Fundamental Rights in the EU The Added Value of the Treaty Establishing a Constitution for Europe Specialization Seminar in Human Rights, Winter/Spring 2007 Turku Law School / Åbo Akademi Tuomas Ojanen

The ABC’s of the European Constitution Signed by the Heads of State or Government on 29 October 2004 in Rome (published in Official Journal of the European Union, C310 of 16 December 2004, in the 20 official EU languages and in Gaelic) need to be ratified by all EU member states: 18 member states have already ratified the Treaty, either by parliamentary procedures or by referendum Currently undergoing “a period of reflection” in the aftermath of the negative results of the French and Dutch referendums What Way Forward? Modifications, while respecting its fundamental content? Mini-Treaty? Give up the veto? Greater use of “variable geometry”? The European Constitution is dead(?) – Long live European Constitutionalism!

The ABC’s of …(continued) Dual character: a constitutional document + a treaty under international law (the EU already has a constitution in material, functional and power-constraining terms!) Simplification (e.g. one single document, a reduced number of legislative instruments, the abolition of the pillar structure) Clarification (e.g. the distribution of the competences between the EU and its Member States, primacy of EU law, a legal personality for the EU) Incorporation (the Charter of Fundamental Rights) Codification (e.g. the primacy of EU law over conflicting national law)

Contribution to the protection of fundamental rights in the EU Incorporation, in part II of the Constitutional Treaty, of the Charter of Fundamental Rights Legal basis for the accession of the EU to the ECHR (I-Article 9 § 2) Extension of the jurisdiction of the EU Court of Justice to the acts adopted in matters of judicial criminal cooperation and police cooperation A normalization of the powers of the Court of Justice in referral procedures under Title VI EU The possibilities for private individuals to seek the annulment of an act, even of a general nature, directly affecting them would be enlarged (Article III-365 § 4) Obligation of the ECJ to provide, in certain cases, a preliminary ruling on the interpretation or the validity of EU law (e.g. deportation of a third-country national, see Article III-369 al. 4) An improvement of the protection of fundamental rights ensured by the national jurisdictions

The distinction between ”rights” and ”principles” II-112 § 5 : “The provisions of this Charter which contain principles may be implemented by legislative and executive acts taken by institutions, bodies, offices and agencies of the Union, and by acts of Member States when they are implementing Union law, in the exercise of their respective powers. They shall be judicially cognisable only in the interpretation of such acts and in the ruling on their legality.” Risk of partial watering-down? Cognizability of “principles”? Principles as “shields”, but not swords? Rights=Civil and political rights/Principles=Fundamental Cultural, Economic and Social Rights?