What is financial advice that no one follows

14.12.2007   

DE

Official Journal of the European Union

C 303/17


EXPLANATIONS (1) ON THE CHARTER OF FUNDAMENTAL RIGHTS

(2007 / C 303/02)

The following explanations were originally drafted under the responsibility of the Praesidium of the Convention which drafted the Charter of Fundamental Rights of the European Union. They have been updated under the responsibility of the Praesidium of the European Convention due to the adjustments made by this Convention to the text of the Charter (in particular Articles 51 and 52) and the further development of Union law. As such, these explanations do not have any legal status, but they are a useful aid to interpretation, which is used to clarify the provisions of the Charter.

TITLE I - DIGNITY OF HUMANS

Explanation on Article 1 - Human dignity

Human dignity is not just a fundamental right in itself, but forms the actual foundation of fundamental rights. The Universal Declaration of Human Rights of 1948 anchors human dignity in its preamble: "... since the recognition of the dignity inherent in all members of the human family and their equal and inalienable rights forms the basis of freedom, justice and peace in the world." its judgment of 9 October 2001 in Case C-377/98, Netherlands v European Parliament and Council, 2001 ECR I-7079, para. 70-77, the Court confirmed that the fundamental right to human dignity is part of Union law.

It follows in particular that none of the rights set out in this charter may be used to violate the dignity of another person and that human dignity is part of the essence of the rights set out in this charter. It must therefore not be touched, even if a right is restricted.

Explanation on Article 2 - Right to Life

1.

Paragraph 1 of this article is based on Article 2 paragraph 1 sentence 1 of the European Convention on Human Rights (ECHR), which reads as follows:

"1. The right of every person to life is protected by law ... ”.

2.

Sentence 2 of the aforementioned provision, which dealt with the death penalty, has become obsolete with the entry into force of Protocol No. 6 to the ECHR, Article 1 of which reads as follows:

“The death penalty has been abolished. Nobody may be sentenced or executed to this punishment. "

Article 2 (2) of the Charter is based on this provision.

3.

The provisions of Article 2 of the Charter correspond to the provisions of the aforementioned Articles of the ECHR and the Additional Protocol. According to Article 52 paragraph 3 of the Charter, they have the same meaning and scope. The "negative definitions" contained in the ECHR must also be viewed as part of the Charter:

a)

a) Article 2 (2) ECHR:

“Killing will not be considered a violation of this article if it is caused by the use of force strictly necessary to

a)

defending someone against unlawful violence;

b)

to lawfully arrest someone or prevent someone who is lawfully deprived of their liberty from escaping;

c)

lawfully put down a riot or insurrection ”.

b)

b) Article 2 of Protocol No. 6 to the ECHR:

“A state can provide in its law the death penalty for acts committed in time of war or when there is an imminent threat of war; this penalty may only be applied in cases provided for by the law and in accordance with its provisions ... ".

Explanation on Article 3 - Right to Integrity

1.

In its judgment of 9 October 2001 in Case C-377/98, Netherlands v European Parliament and Council, 2001 ECR I-7079, para. 70, 78, 79 and 80, the Court of Justice confirmed that the fundamental right to integrity is part of EU law and, in the field of medicine and biology, includes the free consent of the donor and the recipient after prior information.

2.

The principles of Article 3 of the Charter are already contained in the Convention on Human Rights and Biomedicine (STE 164 and Additional Protocol STE 168) adopted by the Council of Europe. The Charter does not intend to deviate from these provisions and therefore only prohibits reproductive cloning. The other forms of cloning are neither permitted nor prohibited by the Charter. It does not prevent the legislature from banning other forms of cloning as well.

3.

By referring to eugenic practices, especially those aimed at the selection of people, the possibility is to be recorded that selection programs are organized and carried out, for example sterilization campaigns, forced pregnancies, the obligation to choose a spouse in the same ethnic group , etc include; such acts are considered an international crime in the Statute of the International Criminal Court, adopted in Rome on July 17, 1998 (see Article 7 (1) (g)).

Explanation on Article 4 - Prohibition of torture and inhuman or degrading punishment or treatment

The right under Article 4 corresponds to the right guaranteed by Article 3 of the ECHR: “No one may be subjected to torture or inhuman or degrading punishment or treatment.” According to Article 52 (3) of the Charter, Article 4 has the same meaning and scope like Article 3 ECHR.

Explanation on Article 5 - Prohibition of Slavery and Forced Labor

1.

The right under Article 5 Paragraphs 1 and 2 corresponds to the identical Article 4 Paragraphs 1 and 2 of the ECHR. According to Article 52 (3) of the Charter, this right has the same meaning and scope as Article 4 of the ECHR. It follows:

There can be no legitimate restriction of the right under paragraph 1.

In paragraph 2, with regard to the terms "forced or compulsory labor", the "negative" definitions according to Article 4 paragraph 3 ECHR must be taken into account:

“Not considered to be forced or compulsory labor for the purposes of this article

a)

work normally required of a person who has been deprived of liberty or conditionally dismissed under the conditions of Article 5;

b)

a service of a military nature or a service that takes the place of the service to be performed in the context of conscription in countries where conscientious objection is recognized;

c)

a service required when emergencies or disasters threaten the life or well-being of the community;

d)

a work or service that is part of the usual civic duties. "

2.

Paragraph 3 results directly from human dignity and takes into account recent developments in the field of organized crime such as smuggling and organized sexual exploitation. The Europol Convention contains the following definition in the annex, which relates to trafficking in human beings for the purpose of sexual exploitation: "Trafficking in human beings: actual and unlawful submission of a person to the will of other persons by means of violence, threats or deception or by exploiting a relationship of dependency, in particular with the following aim: Exploitation of prostitution, exploitation of minors, sexual violence against minors or trafficking in connection with child abandonment. ”Article 27 of Chapter VI of the Schengen Convention, which has been incorporated into the acquis of the United Kingdom and Ireland, contains Article 27 Paragraph 1 has the following provision aimed at smuggling activities: “The contracting parties undertake to provide appropriate sanctions against any person who helps a third party alien for gainful purposes or tries to help in the territory of one of the contracting parties n to enter or stay in violation of their legal provisions on the entry and residence of third-party nationals. ”On 19 July 2002 the Council adopted a framework decision on combating trafficking in human beings (OJ. L 203 of 1.8.2002, p. 1); Article 1 of this Framework Decision specifies the acts related to trafficking in human beings for the purpose of labor exploitation or sexual exploitation, which the Member States must criminalize on the basis of the aforementioned Framework Decision.

TITLE II - FREEDOMS

Explanation on Article 6 - Right to liberty and security

The rights under Article 6 correspond to the rights guaranteed by Article 5 ECHR, to which they are equivalent in meaning and scope under Article 52 Paragraph 3 of the Charter. The restrictions that can legitimately be made on these rights must therefore not go beyond the restrictions permitted under Article 5 of the ECHR, which reads as follows:

"1. Everyone has the right to freedom and security. The liberty may only be withdrawn in the following cases and only in the manner prescribed by law:

a)

lawful deprivation of liberty after conviction by a competent court;

b)

lawful arrest or deprivation of liberty for failure to comply with a lawful court order or to enforce compliance with a legal obligation;

c)

Lawful arrest or deprivation of liberty for presentation to the competent judicial authority if there is reasonable suspicion that the person concerned has committed a crime or if there is reasonable cause to believe that it is necessary to assist them in the commission of a crime or on the flight to To prevent such an undertaking;

d)

lawful deprivation of liberty in the case of minors for the purpose of supervised upbringing or for presentation to the competent authority;

e)

lawful detention to prevent the spread of infectious diseases, as well as the mentally ill, alcohol or drug addicts, and vagabonds;

f)

lawful arrest or deprivation of liberty to prevent unauthorized entry as well as persons against whom expulsion or extradition proceedings are pending.

2. Every person arrested must be informed immediately in a language they understand of the reasons for their arrest and the charges against them.

3. Any person who is arrested or deprived of liberty in accordance with paragraph 1 letter c must be brought before a judge or another person legally authorized to perform judicial functions; she is entitled to a judgment within a reasonable period of time or to dismissal during the proceedings. Dismissal can be made dependent on the provision of security for appearing in court.

4. Any person arrested or deprived of their liberty has the right to request that a court rule on the legality of the deprivation of liberty within a short period of time and order their release if the deprivation of liberty is illegal.

5. Any person who has been arrested or detained in violation of this article shall be entitled to compensation. "

The rights under Article 6 must be respected in particular when the European Parliament and the Council legislative acts in the field of judicial cooperation in criminal matters on the basis of Articles 82, 83 and 85 of the Treaty on the Functioning of the European Union, in particular laying down common minimum rules on the constituent elements of criminal acts and the penalties as well as on certain aspects of procedural law.

Explanation on Article 7 - Respect for private and family life

The rights under Article 7 correspond to the rights guaranteed by Article 8 ECHR. In order to take account of technical developments, the term “correspondence” has been replaced by “communication”.

According to Article 52 (3), these rights have the same meaning and scope as the rights under the corresponding article of the ECHR. Your possible legitimate limitations are therefore those that said Article 8 allows:

"1. Everyone has the right to respect for their private and family life, their home and their correspondence.

2. An authority may only intervene in the exercise of this right insofar as the interference is provided for by law and is necessary in a democratic society for national or public security, for the economic well-being of the country, to maintain order, to prevent criminal offenses Protecting health or morals or protecting the rights and freedoms of others. "

Explanation on Article 8 - Protection of personal data

This article was based on Article 286 of the Treaty establishing the European Community and on Directive 95/46 / EC of the European Parliament and of the Council on the protection of natural persons with regard to the processing of personal data and on the free movement of such data (OJ L 281, 23.11. 1995, p. 31) as well as Article 8 of the ECHR and the Council of Europe Convention of January 28, 1981 for the protection of humans with regard to automatic processing of personal data, which has been ratified by all member states. Article 286 of the EC Treaty is now replaced by Article 16 of the Treaty on the Functioning of the European Union and Article 39 of the Treaty on European Union. Reference is also made to Regulation (EC) No. 45/2001 of the European Parliament and of the Council on the protection of natural persons with regard to the processing of personal data by the institutions and bodies of the Community and on the free movement of data (OJ L 8 of 12.1.2001, P. 1). The aforementioned directive and regulation contain conditions and restrictions for the exercise of the right to the protection of personal data.

Explanation on Article 9 - Right to marry and have a family

This article is based on Article 12 of the ECHR, which reads as follows: "Men and women of marriageable age have the right to marry and have a family in accordance with national laws governing the exercise of this right." The law has been made more timely to cover cases where national law recognizes forms other than marriage to create a family. This article does not prohibit or mandate the granting of marriage status to unions of the same sex. So this right is similar to that provided for by the ECHR, but it can have wider scope if national law so provides.

Explanation on Article 10 - Freedom of thought, conscience and religion

The right guaranteed in paragraph 1 corresponds to the right guaranteed by Article 9 of the ECHR and has the same meaning and scope as this under Article 52 paragraph 3 of the Charter. In the case of restrictions, Article 9 (2) ECHR must therefore be observed, which reads as follows: “The freedom to profess one's religion or belief may only be subject to restrictions that are provided for by law and are necessary in a democratic society for public safety, for Protection of public order, health or morality or the protection of the rights and freedoms of others. "

The right guaranteed in paragraph 2 corresponds to national constitutional traditions and the development of national legislation on this point.

Explanation on Article 11 - Freedom of expression and information

1.

Article 11 corresponds to Article 10 of the ECHR, which reads as follows:

"1. Everyone has the right to freedom of expression. This right includes freedom of expression and the freedom to receive and pass on information and ideas without official interference and regardless of national borders. This article does not prevent states from requiring a license for radio, television or cinema companies.

2. The exercise of these freedoms involves duties and responsibilities; It can therefore be subject to formal regulations, conditions, restrictions or threats of punishment that are provided by law and necessary in a democratic society for national security, territorial integrity or public security, for the maintenance of order or for the prevention of criminal offenses, for the protection of health or morals, to protect the reputation or rights of others, to prevent the dissemination of confidential information, or to maintain the authority and impartiality of justice. "

According to Article 52 (3) of the Charter, this right has the same meaning and scope as the right guaranteed by the ECHR. The possible restrictions on this right must therefore not go beyond the restrictions provided for in Article 10 (2), but without prejudice to the restrictions that the Member States' ability to introduce authorization regulations under Article 10 (1) sentence 3 of the ECHR may experience through Union competition law.

2.

Paragraph 2 of this article explains the implications of paragraph 1 for freedom of the media. In particular, it relies on the case law of the Court of Justice on television, in particular in case C-288/89 (judgment of 25July 1991, Stichting Collectieve Antennevoorziening Gouda et al .; 1991 Coll. I-4007), and to the protocol on public service broadcasting in the member states, which is annexed to the EC Treaty and now to the Treaties, as well as to Council Directive 89/552 / EEC (see in particular recital 17) .

Explanation on Article 12 - Freedom of assembly and association

1.

Paragraph 1 of this article corresponds to Article 11 of the ECHR, which reads as follows:

"1. Everyone has the right to freely and peacefully assemble with others and to associate freely with others; this includes the right to form and join unions to protect one's interests.

2. The exercise of these rights may only be subject to restrictions that are provided by law and necessary in a democratic society for national or public security, for the maintenance of order or for the prevention of criminal offenses, for the protection of health or morality or for the protection of the Rights and freedoms of others. This article does not prevent lawful restrictions on the exercise of these rights by members of the armed forces, the police or the state administration. "

The provisions of paragraph 1 of this Article 12 have the same meaning as the provisions of the ECHR; However, they have a wider scope because they can be applied at all levels, including the European level. According to Article 52 (3) of the Charter, the restrictions on this right must not go beyond those which are considered to be possible legal restrictions within the meaning of Article 11 (2) ECHR.

2.

This right is also based on Article 11 of the Community Charter of Fundamental Social Rights of Workers.

3.

Paragraph 2 of this article corresponds to Article 10 (4) of the Treaty on European Union.

Explanation on Article 13 - Freedom of Art and Science

This right derives primarily from freedom of thought and freedom of expression. Its exercise is in compliance with Article 1 and it can be subject to the restrictions permitted by Article 10 of the ECHR.

Explanation on Article 14 - Right to Education

1.

This article is based on the common constitutional traditions of the member states as well as on Article 2 of the Additional Protocol to the ECHR, which has the following wording:

“Nobody should be denied the right to education. When performing the tasks it has taken on in the field of upbringing and teaching, the state must respect the parents' right to ensure upbringing and teaching in accordance with their own religious and ideological convictions. "

It was considered useful to extend this article to access to vocational education and training (see paragraph 15 of the Community Charter of Fundamental Social Rights of Workers and Article 10 of the European Social Charter) and to insert the principle of free compulsory education. In the version presented here, this principle simply states that, with regard to compulsory education, every child must have the opportunity to attend a school that provides free education. It does not mean that all - and especially private - school institutions that offer the relevant instruction or vocational training and further education must do so free of charge. Nor does it prohibit certain special forms of instruction from being remunerated, provided the state takes measures to grant financial compensation. To the extent that the Charter applies to the Union, this means that the Union must respect the free compulsory education in the context of its educational policy measures, but of course it does not give rise to any new responsibilities. As regards the right of parents, this should be interpreted in conjunction with Article 24.

2.

The freedom to set up public or private educational establishments is guaranteed as one of the aspects of entrepreneurship, but its exercise is restricted by respect for democratic principles and according to the details laid down in national law.

Explanation on Article 15 - Freedom to choose a profession and right to work

The freedom of occupation set out in Article 15 (1) is recognized in the case law of the Court of Justice (see, inter alia, the judgments of 14 May 1974, Case 4/73, Nold, 1974 ECR, 491, paras , Case 44/79, Hauer, ECR 1979, 3727; of October 8, 1986, Case 234/85, Keller, ECR 1986, 2897, paragraph 8).

This paragraph is also based on Article 1 (2) of the European Social Charter signed on October 18, 1961 and ratified by all Member States, and on number 4 of the Community Charter of Fundamental Social Rights of Workers of December 9, 1989. The term “working conditions” has to be understood within the meaning of Article 156 of the Treaty on the Functioning of the European Union.

Paragraph 2 includes the three freedoms guaranteed by Articles 26 and 45, 49 and 56 of the Treaty on the Functioning of the European Union, i. H. the free movement of workers, the freedom of establishment and the freedom to provide services.

Paragraph 3 is based on Article 153 (1) (g) of the Treaty on the Functioning of the European Union and Article 19 (4) of the European Social Charter signed on October 18, 1961 and ratified by all Member States. Thus, Article 52 (2) of the Charter applies. The issue of recruiting seafarers who are nationals of third countries on the crew of ships flying the flag of a Member State of the Union is governed by Union law and national laws and practices.

Explanation on Article 16 - Freedom of Entrepreneurship

This article is based on the case law of the Court of Justice, which gives freedom to pursue an economic activity or business activity (see the judgments of 14 May 1974, Case 4/73, Nold, 1974 ECR, 491, paragraph 14; and of 27 September 1979, Case 230/78, SpA Eridania and others, 1979 ECR 2749, paragraphs 20 and 31) and freedom of contract (see, inter alia, the judgments “Sukkerfabriken Nykoebing”, Case 151/78, 1979 ECR, 1 , Paragraph 19; and of 5 October 1999, case C-240/97, Spain v Commission, 1999 ECR I-6571, paragraph 99), and Article 119 (1) and (3) of the Treaty on the Working method of the European Union in which free competition is recognized. This right will of course be exercised in compliance with Union and national legislation. It can be restricted under Article 52 (1) of the Charter.

Explanation on Article 17 - Right of Ownership

This article corresponds to Article 1 of the Additional Protocol to the ECHR:

“Every natural or legal person has the right to respect for their property. No one may be deprived of his property unless the public interest so requires and only under the conditions provided for by law and by the general principles of international law.

However, paragraph 1 does not affect the right of the state to apply those laws which it deems necessary to regulate the use of property in accordance with the general interest or to secure the payment of taxes or other dues or fines. "

It is a fundamental right common to all national constitutions. It has been confirmed several times by the case law of the Court of Justice - for the first time in the Hauer judgment (December 13, 1979, ECR 1979, 3727). The wording has been made more contemporary, but according to Article 52 (3) this right has the same meaning and scope as the right guaranteed in the ECHR, whereby the restrictions provided for in the ECHR must not be exceeded.

While the protection of intellectual property is an aspect of property law, it is explicitly mentioned in paragraph 2 because of its growing importance and because of secondary Community law. In addition to literary and artistic property, intellectual property includes patent and trademark law as well as related property rights. The guarantees provided in paragraph 1 apply mutatis mutandis to intellectual property.

Explanation on Article 18 - Right of Asylum

The wording of the article was based on Article 63 of the EC Treaty, which has now been replaced by Article 78 of the Treaty on the Functioning of the European Union and which obliges the Union to comply with the Geneva Convention on Refugees. Please refer to the United Kingdom and Ireland and Denmark Protocols annexed to the Treaties to determine the extent to which these Member States apply Union law in this regard and to what extent this Article applies to them. This article takes into account the asylum protocol annexed to the Treaties.

Explanation on Article 19 - Protection in the event of deportation, deportation and extradition

With regard to collective expulsions, paragraph 1 of this article has the same meaning and scope as Article 4 of Additional Protocol No. 4 to the ECHR. This is to ensure that each decision is examined separately and that it cannot be decided to expel all people who are citizens of a particular state with a single measure (see also Article 13 of the International Covenant on Civil and Political Rights).

Paragraph 2 takes over the relevant case law of the European Court of Human Rights on Article 3 ECHR (see Ahmed v Austria, judgment of December 17, 1996, ECtHR 1996 Coll. VI-2206 and Soering, judgment of July 7, 1989).

TITLE III - EQUALITY

Explanation on Article 20 - Equality before the law

This article corresponds to the general legal principle which is anchored in all European constitutions and which the Court of Justice has regarded as a fundamental principle of Community law (judgment of 13 November 1984, Case 283/83, Racke, ECR 1984, 3791, judgment of 17 April 1997, Case C-15/95, EARL, 1997 ECR I-1961 and judgment of April 13, 2000, Case C-292/97, Karlsson, 2000 ECR, 2737).

Explanation on Article 21 - Non-Discrimination

Paragraph 1 is based on Article 13 of the EC Treaty, which has now been replaced by Article 19 of the Treaty on the Functioning of the European Union, and Article 14 of the ECHR, as well as Article 11 of the Convention on Human Rights and Biomedicine in relation to genetic heritage. To the extent that it coincides with Article 14 of the ECHR, it applies under this Article.

Paragraph 1 and Article 19 of the Treaty on the Functioning of the European Union, which has a different scope and pursues a different purpose, do not contradict and are not incompatible with one another: Article 19 gives the Union competence, legislative acts - among other things also with regard to the harmonization of the laws of the Member States - to combat certain forms of discrimination which are exhaustively listed in this article. This legislation may include action by the authorities of the Member States (as well as relations between individuals) in any area within the limits of the Union's competences. Paragraph 1 of Article 21, on the other hand, does not create any competence to enact anti-discrimination laws in these areas of action by Member States or private individuals, nor does it lay down a comprehensive prohibition of discrimination in these areas. Rather, it deals with discrimination on the part of the institutions and bodies of the Union in the context of the exercise of the competences assigned to them under the Treaties and on the part of the Member States in the context of the implementation of Union law. Paragraph 1 therefore does not change the scope of the powers assigned under Article 19 or the interpretation of that Article.

Paragraph 2 corresponds to Article 18 paragraph 1 of the Treaty on the Functioning of the European Union and applies accordingly.

Explanation on Article 22 - Diversity of cultures, religions and languages

This article was based on Article 6 of the Treaty on European Union and Article 151 (1) and (4) of the EC Treaty relating to culture, which has now been replaced by Article 167 (1) and (4) of the Treaty on the Functioning of the European Union. Respect for cultural and linguistic diversity is now also anchored in Article 3 (3) of the Treaty on European Union. This article is also based on Declaration No. 11 to the Final Act of the Treaty of Amsterdam on the status of the Churches and ideological communities, the content of which has now been incorporated into Article 17 of the Treaty on the Functioning of the European Union.

Explanation on Article 23 - Equality between women and men

Paragraph 1 of this article was based on Articles 2 and 3 (2) of the EC Treaty, which have now been replaced by Article 3 of the Treaty on European Union and Article 8 of the Treaty on the Functioning of the European Union and which the Union aims to promote Commit equality between men and women, as well as Article 157 (1) of the Treaty on the Functioning of the European Union. It is based on Article 20 of the revised European Social Charter of May 3, 1996 and number 16 of the Community Charter of Workers' Rights.

It is also based on Article 157 (3) of the Treaty on the Functioning of the European Union and Article 2 (4) of Council Directive 76/207 / EEC on the implementation of the principle of equal treatment for men and women with regard to access to employment and vocational training and career advancement as well as working conditions.

Paragraph 2 adopts Article 157 paragraph 4 of the Treaty on the Functioning of the European Union, according to which the principle of equal treatment, the maintenance or the introduction of specific benefits to facilitate the work of the underrepresented sex or to prevent or compensate for disadvantages in the professional world Career does not stand in the way. According to Article 52 (2), this paragraph does not amend Article 157 (4).

Explanation on Article 24 - Rights of the Child

This article is based on the New York Convention on the Rights of the Child, signed on 20 November 1989 and ratified by all Member States, in particular Articles 3, 9, 12 and 13 of that Convention.

Paragraph 3 takes into account the fact that, as part of the establishment of the area of ​​freedom, security and justice, Union legislation in areas of civil law with cross-border implications - for that in Article 81 of the Treaty on the Functioning of the European Union Responsibility is provided - in particular, it can also include the right of access, with which it is ensured that children can maintain regular personal relationships and direct contact with both parents.

Explanation on Article 25 - Elderly Rights

This article is based on Article 23 of the revised European Social Charter and Articles 24 and 25 of the Community Charter of Fundamental Social Rights of Workers. Participation in social and cultural life naturally also includes participation in political life.

Explanation on Article 26 - Integration of people with disabilities

The principle set out in this article is based on Article 15 of the European Social Charter and is also based on paragraph 26 of the Community Charter of Fundamental Social Rights of Workers.

TITLE IV - SOLIDARITY

Explanation on Article 27 - Right to information and consultation of employees in the company

This article is contained in the revised European Social Charter (Article 21) and in the Community Charter of Fundamental Social Rights of Workers (Nos. 17 and 18). It applies under the conditions provided for in Union law and in the laws of the Member States. The reference to the appropriate levels refers to the levels provided for under Union and national law, which may include the European level if Union law so provides. The Union has a significant acquis in this regard: Articles 154 and 155 of the Treaty on the Functioning of the European Union, Directives 2002/14 / EC (general framework for information and consultation of workers in the European Community), 98/59 / EG (mass layoffs), 2001/23 / EG (transfer of companies) and 94/45 / EG (European works council).

Explanation on Article 28 - Right to collective bargaining and collective action

This article is based on Article 6 of the European Social Charter and on the Community Charter of Fundamental Social Rights of Workers (paragraphs 12 to 14). The right to collective action has been recognized by the European Court of Human Rights as one of the components of the right to organize, enshrined in Article 11 of the ECHR.For the appropriate levels at which collective bargaining can take place, see the explanation in the previous article. The modalities and limits for the implementation of collective action, including strikes, are governed by national law and practice; this also applies to the question of whether these measures can be carried out in parallel in several Member States.

Explanation on Article 29 - Right of access to a placement service

This article is based on Article 1 (3) of the European Social Charter and number 13 of the Community Charter of Fundamental Social Rights of Workers.

Explanation on Article 30 - Protection in the event of unjustified dismissal

This article is based on Article 24 of the revised Social Charter. See also Directives 2001/23 / EC on the safeguarding of employees' rights when companies transfer and 80/987 / EEC on the protection of employees in the event of the insolvency of the employer, as amended by Directive 2002/74 / EC.

Explanation on Article 31 - Fair and just working conditions

1.

Paragraph 1 of this article is based on Directive 89/391 / EEC on the implementation of measures to improve the safety and health of workers at work. It is also based on Article 3 of the Social Charter and number 19 of the Community Charter of Workers' Rights and, with regard to the right to dignity at work, Article 26 of the revised Social Charter. The term “working conditions” has to be understood within the meaning of Article 156 of the Treaty on the Functioning of the European Union.

2.

Paragraph 2 is based on Directive 93/104 / EC on certain aspects of the organization of working time as well as Article 2 of the European Social Charter and number 8 of the Community Charter of Workers' Rights.

Explanation on Article 32 - Prohibition of child labor and protection of young people in the workplace

This article is based on Directive 94/33 / EC on the protection of young people at work as well as on Article 7 of the European Social Charter and on numbers 20 to 23 of the Community Charter of Fundamental Social Rights of Workers.

Explanation on Article 33 - Family and Professional Life

Article 33 (1) is based on Article 16 of the European Social Charter.

Paragraph 2 is based on Directive 92/85 / EEC on the implementation of measures to improve the safety and health protection of pregnant workers, those who have recently given birth and breastfeeding workers at work and on Directive 96/34 / EC on that of UNICE, CEEP and ETUC signed a framework agreement on parental leave. It is also based on Article 8 (maternity protection) of the European Social Charter and is based on Article 27 (Right of workers with family responsibilities to equal opportunities and treatment) of the revised Social Charter. The term “motherhood” covers the period from conception to breastfeeding of the child.

Explanation on Article 34 - Social security and social assistance

The principle set out in Article 34 (1) is based on Articles 153 and 156 of the Treaty on the Functioning of the European Union, Article 12 of the European Social Charter and number 10 of the Community Charter of Workers' Rights. It must be upheld by the Union when it acts within the scope of its competences under Articles 153 and 156 of the Treaty on the Functioning of the European Union. The purpose of the reference to social services is to record the cases in which such services have been set up to ensure certain services; but this does not mean that such services have to be set up where they do not exist. The term “motherhood” should be understood in the sense of the previous article.

Paragraph 2 is based on Article 12 (4) and Article 13 (4) of the European Social Charter as well as on number 2 of the Community Charter of Fundamental Social Rights of Workers and reflects the rules resulting from Regulations (EEC) No. 1408/71 and (EEC ) No. 1612/68.

Paragraph 3 is based on Article 13 of the European Social Charter and Articles 30 and 31 of the revised Social Charter and number 10 of the Community Charter. It must be upheld by the Union within the framework of the policies based on Article 153 of the Treaty on the Functioning of the European Union.

Explanation on Article 35 - Health Protection

The principles contained in this article are based on Article 152 of the EC Treaty, which has now been replaced by Article 168 of the Treaty on the Functioning of the European Union, and Articles 11 and 13 of the European Social Charter. Sentence 2 corresponds to Article 168 paragraph 1.

Explanation on Article 36 - Access to services of general economic interest

This article is fully in line with Article 14 of the Treaty on the Functioning of the European Union and does not create any new right. It merely lays down the principle that the Union should respect access to services of general economic interest in accordance with national provisions, insofar as these are compatible with Union law.

Explanation on Article 37 - Environment

The principles contained in this article were based on Articles 2, 6 and 174 of the EC Treaty, which have now been replaced by Article 3 (3) of the Treaty on European Union and Articles 11 and 191 of the Treaty on the Functioning of the European Union.

It is also based on the constitutional provisions of some member states.

Explanation on Article 38 - Consumer protection

The principle contained in this article is based on Article 169 of the Treaty on the Functioning of the European Union.

TITLE V - CITIZENS 'RIGHTS

Explanation on Article 39 - Right to vote and stand for election in European Parliament elections

Article 39 applies in accordance with Article 52 (2) of the Charter under the conditions set out in the Treaties. Paragraph 1 of Article 39 corresponds to the right guaranteed by Article 20 (2) of the Treaty on the Functioning of the European Union (see also the legal basis in Article 22 of the Treaty on the Functioning of the European Union for determining the details for the exercise of this Right), and paragraph 2 of this article corresponds to Article 14 paragraph 3 of the Treaty on European Union. Article 39 (2) sets out the basic principles for holding elections in a democratic system.

Explanation on Article 40 - Right to vote and stand for election in local elections

This article corresponds to the law guaranteed by Article 20 (2) of the Treaty on the Functioning of the European Union (see also the legal basis in Article 22 of the Treaty on the Functioning of the European Union for laying down the details for the exercise of this right). According to Article 52 (2) it applies under the conditions set out in these two Articles of the Treaties.

Explanation on Article 41 - Right to good administration

Article 41 is based on the existence of the Union as a legal community, the characteristic features of which have developed through case law, which, among other things, has established good administration as a general principle of law (see, inter alia, the judgment of the Court of Justice of March 31, 1992 (Case C- 255/90 P, Burban, ECR 1992, I-2253) and the judgments of the Court of First Instance of September 18, 1995 (Case T-167/94, Nölle, 1995 ECR, II-2589) and of July 9 1999 (Case T-231/97, New Europe Consulting and others, ECR 1999, II-2403). This right in the form described in the first two paragraphs results from the case law (judgments of the Court of Justice of October 15, 1987 ( Case 222/86, Heylens, ECR 1987, 4097, paragraph 15), of October 18, 1989 (Case 374/87, Orkem, ECR 1989, 3283) and of November 21, 1991 (Case C-269/90 , Technical University of Munich, Coll. 1991, I-5469) as well as the judgments of the court of first instance of December 6th 1994 (Case T-450/93, Lisrestal, ECR 1994, II-1177) and of September 18, 1995 (Case T-167/94, Nölle, ECR 1995, II-2589)) and - regarding the obligation to Justification - from Article 296 of the Treaty on the Functioning of the European Union, see also the legal basis in Article 298 of the Treaty on the Functioning of the European Union for the adoption of legal provisions in the interests of an open, efficient and independent European administration.

Paragraph 3 lists the right now guaranteed by Article 349 of the Treaty on the Functioning of the European Union. Paragraph 4 lists the right now guaranteed by Article 20 (2) (d) and Article 25 of the Treaty on the Functioning of the European Union. According to Article 52 (2), these rights apply within the conditions and limits set out in the Treaties.

The right to an effective remedy, which is an important part of this, is guaranteed by Article 47 of the Charter.

Explanation on Article 42 - Right of access to documents

The right guaranteed in this article was adopted from Article 255 of the EC Treaty, on the basis of which Regulation (EC) No. 1049/2001 was subsequently adopted. The European Convention has extended this right to documents of the institutions, bodies, offices and agencies of the Union in general, whatever their form (see Article 15 (3) of the Treaty on the Functioning of the European Union). According to Article 52 (2) of the Charter, the right of access to documents is exercised within the conditions and limits set out in Article 15 (3) of the Treaty on the Functioning of the European Union.

Explanation on Article 43 - The European Ombudsman

The right guaranteed in this article is the right guaranteed by Articles 20 and 228 of the Treaty on the Functioning of the European Union. In accordance with Article 52 (2), it applies under the conditions set out in these two Articles.

Explanation on Article 44 - Right of petition

The right guaranteed in this article is the right guaranteed by Articles 20 and 227 of the Treaty on the Functioning of the European Union. In accordance with Article 52 (2), it applies under the conditions set out in these two Articles.

Explanation on Article 45 - Freedom of movement and residence

The right guaranteed in paragraph 1 is the right guaranteed by Article 20 paragraph 2 letter a of the Treaty on the Functioning of the European Union (see also the legal basis in Article 21 and the judgment of the Court of Justice of 17 September 2002, case C -413/99, Baumbast, Coll. 2002, I-709). In accordance with Article 52 (2), it applies within the conditions and limits set out in the Treaties.

Paragraph 2 recalls the competence conferred on the Union by Articles 77, 78 and 79 of the Treaty on the Functioning of the European Union. It follows that the granting of this right depends on the exercise of this competence by the institutions.

Explanation on Article 46 - Diplomatic and Consular Protection

The right guaranteed in this article is the right guaranteed by Article 20 of the Treaty on the Functioning of the European Union (see also the legal basis in Article 23 of the Treaty). In accordance with Article 52 (2), it applies under the conditions set out in those Articles.

TITLE VI - JUDICIAL RIGHTS

Explanation on Article 47 - Right to an effective remedy and to an impartial tribunal

Paragraph 1 is based on Article 13 ECHR:

"Any person who has been violated in their rights or freedoms recognized in this Convention has the right to lodge an effective complaint with a domestic authority, even if the violation was committed by persons who were acting in an official capacity."

However, protection is broader under Union law, as it guarantees a right to an effective remedy before a court of law. The Court of Justice established this right in its judgment of 15 May 1986 as a general principle of Union law (Case 222/84, Johnston, 1986 ECR, 1651); See also the judgments of October 15, 1987 (Case 222/86, Heylens, ECR 1987, 4097) and of December 3, 1992 (Case C-97/91, Borelli, ECR 1992, I-6313). According to the Court of Justice, this general principle of Union law also applies to the Member States when they apply Union law. The adoption of this case law of the Court of Justice in the Charter did not aim to change the legal protection system provided for in the Treaties, and in particular not to change the provisions on the admissibility of direct actions before the Court of Justice of the European Union. The European Convention has dealt with the Union's system of judicial protection, including the rules on admissibility, and has made some changes to it, which have been incorporated into Articles 251 to 281 of the Treaty on the Functioning of the European Union, and in particular Article 263 (4) , approved. Article 47 applies to the institutions of the Union and to the Member States when they apply Union law, for all rights guaranteed by Union law.

Paragraph 2 corresponds to Article 6 paragraph 1 ECHR, which reads as follows:

“Everyone has the right to have any disputes relating to their civil claims and obligations, or any criminal charge brought against them, fair, publicly and within a reasonable time, by an independent and impartial court based on law. The judgment must be announced publicly; However, the press and the public can be excluded during all or part of the proceedings if this is in the interests of morality, public order or national security in a democratic society, if the interests of young people or the protection of the private lives of the parties to the proceedings so require or - insofar as the court considers it absolutely necessary - if, under special circumstances, a public hearing would adversely affect the interests of the administration of justice. "

In Union law, the right to legal proceedings does not only apply to disputes related to civil claims and obligations. This is one of the consequences of the fact that the Union is a legal community, as the Court of Justice found in Case 294/83, "Les Verts" v European Parliament (judgment of 23 April 1986, ECR 1986, 1339). With the exception of their scope, however, the guarantees of the ECHR apply mutatis mutandis in the Union.

With regard to paragraph 3, it should be noted that, according to the case law of the European Court of Human Rights, legal aid is to be granted if, in the absence of such aid, the lodging of an effective legal remedy would not be guaranteed (ECHR, judgment of 9.10.1979, Airey, Series A. , Volume 32, p. 11). There is also a legal aid system for cases pending before the Court of Justice of the European Union.

Explanation on Article 48 - Presumption of innocence and rights of the defense

Article 48 corresponds to Article 6 (2) and (3) ECHR, which reads as follows:

"2. Any person charged with a crime is presumed innocent until proven guilty by law.

3. Every accused person has at least the following rights:

a)

to be informed of the nature and reason of the accusation against them as soon as possible in a language they understand;

b)

to have sufficient time and opportunity to prepare their defense;

c)

to defend oneself, to be defended by a defense attorney of her choice or, if she does not have the means to pay, to obtain the assistance of a defense attorney free of charge if this is necessary in the interests of the administration of justice;

d)

To ask questions to witnesses or to have them asked and to obtain summons and questioning of witnesses under the same conditions as apply to witnesses;

e)

to receive free support from an interpreter if she does not understand or speak the language used by the court. "

According to Article 52 (3), this right has the same meaning and scope as the right guaranteed by the ECHR.

Explanation on Article 49 - Principles of lawfulness and proportionality in relation to offenses and penalties

The classic rule of prohibiting the retroactive effect of laws and penalties in criminal matters has been included in this article. The rule of retroactive effect of milder criminal law provisions, which is valid in numerous member states and contained in Article 15 of the International Covenant on Civil and Political Rights, has been added.

Article 7 ECHR reads as follows:

"1. No one may be convicted of any act or omission that was not punishable under national or international law at the time it was committed. Nor may a heavier penalty be imposed than the one threatened at the time of the commission.

2.This article does not exclude the possibility of conviction or punishment for any act or omission which, at the time of its commission, was punishable under the general principles of law recognized by civilized peoples. "

Only in paragraph 2 the word “civilized” has been deleted; This does not in any way alter the meaning of this paragraph, which is specifically aimed at crimes against humanity. In accordance with Article 52 (3), the guaranteed right therefore has the same meaning and scope as the right guaranteed by the ECHR.

Paragraph 3 introduces the general principle of proportionality between the offense and the degree of punishment, enshrined in the common constitutional traditions of the Member States and the case law of the Court of Justice of the Communities.

Explanation on Article 50 - Right not to be prosecuted or punished twice for the same offense

Article 4 of Protocol No. 7 to the ECHR reads as follows:

"1. Nobody may be prosecuted or punished again in criminal proceedings in the same state for a criminal offense for which they have already been convicted or acquitted under the law and criminal procedure law of a state.

2. Paragraph 1 does not exclude the resumption of the procedure in accordance with the law and the criminal procedure law of the state concerned, if new or newly known facts exist or the previous procedure shows serious deficiencies affecting the outcome of the procedure.

3. There may be no derogation from this Article under Article 15 of the Convention. "

The rule “ne bis in idem” is applied in Union law (see in the extensive case law judgment of May 5, 1966, cases 18/65 and 35/65, Gutmann v. Commission, ECR 1966, 150, and more recently judgment of Court of First Instance of April 20, 1999, Joined Cases T-305/94 and others, Limburgse Vinyl Maatschappij NV v Commission, 1999 ECR II-931). It should be noted that the rule prohibiting double punishment applies to similar sanctions, in this case penalties imposed by a criminal court.

According to Article 50, the rule “ne bis in idem” applies not only within the jurisdiction of one State but also between the jurisdictions of several Member States. This corresponds to the legal acquis of the Union; see Articles 54 to 58 of the Schengen Implementing Convention and judgment of the Court of Justice of February 11, 2003, Case C-187/01 Gözütok (ECR 2003, I-1345), Article 7 of the Convention on the Protection of the Financial Interests of the European Communities and Article 10 of the Convention on Combating Bribery. The clearly delimited exceptions in which Member States may derogate from the ne bis in idem rule under these Conventions are covered by the horizontal clause in Article 52 (1) on restrictions. As regards the cases referred to in Article 4 of Protocol 7, namely the application of the principle in one and the same Member State, the guaranteed right has the same meaning and scope as the corresponding right under the ECHR.

TITLE VII - GENERAL PROVISIONS ON THE INTERPRETATION AND APPLICATION OF THE CHARTER

Explanation on Article 51 - Scope

Article 51 aims to define the scope of the Charter. It should be made clear that the Charter applies first to the institutions and bodies of the Union, while respecting the principle of subsidiarity. This provision complied with Article 6 (2) of the Treaty on European Union, according to which the Union must respect fundamental rights, as well as the mandate of the European Council (Cologne). The term “organs” is defined in the contracts. The term “bodies and agencies” is commonly used in the Treaties to refer to any body created by the Treaties or by secondary acts (see for example Articles 15 or 16 of the Treaty on the Functioning of the European Union).

As far as the Member States are concerned, the case law of the Court of Justice clearly shows that the obligation to respect the fundamental rights defined in the framework of the Union only applies to the Member States if they are acting within the scope of Union law (judgment of 13 July 1989, case 5/88, Wachauf, ECR 1989, 2609, judgment of 18 June 1991, case C-260/89, ERT, ECR 1991, I-2925, judgment of 18 December 1997, case C-309/96, Annibaldi, Coll. 1997, I-7493). The Court of Justice recently confirmed this case law as follows: “When implementing Community regulations, however, the Member States must also observe the requirements of the protection of fundamental rights in the Community legal system.” (Judgment of April 13, 2000, Case C-292/97, ECR 2000 , I-2737, paragraph 37). This rule, enshrined in the Charter, naturally applies to both the central authorities and the regional or local authorities, as well as to the public institutions when they apply Union law.

Paragraph 2, together with paragraph 1 sentence 2, confirms that the Charter may not result in an expansion of the competences and tasks assigned to the Union by the Treaties. It is a matter of making explicit what follows logically from the principle of subsidiarity and the fact that the Union only has the powers that have been specifically assigned to it. Fundamental rights, as guaranteed in the Union, only come into effect within the framework of those powers defined by the Treaties. Consequently, the organs of the Union can only be obliged to promote the principles set out in the Charter in accordance with paragraph 1, sentence 2, in accordance with these powers.

Paragraph 2 also confirms that the Charter must not have the effect of extending the scope of Union law beyond the Union's competences set out in the Treaties. The Court of Justice has already established this rule in relation to the fundamental rights recognized as part of EU law (judgment of 17 February 1998, Case C-249/96, Grant, 1998 ECR I-621, paragraph 45). In accordance with this rule, it goes without saying that the reference to the Charter in Article 6 of the Treaty on European Union cannot be understood to mean that, taken in isolation, the framework for action, which is considered to be "implementation of the law of the Union", of the Member States (within the meaning of paragraph 1 and the aforementioned case law).

Explanation on Article 52 - Scope and interpretation of rights and principles

Article 52 aims to establish the scope of the rights and principles of the Charter and rules for their interpretation. Paragraph 1 contains the general restriction regulation. The wording used is based on the case law of the Court of Justice, which reads as follows: “According to established case law, however, the exercise of these rights, in particular within the framework of a common market organization, may be subject to restrictions, provided that they actually correspond to the common good of the Community and do not constitute an interference which is disproportionate to the aim pursued and which is intolerable and which undermines those rights in their essence ”(judgment of 13 April 2000, case C-292/97, paragraph 45). The reference to the common good recognized by the Union extends not only to the objectives set out in Article 3 of the Treaty on European Union, but also to other interests defined by specific provisions of the Treaties such as Article 4 (1) of the Treaty on European Union , Article 35 (3) of the Treaty on the Functioning of the European Union and Articles 36 and 346 of this Treaty are protected.

Paragraph 2 refers to rights that were already expressly guaranteed in the Treaty establishing the European Community and recognized in the Charter and which can now be found in the Treaties (in particular the rights of Union citizenship). It makes it clear that these rights will continue to be subject to the conditions and limits that apply to the Union law on which they are based and that are set out in the Treaties. The Charter does not change the regulation regarding the rights granted by the EC Treaty and incorporated into the Treaties.

Paragraph 3 seeks to create the necessary coherence between the Charter and the ECHR by establishing the rule that rights contained in this Charter that correspond to those guaranteed by the ECHR have the same meaning and scope, including the permitted restrictions as given to them in the ECHR. From this it follows in particular that the legislature must comply with the same standards when determining the restrictions of these rights that are provided for in the detailed regulation of the restrictions in the ECHR, which thus also apply to the rights covered by this paragraph without thereby affecting the Autonomy of Union law and the Court of Justice of the European Union is affected.

The reference to the ECHR extends to both the Convention and its protocols. The meaning and scope of guaranteed rights are determined not only by the wording of these treaties, but also by the case law of the European Court of Human Rights and the Court of Justice of the European Union. The last sentence of the paragraph is intended to give the Union the opportunity to provide more extensive protection. In any event, the protection afforded by the Charter can never be less than that afforded by the ECHR.

The Charter does not affect the possibility open to member states to make use of Article 15 of the ECHR, which allows derogation from the rights provided for in the ECHR in the event of war or other public emergency threatening the life of the nation, if they take measures in the field of national defense in the event of war or in the field of the maintenance of public order in accordance with their responsibilities recognized in Article 4 (1) of the Treaty on European Union and in Articles 72 and 347 of the Treaty on the Functioning of the European Union.

The rights that currently - without excluding the further development of law, legislation and the treaties - can be assumed to correspond to rights from the ECHR within the meaning of this paragraph are listed below. The rights that are in addition to the rights under the ECHR are not listed.

1.

Articles of the Charter that have the same meaning and scope as the corresponding articles of the European Convention on Human Rights:

Article 2 corresponds to Article 2 ECHR;

Article 4 corresponds to Article 3 ECHR;

Article 5 paragraphs 1 and 2 correspond to Article 4 ECHR;

Article 6 corresponds to Article 5 ECHR;

Article 7 corresponds to Article 8 ECHR;

Article 10 (1) corresponds to Article 9 of the ECHR;

Article 11 corresponds to Article 10 of the ECHR, without prejudice to the restrictions with which Union law may limit the right of the Member States to introduce the authorization procedures referred to in Article 10 (1), third sentence, of the ECHR;

Article 17 corresponds to Article 1 of the Additional Protocol to the ECHR;

Article 19 (1) corresponds to Article 4 of Protocol No. 4 to the ECHR;

Article 19 (2) corresponds to Article 3 of the ECHR as interpreted by the European Court of Human Rights;

Article 48 corresponds to Article 6 paragraphs 2 and 3 ECHR;

Article 49 paragraph 1 (with the exception of the last sentence) and paragraph 2 correspond to Article 7 ECHR.

2.

Articles that have the same meaning as the corresponding articles of the ECHR, but whose scope is broader:

Article 9 covers Article 12 of the ECHR, but its scope can be extended to other forms of marriage if national law so provides;

Article 12 (1) corresponds to Article 11 of the ECHR, but its scope has been extended to Union level;

Article 14 (1) corresponds to Article 2 of the Additional Protocol to the ECHR, but its scope has been extended to include access to vocational and continuing training;

Article 14 (3) corresponds to Article 2 of the Additional Protocol to the ECHR as regards parental rights;

Article 47 (2) and (3) correspond to Article 6 (1) ECHR, but the limitation to disputes relating to civil claims and obligations or criminal charges does not apply when it comes to Union law and its application;

Article 50 corresponds to Article 4 of Protocol No. 7 to the ECHR, but its scope has been extended to the level of the European Union and it applies between the courts of the Member States;

Finally, EU citizens cannot be regarded as foreigners within the scope of EU law because of the prohibition of any discrimination on the basis of nationality. The restrictions on the rights of foreigners provided for in Article 16 of the ECHR therefore do not apply to Union citizens in this context.