欧盟宪法草案对欧盟人权保护机制的影响 (The Draft Constitution and Human Rights Protection in European

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If the Constitution provides different protection of human rights for EU citizens, the question will left to the judicatory of EU: what a possible procedure could be for Courts of EU to refer questions relating to the Convention if the Constitution come into force, in which the accession to the Convention was expressed clearly in Article I-7. Though the accession would ensure a uniform minimum level of protection across Europe irrespective of the legal actor, it would bring the conflict of jurisprudence between two Courts- ECJ and ECtHR. It was suggested that the ECtHR could give its advisory opinion for the ECJ to apply. However, sensitive issues took place, for example: whether judges from countries outside the Union would hear cases relating to EU law. Especially as we mentioned, it is suspectable whether with the rapid expansion of Council of Europe membership in the east, there will be possibility that the standards of protection applied by ECtHR could be weakened. And what could deal with the appeal according to the rights provided by the Charter but not fall in scope of ECHR? It is now hard to give satisfactory answers to these questions, however, one thing is sure, that the Courts of EU should acquire more competence in this part.

Theoretically, the ECJ has played the same role as ECtHR in some cases. The ECtHR provides the ultimate remedy against relevant authority in case the applicant regards he is personally and directly the victim of a breach of one or more f these fundamental rights by one of the States when all domestic remedies has been exhausted. Alike, for several decades, the ECJ has also played an important role in ensuring the protection of fundamental rights inside the Union legal order, by developing a method for the review of performances of the Union institutions for human rights violations, despite lacking of sufficient relevant provisions in Treaties. Though the Court's fundamental rights jurisprudence was limited to guarantee that individuals are protected from violations of their fundamental rights resulting from acts of Union institutions, reviewing the case of individual against public institutions in member states was also inevitable in order to carry out the Union law. Such asserting would be more legitimate when two steps of judicial practice were carried out. Namely the ratification of a Union "bill of rights" and application of this "bill of rights" to the Member States. The two conditions however are expected to realize if the Constitution comes into force. Then, as the Commissioner António Vitorino believes, based upon a complementarily relation, The Charter will introduce a degree of healthy competition between the two main systems for protecting human rights on our continent, without introducing a schism between the European systems,” he argues. “The results of such competition can only be beneficial to stronger and better protection.” As I think, this is the ideal possibility. Nevertheless, even though, it will be a long-term, gradually progress, and the concrete view, lies still beyond our sight.

4 short conclusions

According to our discuss in this article, the draft Constitution contains a bill of rights for European Union through incorporation the Charter of Fundamental Rights, which provides a boarder and advanced fundamental rights for EU citizens. The Charter will obtain accordingly legal binding force if all Member States could ratify the Constitution, then it shall strengthen the competence of the EU institutions on protecting human rights. A mechanism of human rights protection within EU scope will materialize with legal sources from member states and EU levels under the light of the Charter in the Constitution. Corresponding, a compatible judiciary system could outline progressively while the Courts of Union are capable of playing the major role in protection of human rights within EU region in a long run and as a counterpart of ECtHR based on the gradually complete mechanism in EU.

Just before I finish the essay, news came that the EU Constitution Summit failed in EU leaders meeting in Brussels, because Poland and Spain reluctant to accept newly weighted voting rights in the draft text, which would greatly weaken the influence of the two countries. Although the Irish government, which will takes over the EU presidency in January 2004, has expressed concern over having the constitution debate spill over into its term, but since no major EU project has been pushed through within a single presidency’s six-month term before, a new round deal over the proposal of EU Constitution could be restart at least in the second half of 2004. It is a bad news but not certainly a dreadful thing as far as our topic is concerned, as we mentioned in this article, the form of a EU human rights protection system human rights protection will be only a question of time.

Literature:

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14, www.europa.eu.int
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The new draft named “Draft Treaty establishing a Constitution for Europe”; it will be still a treaty.