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
ARTICLE 15 1
Freedom to choose an occupation and right to engage in work
1. Everyone has the right to engage in work and to pursue a freely chosen
or accepted
occupation.
2. Every citizen of the Union has the freedom to seek employment, to work,
to exercise the right
of establishment and to provide services in any Member State.
3. Nationals of third countries who are authorised to work in the territories
of the Member States
are entitled to working conditions equivalent to those of citizens of the
Union.
Explanation
Freedom to choose an occupation, as enshrined in Article 15(1) 1, is recognised
in Court of Justice
case law (see inter alia judgment of 14 May 1974, Case 4/73 Nold [1974] ECR
491, paragraphs 12
to 14 of the grounds; judgment of 13 December 1979, Case 44/79 Hauer [1979]
ECR 3727;
judgment of 8 October 1986, Case 234/85 Keller [1986] ECR 2897, paragraph
8 of the grounds).
1 Article II-75 of the Constitution.
AF/Constitution/DC/en 31
This paragraph also draws upon Article 1(2) of the European Social Charter,
which was signed on
18 October 1961 and has been ratified by all the Member States, and on point
4 of the Community
Charter of the Fundamental Social Rights of Workers of 9 December 1989. The
expression
"working conditions" is to be understood in the sense of Article
III-213 of the Constitution.
Paragraph 2 deals with the three freedoms guaranteed by Articles I-4 and III-133,
III-137 and
III-144 of the Constitution, namely freedom of movement for workers, freedom
of establishment
and freedom to provide services.
Paragraph 3 has been based on TEC Article 137(3), fourth indent, now replaced
by
Article III-210(1)(g) of the Constitution, and on Article 19(4) of the European
Social Charter signed
on 18 October 1961 and ratified by all the Member States. Article 52(2) of
the Charter 1 is therefore
applicable. The question of recruitment of seamen having the nationality of
third States for the
crews of vessels flying the flag of a Member State of the Union is governed
by Union law and
national legislation and practice.
ARTICLE 16 2
Freedom to conduct a business
The freedom to conduct a business in accordance with Union law and national
laws and practices is
recognised.
1 Article II-112(2) of the Constitution.
2 Article II-76 of the Constitution.
AF/Constitution/DC/en 32
Explanation
This Article is based on Court of Justice case law which has recognised freedom
to exercise an
economic or commercial activity (see judgments of 14 May 1974, Case 4/73 Nold
[1974] ECR 491,
paragraph 14 of the grounds, and of 27 September 1979, Case 230-78 SPA Eridiana
and others
[1979] ECR 2749, paragraphs 20 and 31 of the grounds) and freedom of contract
(see inter alia
Sukkerfabriken Nykøbing judgment, Case 151/78 [1979] ECR 1, paragraph
19 of the grounds, and
judgment of 5 October 1999, C-240/97 Spain v. Commission, [1999] ECR I-6571,
paragraph 99 of
the grounds) and Article I-3(2) of the Constitution, which recognises free
competition. Of course,
this right is to be exercised with respect for Union law and national legislation.
It may be subject to
the limitations provided for in Article 52(1) of the Charter 1.
ARTICLE 17 2
Right to property
1. Everyone has the right to own, use, dispose of and bequeath his or her
lawfully acquired
possessions. No one may be deprived of his or her possessions, except in the
public interest and in
the cases and under the conditions provided for by law, subject to fair compensation
being paid in
good time for their loss. The use of property may be regulated by law insofar
as is necessary for the
general interest.
2. Intellectual property shall be protected.
1 Article II-112(1) of the Constitution.
2 Article II-77 of the Constitution.
AF/Constitution/DC/en 33
Explanation
This Article is based on Article 1 of the Protocol to the ECHR:
"Every natural or legal person is entitled to the peaceful enjoyment
of his possessions. No one shall
be deprived of his possessions except in the public interest and subject to
the conditions provided
for by law and by the general principles of international law.
The preceding provisions shall not, however, in any way impair the right of
a State to enforce such
laws as it deems necessary to control the use of property in accordance with
the general interest or
to secure the payment of taxes or other contributions or penalties."
This is a fundamental right common to all national constitutions. It has been
recognised on
numerous occasions by the case law of the Court of Justice, initially in the
Hauer judgment
(13 December 1979, ECR [1979] 3727). The wording has been updated but, in
accordance with
Article 52(3) 1, the meaning and scope of the right are the same as those
of the right guaranteed by
the ECHR and the limitations may not exceed those provided for there.
Protection of intellectual property, one aspect of the right of property,
is explicitly mentioned in
paragraph 2 because of its growing importance and Community secondary legislation.
Intellectual
property covers not only literary and artistic property but also inter alia
patent and trademark rights
and associated rights. The guarantees laid down in paragraph 1 shall apply
as appropriate to
intellectual property.
1 Article II-112(3) of the Constitution.
AF/Constitution/DC/en 34
ARTICLE 18 1
Right to asylum
The right to asylum shall be guaranteed with due respect for the rules of
the Geneva Convention of
28 July 1951 and the Protocol of 31 January 1967 relating to the status of
refugees and in
accordance with the Constitution.
Explanation
The text of the Article has been based on TEC Article 63, now replaced by
Article III-266 of the
Constitution, which requires the Union to respect the Geneva Convention on
refugees. Reference
should be made to the Protocols relating to the United Kingdom and Ireland
annexed to the [Treaty
of Amsterdam] Constitution and to Denmark to determine the extent to which
those Member States
implement Union law in this area and the extent to which this Article is applicable
to them. This
Article is in line with the Protocol on Asylum annexed to the Constitution.
ARTICLE 19 2
Protection in the event of removal, expulsion or extradition
1. Collective expulsions are prohibited.
1 Article II-78 of the Constitution.
2 Article II-79 of the Constitution.
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2. No one may be removed, expelled or extradited to a State where there is
a serious risk that he
or she would be subjected to the death penalty, torture or other inhuman or
degrading treatment or
punishment.
Explanation
Paragraph 1 of this Article has the same meaning and scope as Article 4 of
Protocol No 4 to the
ECHR concerning collective expulsion. Its purpose is to guarantee that every
decision is based on a
specific examination and that no single measure can be taken to expel all
persons having the
nationality of a particular State (see also Article 13 of the Covenant on
Civil and Political Rights).
Paragraph 2 incorporates the relevant case law from the European Court of
Human Rights regarding
Article 3 of the ECHR (see Ahmed v. Austria, judgment of 17 December 1996,
[1996] ECR VI-2206 and Soering, judgment of 7 July 1989).
AF/Constitution/DC/en 36
TITLE III
EQUALITY
ARTICLE 20 1
Equality before the law
Everyone is equal before the law.
Explanation
This Article corresponds to a general principle of law which is included in
all European
constitutions and has also been recognised by the Court of Justice as a basic
principle of
Community law (judgment of 13 November 1984, Case 283/83 Racke [1984] ECR
3791, judgment
of 17 April 1997, Case 15/95 EARL [1997] ECR I–1961, and judgment of
13 April 2000,
Case 292/97 Karlsson [2000] ECR 2737).
ARTICLE 21 2
Non-discrimination
1. Any discrimination based on any ground such as sex, race, colour, ethnic
or social origin,
genetic features, language, religion or belief, political or any other opinion,
membership of a
national minority, property, birth, disability, age or sexual orientation
shall be prohibited.
1 Article II-80 of the Constitution.
2 Article II-81 of the Constitution.
AF/Constitution/DC/en 37
2. Within the scope of application of the Constitution and without prejudice
to any of its specific
provisions, any discrimination on grounds of nationality shall be prohibited.
Explanation
Paragraph 1 draws on Article 13 of the EC Treaty, now replaced by Article
III-124 of the
Constitution, Article 14 of the ECHR and Article 11 of the Convention on Human
Rights and
Biomedicine as regards genetic heritage. Insofar as this corresponds to Article
14 of the ECHR, it
applies in compliance with it.
There is no contradiction or incompatibility between paragraph 1 and Article
III-124 of the
Constitution which has a different scope and purpose: Article III-124 confers
power on the Union to
adopt legislative acts, including harmonisation of the Member States' laws
and regulations, to
combat certain forms of discrimination, listed exhaustively in that Article.
Such legislation may
cover action of Member State authorities (as well as relations between private
individuals) in any
area within the limits of the Union's powers. In contrast, the provision in
paragraph 1 does not
create any power to enact anti-discrimination laws in these areas of Member
State or private action,
nor does it lay down a sweeping ban of discrimination in such wide-ranging
areas. Instead, it only
addresses discriminations by the institutions and bodies of the Union themselves,
when exercising
powers conferred under other articles of Parts I and III of the Constitution,
and by Member States
only when they are implementing Union law. Paragraph 1 therefore does not
alter the extent of
powers granted under Article III-124 nor the interpretation given to that
Article.
Paragraph 2 corresponds to Article I-4(2) of the Constitution and must be
applied in compliance
with that Article.
AF/Constitution/DC/en 38
ARTICLE 22 1
Cultural, religious and linguistic diversity
The Union shall respect cultural, religious and linguistic diversity.
Explanation
This Article has been based on Article 6 of the Treaty on European Union and
on Article 151(1) and
(4) of the EC Treaty, now replaced by Article III-280(1) and (4) of the Constitution,
concerning
culture. Respect for cultural and linguistic diversity is now also laid down
in Article I-3(3) of the
Constitution. The Article is also inspired by Declaration No 11 to the Final
Act of the Amsterdam
Treaty on the status of churches and non-confessional organisations, now taken
over in Article I-52
of the Constitution.
ARTICLE 23 2
Equality between women and men
Equality between women and men must be ensured in all areas, including employment,
work and
pay.
The principle of equality shall not prevent the maintenance or adoption of
measures providing for
specific advantages in favour of the under-represented sex.
1 Article II-82 of the Constitution.
2 Article II-83 of the Constitution.
AF/Constitution/DC/en 39
Explanation
The first paragraph has been based on Articles 2 and 3(2) of the EC Treaty,
now replaced by
Articles I-3 and III-116 of the Constitution which impose the objective of
promoting equality
between men and women on the Union, and on Article 141(1) of the EC Treaty,
now replaced by
Article III-214(1) of the Constitution. It draws on Article 20 of the revised
European Social Charter
of 3 May 1996 and on point 16 of the Community Charter on the rights of workers.
It is also based on Article 141(3) of the EC Treaty, now replaced by Article
III-214(3) of the
Constitution, and Article 2(4) of Council Directive 76/207/EEC on the implementation
of the
principle of equal treatment for men and women as regards access to employment,
vocational
training and promotion, and working conditions.
The second paragraph takes over in shorter form Article III-214(4) of the
Constitution which
provides that the principle of equal treatment does not prevent the maintenance
or adoption of
measures providing for specific advantages in order to make it easier for
the under-represented sex
to pursue a vocational activity or to prevent or compensate for disadvantages
in professional
careers. In accordance with Article 52(2) 1, the present paragraph does not
amend
Article III-214(4).
1 Article II-112(2) of the Constitution.
AF/Constitution/DC/en 40
ARTICLE 24 1
The rights of the child
1. Children shall have the right to such protection and care as is necessary
for their well-being.
They may express their views freely. Such views shall be taken into consideration
on matters
which concern them in accordance with their age and maturity.
2. In all actions relating to children, whether taken by public authorities
or private institutions,
the child's best interests must be a primary consideration.
3. Every child shall have the right to maintain on a regular basis a personal
relationship and
direct contact with both his or her parents, unless that is contrary to his
or her interests.
Explanation
This Article is based on the New York Convention on the Rights of the Child
signed on
20 November 1989 and ratified by all the Member States, particularly Articles
3, 9, 12 and 13
thereof.
Paragraph 3 takes account of the fact that, as part of the establishment of
an area of freedom,
security and justice, Union legislation on civil matters having cross-border
implications, for which
Article III-269 of the Constitution confers power, may include notably visiting
rights ensuring that
children can maintain on a regular basis a personal and direct contact with
both his or her parents.
1 Article II-84 of the Constitution.
AF/Constitution/DC/en 41
ARTICLE 25 1
The rights of the elderly
The Union recognises and respects the rights of the elderly to lead a life
of dignity and
independence and to participate in social and cultural life.
Explanation
This Article draws on Article 23 of the revised European Social Charter and
Articles 24 and 25 of
the Community Charter of the Fundamental Social Rights of Workers. Of course,
participation in
social and cultural life also covers participation in political life.
ARTICLE 26 2
Integration of persons with disabilities
The Union recognises and respects the right of persons with disabilities to
benefit from measures
designed to ensure their independence, social and occupational integration
and participation in the
life of the community.
Explanation
The principle set out in this Article is based on Article 15 of the European
Social Charter and also
draws on point 26 of the Community Charter of the Fundamental Social Rights
of Workers.
1 Article II-85 of the Constitution.
2 Article II-86 of the Constitution.
AF/Constitution/DC/en 42
TITLE IV
SOLIDARITY
ARTICLE 27 1
Workers' right to information and consultation within the undertaking
Workers or their representatives must, at the appropriate levels, be guaranteed
information and
consultation in good time in the cases and under the conditions provided for
by Union law and
national laws and practices.
Explanation
This Article appears in the revised European Social Charter (Article 21) and
in the Community
Charter on the rights of workers (points 17 and 18). It applies under the
conditions laid down by
Union law and by national laws. The reference to appropriate levels refers
to the levels laid down
by Union law or by national laws and practices, which might include the European
level when
Union legislation so provides. There is a considerable Union acquis in this
field: Articles III-211
and III-212 of the Constitution, and Directives 2002/14/EC (general framework
for informing and
consulting employees in the European Community), 98/59/EC (collective redundancies),
2001/23/EC (transfers of undertakings) and 94/45/EC (European works councils).
1 Article II-87 of the Constitution.
AF/Constitution/DC/en 43
ARTICLE 28 1
Right of collective bargaining and action
Workers and employers, or their respective organisations, have, in accordance
with Union law and
national laws and practices, the right to negotiate and conclude collective
agreements at the
appropriate levels and, in cases of conflicts of interest, to take collective
action to defend their
interests, including strike action.
Explanation
This Article is based on Article 6 of the European Social Charter and on the
Community Charter of
the Fundamental Social Rights of Workers (points 12 to 14). The right of collective
action was
recognised by the European Court of Human Rights as one of the elements of
trade union rights laid
down by Article 11 of the ECHR. As regards the appropriate levels at which
collective negotiation
might take place, see the explanation given for the above Article. The modalities
and limits for the
exercise of collective action, including strike action, come under national
laws and practices,
including the question of whether it may be carried out in parallel in several
Member States.
ARTICLE 29 2
Right of access to placement services
Everyone has the right of access to a free placement service.
1 Article II-88 of the Constitution.
2 Article II-89 of the Constitution.
AF/Constitution/DC/en 44
Explanation
This Article is based on Article 1(3) of the European Social Charter and point
13 of the Community
Charter of the Fundamental Social Rights of Workers.
ARTICLE 30 1
Protection in the event of unjustified dismissal
Every worker has the right to protection against unjustified dismissal, in
accordance with Union law
and national laws and practices.
Explanation
This Article draws on Article 24 of the revised Social Charter. See also Directive
2001/23/EC on
the safeguarding of employees' rights in the event of transfers of undertakings,
and
Directive 80/987/EEC on the protection of employees in the event of the insolvency
of their
employer, as amended by Directive 2002/74/EC.
ARTICLE 31 2
Fair and just working conditions
1. Every worker has the right to working conditions which respect his or her
health, safety and
dignity.
1 Article II-90 of the Constitution.
2 Article II-91 of the Constitution.
AF/Constitution/DC/en 45
2. Every worker has the right to limitation of maximum working hours, to daily
and weekly rest
periods and to an annual period of paid leave.
Explanation
1. Paragraph 1 of this Article is based on Directive 89/391/EEC on the introduction
of measures
to encourage improvements in the safety and health of workers at work. It
also draws on
Article 3 of the Social Charter and point 19 of the Community Charter on the
rights of workers,
and, as regards dignity at work, on Article 26 of the revised Social Charter.
The expression
"working conditions" must be understood in the sense of Article
III-213 of the Constitution.
2. Paragraph 2 is based on Directive 93/104/EC concerning certain aspects
of the organisation of
working time, Article 2 of the European Social Charter and point 8 of the
Community Charter
on the rights of workers.
ARTICLE 32 1
Prohibition of child labour and protection of young people at work
The employment of children is prohibited. The minimum age of admission to
employment may not
be lower than the minimum school-leaving age, without prejudice to such rules
as may be more
favourable to young people and except for limited derogations.
1 Article II-92 of the Constitution.
AF/Constitution/DC/en 46
Young people admitted to work must have working conditions appropriate to
their age and be
protected against economic exploitation and any work likely to harm their
safety, health or physical,
mental, moral or social development or to interfere with their education.
Explanation
This Article is based on Directive 94/33/EC on the protection of young people
at work, Article 7 of
the European Social Charter and points 20 to 23 of the Community Charter of
the Fundamental
Social Rights of Workers.
ARTICLE 33 1
Family and professional life
1. The family shall enjoy legal, economic and social protection.
2. To reconcile family and professional life, everyone shall have the right
to protection from
dismissal for a reason connected with maternity and the right to paid maternity
leave and to parental
leave following the birth or adoption of a child.
1 Article II-93 of the Constitution.
AF/Constitution/DC/en 47
Explanation
Article 33(1) 1 is based on Article 16 of the European Social Charter. The
second paragraph draws
on Council Directive 92/85/EEC on the introduction of measures to encourage
improvements in the
safety and health at work of pregnant workers and workers who have recently
given birth or are
breastfeeding and Directive 96/34/EC on the framework agreement on parental
leave concluded by
UNICE, CEEP and the ETUC. It is also based on Article 8 (protection of maternity)
of the European Social Charter and draws on Article 27 (right of workers with
family
responsibilities to equal opportunities and equal treatment) of the revised
Social Charter.
"Maternity" covers the period from conception to weaning.
ARTICLE 34 2
Social security and social assistance
1. The Union recognises and respects the entitlement to social security benefits
and social
services providing protection in cases such as maternity, illness, industrial
accidents, dependency or
old age, and in the case of loss of employment, in accordance with the rules
laid down by Union
law and national laws and practices.
2. Everyone residing and moving legally within the European Union is entitled
to social security
benefits and social advantages in accordance with Union law and national laws
and practices.
1 Article II-93 of the Constitution.
2 Article II-94 of the Constitution.
AF/Constitution/DC/en 48
3. In order to combat social exclusion and poverty, the Union recognises and
respects the right
to social and housing assistance so as to ensure a decent existence for all
those who lack sufficient
resources, in accordance with the rules laid down by Union law and national
laws and practices.
Explanation
The principle set out in Article 34(1) 1 is based on Articles 137 and 140
of the EC Treaty, now
replaced by Articles III-210 and III-213 and on Article 12 of the European
Social Charter and
point 10 of the Community Charter on the rights of workers. The Union must
respect it when
exercising the powers conferred on it by Articles III-210 and III-213 of the
Constitution. The
reference to social services relates to cases in which such services have
been introduced to provide
certain advantages but does not imply that such services must be created where
they do not exist.
"Maternity" must be understood in the same sense as in the preceding
Article.
Paragraph 2 is based on Articles 12(4) and 13(4) of the European Social Charter
and point 2 of the
Community Charter of the Fundamental Social Rights of Workers and reflects
the rules arising from
Regulation No 1408/71 and Regulation No 1612/68.
Paragraph 3 draws on Article 13 of the European Social Charter and Articles
30 and 31 of the
revised Social Charter and point 10 of the Community Charter. The Union must
respect it in the
context of policies based on Article III-210 of the Constitution.
1 Article II-94 of the Constitution.
AF/Constitution/DC/en 49
ARTICLE 35 1
Health care
Everyone has the right of access to preventive health care and the right to
benefit from medical
treatment under the conditions established by national laws and practices.
A high level of human
health protection shall be ensured in the definition and implementation of
all Union policies and
activities.
Explanation
The principles set out in this Article are based on Article 152 of the EC
Treaty, now replaced by
Article III-278 of the Constitution, and on Articles 11 and 13 of the European
Social Charter. The
second sentence of the Article takes over Article III-278(1).
ARTICLE 36 2
Access to services of general economic interest
The Union recognises and respects access to services of general economic interest
as provided for
in national laws and practices, in accordance with the Constitution, in order
to promote the social
and territorial cohesion of the Union.
1 Article II-95 of the Constitution.
2 Article II-96 of the Constitution.
AF/Constitution/DC/en 50
Explanation
This Article is fully in line with Article III-122 of the Constitution and
does not create any new
right. It merely sets out the principle of respect by the Union for the access
to services of general
economic interest as provided for by national provisions, when those provisions
are compatible with
Union law.
ARTICLE 37 1
Environmental protection
A high level of environmental protection and the improvement of the quality
of the environment
must be integrated into the policies of the Union and ensured in accordance
with the principle of
sustainable development.
Explanation
The principles set out in this Article have been based on Articles 2, 6 and
174 of the EC Treaty,
which have now been replaced by Articles I-3(3), III-119 and III-233 of the
Constitution.
It also draws on the provisions of some national constitutions.
1 Article II-97 of the Constitution.
AF/Constitution/DC/en 51
ARTICLE 38 1
Consumer protection
Union policies shall ensure a high level of consumer protection.
Explanation
The principles set out in this Article have been based on Article 153 of the
EC Treaty, now replaced
by Article III-235 of the Constitution.
TITLE V
CITIZENS' RIGHTS
ARTICLE 39 2
Right to vote and to stand as a candidate at elections to the European Parliament
1. Every citizen of the Union has the right to vote and to stand as a candidate
at elections to the
European Parliament in the Member State in which he or she resides, under
the same conditions as
nationals of that State.
2. Members of the European Parliament shall be elected by direct universal
suffrage in a free
and secret ballot.
1 Article II-98 of the Constitution.
2 Article II-99 of the Constitution.
AF/Constitution/DC/en 52
Explanation
Article 39 1 applies under the conditions laid down in Parts I and III of
the Constitution, in
accordance with Article 52(2) of the Charter 2. Article 39(1) 1 corresponds
to the right guaranteed
in Article I-10(2) of the Constitution (cf. also the legal base in Article
III-126 for the adoption of
detailed arrangements for the exercise of that right) and Article 39(2) 1
corresponds to
Article I-20(2) of the Constitution. Article 39(2) 1 takes over the basic
principles of the electoral
system in a democratic State.
ARTICLE 40 3
Right to vote and to stand as a candidate at municipal elections
Every citizen of the Union has the right to vote and to stand as a candidate
at municipal elections in
the Member State in which he or she resides under the same conditions as nationals
of that State.
Explanation
This Article corresponds to the right guaranteed by Article I-10(2) of the
Constitution (cf. also the
legal base in Article III-126 for the adoption of detailed arrangements for
the exercise of that right).
In accordance with Article 52(2) of the Charter 2, it applies under the conditions
set out in these
Articles of Parts I and III of the Constitution.
1 Article II-99 of the Constitution.
2 Article II-112(2) of the Constitution.
3 Article II-100 of the Constitution.
AF/Constitution/DC/en 53
ARTICLE 41 1
Right to good administration
1. Every person has the right to have his or her affairs handled impartially,
fairly and within a
reasonable time by the institutions, bodies, offices and agencies of the Union.
2. This right includes:
(a) the right of every person to be heard, before any individual measure which
would affect him
or her adversely is taken;
(b) the right of every person to have access to his or her file, while respecting
the legitimate
interests of confidentiality and of professional and business secrecy;
(c) the obligation of the administration to give reasons for its decisions.
3. Every person has the right to have the Union make good any damage caused
by its institutions
or by its servants in the performance of their duties, in accordance with
the general principles
common to the laws of the Member States.
4. Every person may write to the institutions of the Union in one of the languages
of
the Constitution and must have an answer in the same language.
1 Article II-101 of the Constitution.
AF/Constitution/DC/en 54
Explanation
Article 41 1 is based on the existence of the Union as subject to the rule
of law whose characteristics
were developed in the case law which enshrined inter alia good administration
as a general principle
of law (see inter alia Court of Justice judgment of 31 March 1992 in Case
C-255/90 P, Burban
[1992] ECR I-2253, and Court of First Instance judgments of 18 September 1995
in Case T-167/94
Nölle [1995] ECR II-2589, and 9 July 1999 in Case T-231/97 New Europe
Consulting and others
[1999] ECR II-2403). The wording for that right in the first two paragraphs
results from the case
law (Court of Justice judgment of 15 October 1987 in Case 222/86 Heylens [1987]
ECR 4097,
paragraph 15 of the grounds, judgment of 18 October 1989 in Case 374/87 Orkem
[1989]
ECR 3283, judgment of 21 November 1991 in Case C-269/90 TU München [1991]
ECR I-5469,
and Court of First Instance judgments of 6 December 1994 in Case T-450/93
Lisrestal
[1994] ECR II-1177, 18 September 1995 in Case T-167/94 Nölle [1995] ECR
II-258) and the
wording regarding the obligation to give reasons comes from Article 253 of
the EC Treaty, now
replaced by Article I-38(2) of the Constitution (cf. also the legal base in
Article III-398 of the
Constitution for the adoption of legislation in the interest of an open, efficient
and independent
European administration).
Paragraph 3 reproduces the right now guaranteed by Article III-431 of the
Constitution.
Paragraph 4 reproduces the right now guaranteed by Articles I-10(2)(d) and
III-129 of the
Constitution. In accordance with Article 52(2) of the Charter 2, those rights
are to be applied under
the conditions and within the limits defined by Part III of the Constitution.
The right to an effective remedy, which is an important aspect of this question,
is guaranteed in
Article 47 of this Charter 3.
1 Article II-101 of the Constitution.
2 Article II-112(2) of the Constitution.
3 Article II-107 of the Constitution.
AF/Constitution/DC/en 55
ARTICLE 42 1
Right of access to documents
Any citizen of the Union, and any natural or legal person residing or having
its registered office in a
Member State, has a right of access to documents of the institutions, bodies,
offices and agencies of
the Union, whatever their medium.
Explanation
The right guaranteed in this Article has been taken over from Article 255
of the EC Treaty, on the
basis of which Regulation 1049/2001 has subsequently been adopted. The European
Convention
has extended this right to documents of institutions, bodies and agencies
generally, regardless of
their form, see Article I-50(3) of the Constitution. In accordance with Article
52(2) of the Charter 2,
the right of access to documents is exercised under the conditions and within
the limits for which
provision is made in Articles I-50(3) and III-399.
ARTICLE 43 3
European Ombudsman
Any citizen of the Union and any natural or legal person residing or having
its registered office in a
Member State has the right to refer to the European Ombudsman cases of maladministration
in the
activities of the institutions, bodies, offices or agencies of the Union,
with the exception of the
Court of Justice of the European Union acting in its judicial role.
1 Article II-102 of the Constitution.
2 Article II-112(2) of the Constitution.
3 Article II-103 of the Constitution.
AF/Constitution/DC/en 56
Explanation
The right guaranteed in this Article is the right guaranteed by Articles I-10
and III-335 of the
Constitution. In accordance with Article 52(2) of the Charter 1, it applies
under the conditions
defined in these two Articles.
ARTICLE 44 2
Right to petition
Any citizen of the Union and any natural or legal person residing or having
its registered office in a
Member State has the right to petition the European Parliament.
Explanation
The right guaranteed in this Article is the right guaranteed by Articles I-10
and III-334 of the
Constitution. In accordance with Article 52(2) of the Charter 1, it applies
under the conditions
defined in these two Articles.
ARTICLE 45 3
Freedom of movement and of residence
1. Every citizen of the Union has the right to move and reside freely within
the territory of the
Member States.
1 Article II-112(2) of the Constitution.
2 Article II-104 of the Constitution.
3 Article II-105 of the Constitution.
AF/Constitution/DC/en 57
2. Freedom of movement and residence may be granted, in accordance with the
Constitution, to
nationals of third countries legally resident in the territory of a Member
State.
Explanation
The right guaranteed by paragraph 1 is the right guaranteed by Article I-10(2)(a)
of the Constitution
(cf. also the legal base in Article III-125; and the judgement of the Court
of Justice of 17 September
2002, C-413/99 Baumbast, [2002] ECR 709). In accordance with Article 52(2)
of the Charter 1, it
applies under the conditions and within the limits defined for which provision
is made in Part III of
the Constitution.
Paragraph 2 refers to the power granted to the Union by Articles III-265 to
III-267 of the
Constitution. Consequently, the granting of this right depends on the institutions
exercising that
power.
ARTICLE 46 2
Diplomatic and consular protection
Every citizen of the Union shall, in the territory of a third country in which
the Member State of
which he or she is a national is not represented, be entitled to protection
by the diplomatic or
consular authorities of any Member State, on the same conditions as the nationals
of that
Member State.
1 Article II-112(2) of the Constitution.
2 Article II-106 of the Constitution.
AF/Constitution/DC/en 58
Explanation
The right guaranteed by this Article is the right guaranteed by Article I-10
of the Constitution;
cf. also the legal base in Article III-127. In accordance with Article 52(2)
of the Charter 1, it applies
under the conditions defined in these Articles.
TITLE VI
JUSTICE
ARTICLE 47 2
Right to an effective remedy and to a fair trial
Everyone whose rights and freedoms guaranteed by the law of the Union are
violated has the right
to an effective remedy before a tribunal in compliance with the conditions
laid down in this Article.
Everyone is entitled to a fair and public hearing within a reasonable time
by an independent and
impartial tribunal previously established by law. Everyone shall have the
possibility of being
advised, defended and represented.
Legal aid shall be made available to those who lack sufficient resources insofar
as such aid is
necessary to ensure effective access to justice.
1 Article II-112(2) of the Constitution.
2 Article II-107 of the Constitution.
AF/Constitution/DC/en 59
Explanation
The first paragraph is based on Article 13 of the ECHR:
"Everyone whose rights and freedoms as set forth in this Convention are
violated shall have an
effective remedy before a national authority notwithstanding that the violation
has been committed
by persons acting in an official capacity."
However, in Union law the protection is more extensive since it guarantees
the right to an effective
remedy before a court. The Court of Justice enshrined that right in its judgment
of 15 May 1986 as
a general principle of Union law (Case 222/84 Johnston [1986] ECR 1651; see
also judgment of
15 October 1987, Case 222/86 Heylens [1987] ECR 4097 and judgment of 3 December
1992,
Case C-97/91 Borelli [1992] ECR I-6313). According to the Court, that general
principle of Union
law also applies to the Member States when they are implementing Union law.
The inclusion of
this precedent in the Charter has not been intended to change the system of
judicial review laid
down by the Treaties, and particularly the rules relating to admissibility
for direct actions before the
Court of Justice of the European Union. The European Convention has considered
the Union's
system of judicial review including the rules on admissibility, and confirmed
them while amending
them as to certain aspects, as reflected in Articles III-353 to III-381 of
the Constitution, and in
particular in Article III-365(4). Article 47 1 applies to the institutions
of the Union and of Member
States when they are implementing Union law and does so for all rights guaranteed
by Union law.
1 Article II-107 of the Constitution.
The second paragraph corresponds to Article 6(1) of the ECHR which reads as
follows:
"In the determination of his civil rights and obligations or of any criminal
charge against him,
everyone is entitled to a fair and public hearing within a reasonable time
by an independent and
impartial tribunal established by law. Judgment shall be pronounced publicly
but the press and public
may be excluded from all or part of the trial in the interests of morals,
public order or national security
in a democratic society, where the interests of juveniles or the protection
of the private life of the
parties so require, or to the extent strictly necessary in the opinion of
the court in special
circumstances where publicity would prejudice the interests of justice."
In Union law, the right to a fair hearing is not confined to disputes relating
to civil law rights and
obligations. That is one of the consequences of the fact that the Union is
a community based on the
rule of law as stated by the Court in Case 294/83, "Les Verts" v.
European Parliament (judgment of
23 April 1986, [1988] ECR 1339). Nevertheless, in all respects other than
their scope, the guarantees
afforded by the ECHR apply in a similar way to the Union.
With regard to the third paragraph, it should be noted that in accordance
with the case law of the
European Court of Human Rights, provision should be made for legal aid where
the absence of such
aid would make it impossible to ensure an effective remedy (ECHR Judgment
of 9.10.1979, Airey,
Series A, Volume 32, 11). There is also a system of legal assistance for cases
before the Court of
Justice of the European Union.
AF/Constitution/DC/en 60
