The European Constitution for Human Rights and Gender Equality

EUROPEAN PARLIAMENT Anna Karamanou MEMBER OF THE EUROPEAN PARLIAMENT President of the Committee on Women’s Rights and Gender Equality

INTRODUCTION

The European Constitution represents another significant milestone in the successful path towards European integration and the creation of a genuine European political space. However, to be precise, it is not a constitution but a Constitutional Treaty, since it does not concern a statutory charter of a unified state. The draft of this Treaty was approved by consensus by the Assembly on June 13 (the first and second parts) and submitted to the European Council in Thessaloniki on June 20, while on July 10, 2003, the third part was approved. We are now awaiting its approval by the Intergovernmental Conference and the European Council in Rome, on December 12 and 13, which will make the final decisions.

Without a doubt, the project of European integration is a great success, unprecedented in history, as for more than half a century we have enjoyed a period of peace, cooperation, and prosperity. Along with North America and Japan, the Union is one of the three most developed regions on the planet. Initially, it was an economic and technical cooperation. In 1979, with the first elections for the European Parliament, the democratic character of the Community and the protection of fundamental rights were strengthened. In recent years, the building of a political union and the overcoming of the division of Europe has begun, with the accession of ten new member states on May 1, 2004.

FROM THE SINGLE MARKET TO THE EUROPEAN CONSTITUTION

Over the last fifteen years, a series of revisions to the European treaties have been made: The Single European Act of 1986, which allowed for the creation of the single market and the freedom of movement of persons, goods, and capital. The Maastricht Treaty of 1992, which represented progress in a number of areas, such as the Economic and Monetary Union (EMU), foreign policy, and cooperation in the fields of justice and home affairs. This was followed by the Amsterdam Treaty of 1997 and the Nice Treaty of 2000, which were rather marked by a lack of political will to make decisions that would ensure the smooth functioning of an enlarged Union. One year after Nice, the Laeken European Council issued a Declaration on the Future of the European Union and decided to convene an Assembly of 105 members, chaired by Mr. Giscard d’Estaing. The decision foresaw the involvement of all stakeholders in the dialogue about the future of Europe: governments, national parliaments, the European Parliament, and the European Commission, as well as thirteen observers from the Committee of the Regions, the European Economic and Social Committee, social partners, and the European Ombudsman.

The Assembly was indeed not a simple forum of representatives from member states, but a representative body that participated in an expanded open dialogue in order to provide answers to crucial questions concerning the future development and effective functioning of the enlarged Union. The dialogue that followed, over fifteen months, both in the working groups that were established and in the plenary sessions, led to the unanimous submission of a constitutional draft, which replaces all previous treaties and creates the institutional framework that can provide impetus to the ambitious project of European integration.

The draft constitution consists of four main parts. The first concerns the fundamental provisions that govern the functioning of the EU, its goals, competencies, decision-making processes, and its institutions. The second addresses the incorporation of the Charter of Fundamental Rights into the draft constitution. The third part deals with the Union’s policies and actions, while the fourth includes the final provisions that define the procedures for the approval and revision of the constitution.

The Draft Constitution represents an important step forward, considering that the idea of a constitution was a taboo subject just five years ago. The draft is a text from which there can be no significant deviations, as it is the product of a political agreement and legitimate compromises, in order to find a middle ground. The draft, in general terms, represents an intermediate stage towards European integration; it does not create a federal structure but provides the possibility of evolution in that direction. However, recent events in the framework of the Intergovernmental Conference, which began its work in Rome on October 4, 2003, show that the Draft Treaty, for some, does not serve as the basis for discussions but merely as the starting point for a new round of negotiations. The issues became apparent at the informal European Council in Brussels on October 16 and 17, as well as at the EU foreign ministers’ conference last Friday and Saturday in Naples. Issues for which consensus had been reached within the Assembly are now being reopened for discussion among the governments, without the participation of the EU institutions and national parliaments. The divergence of views is particularly evident in the matter of the composition of the European Commission and decision-making.

VALUES AND GOALS OF THE EU

According to the Draft Constitution, the Union is based on values such as human dignity, freedom, democracy, equality, the rule of law, and respect for human rights. These values are shared by the member states, in a society of pluralism, tolerance, solidarity, justice, and the prohibition of discrimination. The fact that human rights and equality are included as values of the Union is very important because it creates a strong legal foundation for their effective protection. However, our request to include gender equality among the values of the Union was not satisfied, despite fifty years of European gender equality policy.

The goals of the Union include the promotion of the values of peace and the prosperity of the people. The EU provides its citizens with an area of freedom, security, and justice, without internal borders, and a single market with free and fair competition, balanced and sustainable economic growth, a high level of employment, and social progress. It is very important that full employment is included among the goals of the EU. The Union promotes scientific and technological progress, combats social exclusion and discrimination, and promotes justice and social protection, gender equality, solidarity between generations, and the protection of children’s rights.

The international activity of the Union focuses on promoting peace, security, sustainable development, solidarity, mutual respect, fair and free trade, the eradication of poverty, and the protection of human rights. The constitution prohibits any form of discrimination based on nationality.

FUNDAMENTAL HUMAN RIGHTS

The central position of human rights in the Draft Constitution is demonstrated by the fact that they are included in Article 2, where the values on which the Union is organized and operates are outlined. There is also an explicit reference in Article 3, which sets out the Union’s action goals and has a horizontal character. In the same provision, the fight against all forms of discrimination and the promotion of gender equality are set as key objectives. Another provision related to human rights is found in Article 7, where not only are the rights mentioned in Part B of the Draft recognized, but it also seeks the Union’s accession to the European Convention for the Protection of Human Rights.

Until now, the protection of human rights in the Union was based on the case law of the European Court of Justice, which elevated the protection of human rights to one of the general principles of the Union’s action. For the first time, explicit reference to human rights was made in the Amsterdam Treaty. Along with fundamental rights, the basic freedoms that have characterized the European structure since its inception are also recognized and protected, such as the free movement of persons, goods, services, and capital. These freedoms, along with other rights, such as the right to vote and stand for election, are incorporated within the framework of rights and obligations arising from the establishment of Union citizenship, as defined in Article 8 of the draft constitution.

The incorporation of the Charter of Fundamental Rights of the Union (approved on December 8, 2001) into the main text of the Draft Treaty fulfilled a longstanding request of ours to strengthen the protection of fundamental rights in the Union through their constitutional safeguard. The Union recognizes the rights, freedoms, and principles included in the Charter, which forms the second part of the Constitution. The provisions of the Charter not only acquire legal force, moving beyond the level of a simple political declaration, but also have superior power over national laws. The Charter is a unified and coherent list of fundamental rights. Regarding its content, the Assembly made no amendments, as it is the result of a political agreement at the highest level (European Council of Nice – December 2000).

Fundamental rights, as enshrined in the European Convention for the Protection of Human Rights and Fundamental Freedoms and as derived from the common constitutional traditions of the member states, form part of the general principles of Union law. The content of the Charter is broader than that of the European Convention on Human Rights and Fundamental Freedoms of 1950, which has been ratified by all member states of the Union. The ECHR is limited to individual and political rights, while the Charter also governs other areas, such as the right to good administration, the social rights of workers, the protection of personal data, and bioethics. Under the existing treaties, the EU did not have the competence to accede to the ECHR. The Draft Constitution clearly provides for this competence. However, as with the incorporation of the Charter, accession to the ECHR will not lead to any modification of the EU’s competences, as defined in the Constitution.

The democratic character of the EU is further emphasized by the application of the principles of equality, direct or indirect representation of citizens in the Union’s institutions, and the recognition of the role of European political parties. For example, it is provided that a movement of one million citizens from at least eight countries can initiate legislative action on a particular issue. Union citizens have all the rights arising from European citizenship. They also enjoy the right to diplomatic and consular protection, the right to petition the European Parliament, as well as to appeal to the Ombudsman and to correspond with EU institutions in any of the Union’s languages. In a special section of the Draft Constitution, other rights related to the democratic life of the Union are listed, such as the right to participate in democratic life and the right to access documents.

THE COMPETENCIES OF THE UNION

The Draft Constitution aims to ensure smooth relations between the EU and member states. For this reason, it was considered necessary to explicitly mention the competencies that the member states have conferred on the Union. Any competency that is not conferred on the Union within the framework of the Constitution remains with the member states. The European Constitution and the legal rules established by the Union within the framework of the competencies conferred upon it take precedence over the law of the member states. Three categories of competencies are foreseen:

1/ Exclusive competencies

• q Monetary policy
• q Common commercial policy
• q Customs union
• q διατήρηση των βιολογικών πόρων της θάλασσας, στο πλαίσιο της κοινής αλιευτικής πολιτικής

2/ Areas of shared competence

• § Internal market
• § Area of freedom, security, and justice
• § Agriculture and fisheries, except for the conservation of marine biological resources
• § Transport and trans-European networks
• § energy
• § Social policy
• § Economic, social, and territorial cohesion
• § Environment
• § Consumer protection
• § Public health

3/ Areas of supporting, coordinating, or complementary competence

Action

• o Industry
• o Protection and improvement of human health
• o Education, vocational training, youth, and sport
• o Culture
• o Civil protection

In certain other areas, such as economic policies and employment policies, member states consider that the Union can coordinate their national policies (flexibility clause). All the above activities are carried out in light of the principles of legality and subsidiarity.

THE INSTITUTIONAL FRAMEWORK OF THE UNION

It includes:

• · European Parliament
• · European Commission
• · European Council
• · Council of Ministers
• · Court of Justice

Regarding the institutional framework of the Union, the role of the European Parliament is strengthened with the aim of reducing the democratic deficit. The European Parliament becomes the main legislative body alongside the Council, within the framework of the co-decision process, with the ability to exercise oversight over the European Commission and elect its president. The number of members of the European Parliament is set at 736. The European Commission retains the right of legislative initiative and is responsible for ensuring the implementation of Community legislation, executing the budget, and ensuring the political representation of the EU at the international level on foreign policy and security matters. The composition and structure of the Commission is a particularly critical issue. Greece supports the application of the principle “one commissioner per member state.”

The establishment of the Union’s Foreign Minister has garnered broad consensus, including within the framework of the Intergovernmental Conference. The European Council is the Union’s highest political body, setting the action priorities of the Union, but without legislative powers. This ensures institutional balance, as the current system of rotating presidencies is replaced by the election of a President with a term of 2.5 years, renewable once. The European Council is composed of the heads of government or state and meets quarterly. The Council of Ministers is a key body and, together with the European Parliament, primarily carries out legislative and budgetary duties. The Court ensures compliance with the law in the interpretation and application of the Constitution. It includes the European Court of Justice, the General Court, and specialized courts.

ORGANISMS and ADVISORY BODIES

• · European Bank
• · Court of Auditors
• · Committee of the Regions
• · Economic and Social Committee

Regarding the Common European Foreign and Security Policy, as well as the Defence Policy, the Draft Constitution takes some positive steps. Member states are required to make available to the Union military and non-military capabilities for the fulfillment of missions related to conflict prevention, peacekeeping, and enhancing international security. It is also significant that for the first time, a solidarity clause between member states is explicitly mentioned in an institutional document of the Union, which entails mutual assistance, using any appropriate political or military means in the event of an attack.

In internal affairs, the establishment of a Common Area of Freedom, Security, and Justice is based on the approximation of national legislations, judicial and police cooperation, and mutual recognition of their actions, as well as the evaluation of relevant activities, with the participation of national parliaments. Finally, enhanced cooperation, involving at least one third of the member states and following approval by the Council of Ministers, will also prove useful. The intention for such cooperation is already evident in the field of Defence, with Greece’s participation.

GENDER EQUALITY IN THE DRAFT CONSTITUTION

Undoubtedly, the provisions of the draft constitution strengthen the rights they refer to, legally, politically, and symbolically. The Committee on Women’s Rights and Equal Opportunities of the European Parliament, along with non-governmental organizations, fought hard for the constitutional safeguarding of women’s rights throughout the work of the Assembly. From a gender perspective, we can make the following assessment:

1/ Equality is included among the values of the Union, as stated in Article 2 of the first part, but it would be beneficial to have a specific explicit reference to gender equality, as almost all national constitutions include provisions for gender equality. The Swedish government requested what had been our demand from the beginning, that the words “particularly gender equality between men and women” be added after equality. This does not bring about a significant change in the meaning of the text, but it would be an important addition for women.

2) The promotion of equality remains one of the objectives of the Union, in the unified text of the Treaties.

3) The obligation imposed by the European Constitution regarding the respect for fundamental rights is particularly important for women, who have a clear interest in the recognition of these rights.

Articles 21 and 23 of the second part repeat the provisions on non-discrimination and gender equality contained in the corresponding articles of the Charter, including a new formulation for the latter, which allows for positive measures, stating that “the principle of equality should not prevent the maintenance or adoption of measures of special action in favor of the underrepresented gender.” This formulation uses so-called positive measures more as an exception to the principle of non-discrimination and less as “a necessary measure to achieve substantive gender equality” (former Article 141 of the Treaty). A better formulation, therefore, could be: “positive measures in favor of women will be used for the equality of men and women” (Paragraph 4, Article III 108).

4) In the Third Part (functional) of the Treaty regarding the “policies and functioning of the Union,” the following are included:

• Ø The goal of integrating the principle of gender equality (gender mainstreaming) into all policies, as described in Article 2.

• Ø The principle of non-discrimination in Article 8 would be more effective (including a possible reference to the issue of violence against women) if the proposal by Vice-President Mr. Amato to replace unanimity with a qualified majority were accepted.

• Ø In Section III, Article 108 is a faithful reproduction of Article 141 of the Treaty, which concerns equal pay and equal treatment in the workplace.

What is missing from the text regarding women?

• · An article addressing equal representation of women and men in the institutions. (It is a common observation that the appointment of women to decision-making centers is only achieved when there is a specific obligation).
• · A provision that defines violence against women as a violation of women’s rights.
• · Greater coordination of economic policies, if we are to succeed in the fight against inequalities.

Finally,

The Intergovernmental Conference should uphold the promise made by the President of the Assembly that the final text will be drafted in “gender-neutral” language, in all official languages of the EU.