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REFERENCE TO THE EU CHARTER OF FUNDAMENTAL RIGHTS
In recent decades, within the EU, increasing attention has been paid to fundamental rights. In the first place the Treaties of Maastricht and Amsterdam inserted amendments on the applicability of fundamental rights in the European Treaties. In particular, the Treaty of Amsterdam brought in a basic standard by which the ECHR and the fundamental rights enshrined in the constitutional traditions common to the Member States were recognised as general principles of Community law. Moreover, the Treaty of Amsterdam inserted a few specific fundamental rights in the European Treaties. Secondly, it was considered whether the EU as such could join the European Convention on Human Rights. Thirdly, the EU itself engaged in the preparation of a Charter of Fundamental Rights. This latter process was taken up in 2000 by a convention that drafted the so-called Charter of Fundamental Rights of the European Union. This Charter was adopted in December 2000 by the European Council of Nice, but at that time it did not receive a legally binding character.
On 1 December 2009, the Treaty of Lisbon entered into force. Its content was developed around 2001-2003 by the so-called European Convention, convened especially to give birth to a European Constitution. However, after the negative results of the referendums in France and the Netherlands it was decided to strip this document of the controversial epithet ‘European Constitution’, but to insert its text, slightly modified, into the existing European Treaties. That has been done through the Treaty of Lisbon. Under this treaty, the Treaty on the European Union (TEU) has changed significantly. The same applies to the old EC Treaty, which in future will be known as the Treaty on the Functioning of the European Union (TFEU).
The Area of Freedom, Security and Justice Before and After the Lisbon Treaty
Sources of Law and Primacy
The fall of the pillar structure attributes general jurisdiction to the Court of Justice and most notably removes the limitations concerning preliminary rulings in the Area of Freedom, Security and Justice. It will be remembered that in the field of visas, asylum, immigration and judicial cooperation in civil matters, only higher national courts were entitled to refer cases to the ECJ pursuant to Art. 68 TEC, 29 which undoubtedly compromised the uniform application of EC law. Moreover, the different standard afforded to EU and foreign citizens was hard to combine with the need to guarantee the protection of fundamental rights within the EC legal order. Finally, it should not be forgotten that, unlike the Member States, the Council and the Commission, the European Parliament was prevented from asking the ECJ to rule on the interpretation of measures adopted on the basis of Title IV of the EC Treaty.
In the Treaty of Paris, it was envisaged that the ECSC should be elected on the basis of a uniform electoral procedure. Similarly, Article 138 of the Rome Treaty included the following provision: ‘The Assembly shall draw up proposals for elections by direct universal suffrage in accordance with a uniform procedure in all Member States’. The Assembly approved such proposals as early as 1960, but found itself frustrated by yet another requirement of Article 138 which gave the deciding voice to the Council of Ministers with the words: ‘The Council shall, acting unanimously, lay down the appropriate provisions . . .’ The idea reappeared once more in Article 7 of the 1976 European Elections Act.