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Fundamental rights and non-discrimination.

INTRODUCTION

The founding Treaties contained no specific provisions on fundamental rights. The credit for gradually developing a system of guarantees for fundamental rights throughout the European Union has to go to the Court of Justice.

The rulings given by the Court have been essentially based on:

  • Article 220 (ex Article 164) of the EC Treaty establishing the European Community, which requires the Court to ensure that the law is observed in the interpretation and application of the Treaty;
  • the political dimension of the Community, which is grounded in a European model of society, including the protection of fundamental rights recognised by all Member States.

By bringing fundamental rights to the fore, those who drafted the Treaty of Amsterdam were endeavouring to give formal recognition to human rights. The provisions of the new Treaty include the following:

  • Article 6 (ex Article F) of the EU Treaty has been amended so as to reaffirm the principle of respect for human rights and fundamental freedoms;
  • a procedure is laid down for dealing with cases where a Member State has committed a breach of the principles on which the Union is based;
  • more effective action is to be taken to combat not only discrimination based on nationality but also discrimination based on sex, racial or ethnic origin, religion or belief, disability, age or sexual orientation;
  • new provisions on equal treatment for men and women are inserted in the Treaty establishing the European Community;
  • individuals are afforded greater protection with regard to the processing and free movement of personal data;
  • the Final Act was accompanied by declarations on the abolition of the death penalty, respect for the status of churches and philosophical or non-confessional organisations, and on the needs of persons with a disability.

BACKGROUND

The place given to fundamental rights in the Community Treaties has changed considerably since the European venture was first launched. At the outset, fundamental rights were not a central concern of those who drafted the Paris and Rome Treaties, which reflect a sectoral and functionalist approach. The Treaty of Paris, which established the European Coal and Steel Community (ECSC), is concerned solely with the coal and steel industries. This sectoral approach gained strength after the failure, in 1954, of the European Defence Community (EDC) and the concomitant moves towards political union. It thus became a feature of the Rome Treaties establishing the European Atomic Energy Community (Euratom) and the European Economic Community (EEC). Although the EEC Treaty was wider in scope than the other two, all three Treaties covered well-defined economic spheres.

One consequence of this sectoral approach was to set the founding Treaties apart from any basic law of a constitutional nature which incorporated a solemn declaration on fundamental rights. The Treaties in question were not suited to the inclusion of such a preamble, particularly since the Council of Europe's European Convention on Human Rights (ECHR), signed in 1950, already provided an advanced model for the protection of human rights in Europe.

The situation changed rapidly as the Court of Justice, in the judgments it handed down, began to monitor the respect shown for fundamental rights by the Community institutions and the Member States whenever they took action within the areas covered by Community law. The Court recognised, for example, the right to property and the freedom to engage in economic activity, which are essential to the smooth operation of the internal market. The Court held that fundamental rights ranked as general principles of Community law and that they were based on two:

  • the constitutional traditions of the Member States;
  • the international Treaties to which the Member States belonged (and the ECHR in particular).

In 1977 the European Parliament, the Commission and the Council signed a Joint Declaration in which they undertook to continue respecting the fundamental rights arising from the two sources identified by the Court. In 1986 a further step was taken when the preamble to the Single European Act included a reference to the promotion of democracy on the basis of fundamental rights.

The EU Treaty states that "[t]he Union shall respect fundamental rights, as guaranteed by the European Convention for the Protection of Human Rights and Fundamental Freedoms signed in Rome on 4 November 1950 and as they result from the constitutional traditions common to the Member States, as general principles of Community law" (Article 6(2), ex Article F.2).

At the same time, the idea that the Community as such should accede to the ECHR had begun to circulate. The Council decided to ask the Court's opinion on whether membership of the Convention would be compatible with the Treaties. In its opinion of 28 March 1996 the Court held that, as Community law stood at that time, the Community was not competent to accede to the Convention.

As European integration has progressed, the European Union has gradually widened its field of action, reflecting the determination of the Member States to act as one in areas which until now have been a strictly national preserve (e.g. internal security or the fight against racism and xenophobia). In view of these changes, which necessarily go beyond the sectoral context of the Community's early days and impinge on the daily life of European citizens, there is a need for clear legal texts which proclaim respect for fundamental rights as a basic principle of the European Union. The Treaty of Amsterdam meets this need.

PRINCIPLES

The Treaty of Amsterdam clarifies Article 6 (ex Article F) of the Treaty on European Union by stating unequivocally that the Union is founded on the principles of liberty, democracy, respect for human rights and fundamental freedoms, and the rule of law, principles which are common to the Member States.

It also amends the preamble to the EU Treaty, confirming the Member States' attachment to fundamental social rights as defined in the European Social Charter of 1961 and the Community Charter of the Fundamental Social Rights of Workers of 1989.

Before the Treaty of Amsterdam entered into force, Article F.2 of the EU Treaty stressed respect for the rights guaranteed by the ECHR and those resulting from the constitutional traditions common to the member states. However, under former Article L (now renumbered Article 46) the powers of the Court of Justice did not extend to Article F, so limiting its impact. Since ensuring respect for the law in the interpretation and application of the Treaty is the Court's task, the scope of fundamental rights was correspondingly reduced.

By amending Article 46, the Treaty of Amsterdam ensures that Article 6(2) will be applied. The Court now has the power to decide whether the institutions have failed to respect fundamental rights.

BREACH BY A MEMBER STATE OF THE PRINCIPLES ON WHICH THE UNION IS BASED

The Treaty of Amsterdam proclaims that the Union is founded on the principles of liberty, democracy, respect for human rights and fundamental freedoms, and the rule of law, principles which are common to the Member States. At the same time, the new Treaty acknowledges that these principles may be infringed by a Member State and lays down the procedure which the Union should follow in dealing with the Member State concerned.

Establishment of the existence of a breach

On a proposal from the Commission or one third of the member states, the Council - in the shape of the heads of state or government - may determine the existence of a breach by a Member State. The breach must be "serious and persistent". The European Parliament has to give its assent by a majority of its members and a two-thirds majority of the votes cast. The government of the Member State in question is first invited to submit its observations.

The Council's decision establishing a breach will be considered unanimous even where a Member State abstains.

Suspension of the Member State concerned

Once a serious and persistent breach has been established, the Council may (but need not necessarily) suspend some of the Member State's rights under the Treaty. However, the country remains bound by its obligations. The suspension of rights might, for instance, involve withdrawing the Member State's voting rights in the Council.

At this second stage, the Council acts by a qualified majority, disregarding the votes of the Member State concerned.

Variation or revocation of the suspension

If there is a change in the situation that led to a Member State's suspension, the Council can decide to vary or revoke the measures taken.

When taking such a decision, the Council acts by a qualified majority, disregarding the votes of the Member State concerned.

THE FIGHT AGAINST DISCRIMINATION

Article 12 (ex Article 6) of the EC Treaty provides that any discrimination on the grounds of nationality is prohibited. At the same time, Article 141 (ex Article 119) lays down the principle of non-discrimination between men and women, though only as far as equal pay is concerned.

The Treaty of Amsterdam restates the principle of non-discrimination in stronger terms, adding two new provisions to the EC Treaty.

The new Article 13

This Article complements Article 12, which prohibits discrimination on grounds of nationality. The new Article enables the Council to take appropriate action to combat discrimination based on sex, racial or ethnic origin, religion or belief, disability, age or sexual orientation.

When the Council acts on the basis of Article 13, it does so unanimously on a proposal from the Commission and after consulting the European Parliament.

Declaration regarding persons with a disability

The new Article 13 provides for measures to combat discrimination based on disability. The Intergovernmental Conference that drew up the Treaty of Amsterdam sought to offer an even stronger guarantee by including a declaration in the Final Act, stating that the Community institutions must take account of the needs of persons with a disability when adopting measures to approximate Member States' legislation..

EQUALITY BETWEEN MEN AND WOMEN

Article 2 of the Treaty provides that it will be the Community's task to promote the harmonious, balanced and sustainable development of economic activities, environmentally-friendly growth, a high degree of convergence of economic performance, a high level of employment and social protection, the raising of the standard of living and quality of life, economic and social cohesion and solidarity among Member States. Article 3 lists the various measures which the Community should take to carry out the tasks specified in Article 2.

The Treaty of Amsterdam extends these two Articles to include equality between men and women, which previously figured only in Article 141 (ex Article 119) of the EC Treaty (more restricted in scope since it relates only to equal pay). The two additions made are as follows:

Amendment of Article 2

The list of tasks facing the Commission will include the promotion of equality between men and women.

Amendment of Article 3

A new paragraph has been added, reading as follows:

"In all the other activities referred to in this Article, the Community shall aim to eliminate inequalities, and to promote equality, between men and women."

PROCESSING OF PERSONAL DATA

The main Community measure in this area is the 1995 Directive on the protection of individuals with regard to the processing of personal data and on the free movement of such data. In the absence of a specific legal basis, this Directive was adopted under Article 95 (ex Article 100a) of the EC Treaty, which concerns the approximation of legislation relating to the single market.

The free movement of persons necessarily entails the establishment of information systems on a European scale. In view of these changes, a new article has been inserted in the EC Treaty, making the rules on the protection of individuals applicable to the Community institutions themselves.

The new Article 286

This Article will consist of two paragraphs which will provide respectively that:

  • from 1 January 1999, Community acts on the protection of individuals with regard to the processing of personal data and the free movement of such data apply to the Community institutions and bodies;

before 1 January 1999, the Council is to establish an independent supervisory body responsible for monitoring the application of those Community acts to Community institutions and bodies.

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