1 1Student in Political Science in Lyon from 1999 to 2002 (IEP de Lyon). Trainee in the Unit "Citizenship and Fundamental Rights" in Directorate General of Justice and Home Affairs at the European Commission from October 2003 to March 2004. Admitted to the European Master's Degree Programme on Human Rights and Democratisation in Venice in 2004. This article is based on a dissertation written in 2003 within a framework of the Master's Programme at Sussex European Institute at the University of Sussex, Brighton, United Kingdom. 1 owe many thanks to the professors of this Institute for their help and advice.
' This article will consider the last version of the draft, as submitted by the Convention on the future of Europe to the President of the European Council in Rome on 18 July 2003, (doc CONV 850/03.) available at .
2 (Article 7 (1) of the Constitutional draft: 'The Union shall recognise the rights, freedoms and principles set out in the Charter of Fundamental Rights which constitutes Part 11 of the Constitution.' 3 This name will sometimes be used instead of the full official name 'Convention for the Protection of Human Rights and Fundamental Freedoms'. 4 The European Court of Human Rights is now directly accessible to the individual and its jurisdiction is compulsory for all contracting parties. It sits on a permanent basis and deals with all the preliminary stages of a case. It delivers judgements and let the supervision of their execution to the Committee of Ministers. 5 Para. 4, Recommendation 1578 (2002), Parliamentary Assembly, Assembly debate on 24 September 2002 (27th Sitting).
6 This Charter has been drafted by a 'body' composed of representatives from national governments, national parliaments, the European Parliament and the Commission, and with observers from the Council of Europe and from the ECJ.
7 Complaints can only be brought against High-Contracting parties: Article 34 - Individual applications 'The Court may receive applications from any person, non- governmental organisation or group of individuals claiming to be the victim of a violation by one of the High-Contracting parties of the rights set forth in the Convention or the protocols thereto. The High-Contracting parties undertake not to hinder in any way the effective exercise of this right'. See CFDT v. European Community, application number 8030/77, 10 July 1978.
8 See M. & Co v. the Federal Republic of Germany, application number 13258/87, 9 February 1990, 'The Commission notes that the legal system of the European Communities not only secures fundamental rights but also provides for control of their observance'. 9 Matthews v. United kingdom, application no. 24833/94, 18 February 1999, the applicant complained a breach of her rights under Protocol 3, Article 1 (free elections for the 'choice of the legislature') by the United Kingdom government's agreement, with the other Member States of the European Communities, to exclude Gibraltar from European Parliament elections. 10 Ibid., Matthews, § 33, 'Indeed, the 1976 Act cannot be challenged before the European Court of Justice for the very reason that it is not a 'normal' act of the Community, but is a treaty within the Community legal order'.
11 J. Polakiewicz, 'The European Union's Charter of fundamental rights and the European Convention on Human Rights - Competition or coherence in Fundamental rights protection in Europe', 14 European Review of Public Law 1, (spring 2002), pup.853-878. Idea developed by Aristotelis Gavriliadis during an interview on 18/06/2003. 13 The monopoly of interpretation of the ECHR belongs to the European Court of Human Rights: Article 32 (1) ECHR: 'The jurisdiction of the Court shall extend to all maters concerning the interpretation and application of the Convention and the protocols thcreto which are referred to it as provided in Articles 33, 34 and 47, and Article 55 ECHR reads: 'The High Contracting parties agree that, except by special agreement, they will not avail themselves of treaties, conventions or declarations in force between them for the purpose of submitting, by way of petition, a dispute arising out of the interpretation or application of this convention to a means of settlement other than those provided for in this Convention'.
14 Recommendation 1578 (2002) § 6, Assembly debate on 24 September 2002 (27th Sitting). 15 Idea developed by Judge Marc Fischbach, interview conducted on 11 June 2003. 16 Interview with Johan Callewaert conducted on 11 June 2003. 17 Conducted 16 June 2003, Mr. Ladenburger advocates a rather cautious interpretation of Article 51 ( 1 ) on the scope of application of the Charter on Member
States, see his article 'L 'application pratique de la Charte des droits fondamentaux par la Commission europeenne', ERPL/REDP volume 14, no. 1, spring 2002, pp. 817 et seq. (826-832). Going in the same direction, cf. the statement of Michel Petite, Director General of the Commission Legal Service, to Working Group II of the Convention, document WD 13 of 5 September 2002, see . 18 Article 51(1) EU Charter states: 'the provisions of this Charter area addressed to the institutions and bodies of the Union with due regard for the principles of subsidiarity and to the Member States only when implementing Union law'. '9 Freedom of religion (Article 10 Charter) is not a competence of the Union and thus cannot be applied by Member States 'when implementing union law' but could present an interesting protection to borrow for some Member States.
1X1 Goodwin v. the United Kingdom, Application no. 28957/95, judgement of the 11 I July 2002. 21 Ibid., para. 58.
22 Article 12 ECHR: 'Men and women 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'. 23 Supra note 20, Goodwin, para. 100. 24 My translation, 'la Cour Europeenne des droits de l'homme en s'inspirant de la Charte sera incitge a renforcer le niveau de protection des droits de 1'home, M. Fischbach Za Convention europeenne des droits de I'homme et la Charte des droits fondamentaux de l'Union Européenne: concurrence ou complgmentariti?' at the Symposium des juges, Convention des Droits de 1'Homme et Charte de 1'Union Europeenne des Droits Fondamentaux, Luxembourg, 16 septembre 2002.
ZS Emesa Sugar v. Aruba, Case No. C-17/98 (2000), ECR 1-665, Order of the Court of 4 February 2000.
26 Idea raised by Judge Marc Fischbach during an interview 11 June 2003. 27 The inclusion of limitations within each Article. Z8 Article 53 Charter: 'Nothing in this charter shall be interpreted as restricting or adversely affecting human rights and fundamental freedoms as recognized, in their respective fields of application, by Union laws and international laws 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.'
29 Idea developed by J. Polakiewicz with H.C. Kriiger, 'Proposals for a Coherent Human Rights Protection System in Europe. The European Convention on Human Rights and the EU Charter of Fundamental Rights', 22 Human Rights Law Journal 1 (2001).
30 Ideas developed with Aristotelis Gavriliadis during an interview on the 18 June 2003.
31 The Council of Europe will have to think how to combine this protocol with the protocol 'reform of the reform' if it does not want to have to drive 2 major protocols in a short time. (Idea developed by Jorg Polakiewicz during an interview conducted on the 10/06/2003). See now the interim activity report of the Steering Committee for Human Rights, 'Guaranteeing the long-term effectiveness of the European Court of Human Rights - Implementation of the Declaration adopted by the Committee of Ministers at its 112"1 Session (14-15 May 2003)', CDDH(2003)026.
3z And we can also wonder if this reaction is not a 'twisted' way to push again for an official accession.