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Sketch for a „Charter of
Fundamental Rights
in the European Union”
Gerald Häfner, Dr.
Christoph Strawe, Dr. Robert Zuegg
(Using the texts of the Basic Law of the
Federal Republic of Germany, the UN-Declaration on Human Rights, the European
Convention on Human Rights, the Swiss Federal Constitution, suggestions of the
Initiative „Switzerland in Dialogue”, of the Action Forum „Mature School in
Schleswig Holstein”, and of the Committee for a „Democratically Written Federation
of German States”.)
FUNDAMENTAL RIGHTS
Article 1 [ dignity of Man; binding force of fundamental
rights for the state; comprehensive fundamental right guarantees ]
(1) The dignity of man is inviolable. To
respect and to protect the human individuality and to facilitate self- and
joint responsibility with other human beings is the highest obligation of all
state power.
(2) The European Union (EU) and its
member states commit themselves therefore to the keeping and implementation of
the inviolable and inalienable human rights as a basis for each humane
community and of peace and justice in the world.
(3) This fundamental right Charter binds
all powers in the EU and its member states setting, applying and administering
justice. It contains enforceable claims of the individual and guiding principles
of a liberal, democratic and social society.
(4) More comprehensive fundamental
rights guarantees of the individual member states as well as the European Convention
for the protection of Human Rights and basic liberties (ECHR) are not affected
by this fundamental right Charter.
Article 2 [ freedom of the person; right to life; freedom
of action and contract; right on assistance in the case of distress ]
(1) Each human being has the right to
life and to physical integrity. The death penalty and every other type of cruel
and degrading treatment are forbidden.
(2) Everyone has the right to free
development of her or his personality, in so far as it does not violate the
rights of others or is contrary to the basic-legal order of the European Union
or the member states.
(3) In the context of general freedom of
action of the person each human being has the right to regulate and arrange her
or his relationship with others by contractual agreement.
(4)
Everyone, who finds themselves in a
situation of serious distress, has the right to such assistance and care as is
essential for a humane existence.
Article 3 [ equality before the law; Non-discrimination;
equal rights of women and men ]
(1) All human beings are equal before
the law.
(2) Nobody may be discriminated against
on any ground such as origin, race, gender, age, language, social position, way
of life, religion, thought, political conviction, sexual orientation or a physical,
psychological or mental handicap.
(3) Men and Women are equal; the
European Union furthers the realization of equal opportunities and the abolishment
of existing inequalities, particularly in family, education and work.
Article 4 [ freedom of belief, conscience and confession ]
(1) The freedom of thought, conscience
and belief are ensured.
(2) Each human being has the right to
determine her or his religion, world outlook and ethical conviction freely and
to confess and practice these publicly, both within or outside a community.
(3) Nobody may be forced against her or
his conscience to take part in armed military service.
Article 5 [ freedom of expression, information and media;
art and science ]
(1) Everyone has the right to form and
express her or his opinion without interference and to spread such opinions
through whatever media the individual chooses as well as the right to unrestricted
access to all public information.
(2) Free reporting by the media is
ensured. It is restricted only by the inviolable dignity of the individual as
well as by the right of children and young people to special protection of the
integrity of their personality and development. The media have the right to
proceed without censorship and editorial protection of its sources is
inviolable.
(3) The freedom of art, of teaching and
of scientific research are ensured.
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Article 6 [ freedom of assembly, organization and coalition
]
(1) Each human being has the right to meet
peacefully and without weapons with others without permission.
(2) Each human being has the right to
found, join or affiliate her or himself to an association, society, community
or other autonomous body or bodies.
(3) Each human being has the right to
form organizations for the protection and promotion of labour standards and economical
conditions.
(4) Nobody may be forced to belong to an
organization.
Article 7 [ right to participation in political life;
initiative and ballot right, right to vote, right to petition, right to establish
parties ]
(1) All citizens of age within the Union
have the right to participate in the organization of the political life of
their country and of the European Union on all levels.
(2) This is carried out through the
right to introduce bills by initiatives and to vote on them through referendum
as well as through the participation in general, free, equal, and secret
elections.
(3) The equal opportunity of competing
proposals or candidates at voting or in elections respectively is guaranteed.
(4) All citizens within the European
Union have the right under equal conditions to admission to public offices in
their country.
(5) The right to establish parties and
other political organizations is ensured.
(6) Each human being has the right,
without fear or disadvantage, to petitions or complain (whether individually or
collectively) to any authority, government institution or representative.
Article 8 [ inviolability of the private sphere, data security ]
(1) Everyone has the entitlement to protection
of her or his private area of life. The privacy of closed messages in word,
writing, picture or character is inviolable.
(2) Every human being has the right to all
data personal to her or himself as well as the right to have full access to,
inspect and copy all documents and data relating to her or himself and the
right to protection of her or his privacy.
Article 9 [ freedom of movement ]
(A formulated suggestion was
renounced.)
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Article 10 [ guarantee of the right of asylum ]
(This
article, for which no rounded off
formulated suggestion was developed, should regulate and record the right of
asylum in Europe in accordance with the general human rights that a refugee
must not be pushed away or delivered into a state, in which she or he is
pursued. Furthermore nobody may be returned or delivered to a state within
which he or she either is or might reasonably expect to suffer torture or any
type of cruel or inhumane treatment or punishment.
Article 11 [ rights and protection of children and young
people ]
(1) Children and young people are entitled
to comprehensive education and training that is committed to provide the conditions
and possibilities within which the development of the child and young persons
individuality will flourish.
(2) Care and education of the children
are primarily the natural right of parents and primarily their incumbent
responsibility. The state community ensures also that extramarital children or
children living without parental care can grow up in a home under the
protection of a social environment. The state protects each small community
organization, which creates the social environment in which children and young
people grow up, and supports it in the self-responsible fulfilment of its
function.
(3) Beyond that children and young
people have the entitlement to a claim to special protection to ensure the
integrity of their person and their development.
Article 12 [ right to education ]
(1) Each human being in Europe has the
right to education. For children and young people the attendance of educational
facilities must not be dependent on economical conditions of parents.
(2) The liberty of the parental
education responsibility is ensured; it covers in particular the right of
parents to freely select the type of the educational institution for their
children.
(3) The state guarantees equal access to
and free selection of a school by equally supporting and enabling publicly
available state and independently run schools
(4) The schools selected by parents,
whether state run or independent, shall perform their public function in
education equitably. The freedom to found educational establishments and to run
them independently is ensured. This includes the absolute right to establish,
organise and determine the curriculum whether for the provision of education to
children or to train teachers.
(5) Members of national or ethnic
minorities have the right to learn their native language and found and maintain
their own schools.
(6) The school system is subordinate to
the legal supervision of the individual European states.
Article 13 [ property; expropriation ]
(1) Individual Property is ensured. Its
use and its forms are to serve both the preservation and
development of sustainable ecological and social living conditions.
(2) An expropriation is admissible only
in the public interest. It may take place only through the due process of law
or due to a law, which regulates the type and extent of the remuneration. The
remuneration is to be determined under fair consideration of the interests of
the public and those involved.
Article 14 [ freedom of career and consumption; freedom of
contractual organization and independence of the economy ]
(1) Free selection, accessibility and
practice of occupation are ensured; likewise the self-determination of the
consumer and the freedom of contract between the participants in the economy.
Legal regulations which have the purpose to protect men and nature remain
unaffected thereof.
(2) The economy regulates and
administers its affairs independently on the basis of the state general outline
of law; in addition it can form contract-entitled organs, in which all participants
in the economy, entrepreneurs, co-workers and consumers, are responsibly
involved.
Article 15 [ restriction of fundamental rights; substance
guarantee and legal action guarantee ]
(1) Each human being in practice of her
or his rights and liberties is only subject to those limitations which the law
designates exclusively for the purpose of ensuring the acknowledgment and the
respect for the rights and liberties of others or to emphasize a predominant
public interest. The principle of proportionality must be protected with each
intervention into a fundamental right. In no case may the essence of a fundamental
right be infringed.
(2) Insofar as a fundamental right may
be restricted by a law or due to a law, that law must apply generally and not
solely to an individual case. Furthermore, such law must name the fundamental
right, indicating the relevant Article.
(3) The fundamental rights also apply to
legal persons within the European Union to the extent that the nature of such
rights permits.
(4) If someone is violated in her or his
rights, then she or he has the right to effective legal protection and if
necessary to free legal assistance. Each human being has the right to equal and
fair treatment and to judgments in legal, quasi legal and administrative forums
within an appropriate period.
Article 16 [ implementation of the fundamental rights ]
(1) The fundamental rights must become
effective in the entire legal order.
(2) Those who exercise fundamental
rights must respect the fundamental rights of others.
(3) Those who hold public functions are
obligated to actively implement the fundamental rights.
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PRINCIPLES
AND FUNCTIONS OF THE EUROPEAN UNION,
RESULTING FROM THE FUNDAMENTAL RIGHTS
Article 17 [ principles of the European Union, resistance
right ]
(1) The European Union is a community of
sovereign states. It is committed to peace and to the principles of democracy
and the rule of law, of social justice, federalism and subsidiarity. It sees
its pre-eminent function as the creation of the legal and actual conditions, in
which the fundamental rights proclaimed in this Charter can in fact be claimed
by each human being within the Union.
(2) All government authority in the
European Union emanates from the citizens. It is exercised in elections, in ballots
and through special organs of the legislation, the executive power and the
jurisdiction.
(3) The legislation is subject to the
constitutional order, the executive and the independent judiciary are bound by
law and justice.
4) All human beings within the Union
have the right to resist any person seeking to abolish this liberal, democratic
and social order of fundamental rights, should no other remedy be possible.
Article 18 [ subsidiarity ]
(1) The EU and its member states shall
facilitate and promote the development of social functions arising out of free
initiative and responsibility, in all areas, except those which legislation
designates as state matters for urgent reasons. In each case state functions
are to be regulated at the lowest possible level.
(2) The EU and its member states shall
create structural frameworks to promote the cultural life to unfold in its diversity,
free and self-administered. They respect the principle of state neutrality in
relation to different cultural endeavours.
(3) The EU and its member states protect
the principle of contractual self organization of the economic life; they
create suitable framework conditions for an efficient, structurally and *regionally
balanced, socially responsible economy. The EU and its member states do not
become economically active themselves; exceptions are regulated by law.
Article. 19 [ guarantee of social security, social
objectives ]
(1) It is the objective of society as a
whole as well as of its individual members that each human being within and
outside the European Union can participate in the general development of the
living conditions in an appropriate way.
(2) The EU and its member states shall
facilitate an environment in which all human beings fit for work can find tasks
under appropriate labour conditions or that they can establish appropriate
conditions themselves.
(3) For those human beings who have not
been able to find such employment, or who are unable to work due to illness,
accident or disablement, or due to their youth, to their obligation for education,
to their concern for others, or are exempted from work due to their age or
other social reasons, the EU or its member states should legally guarantee
their necessary living costs which should be assessed on the basis of social
comparability. Likewise the EU or its member states shall provide the basis
conditions for a humane medical service.
(4) The focal point of the warrantee of
social security by law is to assure independently administered
social-partnership solutions or such by social solidarity. Private initiative
and responsibility can complement such solutions. Private precautionary
measures do not release from the obligation to contribute to the general social
systems.
(5) In supplementing these forms of
social security the state can also make material contributions; these require a
legal basis and depend on the available means.
(6) Liberty of science, pluralism of
methods, freedom of therapy and the self-determination of the patient including
free selection of physician and hospital are generally to be ensured.
Article 20 [ environmental protection, principle of sustainability;
respect of life ]
(1) The EU and its member states ensure the
protection of human beings and their natural environment from destructive
effects. The causer is required to bear the costs of avoiding any such
destruction.
(2) The EU and its member states should
be committed to the principle of sustainability. They regulate the availability
of non increasable goods, like soil, water, air and raw materials in such a
manner that their character remains protected as a basis of life for the future
generations, and that there develops a balanced relationship between the use of
nature and the maintenance of its diversity of species and renewability.
(3) The EU and its member states are
committed to the respect of life. They ensure in particular the protection of
the animals as co-creations of humans.
Article 21 [fulfilment of public functions ]
(1) The EU and its member states fulfil
their functions in implementation fundamental rights and social objectives in a
form and structure, which is citizen-friendly, appropriate and economical.
(2) The EU, its member states, as well
as the non-state organizations, which fulfil public functions, all suitable
possibilities and forms of co-operation, in particular the regional and social-partnership
option. Thereby they strengthen the powers for direct responsibility and
autonomy of human beings involved.
(3) There should be regular checks to
ensure that the public functions being undertaken are both necessary and
appropriate. The quality of execution and economic efficiency are to be
evaluated constantly and to be improved where necessary.
(4) Within their scope of responsibility
the EU and its member states provide for a comprehensive, coordinated, and
complementary planning of functions and finances; they report on their implementation
and generate a social accounting.
Article 22 [ international law and European Union right ]
(A formulated suggestion was
renounced.)
Transient and final clauses
(1) The EU and its member states
subordinate the Charter of Fundamental rights to a referendum of its citizens.
(2) The EU asserts its intention to join
the European The European Convention of Human Rights Convention in the year
2005 at the latest.
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