Still lost in space? Why the Lisbon Treaty does not help to guide individuals in search of an effective enforcement of fundamental rights Agata Capik, Franziska Boehm

The pluralism of sources on the example of European Data Protection rules. Franziska Boehm, Agata Capik

Questions Are there some "hidden spaces" left? What exactly does the Treaty of Lisbon change in the fundamental rights system of the EU? Franziska Boehm, Agata Capik

I. General legal framework General Legal Framework European Law Directive 95/46 Case law of the ECJ Area specific directives Area specific pro- visions (Europol etc.) Third pillar provision European Charter of Fundamental R Public international Law Convention and ECHR International agreements OECD Guidelines Case Law ECHR Domestic Law (harmonised and Not harmonised) National data protection acts Third State law in case of transmis- sion

II. First Pillar and Police and Judicial Cooperation measures First Pillar: Effective protection Directive 95/46 ECHR and Convention N° 108 Case law of the ECJ and the ECHR Third Pillar: Not harmonised Proposal framework Decision Europol Eurojust Schengen International agreements (Flight Passenger, Prüm Treaty)

III. The Schengen Information System (SIS I + II) SIS II Proposal for a Council Decision on the use of SIS II (Third Pillar Convention N° 108) Proposal for a Regulation on the use of SIS II (First Pillar, Directive 95/46) Proposal for a Regulation regarding the acces to SIS II (First Pillar, Directive 95/46)

IV. Flight Passenger Data Flight Passenger Agreement Annexed letter American domestic law Seven different domestic law measures ECHR (international law)

V. Preliminary Result Spaces left in protection system, i.e., no harmonised fundamental rights system up to now ► harmonisation is necessary. The different applicable intruments,each with its different binding force, lead to a confusing situation. The existing protection framework should remain applicable, when specific legislation is developed.

Does the Reform Treaty help? Formal changes:  Legal status of the Charter  Historical review  Comparison to the current provisions Substantial changes:  Efficient enforcement?  ECJ competences and limitations  Opt-out-measures

Formal point of (re)view Primary law status given to the Charter:  Single European Act  Maastricht  Amsterdam  Nice  Laeken

Formal point of (re)view Comparision with current provisions  Current Art. 6 EU versus upcoming wording of the provisions Art. 6 EU  Sources for protection: - General principles, - ECHR and - the Charter

Substantial point of (re)view Current Enforcement possibilities of the fundamental ritghs:  Current position of the ECJ  Compatibility with the Community law or protection of individuals?  Relation between ECJ and ECtHR

Substantial point of (re)view Enhanced competences in JHA Locus standi in action for anulment  The right to the effective remedy in the Charter and strict admisibility conditions Opt-out-measures PL - UK

Substantial point of (re)view Conclusions: Primary law status of the Charter brings no changes alone In conjuction with substantial changes of the enforcement rules – Changes within the protection of fundamental rights system only under certain conditions

Still lost in Space Final conclusions: - Missed oportunity to build the efficient and unified fundamental rights protection system -confusing pluralism of sources applicable in the different areas of law still remains -Incoherent provisions related to the ECJ competences and locus standi of individuals Franziska Boehm, Agata Capik