be liable to be tried or punished again
in criminal proceedings under the
jurisdiction of the same State for an offence for which he has already been finally
acquitted or convicted in accordance with the law and penal procedure of that State.
2. The provisions of the preceding paragraph shall not prevent
the reopening of the case
in accordance with the law and the penal procedure of the State concerned, if there is
evidence of new or newly discovered facts, or if there has been a fundamental defect in
the previous proceedings, which could affect the outcome of the case.
3. No derogation from this Article shall be made under Article
15 of the Convention."
The "non bis in idem" rule applies in Union law
(see, among the many precedents, the
judgment of 5 May 1966, Cases 18/65 and 35/65, Gutmann v. Commission [1966] ECR
103 and a recent case, the decision of the Court of First Instance of 20 April 1999,
Joined Cases T-305/94 and others, Limburgse Vinyl Maatschappij NV v. Commission
[1999] ECR II-931). The rule prohibiting cumulation refers to cumulation of two penalties
of the same kind, that is to say criminal law penalties.
In accordance with Article 50 , the "non bis in idem"
rule applies not only within the
jurisdiction of one State but also between the jurisdictions of several Member States.
That corresponds to the acquis in Union law; see Articles 54 to 58 of the Schengen
Convention and the judgment of the Court of Justice of 11 February 2003, C-187/01
Gözütok (not yet published), Article 7 of the Convention on the Protection of the
European Communities' Financial Interests and Article 10 of the Convention on the fight
against corruption. The very limited exceptions in those Conventions permitting the
Member States to derogate from the "non bis in idem" rule are covered by the horizontal
clause in Article 52(1) of the Charter 2 concerning limitations. As regards the
situations
referred to by Article 4 of Protocol No 7, namely the application of the principle within the
same Member State, the guaranteed right has the same meaning and the same scope
as the corresponding right in the ECHR. |
|
|
|
|
|
|
|
The aim of Article 51 is to determine the scope of the Charter.
It seeks to establish
clearly that the Charter applies primarily to the institutions and bodies of the Union, in
compliance with the principle of subsidiarity. This provision was drafted in keeping with
Article 6(2) of the Treaty on European Union, which required the Union to respect
fundamental rights, and with the mandate issued by Cologne European Council. The
term "institutions" is enshrined in Part I of the Constitution. The expression "bodies,
offices and agencies" is commonly used in the Constitution to refer to all the authorities
set up by the Constitution or by secondary legislation (see, e.g., Articles I-50 or I-51 of
the Constitution).
As regards the Member States, it follows unambiguously from
the case law of the Court
of Justice that the requirement to respect fundamental rights defined in a Union context
is only binding on the Member States when they act in the scope of Union law (judgment
of 13 July 1989, Case 5/88 Wachauf [1989] ECR 2609; judgment of 18 June 1991, ERT
[1991] ECR I-2925); judgment of 18 December 1997 (C-309/96 Annibaldi [1997] ECR I-
7493). The Court of Justice confirmed this case law in the following terms: "In addition, it
should be remembered that the requirements flowing from the protection of fundamental
rights in the Community legal order are also binding on Member States when they
implement Community rules ..." (judgment of 13 April 2000, Case C-292/97, [2000] ECR
2737, paragraph 37 of the grounds). Of course this rule, as enshrined in this Charter,
applies to the central authorities as well as to regional or local bodies, and to public
organisations, when they are implementing Union law.
Paragraph 2, together with the second sentence of paragraph
1, confirms that the
Charter may not have the effect of extending the competences and tasks which the
other Parts of the Constitution confer on the Union. Explicit mention is made here of the
logical consequences of the principle of subsidiarity and of the fact that the Union only
has those powers which have been conferred upon it. The fundamental rights as
guaranteed in the Union do not have any effect other than in the context of the powers
determined by Parts I and III of the Constitution. Consequently, an obligation, pursuant to
the second sentence of paragraph 1, for the Union's institutions to promote principles
laid down in the Charter, may arise only within the limits of these same powers.
Paragraph 2 also confirms that the Charter may not have the
effect of extending the field
of application of Union law beyond the powers of the Union as established in the other
Parts of the Constitution. The Court of Justice has already established this rule with
respect to the fundamental rights recognised as part of Union law (judgment of 17
February 1998, C-249/96 Grant, 1998 ECR I-621, paragraph 45 of the grounds). In
accordance with this rule, it goes without saying that the incorporation of the Charter into
the Constitution cannot be understood as extending by itself the range of Member State
action considered to be "implementation of Union law" (within the meaning of paragraph
1 and the above-mentioned case law). |
|
Scope and
interpretation of rights and principles
|
|
The purpose of Article 52 is to set the scope of the rights
and principles of the Charter,
and to lay down rules for their interpretation. Paragraph 1 deals with the arrangements
for the limitation of rights. The wording is based on the case law of the Court of Justice:
"... it is well established in the case law of the Court that restrictions may be imposed on
the exercise of fundamental rights, in particular in the context of a common organisation
of the market, provided that those restrictions in fact correspond to objectives of general
interest pursued by the Community and do not constitute, with regard to the aim
pursued, disproportionate and unreasonable interference undermining the very
substance of those rights" (judgment of 13 April 2000, Case C-292/97, paragraph 45 of
the grounds). The reference to general interests recognised by the Union covers both
the objectives mentioned in Article I-2 of the Constitution and other interests
protected by
specific provisions of the Constitution such as Articles I-5(1), III- 133(3), III-154 and III-
436.
Paragraph 2 refers to rights which were already expressly
guaranteed in the Treaty
establishing the European Community and have been recognised in the Charter, and
which are now found in other Parts of the Constitution (notably the rights derived from
Union citizenship). It clarifies that such rights remain subject to the conditions and limits
applicable to the Union law on which they are based, and for which provision is now
made in Parts I and III of the Constitution. The Charter does not alter the system of rights
conferred by the EC Treaty and now taken over by Parts I and III of the Constitution.
Paragraph 3 is intended to ensure the necessary consistency
between the Charter and
the ECHR by establishing the rule that, insofar as the rights in the present Charter also
correspond to rights guaranteed by the ECHR, the meaning and scope of those rights,
including authorised limitations, are the same as those laid down by the ECHR. This
means in particular that the legislator, in laying down limitations to those rights, must
comply with the same standards as are fixed by the detailed limitation arrangements laid
down in the ECHR, which are thus made applicable for the rights covered by this
paragraph, without thereby adversely affecting the autonomy of Union law and of that of
the Court of Justice of the European Union.
The reference to the ECHR covers both the Convention and
the Protocols to it. The
meaning and the scope of the guaranteed rights are determined not only by the text of
those instruments, but also by the case law of the European Court of Human Rights and
by the Court of Justice of the European Union. The last sentence of the paragraph is
designed to allow the Union to guarantee more extensive protection. In any event, the
level of protection afforded by the Charter may never be lower than that guaranteed by
the ECHR.
The Charter does not affect the possibilities of Member States
to avail themselves of
Article 15 ECHR, allowing derogations from ECHR rights in the event of war or of other
public dangers threatening the life of the nation, when they take action in the areas of
national defence in the event of war and of the maintenance of law and order, in
accordance with their responsibilities recognised in Articles I-5 (1), III-131, III-262 of the
Constitution.
The list of rights which may at the present stage, without
precluding developments in the
law, legislation and the Treaties, be regarded as corresponding to rights in the ECHR
within the meaning of the present paragraph is given hereafter. It does not include rights
additional to those in the ECHR.
1. Articles of the Charter where both the meaning and the
scope are the same as the
corresponding Articles of the ECHR:
Added information:
See below this explanation for access points to Articles of the Constitution.
- Article 2 1 corresponds to Article 2 of the ECHR
- Article 4 2 corresponds to Article 3 of the ECHR
- Article 5(1) and (2) 3 correspond to Article 4 of the ECHR
- Article 6 4 corresponds to Article 5 of the ECHR
- Article 7 5 corresponds to Article 8 of the ECHR
- Article 10(1) 6 corresponds to Article 9 of the ECHR
- Article 11 7 corresponds to Article 10 of the ECHR
without prejudice to any restrictions
which Union law may impose on Member States' right to introduce the licensing
arrangements referred to in the third sentence of Article 10(1) of the ECHR
- Article 17 8 corresponds to Article 1 of the Protocol
to the ECHR
- Article 19(1) 9 corresponds to Article 4 of Protocol
No 4
- Article 19(2) 9 corresponds to Article 3 of the ECHR
as interpreted by the European
Court of Human Rights
- Article 48 10 corresponds to Article 6(2) and(3)
of the ECHR
– Article 49(1) (with the exception of the last sentence)
and (2) 11 correspond to Article 7
of the ECHR
2. Articles where the meaning is the same as the corresponding
Articles of the ECHR,
but where the scope is wider:
- Article 9 12 covers the same field as Article 12
of the ECHR, but its scope may be
extended to other forms of marriage if these are established by national legislation
– Article 12(1) 13 corresponds to Article 11 of the ECHR,
but its scope is extended to
European Union level
- Article 14(1) 14 corresponds to Article 2 of the Protocol
to the ECHR, but its scope is
extended to cover access to vocational and continuing training
– Article 14(3) 14 corresponds to Article 2 of the Protocol
to the ECHR as regards the
rights of parents
– Article 47(2) and (3) 15 correspond to Article 6(1) of the ECHR,
but the limitation to the
determination of civil rights and obligations or criminal charges does not apply as
regards Union law and its implementation
– Article 50 16 corresponds to Article 4 of Protocol
No 7 to the ECHR, but its scope is
extended to European Union level between the Courts of the Member States.
- Finally, citizens of the European Union may not be considered
as aliens in the scope of
the application of Union law, because of the prohibition of any discrimination on grounds
of nationality. The limitations provided for by Article 16 of the ECHR as regards the rights
of aliens therefore do not apply to them in this context.
The rule of interpretation contained in paragraph 4 has been
based on the wording of
Article 6(2) of the Treaty on European Union (cf. now the wording of Article I-9(3) of the
Constitution) and takes due account of the approach to common constitutional traditions
followed by the Court of Justice (e.g., judgment of 13 December 1979, Case 44/79
Hauer [1979] ECR 3727; judgment of 18 May 1982, Case 155/79, AM&S, [1982] ECR
1575). Under that rule, rather than following a rigid approach of "a lowest common
denominator", the Charter rights concerned should be interpreted in a way offering a high
standard of protection which is adequate for the law of the Union and in harmony with the
common constitutional traditions.
Paragraph 5 clarifies the distinction between "rights"
and "principles" set out in the
Charter. According to that distinction, subjective rights shall be respected, whereas
principles shall be observed (Article 51 (1)) 17. Principles may be implemented through
legislative or executive acts (adopted by the Union in accordance with its powers, and by
the Member States only when they implement Union law); accordingly, they become
significant for the Courts only when such acts are interpreted or reviewed. They do not
however give rise to direct claims for positive action by the Union's institutions or
Member States authorities. This is consistent both with case law of the Court of Justice
(Cf. notably case law on the "precautionary principle" in Article 174 (2) TEC (replaced by
Article III-233 of the Constitution): judgment of the CFI of 11 September 2002, T- 13/99,
Pfizer vs. Council, with numerous references to earlier case law; and a series of
judgments on Article 33 (ex-39) on the principles of agricultural law, e.g. judgment of the
Court of Justice C-265/85, Van den Berg, 1987 ECR 1155: scrutiny of the principle of
market stabilisation and of reasonable expectations) and with the approach of the
Member States' constitutional systems to "principles" particularly in the field of social
law. For illustration, examples for principles recognised in the Charter include e.g.
Articles 25, 26 and 37 18. In some cases, an Article of the Charter may contain both
elements of a right and of a principle, e.g. Articles 23, 33 and 34 19 .
Paragraph 6 refers to the various Articles in the Charter
which, in the spirit of
subsidiarity, make reference to national laws and practices.
|
|
|
|
17 Article II-111 of the Constitution.
|
|
|
|
|
|
This provision is intended to maintain the level of protection
currently afforded within their
respective scope by Union law, national law and international law. Owing to its
importance, mention is made of the ECHR. |
|
Prohibition
of abuse of rights
|
|
This Article corresponds to Article 17 of the ECHR:
"Nothing in this Convention may be interpreted as implying
for any State, group or person
any right to engage in any activity or perform any act aimed at the destruction of any of
the rights and freedoms set forth herein or at their limitation to a greater extent than is
provided for in the Convention." |
|
|
|
|
