Chapter 3. EU protection of Human Rights

Section 1. EEC original system: economypreeminence

1. The functionalist theory

Declaration of 9 May 1950

This is the full text of the proposal, which was presented by the French foreign minister Robert Schuman and which led to the creation of what is now the European Union.World peace cannot be safeguarded without the making of creative efforts proportionate to the dangers which threaten it.The contribution which an organized and living Europe can bring to civilization is indispensable to the maintenance of peaceful relations. In taking upon herself for more than 20 years the role of champion of a united Europe, France has always had as her essential aim the service of peace. A united Europe was not achieved and we had war.

Europe will not be made all at once, or according to a single plan. It will be built through concrete achievements which first create a de facto solidarity. The coming together of the nations of Europe requires the elimination of the age-old opposition of France and Germany. Any action taken must in the first place concern these two countries. With this aim in view, the French Government proposes that action be taken immediately on one limited but decisive point.It proposes that Franco-German production of coal and steel as a whole be placed under a common High Authority, within the framework of an organization open to the participation of the other countries of Europe. The pooling of coal and steel production should immediately provide for the setting up of common foundations for economic development as a first step in the federation of Europe, and will change the destinies of those regions which have long been devoted to the manufacture of munitions of war, of which they have been the most constant victims.

Functionalist theory.This method represents a breach in the previous experiences: instead of the political priority, it has chosen an economical priority, instead of the global approach and immediate, this method offers a sectorial (example: coal and steal) approach and progressive; the most important element is that the cooperation is substituted by the integration.

60 years have unified more than 500 million people1951: The Treaty of Paris1957 : The Treaty of Rome creates the European Community1986: The "Single European Act" program fulfilling the general market without internal frontiers 1992: The Maastricht Treaty creates the euro and the ECB1997: The Treaty of Amsterdam has adapted EU to the new challenges of World 2001: The Treaty of Nice opened the Union to the new democracies of Central and Eastern Europe2005: The draft of a European constitution failed2009: Treaty of Lisbon

The steps of the European construction

2. The implementation by the Court of Justice of European Communities (CJEC) of the functionalist theory:

- EEC law primacy and

- EEC lawdirect effect.

The European Court of Justice in Luxembourg

The Community legal order is qualified sui generis,(i.e. that its specificity make it impossible to classify it in one of the preestablished categories and that it needs one especially for it): -neither federal State -nor international organization, it borrows from both.

3. Implementation of the functionalist theory by Member States: the national resistances

When competences in the EEC sphere were exerted by the MS, their acts were doubly controlled:Inside, on a national base, by the control of constitutionality (the conformity of an ordinary law to the Constitution) by the constitutional judge and -outside by European Court on HR.

German constitutional Court Case Law18 octobre 1967.So lange I du 29 mai 1974.Wnsche Handelgesellschaft, dit So lange II, du 22 octobre 1986.Brunner contre Trait sur l'Union Europenne, So lange III pour les uns, Maastricht pour d'autres (arrt sur le Trait de Maastricht) du 12 octobre 1993.So lange III ou IV, arrt du 7 juin 2000.

Section 2. The current EU system or preeminence of the rights

1. The case law compensation to the lack of protection of Fundamental Right

EUROPEAN COURT OF JUSTICE Case Lawintegrating Human Rights into EEC lawStauder , November 12, 1969the CJEC refers implicitly to the concept of Fundamental Right which it integrates in the (GPL) General Principles of Law, applicable in the absence even of written rules.

International Handelsgesellschaft 1970,the respect of the basic rights, forms integral part of the general principles of law (GPL), whose Court ensures the respect. the safeguard of these rights, while taking as a starting point the common constitutional traditions of the Member States (1st mention of this concept), must be ensured within the framework of the structure and the objectives of Community.

Nold 14 May 1974

the Court renews the reference to the common constitutional traditions and adds a reference to the treaties relative to Human rights to which members States adhered, in particular the European Convention of human rights.

Rutili 28 October 1975Since 1975, with the Rutili judgment, the Court will refer directly to the rights guaranteed by the CEDH, which becomes thus its principal source of inspiration. l

2. The textual contribution to the protection of the rights: the Charter of Fundamental Rights of the European Union

A. Communitys evolution towards a codification

B. A catalogue of EU fundamental rights

1) 6 values

2) Delimitation of the rights

EU Charter distinction - subjective rights, which means that their invocation is possible directly by private individuals in front of the judge;- the principles which, addressed to the legislator, are however not deprived of legal consequences, their non respect being sanctioned.

Article 15 of the EU Charter. Freedom to choose an occupation and right to engage in work

1. Everyone has the right to engage in work and to pursue a freely chosen or accepted occupation.2. Every citizen of the Union has the freedom to seek employment, to work, to exercise the right of establishment and to provide services in any Member State.3. Nationals of third countries who are authorised to work in the territories of the Member States are entitled to working conditions equivalent to those of citizens of the Union.

Charter 6 valuesDignityFreedomsEqualitySolidarityCitizenships rightsJustice

+General provisions

PREAMBLEThe peoples of Europe, in creating an ever closer union among them, are resolved to share a peaceful future based on common values.Conscious of its spiritual and moral heritage, the Union is founded on the indivisible, universal values of human dignity, freedom, equality and solidarity; it is based on the principles of democracy and the rule of law. It places the individual at the heart of its activities, by establishing the citizenship of the Union and by creating an area of freedom, security and justice.PREAMBLE of the EU FR CharterThe peoples of Europe, in creating an ever closer union among them, are resolved to share a peaceful future based on common values.Conscious of its spiritual and moral heritage, the Union is founded on the indivisible, universal values of human dignity, freedom, equality and solidarity; it is based on the principles of democracy and the rule of law. It places the individual at the heart of its activities, by establishing the citizenship of the Union and by creating an area of freedom, security and justice.

The Union contributes to the preservation and to the development of these common values while respecting the diversity of the cultures and traditions of the peoples of Europe as well as the national identities of the Member States and the organisation of their public authorities at national, regional and local levels; it seeks to promote balanced and sustainable development and ensures free movement of persons, goods, services and capital, and the freedom of establishment.To this end, it is necessary to strengthen the protection of fundamental rights in the light of changes in society, social progress and scientific and technological developments by making those rights more visible in a Charter.

This Charter reaffirms, with due regard for the powers and tasks of the Community and the Union and the principle of subsidiarity, the rights as they result, in particular, from the constitutional traditions and international obligations common to the Member States, the Treaty on European Union, the Community Treaties, the European Convention for the Protection of Human Rights and Fundamental Freedoms, the Social Charters adopted by the Community and by the Council of Europe and the case-law of the Court of Justice of the European Communities and of the European Court of Human Rights. Enjoyment of these rights entails responsibilities and duties with regard to other persons, to the human community and to future generations.The Union therefore recognises the rights, freedoms and principles set out hereafter.

Preamble of the ECHRThe governments signatory hereto, being members of the Council of Europe, Considering the Universal Declaration of Human Rights proclaimed by the General Assembly of the United Nations on 10 December 1948; Considering that this Declaration aims at securing the universal and effective recognition and observance of the Rights therein declared; Considering that the aim of the Council of Europe is the achievement of greater unity between its members and that one of the methods by which that aim is to be pursued is the maintenance and further realisation of human rights and fundamental freedoms; Reaffirming their profound belief in those fundamental freedoms which are the foundation of justice and peace in the world and are best maintained on the one hand by an effective political democracy and on the other by a common understanding and observance of the human rights upon which they depend; Being resolved, as the governments of European countries which are likeminded and have a common heritage of political traditions, ideals, freedom and the rule of law, to take the first steps for the collective enforcement of certain of the rights stated in the Universal Declar-ation, Have agreed as follows:

CHAPTER I. DIGNITY

From article 1 to article 5

Article 1 of the EU Charter. Human dignity

Human dignity is inviolable. It must be respected and protected.

Article 2 of the EU Charter. Right to life

1. Everyone has the right to life.2. No one shall be condemned to the death penalty, or executed.

Article 3 of the EU Charter Right to the integrity of the person1. Everyone has the right to respect for his or her physical and mental integrity.2. In the fields of medicine and biology, the following must be respected in particular:. the free and informed consent of the person concerned, according to the procedures laid down by law,. the prohibition of eugenic practices, in particular those aiming at the selection of persons,. the prohibition on making the human body and its parts as such a source of financial gain,. the prohibition of the reproductive cloning of human beings.

Article 4 of the EU Charter Prohibition of torture and inhuman or degrading treatment or punishmentNo one shall be subjected to torture or to inhuman or degrading treatment or punishment.

Article 5 of the EU Charter Prohibition of slavery and forced labour

1. No one shall be held in slavery or servitude.2. No one shall be required to perform forced or compulsory labour.3. Trafficking in human beings is prohibited.

CHAPTER II. FREEDOMSFrom article 6 to article 19.

Article 6 of the EU Charter. Right to liberty and security

Everyone has the right to liberty and security of person.

Article 7 of the EU Charter. Respect for private and family life

Everyone has the right to respect for his or her private and family life, home and communications.Article 8 of ECHR Right to respect for private and family life 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.

Article 8 of the UE Charter Protection of personal data1. Everyone has the right to the protection of personal data concerning him or her.2. Such data must be processed fairly for specified purposes and on the basis of the consent of the person concerned or some other legitimate basis laid down by law. Everyone has the right of access to data which has been collected concerning him or her, and the right to have it rectified.3. Compliance with these rules shall be subject to control by an independent authority.

Article 9 of the UE Charter. Right to marry and right to found a family The right to marry and the right to found a family shall be guaranteed in accordance with the national laws governing the exercise of these rights.Article 12 of ECHR. Right to marry Men and women of marriageable age have the right to marry and to found a family, according to the national laws governing the exercise of this right.

Article 10 of the UE Charter. Freedom of thought, conscience and religion

1. Everyone has the right to freedom of thought, conscience and religion. This right includes freedom to change religion or belief and freedom, either alone or in community with others and in public or in private, to manifest religion or belief, in worship, teaching, practice and observance.2. The right to conscientious objection is recognised, in accordance with the national laws governing the exercise of this right.

Article 11 of the EU Charter . Freedom of expression and information

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.2. The freedom and pluralism of the media shall be respected.

Article 12 of the UE Charter. Freedom of assembly and of association

1. Everyone has the right to freedom of peaceful assembly and to freedom of association at all levels, in particular in political, trade union and civic matters, which implies the right of everyone to form and to join trade unions for the protection of his or her interests.2. Political parties at Union level contribute to expressing the political will of the citizens of the Union.

Article 14 of the UE Charter Right to education

1. Everyone has the right to education and to have access to vocational and continuing training.2. This right includes the possibility to receive free compulsory education.3. The freedom to found educational establishments with due respect for democratic principles and the right of parents to ensure the education and teaching of their children in conformity with their religious, philosophical and pedagogical convictions shall be respected, in accordance with the national laws governing the exercise of such freedom and right.

Article 17 of the UE Charter Right to property1. Everyone has the right to own, use, dispose of and bequeath his or her lawfully acquiredpossessions. No one may be deprived of his or her possessions, except in the public interest and in the cases and under the conditions provided for by law, subject to fair compensation being paid in good time for their loss. The use of property may be regulated by law in so far as is necessary for the general interest.2. Intellectual property shall be protected.

Article 18 of the EU Charter. Right to asylum

The right to asylum shall be guaranteed with due respect for the rules of the Geneva Convention of 28 July 1951 and the Protocol of 31 January 1967 relating to the status of refugees and in accordance with the Treaty establishing the European Community.

Article 19 of the EU Charter Protection in the event of removal, expulsion or extradition

1. Collective expulsions are prohibited.2. No one may be removed, expelled or extradited to a State where there is a serious risk that he or she would be subjected to the death penalty, torture or other inhuman or degrading treatment or punishment.

Article 20 of the EU Charter. Equality before the law

Everyone is equal before the law.Article 21. Non-discrimination1. Any discrimination based on any ground such as sex, race, colour, ethnic or social origin, genetic features, language, religion or belief, political or any other opinion, membership of a national minority, property, birth, disability, age or sexual orientation shall be prohibited.2. Within the scope of application of the Treaty establishing the European Community and of the Treaty on European Union, and without prejudice to the special provisions of those Treaties, any discrimination on grounds of nationality shall be prohibited.Article 22. Cultural, religious and linguistic diversityThe Union shall respect cultural, religious and linguistic diversity.

Article 23 of the EU Charter. Equality between men and women

Equality between men and women must be ensured in all areas, including employment, work and pay.The principle of equality shall not prevent the maintenance or adoption of measures providing for specific advantages in favour of the under-represented sex.

Article 47. Right to an effective remedy and to a fair trialEveryone whose rights and freedoms guaranteed by the law of the Union are violated has the right to an effective remedy before a tribunal in compliance with the conditions laid down in this Article.Everyone is entitled to a fair and public hearing within a reasonable time by an independent and impartial tribunal previously established by law. Everyone shall have the possibility of being advised, defended and represented.Legal aid shall be made available to those who lack sufficient resources in so far as such aid is necessary to ensure effective access to justice.

CHAPTER VII. GENERAL PROVISIONSArticle 51. Scope1. The provisions of this Charter are addressed to the institutions and bodies of the Union with due regard for the principle of subsidiarity and to the Member States only when they are implementing Union law. They shall therefore respect the rights, observe the principles and promote the application thereof in accordance with their respective powers.2. This Charter does not establish any new power or task for the Community or the Union, ormodify powers and tasks defined by the Treaties.

Article 52. Scope of guaranteed rights1. Any limitation on the exercise of the rights and freedoms recognised by this Charter must be provided for by law and respect the essence of those rights and freedoms. Subject to the principle of proportionality, limitations may be made only if they are necessary and genuinely meet objectives of general interest recognised by the Union or the need to protect the rights and freedoms of others.

Article 53. Level of protectionNothing in this Charter shall be interpreted as restricting or adversely affecting human rights and fundamental freedoms as recognised, in their respective fields of application, by Union law and international law and by international agreements to which the Union, the Community or all the Member States are party, including the European Convention for the Protection of Human Rights and Fundamental Freedoms, and by the Member States' constitutions.

2. Rights recognised by this Charter which are based on the Community Treaties or the Treaty on European Union shall be exercised under the conditions and within the limits defined by those Treaties.3. In so far as this Charter contains rights which correspond to rights guaranteed by the Convention for the Protection of Human Rights and Fundamental Freedoms, the meaning and scope of those rights shall be the same as those laid down by the said Convention. This provision shall not prevent Union law providing more extensive protection.

Source: http://europa.eu/legislation_summaries/institutional_affairs/treaties/lisbon_treaty/ai0020_en.htm

Division of competences within the European UnionINTRODUCTION The Treaty of Lisbon clarifies the division of competences between the European Union (EU) and Member States. It introduces a precise classification for the first time in the founding Treaties, distinguishing between three main types of competence: exclusive competences, shared competences and supporting competences.This attempt at clarification does not result in any notable transfer of competence. However, this reform is important and vital for the proper functioning of the EU. Several conflicts of competence have emerged in the past between the EU and Member States. Henceforth, the boundaries between the competences of each are clearly defined. In addition, this transparency facilitates the application of the fundamental principles relating to the control and exercise of these competences.

ABOLITION OF THE PILLARS OF THE EU

One of the most notable changes resulting from the Treaty of Lisbon concerns the abolition of the three-pillar structure of the EU. These pillars were:the European Community;the Common Foreign and Security Policy (CFSP);police and judicial cooperation in criminal matters.Within this structure, several types of competence were superimposed. Acts adopted under the framework of the first pillar were adopted in accordance with the EUs legislative procedures. In contrast, the other two pillars were based on intergovernmental cooperation between Member States.The Treaty of Lisbon puts an end to this complicated structure. The European Community disappears. It is replaced by the EU, which is endowed with legislative procedures enabling it to exercise the competences conferred upon it to the full extent. Moreover, the EU also acquires legal personality, which was previously reserved for the old Community. It is therefore able henceforth to conclude treaties in the fields coming within its area of competence.

THE THREE MAIN TYPES OF COMPETENCE

The Treaty on the Functioning of the EU (TFEU) distinguishes between three types of competence and draws up a non-exhaustive list of the fields concerned in each case:exclusive competences (Article 3 of the TFEU): the EU alone is able to legislate and adopt binding acts in these fields. The Member States role is therefore limited to applying these acts, unless the Union authorises them to adopt certain acts themselves;shared competences (Article 4 of the TFEU): the EU and Member States are authorised to adopt binding acts in these fields. However, Member States may exercise their competence only in so far as the EU has not exercised, or has decided not to exercise, its own competence;supporting competences (Article 6 of the TFEU): the EU can only intervene to support, coordinate or complement the action of Member States. Consequently, it has no legislative power in these fields and may not interfere in the exercise of these competences reserved for Member States.

SPECIAL COMPETENCES

The EU has special competences in certain fields:the coordination of economic and employment policies (Article 5 of the TFEU): the EU is responsible for ensuring the coordination of these policies. It is required to define the broad direction and guidelines to be followed by Member States;the CFSP (Article 24 of the Treaty on EU): the EU has competence in all fields connected with the CFSP. It defines and implements this policy via, among others, the President of the European Council and the High Representative of the Union for Foreign Affairs and Security Policy, whose roles and status have been recognised by the Treaty of Lisbon. However, the EU may not adopt legislative acts in this field. In addition, the Court of Justice of the EU does not have competence to give judgment in this area;the flexibility clause (Article 352 of the TFEU): this clause enables the EU to act beyond the power of action conferred upon it by the Treaties if the objective pursued so requires. However, this clause is framed by a strict procedure and by certain restrictions in terms of its application.THE EXERCISE OF COMPETENCES The exercise of Union competences is subject to three fundamental principles which appear in Article 5 of the Treaty on EU. The definition of EU competences greatly facilitates the proper application of these principles:the principle of conferral: the Union has only the competences conferred upon it by the Treaties;the principle of proportionality: the exercise of EU competences may not exceed what is necessary to achieve the objectives of the Treaties;the principle of subsidiarity: for shared competences, the EU may intervene only if it is capable of acting more effectively than the Member States;

TRANSFER OF COMPETENCES

The current division of competences between the EU and Member States is not set in stone. However, the reduction or extension of EU competences is a delicate matter which requires the consent of all Member States and necessitates a revision of the Treaties.