Resolution - Charter of Fundamental Rights (Seville, Spain, on 3 June 2001)
The General Assembly of the European Women Lawyers Association, held from 1 - 3 June 2001 in Sevilla, Spain, has unanimously adopted the following
EWLA welcomes the Charter of Fundamental Rights, which the Council, the European Parliament and the Commission proclaimed jointly in December 2000. This proclamation is an indication that the Union does not have only an economic character. The process by which the Charter was elaborated is without precedent in the Union. The body which drafted it (the “Convention”), composed of representatives of Heads of State and Government, of the Commission, the European Parliament and national Parliaments, worked in a transparent way which allowed civil society to express its views. The Convention met the challenge of combining, in a single text, civil, political, economic, social and cultural rights, which until now were laid down in a variety of international, European or national instruments. EWLA regards the Charter as an important step in guaranteeing fundamental rights in the Union.
The objective of the Charter, as fixed by the Cologne Council of June 1999, was to make fundamental rights “visible” in the Union. The Declaration on the Future of the Union annexed to the Treaty of Nice invites civil society to “a deeper and wider debate” on the future development of the Union and the status of the Charter. It should be made sure that the Charter, at least, embodies the “acquis communautaire”, which reflects the values of European civilisation, since the Union is required by Article 2 EU Treaty to “maintain” this acquis and to “build on it”. All persons should know which rights they have (transparency, visibility), that the Union and the Member States will ensure and promote their effective implementation (legally binding) and that everyone is entitled to effective legal protection. EWLA considers that the provisions of the Charter should be given a broad and progressive interpretation and that an improved version of the Charter should become legally binding in the context of the Constitutional process to be initiated in the Union.
EWLA considers that it is its duty, as a lawyers’ organisation of European level, to participate in the “deeper and wider debate” to which the Nice Intergovernmental Conference has invited civil society and to make all possible efforts in order to contribute to the effective guarantee of fundamental rights in the Union. It recalls that only improvements of the Charter are allowed by Article 2 EU Treaty and, in summarising the conclusions of its first Congress, which has taken place in Sevilla on 1-3 June 2001, it presents in the Annex, as its first contribution to the debate, some examples of improvements of the Charter which it considers necessary.
1. Right to the free development of one’s personality (new)
EWLA proposes to add the following new Article after Art. 1:
Article 1a Right to the free development of one’s personality
Everyone is entitled to the free development of one’s personality as long as the rights of others are not infringed. The core of the personality remains free of any intervention by the States or the Union.
This provision reflects the common Constitutional traditions of Members States and is an expression of the principle that “human dignity is inviolable” proclaimed by Article 1 and of the affirmation that the Union “places the individual at the heart of its activities” which appears in the Charter’s preamble.
The absolute guarantee of the core of the personality goes beyond the respect for private and family life as enshrined in Article 7, which reduces the right to privacy to the territory of one’s home, outside public life. This level of protection is necessary, but not yet sufficient. The protection of personal data as laid down in Article 8 is to be welcomed, but seems also insufficient. The core of the personality represents an absolute limit, linked to areas such as slavery, torture, death penalty or euthanasia.
Moreover, the rapid changes in technology which lead to recent legal developments show that issues such as the use of diary entries, the protection of the name, the right to know one’s own descent e.g., are not sufficiently covered by either the general reference to human dignity or the provisions of Article 7 or 8 of the Charter.
2. Prohibition of torture and inhuman or degrading treatment
Article 4 No one shall be subjected to torture or to inhuman or degrading treatment, including sexual mutilation. Any kind of physical or moral violence, including domestic violence, shall be prohibited.
The above additions are necessary in order to make more visible, on the one hand, the problem of sexual mutilation, which, as experience and recent cases in national courts show, is inflicted on girls belonging to minorities, even on Union territory, and on the other hand the problem of violence, including domestic violence, which is a serious concern in the Union.
3. Right to marry and right to found a family (Article 9)
EWLA proposes to add a second sentence to Article 9 as follows:
Article 9 Right to marry and right to found a family
The right to marry, or not to marry, and the right to found a family shall be guaranteed in accordance with national laws governing the exercise of these rights.
The right to marry should be complemented by the right not to marry, in order that any constraint to marry is explicitly excluded. This aspect is not included in the Charter, and therefore should be added.
4. Right to asylum (Article 18)
EWLA proposes to reformulate this Article as follows:
Article 18 Right to asylum
Any person who is persecuted on political, religious or racial grounds or whose freedom or fundamental rights, including his/her physical or moral integrity, is threatened, has a right to asylum, as well as a right of residence in the State where he/she seeks asylum until the conclusion of the relevant procedure.
The proposed wording of the right to asylum is more detailed than the wording of the Charter and includes the most important grounds of persecution, or threat of persecution, from which any person should be protected by a legal order, which, according to Article 6(1) EU Treaty, “is founded on the principles of liberty, democracy, respect for human rights and fundamental freedoms and the rule of law”. In order to fulfil its objective, the Charter should not refer to other international agreements and treaties, but should formulate clearly and concretely the conditions for asylum, so as to satisfy the requirement of transparency and “visibility”. It should, moreover, be clear that the right to asylum belongs even to Union citizens; this Article will thus complement Article 7 EU Treaty, which provides for sanctions in case of “a serious and persistent breach by a Member State of principles mentioned in Article 6(1) ” (hereabove).
5. Equality between men and women (Article 23)
EWLA welcomes the specific Article on equality between men and women. Gender equality, which was recognised long ago as a fundamental right by the Court of Justice, has been strengthened by the Treaty of Amsterdam. The new Articles 2 and 3(2) EC Treaty make gender equality a “task” and an “aim” of the Community and impose on it the positive obligation “to eliminate inequalities, and to promote equality, between men and women” “in all its activities” (‘mainstreaming’). The Treaty thus requires not only formal, but moreover, substantive, de facto gender equality. “Inequalities”, mainly to the detriment of women, subsist owing to “prejudices and stereotypes concerning their role and capacities”, according to the Court. Women are neither a minority nor a group. Therefore, general non-discrimination clauses don’t suffice for eliminating gender inequalities and substantive gender equality cannot be achieved without positive measures. Such measures do not constitute discrimination or derogations from the gender equality principle, but necessary means for its effective implementation. This is expressly stipulated in the CEDAW and it results from the new Treaty provisions. Women’s human rights are constantly violated and their status is in many respects inferior to that of men. This is a serious concern in the Union. This is why the Nice Council, in endorsing the European Social Agenda, has made substantive gender equality a strategic social and economic goal of the Union.
In view of the above, EWLA proposes to reformulate Article 23 as follows:
Article 23 Equality between men and women
(1)Equality between men and women must be ensured and promoted in all areas, including employment, work and pay. Any direct or indirect discrimination on grounds of sex is prohibited.
(2) Measures providing for specific advantages with a view to ensuring full equality in practice between men and women in any area do not constitute gender discrimination or derogations from the principle of gender equality. They are indicated, in the first instance in favour of women, until full and substantive gender equality is achieved.
(1) According to the explanation that appears under Article 23 of the Charter, the first paragraph of this Article “is based on Articles 2 and 3(2) of the EC Treaty which impose the objective of promoting equality between men and women in the Community”. The requirement of “promoting” gender equality should be included in Article 23 itself. Moreover, in view of the fact that, although indirect discrimination persists everywhere, there is very limited sensitisation to this issue, it should be made more visible that both direct and indirect discrimination are prohibited.
(2) A positive formulation of para. 2 is required in order to make it visible that positive measures are necessary means for achieving substantive gender equality and, therefore, they cannot be considered derogations from the gender equality principle. The last sentence recalls Declaration No 28 annexed to the Treaty, which, in authentically interpreting Article 141(4) EC Treaty, indicates that positive measures should in the first instance be in favour of women. This provision is also inspired by the CEDAW, which has been ratified by all Member States and which is increasingly invoked by Community and Union instruments.
6. Reconciling family and professional life (Article 33)
EWLA welcomes the inclusion and development of the aspect of reconciling family and professional life into the Charter. However, in view of the restrictive wording of the Charter, EWLA proposes the following:
Article 33 Reconciling family and professional life
(1) Every person has the right to legal, economic and social protection of his/her family life.
(2) The special protection of women and men with family responsibilities and the reconciliation of family and professional life shall be guaranteed by the Union and Member States. Women have a right to maternity protection. Any unfavourable treatment directly or indirectly related to maternity, paternity or the reconciling of family and professional life is prohibited.
(1) It is preferable and clearer to guarantee an individual right to family protection.
(2) The reconciling of family and professional life is of particular importance for the lives of men and women and the future of the Union and its Member States. This is why it has been made a strategic goal of the Union and a necessary condition for the achievement of its other strategic goals, by the European Social Agenda as endorsed by the Nice Council. It should therefore be the object of a separate paragraph, which should require of the Union and the Member States to guarantee it and should prohibit any unfavourable treatment of men and women in this respect. Furthermore, the right of women to maternity protection and their right not to suffer any unfavourable treatment directly or indirectly related to pregnancy or maternity has been recognised by the Court’s case law. The general and broad formulation of this para. provides a good framework for the development of Community and national legislation dealing with these issues.
7. Citizen’s rights
The principle of balanced participation of women and men in decision-making at all levels should be proclaimed by the Charter.
8. General provisions
In accordance with the well-established case law of the Court and in order to avoid a restriction of the application of fundamental rights in the Member States, the first sentence of Article 51 should be improved as follows:
The provisions of this Charter are addressed to the institutions and bodies of the Union with due regard to the principle of subsidiarity and to the Member States when they are acting within the scope of Union law.
9. Limitations of the rights should be carefully re-examined with a view to make them clear and transparent and to be sure that they do not affect the core of the rights. This re-examination should concern all the Articles of the Charter.