TREATY ESTABLISHING A CONSTITUTION FOR EUROPE
Protocols annexed to the Treaty establishing a Constitution for
Europe
1. PROTOCOL ON THE ROLE OF NATIONAL PARLIAMENTS IN THE EUROPEAN UNION
A. DECLARATIONS CONCERNING
PROVISIONS OF THE CONSTITUTION
1. Declaration on Article I-6
The Conference notes that Article I-6 reflects existing case law of the Court
of Justice of the
European Communities and of the Court of First Instance.
2. Declaration on Article I-9(2)
The Conference agrees that the Union's accession to the European Convention
on the Protection of
Human Rights and Fundamental Freedoms should be arranged in such a way as
to preserve the
specific features of Union law. In this connection, the Conference notes the
existence of a regular
dialogue between the Court of Justice of the European Union and the European
Court of Human
Rights; such dialogue could be reinforced when the Union accedes to that Convention.
3. Declaration on Articles I-22, I-27 and I-28
In choosing the persons called upon to hold the offices of President of the
European Council,
President of the Commission and Union Minister for Foreign Affairs, due account
is to be taken of
the need to respect the geographical and demographic diversity of the Union
and its Member States.
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4. Declaration on Article I-24(7)
concerning the European Council decision
on the exercise of the Presidency of the Council
The Conference declares that the Council should begin preparing the European
decision
establishing the measures for applying the European decision of the European
Council on the
exercise of the Presidency of the Council as soon as the Treaty establishing
a Constitution for
Europe is signed and should give its political approval within six months.
A draft European
decision of the European Council, which will be adopted on the date of entry
into force of the said
Treaty, is set out below:
Draft European decision of the European Council on the exercise of the Presidency
of the Council
ARTICLE 1
1. The Presidency of the Council, with the exception of the Foreign Affairs
configuration, shall be
held by pre-established groups of three Member States for a period of 18 months.
The groups shall
be made up on a basis of equal rotation among the Member States, taking into
account their
diversity and geographical balance within the Union.
2. Each member of the group shall in turn chair for a six-month period all
configurations of the
Council, with the exception of the Foreign Affairs configuration. The other
members of the group
shall assist the Chair in all its responsibilities on the basis of a common
programme. Members of
the team may decide alternative arrangements among themselves.
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ARTICLE 2
The Committee of Permanent Representatives of the Governments of the Member
States shall be
chaired by a representative of the Member State chairing the General Affairs
Council.
The Chair of the Political and Security Committee shall be held by a representative
of the Union
Minister for Foreign Affairs.
The chair of the preparatory bodies of the various Council configurations,
with the exception of the
Foreign Affairs configuration, shall fall to the member of the group chairing
the relevant
configuration, unless decided otherwise in accordance with Article 4.
ARTICLE 3
The General Affairs Council shall ensure consistency and continuity in the
work of the different
Council configurations in the framework of multiannual programmes in cooperation
with the
Commission. The Member States holding the Presidency shall take all necessary
measures for the
organisation and smooth operation of the Council's work, with the assistance
of the General
Secretariat of the Council.
ARTICLE 4
The Council shall adopt a European decision establishing the measures for
the implementation of
this decision.
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5. Declaration on Article I-25
The Conference declares that the European decision relating to the implementation
of Article I-25
will be adopted by the Council on the day the Treaty establishing a Constitution
for Europe enters
into force. The draft decision is set out below:
Draft European decision of the Council relating to the implementation of Article
I-25
THE COUNCIL OF THE EUROPEAN UNION,
Whereas:
(1) Provisions should be adopted allowing for a smooth transition from the
system for
decision-making in the Council by a qualified majority as defined in the Treaty
of Nice and
set out in Article 2(2) of the Protocol on the transitional provisions relating
to the institutions
and bodies of the Union annexed to the Constitution, which will continue to
apply until
31 October 2009, to the voting system provided for in Article I-25 of the
Constitution, which
will apply with effect from 1 November 2009.
(2) It is recalled that it is the practice of the Council to devote every
effort to strengthening the
democratic legitimacy of decisions taken by a qualified majority.
(3) It is judged appropriate to maintain this decision as long as is necessary
to ensure smooth
transition to the new voting system provided for in the Constitution,
HAS DECIDED AS FOLLOWS:
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ARTICLE 1
If members of the Council, representing:
(a) at least three quarters of the population, or
(b) at least three quarters of the number of Member States
necessary to constitute a blocking minority resulting from the application
of Article I-25(1),
first subparagraph, or Article I-25(2), indicate their opposition to the Council
adopting an act by
a qualified majority, the Council shall discuss the issue.
ARTICLE 2
The Council shall, in the course of these discussions, do all in its power
to reach, within a
reasonable time and without prejudicing obligatory time limits laid down by
Union law, a
satisfactory solution to address concerns raised by the members of the Council
referred to in
Article 1.
ARTICLE 3
To this end, the President of the Council, with the assistance of the Commission
and in compliance
with the Rules of Procedure of the Council, shall undertake any initiative
necessary to facilitate a
wider basis of agreement in the Council. The members of the Council shall
lend him or her their
assistance.
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ARTICLE 4
This decision shall take effect on 1 November 2009. It shall remain in force
at least until 2014.
Thereafter the Council may adopt a European decision repealing it.
6. Declaration on Article I-26
The Conference considers that when the Commission no longer includes nationals
of all
Member States, the Commission should pay particular attention to the need
to ensure full
transparency in relations with all Member States. Accordingly, the Commission
should liaise
closely with all Member States, whether or not they have a national serving
as member of the
Commission, and in this context pay special attention to the need to share
information and consult
with all Member States.
The Conference also considers that the Commission should take all the necessary
measures to
ensure that political, social and economic realities in all Member States,
including those which have
no national serving as member of the Commission, are fully taken into account.
These measures
should include ensuring that the position of those Member States is addressed
by appropriate
organisational arrangements.
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7. Declaration on Article I-27
The Conference considers that, in accordance with the provisions of the Constitution,
the European
Parliament and the European Council are jointly responsible for the smooth
running of the process
leading to the election of the President of the European Commission. Prior
to the decision of the
European Council, representatives of the European Parliament and of the European
Council will
thus conduct the necessary consultations in the framework deemed the most
appropriate. These
consultations will focus on the backgrounds of the candidates for President
of the Commission,
taking account of the elections to the European Parliament, in accordance
with Article I-27(1). The
arrangements for such consultations may be determined, in due course, by common
accord between
the European Parliament and the European Council.
8. Declaration on Article I-36
The Conference takes note of the Commission's intention to continue to consult
experts appointed
by the Member States in the preparation of draft delegated European regulations
in the financial
services area, in accordance with its established practice.
9. Declaration on Articles I-43 and III-329
Without prejudice to the measures adopted by the Union to comply with its
solidarity obligation
towards a Member State which is the object of a terrorist attack or the victim
of natural or
man-made disaster, none of the provisions of Articles I-43 and III-329 of
the Constitution is
intended to affect the right of another Member State to choose the most appropriate
means to
comply with its own solidarity obligation towards that Member State.
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10. Declaration on Article I-51
The Conference declares that, whenever rules on protection of personal data
to be adopted on the
basis of Article I-51 could have direct implications for national security,
due account will have to be
taken of the specific characteristics of the matter. It recalls that the legislation
presently applicable
(see in particular Directive 95/46/EC) includes specific derogations in this
regard.
11. Declaration on Article I-57
The Union will take into account the particular situation of small-sized countries
which maintain
specific relations of proximity with it.
12. Declaration concerning the explanations relating
to the Charter of Fundamental Rights
The Conference takes note of the explanations relating to the Charter of Fundamental
Rights
prepared under the authority of the Praesidium of the Convention which drafted
the Charter and
updated under the responsibility of the Praesidium of the European Convention,
as set out below.
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EXPLANATIONS RELATING TO THE CHARTER OF FUNDAMENTAL RIGHTS
These explanations were originally prepared under the authority of the Praesidium
of the
Convention which drafted the Charter of Fundamental Rights of the European
Union. They have
been updated under the responsibility of the Praesidium of the European Convention,
in the light of
the drafting adjustments made to the text of the Charter by that Convention
(notably to Articles 51
and 52 1) and of further developments of Union law. Although they do not as
such have the status of
law, they are a valuable tool of interpretation intended to clarify the provisions
of the Charter.
PREAMBLE
The peoples of Europe, in creating an ever closer union among them, are resolved
to share a
peaceful future based on common values.
Conscious of its spiritual and moral heritage, the Union is founded on the
indivisible, universal
values of human dignity, freedom, equality and solidarity; it is based on
the principles of democracy
and the rule of law. It places the individual at the heart of its activities,
by establishing the
citizenship of the Union and by creating an area of freedom, security and
justice.
1 Articles II-111 and II-112 of the Constitution.
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The Union contributes to the preservation and to the development of these
common values while
respecting the diversity of the cultures and traditions of the peoples of
Europe as well as the
national identities of the Member States and the organisation of their public
authorities at national,
regional and local levels; it seeks to promote balanced and sustainable development
and ensures
free movement of persons, services, goods and capital, and the freedom of
establishment.
To this end, it is necessary to strengthen the protection of fundamental rights
in the light of changes
in society, social progress and scientific and technological developments
by making those rights
more visible in a Charter.
This Charter reaffirms, with due regard for the powers and tasks of the Union
and the principle of
subsidiarity, the rights as they result, in particular, from the constitutional
traditions and
international obligations common to the Member States, the European Convention
for the
Protection of Human Rights and Fundamental Freedoms, the Social Charters adopted
by the Union
and by the Council of Europe and the case law of the Court of Justice of the
European Union and of
the European Court of Human Rights. In this context the Charter will be interpreted
by the courts of
the Union and the Member States with due regard to the explanations prepared
under the authority
of the Praesidium of the Convention which drafted the Charter and updated
under the responsibility
of the Praesidium of the European Convention.
Enjoyment of these rights entails responsibilities and duties with regard
to other persons, to the
human community and to future generations.
The Union therefore recognises the rights, freedoms and principles set out
hereafter.
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TITLE I
DIGNITY
ARTICLE 1 1
Human dignity
Human dignity is inviolable. It must be respected and protected.
Explanation
The dignity of the human person is not only a fundamental right in itself
but constitutes the real
basis of fundamental rights. The 1948 Universal Declaration of Human Rights
enshrined human
dignity in its preamble: "Whereas recognition of the inherent dignity
and of the equal and
inalienable rights of all members of the human family is the foundation of
freedom, justice and
peace in the world." In its judgment of 9 October 2001 in case C-377/98
Netherlands v. European
Parliament and Council, 2001 ECR 7079, at grounds No 70 - 77, the Court of
Justice confirmed
that a fundamental right to human dignity is part of Union law.
It results that none of the rights laid down in this Charter may be used to
harm the dignity of another
person, and that the dignity of the human person is part of the substance
of the rights laid down in
this Charter. It must therefore be respected, even where a right is restricted.
1 Article II-61 of the Constitution.
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ARTICLE 2 1
Right to life
1. Everyone has the right to life.
2. No one shall be condemned to the death penalty, or executed.
Explanation
1. Paragraph 1 of this Article is based on the first sentence of Article 2(1)
of the ECHR, which
reads as follows:
"1. Everyone's right to life shall be protected by law…"
2. The second sentence of the provision, which referred to the death penalty,
was superseded by
the entry into force of Article 1 of Protocol No 6 to the ECHR, which reads
as follows:
"The death penalty shall be abolished. No-one shall be condemned to such
penalty or
executed."
Article 2(2) of the Charter 2 is based on that provision.
3. The provisions of Article 2 of the Charter 1 correspond to those of the
above Articles of the
ECHR and its Protocol. They have the same meaning and the same scope, in accordance
with
Article 52(3) of the Charter 3. Therefore, the "negative" definitions
appearing in the ECHR
must be regarded as also forming part of the Charter:
1 Article II-62 of the Constitution.
2 Article II-62(2) of the Constitution.
3 Article II-112(3) of the Constitution.
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(a) Article 2(2) of the ECHR:
"Deprivation of life shall not be regarded as inflicted in contravention
of this article
when it results from the use of force which is no more than absolutely necessary:
(a) in defence of any person from unlawful violence;
(b) in order to effect a lawful arrest or to prevent the escape of a person
lawfully
detained;
(c) in action lawfully taken for the purpose of quelling a riot or insurrection."
(b) Article 2 of Protocol No 6 to the ECHR:
"A State may make provision in its law for the death penalty in respect
of acts
committed in time of war or of imminent threat of war; such penalty shall
be applied
only in the instances laid down in the law and in accordance with its provisions…"
ARTICLE 3 1
Right to the integrity of the person
1. Everyone has the right to respect for his or her physical and mental integrity.
1 Article II-63 of the Constitution.
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2. In the fields of medicine and biology, the following must be respected
in particular:
(a) the free and informed consent of the person concerned, according to the
procedures laid
down by law;
(b) the prohibition of eugenic practices, in particular those aiming at the
selection of
persons;
(c) the prohibition on making the human body and its parts as such a source
of financial
gain;
(d) the prohibition of the reproductive cloning of human beings.
Explanation
1. In its judgment of 9 October 2001 in case C-377/98 Netherlands v. European
Parliament and
Council, 2001 ECR 7079, at grounds No 70, 78 - 80, the Court of Justice confirmed
that a
fundamental right to human integrity is part of Union law and encompasses,
in the context of
medicine and biology, the free and informed consent of the donor and recipient.
2. The principles of Article 3 of the Charter 1 are already included in the
Convention on Human
Rights and Biomedicine, adopted by the Council of Europe (ETS 164 and additional
protocol
ETS 168). The Charter does not set out to depart from those principles, and
therefore prohibits only
reproductive cloning. It neither authorises nor prohibits other forms of cloning.
Thus it does not in
any way prevent the legislature from prohibiting other forms of cloning.
1 Article II-63 of the Constitution.
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3. The reference to eugenic practices, in particular those aiming at the selection
of persons,
relates to possible situations in which selection programmes are organised
and implemented,
involving campaigns for sterilisation, forced pregnancy, compulsory ethnic
marriage among others,
all acts deemed to be international crimes in the Statute of the International
Criminal Court adopted
in Rome on 17 July 1998 (see its Article 7(1)(g)).
ARTICLE 4 1
Prohibition of torture and inhuman or degrading treatment or punishment
No one shall be subjected to torture or to inhuman or degrading treatment
or punishment.
Explanation
The right in Article 4 1 is the right guaranteed by Article 3 of the ECHR,
which has the same
wording: "No one shall be subjected to torture or to inhuman or degrading
treatment or
punishment". By virtue of Article 52(3) of the Charter 2, it therefore
has the same meaning and the
same scope as the ECHR Article.
ARTICLE 5 3
Prohibition of slavery and forced labour
1. No one shall be held in slavery or servitude.
1 Article II-64 of the Constitution.
2 Article II-112(3) of the Constitution.
3 Article II-65 of the Constitution.
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2. No one shall be required to perform forced or compulsory labour.
3. Trafficking in human beings is prohibited.
Explanation
1. The right in Article 5(1) and (2) 1 corresponds to Article 4(1) and (2)
of the ECHR, which has
the same wording. It therefore has the same meaning and scope as the ECHR
Article, by
virtue of Article 52(3) of the Charter 2. Consequently:
– no limitation may legitimately affect the right provided for in paragraph
1;
– in paragraph 2, "forced or compulsory labour" must be understood
in the light of the
"negative" definitions contained in Article 4(3) of the ECHR:
"For the purpose of this article the term "forced or compulsory
labour" shall not include:
(a) any work required to be done in the ordinary course of detention imposed
according to
the provisions of Article 5 of this Convention or during conditional release
from such
detention;
(b) any service of a military character or, in case of conscientious objectors
in countries
where they are recognised, service exacted instead of compulsory military
service;
1 Article II-65 of the Constitution.
2 Article II-112(3) of the Constitution.
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(c) any service exacted in case of an emergency or calamity threatening the
life or
well-being of the community;
(d) any work or service which forms part of normal civic obligations."
2. Paragraph 3 stems directly from human dignity and takes account of recent
developments in
organised crime, such as the organisation of lucrative illegal immigration
or sexual
exploitation networks. The annex to the Europol Convention contains the following
definition which refers to trafficking for the purpose of sexual exploitation:
"traffic in human
beings: means subjection of a person to the real and illegal sway of other
persons by using
violence or menaces or by abuse of authority or intrigue with a view to the
exploitation of
prostitution, forms of sexual exploitation and assault of minors or trade
in abandoned
children". Chapter VI of the Convention implementing the Schengen Agreement,
which has
been integrated into the Union's acquis, in which the United Kingdom and Ireland
participate,
contains the following wording in Article 27(1) which refers to illegal immigration
networks:
" The Contracting Parties undertake to impose appropriate penalties on
any person who, for
financial gain, assists or tries to assist an alien to enter or reside within
the territory of one of
the Contracting Parties in breach of that Contracting Party's laws on the
entry and residence of
aliens." On 19 July 2002, the Council adopted a framework decision on
combating trafficking
in human beings (OJ L 203/1) whose Article 1 defines in detail the offences
concerning
trafficking in human beings for the purposes of labour exploitation or sexual
exploitation,
which the Member States must make punishable by virtue of that framework decision.
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TITLE II
FREEDOMS
ARTICLE 6 1
Right to liberty and security
Everyone has the right to liberty and security of person.
Explanation
The rights in Article 6 1 are the rights guaranteed by Article 5 of the ECHR,
and in accordance with
Article 52(3) of the Charter 2, they have the same meaning and scope. Consequently,
the limitations
which may legitimately be imposed on them may not exceed those permitted by
the ECHR, in the
wording of Article 5:
"1. Everyone has the right to liberty and security of person. No one
shall be deprived of his
liberty save in the following cases and in accordance with a procedure prescribed
by law:
(a) the lawful detention of a person after conviction by a competent court;
(b) the lawful arrest or detention of a person for non-compliance with the
lawful order of a court
or in order to secure the fulfilment of any obligation prescribed by law;
1 Article II-66 of the Constitution.
2 Article II-112(3) of the Constitution.
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(c) the lawful arrest or detention of a person effected for the purpose of
bringing him before the
competent legal authority on reasonable suspicion of having committed an offence
or when it
is reasonably considered necessary to prevent his committing an offence or
fleeing after
having done so;
(d) the detention of a minor by lawful order for the purpose of educational
supervision or his
lawful detention for the purpose of bringing him before the competent legal
authority;
(e) the lawful detention of persons for the prevention of the spreading of
infectious diseases, of
persons of unsound mind, alcoholics or drug addicts or vagrants;
(f) the lawful arrest or detention of a person to prevent his effecting an
unauthorised entry into
the country or of a person against whom action is being taken with a view
to deportation or
extradition.
2. Everyone who is arrested shall be informed promptly, in a language which
he understands, of
the reasons for his arrest and of any charge against him.
3. Everyone arrested or detained in accordance with the provisions of paragraph
1.c of this
article shall be brought promptly before a judge or other officer authorised
by law to exercise
judicial power and shall be entitled to trial within a reasonable time or
to release pending trial.
Release may be conditioned by guarantees to appear for trial.
4. Everyone who is deprived of his liberty by arrest or detention shall be
entitled to take
proceedings by which the lawfulness of his detention shall be decided speedily
by a court and his
release ordered if the detention is not lawful.
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5. Everyone who has been the victim of arrest or detention in contravention
of the provisions of
this Article shall have an enforceable right to compensation."
The rights enshrined in Article 6 1 must be respected particularly when the
European Parliament and
the Council adopt laws and framework laws in the area of judicial cooperation
in criminal matters,
on the basis of Articles III-270, III-271 and III-273 of the Constitution,
notably to define common
minimum provisions as regards the categorisation of offences and punishments
and certain aspects
of procedural law.
ARTICLE 7 2
Respect for private and family life
Everyone has the right to respect for his or her private and family life,
home and communications.
Explanation
The rights guaranteed in Article 7 2 correspond to those guaranteed by Article
8 of the ECHR. To
take account of developments in technology the word "correspondence"
has been replaced by
"communications".
1 Article II-66 of the Constitution.
2 Article II-67 of the Constitution.
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In accordance with Article 52(3) 1, the meaning and scope of this right are
the same as those of the
corresponding article of the ECHR. Consequently, the limitations which may
legitimately be
imposed on this right are the same as those allowed by Article 8 of the ECHR:
"1. Everyone has the right to respect for his private and family life,
his home and his
correspondence.
2. There shall be no interference by a public authority with the exercise
of this right except such
as is in accordance with the law and is necessary in a democratic society
in the interests of national
security, public safety or the economic well-being of the country, for the
prevention of disorder or
crime, for the protection of health or morals, or for the protection of the
rights and freedoms of
others."
ARTICLE 8 2
Protection of personal data
1. Everyone has the right to the protection of personal data concerning him
or her.
2. Such data must be processed fairly for specified purposes and on the basis
of the consent of
the person concerned or some other legitimate basis laid down by law. Everyone
has the right of
access to data which has been collected concerning him or her, and the right
to have it rectified.
3. Compliance with these rules shall be subject to control by an independent
authority.
1 Article II-112(3) of the Constitution.
2 Article II-68 of the Constitution.
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Explanation
This Article has been based on Article 286 of the Treaty establishing the
European Community and
Directive 95/46/EC of the European Parliament and of the Council on the protection
of individuals
with regard to the processing of personal data and on the free movement of
such data (OJ L 281,
23.11.1995) as well as on Article 8 of the ECHR and on the Council of Europe
Convention of
28 January 1981 for the Protection of Individuals with regard to Automatic
Processing of Personal
Data, which has been ratified by all the Member States. Article 286 EC Treaty
is now replaced by
Article I-51 of the Constitution. Reference is also made to Regulation No
45/2001 of the European
Parliament and of the Council on the protection of individuals with regard
to the processing of
personal data by the Community institutions and bodies and on the free movement
of such data
(OJ L 8, 12.1.2001). The abovementioned Directive and Regulation contain conditions
and
limitations for the exercise of the right to the protection of personal data.
ARTICLE 9 1
Right to marry and right to found a family
The right to marry and the right to found a family shall be guaranteed in
accordance with the
national laws governing the exercise of these rights.
1 Article II-69 of the Constitution.
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Explanation
This Article is based on Article 12 of the ECHR, which reads as follows: "Men
and women of
marriageable age have the right to marry and to found a family according to
the national laws
governing the exercising of this right." The wording of the Article has
been modernised to cover
cases in which national legislation recognises arrangements other than marriage
for founding a
family. This Article neither prohibits nor imposes the granting of the status
of marriage to unions
between people of the same sex. This right is thus similar to that afforded
by the ECHR, but its
scope may be wider when national legislation so provides.
ARTICLE 10 1
Freedom of thought, conscience and religion
1. Everyone has the right to freedom of thought, conscience and religion.
This right includes
freedom to change religion or belief and freedom, either alone or in community
with others and in
public or in private, to manifest religion or belief, in worship, teaching,
practice and observance.
2. The right to conscientious objection is recognised, in accordance with
the national laws
governing the exercise of this right.
1 Article II-70 of the Constitution.
AF/Constitution/DC/en 24
Explanation
The right guaranteed in paragraph 1 corresponds to the right guaranteed in
Article 9 of the ECHR
and, in accordance with Article 52(3) of the Charter 1, has the same meaning
and scope.
Limitations must therefore respect Article 9(2) of the Convention, which reads
as follows:
"Freedom to manifest one's religion or beliefs shall be subject only
to such limitations as are
prescribed by law and are necessary in a democratic society in the interests
of public safety, for the
protection of public order, health or morals, or for the protection of the
rights and freedoms of
others."
The right guaranteed in paragraph 2 corresponds to national constitutional
traditions and to the
development of national legislation on this issue.
ARTICLE 11 2
Freedom of expression and information
1. Everyone has the right to freedom of expression. This right shall include
freedom to hold
opinions and to receive and impart information and ideas without interference
by public authority
and regardless of frontiers.
2. The freedom and pluralism of the media shall be respected.
1 Article II-112(3) of the Constitution.
2 Article II-71 of the Constitution.
AF/Constitution/DC/en 25
Explanation
1. Article 11 1 corresponds to Article 10 of the European Convention on Human
Rights, which
reads as follows:
"1. Everyone has the right to freedom of expression. This right shall
include freedom to hold
opinions and to receive and impart information and ideas without interference
by public
authority and regardless of frontiers. This Article shall not prevent States
from requiring the
licensing of broadcasting, television or cinema enterprises.
2. The exercise of these freedoms, since it carries with it duties and responsibilities,
may be
subject to such formalities, conditions, restrictions or penalties as are
prescribed by law and
are necessary in a democratic society, in the interests of national security,
territorial integrity
or public safety, for the prevention of disorder or crime, for the protection
of health or morals,
for the protection of the reputation or rights of others, for preventing the
disclosure of
information received in confidence, or for maintaining the authority and impartiality
of the
judiciary."
Pursuant to Article 52(3) of the Charter 2, the meaning and scope of this
right are the same as those
guaranteed by the ECHR. The limitations which may be imposed on it may therefore
not exceed
those provided for in Article 10(2) of the Convention, without prejudice to
any restrictions which
competition law of the Union may impose on Member States' right to introduce
the licensing
arrangements referred to in the third sentence of Article 10(1) of the ECHR.
1 Article II-71 of the Constitution.
2 Article II-112(3) of the Constitution.
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2. Paragraph 2 of this Article spells out the consequences of paragraph 1
regarding freedom of
the media. It is based in particular on Court of Justice case law regarding
television, particularly in
case C-288/89 (judgment of 25 July 1991, Stichting Collectieve Antennevoorziening
Gouda and
others [1991] ECR I-4007), and on the Protocol on the system of public broadcasting
in the
Member States annexed to the EC Treaty and now to the Constitution, and on
Council Directive
89/552/EC (particularly its seventeenth recital).
ARTICLE 12 1
Freedom of assembly and of association
1. Everyone has the right to freedom of peaceful assembly and to freedom of
association at all
levels, in particular in political, trade union and civic matters, which implies
the right of everyone to
form and to join trade unions for the protection of his or her interests.
2. Political parties at Union level contribute to expressing the political
will of the citizens of the
Union.
1 Article II-72 of the Constitution.
AF/Constitution/DC/en 27
Explanation
Paragraph 1 of this Article corresponds to Article 11 of the ECHR, which reads
as follows:
"1. Everyone has the right to freedom of peaceful assembly and to freedom
of association with
others, including the right to form and to join trade unions for the protection
of his interests.
2. No restrictions shall be placed on the exercise of these rights other than
such as are prescribed
by law and are necessary in a democratic society in the interests of national
security or public
safety, for the prevention of disorder or crime, for the protection of health
or morals or for the
protection of the rights and freedoms of others. This article shall not prevent
the imposition of
lawful restrictions on the exercise of these rights by members of the armed
forces, of the police or
of the administration of the State."
The meaning of the provisions of paragraph 1 is the same as that of the ECHR,
but their scope is
wider since they apply at all levels including European level. In accordance
with Article 52(3) of
the Charter 1, limitations on that right may not exceed those considered legitimate
by virtue of
Article 11(2) of the ECHR.
2. This right is also based on Article 11 of the Community Charter of the
Fundamental Social
Rights of Workers.
1 Article II-112(3) of the Constitution.
AF/Constitution/DC/en 28
3. Paragraph 2 of this Article corresponds to Article I-46(4) of the Constitution.
ARTICLE 13 1
Freedom of the arts and sciences
The arts and scientific research shall be free of constraint. Academic freedom
shall be respected.
Explanation
This right is deduced primarily from the right to freedom of thought and expression.
It is to be
exercised having regard to Article 1 2 and may be subject to the limitations
authorised by Article 10
of the ECHR.
ARTICLE 14 3
Right to education
1. Everyone has the right to education and to have access to vocational and
continuing training.
2. This right includes the possibility to receive free compulsory education.
1 Article II-73 of the Constitution.
2 Article II-61 of the Constitution.
3 Article II-74 of the Constitution.
AF/Constitution/DC/en 29
3. The freedom to found educational establishments with due respect for democratic
principles
and the right of parents to ensure the education and teaching of their children
in conformity with
their religious, philosophical and pedagogical convictions shall be respected,
in accordance with the
national laws governing the exercise of such freedom and right.
Explanation
1. This Article is based on the common constitutional traditions of Member
States and on
Article 2 of the Protocol to the ECHR, which reads as follows:
"No person shall be denied the right to education. In the exercise of
any functions which it
assumes in relation to education and to teaching, the State shall respect
the right of parents to
ensure such education and teaching in conformity with their own religious
and philosophical
convictions."
It was considered useful to extend this article to access to vocational and
continuing training
(see point 15 of the Community Charter of the Fundamental Social Rights of
Workers and
Article 10 of the Social Charter) and to add the principle of free compulsory
education. As it is
worded, the latter principle merely implies that as regards compulsory education,
each child has
the possibility of attending an establishment which offers free education.
It does not require all
establishments which provide education or vocational and continuing training,
in particular
private ones, to be free of charge. Nor does it exclude certain specific forms
of education
having to be paid for, if the State takes measures to grant financial compensation.
Insofar as
the Charter applies to the Union, this means that in its training policies
the Union must respect
free compulsory education, but this does not, of course, create new powers.
Regarding the
right of parents, it must be interpreted in conjunction with the provisions
of Article 24 1.
1 Article II-84 of the Constitution.
AF/Constitution/DC/en 30
2. Freedom to found public or private educational establishments is guaranteed
as one of the
aspects of freedom to conduct a business but it is limited by respect for
democratic principles
and is exercised in accordance with the arrangements defined by national legislation.
