Preface

 

OUR BOOK 
EUROPEAN UNION LAW
AND
FUNDAMENTAL RIGHTS
Jorge Rodrigues Simão

 

 

Preface

 

The fact that fundamental rights are an essential component of the European Union is today a consolidated state of affairs. In this sense, the EU seems to have undergone a true genetic transformation, evolving from a sui generis international organization, mainly focused on market integration, to an autonomous legal order protecting and promoting the rule of law within and outside its boundaries.

It is well known that the failure of the ambitious constitutional project did not stop the reform process undertaken with the 2001 Declaration on the Future of Europe. The reflection period which followed the French and Dutch referenda on the Treaty Establishing a Constitution forEuropeended with the Berlin Summit in March 2007. The resulting Intergovernmental Conference promptly returned a Treaty purged of all constitutional elements, but deeply rooted in the work of the Giscard d’Estaing Convention.
The final text, signed inLisbonon 13 December 2007, provides that the European Union shall replace and succeed to the European Community. The former will be founded on the Treaty on European Union and on the Treaty on the Functioning of the European Union, with the same legal value.
The repeal of the Pillar architecture, a profoundly modified institutional framework designed to ensure effectiveness and coherence, the enhanced judicial protection bestowed to individuals, the primary law status assigned to the Charter and the envisaged accession to the European Convention on Human Rights are all decisive elements in the affirmation of the European Union as a legal order based on the rule of law, and a credible actor on the international scene.

Although the specificities preserved in the Common Foreign and Security Policy (including the Common Defense Policy) still betray strong national resistances in relation to further integration in this area – sometimes linked to well consolidated constitutional traditions – the new provisions enhance the overall capacity of the EU to effectively respond to external threats while concomitantly promoting and defending its internal values outside its borders.
The fact that fundamental rights are an essential component of the European Union is today a consolidated state of affairs. In this sense, the EU seems to have undergone a true genetic transformation, evolving from a sui generis international organization, mainly focused on market integration, to an autonomous legal order protecting and promoting the rule of law within and outside its boundaries.
It is well known that the failure of the ambitious constitutional project did not stop the reform process undertaken with the 2001 Declaration on the Future of Europe. The reflection period which followed the French and Dutch referenda on the Treaty Establishing a Constitution forEuropeended with the Berlin Summit in March 2007. The resulting Intergovernmental Conference promptly returned a Treaty purged of all constitutional elements, but deeply rooted in the work of the Giscard d’Estaing Convention.
The final text, signed inLisbonon 13 December 2007, provides that the European Union shall replace and succeed to the European Community.
The former will be founded on the Treaty on European Union and on the Treaty on the Functioning of the European Union, with the same legal value.
The repeal of the Pillar architecture, a profoundly modified institutional framework designed to ensure effectiveness and coherence, the enhanced judicial protection bestowed to individuals, the primary law status assigned to the Charter and the envisaged accession to the European Convention on Human Rights are all decisive elements in the affirmation of the European Union as a legal order based on the rule of law, and a credible actor on the international scene.
Although the specificities preserved in the Common Foreign and Security Policy (including the Common Defense Policy) still betray strong national resistances in relation to further integration in this area – sometimes linked to well consolidated constitutional traditions – the new provisions enhance the overall capacity of the EU to effectively respond to external threats while concomitantly promoting and defending its internal values outside its borders.
With the rejection of the Constitutional Treaty, the emperor might have lost his robes but still rules, and integration will proceed in a renewed institutional framework where normative and judicial action must build upon and comply with the Charter. On the other hand, accession to the ECHR shall provide the system with more coherence allowing individuals
to contest the compatibility of EU law and practice before theStrasbourg Court. As will be seen, although the reasons for accession are mostly political in nature, the practical consequences of membership could be quite significant. Indeed, this external supervision should be understood as complementary to the newly binding Charter, which sets the minimum standard of protection by and within theUnion. By contrast, the protection offered under the Convention will remain the lowest applicable standard for Member States, when acting outside the scope of application of the treaties, and for the EU when operating within its competences.
Since its first proclamation on 7 December 2000, the nature, value and scope of the Charter have been thoroughly investigated in legal literature, together with its use by the A comprehensive analysis of the multiple consequences, legal and political, stemming from the Reform Treaty falls beyond the scope of the present volume. More sensibly, this volume is directed at offering a first EU courts and national judges. Taking as a frame of reference the new Treaties, we firstly addresses the consequences of a legally binding Bill of Rights in a broader perspective, taking into account its legal and political relevance, its contribution to the multilevel system of fundamental rights protection in Europe, the influence it has so far exercised on domestic and EU case law, as well as the possible repercussions on the role of the European Parliament, on judicial protection and on human rights conditionality in the EU’s enlargement policy.
After as second part we will focuses on the consequences of a binding Charter in certain specific areas of law: from citizens’ rights to internal market derogations; from judicial cooperation in civil and criminal matters to social rights and environmental policy making; from the common commercial policy to the common foreign and security policy.
A comprehensive analysis of the multiple consequences, legal and political, stemming from the Reform Treaty falls beyond the scope of the present work. More sensibly, this papers is directed at offering a first assessment of possible future developments in what are believed to be some crucial domains of EU law, both in terms of legislative action and judicial practice.


Brussels, Belgium.
Jorge Rodrigues Simão
 January 2017
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