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<p align="justify">             </p>

<p align="justify"><b>Doc. 8611</b></p>

<p align="justify">14 January 2000</p>

<p><b>Charter of Fundamental Rights of the European Union</b></p>

<p align="justify">Report</p>

<p align="justify">Committee on Legal Affairs and Human Rights</p>

<p align="justify">Rapporteur: Mr Göran Magnusson, Sweden, Socialist Group</p>

<p align="justify"><i>Summary</i></p>

<p align="justify">Is the coexistence of two parallel systems of human rights protection in Europe possible and in particular is it not likely to lead to inconsistencies? That is the question the Assembly was confronted with following the decision taken by the European Council, in Cologne in June 1999 to draw up a Charter of Fundamental Rights of the European Union. </p>

<p align="justify">The Assembly, while welcoming improvements in the guarantee of fundamental rights in Europe, draws the attention of the European Union to the existence of the European Convention on Human Rights, to which all of its member states have adhered, and to the European Court of Human Rights responsible for his interpretation. It also proposes solutions which would make it possible to avoid the inconsistencies of such a coexistence: the inclusion in the Charter of the rights contained in European Convention on Human Rights and the ratification of the Convention by the European Union. </p>

<p align="justify"><b>I. Draft resolution</b></p>

<p align="justify">1.&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp; The Assembly considers it necessary to make a number of observations following the decision by the EU European Council in Cologne on 3 and 4 June 1999 to draw up a Charter of Fundamental Rights of the European Union, to be submitted to the European Council in December 2000.</p>

<p align="justify">2.&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp; At this stage, without knowing the Charter's content, the Assembly wishes to bring a number of matters to the attention of those responsible for drafting this instrument, that is to say the &quot;body&quot; established to that end in Tampere, and may have occasion to make observations on the substance of the Charter in due course.</p>

<p align="justify">3.&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp; The European institutions, first the Communities and then the European Union, have always shown an interest in human rights, in particular the European Convention on Human Rights, and have mentioned those rights as the foundation of democracy in their successive treaties. The European Parliament and the Commission have on a number of occasions come out in favour of the Union's accession to the Convention. The Parliamentary Assembly has itself welcomed this proposal. However, it has not yet been translated into action, following an opinion by the Court of Justice in Luxembourg on whether accession to the Convention was compatible with the Community treaties, in which the Court found that, as Community law stood at the time, the Commission had no competence to accede.</p>

<p align="justify">4.&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp; At a time when it is reinforcing its powers, the Union wishes to make the importance of human rights more visible to its citizens, as stated in the decision taken in Cologne, and to bring these currently scattered rights together in a single text. The Assembly welcomes this initiative as a sign of a resolve to strengthen further the cause of human rights in Europe.</p>

<p align="justify">5.&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp; The Assembly nonetheless considers that, in adopting a Charter of Fundamental Rights, the achievements of the European Convention on Human Rights and the body of its case-law established over almost fifty years, which has had far-reaching effects on the law of the member states of the Council of Europe and therefore of the European Union, cannot be disregarded. It further draws attention to the risks of having two sets of fundamental rights which would weaken the European Court of Human Rights.</p>

<p align="justify">6.&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp; In this connection, the Assembly recalls the communication of 19 November 1990 issued by the Commission of the European Communities on accession to the European Convention on Human Rights, in which it stated that accession did not rule out the option of a set of fundamental rights specific to the Community. The opposite inference can therefore be made, ie that adoption of a Charter does not rule out accession to the Convention on Human Rights.</p>

<p align="justify">7.&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp; The European Union and the Council of Europe undeniably guarantee a number of rights which are not contained in the European Convention on Human Rights, particularly economic and social rights, and the Charter should therefore include these rights, adding to them others now accepted as fundamental rights. The Assembly draws attention to the other instruments for the protection of human rights on which the Charter could draw, in particular the revised European Social Charter, which guarantees economic and social rights and is an instrument to which the Assembly has invited the Union to accede. It recalls that, following the Treaty of Amsterdam, a reference to the Social Charter of the Council of Europe was included in the Treaty on the European Union.</p>

<p align="justify">8.&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp; The Assembly refers to the European Union report, prepared in February 1999 by an expert group chaired by Professor Simitis, which recommends that Articles 2 to 13 of the European Convention on Human Rights be incorporated into Community law, together with the rights secured in the protocols to the Convention. The inclusion of rights guaranteed by the Convention would be a means of avoiding having two different sets of rights in Europe, thus creating two categories of citizens enjoying different rights.</p>

<p align="justify">9.&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp; The Assembly believes that there can be no discrimination in the application of fundamental rights and that everyone coming under the jurisdiction of a Council of Europe member state must enjoy the protection of such rights, as provided for in Articles 1 and 14 of the European Convention on Human Rights.</p>

<p align="justify">10.&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp; In conclusion, in the light of the above, the Assembly invites the European Union:</p>

<p align="justify">i. to incorporate the rights guaranteed in the European Convention on Human Rights and its protocols in the Charter of Fundamental Rights and to do its utmost to safeguard the coherence of the protection of human rights in Europe and to avoid diverging interpretations of those rights;</p>

<p align="justify">ii. to pronounce itself in favour of accession to the European Convention on Human Rights of the Council of Europe and make the necessary amendments to the Community treaties;</p>

<p align="justify">iii. to make sure that when referring to social rights the revised European Social Charter of the Council of Europe will be taken into account.</p>

<p align="justify"><b>II.&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp; Draft recommendation</b></p>

<p align="justify">1.&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp; The Assembly, having regard to its Resolution &#8230; (2000) on the European Union Charter of Fundamental Rights, in which it invites the European Union:</p>

<p align="justify">i. to incorporate the rights guaranteed in the European Convention on Human Rights and its protocols in the Charter of Fundamental Rights and to do its utmost to safeguard the coherence of the protection of human rights in Europe and to avoid diverging interpretations of those rights</p>

<p align="justify">ii. to pronounce itself in favour of accession to the European Convention on Human Rights of the Council of Europe and make the necessary amendments to the Community treaties;</p>

<p align="justify">iii. to make sure that when referring to social rights the revised European Social Charter of the Council of Europe will be taken into account,</p>

<p align="justify">recommends that the Committee of Ministers of the Council of Europe pronounce itself in favour of the accession of the European Union to the European Convention on Human Rights and prepare the appropriate amendments to be made to this treaty.</p>

<p align="justify"><b>III.&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp; Draft order</b></p>

<p align="justify">The Assembly, having regard to its Resolution &#8230; (2000) and Recommendation &#8230; (2000), instructs its Committee on Legal Affairs and Human Rights to carefully follow and monitor the outcome of the drafting work on the Charter of Fundamental Rights, and to report back to it on this subject in due course.</p>

<p align="justify"><b>IV. Explanatory memorandum by Mr Magnusson</b></p>

<p align="justify"><b>A.&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp; Introduction</b></p>

<p align="justify">1.  &nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp; In a motion for a resolution (<a href="/ASP/Doc/RefRedirectEN.asp?Doc=Doc 8542">Doc 8542</a>), some members of the Parliamentary Assembly expressed their concern on learning of the decision taken by the European Union&#8217;s European Council, in Cologne on 3-4 June 1999, to draw up a Charter of Fundamental Rights of the European Union. </p>

<p align="justify">2.  &nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp; As the draft is to be prepared and presented in time for the meeting of the European Council in December 2000, the signatories of the motion felt there was a certain urgency to take a stand on that decision. They considered it necessary that the Council of Europe be involved in the drawing up of such a Charter. They believed that such a Charter should not be integrated into the treaties of the European Union, as it would doubtless result in different interpretations of the Convention&#8217;s provisions by the European Court on Human Rights on the one hand and the Court of Justice of the European Communities on the other.</p>

<p align="justify">3.  &nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp; They therefore called upon the Parliaments of the European Union&#8217;s member States to renew their efforts in favour of the accession of the Union to the Council of Europe&#8217;s European Convention on Human Rights (hereafter: ECHR), and in the meantime to do their utmost to prevent the granting of treaty value to any European Union Charter of Fundamental Rights.</p>

<p align="justify">4.  &nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp; The present draft report aims at analysing the situation, starting by summarising the relations of the European Institutions with human rights, trying to identify the possible developments in the light of the decision taken at the Cologne meeting and making proposals to avoid the above-mentioned risks of duplication in the interpretation of the rights and of two systems of protection, one for the citizens of the European Union&#8217;s member States and another for the citizens of the rest of Europe.   </p>

<p align="justify"><b>B.&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp; The European Institutions and Human Rights</b></p>

<p align="justify">5.  &nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp; It is to be noted that the European Institutions, first the Communities and now the European Union (hereafter: EU), have always shown an interest in human rights and in so doing they have always made reference to the ECHR.</p>

<p align="justify">6.  &nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp; The preamble of the Single European Act of 1986 expressed the European Community member states&#8217; determination &quot;to work together to promote democracy on the basis of the fundamental rights recognised in the constitutions and laws of the member states, in the Convention for the Protection of Human Rights and Fundamental Freedoms and the European Social Charter, notably freedom, equality and social justice&quot;.</p>

<p align="justify">7.  &nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp; Some specific rights are explicitly included in the Treaties of the Communities, such as freedom of movement for workers, freedom of establishment and freedom to supply services, equality of treatment between men and women and non-discrimination on the ground of nationality.</p>

<p align="justify">8.  &nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp; To these rights four new rights have been added in the Treaty on the European Union: right to move and reside freely within the territory of member states; right to vote and to stand as a candidate in municipal and European elections in the member State where one resides; right to petition the European Parliament and right to apply to the European Ombudsman; protection in third countries by the diplomatic and consular authorities of any member State. </p>

<p align="justify">9.  &nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp; However, these rights are scattered and it has been thought that they should be grouped and also completed with other ones. At the same time, protection through accession to the ECHR was already envisaged in the 1970s.</p>

<p align="justify">10.  &nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp; As was recalled in the report on the accession of the European Community to the ECHR (<a href="/ASP/Doc/RefRedirectEN.asp?Doc=Doc 7383">Doc 7383</a>) of 1995, presented by Mrs Wohlwend, following the Commission of the European Communities' memorandum of 4 April 1979 and the European Parliament Resolution of 27 April 1979, the Parliamentary Assembly of the Council of Europe welcomed the prospect of such accession, emphasising in its<a href="/ASP/Doc/RefRedirectEN.asp?Doc= Resolution 745"> Resolution 745</a> of January 1981 that &nbsp;accession &quot;would form an important bond between the European Communities and the member states of the Council of Europe in the specific field of human rights and fundamental freedoms, and would thus contribute to strengthening the principles of parliamentary democracy and the implementation of basic human rights&quot;.</p>

<p align="justify">11.  &nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp; This was reaffirmed several times by the European Parliament, which reiterated its support in three resolutions, on 18 January 1994, on 4 May 1994 and on 11 April 1995. The Parliamentary Assembly also reiterated its support in its<a href="/ASP/Doc/RefRedirectEN.asp?Doc= Recommendation 1365"> Recommendation 1365</a> (1998).</p>

<p align="justify">12.  &nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp; In its Communication on the accession to the European Convention for the Protection of Human Rights and Fundamental Freedoms and some of its Protocols (SEC (90) 2087 final of 19 November 1990), the Commission of the European Communities concluded as follows:</p>

    <ul><ul><p align="justify">&quot;The Commission accordingly requests that the Council:</p>

    <p align="justify">(i) approve the request for the Community&#8217;s accession to the ECHR</p>

    <p align="justify">(ii) authorise the Commission to negotiate the details of this accession in accordance with the directives set out in Annex 1, the aim being to make necessary adjustments to the Convention to make possible this accession (notably to provide for Community representation in the Commission of Human Rights and the Court of Human Rights).&quot;</p>

</ul></ul><p align="justify">It also stated that the accession of the European Community to the ECHR does not exclude the option of a catalogue of fundamental rights specific to the Community. </p>

<p align="justify">13.  &nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp; The Parliamentary Assembly adopted<a href="/ASP/Doc/RefRedirectEN.asp?Doc= Resolution 1068"> Resolution 1068</a> (1995) on the accession of the European Community to the ECHR on 27 September 1995. In this text, it expressed the hope that the Community would soon take the necessary steps to submit its formal application for accession.</p>

<p align="justify">14.  &nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp; Since the adoption of that resolution important developments have taken place. First, on 26 April 1994, the Council of Ministers of the Community asked the Court of Justice of the European Communities for its opinion on the compatibility of accession to the European Convention on Human Rights with the Community treaties.</p>

<p align="justify">15.  &nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp; In its opinion adopted in March 1996, the Court held that &quot;such a modification of the system for the protection of human rights in the Community, with equally fundamental institutional implications for the Community and for the Member States, would be of constitutional significance and would therefore be such as to go beyond the scope of Article 235. It could only be brought about by way of Treaty amendment&quot; and it concluded that as Community law stood at that time the Community had no competence to accede to the ECHR.</p>

<p align="justify">16.  &nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp; Following this opinion by the Court of Justice, the question of European Community accession to the ECHR was not subsequently discussed in the framework of the Intergovernmental Conference which led to the conclusion of the Treaty of Amsterdam. </p>

<p align="justify">17.  &nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp; The Amsterdam Treaty, signed on 2 October 1997, and which entered into force on 1 May 1999, affirms in its Article 6§1 the European Union&#8217;s commitment to human rights and fundamental freedoms and confirms the Union&#8217;s attachment to fundamental social rights.</p>

<p align="justify">18.  &nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp; This is nothing new, as we have already seen. </p>

<p align="justify">19.  &nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp; What is new is the decision taken by the European Council of the European Union at its meeting in Cologne on 3 and 4 June 1999 &quot;to draw up a Charter of Fundamental Rights of the European Union, to make their overriding importance and relevance more visible to the Union&#8217;s citizens&quot;.</p>

<p align="justify">20.  &nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp; According to the terms of the decision &quot;the European Council believes that this Charter should contain fundamental rights and freedoms as well as basic procedural rights guaranteed by the European Convention for the Protection of Human Rights and Fundamental Freedoms and derived from the constitutional traditions common to the Member States, as general principles of Community law. The Charter should also include the fundamental rights that pertain only to the Union's citizens. In drawing up such a Charter account should furthermore be taken of economic and social rights as contained in the European Social Charter and the Community Charter of the Fundamental Social rights of Workers, insofar as they do not merely establish objectives for action by the Union&quot;.</p>

<p align="justify">  </p>

<p align="justify"><b>C.  &nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp; Strengthening Human Rights in Europe</b></p>

<p align="justify">21.  &nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp; As already said, the concern for human rights has always been present in the European Union. However, with the adoption of the Amsterdam Treaty which reinforces the power of the EU, some member States felt it necessary to put in a single text the rights which are already guaranteed and to add to it other rights. Another reason for that is the wish to make visible EU concern for human rights (see para 19). </p>

<p align="justify">22.  &nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp; As stated before, the Commission of the European Communities already said in its communication of 1990 that the accession of the Community to the ECHR does not exclude the option of a catalogue of fundamental rights specific to the community.</p>

<p align="justify">23.  &nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp; Furthermore, the Parliamentary Assembly itself, in the explanatory memorandum to its<a href="/ASP/Doc/RefRedirectEN.asp?Doc= Resolution 1068"> Resolution 1068</a> (1995), acknowledged that the fundamental rights and freedoms of Community citizens needed to be clearly affirmed, especially as new protection requirements were becoming apparent. It also stated: &quot;in the absence of explicit references in the treaties, some Community states have given the fundamental rights appearing in their national constitutions precedence over the provisions of derived Community law. Such a threat to the uniform application of Community law is one of the factors behind the drawing of a Community code of fundamental rights.&quot;</p>

<p align="justify">24.  &nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp; From all the foregoing it seems very clear that the decision to draw up a&nbsp;Charter is a logical consequence of the evolution in both the European Institutions and in the Council of Europe towards the protection of human rights in Europe.</p>

<p align="justify">25.  &nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp; What remains to be seen is how this aim would be best achieved.</p>

<p align="justify">26.  &nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp; The Council of Europe has to contribute to reaching this aim. One has to recall that all the member States of the EU are also members of the Council of Europe and that they should be coherent.</p>

<p align="justify">27.  &nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp; Firstly, concerning the involvement of the Council of Europe in the drawing up of the Charter of Fundamental Rights, the decision setting up the body<sup><a href="#P155_17619" name="P155_17620">1</a></sup> to elaborate a draft EU Charter foresees that the Council of Europe will be represented in the body set up to elaborate the Charter as an observer. It is entitled to two representatives, including one from the European Court of Human Rights.</p>

<p align="justify">28. &nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp; Secondly, it must be taken into account that five members of the Parliamentary Assembly have been nominated among the two members from each national parliament, including the Rapporteur and the Chairperson of the Committee on Legal Affairs and Human Rights.</p>

<p align="justify"><b>D. &nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp; The Charter: contents and implementation</b></p>

<p align="justify"><b>a. The rights to be guaranteed</b></p>

<p align="justify">29.  &nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp; As mentioned in the decision of Cologne, the ECRH is a reference to be taken into consideration when drafting the Charter. How?</p>

<p align="justify">30.  &nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp; Should the ECHR be included as such in the Treaty of the EU? This was to some extent the opinion expressed by the Expert Group on Fundamental Rights, chaired by Professor Simitis, which prepared a report at the request of the European Commission. </p>

<p align="justify">This report entitled &quot;Affirming fundamental rights in the European Union - Time to act&quot; was completed in February 1999. According to the Expert Group &quot;the rights provided in Articles 2 to 13 of the ECHR should be incorporated in their entirety into the Community law, together with the rights in the Protocols to the ECHR&quot;. They considered that clauses detailing and complementing the ECHR must be added, as it appears necessary. They gave as an example a list of rights which are already recognised in Community law or in the case-law of the Court of Justice of Luxembourg:</p>

<p align="justify">- the right to equality of opportunity and treatment, without any distinction such as race, colour, ethnic, national or social origin, culture or language, religion, conscience, belief, political opinion, sex or gender, marital status, family responsibilities, sexual orientation, age or disability&nbsp;;</p>

<p align="justify">- the freedom of choice of occupation&nbsp;;</p>

<p align="justify">- the right to determine the use of personal data&nbsp;;</p>

<p align="justify">- the right to family reunion&nbsp;;</p>

<p align="justify">- the right to bargain collectively, and to resort to collective action in the event of a conflict of interests; and</p>

<p align="justify">- the right to information, consultation and participation in respect of decisions affecting interests of workers.</p>

<p align="justify">31.  &nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp; One cannot know at this stage what will be the proposals by the body responsible for elaborating the Charter. However, the following comments have to be made regarding Professor Simitis's report.</p>

<p align="justify">32.  &nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp; First, the inclusion of the ECHR in the Community law would be a good solution in that it would avoid having two different sets of rights in Europe thus creating two categories of citizens entitled to different rights.</p>

<p align="justify">33.  &nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp; One has, however, to question the exclusion of article 1 of the ECHR. Article 1 of the ECHR states: &quot;the High Contracting Parties shall secure to everyone within their jurisdiction the rights and freedoms defined in section 1 of the Convention&quot;.</p>

<p align="justify">34.  &nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp; This is an essential aspect of the protection of human rights: one cannot exclude people on the ground of their national origin, as mentioned in the article on non -discrimination cited as an example by the Expert Group. This should cover not only the citizens of the Union&#8217;s member states wherever they are, but also the citizens of other countries who are within their jurisdiction. Only some political rights, such as the right to vote or to be elected, which are recognised to the citizens of the EU, could be linked to citizenship, although they could also be extended to persons residing on a legal basis on the territory of the Union.</p>

<p align="justify">35.  &nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp; The other articles which have been excluded by the Expert Group are Article 14 of the ECHR, which concerns the prohibition of discrimination, Article15 concerning the derogation in time of emergency and Article 16 concerning restrictions on political activity of aliens.</p>

<p align="justify">36.  &nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp; Article 14 is the object of a draft Protocol No 12 to the ECHR with a view to extending it. The Assembly has been called upon to give its opinion on this draft Protocol. At this stage it is however obvious that the scope envisaged by the Expert Group is much wider than that of the draft Protocol.</p>

<p align="justify">37.  &nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp; This does not seem to be an obstacle, on the contrary. The approach is to take the ECHR as minimum standard to which the Union could add more rights in order to take into account its own law.</p>

<p align="justify">38.  &nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp; The report refers also to the &quot;relevant rights in the Protocols to the ECHR&quot;. They mention the following rights: the right to property (Article 1 of the First Protocol), the right to vote (Article 3 of the First Protocol) and the right to free movement (Article 2 of the Fourth Protocol).</p>

<p align="justify">39.  &nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp; They leave out a number of other rights, such as the right to education, the prohibition of imprisonment for debt, the prohibition of expulsions of nationals, the prohibition of collective expulsion of aliens, the abolition of the death penalty, as well as Protocol No 7, which guarantees some procedural rights.</p>

<p align="justify">40.  &nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp; As regards the social rights one could also recommend the inclusion of the European Social Charter into the Community law. Of course the question of their implementation remains to be solved. Social rights require an intervention by the State and in particular have financial implications.</p>

<p align="justify"><b>b. The implementation of the rights guaranteed</b></p>

<p align="justify">41.  &nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp; Even if the ECHR were included into the Charter of Fundamental Rights, the risk still exists that their interpretation might vary if two Courts are responsible for it. This is probably the main concern upon which the Parliamentary Assembly should concentrate.</p>

<p align="justify">42.  &nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp; The European Court on Human Rights is responsible for the interpretation of the ECHR and should continue to be so. Ways should be found to keep its competence for the interpretation of the rights contained in the ECHR even if they are included in the Charter, while the Court of Justice of Luxembourg should keep its competence to interpret the other rights and in particular the alleged violations of human rights by Community institutions without a member State intervention.</p>

<p align="justify">43.  &nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp; The report on which is based<a href="/ASP/Doc/RefRedirectEN.asp?Doc= Resolution 1068"> Resolution 1068</a> (1995), paragraph 25, had foreseen a problem which has occurred in the meantime. In implementing the Community&#8217;s law, it is the member States that are ultimately liable to be subjected to the sanctions of the European Court of Human Rights in the Community&#8217;s stead, and be condemned on account of derived Community law. The conclusion of the Community treaties by the states has not released them from the obligations they contracted in the framework of the ECHR. Consequently, it is still possible for an individual to submit to the Strasbourg Court an application against a member State in respect of a national measure designed to implement Community law, and even a measure taken by the Community, and for the state to be condemned.</p>

<p align="justify">44.  &nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp; This occurred recently in the Matthews case against the United Kingdom, which concerned the situation of the people of Gibralter who were not allowed to vote in the European Parliament elections even though they were subject to European Union &quot;legislation&quot;. The case was brought before the European Court of Human Rights.</p>

<p align="justify">45.  &nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp; Accession to the ECHR would remove this risk by permitting direct appeals against such acts as well as against implementing measures taken by member States in cases where they do not possess wide discretionary powers.</p>

<p align="justify">46.  &nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp; Of course both the accession of the European Communities/Union to the ECHR and the repartition of competencies between the two courts need adjustments. These adjustments are of a legal nature and if the political will exists they should not be an obstacle.</p>

<p align="justify">47.  &nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp; Different options exist, such as prejudicial request for an opinion of one Court to the other, or a repartition according to the right involved or the organ or State respondent for the alleged violation. </p>

<p align="justify">48.  &nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp; Already in 1990, the Commission of the Communities, in its Communication on the accession to the ECHR, appended the following negotiating directives:</p>

  <ul><p align="justify">&quot;1. The purpose of the negotiations is to draw up an additional Protocol to the ECHR of 1950, enabling the Community to become a party to the Convention and some of its Protocols;</p>

  <p align="justify">2. In order to ensure that the Community participates fully in the organs of the Conventions, the Community will have to be represented as such in the (Commission of Human Rights) the Court of Human Rights. An ad hoc solution will have to be envisaged for its representation in the Committee of Ministers.</p>

  <p align="justify">3. The negotiating directives will be defined, where necessary, by the usual procedures.&quot;</p>

</ul><p align="justify"><b>E.&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp; Preliminary conclusions</b></p>

<p align="justify">49.  &nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp; The Parliamentary Assembly recognises that the drawing up of a Charter of Fundamental Rights of the European Union is a logical development in the evolution of the European Union and considers it as a strengthening of the protection of human rights in Europe. It should ensure that this is the case and that the rights are guaranteed to everyone within the jurisdiction of the Union.</p>

<p align="justify">50.  &nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp; It however would like to draw&nbsp;attention to the existence of the ECHR and its mechanism of protection through the former European Commission and the Court of Human Rights, which have proved their efficiency. It accordingly calls on the attention of the body in charge of elaborating this Charter to take this mechanism into account. In particular, it recommends it to follow the conclusions of the Expert Group on Fundamental Rights, chaired by Pr Simitis, to include and incorporate the articles of the ECHR into the Community law, together with the relevant rights in the Protocols to the ECHR. One should avoid in the future a situation in which there are two different systems of protection with two different courts whose case-law could be divergent</p>

<p align="justify">51.  &nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp; The Parliamentary Assembly also reiterates its recommendation that the European Communities/Union accede to the ECHR, to which all its member states are Parties, as was advised on many occasions in the past both by the institutions of the European Communities and by the Council of Europe. It could also accede to the European Social Charter. In order to allow this accession, the Committee of Ministers should start preparatory work.</p>

<p align="justify">52.  &nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp; In addition, in order to avoid a different interpretation of these rights by the two European Courts, it recommends that the competence of each of them be clearly defined.</p>

<p align="justify"><b>APPENDIX </b></p>

<p align="justify"><b>COMPOSITION METHOD OF WORK AND PRACTICAL ARRANGEMENTS FOR THE BODY TO ELABORATE A DRAFT EU CHARTER OF FUNDAMENTAL RIGHTS, <br>
AS SET OUT IN THE COLOGNE CONCLUSIONS</b></p>

<p align="justify"><b>A. COMPOSITION OF THE BODY</b></p>

<p align="justify"><b><i>(i) Members</i></b></p>

<p align="justify"><b>(a) Heads of State or Government of Member States</b></p>

<p align="justify">Fifteen representatives of the Heads of State or Government of Member States.</p>

<p align="justify"><b>(b) Commission</b></p>

<p align="justify">One representative of the President of the European Commission.</p>

<p align="justify"><b>(c) European Parliament</b></p>

<p align="justify">Sixteen members of the European Parliament to be designated by itself.</p>

<p align="justify"><b>(d) National Parliaments</b></p>

<p align="justify">Thirty members of national Parliaments (two from each national Parliament) to be designated by national Parliaments themselves.</p>

<p align="justify">Members of the Body may be replaced by alternates in the event of being unable to attend meetings of the Body.</p>

<p align="justify"><b><i>(ii) Chairperson and Vice-Chairpersons of the Body</i></b></p>

<p align="justify">The Chairperson of the Body shall be elected by the Body. A member of the European Parliament, a member of a national Parliament, and the representative of the President of the European Council if not elected to the Chair, shall act as Vice-Chairpersons of the Body.</p>

<p align="justify">The member of the European Parliament acting as Vice-Chairperson shall be elected by the members of the European Parliament serving on the Body. The member of a national Parliament acting as Vice-Chairperson shall be elected by the members of national Parliaments serving on the Body.</p>

<p align="justify"><b><i>(iii) Observers</i></b></p>

<p align="justify">Two representatives of the Court of Justice of the European Communities to be designated by the Court. Two representatives of the Council of Europe, including one from the European Court of Human Rights.</p>

<p align="justify"><b><i>(iv) Bodies of the European Union to be invited to give their views</i></b></p>

<p align="justify">The Economic and Social Committee</p>

<p align="justify">The Committee of the Regions</p>

<p align="justify">The Ombudsman</p>

<p align="justify"><b><i>(v) Exchange of views with the applicant States</i></b></p>

<p align="justify">An appropriate exchange of views should be held by the Body or by the Chairperson with the applicant States.</p>

<p align="justify"><b><i>(vi) Other bodies, social groups or experts to be invited to give their views</i></b></p>

<p align="justify">Other bodies, social groups and experts may be invited by the Body to give their views.</p>

<p align="justify"><b><i>(vii) Secretariat</i></b></p>

<p align="justify">The General Secretariat of the Council shall provide the Body with secretariat services. To ensure proper coordination, close contacts will be established with the General Secretariat of the European Parliament, with the Commission and, to the extent necessary, with the secretariats of the national Parliaments.</p>

<p align="justify"><b>B. WORKING METHODS OF THE BODY</b></p>

<p align="justify"><b><i>(i) Preparation</i></b></p>

<p align="justify">The Chairperson of the Body shall, in close concertation with the Vice-Chairpersons, propose a work plan for the Body and perform other appropriate preparatory work.</p>

<p align="justify"><b><i>(ii) Transparency of the proceedings</i></b></p>

<p align="justify">In principle, hearings held by the Body and documents submitted at such hearings should be public.</p>

<p align="justify"><b><i>(iii) Working groups</i></b></p>

<p align="justify">The Body may establish ad hoc working groups, which shall be open to all members of the Body.</p>

<p align="justify"><b><i>(iv) Drafting</i></b></p>

<p align="justify">On the basis of the work plan agreed by the Body, a Drafting Committee composed of the Chairperson, the Vice-Chairpersons and the representative of the Commission and assisted by the General Secretariat of the Council, shall elaborate a preliminary Draft Charter, taking account of drafting proposals submitted by any member of the Body.</p>

<p align="justify">Each of the three Vice-Chairpersons shall regularly consult with the respective component part of the Body from which he or she emanates.</p>

<p align="justify"><b><i>(v) Elaboration of the Draft Charter by the Body</i></b></p>

<p align="justify">When the Chairperson, in close concertation with the Vice-Chairpersons, deems that the text of the draft Charter elaborated by the Body can eventually be subscribed to by all the parties, it shall be forwarded to the European Council through the normal preparatory procedure.</p>

<p align="justify"><b>C. PRACTICAL ARRANGEMENTS</b></p>

<p align="justify">The Body shall hold its meetings in Brussels, alternately in the Council and the European Parliament buildings.</p>

<p align="justify">A complete language regime shall be applicable for sessions of the Body.</p>

<p align="justify"><i>Reporting committee</i>: Committee on Legal Affairs and Human Rights</p>

<p align="justify"><i>Budgetary implications for the Assembly</i>: none</p>

<p align="justify"><i>Reference to committee</i>: <a href="/ASP/Doc/RefRedirectEN.asp?Doc=Doc 8542">Doc 8542</a>, Reference No. 2440 of 24 September 1999</p>

<p align="justify"><i>Draft resolution </i>adopted unanimously with one abstention, and <i>draft recommendation and draft order </i>adopted unanimously by the committee on 10 January 2000 </p>

<p align="justify"><i>Members of the committee</i>: MM <i>Jansson</i> (<i>Chairperson</i>), <i>Bindig</i>, Frunda, Moeller (<i>Vice-Chairpersons</i>), Mrs <i>Aguiar</i>, MM <i>Akçali</i>, Arzilli, Attard Montalto, Bal, <i>Bartumeu Cassany,</i> <i>Brand</i>, Bulic, <i>Clerfayt</i>, <i>Columberg</i>, Contestabile, Demetriou, Derycke, Enright, Mrs <i>Err</i>, Mrs Frimansdóttir, Mr Fydorov (alternate: Mr <i>Glotov</i>), Ms <i>Hlavac</i>, Mr Holovaty, Mrs Imbrasiene (alternate: Mr <i>Kuzmickas</i>), MM <i>Jaskiernia</i>, <i>Jurgens</i>, Kelam, Kelemen, Lord Kirkhill, MM <i>König</i>, <i>Kresak</i>, Mrs Krzyzanowska, Mr Le Guen, Ms Libane, MM Lintner, Loutfi, <i>Magnusson</i>, Mancina, Mrs Markovic-Dimova, MM Martins, <i>Marty</i>, <i>McNamara</i>, <i>Mozetic</i>, Mrs <i>Näslund</i>, MM <i>Nastase</i>, <i>Pavlov</i>, Pollo, Polydoras, Mrs Pourtaud, MM Robles Fraga, Rodeghiero, Mrs Roth, Mrs Roudy, MM Saakashvili, <i>Shishlov</i>, Simonsen, Solé Tura, Solonari, Svoboda, Symonenko, Tabajdi, Verhagen, Verivakis, <i>Vishnyakov</i>, <i>Vyvadil</i>, Mrs <i>Wohlwend</i>.</p>

<p align="justify"><i>N.B. The names of those members who took part in the vote are printed in italics.</i></p>

<p align="justify"><i>Secretaries to the committee</i>: Mr Plate, Ms Coin and Ms Kleinsorge </p>
<hr align="left" size="1" width="200" noshade>

<p align="justify"><sup><a name="P155_17619" href="#P155_17620">1</a> </sup> For its membership see Appendix I.</p><!-- TRANSIT - INFOAFTER -->
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