Position- "Time of Reflection" on the Future of the Union (6 December 2005)
«PERIOD OF REFLECTION» ON THE FUTURE OF THE UNION FIRST POSITION
Continuing its active participation in the Debate on the Future of the Union, during which it presented 12 contributions to the Convention and 4 Appeals to the IGC :
I. EWLA welcomes
• The Declaration of 18 June 2005, by which the EU Heads of State or government proclaimed a «period of reflection» on the Union’s future. EWLA agrees with them that the French and Dutch no votes «do not call into question citizens' attachment to the construction of Europe; citizens have nevertheless expressed concerns and worries which need to be taken into account».
• The Commission’s «Plan-D for Democracy, Dialogue and Debate», launched by its Vice-President Margot Wallström, who underlined that this Plan «is about debate, dialogue and listening».
• ?he A. Duff/J. Voggenhuber Motion for an EP «Resolution on the period of reflection».
The EESC initiative to organise the Forum «Bridging the Gap: how to bring Europe and its citizens closer together?» (7-8 November 2005).
• The European Ombudsman’s initiative to organise the Public Workshop: «The European Ombudsman: 10 years, 20,000 complaints ? too many? too few?» (6 December 2005).
II. EWLA has welcomed several Constitutional Treaty provisions, including the listing of gender equality in Art. I-2 (Union’s values), the provisions on participatory democracy (Arts. I-47 and I-50), and the provisions against trafficking in human beings (Arts. III-267 and. III-271).
III. EWLA has at the same time underlined that:
? The acquis in human rights, including social rights – the Union’s cornerstone (Art. 6(1) TEU) and an essential element of the European identity – is irreducible; it must be safeguarded and strengthened.
?The Constitutional Treaty omitted some fundamental horizontal social objectives proclaimed in the TEC and the Lisbon Strategy, such as the improvement of the quality of life and work.
? The amendments to the Charter’s general provisions, made by the Convention and the IGC, seemed to restrict its scope. EWLA was among the first to deplore these amendments, but stressed that they could not affect the acquis. Many other NGOs, as well as National Human Rights Commissions, have subsequently also expressed their deep concern in this respect.
IV. The Charter, as proclaimed in Nice, in December 2000, is the only existing Charter. It may not have binding legal force, but to the extent that it reflects the acquis, it constitutes an irreducible part of it.
V. In this period, which is crucial for the future of Europe and of the values that constitute its raison d’être, EWLA recalls once more that:
• the acquis in fundamental rights, including social rights, is broad and constantly developing; it must be safeguarded and strenghtened;
• every individual on Union soil is the subject of numerous rights, guaranteed by European law, international human rights treaties, and a rich case law of the Court of Justice of the European Communities and the European Court of Human Rights;
• every individual on Union soil must exercise and claim these rights and give national and European courts the opportunity to safeguard and develop the acquis.
VI. EWLA also recalls that all EC/EU institutions, organs and bodies:
? Have the duty to apply gender mainstreaming in all areas (Art. 3(2) TEC); women, who are the victims of persisting, and often multiple, inequalities, are neither a group nor a minority, but one of the two forms of the human being, and half of the European population – viz. half of the European voters.
? A conditio sine qua non of the legitimacy of any action of these institutions, bodies and organs is the real participation of civil society, especially NGOs – including European women’s NGOs - having developed effective activity and proven their expertise – in the European debate and decision-making process, at all levels.
Public Workshop organised by the European Ombudsman
«The European Ombudsman: 10 years, 20.000 complaints ? too many? too few?»
Brussels, 6 December 2005
Statement on behalf of the European Women Lawyers Association (EWLA)
presented by Sophia Spiliotopoulos, past vice-president, member of the Board of EWLA
EWLA thanks the European Ombudsman very warmly for having honoured it with an invitation to his important Workshop and wishes him a fruitful continuation of his precious activity to the benefit of all women and men in the Union. On this occasion, EWLA, relying on its contributions to the work of the European Convention and the IGC, presents its comments regarding the current effects of the Charter.
It seems that the Commission is receiving complaints by persons who consider that their Member State is infringing their rights, as enshrined in the Charter of Fundamental Rights of the EU. It is true that the Charter, as proclaimed by Parliament, the Council and the Commission, during the Nice European Council, in December 2000, has no legally binding effect. Thus, it cannot be directly relied upon as such. However, the Charter reflects, to a considerable extent, the acquis communautaire in fundamental rights, that is, the fundamental rights guaranteed by EC/EU law, including ECJ case law. Therefore, a breach of a right included in the Charter is a breach of EC/EU law. This means that, whenever it receives a complaint of the above kind, the Commission will rely on the corresponding EC/EU rules, in order to control whether the Member State, against whom the complaint is made, is fulfilling its obligations under EC/EU law.
The Charter is an important step towards the codification of the acquis in fundamental rights, but it is common knowledge that not all its provisions reflect the acquis to its full extent. However, neither at this moment nor when it acquires legal force, can the Charter affect the acquis. This is recalled by the Charter itself, in its Article 53, which provides that none of its provisions may be interpreted as limiting or affecting fundamental rights and freedoms recognized by Union law, international law, international human rights conventions to which the Community, the Union or the Member States are party, and the Member States’ Constitutions.
Consequently, the Charter’s provisions may well be an indication of rights guaranteed under EC/EU law. It is, however, self-understood that the Commission, in dealing with the above kind of complaints, as well as the European Ombudsman, in exercising his powers under the Treaty, will take account of the whole acquis regarding the right at issue; not merely the Charter's provision(s) invoked by the complainant. Moreover, they will examine the whole area of EC/EU law within which the case falls, in order to see whether there are other rights of the complainant which are infringed by the acts or omissions of the State against which the complaint is made, irrespective of whether and to what extent such rights are enshrined in the Charter.
Let us recall on this occasion that the only existing Charter is the original Charter, as proclaimed in Nice, without the amendments made to its general provisions by the European Convention and the IGC, which were not in accordance with the acquis and could well create confusion and legal uncertainty as to the scope of the fundamental rights, as EWLA has repeatedly pointed out. This is the Charter that must be retained and eventually be given legal effect.