* * * * * * In the concluding part of the dossier, graphs have been inserted.

Transcription

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2 Presentation The recent reaffirmation and endorsement of the Charter of Fundamental Rights of the European Union (previously promulgated at Nice in 2000) took place, in Strasbourg on 12 December 2007, the day before the signing of the Lisbon Treaty on 13 December 2007 in Lisbon, by the Presidents of Parliament, the Council and the Commission; these events have brought to the attention of jurists the all-too-familiar vicissitudes and problems which have dogged the progress of the Charter of Nice on its way towards the achievement of an effectively binding legal value. The failure of the project designed to create a European Constitution brought about an acrimonious and abrupt halt to this initiative; in fact it was only as a result of the success of the Reform Treaty that the prospect of the Charter of Nice having an effective legal value became a distinct possibility. In fact, Article 6.1 of the reformed TEU states that the Union recognises [ ] the principles ratified in the Charter of the Fundamental Rights of the European Union [...] has the same legal values as the Treaties. Against the backcloth of a legal-institutional framework of this kind, that reflects more general political difficulties associated with the process of integration, a draft outline began to emerge of a sort of living law created under the auspices of the Court of Justice, and before that actually discernable in practice in the way the Advocates General carried out their work; these developments may be seen as an indication of the weight and importance not merely political by also juridical which have accrued to the Charter: in effect, the first real catalogue of rights of the European Union itself. With this in mind, it was considered that it would be extremely useful to design and implement an empirical research project directed to uncovering the key effects that the Charter of Nice has had on both supranational and national legal systems. This research was premised on a detailed analysis of judgements handed down from the Court of Luxembourg, the Conclusions of Advocates General and the various pronouncements of national judges; the intention was to provide the first real test which would establish empirically the effective legal relevance of the Charter At this stage in the research (this is work in progress and as such subject to on-going developments), it is evident that as time passes the significance and weight attached to the Charter of Nice is becoming ever more important; this may be seen in the way it affects decisions taken by the Court of Justice, by several national judges, and, in particular, from the Conclusions of the Advocates General, in spite of the fact that as matters stand at the moment, the key issue of its binding value has not yet been resolved. A particular feature of this research is the way it has been possible to gather sensitive data on the differing attitudes of the Advocates General (some more so than others) vis-à-vis the Charter, especially in terms of the use of fundamental rights factors driving the Court s decisions ; in this connection, it is noticeable that compared with the cautious approach of the judges, the Advocates General have often demonstrated a braver attitude to the Charter. * * * The dossier that is here presented has, as its object, the portrayal of the way that jurisprudence is exercised or functions today; it is intended to make clear in what measure and in what way the Charter of Nice, and the single articles it comprises, have been utilized by Community and national judges. It focuses on the way different courts, at various levels of jurisdiction, deal with the nonbinding nature of a document which, in the context of supranational perspectives, is nonetheless, gradually acquiring increasing constitutional significance on the question of fundamental rights,.

3 For this reason, supranational judges, national judges and the Advocates General have, in most cases, applied the provisions of the Charter indirectly; in this way it has entered into the reasoning of the judges, affecting decisions, despite not technically anchoring (or forming the basis of) a decision. Aside from indirect application - that represents the most used method of citing the Charter - it has been possible to classify different judgements and opinions in which the forms of generic reference and direct application have been used, argumentation techniques which are diametrically opposed, thus revealing an antithetic attitude towards the Charter. Indeed, whilst generic reference may be qualified as a merely evocative or rhetorical method of citation - thereby demonstrating a diffident approach to the Charter - direct application pushed so far as to form the basis for the decision on the article referenced, is characterised to the contrary, by the extremely confident attitude of the interpreter with regard to the legal efficacy of the text of Nice. Not least relevant, even if for various reasons more difficult to evaluate, are the data identifying the articles most used by judges and the Advocates General. * * * As an aid to comprehension, the text of Charter of Nice and the Presidium Explanations have been inserted at the beginning. Following on, the first part of the dossier focuses on the listing of the judgments of the Court of Justice, of the Tribunal of first instance and of the Conclusions of the Advocates General. The listing of the judgments is presented to highlight the different methods of referencing the Charter, the articles cited and the most significant point (or points) of the judgments or the Conclusions in which the Charter is cited. Thereafter, the second part of the dossier focuses on judgments made by national judges. In addition, citations are colour-coded to identify the different ways they have been made. The underlying intention in distinguishing between Community and national jurisprudence is to discover if there are significantly different ways of dealing with the same legal phenomena by supranational and national jurisdictions the latter being considered community judges at the first level and to identify the consequences which flow from these different approaches. * * * In the concluding part of the dossier, graphs have been inserted. With reference to Community jurisprudence, the graphs show (i) a growing trend in the number of citations of the Charter by Community judges on the one hand and by the Advocates General on the other (Graph A); (ii) the total annual references contained in the judgments and in the Conclusions (Graph B); (iii) the correlation between the number of references to the Charter and each Advocate General (Graph C); (iv) the articles most referred to (Graph D); (v) data relative to the different methods of citing (Graph E); (vi) the analysis of the relationship between the references to the Charter and the matters subject to judicial controversy (Graph F). With regard to national jurisprudence, the first graph evidences the degree of interest domestic judges have demonstrated towards the Charter (Graph A), the second illustrates the articles cited and the number of citations (Graph B) and the third represents the method of referencing (Graph C).

4 EN Official Journal of the European Communities C 364/1 CHARTER OF FUNDAMENTAL RIGHTS OF THE EUROPEAN UNION (2000/C 364/01)

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6 EN Official Journal of the European Communities C 364/3 PROCLAMACIÓN SOLEMNE HØJTIDELIG PROKLAMATION FEIERLICHE PROKLAMATION ` ˆÕÑÉ É` ÑÕ SOLEMN PROCLAMATION PROCLAMATION SOLENNELLE FORÓGRA SOLLÚNTA PROCLAMAZIONE SOLENNE PLECHTIGE AFKONDIGING PROCLAMA ˆO SOLENE JUHLALLINEN JULISTUS HÖGTIDLIG PROKLAMATION

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8 EN Official Journal of the European Communities C 364/5 El Parlamento Europeo, el Consejo y la Comisión proclaman solemnemente en tanto que Carta de los Derechos Fundamentales de la Unión Europea el texto que figura a continuación. Europa-Parlamentet, Rådet og Kommissionen proklamerer hłjtideligt den tekst, der fłlger nedenfor, som Den Europæiske Unions charter om grundlæggende rettigheder. Das Europäische Parlament, der Rat und die Kommission proklamieren feierlich den nachstehenden Text als Charta der Grundrechte der Europäischen Union. Ôï ıæøð朜ü ïøíïâïýºøï, ôï ÓıìâïýºØï ŒÆØ ç ðøôæïðþ äøæœçæýóóïıí ðæíçªıæøœü, øò Üæôç åìåºøøäþí ØŒÆØøìÜôøí ôçò ıæøð朜þò íøóçò, ôï Œåßìåíï ðïı ÆŒïºïıŁåß. The European Parliament, the Council and the Commission solemnly proclaim the text below as the Charter of fundamental rights of the European Union. Le Parlement europøen, le Conseil et la Commission proclament solennellement en tant que Charte des droits fondamentaux de l Union europøenne le texte repris ci-aprłs. Forógraíonn Parlaimint na heorpa, an Chomhairle agus an Coimisiœn go sollœnta an tøacs thíos mar an Chairt um Chearta Bunœsacha den Aontas Eorpach. Il Parlamento europeo, il Consiglio e la Commissione proclamano solennemente quale Carta dei diritti fondamentali dell Unione europea il testo riportato in appresso. Het Europees Parlement, de Raad en de Commissie kondigen plechtig als Handvest van de grondrechten van de Europese Unie de hierna opgenomen tekst af. O Parlamento Europeu, o Conselho e a Comissªo proclamam solenemente, enquanto Carta dos Direitos Fundamentais da Uniªo Europeia, o texto a seguir transcrito. Euroopan parlamentti, neuvosto ja komissio juhlallisesti julistavat jäljempänä esitetyn tekstin Euroopan unionin perusoikeuskirjaksi. Europaparlamentet, rådet och kommissionen tillkännager högtidligt denna text såsom stadga om de grundläggande rättigheterna i Europeiska unionen.

9 EN C 364/6 Official Journal of the European Communities Hecho en Niza, el siete de diciembre del aæo dos mil. Udfærdiget i Nice den syvende december to tusind. Geschehen zu Nizza am siebten Dezember zweitausend. ªØíå óôç ߌÆØÆ, óôøò åðôü åœåìâæßïı äýï غØÜäåò. Done at Nice on the seventh day of December in the year two thousand. Fait à Nice, le sept døcembre deux mille. Arna dhøanamh i Nice, an seachtœ læ de Nollaig sa bhliain dhæ mhíle. Fatto a Nizza, addì sette dicembre duemila. Gedaan te Nice, de zevende december tweeduizend. Feito em Nice, em sete de Dezembro de dois mil. Tehty Nizzassa seitsemäntenä päivänä joulukuuta vuonna kaksituhatta. Som skedde i Nice den sjunde december tjugohundra.

10 EN Official Journal of the European Communities C 364/7 Por el Parlamento Europeo For Europa-Parlamentet Für das Europäische Parlament ˆØÆ ôï ıæøð朜ü ïøíïâïýºøï For the European Parliament Pour le Parlement europøen Thar ceann Pharlaimint na heorpa Per il Parlamento europeo Voor het Europees Parlement Pelo Parlamento Europeu Euroopan parlamentin puolesta För Europaparlamentet Por el Consejo de la Unión Europea For Rådet for Den Europæiske Union Für den Rat der Europäischen Union ˆØÆ ôï ÓıìâïýºØï ôçò ıæøð朜þò íøóçò For the Council of the European Union Pour le Conseil de l Union europøenne Thar ceann Chomhairle an Aontais Eorpaigh Per il Consiglio dell Unione europea Voor de Raad van de Europese Unie Pelo Conselho da Uniªo Europeia Euroopan unionin neuvoston puolesta För Europeiska unionens råd Por la Comisión Europea For Europa-kommissionen Für die Europäische Kommission ˆØÆ ôçí ıæøð朜þ ðøôæïðþ For the European Commission Pour la Commission europøenne Thar ceann an Choimisiœin Eorpaigh Per la Commissione europea Voor de Europese Commissie Pela Comissªo Europeia Euroopan komission puolesta För Europeiska kommissionen

11 EN C 364/8 Official Journal of the European Communities PREAMBLE The peoples of Europe, in creating an ever closer union among them, are resolved to share a peaceful future based on common values. Conscious of its spiritual and moral heritage, the Union is founded on the indivisible, universal values of human dignity, freedom, equality and solidarity; it is based on the principles of democracy and the rule of law. It places the individual at the heart of its activities, by establishing the citizenship of the Union and by creating an area of freedom, security and justice. The Union contributes to the preservation and to the development of these common values while respecting the diversity of the cultures and traditions of the peoples of Europe as well as the national identities of the Member States and the organisation of their public authorities at national, regional and local levels; it seeks to promote balanced and sustainable development and ensures free movement of persons, goods, services and capital, and the freedom of establishment. To this end, it is necessary to strengthen the protection of fundamental rights in the light of changes in society, social progress and scientific and technological developments by making those rights more visible in a Charter. This Charter reaffirms, with due regard for the powers and tasks of the Community and the Union and the principle of subsidiarity, the rights as they result, in particular, from the constitutional traditions and international obligations common to the Member States, the Treaty on European Union, the Community Treaties, the European Convention for the Protection of Human Rights and Fundamental Freedoms, the Social Charters adopted by the Community and by the Council of Europe and the case-law of the Court of Justice of the European Communities and of the European Court of Human Rights. Enjoyment of these rights entails responsibilities and duties with regard to other persons, to the human community and to future generations. The Union therefore recognises the rights, freedoms and principles set out hereafter.

12 EN Official Journal of the European Communities C 364/9 CHAPTER I DIGNITY Article 1 Human dignity Human dignity is inviolable. It must be respected and protected. Article 2 Right to life 1. Everyone has the right to life. 2. No one shall be condemned to the death penalty, or executed. Article 3 Right to the integrity of the person 1. Everyone has the right to respect for his or her physical and mental integrity. 2. In the fields of medicine and biology, the following must be respected in particular: the free and informed consent of the person concerned, according to the procedures laid down by law, the prohibition of eugenic practices, in particular those aiming at the selection of persons, the prohibition on making the human body and its parts as such a source of financial gain, the prohibition of the reproductive cloning of human beings. Article 4 Prohibition of torture and inhuman or degrading treatment or punishment No one shall be subjected to torture or to inhuman or degrading treatment or punishment. Article 5 Prohibition of slavery and forced labour 1. No one shall be held in slavery or servitude. 2. No one shall be required to perform forced or compulsory labour. 3. Trafficking in human beings is prohibited.

13 EN C 364/10 Official Journal of the European Communities CHAPTER II FREEDOMS Article 6 Right to liberty and security Everyone has the right to liberty and security of person. Article 7 Respect for private and family life Everyone has the right to respect for his or her private and family life, home and communications. Article 8 Protection of personal data 1. Everyone has the right to the protection of personal data concerning him or her. 2. Such data must be processed fairly for specified purposes and on the basis of the consent of the person concerned or some other legitimate basis laid down by law. Everyone has the right of access to data which has been collected concerning him or her, and the right to have it rectified. 3. Compliance with these rules shall be subject to control by an independent authority. Article 9 Right to marry and right to found a family The right to marry and the right to found a family shall be guaranteed in accordance with the national laws governing the exercise of these rights. Article 10 Freedom of thought, conscience and religion 1. Everyone has the right to freedom of thought, conscience and religion. This right includes freedom to change religion or belief and freedom, either alone or in community with others and in public or in private, to manifest religion or belief, in worship, teaching, practice and observance. 2. The right to conscientious objection is recognised, in accordance with the national laws governing the exercise of this right.

14 EN Official Journal of the European Communities C 364/11 Article 11 Freedom of expression and information 1. Everyone has the right to freedom of expression. This right shall include freedom to hold opinions and to receive and impart information and ideas without interference by public authority and regardless of frontiers. 2. The freedom and pluralism of the media shall be respected. Article 12 Freedom of assembly and of association 1. Everyone has the right to freedom of peaceful assembly and to freedom of association at all levels, in particular in political, trade union and civic matters, which implies the right of everyone to form and to join trade unions for the protection of his or her interests. 2. Political parties at Union level contribute to expressing the political will of the citizens of the Union. Article 13 Freedom of the arts and sciences The arts and scientific research shall be free of constraint. Academic freedom shall be respected. Article 14 Right to education 1. Everyone has the right to education and to have access to vocational and continuing training. 2. This right includes the possibility to receive free compulsory education. 3. The freedom to found educational establishments with due respect for democratic principles and the right of parents to ensure the education and teaching of their children in conformity with their religious, philosophical and pedagogical convictions shall be respected, in accordance with the national laws governing the exercise of such freedom and right. Article 15 Freedom to choose an occupation and right to engage in work 1. Everyone has the right to engage in work and to pursue a freely chosen or accepted occupation. 2. Every citizen of the Union has the freedom to seek employment, to work, to exercise the right of establishment and to provide services in any Member State.

15 EN C 364/12 Official Journal of the European Communities Nationals of third countries who are authorised to work in the territories of the Member States are entitled to working conditions equivalent to those of citizens of the Union. Article 16 Freedom to conduct a business The freedom to conduct a business in accordance with Community law and national laws and practices is recognised. Article 17 Right to property 1. Everyone has the right to own, use, dispose of and bequeath his or her lawfully acquired possessions. No one may be deprived of his or her possessions, except in the public interest and in the cases and under the conditions provided for by law, subject to fair compensation being paid in good time for their loss. The use of property may be regulated by law in so far as is necessary for the general interest. 2. Intellectual property shall be protected. Article 18 Right to asylum The right to asylum shall be guaranteed with due respect for the rules of the Geneva Convention of 28 July 1951 and the Protocol of 31 January 1967 relating to the status of refugees and in accordance with the Treaty establishing the European Community. Article 19 Protection in the event of removal, expulsion or extradition 1. Collective expulsions are prohibited. 2. No one may be removed, expelled or extradited to a State where there is a serious risk that he or she would be subjected to the death penalty, torture or other inhuman or degrading treatment or punishment.

16 EN Official Journal of the European Communities C 364/13 CHAPTER III EQUALITY Everyone is equal before the law. Article 20 Equality before the law Article 21 Non-discrimination 1. Any discrimination based on any ground such as sex, race, colour, ethnic or social origin, genetic features, language, religion or belief, political or any other opinion, membership of a national minority, property, birth, disability, age or sexual orientation shall be prohibited. 2. Within the scope of application of the Treaty establishing the European Community and of the Treaty on European Union, and without prejudice to the special provisions of those Treaties, any discrimination on grounds of nationality shall be prohibited. Article 22 Cultural, religious and linguistic diversity The Union shall respect cultural, religious and linguistic diversity. Article 23 Equality between men and women Equality between men and women must be ensured in all areas, including employment, work and pay. The principle of equality shall not prevent the maintenance or adoption of measures providing for specific advantages in favour of the under-represented sex. Article 24 The rights of the child 1. Children shall have the right to such protection and care as is necessary for their well-being. They may express their views freely. Such views shall be taken into consideration on matters which concern them in accordance with their age and maturity. 2. In all actions relating to children, whether taken by public authorities or private institutions, the child s best interests must be a primary consideration.

17 EN C 364/14 Official Journal of the European Communities Every child shall have the right to maintain on a regular basis a personal relationship and direct contact with both his or her parents, unless that is contrary to his or her interests. Article 25 The rights of the elderly The Union recognises and respects the rights of the elderly to lead a life of dignity and independence and to participate in social and cultural life. Article 26 Integration of persons with disabilities The Union recognises and respects the right of persons with disabilities to benefit from measures designed to ensure their independence, social and occupational integration and participation in the life of the community.

18 EN Official Journal of the European Communities C 364/15 CHAPTER IV SOLIDARITY Article 27 Workers right to information and consultation within the undertaking Workers or their representatives must, at the appropriate levels, be guaranteed information and consultation in good time in the cases and under the conditions provided for by Community law and national laws and practices. Article 28 Right of collective bargaining and action Workers and employers, or their respective organisations, have, in accordance with Community law and national laws and practices, the right to negotiate and conclude collective agreements at the appropriate levels and, in cases of conflicts of interest, to take collective action to defend their interests, including strike action. Article 29 Right of access to placement services Everyone has the right of access to a free placement service. Article 30 Protection in the event of unjustified dismissal Every worker has the right to protection against unjustified dismissal, in accordance with Community law and national laws and practices. Article 31 Fair and just working conditions 1. Every worker has the right to working conditions which respect his or her health, safety and dignity. 2. Every worker has the right to limitation of maximum working hours, to daily and weekly rest periods and to an annual period of paid leave.

19 EN C 364/16 Official Journal of the European Communities Article 32 Prohibition of child labour and protection of young people at work The employment of children is prohibited. The minimum age of admission to employment may not be lower than the minimum school-leaving age, without prejudice to such rules as may be more favourable to young people and except for limited derogations. Young people admitted to work must have working conditions appropriate to their age and be protected against economic exploitation and any work likely to harm their safety, health or physical, mental, moral or social development or to interfere with their education. Article 33 Family and professional life 1. The family shall enjoy legal, economic and social protection. 2. To reconcile family and professional life, everyone shall have the right to protection from dismissal for a reason connected with maternity and the right to paid maternity leave and to parental leave following the birth or adoption of a child. Article 34 Social security and social assistance 1. The Union recognises and respects the entitlement to social security benefits and social services providing protection in cases such as maternity, illness, industrial accidents, dependency or old age, and in the case of loss of employment, in accordance with the rules laid down by Community law and national laws and practices. 2. Everyone residing and moving legally within the European Union is entitled to social security benefits and social advantages in accordance with Community law and national laws and practices. 3. In order to combat social exclusion and poverty, the Union recognises and respects the right to social and housing assistance so as to ensure a decent existence for all those who lack sufficient resources, in accordance with the rules laid down by Community law and national laws and practices. Article 35 Health care Everyone has the right of access to preventive health care and the right to benefit from medical treatment under the conditions established by national laws and practices. A high level of human health protection shall be ensured in the definition and implementation of all Union policies and activities.

20 EN Official Journal of the European Communities C 364/17 Article 36 Access to services of general economic interest The Union recognises and respects access to services of general economic interest as provided for in national laws and practices, in accordance with the Treaty establishing the European Community, in order to promote the social and territorial cohesion of the Union. Article 37 Environmental protection A high level of environmental protection and the improvement of the quality of the environment must be integrated into the policies of the Union and ensured in accordance with the principle of sustainable development. Article 38 Consumer protection Union policies shall ensure a high level of consumer protection.

21 EN C 364/18 Official Journal of the European Communities CHAPTER V CITIZENS RIGHTS Article 39 Right to vote and to stand as a candidate at elections to the European Parliament 1. Every citizen of the Union has the right to vote and to stand as a candidate at elections to the European Parliament in the Member State in which he or she resides, under the same conditions as nationals of that State. 2. Members of the European Parliament shall be elected by direct universal suffrage in a free and secret ballot. Article 40 Right to vote and to stand as a candidate at municipal elections Every citizen of the Union has the right to vote and to stand as a candidate at municipal elections in the Member State in which he or she resides under the same conditions as nationals of that State. Article 41 Right to good administration 1. Every person has the right to have his or her affairs handled impartially, fairly and within a reasonable time by the institutions and bodies of the Union. 2. This right includes: the right of every person to be heard, before any individual measure which would affect him or her adversely is taken; the right of every person to have access to his or her file, while respecting the legitimate interests of confidentiality and of professional and business secrecy; the obligation of the administration to give reasons for its decisions. 3. Every person has the right to have the Community make good any damage caused by its institutions or by its servants in the performance of their duties, in accordance with the general principles common to the laws of the Member States. 4. Every person may write to the institutions of the Union in one of the languages of the Treaties and must have an answer in the same language.

22 EN Official Journal of the European Communities C 364/19 Article 42 Right of access to documents Any citizen of the Union, and any natural or legal person residing or having its registered office in a Member State, has a right of access to European Parliament, Council and Commission documents. Article 43 Ombudsman Any citizen of the Union and any natural or legal person residing or having its registered office in a Member State has the right to refer to the Ombudsman of the Union cases of maladministration in the activities of the Community institutions or bodies, with the exception of the Court of Justice and the Court of First Instance acting in their judicial role. Article 44 Right to petition Any citizen of the Union and any natural or legal person residing or having its registered office in a Member State has the right to petition the European Parliament. Article 45 Freedom of movement and of residence 1. Every citizen of the Union has the right to move and reside freely within the territory of the Member States. 2. Freedom of movement and residence may be granted, in accordance with the Treaty establishing the European Community, to nationals of third countries legally resident in the territory of a Member State. Article 46 Diplomatic and consular protection Every citizen of the Union shall, in the territory of a third country in which the Member State of which he or she is a national is not represented, be entitled to protection by the diplomatic or consular authorities of any Member State, on the same conditions as the nationals of that Member State.

23 EN C 364/20 Official Journal of the European Communities CHAPTER VI JUSTICE Article 47 Right to an effective remedy and to a fair trial Everyone whose rights and freedoms guaranteed by the law of the Union are violated has the right to an effective remedy before a tribunal in compliance with the conditions laid down in this Article. Everyone is entitled to a fair and public hearing within a reasonable time by an independent and impartial tribunal previously established by law. Everyone shall have the possibility of being advised, defended and represented. Legal aid shall be made available to those who lack sufficient resources in so far as such aid is necessary to ensure effective access to justice. Article 48 Presumption of innocence and right of defence 1. Everyone who has been charged shall be presumed innocent until proved guilty according to law. 2. Respect for the rights of the defence of anyone who has been charged shall be guaranteed. Article 49 Principles of legality and proportionality of criminal offences and penalties 1. No one shall be held guilty of any criminal offence on account of any act or omission which did not constitute a criminal offence under national law or international law at the time when it was committed. Nor shall a heavier penalty be imposed than that which was applicable at the time the criminal offence was committed. If, subsequent to the commission of a criminal offence, the law provides for a lighter penalty, that penalty shall be applicable. 2. This Article shall not prejudice the trial and punishment of any person for any act or omission which, at the time when it was committed, was criminal according to the general principles recognised by the community of nations. 3. The severity of penalties must not be disproportionate to the criminal offence. Article 50 Right not to be tried or punished twice in criminal proceedings for the same criminal offence No one shall be liable to be tried or punished again in criminal proceedings for an offence for which he or she has already been finally acquitted or convicted within the Union in accordance with the law.

24 EN Official Journal of the European Communities C 364/21 CHAPTER VII GENERAL PROVISIONS Article 51 Scope 1. The provisions of this Charter are addressed to the institutions and bodies of the Union with due regard for the principle of subsidiarity and to the Member States only when they are implementing Union law. They shall therefore respect the rights, observe the principles and promote the application thereof in accordance with their respective powers. 2. This Charter does not establish any new power or task for the Community or the Union, or modify powers and tasks defined by the Treaties. Article 52 Scope of guaranteed rights 1. Any limitation on the exercise of the rights and freedoms recognised by this Charter must be provided for by law and respect the essence of those rights and freedoms. Subject to the principle of proportionality, limitations may be made only if they are necessary and genuinely meet objectives of general interest recognised by the Union or the need to protect the rights and freedoms of others. 2. Rights recognised by this Charter which are based on the Community Treaties or the Treaty on European Union shall be exercised under the conditions and within the limits defined by those Treaties. 3. In so far as this Charter contains rights which correspond to rights guaranteed by the Convention for the Protection of Human Rights and Fundamental Freedoms, the meaning and scope of those rights shall be the same as those laid down by the said Convention. This provision shall not prevent Union law providing more extensive protection. Article 53 Level of protection Nothing in this Charter shall be interpreted as restricting or adversely affecting human rights and fundamental freedoms as recognised, in their respective fields of application, by Union law and international law and by international agreements to which the Union, the Community or all the Member States are party, including the European Convention for the Protection of Human Rights and Fundamental Freedoms, and by the Member States constitutions.

25 EN C 364/22 Official Journal of the European Communities Article 54 Prohibition of abuse of rights Nothing in this Charter shall be interpreted as implying any right to engage in any activity or to perform any act aimed at the destruction of any of the rights and freedoms recognised in this Charter or at their limitation to a greater extent than is provided for herein.

26 DRAFT CHARTER OF FUNDAMENTAL RIGHTS OF THE EUROPEAN UNION Brussels, 11 October 2000 (18.10) (OR. fr) CHARTE 4473/00 CONVENT 49 NOTE FROM THE PRAESIDIUM Subject : Draft Charter of Fundamental Rights of the European Union Text of the explanations relating to the complete text of the Charter as set out in CHARTE 4487/00 CONVENT 50 These explanations have been prepared at the instigation of the Praesidium. They have no legal value and are simply intended to clarify the provisions of the Charter. PREAMBLE The peoples of Europe, in creating an ever closer union among them, are resolved to share a peaceful future based on common values. Conscious of its spiritual and moral heritage, the Union is founded on the indivisible, universal values of human dignity, freedom, equality and solidarity; it is based on the principles of democracy and the rule of law. It places the individual at the heart of its activities, by establishing the citizenship of the Union and by creating an area of freedom, security and justice. CHARTE 4473/00 ket/gbk/jrb 1 JUR EN

27 The Union contributes to the preservation and to the development of these common values while respecting the diversity of the cultures and traditions of the peoples of Europe as well as the national identities of the Member States and the organisation of their public authorities at national, regional and local levels; it seeks to promote balanced and sustainable development and ensures free movement of persons, goods, services and capital, and the freedom of establishment. To this end, it is necessary to strengthen the protection of fundamental rights in the light of changes in society, social progress and scientific and technological developments by making those rights more visible in a Charter. This Charter reaffirms, with due regard for the powers and tasks of the Community and the Union and the principle of subsidiarity, the rights as they result, in particular, from the constitutional traditions and international obligations common to the Member States, the Treaty on European Union, the Community Treaties, the European Convention for the Protection of Human Rights and Fundamental Freedoms, the Social Charters adopted by the Community and by the Council of Europe and the case law of the Court of Justice of the European Communities and of the European Court of Human Rights. Enjoyment of these rights entails responsibilities and duties with regard to other persons, to the human community and to future generations. The Union therefore recognises the rights, freedoms and principles set out hereafter. CHARTE 4473/00 ket/gbk/jrb 2 JUR EN

28 CHAPTER I. DIGNITY Article 1 Human dignity Human dignity is inviolable. It must be respected and protected. Explanation The dignity of the human person is not only a fundamental right in itself but constitutes the real basis of fundamental rights. The 1948 Universal Declaration of Human Rights enshrined this principle in its preamble: "Whereas recognition of the inherent dignity and of the equal and inalienable rights of all members of the human family is the foundation of freedom, justice and peace in the world." It results that none of the rights laid down in this Charter may be used to harm the dignity of another person, and that the dignity of the human person is part of the substance of the rights laid down in this Charter. It must therefore be respected, even where a right is restricted. Article 2 Right to life 1. Everyone has the right to life. 2. No one shall be condemned to the death penalty, or executed. CHARTE 4473/00 ket/gbk/jrb 3 JUR EN

29 Explanation 1. Paragraph 1 of this Article is based on the first sentence of Article 2(1) of the ECHR, which reads as follows: "1. Everyone's right to life shall be protected by law " 2. The second sentence of the provision, which referred to the death penalty, was superseded by the entry into force of Article 1 of Protocol No 6 to the ECHR, which reads as follows: "The death penalty shall be abolished. No-one shall be condemned to such penalty or executed." Article 2(2) of the Charter is based on that provision. 3. The provisions of Article 2 of the Charter correspond to those of the above Articles of the ECHR and its Protocol. They have the same meaning and the same scope, in accordance with Article 52(3) of the Charter. Therefore, the "negative" definitions appearing in the ECHR must be regarded as also forming part of the Charter: (a) Article 2(2) of the ECHR: "Deprivation of life shall not be regarded as inflicted in contravention of this article when it results from the use of force which is no more than absolutely necessary: (a) in defence of any person from unlawful violence; (b) in order to effect a lawful arrest or to prevent the escape of a person lawfully detained; (c) in action lawfully taken for the purpose of quelling a riot or insurrection." (b) Article 2 of Protocol No 6 to the ECHR: "A State may make provision in its law for the death penalty in respect of acts committed in time of war or of imminent threat of war; such penalty shall be applied only in the instances laid down in the law and in accordance with its provisions " CHARTE 4473/00 ket/gbk/jrb 4 JUR EN

30 Article 3 Right to the integrity of the person 1. Everyone has the right to respect for his or her physical and mental integrity. 2. In the fields of medicine and biology, the following must be respected in particular: the free and informed consent of the person concerned, according to the procedures laid down by law, the prohibition of eugenic practices, in particular those aiming at the selection of persons, the prohibition on making the human body and its parts as such a source of financial gain, the prohibition of the reproductive cloning of human beings. Explanation The principles of Article 3 of the Charter are already included in the Convention on Human Rights and Biomedicine, adopted by the Council of Europe (ETS 164 and additional protocol ETS 168). The Charter does not set out to depart from those principles, and therefore prohibits only reproductive cloning. It neither authorises nor prohibits other forms of cloning. Thus it does not in any way prevent the legislature from prohibiting other forms of cloning. CHARTE 4473/00 ket/gbk/jrb 5 JUR EN

31 2. The reference to eugenic practices, in particular those aiming at the selection of persons, relates to possible situations in which selection programmes are organised and implemented, involving campaigns for sterilisation, forced pregnancy, compulsory ethnic marriage among others, all acts deemed to be international crimes in the Statute of the International Criminal Court adopted in Rome on 17 July 1998 (see its Article 7(1)(g)). Article 4 Prohibition of torture and inhuman or degrading treatment or punishment No one shall be subjected to torture or to inhuman or degrading treatment or punishment. Explanation The right in Article 4 is the right guaranteed by Article 3 of the ECHR, which has the same wording: "No one shall be subjected to torture or to inhuman or degrading treatment or punishment". By virtue of Article 52(3) of the Charter, it therefore has the same meaning and the same scope as the ECHR Article. Article 5 Prohibition of slavery and forced labour 1. No one shall be held in slavery or servitude. 2. No one shall be required to perform forced or compulsory labour. 3. Trafficking in human beings is prohibited. CHARTE 4473/00 ket/gbk/jrb 6 JUR EN

32 Explanation 1. The right in Article 5(1) and (2) corresponds to Article 4(1) and (2) of the ECHR, which has the same wording. It therefore has the same meaning and scope as the ECHR Article, by virtue of Article 52(3) of the Charter. Consequently: no limitation may legitimately affect the right provided for in paragraph 1; in paragraph 2, "forced or compulsory labour" must be understood in the light of the "negative" definitions contained in Article 4(3) of the ECHR: "For the purpose of this article the term "forced or compulsory labour" shall not include: (a) any work required to be done in the ordinary course of detention imposed according to the provisions of Article 5 of this Convention or during conditional release from such detention; (b) any service of a military character or, in case of conscientious objectors in countries where they are recognised, service exacted instead of compulsory military service; (c) any service exacted in case of an emergency or calamity threatening the life or well-being of the community; (d) any work or service which forms part of normal civic obligations." 2. Paragraph 3 stems directly from the principle of human dignity and takes account of recent developments in organised crime, such as the organisation of lucrative illegal immigration or sexual exploitation networks. The annex to the Europol Convention contains the following definition which refers to trafficking for the purpose of sexual exploitation: "traffic in human beings: means subjection of a person to the real and illegal sway of other persons by using violence or menaces or by abuse of authority or intrigue with a view to the exploitation of prostitution, forms of sexual exploitation and assault of minors or trade in abandoned children". Chapter VI of the Convention implementing the Schengen Agreement, which has been integrated into the "acquis communautaire", in which the United Kingdom participates CHARTE 4473/00 ket/gbk/jrb 7 JUR EN

33 and Ireland has requested to participate, contains the following wording in Article 27(1) which refers to illegal immigration networks: " The Contracting Parties undertake to impose appropriate penalties on any person who, for financial gain, assists or tries to assist an alien to enter or reside within the territory of one of the Contracting Parties in breach of that Contracting Party's laws on the entry and residence of aliens." CHAPTER II. FREEDOMS Article 6 Right to liberty and security Everyone has the right to liberty and security of person. Explanation The rights in Article 6 are the rights guaranteed by Article 5 of the ECHR, and in accordance with Article 52(3) of the Charter, they have the same meaning and scope. Consequently, the limitations which may legitimately be imposed on them may not exceed those permitted by the ECHR, in the wording of Article 5: "1. Everyone has the right to liberty and security of person. No one shall be deprived of his liberty save in the following cases and in accordance with a procedure prescribed by law: (a) the lawful detention of a person after conviction by a competent court; (b) the lawful arrest or detention of a person for non-compliance with the lawful order of a court or in order to secure the fulfilment of any obligation prescribed by law; CHARTE 4473/00 ket/gbk/jrb 8 JUR EN

34 (c) (d) (e) (f) the lawful arrest or detention of a person effected for the purpose of bringing him before the competent legal authority on reasonable suspicion of having committed an offence or when it is reasonably considered necessary to prevent his committing an offence or fleeing after having done so; the detention of a minor by lawful order for the purpose of educational supervision or his lawful detention for the purpose of bringing him before the competent legal authority; the lawful detention of persons for the prevention of the spreading of infectious diseases, of persons of unsound mind, alcoholics or drug addicts or vagrants; the lawful arrest or detention of a person to prevent his effecting an unauthorised entry into the country or of a person against whom action is being taken with a view to deportation or extradition. 2. Everyone who is arrested shall be informed promptly, in a language which he understands, of the reasons for his arrest and of any charge against him. 3. Everyone arrested or detained in accordance with the provisions of paragraph 1.c of this article shall be brought promptly before a judge or other officer authorised by law to exercise judicial power and shall be entitled to trial within a reasonable time or to release pending trial. Release may be conditioned by guarantees to appear for trial. 4. Everyone who is deprived of his liberty by arrest or detention shall be entitled to take proceedings by which the lawfulness of his detention shall be decided speedily by a court and his release ordered if the detention is not lawful. 5. Everyone who has been the victim of arrest or detention in contravention of the provisions of this article shall have an enforceable right to compensation." Since the Charter is to apply within the context of the Union, the rights enshrined in Article 6 must be respected particularly when, in accordance with Title VI of the Treaty on European Union, the Union is adopting framework decisions to define common minimum provisions as regards the categorisation of offences and punishments. CHARTE 4473/00 ket/gbk/jrb 9 JUR EN

35 Article 7 Respect for private and family life Everyone has the right to respect for his or her private and family life, home and communications. Explanation The rights guaranteed in Article 7 correspond to those guaranteed by Article 8 of the ECHR. To take account of developments in technology the word "correspondence" has been replaced by "communications". In accordance with Article 52(3), the meaning and scope of this right are the same as those of the corresponding article of the ECHR. Consequently, the limitations which may legitimately be imposed on this right are the same as those allowed by Article 8 of the ECHR: "1. Everyone has the right to respect for his private and family life, his home and his correspondence. 2. There shall be no interference by a public authority with the exercise of this right except such as is in accordance with the law and is necessary in a democratic society in the interests of national security, public safety or the economic well-being of the country, for the prevention of disorder or crime, for the protection of health or morals, or for the protection of the rights and freedoms of others." Article 8 Protection of personal data 1. Everyone has the right to the protection of personal data concerning him or her. CHARTE 4473/00 ket/gbk/jrb 10 JUR EN

36 2. Such data must be processed fairly for specified purposes and on the basis of the consent of the person concerned or some other legitimate basis laid down by law. Everyone has the right of access to data which has been collected concerning him or her, and the right to have it rectified. 3. Compliance with these rules shall be subject to control by an independent authority. Explanation This Article is based on Article 286 of the Treaty establishing the European Community and Directive 95/46/EC of the European Parliament and of the Council on the protection of individuals with regard to the processing of personal data and on the free movement of such data (OJ L 281, ) as well as on Article 8 of the ECHR and on the Council of Europe Convention of 28 January 1981 for the Protection of Individuals with regard to Automatic Processing of Personal Data, which has been ratified by all the Member States. The right to protection of personal data is to be exercised under the conditions laid down in the above Directive, and may be limited under the conditions set out by Article 52 of the Charter. Article 9 Right to marry and right to found a family The right to marry and the right to found a family shall be guaranteed in accordance with the national laws governing the exercise of these rights. CHARTE 4473/00 ket/gbk/jrb 11 JUR EN

37 Explanation 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 to found a family according to the national laws governing the exercising of this right." The wording of the Article has been modernised to cover cases in which national legislation recognises arrangements other than marriage for founding a family. This Article neither prohibits nor imposes the granting of the status of marriage to unions between people of the same sex. This right is thus similar to that afforded by the ECHR, but its scope may be wider when national legislation so provides. Article 10 Freedom of thought, conscience and religion 1. Everyone has the right to freedom of thought, conscience and religion. This right includes freedom to change religion or belief and freedom, either alone or in community with others and in public or in private, to manifest religion or belief, in worship, teaching, practice and observance. 2. The right to conscientious objection is recognised, in accordance with the national laws governing the exercise of this right. Explanation The right guaranteed in paragraph 1 corresponds to the right guaranteed in Article 9 of the ECHR and, in accordance with Article 52(3) of the Charter, has the same meaning and scope. Limitations must therefore respect Article 9(2) of the Convention, which reads as follows: "Freedom to manifest one's religion or beliefs shall be subject only to such limitations as are prescribed by law and are necessary in a democratic society in the interests of public safety, for the protection of public order, health or morals, or for the protection of the rights and freedoms of others." CHARTE 4473/00 ket/gbk/jrb 12 JUR EN

38 The right guaranteed in paragraph 2 corresponds to national constitutional traditions and to the development of national legislation on this issue. Article 11 Freedom of expression and information 1. Everyone has the right to freedom of expression. This right shall include freedom to hold opinions and to receive and impart information and ideas without interference by public authority and regardless of frontiers. 2. The freedom and pluralism of the media shall be respected. Explanation 1. Article 11 corresponds to Article 10 of the European Convention on Human Rights, which reads as follows: "1. Everyone has the right to freedom of expression. This right shall include freedom to hold opinions and to receive and impart information and ideas without interference by public authority and regardless of frontiers. This article shall not prevent States from requiring the licensing of broadcasting, television or cinema enterprises. 2. The exercise of these freedoms, since it carries with it duties and responsibilities, may be subject to such formalities, conditions, restrictions or penalties as are prescribed by law and are necessary in a democratic society, in the interests of national security, territorial integrity or public safety, for the prevention of disorder or crime, for the protection of health or morals, for the protection of the reputation or rights of others, for preventing the disclosure of information received in confidence, or for maintaining the authority and impartiality of the judiciary." CHARTE 4473/00 ket/gbk/jrb 13 JUR EN

39 Pursuant to Article 52(3) of the Charter, the meaning and scope of this right are the same as those guaranteed by the ECHR. The limitations which may be imposed on it may therefore not exceed those provided for in Article 10(2) of the Convention, without prejudice to any restrictions which Community competition law may impose on Member States' right to introduce the licensing arrangements referred to in the third sentence of Article 10(1) of the ECHR. 2. Paragraph 2 of this Article spells out the consequences of paragraph 1 regarding freedom of the media. It is based in particular on Court of Justice case law regarding television, particularly in case C-288/89 (judgment of 25 July 1991, Stichting Collectieve Antennevoorziening Gouda and others [1991] ECR I-4007), and on the Protocol on the system of public broadcasting in the Member States annexed to the EC Treaty, and on Council Directive 89/552/EC (particularly its seventeenth recital). Article 12 Freedom of assembly and of association 1. Everyone has the right to freedom of peaceful assembly and to freedom of association at all levels, in particular in political, trade union and civic matters, which implies the right of everyone to form and to join trade unions for the protection of his or her interests. 2. Political parties at Union level contribute to expressing the political will of the citizens of the Union. Explanation Paragraph 1 of this Article corresponds to Article 11 of the ECHR, which reads as follows: "1. Everyone has the right to freedom of peaceful assembly and to freedom of association with others, including the right to form and to join trade unions for the protection of his interests. CHARTE 4473/00 ket/gbk/jrb 14 JUR EN

40 2. No restrictions shall be placed on the exercise of these rights other than such as are prescribed by law and are necessary in a democratic society in the interests of national security or public safety, for the prevention of disorder or crime, for the protection of health or morals or for the protection of the rights and freedoms of others. This article shall not prevent the imposition of lawful restrictions on the exercise of these rights by members of the armed forces, of the police or of the administration of the State.". The meaning of the provisions of paragraph 1 is the same as that of the ECHR, but their scope is wider since they apply at all levels including European level. In accordance with Article 52(3) of the Charter, limitations on that right may not exceed those considered legitimate by virtue of Article 11(2) of the ECHR. 2. This right is also based on Article 11 of the Community Charter of the Fundamental Social Rights of Workers. 3. Paragraph 2 of this Article corresponds to Article 191 of the Treaty establishing the European Community. Article 13 Freedom of the arts and sciences The arts and scientific research shall be free of constraint. Academic freedom shall be respected. Explanation This right is deduced primarily from the right to freedom of thought and expression. It is to be exercised having regard to Article 1 and may be subject to the limitations authorised by Article 10 of the ECHR. CHARTE 4473/00 ket/gbk/jrb 15 JUR EN

41 Article 14 Right to education 1. Everyone has the right to education and to have access to vocational and continuing training. 2. This right includes the possibility to receive free compulsory education. 3. The freedom to found educational establishments with due respect for democratic principles and the right of parents to ensure the education and teaching of their children in conformity with their religious, philosophical and pedagogical convictions shall be respected, in accordance with the national laws governing the exercise of such freedom and right. Explanation 1. This Article is based on the common constitutional traditions of Member States and on Article 2 of the Protocol to the ECHR, which reads as follows: "No person shall be denied the right to education. In the exercise of any functions which it assumes in relation to education and to teaching, the State shall respect the right of parents to ensure such education and teaching in conformity with their own religious and philosophical convictions." It was considered useful to extend this right to vocational and continuing training (see point 15 of the Community Charter of the Fundamental Social Rights of Workers and Article 10 of the Social Charter) and to add the principle of free compulsory education. As it is worded, the latter principle merely implies that as regards compulsory education, each child has the possibility of attending an establishment which offers free education. It does not require all establishments which provide education, in particular private ones, to be free of charge. Nor does it exclude certain specific forms of education having to be paid for, if the State takes measures to grant financial compensation. Insofar as the Charter applies to the Union, CHARTE 4473/00 ket/gbk/jrb 16 JUR EN

42 this means that in its training policies the Union must respect free compulsory education, but this does not, of course, create new powers. Regarding the right of parents, it must be interpreted in conjunction with the provisions of Article Freedom to found public or private educational establishments is guaranteed as one of the aspects of freedom to conduct a business but it is limited by respect for democratic principles and is exercised in accordance with the arrangements defined by national legislation. Article 15 Freedom to choose an occupation and right to engage in work 1. Everyone has the right to engage in work and to pursue a freely chosen or accepted occupation. 2. Every citizen of the Union has the freedom to seek employment, to work, to exercise the right of establishment and to provide services in any Member State. 3. Nationals of third countries who are authorised to work in the territories of the Member States are entitled to working conditions equivalent to those of citizens of the Union. Explanation Freedom to choose an occupation, as enshrined in Article 15(1), is recognised in Court of Justice case law (see inter alia judgment of 14 May 1974, Case 4/73 Nold [1974] ECR 491, paragraphs 12 to 14 of the grounds; judgment of 13 December 1979, Case 44/79 Hauer [1979] ECR 3727; judgment of 8 October 1986, Case 234/85 Keller [1986] ECR 2897, paragraph 8 of the grounds). CHARTE 4473/00 ket/gbk/jrb 17 JUR EN

43 This paragraph also draws upon Article 1(2) of the European Social Charter, which was signed on 18 October 1961 and has been ratified by all the Member States, and on point 4 of the Community Charter of the Fundamental Social Rights of Workers of 9 December The expression "working conditions" is to be understood in the sense of Article 140 of the EC Treaty. The second paragraph deals with the three freedoms guaranteed by Articles 39, 43 and 49 et seq of the EC Treaty, namely freedom of movement for workers, freedom of establishment and freedom to provide services. The third paragraph is based on TEC Article 137(3), fourth indent, and on Article 19(4) of the European Social Charter signed on 18 October 1961 and ratified by all the Member States. Article 52(2) of the Charter is therefore applicable. The question of recruitment of seamen having the nationality of third States for the crews of vessels flying the flag of a Member State of the Union is governed by Community law and national legislation and practice. Article 16 Freedom to conduct a business The freedom to conduct a business in accordance with Community law and national laws and practices is recognised. Explanation This Article is based on Court of Justice case law which has recognised freedom to exercise an economic or commercial activity (see judgments of 14 May 1974, Case 4/73 Nold [1974] ECR 491, paragraph 14 of the grounds, and of 27 September 1979, Case SPA Eridiana and others [1979] ECR 2749, paragraphs 20 and 31 of the grounds) and freedom of contract (see inter alia Sukkerfabriken Nykøbing judgment, Case 151/78 [1979] ECR 1, paragraph 19 of the grounds, and judgment of 5 October 1999, C-240/97 Spain v. Commission [not yet published], paragraph 99 of CHARTE 4473/00 ket/gbk/jrb 18 JUR EN

44 the grounds) and TEC Article 4(1) and (2), which recognises free competition. Of course, this right is to be exercised with respect for Community law and national legislation. It may be subject to the limitations provided for in Article 52(1) of the Charter. Article 17 Right to property 1. Everyone has the right to own, use, dispose of and bequeath his or her lawfully acquired possessions. No one may be deprived of his or her possessions, except in the public interest and in the cases and under the conditions provided for by law, subject to fair compensation being paid in good time for their loss. The use of property may be regulated by law insofar as is necessary for the general interest. 2. Intellectual property shall be protected. Explanation This Article is based on Article 1 of the Protocol to the ECHR: "Every natural or legal person is entitled to the peaceful enjoyment of his possessions. No one shall be deprived of his possessions except in the public interest and subject to the conditions provided for by law and by the general principles of international law. The preceding provisions shall not, however, in any way impair the right of a State to enforce such laws as it deems necessary to control the use of property in accordance with the general interest or to secure the payment of taxes or other contributions or penalties." CHARTE 4473/00 ket/gbk/jrb 19 JUR EN

45 This is a fundamental right common to all national constitutions. It has been recognised on numerous occasions by the case law of the Court of Justice, initially in the Hauer judgment (13 December 1979, ECR [1979] 3727). The wording has been updated but, in accordance with Article 52(3), the meaning and scope of the right are the same as those of the right guaranteed by the ECHR and the limitations may not exceed those provided for there. Protection of intellectual property, one aspect of the right of property, is explicitly mentioned in paragraph 2 because of its growing importance and Community secondary legislation. Intellectual property covers not only literary and artistic property but also patent and trademark rights and associated rights. The guarantees laid down in paragraph 1 shall apply as appropriate to intellectual property. Article 18 Right to asylum The right to asylum shall be guaranteed with due respect for the rules of the Geneva Convention of 28 July 1951 and the Protocol of 31 January 1967 relating to the status of refugees and in accordance with the Treaty establishing the European Community. Explanation The text of the Article is based on TEC Article 63 which requires the Union to respect the Geneva Convention on refugees. Reference should be made to the Protocols relating to the United Kingdom and Ireland annexed to the Treaty of Amsterdam and to Denmark to determine the extent to which those Member States implement Community law in this area and the extent to which this Article is applicable to them. This Article is in line with the Protocol on Asylum annexed to the EC Treaty. CHARTE 4473/00 ket/gbk/jrb 20 JUR EN

46 Article 19 Protection in the event of removal, expulsion or extradition 1. Collective expulsions are prohibited. 2. No one may be removed, expelled or extradited to a State where there is a serious risk that he or she would be subjected to the death penalty, torture or other inhuman or degrading treatment or punishment. Explanation Paragraph 1 of this Article has the same meaning and scope as Article 4 of Protocol No 4 to the ECHR concerning collective expulsion. Its purpose is to guarantee that every decision is based on a specific examination and that no single measure can be taken to expel all persons having the nationality of a particular State (see also Article 13 of the Covenant on Civil and Political Rights). Paragraph 2 incorporates case law from the European Court of Human Rights regarding Article 3 of the ECHR (see Ahmed v. Austria, judgment of 17 December 1996, [1996] ECR VI-2206 and Soering, judgment of 7 July 1989). CHARTE 4473/00 ket/gbk/jrb 21 JUR EN

47 CHAPTER III. EQUALITY Article 20 Equality before the law Everyone is equal before the law. Explanation This Article corresponds to a principle which is included in all European constitutions and has also been recognised by the Court of Justice as a basic principle of Community law (judgment of 13 November 1984, Case 283/83 Racke [1984] ECR 3791, judgment of 17 April 1997, Case 15/95 EARL [1997] ECR I 1961, and judgment of 13 April 2000, Case 292/97 Karlsson, not yet published). Article 21 Non-discrimination 1. Any discrimination based on any ground such as sex, race, colour, ethnic or social origin, genetic features, language, religion or belief, political or any other opinion, membership of a national minority, property, birth, disability, age or sexual orientation shall be prohibited. 2. Within the scope of application of the Treaty establishing the European Community and of the Treaty on European Union, and without prejudice to the special provisions of those Treaties, any discrimination on grounds of nationality shall be prohibited. CHARTE 4473/00 ket/gbk/jrb 22 JUR EN

48 Explanation Paragraph 1 draws on Article 13 of the EC Treaty, Article 14 of the ECHR and Article 11 of the Convention on Human Rights and Biomedicine as regards genetic heritage. Insofar as this corresponds to Article 14 of the ECHR, it applies in compliance with it. Paragraph 2 corresponds to Article 12 of the EC Treaty and must be applied in compliance with the Treaty. Article 22 Cultural, religious and linguistic diversity The Union shall respect cultural, religious and linguistic diversity. Explanation This Article is based on Article 6 of the Treaty on European Union and on Article 151(1) and (4) of the EC Treaty concerning culture. It is also inspired by declaration No 11 to the Final Act of the Amsterdam Treaty on the status of churches and non-confessional organisations. Article 23 Equality between men and women Equality between men and women must be ensured in all areas, including employment, work and pay. CHARTE 4473/00 ket/gbk/jrb 23 JUR EN

49 The principle of equality shall not prevent the maintenance or adoption of measures providing for specific advantages in favour of the under-represented sex. Explanation The first paragraph is based on Articles 2 and 3(2) of the EC Treaty, which impose the objective of promoting equality between men and women on the Community, and on Article 141(3) of the EC Treaty. It draws on Article 20 of the revised European Social Charter of 3 May 1996 and on point 16 of the Community Charter on the rights of workers. It is also based on Article 141(3) of the EC Treaty and Article 2(4) of Council Directive 76/207/EEC on the implementation of the principle of equal treatment for men and women as regards access to employment, vocational training and promotion, and working conditions. Paragraph 2 takes over in shorter form Article 141(4) of the EC Treaty which provides that the principle of equal treatment does not prevent the maintenance or adoption of measures providing for specific advantages in order to make it easier for the under-represented sex to pursue a vocational activity or to prevent or compensate for disadvantages in professional careers. In accordance with Article 51(2), the present paragraph does not amend Article 141(4) EC. Article 24 The rights of the child 1. Children shall have the right to such protection and care as is necessary for their well-being. They may express their views freely. Such views shall be taken into consideration on matters which concern them in accordance with their age and maturity. CHARTE 4473/00 ket/gbk/jrb 24 JUR EN

50 2. In all actions relating to children, whether taken by public authorities or private institutions, the child's best interests must be a primary consideration. 3. Every child shall have the right to maintain on a regular basis a personal relationship and direct contact with both his or her parents, unless that is contrary to his or her interests. Explanation This Article is based on the New York Convention on the Rights of the Child signed on 20 November 1989 and ratified by all the Member States, particularly Articles 3, 9, 12 and 13 thereof. Article 25 The rights of the elderly The Union recognises and respects the rights of the elderly to lead a life of dignity and independence and to participate in social and cultural life. Explanation This Article draws on Article 23 of the revised European Social Charter and Articles 24 and 25 of the Community Charter of the Fundamental Social Rights of Workers. Of course, participation in social and cultural life also covers participation in political life. CHARTE 4473/00 ket/gbk/jrb 25 JUR EN

51 Article 26 Integration of persons with disabilities The Union recognises and respects the right of persons with disabilities to benefit from measures designed to ensure their independence, social and occupational integration and participation in the life of the community. Explanation The principle set out in this Article is based on Article 15 of the European Social Charter and also draws on Article 23 of the revised Social Charter and point 26 of the Community Charter of the Fundamental Social Rights of Workers. CHAPTER IV. SOLIDARITY Article 27 Workers' right to information and consultation within the undertaking Workers or their representatives must, at the appropriate levels, be guaranteed information and consultation in good time in the cases and under the conditions provided for by Community law and national laws and practices. CHARTE 4473/00 ket/gbk/jrb 26 JUR EN

52 Explanation This Article appears in the revised European Social Charter (Article 21) and in the Community Charter on the rights of workers (points 17 and 18). It applies under the conditions laid down by Community law and by national laws. The reference to appropriate levels refers to the levels laid down by Community law or by national laws and practices, which might include the European level when Community legislation so provides. There is a considerable Community acquis in this field: Articles 138 and 139 of the EC Treaty, and Directives 98/59/EC (collective redundancies), 77/187/EEC (transfers of undertakings) and 94/45/EC (European works councils). Article 28 Right of collective bargaining and action Workers and employers, or their respective organisations, have, in accordance with Community law and national laws and practices, the right to negotiate and conclude collective agreements at the appropriate levels and, in cases of conflicts of interest, to take collective action to defend their interests, including strike action. Explanation This Article is based on Article 6 of the European Social Charter and on the Community Charter of the Fundamental Social Rights of Workers (points 12 to 14). The right of collective action was recognised by the European Court of Human Rights as one of the elements of trade union rights laid down by Article 11 of the ECHR. As regards the appropriate levels at which collective negotiation might take place, see the explanation given for the above Article. Collective action, including strike action, comes under national laws and practices, including the question of whether it may be carried out in parallel in several Member States. CHARTE 4473/00 ket/gbk/jrb 27 JUR EN

53 Article 29 Right of access to placement services Everyone has the right of access to a free placement service. Explanation This Article is based on Article 1(3) of the European Social Charter and point 13 of the Community Charter of the Fundamental Social Rights of Workers. Article 30 Protection in the event of unjustified dismissal Every worker has the right to protection against unjustified dismissal, in accordance with Community law and national laws and practices. Explanation This Article draws on Article 24 of the revised Social Charter. See also Directive 77/187/EEC on the safeguarding of employees' rights in the event of transfers of undertakings, and Directive 80/987/EEC on the protection of employees in the event of the insolvency of their employer. CHARTE 4473/00 ket/gbk/jrb 28 JUR EN

54 Article 31 Fair and just working conditions 1. Every worker has the right to working conditions which respect his or her health, safety and dignity. 2. Every worker has the right to limitation of maximum working hours, to daily and weekly rest periods and to an annual period of paid leave. Explanation 1. This Article is based on Directive 89/391/EEC on the introduction of measures to encourage improvements in the safety and health of workers at work. It also draws on Article 3 of the Social Charter and point 19 of the Community Charter on the rights of workers, and, as regards dignity at work, on Article 26 of the revised Social Charter. The expression "working conditions" must be understood in the sense of Article 140 of the EC Treaty. 2. Paragraph 2 is based on Directive 93/104/EC concerning certain aspects of the organisation of working time, Article 2 of the European Social Charter and point 8 of the Community Charter on the rights of workers. Article 32 Prohibition of child labour and protection of young people at work The employment of children is prohibited. The minimum age of admission to employment may not be lower than the minimum school-leaving age, without prejudice to such rules as may be more favourable to young people and except for limited derogations. CHARTE 4473/00 ket/gbk/jrb 29 JUR EN

55 Young people admitted to work must have working conditions appropriate to their age and be protected against economic exploitation and any work likely to harm their safety, health or physical, mental, moral or social development or to interfere with their education. Explanation This Article is based on Directive 94/33/EC on the protection of young people at work, Article 7 of the European Social Charter and points 20 to 23 of the Community Charter of the Fundamental Social Rights of Workers. Article 33 Family and professional life 1. The family shall enjoy legal, economic and social protection. 2. To reconcile family and professional life, everyone shall have the right to protection from dismissal for a reason connected with maternity and the right to paid maternity leave and to parental leave following the birth or adoption of a child. Explanation Article 33(1) is based on Article 16 of the European Social Charter. The second paragraph draws on Council Directive 92/85/EEC on the introduction of measures to encourage improvements in the safety and health at work of pregnant workers and workers who have recently given birth or are breastfeeding and Directive 96/34/EC on the framework agreement on parental leave concluded by UNICE, CEEP and the ETUC. It is also based on Article 8 (protection of maternity) CHARTE 4473/00 ket/gbk/jrb 30 JUR EN

56 of the European Social Charter and draws on Article 27 (right of workers with family responsibilities to equal opportunities and equal treatment) of the revised Social Charter. "Maternity" covers the period from conception to weaning. Article 34 Social security and social assistance 1. The Union recognises and respects the entitlement to social security benefits and social services providing protection in cases such as maternity, illness, industrial accidents, dependency or old age, and in the case of loss of employment, in accordance with the rules laid down by Community law and national laws and practices. 2. Everyone residing and moving legally within the European Union is entitled to social security benefits and social advantages in accordance with Community law and national laws and practices. 3. In order to combat social exclusion and poverty, the Union recognises and respects the right to social and housing assistance so as to ensure a decent existence for all those who lack sufficient resources, in accordance with the rules laid down by Community law and national laws and practices. Explanation The principle set out in Article 34(1) is based on Articles 137 and 140 of the EC Treaty and on Article 12 of the European Social Charter and point 10 of the Community Charter on the rights of workers. The Union must respect it when exercising the powers conferred on it by Article 140 of the Treaty establishing the European Community. The reference to social services relates to cases in which such services have been introduced to provide certain advantages but does not imply that CHARTE 4473/00 ket/gbk/jrb 31 JUR EN

57 such services must be created where they do not exist. "Maternity" must be understood in the same sense as in the preceding Article. The second paragraph is based on Article 13(4) of the European Social Charter and point 2 of the Community Charter of the Fundamental Social Rights of Workers and reflects the rules arising from Regulation No 1408/71 and Regulation No 1612/68. The third paragraph draws on Articles 30 and 31 of the revised Social Charter and point 10 of the Community Charter. The Union must respect it in the context of policies based on Article 137(2) of the Treaty establishing the European Community, particularly the last subparagraph. Article 35 Health care Everyone has the right of access to preventive health care and the right to benefit from medical treatment under the conditions established by national laws and practices. A high level of human health protection shall be ensured in the definition and implementation of all Union policies and activities. Explanation The principles set out in this Article are based on Article 152 of the EC Treaty and on Article 11 of the European Social Charter. The second sentence of the Article takes over Article 152(1). CHARTE 4473/00 ket/gbk/jrb 32 JUR EN

58 Article 36 Access to services of general economic interest The Union recognises and respects access to services of general economic interest as provided for in national laws and practices, in accordance with the Treaty establishing the European Community, in order to promote the social and territorial cohesion of the Union. Explanation This Article fully respects Article 16 of the Treaty establishing the European Community and does not create any new right. It merely sets out the principle of respect by the Union for the access to services of general economic interest as provided for by national provisions, when those provisions are compatible with Community legislation. Article 37 Environmental protection A high level of environmental protection and the improvement of the quality of the environment must be integrated into the policies of the Union and ensured in accordance with the principle of sustainable development. Explanation The principles set out in this Article are based on Articles 2, 6 and 174 of the EC Treaty. It also draws on the provisions of some national constitutions. CHARTE 4473/00 ket/gbk/jrb 33 JUR EN

59 Article 38 Consumer Protection Union policies shall ensure a high level of consumer protection. Explanation The principles set out in this Article are based on Article 153 of the EC Treaty. CHAPTER V. CITIZENS' RIGHTS Article 39 Right to vote and to stand as a candidate at elections to the European Parliament 1. Every citizen of the Union has the right to vote and to stand as a candidate at elections to the European Parliament in the Member State in which he or she resides, under the same conditions as nationals of that State. 2. Members of the European Parliament shall be elected by direct universal suffrage in a free and secret ballot. CHARTE 4473/00 ket/gbk/jrb 34 JUR EN

60 Explanation Article 39 applies under the conditions laid down by the Treaty, in accordance with Article 52(2) of the Charter. Article 39(1) corresponds to the right guaranteed in Article 19(2) of the EC Treaty and Article 39(2) corresponds to Article 190(1) of that Treaty. Article 39(2) takes over the basic principles of the electoral system in a democratic State. Article 40 Right to vote and to stand as a candidate at municipal elections Every citizen of the Union has the right to vote and to stand as a candidate at municipal elections in the Member State in which he or she resides under the same conditions as nationals of that State. Explanation This Article corresponds to the right guaranteed by Article 19(1) of the EC Treaty. In accordance with Article 52(2) of the Charter, it applies under the conditions set out in the Treaty. Article 41 Right to good administration 1. Every person has the right to have his or her affairs handled impartially, fairly and within a reasonable time by the institutions and bodies of the Union. CHARTE 4473/00 ket/gbk/jrb 35 JUR EN

61 2. This right includes: the right of every person to be heard, before any individual measure which would affect him or her adversely is taken; the right of every person to have access to his or her file, while respecting the legitimate interests of confidentiality and of professional and business secrecy; the obligation of the administration to give reasons for its decisions. 3. Every person has the right to have the Community make good any damage caused by its institutions or by its servants in the performance of their duties, in accordance with the general principles common to the laws of the Member States. 4. Every person may write to the institutions of the Union in one of the languages of the Treaties and must have an answer in the same language. Explanation Article 41 is based on the existence of a Community subject to the rule of law whose characteristics were developed in the case law which enshrined inter alia the principle of good administration (see inter alia Court of Justice judgment of 31 March 1992 in Case C-255/90 P, Burban [1992] ECR I-2253, and Court of First Instance judgments of 18 September 1995 in Case T-167/94 Nölle [1995] ECR II-2589, and 9 July 1999 in Case T-231/97 New Europe Consulting and others [1999] ECR II-2403). The wording for that right in the first two paragraphs results from the case law (Court of Justice judgment of 15 October 1987 in Case 222/86 Heylens [1987] ECR 4097, paragraph 15 of the grounds, judgment of 18 October 1989 in Case 374/87 Orkem [1989] ECR 3283, judgment of 21 November 1991 in Case C-269/90 TU München [1991] ECR I-5469, and Court of First Instance judgments of 6 December 1994 in Case T-450/93 Lisrestal [1994] ECR II-1177, 18 September 1995 in Case T-167/94 Nölle [1995] ECR II-258), and the wording regarding the obligation to give reasons comes from Article 253 of the EC Treaty. CHARTE 4473/00 ket/gbk/jrb 36 JUR EN

62 Paragraph 3 reproduces the right guaranteed by Article 288 of the EC Treaty. Paragraph 4 reproduces the right guaranteed by the third paragraph of Article 21 of the EC Treaty. In accordance with Article 52(2) of the Charter, those rights are to be applied under the conditions and within the limits defined by the Treaties. The right to an effective remedy, which is an important aspect of this question, is guaranteed in Article 47 of this Charter. Article 42 Right of access to documents Any citizen of the Union, and any natural or legal person residing or having its registered office in a Member State, has a right of access to European Parliament, Council and Commission documents. Explanation The right guaranteed in this Article is the right guaranteed by Article 255 of the EC Treaty. In accordance with Article 52(2) of the Charter, it applies under the conditions defined by the Treaty. CHARTE 4473/00 ket/gbk/jrb 37 JUR EN

63 Article 43 Ombudsman Any citizen of the Union and any natural or legal person residing or having its registered office in a Member State has the right to refer to the Ombudsman of the Union cases of maladministration in the activities of the Community institutions or bodies, with the exception of the Court of Justice and the Court of First Instance acting in their judicial role. Explanation The right guaranteed in this Article is the right guaranteed by Articles 21 and 195 of the EC Treaty. In accordance with Article 52(2) of the Charter, it applies under the conditions defined by the Treaty. Article 44 Right to petition Any citizen of the Union and any natural or legal person residing or having its registered office in a Member State has the right to petition the European Parliament. Explanation The right guaranteed in this Article is the right guaranteed by Articles 21 and 194 of the EC Treaty. In accordance with Article 52(2) of the Charter, it applies under the conditions defined by the Treaty. CHARTE 4473/00 ket/gbk/jrb 38 JUR EN

64 Article 45 Freedom of movement and of residence 1. Every citizen of the Union has the right to move and reside freely within the territory of the Member States. 2. Freedom of movement and residence may be granted, in accordance with the Treaty establishing the European Community, to nationals of third countries legally resident in the territory of a Member State. Explanation The right guaranteed by paragraph 1 is the right guaranteed by Article 18 of the EC Treaty. In accordance with Article 52(2) of the Charter, it applies under the conditions and within the limits defined by the Treaty. Paragraph 2 refers to the power granted to the Community by Article 62(1) and (3) and Article 63(4) of the EC Treaty. Consequently, the granting of this right depends on the institutions exercising that power. Article 46 Diplomatic and consular protection Every citizen of the Union shall, in the territory of a third country in which the Member State of which he or she is a national is not represented, be entitled to protection by the diplomatic or consular authorities of any Member State, on the same conditions as the nationals of that Member State. CHARTE 4473/00 ket/gbk/jrb 39 JUR EN

65 Explanation The right guaranteed by this Article is the right guaranteed by Article 20 of the EC Treaty. In accordance with Article 52(2) of the Charter, it applies under the conditions defined by the Treaty. CHAPTER VI. JUSTICE Article 47 Right to an effective remedy and to a fair trial Everyone whose rights and freedoms guaranteed by the law of the Union are violated has the right to an effective remedy before a tribunal in compliance with the conditions laid down in this Article. Everyone is entitled to a fair and public hearing within a reasonable time by an independent and impartial tribunal previously established by law. Everyone shall have the possibility of being advised, defended and represented. Legal aid shall be made available to those who lack sufficient resources insofar as such aid is necessary to ensure effective access to justice. Explanation The first paragraph is based on Article 13 of the ECHR: "Everyone whose rights and freedoms as set forth in this Convention are violated shall have an effective remedy before a national authority notwithstanding that the violation has been committed by persons acting in an official capacity." CHARTE 4473/00 ket/gbk/jrb 40 JUR EN

66 However, in Community law the protection is more extensive since it guarantees the right to an effective remedy before a court. The Court of Justice enshrined the principle in its judgment of 15 May 1986 (Case 222/84 Johnston [1986] ECR 1651; see also judgment of 15 October 1987, Case 222/86 Heylens [1987] ECR 4097 and judgment of 3 December 1992, Case C-97/91 Borelli [1992] ECR I According to the Court, this principle also applies to the Member States when they are implementing Community law. The inclusion of this precedent in the Charter is not intended to change the appeal system laid down by the Treaties, and particularly the rules relating to admissibility. This principle is therefore to be implemented according to the procedures laid down in the Treaties. It applies to the institutions of the Union and of Member States when they are implementing Union law and does so for all rights guaranteed by Union law. The second paragraph corresponds to Article 6(1) of the ECHR which reads as follows: "In the determination of his civil rights and obligations or of any criminal charge against him, everyone is entitled to a fair and public hearing within a reasonable time by an independent and impartial tribunal established by law. Judgment shall be pronounced publicly but the press and public may be excluded from all or part of the trial in the interests of morals, public order or national security in a democratic society, where the interests of juveniles or the protection of the private life of the parties so require, or to the extent strictly necessary in the opinion of the court in special circumstances where publicity would prejudice the interests of justice." In Community law, the right to a fair hearing is not confined to disputes relating to civil law rights and obligations. That is one of the consequences of the fact that the Community is a community based on the rule of law as stated by the Court in Case 294/83, "Les Verts" v. European Parliament (judgment of 23 April 1986, [1988] ECR 1339). Nevertheless, in all respects other than their scope, the guarantees afforded by the ECHR apply in a similar way to the Union. With regard to the third paragraph, it should be noted that in accordance with the case law of the European Court of Human Rights, provision should be made for legal aid where the absence of such aid would make it impossible to ensure an effective remedy (ECHR Judgment of , Airey, Series A, Volume 32, 11). There is also a system of legal assistance for cases before the Court of Justice of the European Communities. CHARTE 4473/00 ket/gbk/jrb 41 JUR EN

67 Article 48 Presumption of innocence and right of defence 1. Everyone who has been charged shall be presumed innocent until proved guilty according to law. 2. Respect for the rights of the defence of anyone who has been charged shall be guaranteed. Explanation Article 48 is the same as Article 6(2) and (3) of the ECHR, which reads as follows: "2. Everyone charged with a criminal offence shall be presumed innocent until proved guilty according to law. 3. Everyone charged with a criminal offence has the following minimum rights: (a) to be informed promptly, in a language which he understands and in detail, of the nature and cause of the accusation against him; (b) to have adequate time and facilities for the preparation of his defence; (c) to defend himself in person or through legal assistance of his own choosing or, if he has not sufficient means to pay for legal assistance, to be given it free when the interests of justice so require; (d) to examine or have examined witnesses against him and to obtain the attendance and examination of witnesses on his behalf under the same conditions as witnesses against him; (e) to have the free assistance of an interpreter if he cannot understand or speak the language used in court." In accordance with Article 52(3), this right has the same meaning and scope as the right guaranteed by the ECHR. CHARTE 4473/00 ket/gbk/jrb 42 JUR EN

68 Article 49 Principles of legality and proportionality of criminal offences and penalties 1. No one shall be held guilty of any criminal offence on account of any act or omission which did not constitute a criminal offence under national law or international law at the time when it was committed. Nor shall a heavier penalty be imposed than that which was applicable at the time the criminal offence was committed. If, subsequent to the commission of a criminal offence, the law provides for a lighter penalty, that penalty shall be applicable. 2. This Article shall not prejudice the trial and punishment of any person for any act or omission which, at the time when it was committed, was criminal according to the general principles recognised by the community of nations. 3. The severity of penalties must not be disproportionate to the criminal offence. Explanation This Article follows the traditional principle of the non-retroactivity of laws and criminal sanctions. There has been added the principle of the retroactivity of a more lenient penal law, which exists in a number of Member States and which features in Article 15 of the Covenant on Civil and Political Rights. Article 7 of the ECHR is worded as follows: "1. No one shall be held guilty of any criminal offence on account of any act or omission which did not constitute a criminal offence under national or international law at the time when it was committed. Nor shall a heavier penalty be imposed than the one that was applicable at the time the criminal offence was committed. 2. This Article shall not prejudice the trial and punishment of any person for any act or omission which, at the time when it was committed, was criminal according to the general principles of law recognised by civilised nations." CHARTE 4473/00 ket/gbk/jrb 43 JUR EN

69 In paragraph 2, the reference to "civilised" nations has been deleted; this does not change the meaning of this paragraph, which refers to crimes against humanity in particular. In accordance with Article 52(3), the right guaranteed here therefore has the same meaning and scope as the right guaranteed by the ECHR. Paragraph 3 states the general principle of proportionality between penalties and criminal offences which is enshrined in the common constitutional traditions of the Member States and in the case law of the Court of Justice of the Communities. Article 50 Right not to be tried or punished twice in criminal proceedings for the same criminal offence No one shall be liable to be tried or punished again in criminal proceedings for an offence for which he or she has already been finally acquitted or convicted within the Union in accordance with the law. Explanation Article 4 of Protocol No 7 to the ECHR reads as follows: "1. No one shall be liable to be tried or punished again in criminal proceedings under the jurisdiction of the same State for an offence for which he has already been finally acquitted or convicted in accordance with the law and penal procedure of that State. 2. The provisions of the preceding paragraph shall not prevent the reopening of the case in accordance with the law and the penal procedure of the State concerned, if there is evidence of new or newly discovered facts, or if there has been a fundamental defect in the previous proceedings, which could affect the outcome of the case. 3. No derogation from this Article shall be made under Article 15 of the Convention." CHARTE 4473/00 ket/gbk/jrb 44 JUR EN

70 The "non bis in idem" principle applies in Community law (see, among the many precedents, the judgment of 5 May 1996, Cases 18/65 and 35/65, Gutmann v. Commission [1966] ECR 103 and a recent case, the decision of the Court of First Instance of 20 April 1999, Joined Cases T-305/94 and others, Limburgse Vinyl Maatschappij NV v. Commission [1999] ECR II-931). The rule prohibiting cumulation refers to cumulation of two penalties of the same kind, that is to say criminal law penalties. In accordance with Article 50, the "non bis in idem" principle applies not only within the jurisdiction of one State but also between the jurisdictions of several Member States. That corresponds to the acquis in Union law; see Articles 54 to 58 of the Schengen Convention, Article 7 of the Convention on the Protection of the European Communities' Financial Interests and Article 10 of the Convention on the fight against corruption. The very limited exceptions in those Conventions permitting the Member States to derogate from the "non bis in idem" principle are covered by the horizontal clause in Article 52(1) of the Charter concerning limitations. As regards the situations referred to by Article 4 of Protocol No 7, namely the application of the principle within the same Member State, the guaranteed right has the same meaning and the same scope as the corresponding right in the ECHR. CHAPTER VII. GENERAL PROVISIONS Article 51 Scope 1. The provisions of this Charter are addressed to the institutions and bodies of the Union with due regard for the principle of subsidiarity and to the Member States only when they are implementing Union law. They shall therefore respect the rights, observe the principles and promote the application thereof in accordance with their respective powers. CHARTE 4473/00 ket/gbk/jrb 45 JUR EN

71 2. This Charter does not establish any new power or task for the Community or the Union, or modify powers and tasks defined by the Treaties. Explanation The aim of Article 51 is to determine the scope of the Charter. It seeks to establish clearly that the Charter applies primarily to the institutions and bodies of the Union, in compliance with the principle of subsidiarity. This provision is in keeping with Article 6(2) of the Treaty on European Union, which requires the Union to respect fundamental rights, and with the mandate issued by Cologne European Council. The term "institutions" is enshrined in the EC Treaty, Article 7 of which lists the institutions. The term "body" is commonly used to refer to all the authorities set up by the Treaties or by secondary legislation (see Article 286(1) of the Treaty establishing the European Community). As regards the Member States, it follows unambiguously from the case law of the Court of Justice that the requirement to respect fundamental rights defined in a Union context is only binding on the Member States when they act in the context of Community law (judgment of 13 July 1989, Case 5/88 Wachauf [1989] ECR 2609; judgment of 18 June 1991, ERT [1991] ECR I-2925). The Court of Justice recently confirmed this case law in the following terms: "In addition, it should be remembered that the requirements flowing from the protection of fundamental rights in the Community legal order are also binding on Member States when they implement Community rules..." (judgment of 13 April 2000, Case C-292/97, paragraph 37 of the grounds, not yet published). Of course this principle, as enshrined in this Charter, applies to the central authorities as well as to regional or local bodies, and to public organisations, when they are implementing Union law. CHARTE 4473/00 ket/gbk/jrb 46 JUR EN

72 Paragraph 2 confirms that the Charter may not have the effect of extending the competences and tasks which the Treaties confer on the Community and the Union. Explicit mention is made here of the logical consequences of the principle of subsidiarity and of the fact that the Union only has those powers which have been conferred upon it. The fundamental rights as guaranteed in the Union do not have any effect other than in the context of the powers determined by the Treaty. Article 52 Scope of guaranteed rights 1. Any limitation on the exercise of the rights and freedoms recognised by this Charter must be provided for by law and respect the essence of those rights and freedoms. Subject to the principle of proportionality, limitations may be made only if they are necessary and genuinely meet objectives of general interest recognised by the Union or the need to protect the rights and freedoms of others. 2. Rights recognised by this Charter which are based on the Community Treaties or the Treaty on European Union shall be exercised under the conditions and within the limits defined by those Treaties. 3. Insofar as this Charter contains rights which correspond to rights guaranteed by the Convention for the Protection of Human Rights and Fundamental Freedoms, the meaning and scope of those rights shall be the same as those laid down by the said Convention. This provision shall not prevent Union law providing more extensive protection. CHARTE 4473/00 ket/gbk/jrb 47 JUR EN

73 Explanation The purpose of Article 52 is to set the scope of the rights guaranteed. Paragraph 1 deals with the arrangements for the limitation of rights. The wording is based on the case law of the Court of Justice: "...it is well established in the case law of the Court that restrictions may be imposed on the exercise of fundamental rights, in particular in the context of a common organisation of the market, provided that those restrictions in fact correspond to objectives of general interest pursued by the Community and do not constitute, with regard to the aim pursued, disproportionate and unreasonable interference undermining the very substance of those rights" (judgment of 13 April 2000, Case C-292/97, paragraph 45 of the grounds). The reference to general interests recognised by the Union covers both the objectives mentioned in Article 2 and other interests protected by specific Treaty provisions such as Articles 30 or 39(3) of the EC Treaty. Paragraph 2 specifies that where a right results from the Treaties it is subject to the conditions and limits laid down by them. The Charter does not alter the system of rights conferred by the Treaties. Paragraph 3 is intended to ensure the necessary consistency between the Charter and the ECHR by establishing the principle that, insofar as the rights in the present Charter also correspond to rights guaranteed by the ECHR, the meaning and scope of those rights, including authorised limitations, are the same as those laid down by the ECHR. This means in particular that the legislator, in laying down limitations to those rights, must comply with the same standards as are fixed by the detailed limitation arrangements laid down in the ECHR without thereby adversely affecting the autonomy of Community law and of that of the Court of Justice of the European Communities. The reference to the ECHR covers both the Convention and the Protocols to it. The meaning and the scope of the guaranteed rights are determined not only by the text of those instruments, but also by the case law of the European Court of Human Rights and by the Court of Justice of the European Communities. The last sentence of the paragraph is designed to allow the Union to guarantee more extensive protection. The list of rights which may at the present stage, without precluding developments in the law, legislation and the Treaties, be regarded as corresponding to rights in the ECHR within the meaning of the present paragraph is given hereafter. It does not include rights additional to those in the ECHR. CHARTE 4473/00 ket/gbk/jrb 48 JUR EN

74 1. Articles of the Charter where both the meaning and the scope are the same as the corresponding Articles of the ECHR: Article 2 corresponds to Article 2 of the ECHR Article 4 corresponds to Article 3 of the ECHR Article 5(1) and (2) correspond to Article 4 of the ECHR Article 6 corresponds to Article 5 of the ECHR Article 7 corresponds to Article 8 of the ECHR Article 10(1) corresponds to Article 9 of the ECHR Article 11 corresponds to Article 10 of the ECHR without prejudice to any restrictions which Community law may impose on Member States' right to introduce the licensing arrangements referred to in the third sentence of Article 10(1) of the ECHR Article 17 corresponds to Article 1 of the Protocol to the ECHR Article 19(1) corresponds to Article 4 of Protocol No 4 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(2) and(3) of the ECHR Article 49(1) (with the exception of the last sentence) and (2) correspond to Article 7 of the ECHR 2. Articles where the meaning is the same as the corresponding Articles of the ECHR, but where the scope is wider: Article 9 covers the same field as Article 12 of the ECHR, but its scope may be extended to other forms of marriage if these are established by national legislation Article 12(1) corresponds to Article 11 of the ECHR, but its scope is extended to European Union level Article 14(1) corresponds to Article 2 of the Protocol to the ECHR, but its scope is extended to cover access to vocational and continuing training Article 14(3) corresponds to Article 2 of the Protocol to the ECHR as regards the rights of parents CHARTE 4473/00 ket/gbk/jrb 49 JUR EN

75 Article 47(2) and (3) correspond to Article 6(1) of the ECHR, but the limitation to the determination of civil rights and obligations or criminal charges does not apply as regards Union law and its implementation Article 50 corresponds to Article 4 of Protocol No 7 to the ECHR, but its scope is extended to European Union level between the Courts of the Member States. Finally, citizens of the European Union may not be considered as aliens in the scope of the application of Community law, because of the prohibition of any discrimination on grounds of nationality. The limitations provided for by Article 16 of the ECHR as regards the rights of aliens therefore do not apply to them in this context. Article 53 Level of protection Nothing in this Charter shall be interpreted as restricting or adversely affecting human rights and fundamental freedoms as recognised, in their respective fields of application, by Union law and international law and by international agreements to which the Union, the Community or all the Member States are party, including the European Convention for the Protection of Human Rights and Fundamental Freedoms, and by the Member States' constitutions. Explanation This provision is intended to maintain the level of protection currently afforded within their respective scope by Union law, national law and international law. Owing to its importance, mention is made of the ECHR. The level of protection afforded by the Charter may not, in any instance, be lower than that guaranteed by the ECHR, with the result that the arrangements for limitations may not fall below the level provided for in the ECHR. CHARTE 4473/00 ket/gbk/jrb 50 JUR EN

76 Article 54 Prohibition of abuse of rights Nothing in this Charter shall be interpreted as implying any right to engage in any activity or to perform any act aimed at the destruction of any of the rights and freedoms recognised in this Charter or at their limitation to a greater extent than is provided for herein. Explanation This Article corresponds to Article 17 of the ECHR: "Nothing in this Convention may be interpreted as implying for any State, group or person any right to engage in any activity or perform any act aimed at the destruction of any of the rights and freedoms set forth herein or at their limitation to a greater extent than is provided for in the Convention." CHARTE 4473/00 ket/gbk/jrb 51 JUR EN

77 EN Official Journal of the European Union C 303/1 IV (Notices) NOTICES FROM EUROPEAN UNION INSTITUTIONS AND BODIES EUROPEAN PARLIAMENT COUNCIL COMMISSION CHARTER OF FUNDAMENTAL RIGHTS OF THE EUROPEAN UNION (2007/C 303/01)

78 C 303/2 EN Official Journal of the European Union The European Parliament, the Council and the Commission solemnly proclaim the following text as the Charter of Fundamental Rights of the European Union. CHARTER OF FUNDAMENTAL RIGHTS OF THE EUROPEAN UNION Preamble The peoples of Europe, in creating an ever closer union among them, are resolved to share a peaceful future based on common values. Conscious of its spiritual and moral heritage, the Union is founded on the indivisible, universal values of human dignity, freedom, equality and solidarity; it is based on the principles of democracy and the rule of law. It places the individual at the heart of its activities, by establishing the citizenship of the Union and by creating an area of freedom, security and justice. The Union contributes to the preservation and to the development of these common values while respecting the diversity of the cultures and traditions of the peoples of Europe as well as the national identities of the Member States and the organisation of their public authorities at national, regional and local levels; it seeks to promote balanced and sustainable development and ensures free movement of persons, services, goods and capital, and the freedom of establishment. To this end, it is necessary to strengthen the protection of fundamental rights in the light of changes in society, social progress and scientific and technological developments by making those rights more visible in a Charter. This Charter reaffirms, with due regard for the powers and tasks of the Union and for the principle of subsidiarity, the rights as they result, in particular, from the constitutional traditions and international obligations common to the Member States, the European Convention for the Protection of Human Rights and Fundamental Freedoms, the Social Charters adopted by the Union and by the Council of Europe and the case-law of the Court of Justice of the European Union and of the European Court of Human Rights. In this context the Charter will be interpreted by the courts of the Union and the Member States with due regard to the explanations prepared under the authority of the Praesidium of the Convention which drafted the Charter and updated under the responsibility of the Praesidium of the European Convention. Enjoyment of these rights entails responsibilities and duties with regard to other persons, to the human community and to future generations. The Union therefore recognises the rights, freedoms and principles set out hereafter.

79 EN Official Journal of the European Union C 303/3 TITLE I DIGNITY Article 1 Human dignity Human dignity is inviolable. It must be respected and protected. Article 2 Right to life 1. Everyone has the right to life. 2. No one shall be condemned to the death penalty, or executed. Article 3 Right to the integrity of the person 1. Everyone has the right to respect for his or her physical and mental integrity. 2. In the fields of medicine and biology, the following must be respected in particular: (a) the free and informed consent of the person concerned, according to the procedures laid down by law; (b) the prohibition of eugenic practices, in particular those aiming at the selection of persons; (c) (d) the prohibition on making the human body and its parts as such a source of financial gain; the prohibition of the reproductive cloning of human beings. Article 4 Prohibition of torture and inhuman or degrading treatment or punishment No one shall be subjected to torture or to inhuman or degrading treatment or punishment. Article 5 Prohibition of slavery and forced labour 1. No one shall be held in slavery or servitude. 2. No one shall be required to perform forced or compulsory labour. 3. Trafficking in human beings is prohibited.

80 C 303/4 EN Official Journal of the European Union TITLE II FREEDOMS Article 6 Right to liberty and security Everyone has the right to liberty and security of person. Article 7 Respect for private and family life Everyone has the right to respect for his or her private and family life, home and communications. Article 8 Protection of personal data 1. Everyone has the right to the protection of personal data concerning him or her. 2. Such data must be processed fairly for specified purposes and on the basis of the consent of the person concerned or some other legitimate basis laid down by law. Everyone has the right of access to data which has been collected concerning him or her, and the right to have it rectified. 3. Compliance with these rules shall be subject to control by an independent authority. Article 9 Right to marry and right to found a family The right to marry and the right to found a family shall be guaranteed in accordance with the national laws governing the exercise of these rights. Article 10 Freedom of thought, conscience and religion 1. Everyone has the right to freedom of thought, conscience and religion. This right includes freedom to change religion or belief and freedom, either alone or in community with others and in public or in private, to manifest religion or belief, in worship, teaching, practice and observance. 2. The right to conscientious objection is recognised, in accordance with the national laws governing the exercise of this right.

81 EN Official Journal of the European Union C 303/5 Article 11 Freedom of expression and information 1. Everyone has the right to freedom of expression. This right shall include freedom to hold opinions and to receive and impart information and ideas without interference by public authority and regardless of frontiers. 2. The freedom and pluralism of the media shall be respected. Article 12 Freedom of assembly and of association 1. Everyone has the right to freedom of peaceful assembly and to freedom of association at all levels, in particular in political, trade union and civic matters, which implies the right of everyone to form and to join trade unions for the protection of his or her interests. 2. Political parties at Union level contribute to expressing the political will of the citizens of the Union. Article 13 Freedom of the arts and sciences The arts and scientific research shall be free of constraint. Academic freedom shall be respected. Article 14 Right to education 1. Everyone has the right to education and to have access to vocational and continuing training. 2. This right includes the possibility to receive free compulsory education. 3. The freedom to found educational establishments with due respect for democratic principles and the right of parents to ensure the education and teaching of their children in conformity with their religious, philosophical and pedagogical convictions shall be respected, in accordance with the national laws governing the exercise of such freedom and right. Article 15 Freedom to choose an occupation and right to engage in work 1. Everyone has the right to engage in work and to pursue a freely chosen or accepted occupation. 2. Every citizen of the Union has the freedom to seek employment, to work, to exercise the right of establishment and to provide services in any Member State. 3. Nationals of third countries who are authorised to work in the territories of the Member States are entitled to working conditions equivalent to those of citizens of the Union.

82 C 303/6 EN Official Journal of the European Union Article 16 Freedom to conduct a business The freedom to conduct a business in accordance with Union law and national laws and practices is recognised. Article 17 Right to property 1. Everyone has the right to own, use, dispose of and bequeath his or her lawfully acquired possessions. No one may be deprived of his or her possessions, except in the public interest and in the cases and under the conditions provided for by law, subject to fair compensation being paid in good time for their loss. The use of property may be regulated by law in so far as is necessary for the general interest. 2. Intellectual property shall be protected. Article 18 Right to asylum The right to asylum shall be guaranteed with due respect for the rules of the Geneva Convention of 28 July 1951 and the Protocol of 31 January 1967 relating to the status of refugees and in accordance with the Treaty on European Union and the Treaty on the Functioning of the European Union (hereinafter referred to as the Treaties ). 1. Collective expulsions are prohibited. Article 19 Protection in the event of removal, expulsion or extradition 2. No one may be removed, expelled or extradited to a State where there is a serious risk that he or she would be subjected to the death penalty, torture or other inhuman or degrading treatment or punishment. TITLE III EQUALITY Everyone is equal before the law. Article 20 Equality before the law

83 EN Official Journal of the European Union C 303/7 Article 21 Non-discrimination 1. Any discrimination based on any ground such as sex, race, colour, ethnic or social origin, genetic features, language, religion or belief, political or any other opinion, membership of a national minority, property, birth, disability, age or sexual orientation shall be prohibited. 2. Within the scope of application of the Treaties and without prejudice to any of their specific provisions, any discrimination on grounds of nationality shall be prohibited. Article 22 Cultural, religious and linguistic diversity The Union shall respect cultural, religious and linguistic diversity. Article 23 Equality between women and men Equality between women and men must be ensured in all areas, including employment, work and pay. The principle of equality shall not prevent the maintenance or adoption of measures providing for specific advantages in favour of the under-represented sex. Article 24 The rights of the child 1. Children shall have the right to such protection and care as is necessary for their well-being. They may express their views freely. Such views shall be taken into consideration on matters which concern them in accordance with their age and maturity. 2. In all actions relating to children, whether taken by public authorities or private institutions, the child's best interests must be a primary consideration. 3. Every child shall have the right to maintain on a regular basis a personal relationship and direct contact with both his or her parents, unless that is contrary to his or her interests. Article 25 The rights of the elderly The Union recognises and respects the rights of the elderly to lead a life of dignity and independence and to participate in social and cultural life.

84 C 303/8 EN Official Journal of the European Union Article 26 Integration of persons with disabilities The Union recognises and respects the right of persons with disabilities to benefit from measures designed to ensure their independence, social and occupational integration and participation in the life of the community. TITLE IV SOLIDARITY Article 27 Workers' right to information and consultation within the undertaking Workers or their representatives must, at the appropriate levels, be guaranteed information and consultation in good time in the cases and under the conditions provided for by Union law and national laws and practices. Article 28 Right of collective bargaining and action Workers and employers, or their respective organisations, have, in accordance with Union law and national laws and practices, the right to negotiate and conclude collective agreements at the appropriate levels and, in cases of conflicts of interest, to take collective action to defend their interests, including strike action. Article 29 Right of access to placement services Everyone has the right of access to a free placement service. Article 30 Protection in the event of unjustified dismissal Every worker has the right to protection against unjustified dismissal, in accordance with Union law and national laws and practices. Article 31 Fair and just working conditions 1. Every worker has the right to working conditions which respect his or her health, safety and dignity. 2. Every worker has the right to limitation of maximum working hours, to daily and weekly rest periods and to an annual period of paid leave.

85 EN Official Journal of the European Union C 303/9 Article 32 Prohibition of child labour and protection of young people at work The employment of children is prohibited. The minimum age of admission to employment may not be lower than the minimum school-leaving age, without prejudice to such rules as may be more favourable to young people and except for limited derogations. Young people admitted to work must have working conditions appropriate to their age and be protected against economic exploitation and any work likely to harm their safety, health or physical, mental, moral or social development or to interfere with their education. Article 33 Family and professional life 1. The family shall enjoy legal, economic and social protection. 2. To reconcile family and professional life, everyone shall have the right to protection from dismissal for a reason connected with maternity and the right to paid maternity leave and to parental leave following the birth or adoption of a child. Article 34 Social security and social assistance 1. The Union recognises and respects the entitlement to social security benefits and social services providing protection in cases such as maternity, illness, industrial accidents, dependency or old age, and in the case of loss of employment, in accordance with the rules laid down by Union law and national laws and practices. 2. Everyone residing and moving legally within the European Union is entitled to social security benefits and social advantages in accordance with Union law and national laws and practices. 3. In order to combat social exclusion and poverty, the Union recognises and respects the right to social and housing assistance so as to ensure a decent existence for all those who lack sufficient resources, in accordance with the rules laid down by Union law and national laws and practices. Article 35 Health care Everyone has the right of access to preventive health care and the right to benefit from medical treatment under the conditions established by national laws and practices. A high level of human health protection shall be ensured in the definition and implementation of all the Union's policies and activities.

86 C 303/10 EN Official Journal of the European Union Article 36 Access to services of general economic interest The Union recognises and respects access to services of general economic interest as provided for in national laws and practices, in accordance with the Treaties, in order to promote the social and territorial cohesion of the Union. Article 37 Environmental protection A high level of environmental protection and the improvement of the quality of the environment must be integrated into the policies of the Union and ensured in accordance with the principle of sustainable development. Article 38 Consumer protection Union policies shall ensure a high level of consumer protection. TITLE V CITIZENS' RIGHTS Article 39 Right to vote and to stand as a candidate at elections to the European Parliament 1. Every citizen of the Union has the right to vote and to stand as a candidate at elections to the European Parliament in the Member State in which he or she resides, under the same conditions as nationals of that State. 2. Members of the European Parliament shall be elected by direct universal suffrage in a free and secret ballot. Article 40 Right to vote and to stand as a candidate at municipal elections Every citizen of the Union has the right to vote and to stand as a candidate at municipal elections in the Member State in which he or she resides under the same conditions as nationals of that State. Article 41 Right to good administration 1. Every person has the right to have his or her affairs handled impartially, fairly and within a reasonable time by the institutions, bodies, offices and agencies of the Union.

87 EN Official Journal of the European Union C 303/11 2. This right includes: (a) the right of every person to be heard, before any individual measure which would affect him or her adversely is taken; (b) the right of every person to have access to his or her file, while respecting the legitimate interests of confidentiality and of professional and business secrecy; (c) the obligation of the administration to give reasons for its decisions. 3. Every person has the right to have the Union make good any damage caused by its institutions or by its servants in the performance of their duties, in accordance with the general principles common to the laws of the Member States. 4. Every person may write to the institutions of the Union in one of the languages of the Treaties and must have an answer in the same language. Article 42 Right of access to documents Any citizen of the Union, and any natural or legal person residing or having its registered office in a Member State, has a right of access to documents of the institutions, bodies, offices and agencies of the Union, whatever their medium. Article 43 European Ombudsman Any citizen of the Union and any natural or legal person residing or having its registered office in a Member State has the right to refer to the European Ombudsman cases of maladministration in the activities of the institutions, bodies, offices or agencies of the Union, with the exception of the Court of Justice of the European Union acting in its judicial role. Article 44 Right to petition Any citizen of the Union and any natural or legal person residing or having its registered office in a Member State has the right to petition the European Parliament. Article 45 Freedom of movement and of residence 1. Every citizen of the Union has the right to move and reside freely within the territory of the Member States. 2. Freedom of movement and residence may be granted, in accordance with the Treaties, to nationals of third countries legally resident in the territory of a Member State.

88 C 303/12 EN Official Journal of the European Union Article 46 Diplomatic and consular protection Every citizen of the Union shall, in the territory of a third country in which the Member State of which he or she is a national is not represented, be entitled to protection by the diplomatic or consular authorities of any Member State, on the same conditions as the nationals of that Member State. TITLE VI JUSTICE Article 47 Right to an effective remedy and to a fair trial Everyone whose rights and freedoms guaranteed by the law of the Union are violated has the right to an effective remedy before a tribunal in compliance with the conditions laid down in this Article. Everyone is entitled to a fair and public hearing within a reasonable time by an independent and impartial tribunal previously established by law. Everyone shall have the possibility of being advised, defended and represented. Legal aid shall be made available to those who lack sufficient resources in so far as such aid is necessary to ensure effective access to justice. Article 48 Presumption of innocence and right of defence 1. Everyone who has been charged shall be presumed innocent until proved guilty according to law. 2. Respect for the rights of the defence of anyone who has been charged shall be guaranteed. Article 49 Principles of legality and proportionality of criminal offences and penalties 1. No one shall be held guilty of any criminal offence on account of any act or omission which did not constitute a criminal offence under national law or international law at the time when it was committed. Nor shall a heavier penalty be imposed than the one that was applicable at the time the criminal offence was committed. If, subsequent to the commission of a criminal offence, the law provides for a lighter penalty, that penalty shall be applicable. 2. This Article shall not prejudice the trial and punishment of any person for any act or omission which, at the time when it was committed, was criminal according to the general principles recognised by the community of nations. 3. The severity of penalties must not be disproportionate to the criminal offence.

89 EN Official Journal of the European Union C 303/13 Article 50 Right not to be tried or punished twice in criminal proceedings for the same criminal offence No one shall be liable to be tried or punished again in criminal proceedings for an offence for which he or she has already been finally acquitted or convicted within the Union in accordance with the law. TITLE VII GENERAL PROVISIONS GOVERNING THE INTERPRETATION AND APPLICATION OF THE CHARTER Article 51 Field of application 1. The provisions of this Charter are addressed to the institutions, bodies, offices and agencies of the Union with due regard for the principle of subsidiarity and to the Member States only when they are implementing Union law. They shall therefore respect the rights, observe the principles and promote the application thereof in accordance with their respective powers and respecting the limits of the powers of the Union as conferred on it in the Treaties. 2. The Charter does not extend the field of application of Union law beyond the powers of the Union or establish any new power or task for the Union, or modify powers and tasks as defined in the Treaties. Article 52 Scope and interpretation of rights and principles 1. Any limitation on the exercise of the rights and freedoms recognised by this Charter must be provided for by law and respect the essence of those rights and freedoms. Subject to the principle of proportionality, limitations may be made only if they are necessary and genuinely meet objectives of general interest recognised by the Union or the need to protect the rights and freedoms of others. 2. Rights recognised by this Charter for which provision is made in the Treaties shall be exercised under the conditions and within the limits defined by those Treaties. 3. In so far as this Charter contains rights which correspond to rights guaranteed by the Convention for the Protection of Human Rights and Fundamental Freedoms, the meaning and scope of those rights shall be the same as those laid down by the said Convention. This provision shall not prevent Union law providing more extensive protection. 4. In so far as this Charter recognises fundamental rights as they result from the constitutional traditions common to the Member States, those rights shall be interpreted in harmony with those traditions.

90 C 303/14 EN Official Journal of the European Union The provisions of this Charter which contain principles may be implemented by legislative and executive acts taken by institutions, bodies, offices and agencies of the Union, and by acts of Member States when they are implementing Union law, in the exercise of their respective powers. They shall be judicially cognisable only in the interpretation of such acts and in the ruling on their legality. 6. Full account shall be taken of national laws and practices as specified in this Charter. 7. The explanations drawn up as a way of providing guidance in the interpretation of this Charter shall be given due regard by the courts of the Union and of the Member States. Article 53 Level of protection Nothing in this Charter shall be interpreted as restricting or adversely affecting human rights and fundamental freedoms as recognised, in their respective fields of application, by Union law and international law and by international agreements to which the Union or all the Member States are party, including the European Convention for the Protection of Human Rights and Fundamental Freedoms, and by the Member States' constitutions. Article 54 Prohibition of abuse of rights Nothing in this Charter shall be interpreted as implying any right to engage in any activity or to perform any act aimed at the destruction of any of the rights and freedoms recognised in this Charter or at their limitation to a greater extent than is provided for herein. The above text adapts the wording of the Charter proclaimed on 7 December 2000, and will replace it as from the date of entry into force of the Treaty of Lisbon.

91 EN Official Journal of the European Union C 303/15 Съставено в Страсбург на дванадесети декември две хиляди и седма година. Hecho en Estrasburgo, el doce de diciembre de dos mil siete. Ve Štrasburku dne dvanáctého prosince dva tisíce sedm. Udfærdiget i Strasbourg den tolvte december to tusind og syv. Geschehen zu Strassburg am zwölften Dezember zweitausendsieben. Kahe tuhande seitsmenda aasta detsembrikuu kaheteistkümnendal päeval Strasbourgis. Έγινε στo Στρασβoύργo, στις δώδεκα Δεκεμβρίου δύο χιλιάδες επτά. Done at Strasbourg on the twelfth day of December in the year two thousand and seven. Fait à Strasbourg, le douze décembre deux mille sept. Arna dhéanamh in Strasbourg an dara lá déag de Nollaig sa bhliain dhá mhíle a seacht. Fatto a Strasburgo, addì dodici dicembre duemilasette. Strasbūrā, divtūkstoš septītā gada divpadsmitajā decembrī. Priimta du tūkstančiai septintųjų metų gruodžio dvyliktą dieną Strasbūre. Kelt Strasbourgban, a kétezer-hetedik év december tizenkettedik napján. Magħmul fi Strasburgu, fit-tnax-il jum ta' Diċembru tas-sena elfejn u sebgħa. Gedaan te Straatsburg, de twaalfde december tweeduizend zeven. Sporządzono w Strasburgu dnia dwunastego grudnia roku dwa tysiące siódmego. Feito em Estrasburgo, em doze de Dezembro de dois mil e sete. Întocmit la Strasbourg, la doisprezece decembrie două mii șapte. V Štrasburgu dňa dvanásteho decembra dvetisícsedem. V Strasbourgu, dne dvanajstega decembra leta dva tisoč sedem. Tehty Strasbourgissa kahdentenatoista päivänä joulukuuta vuonna kaksituhattaseitsemän. Som skedde i Strasbourg den tolfte december tjugohundrasju.

92 C 303/16 EN Official Journal of the European Union За Европейския парламент Por el Parlamento Europeo Za Evropský parlament For Europa-Parlamentet Im Namen des Europäischen Parlaments Euroopa Parlamendi nimel Για το Ευρωπαϊκό Κοινοβούλιο For the European Parliament Pour le Parlement européen Thar ceann Pharlaimint na heorpa Per il Parlamento europeo Eiroparlamenta vārdā Europos Parlamento vardu Az Európai Parlament részéről Għall-Parlament Ewropew Voor het Europees Parlement W imieniu Parlamentu Europejskiego Pelo Parlamento Europeu Pentru Parlamentul European za Európsky parlament za Evropski parlament Euroopan parlamentin puolesta På Europaparlamentets vägnar За Съвета на Европейския съюз Por el Consejo de la Unión Europea Za Radu Evropské unie For Rådet for Den Europæiske Union Für den Rat der Europäischen Union Euroopa Liidu Nõukogu nimel Για το Συμβούλιο της Ευρωπαϊκής Ένωσης For the Council of the European Union Pour le Conseil de l'union européenne Thar ceann Chomhairle an Aontais Eorpaigh Per il Consiglio dell'unione europea Eiropas Savienības Padomes vārdā Europos Sąjungos Tarybos vardu Az Európai Unió Tanácsa részéről Għall-Kunsill ta' l-unjoni Ewropea Voor de Raad van de Europese Unie W imieniu Rady Unii Europejskiej Pelo Conselho da União Europeia Pentru Consiliul Uniunii Europene za Radu Európskej únie za Svet Evropske unije Euroopan unionin neuvoston puolesta För Europeiska unionens råd За Комисията на Европейските общности Por la Comisión de las Comunidades Europeas Za Komisi Evropských společenství For Kommission for De Europæiske Fællesskaber Für die Kommission der Europäischen Gemeinschaften Euroopa Ühenduste Komisjoni nimel Για την Επιτροπή των Ευρωπαϊκών Κοινοτήτων For the Commission of the European Communities Pour la Commission des communautés européennes Thar ceann Choimisiún na gcomhphobal Eorpach Per la Commissione delle Comunità europee Eiropas Kopienu Komisijas vārdā Europos Bendrijų Komisijos vardu Az Európai Közösségek Bizottsága részéről Għall-Kummissjoni tal-komunitajiet Ewropej Voor de Commissie van de Europese Gemeenschappen W imieniu Komisji Wspólnot Europejskich Pela Comissão das Comunidades Europeias Pentru Comisia Comunităţilor Europene Za Komisiu Európskych spoločenstiev Za Komisijo Evropskih skupnosti Euroopan yhteisöjen komission puolesta På Europeiska gemenskapernas kommissions vägnar Председател El Presidente Předseda Formand Der Präsident eesistuja Ο Πρόεδρος The President Le Président An tuachtarán Il Presidente Priekšsēdētājs Pirmininkas Az elnök Il-President de Voorzitter Przewodniczący O Presidente Preşedintele predseda Predsednik Puheenjohtaja Ordförande Председател El Presidente Předseda Formand Der Präsident eesistuja Ο Πρόεδρος The President Le Président An tuachtarán Il Presidente Priekšsēdētājs Pirmininkas Az elnök Il-President de Voorzitter Przewodniczący O Presidente Preşedintele predseda Predsednik Puheenjohtaja Ordförande Председател El Presidente Předseda Formand Der Präsident eesistuja Ο Πρόεδρος The President Le Président An tuachtarán Il Presidente Priekšsēdētājs Pirmininkas Az elnök Il-President de Voorzitter Przewodniczący O Presidente Preşedintele predseda Predsednik Puheenjohtaja Ordförande

93 EN Official Journal of the European Union C 303/17 EXPLANATIONS (*) RELATING TO THE CHARTER OF FUNDAMENTAL RIGHTS (2007/C 303/02) These explanations were originally prepared under the authority 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, in the light of the drafting adjustments made to the text of the Charter by that Convention (notably to Articles 51 and 52) and of further developments of Union law. Although they do not as such have the status of law, they are a valuable tool of interpretation intended to clarify the provisions of the Charter. TITLE I DIGNITY Explanation on Article 1 Human dignity The dignity of the human person is not only a fundamental right in itself but constitutes the real basis of fundamental rights. The 1948 Universal Declaration of Human Rights enshrined human dignity in its preamble: Whereas recognition of the inherent dignity and of the equal and inalienable rights of all members of the human family is the foundation of freedom, justice and peace in the world. In its judgment of 9 October 2001 in Case C-377/98 Netherlands v European Parliament and Council [2001] ECR I-7079, at grounds 70 77, the Court of Justice confirmed that a fundamental right to human dignity is part of Union law. It results that none of the rights laid down in this Charter may be used to harm the dignity of another person, and that the dignity of the human person is part of the substance of the rights laid down in this Charter. It must therefore be respected, even where a right is restricted. Explanation on Article 2 Right to life 1. Paragraph 1 of this Article is based on the first sentence of Article 2(1) of the ECHR, which reads as follows: 1. Everyone's right to life shall be protected by law. 2. The second sentence of the provision, which referred to the death penalty, was superseded by the entry into force of Article 1 of Protocol No 6 to the ECHR, which reads as follows: The death penalty shall be abolished. No-one shall be condemned to such penalty or executed. Article 2(2) of the Charter is based on that provision. 3. The provisions of Article 2 of the Charter correspond to those of the above Articles of the ECHR and its Protocol. They have the same meaning and the same scope, in accordance with Article 52(3) of the Charter. Therefore, the negative definitions appearing in the ECHR must be regarded as also forming part of the Charter: (a) Article 2(2) of the ECHR: Deprivation of life shall not be regarded as inflicted in contravention of this article when it results from the use of force which is no more than absolutely necessary: (a) in defence of any person from unlawful violence; (b) in order to effect a lawful arrest or to prevent the escape of a person lawfully detained; (*) Editor's note: References to article numbers in the Treaties have been updated and some minor technical errors have been corrected.

94 C 303/18 EN Official Journal of the European Union (c) in action lawfully taken for the purpose of quelling a riot or insurrection. (b) Article 2 of Protocol No 6 to the ECHR: A State may make provision in its law for the death penalty in respect of acts committed in time of war or of imminent threat of war; such penalty shall be applied only in the instances laid down in the law and in accordance with its provisions. Explanation on Article 3 Right to the integrity of the person 1. In its judgment of 9 October 2001 in Case C-377/98 Netherlands v European Parliament and Council [2001] ECR-I 7079, at grounds 70, 78 to 80, the Court of Justice confirmed that a fundamental right to human integrity is part of Union law and encompasses, in the context of medicine and biology, the free and informed consent of the donor and recipient. 2. The principles of Article 3 of the Charter are already included in the Convention on Human Rights and Biomedicine, adopted by the Council of Europe (ETS 164 and additional protocol ETS 168). The Charter does not set out to depart from those principles, and therefore prohibits only reproductive cloning. It neither authorises nor prohibits other forms of cloning. Thus it does not in any way prevent the legislature from prohibiting other forms of cloning. 3. The reference to eugenic practices, in particular those aiming at the selection of persons, relates to possible situations in which selection programmes are organised and implemented, involving campaigns for sterilisation, forced pregnancy, compulsory ethnic marriage among others, all acts deemed to be international crimes in the Statute of the International Criminal Court adopted in Rome on 17 July 1998 (see its Article 7(1)(g)). Explanation on Article 4 Prohibition of torture and inhuman or degrading treatment or punishment The right in Article 4 is the right guaranteed by Article 3 of the ECHR, which has the same wording: No one shall be subjected to torture or to inhuman or degrading treatment or punishment. By virtue of Article 52(3) of the Charter, it therefore has the same meaning and the same scope as the ECHR Article. Explanation on Article 5 Prohibition of slavery and forced labour 1. The right in Article 5(1) and (2) corresponds to Article 4(1) and (2) of the ECHR, which has the same wording. It therefore has the same meaning and scope as the ECHR Article, by virtue of Article 52(3) of the Charter. Consequently: no limitation may legitimately affect the right provided for in paragraph 1, in paragraph 2, forced or compulsory labour must be understood in the light of the negative definitions contained in Article 4(3) of the ECHR: For the purpose of this article the term forced or compulsory labour shall not include: (a) any work required to be done in the ordinary course of detention imposed according to the provisions of Article 5 of this Convention or during conditional release from such detention; (b) any service of a military character or, in case of conscientious objectors in countries where they are recognised, service exacted instead of compulsory military service;

95 EN Official Journal of the European Union C 303/19 (c) any service exacted in case of an emergency or calamity threatening the life or well-being of the community; (d) any work or service which forms part of normal civic obligations.. 2. Paragraph 3 stems directly from human dignity and takes account of recent developments in organised crime, such as the organisation of lucrative illegal immigration or sexual exploitation networks. The Annex to the Europol Convention contains the following definition which refers to trafficking for the purpose of sexual exploitation: traffic in human beings: means subjection of a person to the real and illegal sway of other persons by using violence or menaces or by abuse of authority or intrigue with a view to the exploitation of prostitution, forms of sexual exploitation and assault of minors or trade in abandoned children. Chapter VI of the Convention implementing the Schengen Agreement, which has been integrated into the Union's acquis, in which the United Kingdom and Ireland participate, contains the following wording in Article 27(1) which refers to illegal immigration networks: The Contracting Parties undertake to impose appropriate penalties on any person who, for financial gain, assists or tries to assist an alien to enter or reside within the territory of one of the Contracting Parties in breach of that Contracting Party's laws on the entry and residence of aliens. On 19 July 2002, the Council adopted a framework decision on combating trafficking in human beings (OJ L 203, , p. 1) whose Article 1 defines in detail the offences concerning trafficking in human beings for the purposes of labour exploitation or sexual exploitation, which the Member States must make punishable by virtue of that framework decision. TITLE II FREEDOMS Explanation on Article 6 Right to liberty and security The rights in Article 6 are the rights guaranteed by Article 5 of the ECHR, and in accordance with Article 52(3) of the Charter, they have the same meaning and scope. Consequently, the limitations which may legitimately be imposed on them may not exceed those permitted by the ECHR, in the wording of Article 5: 1. Everyone has the right to liberty and security of person. No one shall be deprived of his liberty save in the following cases and in accordance with a procedure prescribed by law: (a) the lawful detention of a person after conviction by a competent court; (b) the lawful arrest or detention of a person for non-compliance with the lawful order of a court or in order to secure the fulfilment of any obligation prescribed by law; (c) the lawful arrest or detention of a person effected for the purpose of bringing him before the competent legal authority on reasonable suspicion of having committed an offence or when it is reasonably considered necessary to prevent his committing an offence or fleeing after having done so; (d) the detention of a minor by lawful order for the purpose of educational supervision or his lawful detention for the purpose of bringing him before the competent legal authority; (e) the lawful detention of persons for the prevention of the spreading of infectious diseases, of persons of unsound mind, alcoholics or drug addicts or vagrants; (f) the lawful arrest or detention of a person to prevent his effecting an unauthorised entry into the country or of a person against whom action is being taken with a view to deportation or extradition.

96 C 303/20 EN Official Journal of the European Union Everyone who is arrested shall be informed promptly, in a language which he understands, of the reasons for his arrest and of any charge against him. 3. Everyone arrested or detained in accordance with the provisions of paragraph 1.c of this Article shall be brought promptly before a judge or other officer authorised by law to exercise judicial power and shall be entitled to trial within a reasonable time or to release pending trial. Release may be conditioned by guarantees to appear for trial. 4. Everyone who is deprived of his liberty by arrest or detention shall be entitled to take proceedings by which the lawfulness of his detention shall be decided speedily by a court and his release ordered if the detention is not lawful. 5. Everyone who has been the victim of arrest or detention in contravention of the provisions of this Article shall have an enforceable right to compensation. The rights enshrined in Article 6 must be respected particularly when the European Parliament and the Council adopt legislative acts in the area 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, notably to define common minimum provisions as regards the categorisation of offences and punishments and certain aspects of procedural law. Explanation on Article 7 Respect for private and family life The rights guaranteed in Article 7 correspond to those guaranteed by Article 8 of the ECHR. To take account of developments in technology the word correspondence has been replaced by communications. In accordance with Article 52(3), the meaning and scope of this right are the same as those of the corresponding article of the ECHR. Consequently, the limitations which may legitimately be imposed on this right are the same as those allowed by Article 8 of the ECHR: 1. Everyone has the right to respect for his private and family life, his home and his correspondence. 2. There shall be no interference by a public authority with the exercise of this right except such as is in accordance with the law and is necessary in a democratic society in the interests of national security, public safety or the economic wellbeing of the country, for the prevention of disorder or crime, for the protection of health or morals, or for the protection of the rights and freedoms of others. Explanation on Article 8 Protection of personal data This Article has been based on Article 286 of the Treaty establishing the European Community and Directive 95/46/EC of the European Parliament and of the Council on the protection of individuals with regard to the processing of personal data and on the free movement of such data (OJ L 281, , p. 31) as well as on Article 8 of the ECHR and on the Council of Europe Convention of 28 January 1981 for the Protection of Individuals with regard to Automatic Processing of Personal Data, which has been ratified by all the 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 individuals with regard to the processing of personal data by the Community institutions and bodies and on the free movement of such data (OJ L 8, , p. 1). The above-mentioned Directive and Regulation contain conditions and limitations for the exercise of the right to the protection of personal data.

97 EN Official Journal of the European Union C 303/21 Explanation on Article 9 Right to marry and right to found 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 to found a family according to the national laws governing the exercising of this right. The wording of the Article has been modernised to cover cases in which national legislation recognises arrangements other than marriage for founding a family. This Article neither prohibits nor imposes the granting of the status of marriage to unions between people of the same sex. This right is thus similar to that afforded by the ECHR, but its scope may be wider when national legislation so provides. Explanation on Article 10 Freedom of thought, conscience and religion The right guaranteed in paragraph 1 corresponds to the right guaranteed in Article 9 of the ECHR and, in accordance with Article 52(3) of the Charter, has the same meaning and scope. Limitations must therefore respect Article 9(2) of the Convention, which reads as follows: Freedom to manifest one's religion or beliefs shall be subject only to such limitations as are prescribed by law and are necessary in a democratic society in the interests of public safety, for the protection of public order, health or morals, or for the protection of the rights and freedoms of others. The right guaranteed in paragraph 2 corresponds to national constitutional traditions and to the development of national legislation on this issue. Explanation on Article 11 Freedom of expression and information 1. Article 11 corresponds to Article 10 of the European Convention on Human Rights, which reads as follows: 1. Everyone has the right to freedom of expression. This right shall include freedom to hold opinions and to receive and impart information and ideas without interference by public authority and regardless of frontiers. This Article shall not prevent States from requiring the licensing of broadcasting, television or cinema enterprises. 2. The exercise of these freedoms, since it carries with it duties and responsibilities, may be subject to such formalities, conditions, restrictions or penalties as are prescribed by law and are necessary in a democratic society, in the interests of national security, territorial integrity or public safety, for the prevention of disorder or crime, for the protection of health or morals, for the protection of the reputation or rights of others, for preventing the disclosure of information received in confidence, or for maintaining the authority and impartiality of the judiciary. Pursuant to Article 52(3) of the Charter, the meaning and scope of this right are the same as those guaranteed by the ECHR. The limitations which may be imposed on it may therefore not exceed those provided for in Article 10(2) of the Convention, without prejudice to any restrictions which the competition law of the Union may impose on Member States' right to introduce the licensing arrangements referred to in the third sentence of Article 10(1) of the ECHR. 2. Paragraph 2 of this Article spells out the consequences of paragraph 1 regarding freedom of the media. It is based in particular on Court of Justice case-law regarding television, particularly in Case C-288/89 (judgment of 25 July 1991, Stichting Collectieve Antennevoorziening Gouda and others [1991] ECR I-4007), and on the Protocol on the system of public broadcasting in the Member States annexed to the EC Treaty and now to the Treaties, and on Council Directive 89/552/EC (particularly its seventeenth recital).

98 C 303/22 EN Official Journal of the European Union Explanation on Article 12 Freedom of assembly and of association 1. Paragraph 1 of this Article corresponds to Article 11 of the ECHR, which reads as follows: 1. Everyone has the right to freedom of peaceful assembly and to freedom of association with others, including the right to form and to join trade unions for the protection of his interests. 2. No restrictions shall be placed on the exercise of these rights other than such as are prescribed by law and are necessary in a democratic society in the interests of national security or public safety, for the prevention of disorder or crime, for the protection of health or morals or for the protection of the rights and freedoms of others. This article shall not prevent the imposition of lawful restrictions on the exercise of these rights by members of the armed forces, of the police or of the administration of the State. The meaning of the provisions of paragraph 1 of this Article 12 is the same as that of the ECHR, but their scope is wider since they apply at all levels including European level. In accordance with Article 52(3) of the Charter, limitations on that right may not exceed those considered legitimate by virtue of Article 11(2) of the ECHR. 2. This right is also based on Article 11 of the Community Charter of the 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 the arts and sciences This right is deduced primarily from the right to freedom of thought and expression. It is to be exercised having regard to Article 1 and may be subject to the limitations authorised by Article 10 of the ECHR. Explanation on Article 14 Right to education 1. This Article is based on the common constitutional traditions of Member States and on Article 2 of the Protocol to the ECHR, which reads as follows: No person shall be denied the right to education. In the exercise of any functions which it assumes in relation to education and to teaching, the State shall respect the right of parents to ensure such education and teaching in conformity with their own religious and philosophical convictions. It was considered useful to extend this Article to access to vocational and continuing training (see point 15 of the Community Charter of the Fundamental Social Rights of Workers and Article 10 of the Social Charter) and to add the principle of free compulsory education. As it is worded, the latter principle merely implies that as regards compulsory education, each child has the possibility of attending an establishment which offers free education. It does not require all establishments which provide education or vocational and continuing training, in particular private ones, to be free of charge. Nor does it exclude certain specific forms of education having to be paid for, if the State takes measures to grant financial compensation. In so far as the Charter applies to the Union, this means that in its training policies the Union must respect free compulsory education, but this does not, of course, create new powers. Regarding the right of parents, it must be interpreted in conjunction with the provisions of Article Freedom to found public or private educational establishments is guaranteed as one of the aspects of freedom to conduct a business but it is limited by respect for democratic principles and is exercised in accordance with the arrangements defined by national legislation.

99 EN Official Journal of the European Union C 303/23 Explanation on Article 15 Freedom to choose an occupation and right to engage in work Freedom to choose an occupation, as enshrined in Article 15(1), is recognised in Court of Justice case-law (see inter alia judgment of 14 May 1974, Case 4/73 Nold [1974] ECR 491, paragraphs 12 to 14 of the grounds; judgment of 13 December 1979, Case 44/79 Hauer [1979] ECR 3727; judgment of 8 October 1986, Case 234/85 Keller [1986] ECR 2897, paragraph 8 of the grounds). This paragraph also draws upon Article 1(2) of the European Social Charter, which was signed on 18 October 1961 and has been ratified by all the Member States, and on point 4 of the Community Charter of the Fundamental Social Rights of Workers of 9 December The expression working conditions is to be understood in the sense of Article 156 of the Treaty on the Functioning of the European Union. Paragraph 2 deals with the three freedoms guaranteed by Articles 26, 45, 49 and 56 of the Treaty on the Functioning of the European Union, namely freedom of movement for workers, freedom of establishment and freedom to provide services. Paragraph 3 has been based on Article 153(1)(g) of the Treaty on the Functioning of the European Union, and on Arti cle 19(4) of the European Social Charter signed on 18 October 1961 and ratified by all the Member States. Article 52(2) of the Charter is therefore applicable. The question of recruitment of seamen having the nationality of third States for the crews of vessels flying the flag of a Member State of the Union is governed by Union law and national legislation and practice. Explanation on Article 16 Freedom to conduct a business This Article is based on Court of Justice case-law which has recognised freedom to exercise an economic or commercial activity (see judgments of 14 May 1974, Case 4/73 Nold [1974] ECR 491, paragraph 14 of the grounds, and of 27 September 1979, Case SpA Eridiana and others [1979] ECR 2749, paragraphs 20 and 31 of the grounds) and freedom of contract (see inter alia Sukkerfabriken Nykøbing judgment, Case 151/78 [1979] ECR 1, paragraph 19 of the grounds, and judgment of 5 October 1999, C-240/97 Spain v Commission [1999] ECR I-6571, paragraph 99 of the grounds) and Article 119(1) and (3) of the Treaty on the Functioning of the European Union, which recognises free competition. Of course, this right is to be exercised with respect for Union law and national legislation. It may be subject to the limitations provided for in Article 52(1) of the Charter. Explanation on Article 17 Right to property This Article is based on Article 1 of the Protocol to the ECHR: Every natural or legal person is entitled to the peaceful enjoyment of his possessions. No one shall be deprived of his possessions except in the public interest and subject to the conditions provided for by law and by the general principles of international law. The preceding provisions shall not, however, in any way impair the right of a State to enforce such laws as it deems necessary to control the use of property in accordance with the general interest or to secure the payment of taxes or other contributions or penalties. This is a fundamental right common to all national constitutions. It has been recognised on numerous occasions by the case-law of the Court of Justice, initially in the Hauer judgment (13 December 1979, [1979] ECR 3727). The wording has been updated but, in accordance with Article 52(3), the meaning and scope of the right are the same as those of the right guaranteed by the ECHR and the limitations may not exceed those provided for there. Protection of intellectual property, one aspect of the right of property, is explicitly mentioned in paragraph 2 because of its growing importance and Community secondary legislation. Intellectual property covers not only literary and artistic property but also inter alia patent and trademark rights and associated rights. The guarantees laid down in paragraph 1 shall apply as appropriate to intellectual property.

100 C 303/24 EN Official Journal of the European Union Explanation on Article 18 Right to asylum The text of the Article has been based on TEC Article 63, now replaced by Article 78 of the Treaty on the Functioning of the European Union, which requires the Union to respect the Geneva Convention on refugees. Reference should be made to the Protocols relating to the United Kingdom and Ireland, annexed to the Treaties, and to Denmark, to determine the extent to which those Member States implement Union law in this area and the extent to which this Article is applicable to them. This Article is in line with the Protocol on Asylum annexed to the Treaties. Explanation on Article 19 Protection in the event of removal, expulsion or extradition Paragraph 1 of this Article has the same meaning and scope as Article 4 of Protocol No 4 to the ECHR concerning collective expulsion. Its purpose is to guarantee that every decision is based on a specific examination and that no single measure can be taken to expel all persons having the nationality of a particular State (see also Article 13 of the Covenant on Civil and Political Rights). Paragraph 2 incorporates the relevant case-law from the European Court of Human Rights regarding Article 3 of the ECHR (see Ahmed v. Austria, judgment of 17 December 1996, 1996-VI, p. 2206, and Soering, judgment of 7 July 1989). TITLE III EQUALITY Explanation on Article 20 Equality before the law This Article corresponds to a general principle of law which is included in all European constitutions and has also been recognised by the Court of Justice as a basic principle of Community law (judgment of 13 November 1984, Case 283/83 Racke [1984] ECR 3791, judgment of 17 April 1997, Case C-15/95 EARL [1997] ECR I 1961, and judgment of 13 April 2000, Case C-292/97 Karlsson [2000] ECR 2737). Explanation on Article 21 Non-discrimination Paragraph 1 draws on Article 13 of the EC Treaty, now replaced by Article 19 of the Treaty on the Functioning of the European Union, Article 14 of the ECHR and Article 11 of the Convention on Human Rights and Biomedicine as regards genetic heritage. In so far as this corresponds to Article 14 of the ECHR, it applies in compliance with it. There is no contradiction or incompatibility between paragraph 1 and Article 19 of the Treaty on the Functioning of the European Union which has a different scope and purpose: Article 19 confers power on the Union to adopt legislative acts, including harmonisation of the Member States' laws and regulations, to combat certain forms of discrimination, listed exhaustively in that Article. Such legislation may cover action of Member State authorities (as well as relations between private individuals) in any area within the limits of the Union's powers. In contrast, the provision in Article 21(1) does not create any power to enact anti-discrimination laws in these areas of Member State or private action, nor does it lay down a sweeping ban of discrimination in such wide-ranging areas. Instead, it only addresses discriminations by the institutions and bodies of the Union themselves, when exercising powers conferred under the Treaties, and by Member States only when they are implementing Union law. Paragraph 1 therefore does not alter the extent of powers granted under Article 19 nor the interpretation given to that Article. Paragraph 2 corresponds to the first paragraph of Article 18 of the Treaty on the Functioning of the European Union and must be applied in compliance with that Article.

101 EN Official Journal of the European Union C 303/25 Explanation on Article 22 Cultural, religious and linguistic diversity This Article has been based on Article 6 of the Treaty on European Union and on Article 151(1) and (4) of the EC Treaty, now replaced by Article 167(1) and (4) of the Treaty on the Functioning of the European Union, concerning culture. Respect for cultural and linguistic diversity is now also laid down in Article 3(3) of the Treaty on European Union. The Article is also inspired by Declaration No 11 to the Final Act of the Amsterdam Treaty on the status of churches and nonconfessional organisations, now taken over in Article 17 of the Treaty on the Functioning of the European Union. Explanation on Article 23 Equality between women and men The first paragraph has been based on Articles 2 and 3(2) of the EC Treaty, now replaced by Article 3 of the Treaty on European Union and Article 8 of the Treaty on the Functioning of the European Union which impose the objective of promoting equality between men and women on the Union, and on Article 157(1) of the Treaty on the Functioning of the European Union. It draws on Article 20 of the revised European Social Charter of 3 May 1996 and on point 16 of the Community Charter on the rights of workers. 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 as regards access to employment, vocational training and promotion, and working conditions. The second paragraph takes over in shorter form Article 157(4) of the Treaty on the Functioning of the European Union which provides that the principle of equal treatment does not prevent the maintenance or adoption of measures providing for specific advantages in order to make it easier for the under-represented sex to pursue a vocational activity or to prevent or compensate for disadvantages in professional careers. In accordance with Article 52(2), the present paragraph does not amend Article 157(4). Explanation on Article 24 The 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 the Member States, particularly Articles 3, 9, 12 and 13 thereof. Paragraph 3 takes account of the fact that, as part of the establishment of an area of freedom, security and justice, the legislation of the Union on civil matters having cross-border implications, for which Article 81 of the Treaty on the Functioning of the European Union confers power, may include notably visiting rights ensuring that children can maintain on a regular basis a personal and direct contact with both of their parents. Explanation on Article 25 The rights of the elderly This Article draws on Article 23 of the revised European Social Charter and Articles 24 and 25 of the Community Charter of the Fundamental Social Rights of Workers. Of course, participation in social and cultural life also covers participation in political life. Explanation on Article 26 Integration of persons with disabilities The principle set out in this Article is based on Article 15 of the European Social Charter and also draws on point 26 of the Community Charter of the Fundamental Social Rights of Workers.

102 C 303/26 EN Official Journal of the European Union TITLE IV SOLIDARITY Explanation on Article 27 Workers' right to information and consultation within the undertaking This Article appears in the revised European Social Charter (Article 21) and in the Community Charter on the rights of workers (points 17 and 18). It applies under the conditions laid down by Union law and by national laws. The reference to appropriate levels refers to the levels laid down by Union law or by national laws and practices, which might include the European level when Union legislation so provides. There is a considerable Union acquis in this field: Articles 154 and 155 of the Treaty on the Functioning of the European Union, and Directives 2002/14/EC (general framework for informing and consulting employees in the European Community), 98/59/EC (collective redundancies), 2001/23/EC (transfers of undertakings) and 94/45/EC (European works councils). Explanation on Article 28 Right of collective bargaining and action This Article is based on Article 6 of the European Social Charter and on the Community Charter of the Fundamental Social Rights of Workers (points 12 to 14). The right of collective action was recognised by the European Court of Human Rights as one of the elements of trade union rights laid down by Article 11 of the ECHR. As regards the appropriate levels at which collective negotiation might take place, see the explanation given for the above Article. The modalities and limits for the exercise of collective action, including strike action, come under national laws and practices, including the question of whether it may be carried out in parallel in several Member States. Explanation on Article 29 Right of access to placement services This Article is based on Article 1(3) of the European Social Charter and point 13 of the Community Charter of the Fundamental Social Rights of Workers. Explanation on Article 30 Protection in the event of unjustified dismissal This Article draws on Article 24 of the revised Social Charter. See also Directive 2001/23/EC on the safeguarding of employees' rights in the event of transfers of undertakings, and Directive 80/987/EEC on the protection of employees in the event of the insolvency of their 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 introduction of measures to encourage improvements in the safety and health of workers at work. It also draws on Article 3 of the Social Charter and point 19 of the Community Charter on the rights of workers, and, as regards dignity at work, on Article 26 of the revised Social Charter. The expression working conditions is to be understood in the sense of Article 156 of the Treaty on the Functioning of the European Union. 2. Paragraph 2 is based on Directive 93/104/EC concerning certain aspects of the organisation of working time, Article 2 of the European Social Charter and point 8 of the Community Charter on the rights of workers. Explanation on Article 32 Prohibition of child labour and protection of young people at work This Article is based on Directive 94/33/EC on the protection of young people at work, Article 7 of the European Social Charter and points 20 to 23 of the Community Charter of the Fundamental Social Rights of Workers.

103 EN Official Journal of the European Union C 303/27 Explanation on Article 33 Family and professional life Article 33(1) is based on Article 16 of the European Social Charter. Paragraph 2 draws on Council Directive 92/85/EEC on the introduction of measures to encourage improvements in the safety and health at work of pregnant workers and workers who have recently given birth or are breastfeeding and Directive 96/34/EC on the framework agreement on parental leave concluded by UNICE, CEEP and the ETUC. It is also based on Article 8 (protection of maternity) of the European Social Charter and draws on Article 27 (right of workers with family responsibilities to equal opportunities and equal treatment) of the revised Social Charter. Maternity covers the period from conception to weaning. 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 point 10 of the Community Charter on the rights of workers. The Union must respect it when exercising the powers conferred on it by Articles 153 and 156 of the Treaty on the Functioning of the European Union. The reference to social services relates to cases in which such services have been introduced to provide certain advantages but does not imply that such services must be created where they do not exist. Maternity must be understood in the same sense as in the preceding Article. Paragraph 2 is based on Articles 12(4) and 13(4) of the European Social Charter and point 2 of the Community Charter of the Fundamental Social Rights of Workers and reflects the rules arising from Regulation (EEC) No 1408/71 and Regulation (EEC) No 1612/68. Paragraph 3 draws on Article 13 of the European Social Charter and Articles 30 and 31 of the revised Social Charter and point 10 of the Community Charter. The Union must respect it in the context of policies based on Article 153 of the Treaty on the Functioning of the European Union. Explanation on Article 35 Health care The principles set out in this Article are based on Article 152 of the EC Treaty, now replaced by Article 168 of the Treaty on the Functioning of the European Union, and on Articles 11 and 13 of the European Social Charter. The second sentence of the Article takes over Article 168(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 sets out the principle of respect by the Union for the access to services of general economic interest as provided for by national provisions, when those provisions are compatible with Union law. Explanation on Article 37 Environmental protection The principles set out in this Article have been 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 also draws on the provisions of some national constitutions.

104 C 303/28 EN Official Journal of the European Union Explanation on Article 38 Consumer protection The principles set out in this Article have been 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 to stand as a candidate at elections to the European Parliament Article 39 applies under the conditions laid down in the Treaties, in accordance with Article 52(2) of the Charter. Arti cle 39(1) corresponds to the right guaranteed in Article 20(2) of the Treaty on the Functioning of the European Union (cf. also the legal base in Article 22 of the Treaty on the Functioning of the European Union for the adoption of detailed arrangements for the exercise of that right) and Article 39(2) corresponds to Article 14(3) of the Treaty on European Union. Article 39(2) takes over the basic principles of the electoral system in a democratic State. Explanation on Article 40 Right to vote and to stand as a candidate at municipal elections This Article corresponds to the right guaranteed by Article 20(2) of the Treaty on the Functioning of the European Union (cf. also the legal base in Article 22 of the Treaty on the Functioning of the European Union for the adoption of detailed arrangements for the exercise of that right). In accordance with Article 52(2) of the Charter, it applies under the conditions defined in these Articles in the Treaties. Explanation on Article 41 Right to good administration Article 41 is based on the existence of the Union as subject to the rule of law whose characteristics were developed in the case-law which enshrined inter alia good administration as a general principle of law (see inter alia Court of Justice judgment of 31 March 1992 in Case C-255/90 P Burban [1992] ECR I-2253, and Court of First Instance judgments of 18 September 1995 in Case T-167/94 Nölle [1995] ECR II-2589, and 9 July 1999 in Case T-231/97 New Europe Consulting and others [1999] ECR II-2403). The wording for that right in the first two paragraphs results from the case-law (Court of Justice judgment of 15 October 1987 in Case 222/86 Heylens [1987] ECR 4097, paragraph 15 of the grounds, judgment of 18 October 1989 in Case 374/87 Orkem [1989] ECR 3283, judgment of 21 November 1991 in Case C-269/90 TU München [1991] ECR I-5469, and Court of First Instance judgments of 6 December 1994 in Case T-450/93 Lisrestal [1994] ECR II-1177, 18 September 1995 in Case T-167/94 Nölle [1995] ECR II-2589) and the wording regarding the obligation to give reasons comes from Article 296 of the Treaty on the Functioning of the European Union (cf. also the legal base in Article 298 of the Treaty on the Functioning of the European Union for the adoption of legislation in the interest of an open, efficient and independent European administration). Paragraph 3 reproduces the right now guaranteed by Article 340 of the Treaty on the Functioning of the European Union. Paragraph 4 reproduces the right now guaranteed by Article 20(2)(d) and Article 25 of the Treaty on the Functioning of the European Union. In accordance with Article 52(2) of the Charter, those rights are to be applied under the conditions and within the limits defined by the Treaties. The right to an effective remedy, which is an important aspect of this question, is guaranteed in Article 47 of this Charter. Explanation on Article 42 Right of access to documents The right guaranteed in this Article has been taken over from Article 255 of the EC Treaty, on the basis of which Regulation (EC) No 1049/2001 has subsequently been adopted. The European Convention has extended this right to documents of institutions, bodies and agencies generally, regardless of their form (see Article 15(3) of the Treaty on the Functioning of the European Union). In accordance with Article 52(2) of the Charter, the right of access to documents is exercised under the conditions and within the limits for which provision is made in Article 15(3) of the Treaty on the Functioning of the European Union.

105 EN Official Journal of the European Union C 303/29 Explanation on Article 43 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) of the Charter, it applies under the conditions defined in these two Articles. Explanation on Article 44 Right to 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) of the Charter, it applies under the conditions defined in these two Articles. Explanation on Article 45 Freedom of movement and of residence The right guaranteed by paragraph 1 is the right guaranteed by Article 20(2)(a) of the Treaty on the Functioning of the European Union (cf. also the legal base in Article 21; and the judgment of the Court of Justice of 17 September 2002, Case C-413/99 Baumbast [2002] ECR I-7091). In accordance with Article 52(2) of the Charter, those rights are to be applied under the conditions and within the limits defined by the Treaties. Paragraph 2 refers to the power granted to the Union by Articles 77, 78 and 79 of the Treaty on the Functioning of the European Union. Consequently, the granting of this right depends on the institutions exercising that power. 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 (cf. also the legal base in Article 23). In accordance with Article 52(2) of the Charter, it applies under the conditions defined in these two Articles. TITLE VI JUSTICE Explanation on Article 47 Right to an effective remedy and to a fair trial The first paragraph is based on Article 13 of the ECHR: Everyone whose rights and freedoms as set forth in this Convention are violated shall have an effective remedy before a national authority notwithstanding that the violation has been committed by persons acting in an official capacity. However, in Union law the protection is more extensive since it guarantees the right to an effective remedy before a court. The Court of Justice enshrined that right in its judgment of 15 May 1986 as a general principle of Union law (Case 222/84 Johnston [1986] ECR 1651; see also judgment of 15 October 1987, Case 222/86 Heylens [1987] ECR 4097 and judgment of 3 December 1992, Case C-97/91 Borelli [1992] ECR I-6313). According to the Court, that general principle of Union law also applies to the Member States when they are implementing Union law. The inclusion of this precedent in the Charter has not been intended to change the system of judicial review laid down by the Treaties, and particularly the rules relating to admissibility for direct actions before the Court of Justice of the European Union. The European Convention has considered the Union's system of judicial review including the rules on admissibility, and confirmed them while amending them as to certain aspects, as reflected in Articles 251 to 281 of the Treaty on the Functioning of the European Union, and in particular in the fourth paragraph of Article 263. Article 47 applies to the institutions of the Union and of Member States when they are implementing Union law and does so for all rights guaranteed by Union law.

106 C 303/30 EN Official Journal of the European Union The second paragraph corresponds to Article 6(1) of the ECHR which reads as follows: In the determination of his civil rights and obligations or of any criminal charge against him, everyone is entitled to a fair and public hearing within a reasonable time by an independent and impartial tribunal established by law. Judgment shall be pronounced publicly but the press and public may be excluded from all or part of the trial in the interests of morals, public order or national security in a democratic society, where the interests of juveniles or the protection of the private life of the parties so require, or to the extent strictly necessary in the opinion of the court in special circumstances where publicity would prejudice the interests of justice. In Union law, the right to a fair hearing is not confined to disputes relating to civil law rights and obligations. That is one of the consequences of the fact that the Union is a community based on the rule of law as stated by the Court in Case 294/83, Les Verts v European Parliament (judgment of 23 April 1986, [1986] ECR 1339). Nevertheless, in all respects other than their scope, the guarantees afforded by the ECHR apply in a similar way to the Union. With regard to the third paragraph, it should be noted that in accordance with the case-law of the European Court of Human Rights, provision should be made for legal aid where the absence of such aid would make it impossible to ensure an effective remedy (ECHR judgment of 9 October 1979, Airey, Series A, Volume 32, p. 11). There is also a system of legal assistance for cases before the Court of Justice of the European Union. Explanation on Article 48 Presumption of innocence and right of defence Article 48 is the same as Article 6(2) and (3) of the ECHR, which reads as follows: 2. Everyone charged with a criminal offence shall be presumed innocent until proved guilty according to law. 3. Everyone charged with a criminal offence has the following minimum rights: (a) to be informed promptly, in a language which he understands and in detail, of the nature and cause of the accusation against him; (b) to have adequate time and facilities for the preparation of his defence; (c) to defend himself in person or through legal assistance of his own choosing or, if he has not sufficient means to pay for legal assistance, to be given it free when the interests of justice so require; (d) to examine or have examined witnesses against him and to obtain the attendance and examination of witnesses on his behalf under the same conditions as witnesses against him; (e) to have the free assistance of an interpreter if he cannot understand or speak the language used in court. In accordance with Article 52(3), this right has the same meaning and scope as the right guaranteed by the ECHR. Explanation on Article 49 Principles of legality and proportionality of criminal offences and penalties This Article follows the traditional rule of the non-retroactivity of laws and criminal sanctions. There has been added the rule of the retroactivity of a more lenient penal law, which exists in a number of Member States and which features in Article 15 of the Covenant on Civil and Political Rights.

107 EN Official Journal of the European Union C 303/31 Article 7 of the ECHR is worded as follows: 1. No one shall be held guilty of any criminal offence on account of any act or omission which did not constitute a criminal offence under national or international law at the time when it was committed. Nor shall a heavier penalty be imposed than the one that was applicable at the time the criminal offence was committed. 2. This Article shall not prejudice the trial and punishment of any person for any act or omission which, at the time when it was committed, was criminal according to the general principles of law recognised by civilised nations. In paragraph 2, the reference to civilised nations has been deleted; this does not change the meaning of this paragraph, which refers to crimes against humanity in particular. In accordance with Article 52(3), the right guaranteed here therefore has the same meaning and scope as the right guaranteed by the ECHR. Paragraph 3 states the general principle of proportionality between penalties and criminal offences which is enshrined in the common constitutional traditions of the Member States and in the case-law of the Court of Justice of the Communities. Explanation on Article 50 Right not to be tried or punished twice in criminal proceedings for the same criminal offence Article 4 of Protocol No 7 to the ECHR reads as follows: 1. No one shall be liable to be tried or punished again in criminal proceedings under the jurisdiction of the same State for an offence for which he has already been finally acquitted or convicted in accordance with the law and penal procedure of that State. 2. The provisions of the preceding paragraph shall not prevent the reopening of the case in accordance with the law and the penal procedure of the State concerned, if there is evidence of new or newly discovered facts, or if there has been a fundamental defect in the previous proceedings, which could affect the outcome of the case. 3. No derogation from this Article shall be made under Article 15 of the Convention. The non bis in idem rule applies in Union law (see, among the many precedents, the judgment of 5 May 1966, Joined Cases 18/65 and 35/65 Gutmann v Commission [1966] ECR 149 and a recent case, the decision of the Court of First Instance of 20 April 1999, Joined Cases T-305/94 and others Limburgse Vinyl Maatschappij NV v Commission [1999] ECR II-931). The rule prohibiting cumulation refers to cumulation of two penalties of the same kind, that is to say criminal-law penalties. In accordance with Article 50, the non bis in idem rule applies not only within the jurisdiction of one State but also between the jurisdictions of several Member States. That corresponds to the acquis in Union law; see Articles 54 to 58 of the Schengen Convention and the judgment of the Court of Justice of 11 February 2003, C-187/01 Gözütok [2003] ECR I-1345, Article 7 of the Convention on the Protection of the European Communities' Financial Interests and Article 10 of the Convention on the fight against corruption. The very limited exceptions in those Conventions permitting the Member States to derogate from the non bis in idem rule are covered by the horizontal clause in Article 52(1) of the Charter concerning limitations. As regards the situations referred to by Article 4 of Protocol No 7, namely the application of the principle within the same Member State, the guaranteed right has the same meaning and the same scope as the corresponding right in the ECHR.

108 C 303/32 EN Official Journal of the European Union TITLE VII GENERAL PROVISIONS GOVERNING THE INTERPRETATION AND APPLICATION OF THE CHARTER Explanation on Article 51 Field of application The aim of Article 51 is to determine the scope of the Charter. It seeks to establish clearly that the Charter applies primarily to the institutions and bodies of the Union, in compliance with the principle of subsidiarity. This provision was drafted in keeping with Article 6(2) of the Treaty on European Union, which required the Union to respect fundamental rights, and with the mandate issued by the Cologne European Council. The term institutions is enshrined in the Treaties. The expression bodies, offices and agencies is commonly used in the Treaties to refer to all the authorities set up by the Treaties or by secondary legislation (see, e.g., Articles 15 or 16 of the Treaty on the Functioning of the European Union). As regards the Member States, it follows unambiguously from the case-law of the Court of Justice that the requirement to respect fundamental rights defined in the context of the Union is only binding on the Member States when they act in the scope of Union law (judgment of 13 July 1989, Case 5/88 Wachauf [1989] ECR 2609; judgment of 18 June 1991, Case C-260/89 ERT [1991] ECR I-2925; judgment of 18 December 1997, Case C-309/96 Annibaldi [1997] ECR I-7493). The Court of Justice confirmed this case-law in the following terms: In addition, it should be remembered that the requirements flowing from the protection of fundamental rights in the Community legal order are also binding on Member States when they implement Community rules... (judgment of 13 April 2000, Case C-292/97 [2000] ECR I-2737, paragraph 37 of the grounds). Of course this rule, as enshrined in this Charter, applies to the central authorities as well as to regional or local bodies, and to public organisations, when they are implementing Union law. Paragraph 2, together with the second sentence of paragraph 1, confirms that the Charter may not have the effect of extending the competences and tasks which the Treaties confer on the Union. Explicit mention is made here of the logical consequences of the principle of subsidiarity and of the fact that the Union only has those powers which have been conferred upon it. The fundamental rights as guaranteed in the Union do not have any effect other than in the context of the powers determined by the Treaties. Consequently, an obligation, pursuant to the second sentence of paragraph 1, for the Union's institutions to promote principles laid down in the Charter may arise only within the limits of these same powers. Paragraph 2 also confirms that the Charter may not have the effect of extending the field of application of Union law beyond the powers of the Union as established in the Treaties. The Court of Justice has already established this rule with respect to the fundamental rights recognised as part of Union law (judgment of 17 February 1998, C-249/96 Grant [1998] ECR I-621, paragraph 45 of the grounds). 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 as extending by itself the range of Member State action considered to be implementation of Union law (within the meaning of paragraph 1 and the above-mentioned case-law). Explanation on Article 52 Scope and interpretation of rights and principles The purpose of Article 52 is to set the scope of the rights and principles of the Charter, and to lay down rules for their interpretation. Paragraph 1 deals with the arrangements for the limitation of rights. The wording is based on the case-law of the Court of Justice:... it is well established in the case-law of the Court that restrictions may be imposed on the exercise of fundamental rights, in particular in the context of a common organisation of the market, provided that those restrictions in fact correspond to objectives of general interest pursued by the Community and do not constitute, with regard to the aim pursued, disproportionate and unreasonable interference undermining the very substance of those rights (judgment of 13 April 2000, Case C-292/97, paragraph 45 of the grounds). The reference to general interests recognised by the Union covers both the objectives mentioned in Article 3 of the Treaty on European Union and other interests protected by specific provisions of the Treaties such as Article 4(1) of the Treaty on European Union and Articles 35(3), 36 and 346 of the Treaty on the Functioning of the European Union.

109 EN Official Journal of the European Union C 303/33 Paragraph 2 refers to rights which were already expressly guaranteed in the Treaty establishing the European Community and have been recognised in the Charter, and which are now found in the Treaties (notably the rights derived from Union citizenship). It clarifies that such rights remain subject to the conditions and limits applicable to the Union law on which they are based, and for which provision is made in the Treaties. The Charter does not alter the system of rights conferred by the EC Treaty and taken over by the Treaties. Paragraph 3 is intended to ensure the necessary consistency between the Charter and the ECHR by establishing the rule that, in so far as the rights in the present Charter also correspond to rights guaranteed by the ECHR, the meaning and scope of those rights, including authorised limitations, are the same as those laid down by the ECHR. This means in particular that the legislator, in laying down limitations to those rights, must comply with the same standards as are fixed by the detailed limitation arrangements laid down in the ECHR, which are thus made applicable for the rights covered by this paragraph, without thereby adversely affecting the autonomy of Union law and of that of the Court of Justice of the European Union. The reference to the ECHR covers both the Convention and the Protocols to it. The meaning and the scope of the guaranteed rights are determined not only by the text of those instruments, but also by the case-law of the European Court of Human Rights and by the Court of Justice of the European Union. The last sentence of the paragraph is designed to allow the Union to guarantee more extensive protection. In any event, the level of protection afforded by the Charter may never be lower than that guaranteed by the ECHR. The Charter does not affect the possibilities of Member States to avail themselves of Article 15 ECHR, allowing derogations from ECHR rights in the event of war or of other public dangers threatening the life of the nation, when they take action in the areas of national defence in the event of war and of the maintenance of law and order, in accordance with their responsibilities recognised 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 list of rights which may at the present stage, without precluding developments in the law, legislation and the Treaties, be regarded as corresponding to rights in the ECHR within the meaning of the present paragraph is given hereafter. It does not include rights additional to those in the ECHR. 1. Articles of the Charter where both the meaning and the scope are the same as the corresponding Articles of the ECHR: Article 2 corresponds to Article 2 of the ECHR, Article 4 corresponds to Article 3 of the ECHR, Article 5(1) and (2) corresponds to Article 4 of the ECHR, Article 6 corresponds to Article 5 of the ECHR, Article 7 corresponds to Article 8 of the ECHR, Article 10(1) corresponds to Article 9 of the ECHR, Article 11 corresponds to Article 10 of the ECHR without prejudice to any restrictions which Union law may impose on Member States' right to introduce the licensing arrangements referred to in the third sentence of Article 10(1) of the ECHR,

110 C 303/34 EN Official Journal of the European Union Article 17 corresponds to Article 1 of the Protocol to the ECHR, Article 19(1) corresponds to Article 4 of Protocol No 4, 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(2) and(3) of the ECHR, Article 49(1) (with the exception of the last sentence) and (2) correspond to Article 7 of the ECHR. 2. Articles where the meaning is the same as the corresponding Articles of the ECHR, but where the scope is wider: Article 9 covers the same field as Article 12 of the ECHR, but its scope may be extended to other forms of marriage if these are established by national legislation, Article 12(1) corresponds to Article 11 of the ECHR, but its scope is extended to European Union level, Article 14(1) corresponds to Article 2 of the Protocol to the ECHR, but its scope is extended to cover access to vocational and continuing training, Article 14(3) corresponds to Article 2 of the Protocol to the ECHR as regards the rights of parents, Article 47(2) and (3) corresponds to Article 6(1) of the ECHR, but the limitation to the determination of civil rights and obligations or criminal charges does not apply as regards Union law and its implementation, Article 50 corresponds to Article 4 of Protocol No 7 to the ECHR, but its scope is extended to European Union level between the Courts of the Member States, Finally, citizens of the European Union may not be considered as aliens in the scope of the application of Union law, because of the prohibition of any discrimination on grounds of nationality. The limitations provided for by Article 16 of the ECHR as regards the rights of aliens therefore do not apply to them in this context. The rule of interpretation contained in paragraph 4 has been based on the wording of Article 6(3) of the Treaty on European Union and takes due account of the approach to common constitutional traditions followed by the Court of Justice (e.g., judgment of 13 December 1979, Case 44/79 Hauer [1979] ECR 3727; judgment of 18 May 1982, Case 155/ 79 AM&S [1982] ECR 1575). Under that rule, rather than following a rigid approach of a lowest common denominator, the Charter rights concerned should be interpreted in a way offering a high standard of protection which is adequate for the law of the Union and in harmony with the common constitutional traditions.

111 EN Official Journal of the European Union C 303/35 Paragraph 5 clarifies the distinction between rights and principles set out in the Charter. According to that distinction, subjective rights shall be respected, whereas principles shall be observed (Article 51(1)). Principles may be implemented through legislative or executive acts (adopted by the Union in accordance with its powers, and by the Member States only when they implement Union law); accordingly, they become significant for the Courts only when such acts are interpreted or reviewed. They do not however give rise to direct claims for positive action by the Union's institutions or Member States authorities. This is consistent both with case-law of the Court of Justice (cf. notably case-law on the precautionary principle in Article 191(2) of the Treaty on the Functioning of the European Union: judgment of the CFI of 11 September 2002, Case T-13/99 Pfizer v Council, with numerous references to earlier case-law; and a series of judgments on Article 33 (ex-39) on the principles of agricultural law, e.g. judgment of the Court of Justice in Case 265/85 Van den Berg [1987] ECR 1155: scrutiny of the principle of market stabilisation and of reasonable expectations) and with the approach of the Member States' constitutional systems to principles, particularly in the field of social law. For illustration, examples for principles, recognised in the Charter include e.g. Articles 25, 26 and 37. In some cases, an Article of the Charter may contain both elements of a right and of a principle, e.g. Articles 23, 33 and 34. Paragraph 6 refers to the various Articles in the Charter which, in the spirit of subsidiarity, make reference to national laws and practices. Explanation on Article 53 Level of protection This provision is intended to maintain the level of protection currently afforded within their respective scope by Union law, national law and international law. Owing to its importance, mention is made of the ECHR. Explanation on Article 54 Prohibition of abuse of rights This Article corresponds to Article 17 of the ECHR: Nothing in this Convention may be interpreted as implying for any State, group or person any right to engage in any activity or perform any act aimed at the destruction of any of the rights and freedoms set forth herein or at their limitation to a greater extent than is provided for in the Convention..

112 Jurisprudence: The Key The Judgments and Opinions are classified in such a way as to highlight the different methods of citation used by Judges and the Advocates General and additionally to qualify and distinguish the hypotheses in which the Charter has either come to be used as a mere interpretative support or alternatively, as if it were already binding. Two main methods are used to differentiate the data i) highlighting the hypotheses green, violet, yellow and blue so as to more easily distinguish the different hypotheses considered; ii) to cite the precise passage in which the Judges or Advocates General refer to the Charter. Where the reference is not considered significant, it has been placed in the category of other. The methods of citation under consideration refer to two principal categories. The first regards the hypothesis in which a mere occasional reference is made to the Charter. Here its importance is derived exclusively from its political weight. Generic reference is made to the Charter s political authoritativeness in the argumentation logic of the judicial decision making. This hypothesis has been highlighted in green and violet. Green has been used every time the Charter has been made in a comment ( footnote reference ) and violet in the residual hypothesis ( other ), that is, in all cases in which the Charter is, for example, referenced by the applicant, or by both parties, but not by the judges. The second category regards the hypotheses in which the Charter is used as if it were already binding. When this is the case, the Charter s juridical value is heightened through direct application, or more commonly, indirect application. Direct application is intended as being those instances where the decision is actually based on the article referenced and this has been highlighted in yellow. Indirect application is defined as instances where the Charter enters into the legal reasoning of the judge, conditioning the judgment but not technically forming the basis for the decision. This hypothesis the most recurrent - has been highlighted in blue. Colour Method of Citation Indirect Application Direct Application Footnote Reference Other

113 Year 2001 Date Case n Adv Gen Quoted Art Subject 01/02/2001 C-340/99 S. Alber 36 Competition Indirect application 94 "Article 90(2) of the EC Treaty provides that undertakings entrusted with the operation of services of general economic interest are subject to the rules contained in the Treaty only in so far as the performance in law or in fact of the particular tasks assigned to them is not thereby obstructed. The newly promulgated Article16 EC and Article 36 of the Charter of Fundamental Rights of the European Union underline the importance of this exception as an expression of a fundamental value judgment of Community law." Opinions Page 1 of 91

114 Date Case n Adv Gen Quoted Art Subject 08/02/2001 C-173/99 A. Tizzano 31 Social Policy Direct application 26."Even more significant, it seems to me, is the fact that that right is now solemnly upheld in the Charter of Fundamental Rights of the European Union, published on 7 December 2000 by the European Parliament, the Council and the Commission after approval by the Heads of State and Government of the Member States, often on the basis of an express and specific mandate from the nationalparliaments. (11) Article 31(2) of the Charter declares that: 'Every worker has the right to limitation of maximum working hours, to daily and weekly rest periods and to an annual period of paid leave. And that statement, as expressly declared by the Presidium of the Convention which drew up the Charter, is inspired precisely by Article 2 of the European Social Charter and by paragraph 8 of the Community Charter of Workers' Rights, and also took due account 'of Directive 93/104/EC concerning certain aspects of the organisation of working time. 27. Admittedly, like some of the instruments cited above, the Charter of Fundamental Rights of the European Union has not been recognised as having genuine legislative scope in the strict sense. In other words, formally, it is not in itself binding. However, without wishing to participate here in the wide-ranging debate now going on as to the effects which, in other forms and by other means, the Charter may nevertheless produce, the fact remains that it includes statements which appear in large measure to reaffirm rights which are enshrined in other instruments. In its preamble, it is moreover stated that 'this Charter reaffirms, with due regard for the powers and tasks of the Community and the Union and the principle of subsidiarity, the rights as they result, in particular, from the constitutional traditions and international obligations common to the Member States, the Treaty on European Union, the Community Treaties, the European Convention for the Protection of Human Rights and Fundamental Freedoms, the Social Charters adopted by the Community and by the Council of Europe and the case-law of the Court of Justice of the European Communities and of the European Court of Human Rights. 28. I think therefore that, in proceedings concerned with the nature and scope of a fundamental right, the relevant statements of the Charter cannot be ignored; in particular, we cannot ignore its clear purpose of serving, where its provisions so allow, as a substantive point of reference for all those involved - Member States, institutions, natural and legal persons - in the Community context. Accordingly, I consider that the Charter provides us with the most reliable and definitive confirmation of the fact that the right to paid annual leave constitutes a fundamental right." Opinions Page 2 of 91

115 Date Case n Adv Gen Quoted Art Subject 22/02/2001 C-122/99 P e J. Mischo 9 Staff regulations C-125/99 P Indirect application 97. "Article 9 of the Charter of Fundamental Rights of the European Union promulgated in Nice in December 2000 provides that The right to marry and the right to found a family shall be guaranteed in accordance with the national laws governing the exercise of these rights. In the explanations drawn up under the aegis of the presidium of the convention, which do not have any legal value but which are simply designed to clarify the provisions of the Charter in the light of the discussions which took place within the convention, there is the remark that Article 9 neither prohibits nor requires the grant of the status of marriage to relationships between persons of the same sex. In my opinion, that confirms the difference between marriage and a relationship between two people of the same sex.". Date Case n Adv Gen Quoted Art Subject 31/05/2001 C-49/00 C. Stix-Hackl 31 Social Policy Note Opinions Page 3 of 91

116 Date Case n Adv Gen Quoted Art Subject 14/06/2001 C-377/98 F.G. Jacobs 1, 3 Law governing the institutions Direct application 197. "There can be no doubt in my view that the rights invoked by the Netherlands are indeed fundamental rights, respect for which must be ensured in the Community legal order. The right to human dignity is perhaps the most fundamental right of all, and is now expressed in Article 1 of the Charter of Fundamental Rights of the European Union, which states that human dignity is inviolable and must be respected and protected. The right to free and informed consent both of donors of elements of the human body and of recipients of medical treatment can also properly be regarded as fundamental; it is also now reflected in Article 3(2) of the EU Charter which requires in the fields of medicine and biology respect for the free and informed consent of the person concerned, according to procedures laid down by law. It must be accepted that any Community instrument infringing those rights would be unlawful." "It is of course clearly desirable that no element of human origin should be taken from a person without their consent. That principle is expressed at the forefront of the EU Charter of Fundamental Rights; it is also enshrined in Chapter II of the Council of Europe Convention on human rights and biomedicine, which provides that an intervention in the health field may only be carried out after the person concerned has given free and informed consent to it". Opinions Page 4 of 91

117 Date Case n Adv Gen Quoted Art Subject 05/07/2001 C-413/99 L.A. Geelhoed 7, 45, 52 Free movement of persons Indirect application 59. "Article 8 of the ECHR provides that every person has the right to respect for family life. As a general principle there is family life where there is a lawful and genuine marriage. Other relationships of sufficient permanence stand on the same footing as such a marriage. Moreover the family may only be broken in exceptional circumstances by subsequent events. I would also point out that Article 7 of the European Union's Charter of Fundamental Rights (39) enshrines respect for family life. However, as Community law currently stands, that Charter has no binding force." "First, the unconditional nature of the first part of Article 18 EC entails that the right of residence must be a recognisable right of substance for citizens. In this respect Article 18 EC is in the nature of a guarantee provision. The article lays down requirements to be met by EC law in the area of freedom of movement for persons. The conditions laid down by EC law may not be arbitrary and may not deprive the right of residence of its substantive content. In that connection I refer to the requirements laid down by Advocate General Cosmas which are to be met by any conditions and limitations on the right of residence. I also find support for my view in the Charter of Fundamental Rights of the European Union. Article 45 of that charter which, as I have said, is non-binding recognises a right of residence in favour of citizens of the Union, whereas Article 52 provides as follows in regard to restrictions on the exercise of rights recognised by the Charter. They must respect the essence of those rights and freedoms. Subject to the principle of proportionality, limitations may be made only if they are necessary and genuinely meet objectives of general interest recognised by the Union...»". Opinions Page 5 of 91

118 Date Case n Adv Gen Quoted Art Subject 10/07/2001 C-309/99 P. Léger Preamble, 47 Competition Note Opinions Page 6 of 91

119 Date Case n Adv Gen Quoted Art Subject 10/07/2001 C-353/99 P P. Léger 42, 52 Law governing the institutions Indirect application - Pronouncements on the binding force of the Charter 80. "Naturally, the clearly-expressed wish of the authors of the Charter not to endow it with binding legal force should not be overlooked. (48) However, aside from any consideration regarding its legislative scope, the nature of the rights set down in the Charter of Fundamental Rights precludes it from being regarded as a mere list of purely moral principles without any consequences. It should be noted that those values have in common the fact of being unanimously shared by the Member States, which have chosen to make them more visible by placing them in a charter in order to increase their protection. (49) The Charter has undeniably placed the rights which form its subject-matter at the highest level of values common to the Member States. 81. It is known that the political and moral values of a society are not all to be found in positive law. However, where rights, freedoms and principles are described, as in the Charter, as needing to occupy the highest level of reference values within all the Member States, it would be inexplicable not to take from it the elements which make it possible to distinguish fundamental rights from other rights. 82. The sources of those rights, listed in the preamble to the Charter, are for the most part endowed with binding force within the Member States and the European Union. (50) It is natural for the rules of positive Community law to benefit, for the purposes of their interpretation, from the position of the values with which they correspond in the hierarchy of common values. 83. As the solemnity of its form and the procedure which led to its adoption would give one to assume, the Charter was intended to constitute a privileged instrument for identifying fundamental rights. It is a source of guidance as to the true nature of the Community rules of positive law. 84. In this case, the between Article 42 of the Charter and Article 255 EC is evidenced by the explanatory note to Article 42, which states that [t]he right guaranteed in this Article is the right guaranteed by Article 255 of the EC Treaty. It cannot be made more plain that the right contained in Article 255 EC is now clearly described as corresponding to a fundamental right within the meaning of the Charter. 85. It is true that, according to the same explanatory note, [i]n accordance with Article 52(2) [of that Charter, that right] applies under the conditions defined by the Treaty. (51) The content of the right of access to documents, as set out in the Charter, is thus delimited by the provisions of Article 255 EC. That delimitation is the logical consequence of the Opinions Page 7 of 91

120 difference in legislative value between the Charter and the binding provisions of the Treaty. 86. That should not, however, cause us to overlook the fundamental nature of that right, as affirmed by the Member States of the Union at the time it was introduced into the Charter. Although not enshrining a positive right itself, Article 42 of the Charter confers on that right a quality which should provide guidance for its interpretation. I consider that where it is decided that a right should be classified as a fundamental right the authorities responsible for applying it are under a strict requirement to give it the wide interpretation demanded by its true nature.". Date Case n Adv Gen Quoted Art Subject 12/07/2001 C-131/00 C. Stix-Hackl 49 Agricolture Note Date Case n Adv Gen Quoted Art Subject 12/07/2001 C-313/99 L.A. Geelhoed 17 Agricolture Indirect application 28. "The requirement that there be a lawful power to reduce an individual milk quota is also a consequence of the right to property. As I have already stated, in the course of its existence a milk quota has become a kind of independent asset which can be sold on the market. At first sight, they have thereby also become assets to which the person entitled can claim a right to property. That person thereby acquires inter alia the protection of Article 1 of the Protocol No 1 to the European Convention on Human Rights. I also note that Article 17 of the Charter of Fundamental Rights of the European Union (13) recognises the principle of respect for the right to property. As Community law currently stands, however, the Charter does not have any binding effect". Opinions Page 8 of 91

121 Date Case n Adv Gen Quoted Art Subject 13/09/2001 C-459/99 C. Stix-Hackl 7 Free movement of persons Note Date Case n Adv Gen Quoted Art Subject 13/09/2001 C-60/00 C. Stix-Hackl 7 Freedom of establishment Note Opinions Page 9 of 91

122 Date Case n Adv Gen Quoted Art Subject 20/09/2001 C-20/00 e C- J. Mischo 17 Principles of 64/00 Community law Indirect application - Pronouncements on the binding force of the Charter 125. "I note, lastly, that the European Union Charter of Fundamental Rights, proclaimed in December 2000 at the European Council of Nice, likewise does not encourage the conclusion that the protection of the right to private property requires that the owners of animals affected by an epidemic, or animal disease, have a right to compensation I know that the Charter is not legally binding, but it is worthwhile referring to it given that it constitutes the expression, at the highest level, of a democratically established political consensus on what must today be considered as the catalogueof fundamental rights guaranteed by the Community legal order. On the right of property, Article 17 of the Charter states that: '1. Everyone has the right to own, use, dispose of and bequeath his or her lawfully acquired possessions. No one may be deprived of his or her possessions, except in the public interest and in the cases and under the conditions provided for by law, subject to fair compensation being paid in good time for their loss. The use of property may be regulated by law in so far as is necessary for the general interest. 2. Intellectual property shall be protected On reading this text, it is immediately apparent that it adopts the distinction already laid down in the European Convention of Human Rights, and carefully distinguishes between deprivation of property, and control of the use of goods, requiring the payment of compensation for the former, but having no word on the subject for the latter Having regard to the discussions to which this distinction has given rise in the context of the European Convention on Human Rights, it does not appear to me possible that this silence is the result of accidental oversight Furthermore, I share the view of the Commission that the measures in question in the present cases do not constitute expropriations, but extreme cases of limitation of the use of goods.". Opinions Page 10 of 91

123 Date Case n Adv Gen Quoted Art Subject 27/11/2001 C- 210/00 C. Stix-Hackl 16 Agricolture Note Date Case n Adv Gen Quoted Art Subject 04/12/2001 C-208/00 D. Ruiz-Jarabo 17, 47 Freedom of Colomer establishment Indirect application 59. "The same idea prevails in the light of Article 47 (right to an effective legal remedy and to a fair trial) and Article 17 (right to property) of the Charter of Fundamental Rights of the European Union, proclaimed in Nice on 7 December 2000, which, whilst not having genuine legislative scope in the strict sense, as it is not in itself binding, is an invaluable reflection of the common denominator of the legal values paramount in Member States, from which emanate, in their turn, the general principles of Community law". Date Case n Adv Gen Quoted Art Subject 06/12/2001 C-224/00 C. Stix-Hackl 41 Principles of Community law Direct application 58. Furthermore, it should be noted that Article 41 of the - legally non-binding - Charter of Fundamental Rights of the European Union incorporates a right to good administration, in particular the right to a hearing.. Opinions Page 11 of 91

124 Year 2002 Date Case n Adv Gen Quoted Art Subject 21/02/2002 C-224/98 L.A. Geelhoed Generic Reference Free movement of persons Note Date Case n Adv Gen Quoted Art Subject 21/03/2002 C-50/00 F.G. Jacobs 47 Agricolture Indirect application 39 "That principle is, as the Court has repeatedly stated, grounded in the constitutional traditions common to the Member States and in Articles 6 and 13 of the European Convention on Human Rights. (30) Moreover, the Charter of fundamental rights of the European Union, while itself not legally binding, proclaims a generally recognised principle in stating in Article 47 that [e]veryone whose rights and freedoms guaranteed by the law of the Union are violated has the right to an effective remedy before a tribunal.»". Opinions Page 12 of 91

125 Date Case n Adv Gen Quoted Art Subject 30/04/2002 C-126/01 F.G. Jacobs 36 State aid Indirect application 124. "A second advantage of the proposed distinction is that it gives appropriate weight to the importance now attached to services of general interest, as recognised in Article 16 EC and in Article 36 of the EU Charter of Fundamental Rights, while avoiding the risk of circumvention of the State aid rules. It thus strikes a balance between those potentially conflicting policies; it also avoids the objections which may be made to the exclusive use of one or other of the compensation approach on the one hand or the State aid approach on the other hand." Opinions Page 13 of 91

126 Date Case n Adv Gen Quoted Art Subject 11/07/2002 C-466/00 D. Ruiz-Jarabo Colomer Generic Reference Free movement of persons Pronouncements on the binding force of the Charter (Note) Note 74. " As regards the Charter of Fundamental Rights of the European Union, proclaimed in Nice on 7 December 2000 (OJ 2000 C 364, p. 1), which contains a more extensive and up-to-date list of rights and freedoms than the Convention, some Advocates General, within the Court of Justice and without ignoring the fact that the Charter does not have any autonomous binding effect, have nevertheless emphasised its clear purpose of serving as a substantive point of reference for all those involved in the Community context (Opinion of Advocate General Tizzano of 8 February 2001 in Case C-173/99 BECTU [2001] ECR I-4881, especially I-4883, point 28), point out that it has placed the rights which it recognises at the highest level of the hierarchy of values common to the Member States and necessarily constitutes a privileged instrument for identifying fundamental rights (Opinion of Advocate General Léger of 10 July 2001 in Case C- 353/99 P Council v Hautala [2001] ECR I-9565, points 82 and 83), or argue that it constitutes an invaluable source for the purposes of ascertaining the common denominator of the essential legal values prevailing in the Member States, from which the general principles of Community law in turn emanate (my Opinion of 4 December 2001 in Case C- 208/00 Überseering [2002] ECR I-9919, point 59)". Opinions Page 14 of 91

127 Date Case n Adv Gen Quoted Art Subject 10/09/2002 C-491/01 L.A. Geelhoed 17, 47 Approximation of laws Indirect application 47. "It ought, however, to be pointed out that a different conclusion - leading to inadmissibility - would mean that the Community legal order does not provide effective safeguards for the claimants' rights. As a result, no account would be taken of this important general principle of law that has been consistently recognised by the Court as underlying the constitutional traditions common to the Member States. This principle of law is laid down in Articles 6 and 13 of the European Convention for the Protection of Human Rights and Fundamental Freedoms ( the ECHR ) and is expressed for the European Union in Article 47 of the Charter of Fundamental Rights." 259. "The right to property is not a right recognised as such by the EC or EU Treaties. Article 17 of the Charter of Fundamental Rights does, it is true, recognise the right to property (and the protection of intellectual property). With regard to the present legal position, however, I attach more importance to Article 6 EU. That article requires the European Union to respect fundamental rights, as guaranteed by, inter alia, the ECHR, as general principles of Community law. One of those fundamental rights is the right to property, as referred to in Article 1, First Protocol, of the ECHR." Date Case n Adv Gen Quoted Art Subject 19/09/2002 C-187/01 e C- D. Ruiz-Jarabo 47, 50 Justice and Home 385/01 Colomer Affaire Note Opinions Page 15 of 91

128 Date Case n Adv Gen Quoted Art Subject 17/10/2002 C-338/00 D. Ruiz-Jarabo 48 Competition Colomer Indirect application (note) Opinions Page 16 of 91

129 Date Case n Adv Gen Quoted Art Subject 24/10/2002 C-63/01 S. Alber 47, 51 Approximation of laws Indirect application 80. "Reference should also be made to Article 47 of the Charter of Fundamental Rights, (55) which, admittedly, does not yet have any binding legal effect. It can, however, be used as a standard of comparison, at least in so far as it addresses generally recognised principles of law. According to its Article 51, the Charter is also to apply to Member States when implementing Union law. The first and second paragraphs of Article 47 of the Charter provide as follows: Everyone whose rights and freedoms guaranteed by the law of the Union are violated has the right to an effective remedy before a tribunal in compliance with the conditions laid down in this Article. Everyone is entitled to a fair and public hearing within a reasonable time by an independent and impartial tribunal previously established by law....»". 84. "As already indicated above, the Directive also gives an injured person a substantive right, vindication of which by the courts also follows from Community law. It is thus necessary to examine whether the factors pointing to effective legal protection are present. Article 6 of the ECHR, already incorporated into Community law, and Article 47 of the Fundamental Rights Charter, which cover in large measure the same substantive ground, may serve as a guideline for this purpose. 85. For the purpose of casting doubt on this method of proceeding, however, the United Kingdom Government has pointed out that it is already questionable whether the rights of a victim are civil rights within the meaning of Article 6 of the ECHR. In the examination of the nature of the claim, for the purpose of drawing any conclusions as to the right to interest, the civil-law context of the claim for compensation was considered. On this basis, one ought here to be able to proceed on the basis of a claim in civil law. However, even if the claim is, for whatever reason, a claim for compensation under public law, this could not provide justification if the person injured remains deprived of legal protection in its enforcement. Moreover, no comparable restriction on civil-law claims can be inferred from Article 47 of the Fundamental Rights Charter either. It is thus sufficient if what is in issue is a right guaranteed by the law of the Union. A claim for compensation under Article 1 of the Second Directive must unquestionably be treated as being such a right. 86. A feature common to Article 6 of the ECHR and Article 47 of the Fundamental Rights Charter is that legal protection must be guaranteed by an independent and impartial court or tribunal established by law and also operating publicly in accordance with fair procedure." Opinions Page 17 of 91

130 Date Case n Adv Gen Quoted Art Subject 07/11/2002 Da C-34/01 a C. Stix-Hackl 36 Competition C-38/01 Note Date Case n Adv Gen Quoted Art Subject 14/11/2002 C-465/00, C- A. Tizzano 7, 8 Approximation of 138/01 e 139/01 laws Note Opinions Page 18 of 91

131 Date Case n Adv Gen Quoted Art Subject 28/11/2002 C-186/01 C. Stix-Hackl 20, 21, 23, 51 Social Policy Quoted by applicant - Pronouncements on the binding force of the Charter 52. " On the Charter of the European Union, the Commission submits that Articles 20, 21 and 23 of the Charter concerning the principle of equality and the prohibition of discrimination between men and women apply, in accordance with Article 51 of the Charter, to legal acts of the Member States only where they implement the law of the Union, which is not the case here." Opinions Page 19 of 91

132 Year 2003 Date Case n Adv Gen Quoted Art Subject 06/02/2003 C-25/02 L.A. Geelhoed 20, 21, 23 Freedom of establishment Quoted by applicant Date Case n Adv Gen Quoted Art Subject 11/02/2003 C- 217/00 P D. Ruiz-Jarabo 41, 47, 48 Competition Colomer Indirect application 30. "The Charter of Fundamental Rights of the European Union takes the matter further, since, in addition to providing that an accused is entitled to defend his legal position in a fair and public judicial procedure, before an independent and impartial tribunal previously established by law, it also provides that every person has the right to be heard by the institutions of the European Union before any individual measure which could affect him or her adversely is taken and the right to have access to his or her file". Opinions Page 20 of 91

133 Date Case n Adv Gen Quoted Art Subject 11/02/2003 C-204/00 P D. Ruiz-Jarabo 41, 47, 48 Competition Colomer Indirect application 27. "The Charter of Fundamental Rights of the European Union (29) takes the matter further, since, in addition to providing that an accused is entitled to defend his legal position in a fair and public judicial procedure, before an independent and impartial tribunal previously established by law, it also provides that every person has the right to be heard by the institutions of the European Union before any individual measure which could affect him or her adversely is taken and the right to have access to his or her file". Date Case n Adv Gen Quoted Art Subject 11/02/2003 C-205/00 P D. Ruiz-Jarabo 41, 47, 48 Competition Colomer Indirect application 33. "The Charter of Fundamental Rights of the European Union takes the matter further, since, in addition to providing that an accused is entitled to defend his legal position in a fair and public judicial procedure, before an independent and impartial tribunal previously established by law, it also provides that every person has the right to be heard by the institutions of the European Union before any individual measure which could affect him or her adversely is taken and the right to have access to his or her file.". Opinions Page 21 of 91

134 Date Case n Adv Gen Quoted Art Subject 11/02/2003 C-213/00 P D. Ruiz-Jarabo 41, 47, 48 Competition Colomer Indirect application 27. "The Charter of Fundamental Rights of the European Union (26) takes the matter further, since, in addition to providing that an accused is entitled to defend his legal position in a fair and public judicial procedure, before an independent and impartial tribunal previously established by law, it also provides that every person has the right to be heard by the institutions of the European Union before any individual measure which could affect him or her adversely is taken and the right to have access to his or her file.". Date Case n Adv Gen Quoted Art Subject 11/02/2003 C-219/00 P D. Ruiz-Jarabo 41, 47, 48 Competition Colomer Indirect application 26. "The Charter of Fundamental Rights of the European Union takes the matter further, since, in addition to providing that an accused is entitled to defend his legal position in a fair and public judicial procedure, before an independent and impartial tribunal previously established by law, it also provides that every person has the right to be heard by the institutions of the European Union before any individual measure which could affect him adversely is taken and the right to have access to his file". Opinions Page 22 of 91

135 Date Case n Adv Gen Quoted Art Subject 02/04/2003 C-256/01 L.A. Geelhoed 21, 23 Social Policy Indirect application 53. "I share the view taken by the Commission in this connection, though it is not easy to accept. The unmistakeable phenomenon within the Community of a shift away from traditional employment relationships to more flexible arrangements, such as forms of self-employment, raises the more general question as to the consequences to be drawn from that phenomenon by the Community legislature concerning the specific protection conferred by Community law on workers whether employed or self-employed. The principle of equal treatment, laid down as a fundamental legal principle in Articles 13 and 141 EC and Articles 21(1) and 23 of the Charter of Fundamental Rights of the European Union, is an essential feature of that protection. That justifies specific action by the Community legislature under Article 141(3) EC. In my view such action may precede other measures to ensure the protection of workers for which under Article 137(2)(b) unanimity in the Council is required.". Date Case n Adv Gen Quoted Art Subject 08/04/2003 C-224/01 P. Léger 47 Free movement of persons Note Opinions Page 23 of 91

136 Date Case n Adv Gen Quoted Art Subject 10/04/2003 C-165/01 L. A. Geelhoed 27, 28, 30 Staff regulations Note - Quoted by applicant Date Case n Adv Gen Quoted Art Subject 10/06/2003 C-117/01 D. Ruiz-Jarabo 21 Social Policy Colomer Indirect application 73. "That approach confirms, moreover, that problems relating to transsexualism are not to be confused with those relating to sexual orientation. If the discrimination to which transsexuals are subject were not regarded as based on sex, the paradoxical situation would arise in which this particularly vulnerable group of persons would not have specific protection at Community level. It will be recalled that neither Article 13 EC nor Article 21 of the Charter of Fundamental Rights of the European Union makes express reference to transsexuals." Opinions Page 24 of 91

137 Date Case n Adv Gen Quoted Art Subject 10/07/2003 C-263/02 P F.G. Jacobs 47 Law governing the institutions Quoted by the Court of First Instance 19. "As the Court of First Instance noted, according to settled case-law, Community law enshrines the right to an effective remedy before a court of competent jurisdiction, a right based on the constitutional traditions common to the Member States and on Articles 6 and 13 of the European Convention on Human Rights, and reaffirmed by Article 47 of the Charter of Fundamental Rights of the European Union proclaimed at Nice on 7 December 2000." Date Case n Adv Gen Quoted Art Subject 10/07/2003 C-353/01 P P. Léger 41, 42 Law governing the institutions Indirect application 76. "Without taking a position here on the question of the extent to which that derogation under the case-law can be applied in the context of that regulation, that circumstance, in the light of the affirmation of the right of access in primary Community law in Article 255 EC and Articles 41 and 42 of the Charter of Fundamental Rights of the European Union signed in Nice on 7 December 2000, confirms in my view the very strict interpretation which must be given to that derogation in the context of Decisions 93/731 and 94/90". Opinions Page 25 of 91

138 Date Case n Adv Gen Quoted Art Subject 10/07/2003 C-58/02 L.A. Geelhoed 49 Freedom to provide services Indirect application 39. "I shall begin by examining the first aspect. The Spanish Government lists a number of provisions of the Criminal Code which, in its opinion, adequately give effect to Article 4 of the Directive. In that connection, the Commission cites the principle of legality laid down in the Spanish Criminal Code. In my view, the Commission is right to invoke that principle, which is also enshrined in Article 7 of the European Convention on Human Rights and Article 49 of the Charter of Fundamental Rights of the European Union. No one may be punished on account of any act which did not constitute a criminal offence when it was committed." Date Case n Adv Gen Quoted Art Subject 11/09/2003 C-482/01 e 493/01 C. Stix-Hackl Generic Reference Free movement of persons Quoted by the parties 34. " The German Government considers that German law properly transposes the requirements of Community law. It follows from the case-law of the Court of Justice that there must be a genuine and sufficiently serious threat affecting a fundamental interest of society. All the offences in question in this case must be classified as a threat to public policy and public security. Existing German law, in particular Paragraph 12 of the Aufenthaltsgesetz/EWG, takes account of the principle of proportionality and the fundamental right to protection of the family under Article 8 of the European Convention, Article 6 EC and the Charter of Fundamental Rights, since it provides for an examination of each individual case". Opinions Page 26 of 91

139 Date Case n Adv Gen Quoted Art Subject 16/09/2003 C-102/02 D. Ruiz- Jarabo 45 Free movement of Colomer persons Note Date Case n Adv Gen Quoted Art Subject 18/09/2003 C-111/02 P L.A. Geelhoed 41 Staff regulations Indirect application - Not relevant in the case 62. "Purely for the sake of completeness, I would observe that Mr Reynolds reliance on Article 41 of the Charter of fundamental rights of the European Union must also fail. Not only is that document not legally binding in its present form, the rights enshrined in it reflect the rights which already apply as general principles of law within the Community legal order and, as I have just concluded, there is no question in this case of a breach of the rights of the defence. Yet even according to the wording of that provision, no infringement of the right to be heard can be found, since Article 41 of the Charter of fundamental rights of the European Union applies only where an individual measure which would affect the person concerned adversely is found to have been taken. There is no question of any such measure in this case, as is explained in point 56 above as well as points 69 and 70 below." Opinions Page 27 of 91

140 Date Case n Adv Gen Quoted Art Subject 11/12/2003 C-386/02 D. Ruiz-Jarabo 45 Free movement of Colomer persons Indirect application 25. "The creation of citizenship of the Union, with the corollary of freedom of movement for citizens throughout the territory of the Member States, represents a considerable qualitative step forward in that it separates that freedom from its functional or instrumental elements (the with an economic activity or attainment of the internal market) and raises it to the level of a genuinely independent right inherent in the political status of the citizens of the Union. (11) Evidence of that qualitative development lies in the fact that freedom of movement and of residence, as an independent right, has been enshrined in Article 45(1) of the Charter of Fundamental Rights of the European Union." Opinions Page 28 of 91

141 Year 2004 Date Case n Adv Gen Quoted Art Subject 08/01/2004 C-87/02 D. Ruiz-Jarabo 37 Environment and Colomer consumers Indirect application 36. " Environmental protection currently occupies a prominent position among Community policies. (36) Furthermore, the Member States also have a crucial responsibility in that area. (37) Community citizens are entitled to demand fulfilment of that responsibility (38) under Article 37 of the Charter of Fundamental Rights of the European Union, (39) which guarantees a high level of environmental protection and the improvement of the quality of the environment". Date Case n Adv Gen Quoted Art Subject 12/02/2004 C-220/02 J. Kokott 27, 31 Social Policy Indirect application 39. "In all three cases, therefore, the aims in taking into account periods during which no work is done are ultimately the same as those expressed in Article 136(1) EC, in the European Social Charter, (30) in the Community Charter on the Fundamental Social Rights of Workers (31) and in the Charter of Fundamental Rights of the European Union: (32) on the one hand, the right for male and female workers within the undertaking to be given information and to be heard and, on the other hand, the right to healthy, safe and just working conditions. Hence, there is in each case a clear connection with the employment relationship and a clear interest on the part of the undertaking in providing the benefit". - Footref32 Opinions Page 29 of 91

142 Date Case n Adv Gen Quoted Art Subject 19/02/2004 C-361/02 e C- J.Kokott 41 Approximation of 362/02 laws Note Date Case n Adv Gen Quoted Art Subject 19/02/2004 C-456/02 L. A. Geelhoed Right of residence Free movement of persons Note Opinions Page 30 of 91

143 Date Case n Adv Gen Quoted Art Subject 11/03/2004 C-150/03 P D. Ruiz-Jarabo 41 Staff regulations Colomer Indirect application 40. "That assertion is unobjectionable, provided that it is regarded as the minimum threshold of the obligation of the public authorities to explain their decisions, when they affect the rights and interests of others. Article 25 of the Staff Regulations, applicable to temporary staff by virtue of Article 11 of the Conditions of Employment, requires decisions adversely affecting the addressee to be explained. The interpretation of this provision has acquired a new dimension since, in the Charter of Fundamental Rights of the European Union, (22) the obligation to state reasons forms part of the right of the Community citizens to good administration (Article 41(2), third indent)". Date Case n Adv Gen Quoted Art Subject 16/03/2004 C-136/02 P D. Ruiz-Jarabo 41 Intellectual property Colomer Quoted by the applicant 53. "By its third ground of appeal, the appellant criticises the Court of First Instance for having failed to examine the facts and evidence submitted to demonstrate the inherent distinctiveness of the contested marks, thus infringing its right to be heard contrary to the second paragraph of Article 6 EU, read with Article 6 of the European Convention on the Protection of Human Rights and Fundamental Freedoms, and the first indent of paragraph 2 of Article 41 of the Charter of Fundamental Rights of the European Union". Opinions Page 31 of 91

144 Date Case n Adv Gen Quoted Art Subject 30/03/2004 C-417/02 J. Kokott 41 Freedom of establishment Note Date Case n Adv Gen Quoted Art Subject 18/05/2004 C-200/02 A. Tizzano 45 Free movement of persons Indirect application 119. "The aim pursued by the provisions on the right of residence, in particular Article 18 EC, as implemented by Directive 90/364 and taken up in Article 45 of the Charter of Fundamental Rights, is entirely clear. Its purpose is to eliminate any restriction on the movement and residence of Community nationals, subject to the sole condition that they must not constitute a financial burden for the host State". Opinions Page 32 of 91

145 Date Case n Adv Gen Quoted Art Subject 25/05/2004 C-384/02 M. Poiares Maduro 12, 27 Approximation of laws Indirect application 56. "Social rights relating to the consultation and information of workers are enshrined, in particular, in Articles 17 and 18 of the 1989 Charter on Fundamental Social Rights of Workers, in Article 27 of the Charter on Fundamental Rights, and in Article 136 EC, which provides that the Community and the Member States shall have as their objectives the promotion of dialogue between management and labour". Opinions Page 33 of 91

146 Date Case n Adv Gen Quoted Art Subject 10/06/2004 C-457/02 J.Kokott 49 Environment and consumers Indirect application 54. "In the first place, this follows from the principle that penalties must have a proper legal basis (nullum crimen, nulla poena sine lege), which is one of the general principles of law forming part of the constitutional traditions common to the Member States and which is also anchored in Article 7 of the European Convention for the Protection of Human Rights and Fundamental Freedoms and in the first sentence of Article 49(1) of the Charter of Fundamental Rights of the European Union. This principle, which also prohibits interpreting criminal provisions broadly where that is to the disadvantage of the persons concerned, sets strict limits on interpreting provisions in conformity with a directive in criminal proceedings". 64. "The principle of the retroactivity of the more lenient criminal law, which is recognised in the legal systems of most of the Member States of the Community (although not, for example, in Ireland and the United Kingdom), also appears in the third sentence of Article 49(1) of the Charter of Fundamental Rights of the European Union. It also forms part of secondary Community law relating to administrative penalties for irregularities which prejudice the Community s financial interests ". Opinions Page 34 of 91

147 Date Case n Adv Gen Quoted Art Subject 29/06/2004 C-181/03 P M. Poiares Maduro 34 Staff regulations Indirect application - Pronouncements on the binding force of the Charter 51. "First, the situation of those officials relates to a fundamental right of access to social security benefits providing protection in cases such as illness, industrial accidents, dependency or old age, and in the case of loss of employment. That right is entailed by Article 12 of the 1961 European Social Charter and point 10 of the 1989 Community Charter of the Fundamental Social Rights of Workers, Article 136 EC expressly referring to both charters. That right is currently laid down in Article 34 of the Charter of Fundamental Rights of the European Union. Although it does not as yet have binding legal effects, the abovementioned charter none the less serves as a guide to and point of reference for the rights guaranteed by the Community legal order. The specific purpose of Article 78 of the Staff Regulations is to provide such protection in the European public service.". Date Case n Adv Gen Quoted Art Subject 13/07/2004 C-39/02 P. Lèger 47 Judgments Convention/Enforcem ent of judgments Indirect application 36. "Regarding the determination of those criteria, I do not think it should lead to a definition of party to proceedings which may appear to conflict with the safeguards laid down in Article 6 of the European Convention for the Protection of Human Rights and Fundamental Freedoms and Article 47 of the Charter of Fundamental Rights of the European Union proclaimed at Nice on 7 December 2000 (OJ 2000 C 364, p. 1), by virtue of which every person has the right to a fair hearing". Opinions Page 35 of 91

148 Date Case n Adv Gen Quoted Art Subject 23/09/2004 C-277/02 P. Lèger 37 Environment and consumers Indirect application 9. "In future, the principles framing environmental law could be accorded increased importance, since the draft Treaty establishing a Constitution for Europe, adopted by the Heads of State and Government of the Member States on 18 June 2004, lays down among the objectives of the European Union the sustainable development of Europe, and even of the earth, as well as a high level of protection and improvement of the quality of the environment. (8) The Charter of Fundamental Rights of the European Union, proclaimed on 7 December 2000 at Nice and reproduced in Part II of the aforementioned draft Treaty, provides, for its part, that [a] high level of environmental protection and the improvement of the quality of the environment must be integrated into the policies of the Union and ensured in accordance with the principle of sustainable development." Opinions Page 36 of 91

149 Date Case n Adv Gen Quoted Art Subject 14/10/2004 C-387/02, C- 391/02 e C- 403/02 J. Kokott 47, 49 Law relating to undertakings Indirect application - Pronouncements on the binding force of the Charter (Note) 109. "On the other hand, it should be borne in mind that the first sentence of Article 6(1) of the Convention for the Protection of Human Rights and Fundamental Freedoms and the first sentence of the second paragraph of Article 47 of the Charter of Fundamental Rights of the European Union protect everyone, in particular the defendant in a criminal trial, from excessively long legal proceedings; in the assessment of the length of such proceedings, regard must none the less also be had to the circumstances and complexity of each particular case" " First, that finding follows from the principle of legality in relation to crime and punishment (nullum crimen, nulla poena sine lege), which is one of the general legal principles common to the constitutional traditions of the Member States and, furthermore, is established in Article 7 of the European Convention for the Protection of Human Rights and Fundamental Freedoms, in the first sentence of the first paragraph of Article 15 of the International Covenant on Civil and Political Rights, and in the first sentence of Article 49(1) of the Charter of Fundamental Rights of the European Union. ) Moreover, on the basis of that rule, which also prohibits the extensive interpretation of criminal provisions to the disadvantage of the person concerned, the interpretation of national law in accordance with directives in criminal proceedings is subject to strict limits" "That principle was also incorporated into the third sentence of Article 49(1) of the Charter of Fundamental Rights of the European Union". Note 83. "Although this Charter does not yet have binding legal effect comparable to that of primary law, it does at least, as a legal reference, provide information on the fundamental rights guaranteed by the Community legal order". Opinions Page 37 of 91

150 Date Case n Adv Gen Quoted Art Subject 21/10/2004 C-141/02 P M. Poiares Maduro 41 Competition Quoted by the Court of First Istance - Indirect application 7. "In the judgment under appeal, the Court of First Instance decided to dismiss the action in substance. However, this conclusion was reached only after a process of reasoning by stages. First of all, the Court found it necessary to examine the action in the light of general preliminary observations. Accordingly it states that the obligation to deal with a complaint diligently and impartially is associated with the right to sound administration, recognised by Article 41 of the Charter of Fundamental Rights of the European Union proclaimed at Nice on 7 December 2000". 80. "[ ]Similar safeguards have been extended to all procedures pursuant to competition rules. Incidentally, this is the origin of Article 41 of the Charter of Fundamental Rights of the European Union, referred to by the Court of First Instance in the judgment under appeal". Opinions Page 38 of 91

151 Date Case n Adv Gen Quoted Art Subject 11/11/2004 C-105/03 J. Kokott 24, 47, 49 Police and judicial cooperation in criminal matters Indirect application 41. "It is true that the rule that offences and punishments are to be strictly defined by statute (nullum crimen, nulla poena sine lege[scripta]) (17) must be taken into account. (18) That rule is one of the general legal principles underlying the constitutional traditions common to the Member States. It is also enshrined in Article 7 of the Convention for the Protection of Human Rights and Fundamental Freedoms (hereinafter the ECHR ), the first sentence of Article 15(1) of the International Covenant on Civil and Political Rights (19) and the first sentence of Article 49(1) of the Charter of Fundamental Rights of the European Union. It is a specific enunciation of the principle of legal certainty in substantive criminal law". 57. "Accordingly, Article 24 of the Charter of Fundamental Rights of the European Union guarantees the right of children to such protection and care as is necessary for their well-being. In all actions relating to children taken by public authorities the child s best interests must be a primary consideration". 66. "[ ]each Member State s basic legal principles must also take into account the right of the accused to a fair trial. Under Article 6(2) EU, the Union that is to say, the Community and the Member States must also respect that right, which is also enshrined in Article 47 of the Charter of Fundamental Rights. (35) In particular, Article 6 of the of the European Convention on Human Rights is applicable in this regard". Opinions Page 39 of 91

152 Date Case n Adv Gen Quoted Art Subject 11/11/2004 C-209/03 L. A. Geelhoed Article II- 105 (s. art. 45 of the Charter) e II-112 (s. art. 52 of the Charter) Social Policy Indirect application 32. " [ ] It is interesting to note that this principle has been laid down in Article II-112 of the Charter of Fundamental Rights of the Union which is incorporated in the Draft Treaty establishing a Constitution for Europe. This provides that any limitation on the exercise of the rights and freedoms recognised by the Charter must respect the essence of these rights and freedoms. Article II-105 of the Charter guarantees the freedom of EU citizens to move and reside within the territory of the Member States in terms which are essentially identical to Article 18(1) EC. ". Date Case n Adv Gen Quoted Art Subject 16/12/2004 C-160/03 M. Poiares Maduro 21, 22 Staff regulations Direct application 35. "[ ] The principle of respect for linguistic diversity has also been expressly upheld by the Charter of Fundamental Rights of the European Union (49) and by the Treaty establishing a Constitution for Europe. (50) That principle is a specific expression of the plurality inherent in the European Union". Nota 41. "It is noteworthy in that connection that the Charter of Fundamental Rights of the European Union upholds, in Article 21, the role of non-discrimination as a fundamental right enforceable against the institutions of the Union". Opinions Page 40 of 91

153 Date Case n Adv Gen Quoted Art Subject 16/12/2004 C-347/03 F.G. Jacobs Generic External relations Reference, 17 Quoted by the referring Court - Quoted by the applicant - Not relevant in the case 39. "(7) Does the right of ownership set out in Article 1 of Protocol No 1 to the European Convention on Human Rights and Fundamental Freedoms and taken up in Article 17 of the Charter of fundamental rights of the European Union proclaimed in Nice on 7 [December] 2000 also cover intellectual property in the names of the places of origin of wines and the exploitation thereof, and, consequently, does the protection of that right preclude application of the agreement set out in the exchange of letters annexed to the Agreement between the European Community and the Republic of Hungary on reciprocal protection and control of wine names (OJ 1994 L 337), but not included in the body of that agreement, under which wine producers of the Friuli region will not be permitted to use the name Tocai Friulano, particularly in view of the total lack of any compensation to the wine producers of the Friuli region thus dispossessed, the lack of any general public interest justifying their dispossession and the disregard for the principle of proportionality? "[...] " the right to use a grape variety name in marketing wine is not a possession within the meaning of Article 1 of the First Protocol to the European Convention on Human Rights or Article 17 of the Charter of Fundamental Rights of the European Union but in any event there has been no unlawful interference contrary to the Convention or the Charter in the present case". Opinions Page 41 of 91

154 Year 2005 Date Case n Adv Gen Quoted Art Subject 27/01/2005 C-186/04 J. Kokott 41, 47, 51 Environment and consumers Note Date Case n Adv Gen Quoted Art Subject 10/03/2005 C-503/03 J. Kokott 7 Free movement of persons Note Date Case n Adv Gen Quoted Art Subject 12/05/2005 C-207/04 D. Ruiz-Jarabo Colomer Generic Reference Social Policy Declarations on the binding force of the Charter 27. "More relevant is the Charter of Fundamental Rights of the European Union, proclaimed on 7 December 2000 at the Nice European Council, since, apart from the controversy regarding its legal nature, it has had a significant influence on legislation planned and approved since it was proclaimed". Opinions Page 42 of 91

155 Date Case n Adv Gen Quoted Art Subject 26/05/2005 C-176/03 D. Ruiz-Jarabo- Colomer 37 Police and judicial cooperation in criminal matters Indirect application 69- "The human dimension of that environmental concern is implicitly enshrined in the European Union, whose Charter of Fundamental Rights, of 7 December 2000, (65) after declaring in the preamble that the Union is founded on the indivisible, universal values of human dignity, freedom, equality and solidarity, includes, in the Chapter devoted to the latter, alongside employment and welfare rights, a provision explaining that its policies include and ensure a high level of environmental protection and the improvement of the quality of the environment, in accordance with the principle of sustainable development (Article 37). That provision, as indicated, forms part of the Treaty establishing a Constitution for Europe (Article II-97)". Opinions Page 43 of 91

156 Date Case n Adv Gen Quoted Art Subject 08/09/2005 C-540/03 J. Kokott 7, 21, 52 Area of freedom, security and justice Direct application 7. "In that regard it is appropriate to recall Article 7 of the Charter of Fundamental Rights (Article II-67 of the Treaty establishing a Constitution for Europe) which provides that everyone has the right to respect for his or her private and family life, home and communications". [...]. 9. " By these words, the Community legislature evokes the specific prohibitions of discrimination set out in Article 21 of the Charter of Fundamental Rights (Article II-81 of the Treaty establishing a Constitution for Europe)". 60. "In so far as it is relevant here, Article 7 of the Charter of Fundamental Rights of the European Union, cited in the second recital in the preamble to the Directive, is identical to Article 8 of the ECHR. Moreover, the first sentence of Article 52(3) of the Charter (Article II-112 of the Treaty establishing a Constitution for Europe) provides that its meaning and scope are to be the same". Date Case n Adv Gen Quoted Art Subject 13/09/2005 C-547/03 P C. Stix-Hackl 17, 47 External relations Quoted by the applicant - Pronouncements on the binding force of the Charter 87. "In the present case the infringement of those rights was based on the infringement of the Charter of Fundamental Rights. As the Charter is not, however, legally binding, the Court was not bound by it". Opinions Page 44 of 91

157 Date Case n Adv Gen Quoted Art Subject 20/10/2005 C-428/04 D. Ruiz-Jarabo 31 Social Policy Colomer Legal framework 3. "The protection of integrity at work is a social objective, as is clear from Article 31(1) of the Charter of Fundamental Rights of the European Union proclaimed in Nice on 7 December 2000, (3) which establishes the right of every worker to working conditions which respect his or her health, safety and dignity ". Date Case n Adv Gen Quoted Art Subject 20/10/2005 C-436/04 D. Ruiz-Jarabo Colomer 50 Police and judicial cooperation in criminal matters Note Opinions Page 45 of 91

158 Date Case n Adv Gen Quoted Art Subject 20/10/2005 Da C-23/04 a P. Lèger 47 External relations C-25/04 Direct application 50. " It is settled case-law that the right to an effective remedy before a court or a tribunal constitutes a general principle of Community law which underlies the constitutional traditions common to the Member States. (23) It has been enshrined in Article 47 of the Charter of Fundamental Rights of the European Union, which is based on Articles 6 and 13 of the Convention for the Protection of Human Rights and Fundamental Freedoms. It is the duty of the Court to ensure observance of fundamental rights in the field of Community law. (24) An agreement such as the Association Agreement, concluded by the Council and the Commission pursuant to Article 228 and 238 of the EC Treaty, (25) forms an integral part of the Community legal system. (26) The Court is therefore bound to ensure that, in the implementation of the Association Agreement, fundamental rights, such as the right to an effective judicial remedy, are observed". Date Case n Adv Gen Quoted Art Subject 25/10/2005 C-408/03 D. Ruiz-Jarabo 45 Free movement of Colomer persons Note Opinions Page 46 of 91

159 Date Case n Adv Gen Quoted Art Subject 27/10/2005 C-227/04 P F. G. Jacobs 21 Staff regulations Indirect application 89. "On 7 December of the same year, Article 21 of the Charter of Fundamental Rights solemnly proclaimed at Nice in December 2000 by the Parliament, the Council and the Commission (38) prohibited any discrimination based on any ground such as, inter alia, age. And on 1 May 2004 a specific prohibition of age discrimination was included in the Staff Regulations ". Date Case n Adv Gen Quoted Art Subject 10/11/2005 C-205/03 P M. Poiares Maduro 36 Competition Note Date Case n Adv Gen Quoted Art Subject 15/11/2005 C-499/04 D. Ruiz-Jarabo 12 Social Policy Colomer Note Opinions Page 47 of 91

160 Date Case n Adv Gen Quoted Art Subject 22/11/2005 C-317/04 P. Lèger 7, 8 Transport Indirect application (legal framework) - Declarations on the binding force of the Charter 23. "So far as the European Union is concerned, in addition to Article 7 which relates to respect for private and family life, Article 8 of the Charter of fundamental rights of the European Union (16) is specifically devoted to the protection of personal data. It is worded as follows: «1. Everyone has the right to the protection of personal data concerning him or her. 2. TSuch data must be processed fairly for specified purposes and on the basis of the consent of the person concerned or some other legitimate basis laid down by law. Everyone has the right of access to data which has been collected concerning him or her, and the right to have it rectified. 3. Compliance with these rules shall be subject to control by an independent authority». Note 16. "That charter, which was signed and proclaimed by the presidents of the Parliament, the Council and the Commission at the Nice European Council on 7 December 2000, is set out in Part II of the Treaty establishing a Constitution for Europe, which to date has not entered into force (OJ 2004 C 310, p. 41). As the Court of First Instance has pointed out, although [the Charter of fundamental rights of the European Union] does not have legally binding force, it does show the importance of the rights it sets out in the Community legal order". Opinions Page 48 of 91

161 Date Case n Adv Gen Quoted Art Subject 24/11/2005 C-3/05 J. Kokott 47 Judgements Convention/Enforcem ent of judgements Indirect application - Pronouncements on the binding force of the Charter (note) 39. "The rights of defence of the party against whom enforcement is sought are protected by the general principle of Community law recognised by the Court that everyone is entitled to fair legal process. (12) This principle is guided by Article 6 of the ECHR (13) and is reflected in Article 47 of the Charter of Fundamental Rights of the European Union". Note 14. "Although the Charter of Fundamental Rights as such still does not does not have any binding legal effects comparable to primary law, it does, as a material legal source, shed light on the fundamental rights which are protected by the Community legal order". Opinions Page 49 of 91

162 Date Case n Adv Gen Quoted Art Subject 08/12/2005 C-105/04 P J. Kokott 41 Police and judicial cooperation in criminal matters Indirect application - Pronouncements on the binding force of the Charter (note) 107. "The principle that action must be taken within a reasonable period is a general principle of Community law which is based on Article 6(1) of the ECHR and has since also been incorporated into Article 41(1) of the Charter of Fundamental Rights of the European Union (right to good administration)". Note 58. "The Charter of Fundamental Rights as such does not yet have binding legal effects comparable to those of primary law. However, as a legal reference, it provides information on the fundamental rights guaranteed by Community law". Note 59. "The Charter of Fundamental Rights is not applicable to this case ratione temporis, it having come into force after the contested decision was adopted. In the future, however, it must be taken into account in cartel proceedings that the Commission has made a solemn commitment to comply with the Charter of Fundamental Rights". Opinions Page 50 of 91

163 Date Case n Adv Gen Quoted Art Subject 08/12/2005 C-113/04 P J. Kokott 41 Competion Indirect application - Pronouncements on the binding force of the Charter (note) 98. The principle that action must be taken within a reasonable period is a general principle of Community law which is based on Article 6(1) of the ECHR, and has since also been incorporated into Article 41(1) of the Charter of Fundamental Rights of the European Union (right to good administration)". Nota 58. "The Charter of Fundamental Rights does not of course produce binding legal effects similar to those arising from primary law but, as a legal reference source, it does provide indications as to the fundamental rights guaranteed by Community law". Nota 59. "The Charter of Fundamental Rights does not apply to the present case for temporal reasons because it was not proclaimed until after the contested decision was adopted. However, for future reference it should be noted in cartel proceedings that the Commission has made a solemn undertaking to comply with the Charter of Fundamental Rights and therefore entered into a voluntary commitment". Opinions Page 51 of 91

164 Date Case n Adv Gen Quoted Art Subject 15/12/2005 C-10/05 J. Kokott 7 Free movement of persons Indirect application - Pronouncements on the binding force of the Charter (note) 34. "Thus, the aim of Article 11 of Regulation No 1612/68 is simply to realise the right of migrant workers to freedom of movement pursuant to Article 39 EC, and in doing so to protect their and their families right to a family life, as expressed in Article 8 of the European Convention on Human Rights (27) and now also in Article 7 of the Charter of fundamental rights of the European Union". Note 28. "Although the Charter of fundamental rights does not yet have binding legal effect comparable to that of primary law, it does at least, as a legal reference, provide information on the fundamental rights guaranteed by the Community legal order". Opinions Page 52 of 91

165 Year 2006 Date Case n Adv Gen Quoted Art Subject 19/01/2006 C-301/04 P L. A. Geelhoed Generic Reference Competition Indirect application 64. "Second, there is no dispute that the European Court of Human Rights extended certain rights and freedoms to companies and other corporate entities. The same is true under Community law and under the Charter of Fundamental Rights of the European Union". Date Case n Adv Gen Quoted Art Subject 19/01/2006 C-308/04 P L. A. Geelhoed 16, 17, 49, 50 Competion Quoted by the applicant - Quoted by the Court of First Istance -Indirect application 34. "The Court of First Instance acknowledged that Article 50 of the Charter of Fundamental Rights provides that no one may be tried or punished again in criminal proceedings for an offence of which he has already been finally acquitted or convicted within the Union in accordance with the law. However, that Charter is clearly intended to apply only within the territory of the Union and the scope of the right laid down in Article 50 is expressly limited to cases where the first acquittal or conviction was handed down within the Union». Opinions Page 53 of 91

166 Date Case n Adv Gen Quoted Art Subject 26/01/2006 C-119/04 M. Poiares Maduro 15 Law governing the institutions Indirect application 35. "The freedom of citizens of the European Union to work in any Member State is also recognised as a fundamental right in Article 15(2) of the Charter of Fundamental Rights of the European Union. The exercise of this right requires that Member States abolish any form of discrimination based on nationality between the workers of the Member States as regards employment, remuneration and other conditions of work and employment". Date Case n Adv Gen Quoted Art Subject 01/02/2006 C-94/04 e C- M. Poiares Maduro 47 Competition 202/04 Indirect application 78. "A right of access to the courts has been recognised as a fundamental principle of Community law. The Court has held that in criminal matters that right may also include the right to be defended by a lawyer. The second and third paragraphs of Article 47 of the Charter of Fundamental Rights of the European Union also provide that everyone shall have the possibility of being advised, defended and represented. Legal aid shall be made available to those who lack sufficient resources in so far as such aid is necessary to ensure effective access to justice ". Opinions Page 54 of 91

167 Date Case n Adv Gen Quoted Art Subject 06/04/2006 C-131/03 P E. Sharpston 47 Law governing the institutions Quoted by the Court of First Instance 34. "The Court of First Instance noted that access to justice is a constitutive element of a Community based on the rule of law, guaranteed by a complete system of remedies and procedures for review of the legality of Community measures and derived from constitutional traditions common to the Member States and from the European Convention on Human Rights, and that the right to an effective remedy is reaffirmed in the Charter of fundamental rights". Date Case n Adv Gen Quoted Art Subject 08/06/2006 C-150/05 D. Ruiz-Jarabo Colomer 50 Police and judicial cooperation in criminal matters Indirect application 53. "The emphatic terms of the Charter of Fundamental Rights of the European Union (24) support that observation. Article 50 bars any later examination if the person concerned has been finally acquitted or convicted". 68. " The ne bis in idem principle precludes a person being either punished, or prosecuted or tried more than once. Article 54 of the CISA uses the first term, whilst Article 50 of the Charter of Fundamental Rights of the European Union (Spanish version) contains the second". 71. "It is unacceptable to cause concern to a person who has been found not guilty (42) both if that finding is made in substantive terms and where it derives from the basic right of the individual referred to above, common to the constitutional traditions of the Member States and incorporated in the Charter of Fundamental Rights of the European Union (Article 48(1)), as well as being declared in Article 6(2) of the European Convention for the Protection of Human Rights and Fundamental Freedoms and enshrined, in Article 6(2) EU, as a general principle of Community law". Opinions Page 55 of 91

168 Date Case n Adv Gen Quoted Art Subject 22/06/2006 C-266/05 P L.A. Geelhoed Generic Reference Law governing the institutions Note Opinions Page 56 of 91

169 Date Case n Adv Gen Quoted Art Subject 12/09/2006 C-303/05 D. Ruiz-Jarabo Colomer 20, 21, 49 Police and judicial cooperation in criminal matters Indirect application - Pronouncements on the binding force of the Charter 6. " In order to answer that question, it will be necessary to conduct a full examination of the role of fundamental rights in the sensitive sector of police and judicial cooperation in criminal matters, following the proclamation of the Charter of Fundamental Rights of the European Union". 76. "In 2000, an event which was difficult to ignore occurred, in the form of the proclamation of the Charter of Fundamental Rights of the European Union. That instrument does not have binding force because there is no enacting provision incorporating its subject-matter. The proclamation is set out as a mere political declaration, devoid of legal force. 77. However, that assertion does not lead me to the view that nothing has changed, as though the Charter were not worth the paper it is written on. First of all, the Charter did not emerge in a vacuum, without any to its surroundings. On the contrary, the Charter belongs to a stage in the development process which I have described, in that, as it states in the preamble, it codifies and reaffirms certain rights which are derived from the heritage common to the Member States, at national and international level, from which it follows that the Union must respect those rights and the Court must protect them, in accordance with Articles 6 EU and 46(d) EU, whatever the legal nature and force of the instrument adopted in December Second, the Charter features in the case-law of the Court since the Advocates General have interpreted it, thereby transcending its merely programmatic and declarative nature. Furthermore, the Court of First Instance has referred to the Charter in a number of its judgments. However, the Charter is rarely cited in the judgments of the Court of Justice, (79) not even to refute the views put forward by the Advocates General, and it was only very recently barely two months ago, in fact in Parliament v Council that the Court announced a change of direction, ruling that, while the Charter is not a legally binding document, its importance must be acknowledged (paragraph 38). 79. Accordingly, the Court must break its silence and recognise the authority of the Charter of Fundamental Rights as an interpretative tool at the forefront of the protection of the fundamental rights which are part of the heritage of the Member States. That undertaking must be approached with caution and vigour alike, in the full belief that, while the protection of fundamental rights is an essential part of the Community pillar, it is equally indispensable in the context of Opinions Page 57 of 91

170 the third pillar, which, owing to the nature of its subject-matter, is capable of affecting the very heart of individual freedom, the foundation of the other freedoms. " 82. "Thus, in the present reference for a preliminary ruling, the Court must have regard to the spirit of Articles 20 and 49 of the Charter of Fundamental Rights which respectively proclaim the principle of equality before the law and the principle of legality of criminal offences, principles which are widely accepted in the constitutional frameworks of the Member States, and the Court may refer, if necessary, to the case-law of the national courts and to the judgments of the European Court of Human Rights concerning Articles 14 " " That principle, (94) which is contained in the Latin aphorism nullum crimen, nulla poena sine lege and enshrined in Article 7(1) of the Rome Convention, and in Article 49(1) of the Charter of Fundamental Rights of the European Union, comprises, in the time-honoured words of the Spanish Constitutional Court, (95) two levels of protection. On the first level, which is substantive in nature and absolute in scope, the protection entails the fundamental requirement that there must be a pre-existing definition of offences and the penalties applicable to them. The second level is procedural and concerns the rank of the provisions which create those offences and govern the penalties, which, in the Spanish legal system, (96) and in the legal systems of most of the Member States, is the equivalent of a law adopted by the legislature, the custodian of popular sovereignty". Date Case n Adv Gen Quoted Art Subject 12/09/2006 C-411/04 P L.A. Geelhoed 47, 48, 52 Competition Quoted by the applicant- Pronouncements on the binding force of the Charter Opinions Page 58 of 91

171 Date Case n Adv Gen Quoted Art Subject 28/09/2006 C-283/05 P. Léger 47 Area of freedom, security and justice Note Opinions Page 59 of 91

172 Date Case n Adv Gen Quoted Art Subject 26/10/2006 C-354/04 P e P. Mengozzi 7, 11, 12, 20, 21, Common foreign and C-355/04 P 47, 48, 52 security policy Pronouncements on the binding force of the Charter - Quoted by the applicant - Indirect application 76. "Mention should also be made of the Charter of Fundamental Rights of the European Union, which was solemnly proclaimed by the European Parliament, the Council and the Commission in Nice on 7 December 2000 after having been approved by the Heads of State or Government of the Member States ( the Charter ). While the Charter is not a legally binding instrument, its principal aim, as is apparent from its preamble, is to reaffirm rights as they result, in particular, from the constitutional traditions and international obligations common to the Member States, the [EU] Treaty, the Community Treaties, the [ECHR], the Social Charters adopted by the Community and by the Council of Europe and the case-law of the Court and of the European Court of Human Rights ". 80. "The Court has already shown that entitlement to the effective judicial protection of rights invoked in this case by the appellants forms an integral part of the general principles of law deriving from the constitutional traditions common to the Member States and that it is also enshrined in Article 6(1) EU and Article 13 of the ECHR. I would add that the right in question is also recognised by Articles 8 and 10 of the Universal Declaration of Human Rights adopted by the General Assembly of the United Nations by means of Resolution 217A (III) on 10 December 1948 and by Articles 2(3) and 14(1) of the International Covenant on Civil and Political Rights, which was adopted on 16 December 1966 and came into force on 23 March (34) The Charter provides for it in Article 47. " 81.It should be pointed out that the reliance in this case on the fundamental right to effective judicial protection assumes particular importance, in that such protection in turn affects fundamental rights recognised and protected by Union law. In their actions before the Court of First Instance, the appellants maintained, with arguments that are not indefensible, that the inclusion on the list of persons involved in terrorist acts, of which they complain, harmed the genuine fundamental rights of the organisations Gestoras Pro Amnistía and Segi and/or of their spokespersons, such as, in particular, the presumption of innocence (Article 6(2) of the ECHR and Article 48(1) of the Charter), freedom of expression (Article 10 of the ECHR and Article 11 of the Charter), freedom of association (Article 11 of the ECHR and Article 12 of the Charter) and the right to respect for private life (Article 8 of the ECHR and Article 7 of the Charter) "A reading of Article 35(1) and (2) EU that respected not only the right to effective judicial protection but also the principles of equality before the law (see Article 20 of the Charter) and non-discrimination on grounds of nationality Opinions Page 60 of 91

173 (see Article 21(2) of the Charter) without thereby betraying the literal meaning of the provisions in question requires it to be recognised that even in the States that have not accepted the jurisdiction of the Court to give preliminary rulings individuals can mount a legal challenge to the validity of the framework decisions and decisions underlying the national measures which they are asking the national court to annul. In this case, it must be possible for a decision as to the validity or invalidity of the Council act to be taken by the national court itself in the absence of the possibility of a reference for a preliminary ruling" "Application of the standard of protection required by Article 6(2) EU could undoubtedly pose some difficulties to the national court and involve it in clarifying the fundamental rights recognised by the Union, a task hitherto performed mainly by the Community court. Such difficulties should not, however, be exaggerated" "To give priority to the fundamental right to effective judicial protection and to disapply for that purpose the relevant provisions of the EU Treaty on the powers of the Court of Justice would necessitate recognising that there was also a hierarchy among primary rules and a kind of supra-constitutional value in the respect for fundamental rights. I consider that such an approach, while not in itself alien, is not permissible in the present state of Union law, not least because the current treaties do not explicitly list the fundamental rights guaranteed by the Union. The Charter cannot, in my opinion, make good the lack of such a list, since it is only a source of inspiration for the Community court and national courts in clarifying the fundamental rights protected by Union law as general principles and has no binding legal force. That limitation would obviously no longer apply if all the Member States ratified the Treaty establishing a Constitution for Europe, Part II of which lists the fundamental rights, among which is expressly enshrined, in Article II- 107, the right to an effective remedy and to a fair trial." Date Case n Adv Gen Quoted Art Subject 26/10/2006 C-441/05 J. Kokott 47 Agricolture Note Opinions Page 61 of 91

174 Date Case n Adv Gen Quoted Art Subject 08/11/2006 C-292/05 D. Ruiz-Jarabo Colomer 36 Judgments Convention/Enforcem ent of judgments Note Date Case n Adv Gen Quoted Art Subject 16/11/2006 C-523/04 P. Mengozzi 41 Transport Note Date Case n Adv Gen Quoted Art Subject 05/12/2006 C-367/05 E. Sharpston Article II-109(3) of the Draft EU Constitution (s. art. 49 of the Charter) Police and judicial cooperation in criminal matters Note Opinions Page 62 of 91

175 Date Case n Adv Gen Quoted Art Subject 14/12/2006 C-305/05 M. Poiares Maduro 41, 47, 52 Taxation Indirect application - Note 48. "AIn order to examine the justification for the limitations called in question by the applicants, I propose to use the framework for analysis set out in the Charter of fundamental rights of the European Union. As the Court has had occasion to state, even though that charter is not a legally binding instrument, its principal aim, as is apparent from its preamble, is to reaffirm rights as they result, in particular, from the constitutional traditions and international obligations common to the Member States, the Treaty on European Union, the Community Treaties, the [ECHR], the Social Charters adopted by the Community and by the Council of Europe and the case-law of the Court and of the European Court of Human Rights. It is clear from that passage that, although the charter in question cannot in itself constitute a sufficient legal basis for the creation of rights capable of being directly invoked by individuals, it is nevertheless not without effect as a criterion for the interpretation of the instruments protecting the rights mentioned in Article 6(2) EU. From that perspective, that charter may have a dual function. In the first place, it may create the presumption of the existence of a right which will then require confirmation of its existence either in the constitutional traditions common to the Member States or in the provisions of the ECHR. In the second place, where a right is identified as a fundamental right protected by the Community legal order, the Charter provides a particularly useful instrument for determining the content, scope and meaning to be given to that right. It should be pointed out, moreover, that the provisions of the Charter, the drafting of which is based on a wide process of discussion at European level, correspond in large part to a codification of the Court s case-law." Opinions Page 63 of 91

176 Year 2007 Date Case n Adv Gen Quoted Art Subject 11/01/2007 C-444/05 D. Ruiz-Jarabo 35 Freedom to provide Colomer services Direct application 40. "However, although the case-law takes as the main point of reference the fundamental freedoms established in the Treaty, there is another aspect which is becoming more and more important in the Community sphere, namely the right of citizens to health care, proclaimed in Article 35 of the Charter of Fundamental Rights of the European Union, since, being a fundamental asset, health cannot be considered solely in terms of social expenditure and latent economic difficulties. This right is perceived as a personal entitlement, unconnected to a person s relationship with social security, and the Court of Justice cannot overlook that aspect.". Date Case n Adv Gen Quoted Art Subject 18/01/2007 C-328/05 P J. Mazàk 50 Competition Quoted by the applicant Opinions Page 64 of 91

177 Date Case n Adv Gen Quoted Art Subject 01/03/2007 C-76/06 P Y. Bot 49 Competition Quoted by the applicant - Pronouncements on the binding force of the Charter 124. "As the appellant has indicated, the same principle is enshrined in Article 7(1) of the ECHR and Article 49(1) of the Charter of Fundamental Rights of the European Union, which, as I have pointed out, does not have legally binding force.". Date Case n Adv Gen Quoted Art Subject 20/03/2007 C-11/06 e C- D. Ruiz-Jarabo 14, 45 European citizenship 12/06 Colomer Direct application 11. " The Charter of Fundamental Rights of the European Union (6) uses the concept of Article 17 EC on several occasions (7) and, in Article 45(1), proclaims the right to move and reside freely within the territory of the Member States". 91. "In line with this, Article 14 of the Charter of Fundamental Rights of the European Union proclaims that everyone has the right to education and to have access to vocational and continuing training (paragraph 1), which includes the possibility to receive free compulsory education (paragraph 2), referring only to the national laws regarding the exercise of those rights, the freedom to found educational establishments, and the right of parents to ensure the education and teaching of their children in conformity with their religious, philosophical and pedagogical convictions is respected (paragraph 3)". Opinions Page 65 of 91

178 Date Case n Adv Gen Quoted Art Subject 03/05/2007 C-62/06 V. Trstenjak 47, 48 Customs union Indirect application - Pronouncements on the binding force of the Charter (Note) 54. "In order to answer the first question, it is relevant to begin with the provisions of Article 6(1) of the ECHR according to which, in the determination of any criminal charge against him, everyone is entitled to a fair and public hearing within a reasonable time by an independent and impartial tribunal established by law. That fundamental right has taken on a similar form in Article 47 of the Charter of Fundamental Rights of the European Union according to which everyone is entitled to a fair and public hearing within a reasonable time by an independent and impartial tribunal previously established by law. From those fundamental rights, the Court has expressly developed a general principle of Community law according to which everyone has a right to fair legal process which applies also in the area of criminal law". "57. In my opinion, the same considerations must apply with regard to the interpretation of the legal concept of an act that can give rise to criminal court proceedings in Article 3 of Regulation No 1697/79. Otherwise there is a risk that the procedural guarantees provided for by Community law based on Article 6(1) of the ECHR and Article 47 of the Charter of Fundamental Rights could be circumvented if a Member State were entitled to create an additional and competing jurisdiction. That conclusion is especially applicable as regards an allocation of power to the customs authorities, part of the executive branch of the State, which from the outset is in contradiction to the wording of Article 6(1) of the ECHR and Article 47 of the Charter of Fundamental Rights. Principle of presumption of innocence 58. Furthermore, I consider it appropriate also with regard to the first question to refer to the principle enshrined in Article 6(2) of the ECHR according to which everyone charged with a criminal offence is to be presumed innocent until proved guilty according to law. Article 48 of the Charter of Fundamental Rights provides accordingly that everyone who has been charged is to be presumed innocent until proved guilty according to law. The principle of the presumption of innocence is recognised as an expression of the rule of law in all legal orders of European Union Member States". Note 43 "[ ] Charter of Fundamental Rights of the European Union proclaimed on 7 December 2000 in Nice (OJ 2000 C 364, p. 1). The Charter of Fundamental Rights has neither been incorporated into the Treaties nor does Article 6(2) EU refer to it. First and foremost, the Charter constitutes a political declaration to which, inter alia, the European Commission and the European Parliament consider themselves bound. Although the expressly declared will of the Charter s authors not Opinions Page 66 of 91

179 to give it legally binding effect cannot be ignored, I share the view of Advocate General Léger, however, that it would be a mistake to deprive it of all meaning see the Opinion of Advocate General Léger in Case C 353/99 P Council v Hautala [2001] ECR I 9565, points 73 to 86). Rather, it must be regarded as the specific expression of common European values. Thus, it is natural to have reference to it in the interpretation of Community law (see, for example, the references made to the Charter of Fundamental Rights in the Opinions of Advocates General Alber in Case C 340/99 TNT Traco [2001] ECR I 4109, point 94; Tizzano in Case C 173/99 BECTU [2001] ECR I-4881, points 26 to 28; Mischo in Joined Cases C 122/99 P and C 125/99 P D and Sweden v Council [2001] ECR I-4319, point 97; Jacobs in Case C 377/98 Netherlands v Parliament and Council [2001] ECR I 7079, point 197; Geelhoed in Case C-413/99 Baumbast and R [2002] ECR I-7091, points 59 and 110; Ruiz-Jarabo Colomer in Case C-208/00 Überseering [2002] ECR I-9919, point 59. In the same vein, see also Poiares Maduro, M., The double constitutional life of the Charter of Fundamental Rights, Unión Europea y derechos fundamentales en perspectiva constitucional, Madrid, 2004, p. 306; Schmitz, T., Die Charta der Grundrechte der Europäischen Union als Konkretisierung der gemeinsamen europäischen Werte, Die Europäische Union als Wertegemeinschaft, Berlin, 2005, p. 85; and Beyer, U., Oehme, C. and Karmrodt, F., Der Einfluss der Europäischen Grundrechtecharta auf die Verfahrensgarantien im Unionsrecht, Beiträge zum Transnationalen Wirtschaftsrecht, No 34, November 2004, p. 14. More recently, the Charter of Fundamental Rights has been invoked by the European Court of Human Rights in order to interpret in a more modern light the articles of the ECHR which are over 50 years old (see, for example, Goodwinv.theUnited Kingdom, Reports of Judgments and Decisions 2002-VI, 100). In Unibet, cited in footnote 23 above, paragraph 39, the Court of Justice of the European Communities first made reference to it in connection with the right to effective legal protection". Opinions Page 67 of 91

180 Date Case n Adv Gen Quoted Art Subject 23/05/2007 C-341/05 P. Mengozzi 28, 52 Principles of Community law Indirect application 67. "The Court s concern to accord special significance to the ECHR, without thereby excluding other sources of inspiration, found expression in the Charter of Fundamental Rights of the European Union solemnly proclaimed on 7 December 2000 in Nice by the European Parliament, the Council and the Commission, after approval by the Heads of State or Government of the Member States (19) ( the Charter of Fundamental Rights ). 68. Admittedly, the Charter of Fundamental Rights is not a legally binding instrument. However, the Court has already emphasised that its principal aim, as is apparent from its preamble, is to reaffirm rights as they result, in particular, from the constitutional traditions and international obligations common to the Member States, the Treaty on European Union, the Community Treaties, the [ECHR], the Social Charters adopted by the Community and by the Council of Europe, and the case-law of the Court and of the European Court of Human Rights. " 76. " I Finally, Article 28 of the Charter of Fundamental Rights provides that workers and employers, or their respective organisations, have, in accordance with Community law and national laws and practices, the right in cases of conflict of interest, to take collective action to defend their interests, including strike action. Article 52(1) of that charter states that any limitation on the exercise of the rights and freedoms recognised by this Charter must be provided for by law and respect the essence of those rights and freedoms. Subject to the principle of proportionality, limitations may be made only if they are necessary and genuinely meet objectives of general interest recognised by the Union or the need to protect the rights and freedoms of others. 77. As regards the constitutional traditions of the Member States, whilst I am not of the view that they must be examined exhaustively, in view of the fact that, as emphasised in point 68 of this Opinion, the Charter of Fundamental Rights, although not binding, is principally intended to reaffirm the rights resulting in particular from those traditions, I would nevertheless point out that the constitutional instruments of numerous Member States explicitly protect the right to establish trade unions and the defence of their interests by collective action, the right to strike being, in that connection, the method most regularly referred to." 81. "Next, by way of corollary, the abovementioned instruments protecting human rights and the constitutions of the Member States examined above all recognise the possibility of imposing certain restrictions on the exercise of the right to take collective action. It can be inferred from those documents that such restrictions must be laid down in a legislative or regulatory measure, must be justified by the pursuit of an overriding general interest and must not affect the essence Opinions Page 68 of 91

181 of that right, to use the term appearing in Article 52 of the Charter of Fundamental Rights, or impair the very substance of the right or the freedom thus protected". Date Case n Adv Gen Quoted Art Subject 23/05/2007 C-438/05 M. Poiares Maduro 12, 28 Freedom of establishment Indirect application 60. "Accordingly, the rights to associate and to collective action are of a fundamental character within the Community legal order, as the Charter of Fundamental Rights of the European Union reaffirms". Date Case n Adv Gen Quoted Art Subject 28/06/2007 C-212/06 E. Sharpston 21 Social security for migrant workers Indirect application 147. "The importance of non-discrimination is underscored by the Charter of fundamental rights of the European Union (Article 21) and by the legislative initiative of the Council in enacting two major directives, based on Article 13 EC, prohibiting various specific forms of discrimination. Non-discrimination is also (of course) enshrined in the Treaty establishing a Constitution for Europe (Article I-4, Article II-81, and Article III-123). Discrimination is thus generally perceived to be repugnant and something that should be prohibited". Opinions Page 69 of 91

182 Date Case n Adv Gen Quoted Art Subject 05/07/2007 C-291/05 P. Mengozzi 7, 24 Free movement of persons Note Date Case n Adv Gen Quoted Art Subject 10/07/2007 C-137/05 V. Trstenjak 8 Area of freedom, security and justice Indirect application 126. "I would also stress the fact that Regulation No 2252/2004 might present problems from the perspective of fundamental rights especially in relation to Article 8 of the European Convention for the Protection of Human Rights and Fundamental Freedoms and Article 8 of the Charter of Fundamental Rights of the European Union, as has been observed by legal writers, particularly German writers. The United Kingdom has not, however, challenged the regulation on the ground of breach of the fundamental right to protection of personal data". Opinions Page 70 of 91

183 Date Case n Adv Gen Quoted Art Subject 18/07/2007 C-275/06 J. Kokott 7, 8, 17, 47 Intellectual property Quoted by the referring Court - Indirect application 36. "The referring court considers it possible that that view is correct under Spanish law, but takes the view that the provision in question is then incompatible with Community law. It therefore refers the following question to the Court of Justice for a preliminary ruling: Does Community law, specifically Articles 15(2) and 18 of Directive 2000/31, Article 8(1) and (2) of Directive 2001/29, Article 8 of Directive 2004/48, and Articles 17(2) and 47 of the Charter, permit Member States to limit to the context of a criminal investigation or to safeguard public security and national defence, thus excluding civil proceedings, the duty of operators of electronic communications networks and services, providers of access to telecommunications networks and providers of data storage services to retain and make available connection and traffic data generated by the communications established during the supply of an information society service? ". 51. "Data protection is based on the fundamental right to private life, as it results in particular from Article 8 of the European Convention for the Protection of Human Rights and Fundamental Freedoms signed at Rome on 4 November 1950 ( the ECHR ). (23) The Charter of fundamental rights of the European Union, proclaimed at Nice on 7 December 2000 (24) ( the Charter ), confirmed that fundamental right in Article 7, and in Article 8 specifically emphasised the fundamental right to the protection of personal data, including important fundamental principles of data protection". 55. "In the context of legitimate aims, the relevant fundamental rights of the holders of copyrights, in particular the protection of property and the right to effective judicial protection, will have to be taken into account in the present case. According to settled case-law, both those rights form part of the general principles of Community law, (30) as confirmed by Article 17 and Article 47 of the Charter. Article 17(2) of the Charter emphasises in this connection that intellectual property also falls within the protective scope of the fundamental right to property". Opinions Page 71 of 91

184 Date Case n Adv Gen Quoted Art Subject 18/07/2007 C-64/05 P M. Poiares Maduro 42 Law governing the institutions Indirect application 40. "That right of access, moreover, is of the nature of a fundamental right, as confirmed by the fact that it was reproduced in Article 42 of the Charter of Fundamental Rights". Date Case n Adv Gen Quoted Art Subject 06/09/2007 C-267/06 D. Ruiz-Jarabo 21 Social Policy Colomer Indirect application 78. "Third, the principle of non-discrimination on grounds of sexual orientation is included in Article 14 of the European Convention for the Protection of Human Rights and Fundamental Freedoms, 1950 and is specifically laid down in Article 21 of the Charter of Fundamental Rights of the European Union. The fact that it is fundamental in nature means that respect for the right is guaranteed in the European Union, pursuant to Article 6 EU.". Opinions Page 72 of 91

185 Date Case n Adv Gen Quoted Art Subject 11/09/2007 C-408/04 P Y. Bot 41 ECSC Indirect application 263. "That principle has been an integral part of the unwritten rules of Community legality since one of the first judgments delivered by the Court of Justice. The requirements attached to that principle were gradually established by the case-law of the Court of Justice before being enshrined in Article 41 of the Charter of Fundamental Rights of the European Union.". Date Case n Adv Gen Quoted Art Subject 25/10/2007 C-450/06 E. Sharpston 41, Right of Freedom of defence establishment Direct application 39. "Under the European Convention on Human Rights and under the Charter of Fundamental Rights, (20) the right to a fair hearing is an unqualified right. However, it does not follow that the entitlement to disclosure of relevant evidence is likewise an absolute right. The European Court of Human Rights has indeed consistently held, even in the context of criminal proceedings, that evidence may be withheld where that is necessary to preserve the fundamental rights of another individual or to safeguard an important public interest. " 43. "Under Article 41 of the Charter of Fundamental Rights, the right to good administration includes the right of every person to have access to his or her file, while respecting the legitimate interests of confidentiality and of professional and business secrecy. A general obligation to respect business secrecy is imposed on the Community institutions by Article 287 EC, and confirmed in a number of legislative provisions, particularly in the field of competition. " Opinions Page 73 of 91

186 Date Case n Adv Gen Quoted Art Subject 27/11/2007 C-147/06 e C- D. Ruiz-Jarabo 41 Law relating to 148/06 Colomer undertakings Direct application 50. " The right not to be deprived of the opportunity to be heard is expressly provided for in the legal systems of all the Member States and forms part of the right to good administration enshrined in Article 41, under Chapter V on citizens rights, of the Charter of Fundamental Rights of the European Union. (35) Article 41(2) recognises the right of every person to be heard before any individual measure which would affect him or her adversely is taken. 51. The Charter, whose importance the Court has recently made clear, in particular in the judgments in Parliament v Council and Advocaten voor de Wereld, requires that, before a tenderer is excluded, he must have the opportunity to state his views in order to persuade the contracting authority that his bid is genuine". Opinions Page 74 of 91

187 Date Case n Adv Gen Quoted Art Subject 13/12/2007 C-413/06 P J. Kokott 16, 17, 41 Competition Indirect application 97. "[ ] Article 253 EC provides that decisions by the Commission shall state the reasons on which they are based. This duty to state reasons is a consequence of the rule of law and, in conjunction with the right to proper administration, finds expression also in Article 41(2) of the Charter of fundamental rights of the European Union. It is intended not only to enable acts of the institutions to be subject to independent review by the Community Courts, but also to encourage the institutions to exercise self-control and to guard against ill-considered or ill-thought through measures. The statement of reasons for decisions also contributes to ensuring transparency of administrative action. 98. The obligation to state reasons is by no means restricted to decisions which negatively affect their addressees. The principles of the rule of law and of proper administration instead require reasons to be given also for decisions which benefit their addressees. This applies a fortiori where such decisions may negatively affect the rights and interests of third parties, not least in the field of competition law. Accordingly, neither Article 253 EC nor the third indent of Article 41(2) of the Charter of fundamental rights distinguishes between decisions which benefit their respective addressees and those which are disadvantageous for them. In relation to merger control in particular, this means that reasons must be given for Commission clearance decisions just as much as for prohibition decisions" " This argument is not convincing. Neither Article 253 EC nor the third indent of Article 41(2) of the Charter of fundamental rights distinguishes between decisions which benefit their respective addressees and those which are disadvantageous for them as regards the requirement to state reasons." 151. "The rights of the defence include in particular the principle of the right to a hearing, which is a fundamental principle of Community law (117) and which is now also recognised in Article 41(2) of the Charter of fundamental rights. In addition, in relation to merger control proceedings this principle is laid down by statute in the second sentence of Article 18(3) of the Merger Regulation. " 214. "Ultimately, this symmetry reflects the fact that in each individual case the Commission must strike a fair balance between interests of equal value which are guaranteed by primary law, being on the one hand the rights and interests of the parties to the concentration, and on the other the public interest in protecting competition against distortion (Article 3(1)(g) EC). Thus, while the commercial freedom of the participating undertakings and the property rights of their shareholders (Articles 16 and 17 of the Charter of fundamental rights) undoubtedly include the right to realise concentrations of undertakings, this applies only in so far as certain conditions or obligations on, or even the prohibition of, the concentration in question are not necessary for protecting competition from distortion". Opinions Page 75 of 91

188 Opinions Page 76 of 91

189 Year 2008 Date Case n Adv Gen Quoted Art Subject 09/01/2008 C-268/06 J. Kokott 47 (note) Social Policy Implicit direct application 97. " Such is the case here. The prohibition of discrimination under Clause 4(1) of the Framework Agreement expresses the general principle of equal treatment and non-discrimination and is intended to protect employees from being treated less favourably with regard to their employment conditions on the grounds of their status as fixed-term workers by comparison with comparable permanent workers. Applying such guidance to individual cases is one of the classic examples of the work of courts within the scope of Community law". Date Case n Adv Gen Quoted Art Subject 16/01/2008 C-402/05 P M. Poiares Maduro 41, 47 Common foreign and security policy Note Opinions Page 77 of 91

190 Date Case n Adv Gen Quoted Art Subject 23/01/2008 C-415/05 P M. Poiares Maduro 41, 47 Free movement of capital Note Opinions Page 78 of 91

191 Date Case n Adv Gen Quoted Art Subject 24/01/2008 C-350/06 V. Trstenjak 31 Social Policy Direct application 38."Even more significant, in my view, is the fact that the inclusion of this right in the Charter of Fundamental Rights of the European Union (16) appears to provide the most reliable and definitive confirmation that it constitutes a fundamental right. Article 31(2) of the Charter declares that [e]very worker has the right to limitation of maximum working hours, to daily and weekly rest periods and to an annual period of paid leave. Historically, this provision is modelled on Article 2(3) of the European Social Charter of the Council of Europe and point 8 of the Community Charter of the Fundamental Social Rights of Workers. According to the explanatory notes of the Praesidium Secretariat, Directive 93/104, as the predecessor directive to the present Directive 2003/88, was decisive in this respect. 39. Consequently, Article 31(2) of the Charter of Fundamental Rights establishes the right to annual paid leave as a human right available to all. Admittedly, like some of the international instruments cited above, the Charter of Fundamental Rights of the European Union has not been recognised as having genuine legislative scope and therefore it primarily constitutes a political declaration. However, I take the view that it would be wrong to deny the Charter any relevance in interpreting Community law.irrespective of the question of the definitive legal status of the Charter within the legal system of the European Union, which will have to be clarified in future, it already constitutes a concrete expression of shared fundamental European values. Furthermore, it also reflects constitutional traditions common to the Member States to a substantial degree. So far as I can see, this conclusion can indeed be drawn in relation to the right to a minimum period of paid annual leave since Article 31(2) of the Charter is modelled on the constitutions of a large number of Member States. Consequently, it is perfectly reasonable to refer to the principle underpinning Article 31(2) of the Charter in interpreting Article 7 of Directive 2003/88 in a legal dispute concerning the nature and scope of a fundamental right such as that at issue in the present case." Opinions Page 79 of 91

192 Date Case n Adv Gen Quoted Art Subject 24/01/2008 C-520/06 V. Trstenjak 31 Social Policy Direct application 51. " Even more significant, in my view, is the fact that the inclusion of this right in the Charter of Fundamental Rights of the European Union appears to provide the most reliable and definitive confirmation that it constitutes a fundamental right. Article 31(2) of the Charter declares that: Every worker has the right to limitation of maximum working hours, to daily and weekly rest periods and to an annual period of paid leave. Historically, this provision is modelled on Article 2(3) of the Social Charter of the Council of Europe and Point 8 of the Community Charter of the Fundamental Social Rights of Workers.According to the explanatory notes of the Praesidium Secretariat, Directive 93/104, as the predecessor directive to the present Directive 2003/88, was decisive in this respect. 52. Consequently, Article 31(2) of the Charter of Fundamental Rights establishes the right to annual paid leave as a human right available to all. Admittedly, like some of the international instruments cited above, the Charter of Fundamental Rights of the European Union has not been recognised as having genuine legislative scope and therefore it primarily constitutes a political declaration. However, I take the view that it would be wrong to deny the Charter any relevance in interpreting Community law. Irrespective of the question of the definitive legal status of the Charter within the legal system of the European Union, which will have to be clarified in future, it already constitutes a concrete expression of shared fundamental European values. 53. Furthermore, it also reflects constitutional traditions common to the Member States to a substantial degree. So far as I can see, this conclusion can indeed be drawn in relation to the right to a minimum period of paid annual leave since Article 31(2) of the Charter is modelled on the constitutions of a large number of Member States. Consequently, it is perfectly reasonable to refer to the principle underpinning Article 31(2) of the Charter in interpreting Article 7 of Directive 2003/88 in a legal dispute concerning the nature and scope of a fundamental right such as that at issue in the present case". Opinions Page 80 of 91

193 Date Case n Adv Gen Quoted Art Subject 31/01/2008 C-303/06 M. Poiares Maduro Chapter III- 26 Social Policy Indirect application - Note Note 4. "I would add to this list the Charter of Fundamental Rights, Chapter III of which is devoted to equality, and which includes a specific provision on the integration of persons with disabilities (Article 26)". Date Case n Adv Gen Quoted Art Subject 13/03/2008 C-204/07 P V. Trstenjak 42 Customs union Indirect application 94. "Article 255 EC gives concrete expression to the principle of transparency laid down as a rule in the second paragraph of Article 1 EC and at the same time puts into effect the freedom of information for citizens of the Union guaranteed in Article 42 of the Charter of Fundamental Rights of the European Union". Date Case n Adv Gen Quoted Art Subject 03/04/2008 C-524/06 M. Poiares Maduro 7 European citizenship Indirect application - Not relevant in the case 30. "Furthermore, the right to privacy, which, in essence, is at stake in data protection cases, is protected in Article 7 of the Charter of Fundamental Rights of the European Union. In any event, it is neither necessary nor appropriate to address this hypothetical question in the context of the current case". Opinions Page 81 of 91

194 Date Case n Adv Gen Quoted Art Subject 08/04/2008 C-297/07 D. Ruiz-Jarabo- Colomer 47, 48, 49, 50 Police and judicial cooperation in criminal matters Indirect application 50. "A clearer glimpse of this horizon is given with the independent declaration of the ne bis in idem principle in the Charter of the Fundamental Rights of the European Union, Article 50 of which provides that [n]o one shall be liable to be tried or punished again in criminal proceedings for an offence of which he or she has already been finally acquitted or convicted within the Union in accordance with the law". Note 56. "In the Opinion I delivered on 12 September 2006 in Case C-303/05 Advocaten voor de Wereld [2007] ECR I- 3633, I maintain that the Court must... recognise the authority of the Charter of Fundamental Rights as an interpretative tool at the forefront of the protection of the fundamental rights which are part of the heritage of the Member States. That undertaking must be approached with caution and vigour alike, in the full belief that, while the protection of fundamental rights is an essential part of the Community pillar, it is equally indispensable in the context of the third pillar, which, owing to the nature of its subject-matter, is capable of affecting the very heart of individual freedom, the foundation of the other freedoms. Also, the Treaty of Lisbon of 13 December 2007 amends Article 6 EU, to which it adds this paragraph: The Union recognises the rights, freedoms and principles set out in the Charter of Fundamental Rights of the European Union of 7 December 2000, as adapted at Strasbourg, on 12 December 2007, which shall have the same legal value as the Treaties". Opinions Page 82 of 91

195 Date Case n Adv Gen Quoted Art Subject 10/04/2008 C-345/06 E. Sharpston 42 Law governing the institutions Quoted by the referring Court Date Case n Adv Gen Quoted Art Subject 24/04/2008 C-353/06 E. Sharpston 24 European citizenship Indirect application 9. " Article 3(1) of the United Nations Convention on the Rights of the Child provides: In all actions concerning children, whether undertaken by public or private social welfare institutions, courts of law, administrative authorities or legislative bodies, the best interests of the child shall be a primary consideration. Substantially the same provision is to be found in Article 24(2) of the Charter of Fundamental Rights of the European Union.". Opinions Page 83 of 91

196 Date Case n Adv Gen Quoted Art Subject 08/05/2008 C-73/07 J. Kokott 7, 8, 11 Law governing the institutions Indirect application 38. "Community law guarantees the fundamental right of freedom of expression embodied in Article 10 of the European Convention for the Protection of Human Rights and Fundamental Freedoms (ECHR), signed in Rome on 4 November This is recognised in Article 11 of the Charter of Fundamental Rights of the European Union ( the Charter ), proclaimed in Nice on 7 December In accordance with the case-law of the Court of Justice and the Protocol on the system of public broadcasting in the Member States, in particular the freedom and pluralism of the media are respected in accordance with Article 11(2) of the Charter. 39. Freedom of expression is not confined to the expression of opinions but expressly includes, pursuant to the second sentence of Article 10(1) of the ECHR and the first sentence of Article 11(1) of the Charter, freedom to receive and impart information and ideas in the sense of freedom of communication. The European Court of Human Rights has consistently held that freedom of expression is applicable not only to information or ideas that are favourably received or regarded as inoffensive or as a matter of indifference, but also to those that offend, shock or disturb the State or any sector of the population. Freedom of expression protects the transmission of information and the expression of opinion even for commercial purposes. 40. The fundamental right to respect for private life is laid down in Article 8 of the ECHR and is recognised in Article 7 of the Charter. Furthermore, Article 8 of the Charter expressly proclaims the right to the protection of personal data. The communication of personal data to a third party infringes the right of the persons concerned to respect for private life, whatever the subsequent use of the information thus communicated, and constitutes interference within the meaning of Article 8 of the ECHR. 41. The right to respect for private life is not purely a defence against arbitrary interference by public authorities, but also creates positive obligations on the part of the State. (14) Therefore the Community has, by means of the Data Protection Directive, extended data protection to processing by individuals. To that effect, the European Court of Human Rights has also pointed out, in a case concerning the use of photographs involving the private life of a prominent person, that increased vigilance is necessary to contend with new communication technologies which make it possible to store and reproduce personal data. 42. The restriction of both fundamental rights is in principle permissible, subject to comparable conditions. It must be laid down by law, it must conform with one or more of the legitimate aims of Article 8 or Article 10 of the ECHR and it Opinions Page 84 of 91

197 must be necessary in a democratic society, that is to say, an imperative need may justify interference if it is in reasonable proportion to the legitimate aim in question". Date Case n Adv Gen Quoted Art Subject 26/06/2008 C-333/07 J. Kokott 47 State aid Note Date Case n Adv Gen Quoted Art Subject 10/07/2008 C-404/07 J. Kokott 47,48 Police and judicial cooperation in criminal matters Indirect application 44. " It should, in addition, be emphasised that giving effect to the position of victims bringing prosecutions should not entail any kind of diminution of the rights of the defence. These rights derive from the right to a fair trial, which is enshrined in Article 6 of the Convention for the Protection of Human Rights and Fundamental Freedoms signed in Rome on 4 November 1950 ( the ECHR ) and recognised by Articles 47 and 48 of the Charter of Fundamental Rights of the European Union, proclaimed in Nice on 7 December The rights of the defence, therefore, constitute a fundamental right forming part of the general principles of law whose observance the Court ensures. The Framework Decision is, consequently, to be interpreted in such a way as to respect Article 6 of the ECHR, as interpreted by the European Court of Human Rights.". Opinions Page 85 of 91

198 Date Case n Adv Gen Quoted Art Subject 04/09/2008 C-185/07 J. Kokott 47 Judgement Conventions/Enforce ment of judgements Note Date Case n Adv Gen Quoted Art Subject 04/09/2008 C-222/07 J. Kokott 22 Freedom to provide services Indirect application - Pronouncements on the binding force of the Charter (note) 94. "Respect for and promotion of diversity in the cultural sector is also important to the European Union because it is this very diversity that is so characteristic of Europe and European culture. The idea of unity in diversity therefore forms one of the cornerstones of the European Union, (71) whilst Article 22 of the Charter of Fundamental Rights of the European Union states that the Union shall respect cultural, religious and linguistic diversity". Note 72 - "The Charter of Fundamental Rights of the European Union was initially solemnly proclaimed in Nice on 7 December 2000 and then for a second time in Strasbourg on 12 December Admittedly, it still does not produce binding legal effects comparable to primary law but it does, as a material legal reference, shed light on the fundamental rights which are protected by the Community legal order". Opinions Page 86 of 91

199 Date Case n Adv Gen Quoted Art Subject 09/09/2008 C-465/07 M. Poiares Maduro Generic Area of freedom, Reference, 18, 52 security and justice Inidrect application - Pronouncements of the binding force of the Charter 21. "None the less, the importance that the ECHR may assume in the interpretation of the Community provisions which concern us cannot be overlooked. The Directive pursues the objective of developing a fundamental right to asylum which follows from the general principles of Community law which, themselves, are the result of constitutional traditions common to the Member States and the ECHR, as reproduced, moreover, in the Charter of Fundamental Rights of the European Union proclaimed in Nice on 7 November As I pointed out in a previous case, although the charter in question cannot in itself constitute a sufficient legal basis for the creation of rights capable of being directly invoked by individuals, it is nevertheless not without effect as a criterion for the interpretation of the instruments protecting the rights mentioned in Article 6(2) EU. From that perspective, that charter may have a dual function. In the first place, it may create the presumption of the existence of a right which will then require confirmation of its existence either in the constitutional traditions common to the Member States or in the provisions of the ECHR. In the second place, where a right is identified as a fundamental right protected by the Community legal order, the Charter provides a particularly useful instrument for determining the content, scope and meaning to be given to that right". Opinions Page 87 of 91

200 Date Case n Adv Gen Quoted Art Subject 11/09/2008 C-308/07 P V. Trstenjak 41, 47 Law governing the institutions Quoted by the applicant - Indirect application 56. "In examining the second ground of appeal, high relevance must be attached to the provision made in Article 6(1) of the ECHR, according to which, in the determination of his civil rights and obligations or of any criminal charge against him, everyone is entitled to a fair and public hearing within a reasonable time by an independent and impartial tribunal established by law. That fundamental right has taken on a similar form in Article 47 of the Charter of Fundamental Rights". 91. "Expressions of the principle of sound administration can be found in the Community legal order in numerous provisions of primary and secondary law, in Article 41 of the Charter of Fundamental Rights, in the Code of Good Administrative Behaviour of the European Ombudsman and in the procedural rules adopted by each of the Community institutions to implement that code. There is a similar variation in its binding character for the Community institutions and bodies in the context of the direct enforcement of Community law. However, the main source of inspiration in drafting Article 41 of the Charter of Fundamental Rights, which has now refined the principle of sound administration into a fundamental right of the individual, has from the beginning been the case-law of the Court of Justice ". 92. "The starting point for examining whether in adopting a measure a Community institution has breached the principle of sound administration must, in the absence of a legally binding document which implements the rights stemming from Article 41 of the Charter of Fundamental Rights with effect for all Community institutions and bodies, (55) therefore always be the case-law of the Court of Justice". 94. "On the other hand, the appellant is correct in his view that in considering the seventh plea the Court of First Instance was required to consult other sources of law and not to restrict itself solely to Article 20 of the abovementioned Code of Good Administrative Behaviour, especially since in its application the appellant expressly relied on Article 41 of the Charter of Fundamental Rights. (59) Nevertheless, this failure in the statement of reasons cannot in itself justify setting aside the contested order, as the grounds on which the Court of First Instance based its decision to reject the seventh plea as inadmissible in part and as unfounded in part withstand a judicial examination " Opinions Page 88 of 91

201 Date Case n Adv Gen Quoted Art Subject 18/11/2008 C-421/07 D. Ruiz-Jarabo 11 Free movement of Colomer goods Indirect application - Note 70. "Freedom of expression forms part of the body of constitutional law of each of the Member States and is enshrined in Article 10 of the ECHR and Article 11 of the Charter of Fundamental Rights of the European Union. There are many judgments of the Court of Justice which uphold the right to freedom of expression within the Community". Date Case n Adv Gen Quoted Art Subject 18/12/2008 C-394/07 J. Kokott 47 Judgements Convention/Enforcem ent of judgements Indirect application 41. "The right to a fair trial, which derives inter alia from the first sentence of Article 6(1) of the ECHR and was reaffirmed by Article 47 of Charter of Fundamental Rights of the European Union proclaimed in Nice on 7 December 2000, is a fundamental right forming part of the general principles of Community law". Opinions Page 89 of 91

202 Date Case n Adv Gen Quoted Art Subject 22/12/2008 C-553/07 D. Ruiz-Jarabo 8 Approximation of Colomer laws Indirect application - Pronouncements on the binding force of the Charter - Note 21. "In short, Directive 95/46 develops the fundamental right to privacy in so far as it affects the automatic processing of personal data". 22. " As evidence of that codifying aim, suffice it to note that Article 8 of the Charter of fundamental rights of the European Union, which concerns the Protection of personal data, provides for a right of access and a right to have data processed fairly, and also grants a right of access to data and a right to have them rectified. Although the Charter must be applied with caution, it is difficult to ignore its provisions and to deny that that those elements of the right form part of the constitutional traditions common to the Member States. That view is bolstered by the facts that more than 10 years have passed since the adoption of Directive 95/46 and that effective harmonisation in the field has been achieved". 23. "Specifically, Article 8 of the Charter refers to two matters which have a bearing on the case before the Court. Those matters are reflected in Articles 6 and 12 of Directive 95/46 and are, first, the obligation to delete data within a period which does not exceed what is necessary for fulfilling the purposes for which it was collected (Article 6(1)(e)), and, second, the right of access, without constraint, to information about the recipients to whom the data have been disclosed (Article 12(a)). As the Charter refers to those matters and places them at the very heart of the fundamental right to privacy, the question referred for a preliminary ruling by the Raad van State calls for a weighing up of principles and interests in order to arrive at a rational reply which positions those provisions in the applicable constitutional framework.". 35. "That reasoning is borne out by the scheme of Article 8 of the Charter of fundamental rights of the European Union, the interpretative value of which is beyond doubt, and which refers to the right of access in its first paragraph. Paragraph 2 goes on to list the principles applicable to data processing, but that hierarchical order, where the right of data subjects takes precedence over the responsibilities of those who use personal data, is clear there too". Note 23 - "A document which, although it does not form part of the current Community legal order, undoubtedly displays its effects as a provision of soft law". Opinions Page 90 of 91

203 Opinions Page 91 of 91

204 Year 2001 Date Case n Quoted Art Subject 20/02/2001 T-112/98 Generic Reference Competition Quoteb by the applicant - Not relevant in the case 76. "As regards the potential impact of the Charter, to which the applicant refers [...], upon the assessment of this case, it must be borne in mind that that Charter was proclaimed by the European Parliament, the Council and the Commission on 7 December It can therefore be of no consequence for the purposes of review of the contested measure, which was adopted prior to that date. That being so, there is no reason to accede to the applicant's request for the oral procedure to be re-opened". Judgments Page 1 of 36

205 Year 2002 Date Case n Quoted Art Subject 30/01/2002 T-54/99 41, 47 Competition Indirect application 48. "Since the present action is directed against a measure rejecting a complaint, it must be emphasised at the outset that the diligent and impartial treatment of a complaint is associated with the right to sound administration which is one of the general principles that are observed in a State governed by the rule of law and are common to the constitutional traditions of the Member States. Article 41(1) of the Charter of Fundamental Rights of the European Union proclaimed at Nice on 7 December 2000 (OJ 2000 C 364, p. 1, hereinafter the Charter of Fundamental Rights) confirms that [e]very person has the right to have his or her affairs handled impartially, fairly and within a reasonable time by the institutions and bodies of the Union. It is appropriate to consider, first of all, the nature and scope both of that right and of the administration's concomitant obligations in the specific context of the application of Community competition law to an individual case, as called for in this instance by the applicant". 57. "Such judicial review is also one of the general principles that are observed in a State governed by the rule of law and are common to the constitutional traditions of the Member States, as is confirmed by Article 47 of the Charter of Fundamental Rights, under which any person whose rights guaranteed by the law of the Union are violated has the right to an effective remedy before a tribunal". Judgments Page 2 of 36

206 Date Case n Quoted Art Subject 03/05/2002 T-177/01 47 ECSC Indirect application 42. "In addition, the right to an effective remedy for everyone whose rights and freedoms guaranteed by the law of the Union are violated has been reaffirmed by Article 47 of the Charter of Fundamental Rights of the European Union proclaimed at Nice on 7 December 2000 (OJ 2000 C 364, p. 1)". Date Case n Quoted Art Subject 27/09/2002 T-211/02 41 External relations Indirect application Date Case n Quoted Art Subject 10/12/2002 C-491/01 17 Approximation of laws Quoted by the applicant Judgments Page 3 of 36

207 Year 2003 Date Case n Quoted Art Subject 15/01/2003 T- 377/00, T- 379/00, T- 380/00, T- 260/01 e 272/01 47 Law governing the institutions Indirect application 122. "The right to an effective remedy for everyone whose rights and freedoms guaranteed by the law of the Union are violated has, moreover, been reaffirmed by Article 47 of the Charter of fundamental rights of the European Union, proclaimed on 7 December 2000 in Nice (OJ 2000 C 364, p. 1). Although this document does not have legally binding force, it does show the importance of the rights it sets out in the Community legal order". Date Case n Quoted Art Subject 20/05/2003 C-465/00; C- 138/01 e C- 139/01 Generic Reference Approximation of laws Quoted by the parties Judgments Page 4 of 36

208 Date Case n Quoted Art Subject 09/07/2003 T- 223/00 50 Competition Indirect application 104. "Admittedly, Article 50 of the Charter of fundamental rights of the European Union (OJ 2000 C 364, p. 1) proclaimed in Nice on 7 December 2000 provides that no one may be tried or punished again in criminal proceedings for an offence of which he has already been finally acquitted or convicted within the Union in accordance with the law. However, independently of the question whether that provision has binding legal force, it is clearly intended to apply only within the territory of the Union and the scope of the right laid down in the provision is expressly limited to cases where the first acquittal or conviction is handed down within the Union". Date Case n Quoted Art Subject 09/07/2003 T-224/00 50 Competition Indirect application 93. "Admittedly, Article 50 of the Charter of fundamental rights of the European Union (OJ 2000 C 364, p. 1) proclaimed in Nice on 7 December 2000 provides that no one may be tried or punished again in criminal proceedings for an offence of which he has already been finally acquitted or convicted within the Union in accordance with the law. However, independently of the question whether that provision has binding legal force, it is clearly intended to apply only within the territory of the Union and the scope of the right laid down in the provision is expressly limited to cases where the first acquittal or conviction is handed down within the Union". Judgments Page 5 of 36

209 Date Case n Quoted Art Subject 05/08/2003 T-116/01 e 47 State aid 118/01 Indirect application 209. "The right to an effective remedy has, moreover, been reaffirmed by Article 47 of the Charter of fundamental rights of the European Union proclaimed on 7 December 2000 in Nice". Date Case n Quoted Art Subject 23/10/2003 C-245/01 11 Freedom to provide services Quoted by the applicant rtfp=jurtfp&alldocrec=alldocrec&docj=docj&docor=docor&docop=docop&docav=docav&docsom=docso m&docinf=docinf&alldocnorec=alldocnor Judgments Page 6 of 36

210 Date Case n Quoted Art Subject 06/11/2003 C-101/01 Generic Reference Approximation of laws Quoted by the Commission 35. "The Commission argues that Community law is not limited to economic activities connected with the four fundamental freedoms. Referring to the legal basis of Directive 95/46, to its objective, to Article 6 EU, to the Charter of fundamental rights of the European Union proclaimed in Nice on 18 December 2000 (OJ 2000 C 364, p. 1), and to the Council of Europe Convention of 28 January 1981 for the protection of individuals with regard to automatic processing of personal data, it concludes that that directive is intended to regulate the free movement of personal data in the exercise not only of an economic activity, but also of social activity in the course of the integration and functioning of the common market". Judgments Page 7 of 36

211 Year 2004 Date Case n Quoted Art Subject 07/01/2004 C-204/00 P, C- 205/00 P, C- 211/00 P, C- 213/00 P, C- 217/00 P e C- 219/00 P, 42 Competition Quoted by the applicant Date Case n Quoted Art Subject 13/01/2004 T-67/01 41 Competition Indirect application 36. "The need to act within a reasonable time in conducting administrative proceedings relating to competition policy is a general principle of Community law whose observance is ensured by the Community judicature (Case C-282/95 P Guérin automobiles v Commission [1997] ECR I-1503, paragraphs 36 and 37; Joined Cases C-238/99 P, C-244/99 P, C- 245/99 P, C-247/99 P, C-250/99 P to C-252/99 P and C-254/99 P LVM v Commission [2002] ECR I-8375, paragraphs 167 to 171, and SCK and FNK, cited above, paragraphs 55 and 56), and which is incorporated, as an element of the right to good administration, in Article 41(1) of the Charter of fundamental rights of the European Union proclaimed in Nice on 7 December 2000 (OJ 2000 C 364, p. 1). Accordingly, while it is not necessary to rule on the applicability as such of Article 6(1) of the ECHR to administrative proceedings before the Commission relating to competition policy, it must be considered whether, in the present case, the Commission has breached the general principle of Community law that decisions must be adopted within a reasonable time in the procedure leading to the adoption of the contested decision". Judgments Page 8 of 36

212 Date Case n Quoted Art Subject 01/04/2004 C-263/02 P 47 Law governing the institutions Quoted by the Court of First Instance 47. "On the basis of the foregoing, the inevitable conclusion must be that the procedures provided for in, on the one hand, Article 234 EC and, on the other hand, Article 235 EC and the second paragraph of Article 288 EC can no longer be regarded, in the light of Articles 6 and 13 of the ECHR and of Article 47 of the Charter of Fundamental Rights, as guaranteeing persons the right to an effective remedy enabling them to contest the legality of Community measures of general application which directly affect their legal situation". Date Case n Quoted Art Subject 01/04/2004 T-312/02 41 Staff regulations Quoted by the applicant rtfp=jurtfp&alldocrec=alldocrec&docj=docj&docor=docor&docop=docop&docav=docav&docsom=docso m&docinf=docinf&alldocnorec=alldocnor Judgments Page 9 of 36

213 Date Case n Quoted Art Subject 29/04/2004 T-236/01, T- 239/01, da T- 244/01 a T- 246/01, T- 251/01 e T- 252/01 50 Competition Quoted by the applicant - Indirect application (Not relevant in the case) 137. "It is true that Article 50 of the Charter of Fundamental Rights provides that no one may be tried or punished again in criminal proceedings for an offence of which he has already been finally acquitted or convicted within the Union in accordance with the law. However, that charter is clearly intended to apply only within the territory of the Union and the scope of the right laid down in Article 50 is expressly limited to cases where the first acquittal or conviction was handed down within the Union". Judgments Page 10 of 36

214 Date Case n Quoted Art Subject 08/07/2004 T-67/00, T- 68/00, T-71/00 e T-78/00 47 Competition Indirect application 178. " [ ] it is necessary to take account of the principle of the presumption of innocence resulting in particular from Article 6(2) of the European Convention for the Protection of Human Rights (ECHR), which is one of the fundamental rights which, according to the case-law of the Court of Justice and as reaffirmed in the preamble to the Single European Act, by Article 6(2) of the Treaty on European Union and by Article 47 of the Charter of Fundamental Rights of the European Union proclaimed on 7 December 2000 in Nice (OJ 2000 C 364, p 1), are protected in the Community legal order". Date Case n Quoted Art Subject 07/10/2004 C-136/02 P 41 Intellectual property Quoted by the applicant Judgments Page 11 of 36

215 Date Case n Quoted Art Subject 23/11/2004 T-84/03 Generic Reference Law governing the institutions Legal framework Date Case n Quoted Art Subject 16/12/2004 T e T Generic Reference Staff regulations Quoted by the applicant rtfp=jurtfp&alldocrec=alldocrec&docj=docj&docor=docor&docop=docop&docav=docav&docsom=docso m&docinf=docinf&alldocnorec=alldocnor Judgments Page 12 of 36

216 Year 2005 Date Case n Quoted Art Subject 22/02/2005 C-141/02 P 41, 47 Competition Quoted by the Court of First Instance 16. "The Court of First Instance first pointed out [ ] that the diligent and impartial treatment of a complaint is justified by the right to sound administration of individual situations, which is one of the general principles that are common to the constitutional traditions of the Member States and which is set out in Article 41(1) of the Charter of Fundamental Rights of the European Union proclaimed at Nice on 7 December 2000". 20. " [ ] The Court of First Instance stated further that such judicial review is also one of the general principles that are common to the constitutional traditions of the Member States, as is confirmed by Article 47 of the Charter of Fundamental Rights". Date Case n Quoted Art Subject 13/04/2005 T-2/03 42 Law governing the institutions Background to the dispute Judgments Page 13 of 36

217 Date Case n Quoted Art Subject 12/05/2005 C-347/03 17 External relations Quoted by the referring Court Date Case n Quoted Art Subject 13/07/2005 T-242/02 41 Intellectual property Indirect application 51. "The principle that decisions must be adopted within a reasonable time, set out, as a component of the principle of good administration, in Article 41(1) of the Charter of Fundamental Rights of the European Union, proclaimed at Nice on 7 December 2000 (OJ 2000 C 364, p. 1), is mandatory in any Community administrative proceedings". Date Case n Quoted Art Subject 06/10/2005 T-22/02 e T- 48, 51 Competition 23/02 Quoted by the applicant Judgments Page 14 of 36

218 Date Case n Quoted Art Subject 25/10/2005 T-38/02 47 Competition Indirect application 216. "In the latter situation, it is necessary to take account of the principle of the presumption of innocence resulting in particular from Article 6(2) of the ECHR, which is one of the fundamental rights which, according to the settled caselaw of the Court of Justice, reaffirmed in the Preamble to the Single European Act, by Article 6(2) of the Treaty on European Union and by Article 47 of the Charter of Fundamental Rights of the European Union (OJ 2000 C 364, p. 1), are protected in the Community legal order". Date Case n Quoted Art Subject 22/11/2005 C-144/04 Social policy Implicit direct application Date Case n Quoted Art Subject 06/12/2005 C-453/03, C- 11/04, C-12/04 e C-194/04 17 Agricolture Quoted by the referring court Judgments Page 15 of 36

219 Date Case n Quoted Art Subject 14/12/2005 T-210/01 41, 42, 47, 52 Competition Quoted by the applicant - Pronouncements on the binding force of the Charter 725. "[ ] all the specific rights mentioned at paragraph 724 above were, in substance, already protected in Community law before the adoption of the Charter, which, as stated in its own preamble, merely reaffirmed them". Date Case n Quoted Art Subject 05/04/2006 T-279/02 41, 47, 48, 49 Competition Quoted by the applicant - Indirect application 115. "The principle of the presumption of innocence, as it results in particular from Article 6(2) of the ECHR, is one of the fundamental rights which, according to the case-law of the Court of Justice, reaffirmed by the preamble to the Single European Act, by Article 6(2) of the Treaty on European Union and by Article 47 of the Charter, are recognised in the Community legal order. Given the nature of the infringements in question and the nature and degree of severity of the ensuing penalties, the principle of the presumption of innocence applies inter alia to the procedures relating to infringements of the competition rules applicable to undertakings that may result in the imposition of fines or periodic penalty payments". Judgments Page 16 of 36

220 Year 2006 Date Case n Quoted Art Subject 19/01/2006 C-547/03 P 47 External relations Quoted by the applicant Date Case n Quoted Art Subject 03/05/2006 T-439/04 17 Intellectual property Quoted dy the applicant - Not relevant in the case Date Case n Quoted Art Subject 07/06/2006 T-213/01 e T- 8, 48 Competition 214/01 Quoted by the parties Judgments Page 17 of 36

221 Date Case n Quoted Art Subject 27/06/2006 C-540/03 8, 7, 24, 21 Area of freedom, security and justice Indirect application - Legal framework 31. "The Parliament invokes, first, the right to respect for family life, set out in Article 8 of the ECHR, which the Court has interpreted as also covering the right to family reunification [ ]. This principle has been repeated in Article 7 of the Charter which, the Parliament observes, is relevant to interpretation of the ECHR in so far as it draws up a list of existing fundamental rights even though it does not have binding legal effect. The Parliament also cites Article 24 of the Charter, devoted to rights of the child, which provides, in paragraph 2, that in all actions relating to children, whether taken by public authorities or private institutions, the child s best interests must be a primary consideration and, in paragraph 3, that every child shall have the right to maintain on a regular basis a personal relationship and direct contact with both his or her parents, unless that is contrary to his or her interests. The Parliament invokes, second, the principle of non-discrimination on grounds of age which, it submits, is taken into account by Article 14 of the ECHR and is expressly covered by Article 21(1) of the Charter". 34. "The Council observes that the Community is not a party to the various instruments of public international law invoked by the Parliament. In any event, those norms require merely that the children s interests be respected and taken into account, and do not establish any absolute right regarding family reunification. Nor should the application be examined in light of the Charter given that the Charter does not constitute a source of Community law". 38. "The Charter was solemnly proclaimed by the Parliament, the Council and the Commission in Nice on 7 December While the Charter is not a legally binding instrument, the Community legislature did, however, acknowledge its importance by stating, in the second recital in the preamble to the Directive, that the Directive observes the principles recognised not only by Article 8 of the ECHR but also in the Charter. Furthermore, the principal aim of the Charter, as is apparent from its preamble, is to reaffirm rights as they result, in particular, from the constitutional traditions and international obligations common to the Member States, the Treaty on European Union, the Community Treaties, the [ECHR], the Social Charters adopted by the Community and by the Council of Europe and the case-law of the Court and of the European Court of Human Rights ". 58. " The Charter likewise recognises, in Article 7, the right to respect for private or family life. This provision must be Judgments Page 18 of 36

222 read in conjunction with the obligation to have regard to the child s best interests, which are recognised in Article 24(2) of the Charter, and taking account of the need, expressed in Article 24(3), for a child to maintain on a regular basis a personal relationship with both his or her parents". Date Case n Quoted Art Subject 06/07/2006 T-391/03 e T- 42 Law governing the 70/04 institutions Quoted by the parties Date Case n Quoted Art Subject 12/09/2006 C-131/03 P 47 Law governing the institutions Quoted by the Court of First Instance Judgments Page 19 of 36

223 Date Case n Quoted Art Subject 12/09/2006 C-145/04 39, 53 Law governing the institutions Quoted by the parties Date Case n Quoted Art Subject 27/09/2006 T-43/02 41, 49 Competition Quoted by the applicant Date Case n Quoted Art Subject 04/10/2006 T-193/04 41 Law governing the institutions Indirect application - Not relevant in the case 127. "In that regard, first, the principle of sound administration, which is the only principle alleged to have been breached in this context, does not, in itself, confer rights upon individuals [ ], except where it constitutes the expression of specific rights such as the right to have affairs handled impartially, fairly and within a reasonable time, the right to be heard, the right to have access to files, or the obligation to give reasons for decisions, for the purposes of Article 41 of the Charter of fundamental rights of the European Union, proclaimed on 7 December 2000 in Nice (OJ 2000 C 364, p. 1), which is not the case here". Judgments Page 20 of 36

224 Date Case n Quoted Art Subject 12/12/2006 T-228/02 48 Common foreign and security policy Quoted by the applicant - Pronouncements on the binding force of the Charter - Not relevant in the case 71. "In any event, it is not apparent from the ECHR, the Charter of Fundamental Rights, a non-binding instrument, or the constitutional traditions common to the Member States, that observance of the right to a fair hearing entails an unconditional right to be heard before the adoption of a civil or administrative sanction measure, such as that challenged in the present case". Date Case n Quoted Art Subject 13/12/2006 T-217/03 e T- 12 Competition 245/03 Quoted by the applicant Judgments Page 21 of 36

225 Date Case n Quoted Art Subject 14/12/2006 da T-259/02 a T-264/02 e T- 271/02 49 Competition Quoted by the applicant Judgments Page 22 of 36

226 Year 2007 Date Case n Quoted Art Subject 25/01/2007 C-411/04 P 46, 47 Competition Quoted by the applicant - Not relevant in the case Date Case n Quoted Art Subject 13/03/2007 C-432/05 47 Freedom to provide services Indirect application 37. "It is to be noted at the outset that, according to settled case-law, the principle of effective judicial protection is a general principle of Community law stemming from the constitutional traditions common to the Member States, which has been enshrined in Articles 6 and 13 of the European Convention for the Protection of Human Rights and Fundamental Freedoms [...] and which has also been reaffirmed by Article 47 of the Charter of fundamental rights of the European Union, proclaimed on 7 December 2000 in Nice ". Judgments Page 23 of 36

227 Date Case n Quoted Art Subject 03/05/2007 C-303/05 20, 21, 49 Police and judicial cooperation in criminal matters Indirect application 46. " It is common ground that those principles include the principle of the legality of criminal offences and penalties and the principle of equality and non-discrimination, which are also reaffirmed respectively in Articles 49, 20 and 21 of the Charter of Fundamental Rights of the European Union, proclaimed in Nice on 7 December 2000 (OJ 2000 C 364, p. 1)". Date Case n Quoted Art Subject 07/06/2007 C-76/06 P 49 Competition Quoted by the applicant Date Case n Quoted Art Subject 26/06/2007 C-305/05 47, 48 Taxation Quoted by the applicant Judgments Page 24 of 36

228 Date Case n Quoted Art Subject 11/07/2007 T-170/06 41 Competition Quoted by the applicant - Legal framework Date Case n Quoted Art Subject 11/07/2007 T-351/03 47 Competition Indirect application 181. "Observance of all persons right to a hearing before an independent and impartial tribunal is guaranteed by Article 6(1) of the Convention, to which reference is made by Article 6(2) of the Treaty on European Union and which was reaffirmed by the second paragraph of Article 47 of the Charter of Fundamental Rights of the European Union". Date Case n Quoted Art Subject 12/09/2007 T-25/04 41 State aid Quoted by the applicant Judgments Page 25 of 36

229 Date Case n Quoted Art Subject 12/09/2007 T-36/04 Generic Reference Law governing the institutions Legal framework Date Case n Quoted Art Subject 12/10/2007 T-474/04 48 Competition Indirect application - Quoted by the applicant 75. "In addition, as the applicant admits, the scope of the Commission s power to adopt and publish decisions on the basis of Regulation No 17 and the scope of the protection of professional secrecy must be interpreted in the light of general principles and fundamental rights, which are an integral part of the Community legal order, and, in particular, of the principle of presumption of innocence as reaffirmed in Article 48 of the Charter of Fundamental Rights of the European Union proclaimed in Nice on 7 December 2000 (OJ 2000 C 364, p. 1) which applies to the procedures relating to infringements of the competition rules applicable to undertakings that may result in the imposition of fines or periodic penalty payments". Judgments Page 26 of 36

230 Date Case n Quoted Art Subject 08/11/2007 T-194/04 7, 8 Law governing the institutions Legal framework - Quoted by the Commission Date Case n Quoted Art Subject 22/11/2007 C-260/05 P 47 State aid Quoted by the applicant Judgments Page 27 of 36

231 Date Case n Quoted Art Subject 11/12/2007 C-438/05 28 Freedom of establishment Indirect application 43. "In that regard, it must be recalled that the right to take collective action, including the right to strike, is recognised both by various international instruments which the Member States have signed or cooperated in, such as the European Social Charter, signed at Turin on 18 October 1961 to which, moreover, express reference is made in Article 136 EC and Convention No 87 concerning Freedom of Association and Protection of the Right to Organise, adopted on 9 July 1948 by the International Labour Organisation and by instruments developed by those Member States at Community level or in the context of the European Union, such as the Community Charter of the Fundamental Social Rights of Workers adopted at the meeting of the European Council held in Strasbourg on 9 December 1989, which is also referred to in Article 136 EC, and the Charter of Fundamental Rights of the European Union proclaimed in Nice on 7 December 2000". Judgments Page 28 of 36

232 Date Case n Quoted Art Subject 18/12/2007 C-341/05 28 Customs union Indirect application 90. "In that regard, it must be recalled that the right to take collective action is recognised both by various international instruments which the Member States have signed or cooperated in, such as the European Social Charter, signed at Turin on 18 October 1961 to which, moreover, express reference is made in Article 136 EC and Convention No 87 of the International Labour Organisation concerning Freedom of Association and Protection of the Right to Organise of 9 July 1948 and by instruments developed by those Member States at Community level or in the context of the European Union, such as the Community Charter of the Fundamental Social Rights of Workers adopted at the meeting of the European Council held in Strasbourg on 9 December 1989, which is also referred to in Article 136 EC, and the Charter of Fundamental Rights of the European Union proclaimed in Nice on 7 December 2000". Date Case n Quoted Art Subject 18/12/2007 C-64/05 P Generic Reference Law governing the institutions Legal framework Judgments Page 29 of 36

233 Year 2008 Date Case n Quoted Art Subject 29/01/2008 C-275/06 7, 8, 17, 47 Intellectual property Direct application Fundamental rights 61. "The national court refers in its order for reference to Articles 17 and 47 of the Charter, the first of which concerns the protection of the right to property, including intellectual property, and the second of which concerns the right to an effective remedy. By so doing, that court must be regarded as seeking to know whether an interpretation of those directives to the effect that the Member States are not obliged to lay down, in order to ensure the effective protection of copyright, an obligation to communicate personal data in the context of civil proceedings leads to an infringement of the fundamental right to property and the fundamental right to effective judicial protection". 63. "However, the situation in respect of which the national court puts that question involves, in addition to those two rights, a further fundamental right, namely the right that guarantees protection of personal data and hence of private life. According to recital 2 in the preamble to Directive 2002/58, the directive seeks to respect the fundamental rights and observes the principles recognised in particular by the Charter. In particular, the directive seeks to ensure full respect for the rights set out in Articles 7 and 8 of that Charter. Article 7 substantially reproduces Article 8 of the European Convention for the Protection of Human Rights and Fundamental Freedoms signed at Rome on 4 November 1950, which guarantees the right to respect for private life, and Article 8 of the Charter expressly proclaims the right to protection of personal data". Judgments Page 30 of 36

234 Date Case n Quoted Art Subject 14/02/2008 C-244/06 24 Free movement of goods Indirect application 41. "The protection of the child is also enshrined in instruments drawn up within the framework of the European Union, such as the Charter of fundamental rights of the European Union, proclaimed on 7 December 2000 in Nice (OJ 2000 C 364, p. 1), Article 24(1) of which provides that children have the right to such protection and care as is necessary for their well-being (see, to that effect, Parliament v Council, paragraph 58). Furthermore, the Member States right to take the measures necessary for reasons relating to the protection of young persons is recognised by a number of Communitylaw instruments, such as Directive 2000/31". Date Case n Quoted Art Subject 14/02/2008 C-450/06 7 Freedom of establishment Indirect application 48. "One of the fundamental rights capable of being protected in this way is the right to respect for private life, enshrined in Article 8 of the ECHR, which flows from the common constitutional traditions of the Member States and which is restated in Article 7 of the Charter of fundamental rights of the European Union, proclaimed in Nice on 7 December 2000". Judgments Page 31 of 36

235 Date Case n Quoted Art Subject 01/07/2008 C-39/05 P e C- 52/05 P Generic Reference Law governing the institutions Legal framework Judgments Page 32 of 36

236 Date Case n Quoted Art Subject 08/07/2008 T-99/04 Preamble, 47, 48, Competition 49, 52, 53 Quoted by the applicant - Indirect application 45. "It should be pointed out, at the outset, that the Court has no jurisdiction to assess the lawfulness of an investigation under competition law in the light of provisions of the ECHR, inasmuch as those provisions do not as such form part of Community law. That said, the fact remains that the Community judicature is called upon to ensure the observance of the fundamental rights which form an integral part of the general principles of law and, for that purpose, it draws inspiration from the constitutional traditions common to the Member States and from the guidelines supplied by international instruments for the protection of human rights, on which the Member States have collaborated and to which they are signatories. In that regard, the ECHR has special significance, as confirmed by Article 6(2) EU [...]. That has also been reaffirmed in the fifth recital in the preamble to the Charter of Fundamental Rights of the European Union, and Articles 52(3) and 53 thereof". 83. "A contrary and broad interpretation of Article 81(1) EC, such as that adopted by the Commission in the present case, infringes the principle of nullum crimen, nulla poena sine lege within the meaning of Article 7(1) of the ECHR and Article 49(1) of the Charter of Fundamental Rights of the European Union. The Eur. Court H. R. has acknowledged that Article 7 of the ECHR enshrines both that principle and the principle that the criminal law may not be applied broadly, in particular by analogy, to the detriment of the defendant. It follows that an infringement must be clearly defined by the law itself". Judgments Page 33 of 36

237 Date Case n Quoted Art Subject 11/07/2008 C-195/08 PPU 24 Area of freedom, security and justice Legal framework Date Case n Quoted Art Subject 25/07/2008 C-127/08 Generic Reference Area of freedom, security and justice Legal framework Date Case n Quoted Art Subject 03/09/2008 C-402/05 P e 47 Common foreign and C-415/05 P security policy Indirect application 335. " According to settled case-law, the principle of effective judicial protection is a general principle of Community law stemming from the constitutional traditions common to the Member States, which has been enshrined in Articles 6 and 13 of the ECHR, this principle having furthermore been reaffirmed by Article 47 of the Charter of fundamental rights of the European Union, proclaimed on 7 December 2000 in Nice". Judgments Page 34 of 36

238 Date Case n Quoted Art Subject 09/09/2008 T-212/03 41 Competition Quoted by the applicant - Quoted by the Commission Date Case n Quoted Art Subject 22/10/2008 T-309/04, T- 317/04, T- 329/04 e T- 336/04 11 State aid Quoted by the parties Date Case n Quoted Art Subject 20/11/2008 T-185/05 22 Law governing the institutions Quoted by the parties Judgments Page 35 of 36

239 Date Case n Quoted Art Subject 16/12/2008 C-47/07 P 47 External relations Indirect application 50. "However, despite those characteristics, the possibility of bringing an action for unjust enrichment against the Community cannot be denied to a person solely on the ground that the EC Treaty does not make express provision for a means of pursuing that type of action. If Article 235 EC and the second paragraph of Article 288 EC were to be construed as excluding that possibility, the result would be contrary to the principle of effective judicial protection, laid down in the case law of the Court and confirmed in Article 47 of the Charter of fundamental rights of the European Union, proclaimed at Nice on 7 December 2000". Judgments Page 36 of 36

240 Year 2002 Date Authority Case n Quoted Art Subject 24/04/2002 Corte Costituzionale 135 7, 52 Right to domicile Type of quotation Indirect application - Pronouncements on the binding force of the Charter "l'ipotizzata restrizione della tipologia delle interferenze della pubblica autorità nella libertà domiciliare non troverebbe riscontro né nella Convenzione per la salvaguardia dei diritti dell'uomo e delle libertà fondamentali (art. 8), né nel Patto internazionale sui diritti civili e politici (art. 17); né, infine, nella Carta dei diritti fondamentali dell'unione europea, proclamata a Nizza nel dicembre 2000 (artt. 7 e 52), qui richiamata - ancorché priva di efficacia giuridica - per il suo carattere espressivo di principi comuni agli ordinamenti europei". "Sebbene, infatti, come già accennato, libertà di domicilio e libertà di comunicazione rientrino entrambe in una comune e più ampia prospettiva di tutela della "vita privata" - tanto da essere oggetto di previsione congiunta ad opera dei citati artt. 8 della Convenzione per la salvaguardia dei diritti dell'uomo e delle libertà fondamentali e 17 del Patto internazionale sui diritti civili e politici; nonché, da ultimo, ad opera dell'art. 7 della Carta dei diritti fondamentali dell'unione europea - esse restano significativamente differenziate sul piano dei contenuti". Judgments Page 1 of 38

241 Date Authority Case n Quoted Art Subject 12/11/2002 Corte Costituzionale 445 7, 9 Guardia di finanza Type of quotation Indirect application "La norma ora censurata, stabilendo il celibato o nubilato o la vedovanza come requisito per il reclutamento nella Guardia di finanza, viola il diritto di accedere in condizioni di eguaglianza agli uffici pubblici, secondo i requisiti stabiliti dalla legge (articolo 51, terzo comma, della Costituzione), poiché l'assenza di vincolo coniugale non può configurarsi come legittimo requisito attitudinale per l'accesso agli impieghi in questione. Essa incide altresì indebitamente, in via indiretta ma non meno effettiva, sul diritto di contrarre matrimonio, discendente dagli articoli 2 e 29 della Costituzione, ed espressamente enunciato nell'articolo 16 della Dichiarazione universale dei diritti dell'uomo del 1948 e nell'articolo 12 della Convenzione europea per la salvaguardia dei diritti dell'uomo e delle libertà fondamentali, resa esecutiva in Italia con la legge 4 agosto 1955, n. 848 (e vedi oggi anche l'articolo 9 della Carta dei diritti fondamentali dell'unione europea, proclamata a Nizza il 7 dicembre 2000). L'uso della discrezionalità del legislatore nella determinazione dei requisiti per l'accesso ai pubblici uffici deve essere soggetto a scrutinio più stretto di costituzionalità quando non è in discussione solo la generica ragionevolezza delle scelte legislative, in relazione ai caratteri dell'ufficio, ma l'ammissibilità di un requisito la cui imposizione si traduce, indirettamente, in una limitazione all'esercizio di diritti fondamentali: quali, nella specie, oltre al diritto di contrarre matrimonio, quello di non essere sottoposti ad interferenze arbitrarie nella vita privata (proclamato nell'articolo 12 della Dichiarazione universale e nell'articolo 8 della Convenzione europea; e vedi oggi anche l'articolo 7 della Carta dei diritti fondamentali dell'unione europea". Judgments Page 2 of 38

242 Year 2003 Date Authority Case n Quoted Art Subject 13/02/2003 Corte Costituzionale Elections Type of quotation Quoted by the parties Date Authority Case n Quoted Art Subject 14/04/2003 Cassazione civile sez. un Preamble Expropriation Type of quotation Indirect application "La tesi adottata dalla Corte d'appello, dunque, non potrebbe essere condivisa e, invece, si dovrebbe riconoscere che il "diritto vivente" in materia di occupazione illegittima si porrebbe in contrasto col principio di legalità ed andrebbe rivisto. Tale esigenza sarebbe ancor più avvertita, in quanto il preambolo della Carta dei diritti fondamentali dell'unione europea, proclamata a Nizza il 7 dicembre 2000, riafferma (tra l'altro) non soltanto i diritti derivanti dalla Convenzione ma anche quelli riconosciuti dalla giurisprudenza della Corte europea". Date Authority Case n Quoted Art Subject 09/05/2003 Corte Costituzionale 148 Preamble Expropriation Type of quotation Quoted by the applicant Judgments Page 3 of 38

243 Year 2004 Date Authority Case n Quoted Art Subject 06/04/2004 Cassazione civile sez. I Minors Type of quotation Indirect application "A riprova del carattere "fondamentale" ed "espansivo" del principio stesso nelle piu' diverse discipline riguardanti i minori, possono ricordarsi, ad esempio, da un lato, le ampie ed incisive formulazioni legislative indirizzate, nell'ordinamento italiano, al giudice della separazione e del divorzio, il quale "adotta ogni altro provvedimento relativo alla prole minorenne, con esclusivo riferimento all'interesse morale e materiale di essa" (cfr. artt. 155 c.c., comma 1, e 6 comma 2 della legge n. 898 del 1970, nel testo sostituito dall'art. 11 della legge n. 74 del 1987); e, dall'altro, sia la "Carta dei diritti fondamentali dell'unione Europea", approvata a Nizza il 7 dicembre dove, nell'art. 24, dedicato ai "diritti del bambino", nel prf. 2, si sancisce che "in tutti gli atti relativi ai bambini, siano essi compiuti da autorita' pubbliche o da istituzioni private, l'interesse superiore del bambino deve essere considerato preminente" - sia la Convenzione europea sull'esercizio dei diritti dei fanciulli, fatta a Strasburgo il 29 gennaio 1996 (resa esecutiva in Italia con la recente legge 20 marzo 2003 n. 77), nel cui preambolo e nel cui art. 1 viene ribadita la volonta' degli Stati membri del Consiglio d'europa di "promuovere" "i diritti e gli interessi superiori dei fanciulli". Judgments Page 4 of 38

244 Date Authority Case n Quoted Art Subject 06/04/2004 Cassazione civile sez. I Minors Type of quotation Indirect application "A riprova del carattere "fondamentale" ed "espansivo" del principio stesso nelle piu' diverse discipline riguardanti i minori, possono ricordarsi, ad esempio, da un lato, le ampie ed incisive formulazioni legislative indirizzate, nell'ordinamento italiano, al giudice della separazione e del divorzio, il quale "adotta ogni altro provvedimento relativo alla prole minorenne, con esclusivo riferimento all'interesse morale e materiale di essa" (cfr. artt. 155 c.c., comma 1, e 6 comma 2 della legge n. 898 del 1970, nel testo sostituito dall'art. 11 della legge n. 74 del 1987); e, dall'altro, sia la "Carta dei diritti fondamentali dell'unione Europea", approvata a Nizza il 7 dicembre dove, nell'art. 24, dedicato ai "diritti del bambino", nel prf. 2, si sancisce che "in tutti gli atti relativi ai bambini, siano essi compiuti da autorita' pubbliche o da istituzioni private, l'interesse superiore del bambino deve essere considerato preminente" - sia la Convenzione europea sull'esercizio dei diritti dei fanciulli, fatta a Strasburgo il 29 gennaio 1996 (resa esecutiva in Italia con la recente legge 20 marzo 2003 n. 77), nel cui preambolo e nel cui art. 1 viene ribadita la volonta' degli Stati membri del Consiglio d'europa di "promuovere" "i diritti e gli interessi superiori dei fanciulli". Date Authority Case n Quoted Art Subject 21/04/2004 TAR Lazio sez. II ter - Ordinanza Type of quotation Quoted by the applicant "Se il diritto di proprieta' di cui all'art. 1 del Protocollo n. 1 della Convenzione europea dei diritti dell'uomo (Convenzione di Roma del 1950), e ripreso dall'art. 17 della Carta dei diritti fondamentali dell'unione Europea proclamata a Nizza il 7 ottobre 2000, concerna anche la proprieta' intellettuale relativamente alle denominazioni di origine dei vini ed il suo sfruttamento, e conseguentemente se la sua tutela osti all'applicazione di quanto previsto nello scambio di lettere, allegato all'accordo tra la Comunita' europea e la Repubblica di Ungheria sulla tutela ed il controllo reciproci delle denominazioni dei vini (GUCE L. 337 del ), ma non ricompreso nello stesso, in base al quale i viticoltori friulani non potranno utilizzare la denominazione "Tocai Friulano", in considerazione anche della totale assenza di ogni forma di indennizzo a favore dei viticoltori friulani espropriati, della mancanza di un interesse generale pubblico che giustifichi l'espropriazione, del mancato rispetto del principio di proporzionalita'". Judgments Page 5 of 38

245 Date Authority Case n Quoted Art Subject 17/11/2004 Cassazione civile sez. I Expropriation Type of quotation Quoted by the applicant - Pronouncements on the binding force of the Charter - Not relevant in the case "[ ] non è invece conferente il richiamo della Carta dei diritti fondamentali dell'unione europea del 7 dicembre 2000 (pubblicata nella gazzetta ufficiale della Comunità del 18 dicembre 2000), la quale esprime un progetto di Costituzione, autorevolmente firmato dai Presidenti del Parlamento, del Consiglio e della Commissione dell'unione, ma non si è ancora tradotta in disciplina cogente per gli Stati membri, ecomunque, come correttamente considera la ricorrente, ha sul punto un contenuto sostanzialmente riproduttivo della regola fissata con il Protocollo". Date Authority Case n Quoted Art Subject 10/12/2004 Cassazione civile sez. I Generic Reference Public security Type of quotation Quoted by the applicant Judgments Page 6 of 38

246 Year 2005 Date Authority Case n Quoted Art Subject 29/07/2005 Corte Costituzionale Intellectual property Type of quotation Quoted by the parties Date Authority Case n Quoted Art Subject 29/11/2005 Cassazione penale sez. VI Criminal matters Type of quotation Quoted by the applicant Judgments Page 7 of 38

247 Year 2006 Date Authority Case n Quoted Art Subject 10/01/2006 Tribunale Genova sez. II 3 Damages Type of quotation Indirect application "Dopo la significativa integrazione per via normativa del consenso informato attraverso il recepimento con legge ordinaria del protocollo di Oviedo sottoscritto il dagli Stati membri del Consiglio d'europa (v. l'art. 5 della L n. 145), che costituisce la prima tappa di un processo di europeizzazione del diritto al consenso informato, un testo che segna una definitiva svolta ed un fattore di potente chiarificazione e di guida per gli interpreti, è rappresentato dalla Carta dei diritti fondamentali dei cittadini dell'unione Europea varata a Nizza nel 2002, recentemente trasferita all'interno del Trattato Costituzionale europeo. Come noto, l'art. 3 della Carta - nell'ambito del titolo dedicato alla dignità della persona - precisa che nell'ambito della medicina e della biologia deve essere rispettato in particolare il consenso libero ed informato della persona interessata, secondo le modalità definite dalla legge, con precetto contenuto all'interno di un articolo dedicato alla tutela del fondamentale diritto all'integrità fisica. Se per un verso l'inserimento del comma 2 all'interno di un articolo, come il terzo della Carta che tratta del bene-salute, fa pensare ad un rapporto di strumentalità tra il consenso informato e l'attività sanitaria, per altro verso è la denominazione del titolo, che lo ospita, a rendere manifesto il bene giuridico che viene offeso nei casi in cui l'attività medica non sia stata preceduta da adeguata informazione e consenso: la dignità umana, visto che senza informazione adeguata e rispettosa del paziente, e dunque anche dei suoi limiti culturali e delle sue umanissime paure di fronte all'atto medico, questi non è più "persona", ma oggetto di esperimento o di un'attività professionale che trascura il fattore umano su cui interviene, dequalificando il paziente stesso da "persona" a "cosa"". Judgments Page 8 of 38

248 Date Authority Case n Quoted Art Subject 07/02/2006 Consiglio Stato sez. 488 Right to good V administration, 42 Type of quotation Indirect application "potrebbe infine chiosarsi che il ""diritto ad una buona amministrazione"", sancito dalla Carta dei diritti fondamentali dell'unione europea, [...] include quello di ogni individuo ad essere ascoltato prima che nei suoi confronti venga adottato un provvedimento individuale che possa arrecargli pregiudizio, nonché il corrispondente obbligo per ogni amministrazione nazionale di motivare tutte le sue decisioni.non può revocarsi in dubbio che la piena esplicazione di tale diritto, ancorché riferito dalla Carta (peraltro non giuridicamente vincolante) unicamente alle istituzioni ed agli organi dell'unione europea, connoti a ben vedere ogni sistema amministrativo in senso veramente democratico. Nemmeno appare seriamente contestabile che il par. 4 dell'art. 30 della Dir. 93/37/CEE condivida con l'art. 42 della Carta la medesima ratio, finalizzata a consentire ad ogni persona, comunque coinvolta in un procedimento amministrativo, di esporre compiutamente le proprie ragioni, in un effettivo confronto dialettico con la parte pubblica." Date Authority Case n Quoted Art Subject 07/02/2006 Consiglio Stato sez. 489 Right to good V administration, 42 Type of quotation Indirect application " [ ] potrebbe infine chiosarsi che il "diritto ad una buona amministrazione", sancito dalla Carta dei diritti fondamentali dell'unione europea, [...] include quello di ogni individuo ad essere ascoltato prima che nei suoi confronti venga adottato un provvedimento individuale che possa arrecargli pregiudizio, nonché il corrispondente obbligo per ogni amministrazione nazionale di motivare tutte le sue decisioni.non può revocarsi in dubbio che la piena esplicazione di tale diritto, ancorché riferito dalla Carta (peraltro non giuridicamente vincolante) unicamente alle istituzioni ed agli organi dell'unione europea, connoti a ben vedere ogni sistema amministrativo in senso veramente democratico. Nemmeno appare seriamente contestabile che il par. 4 dell'art. 30 della Dir. 93/37/CEE condivida con l'art. 42 della Carta la medesima ratio, finalizzata a consentire ad ogni persona, comunque coinvolta in un procedimento amministrativo, di esporre compiutamente le proprie ragioni, in un effettivo confronto dialettico con la parte pubblica". Judgments Page 9 of 38

249 Date Authority Case n Quoted Art Subject 21/02/2006 Cassazione civile sez. I 3784 Right to a fair trial Expropriation Type of quotation Indirect application "Così facendo la Corte d'appello è incorsa in aperta violazione del fondamentale diritto dei ricorrenti all'equo processo, riconosciutodalla Convenzione, ma ha anche violato i principi generali del diritto comunitario, costituiti dal rispetto dei diritti fondamentali garantiti dalla stessa Convenzione europea, tanto che la Corte di giustizia, al fine di stabilire la portata di un diritto fondamentale, fa costante riferimento alla giurisprudenza della Corte europea dei diritti. La Carta di Nizza del , inoltre, ha incorporato i diritti fondamentali previsti dalla C.E.D.U". Date Authority Case n Quoted Art Subject 27/02/2006 Tribunale Roma, Ordinanza 26 Disability Type of quotation Indirect application e) "Il diritto all'inserimento sociale dei disabili, inoltre, è riconosciuto dall'art. 26 della Carta dei diritti fondamentali dell'unione europea approvata il ". Date Authority Case n Quoted Art Subject 11/05/2006 Corte Costituzionale , 26 Education Type of quotation Indirect application "Questa Corte ha già avuto modo di stabilire, vigente la precedente legislazione, che la tutela assicurata ai disabili tramite le quote concerne i disoccupati [...] ed è volta alla facilitazione del reperimento della prima occupazione [...]. Nella stessa direzione sono orientati i principali atti dell'organizzazione delle Nazioni Unite e dell'unione Europea (Carta dei diritti fondamentali dell'unione europea, firmata a Nizza il 7 dicembre 2000, artt. 21 e 26), che dispongono il divieto di discriminazioni nell'accesso all'impiego". Judgments Page 10 of 38

250 Date Authority Case n Quoted Art Subject 17/06/2006 TAR Puglia Lecce sez. II , 26 Civil servants Type of quotation Indirect application "Questa Corte ha già avuto modo di stabilire, vigente la precedente legislazione, che la tutela assicurata ai disabili tramite le quote concerne i disoccupati (sentenze n. 93 del 1985 e n. 279 del 1983) ed è volta alla facilitazione del reperimento della prima occupazione (sentenze n. 622 del 1987, n. 55 del 1961 e n. 38 del 1960). Nella stessa direzione sono orientati i principali atti dell'organizzazione delle Nazioni Unite (Regole standard sulle pari opportunità dei disabili del 20 dicembre 1993, risoluzione n. 48 del 1996 dell'assemblea generale, regola n. 7) e dell'unione Europea (Carta dei diritti fondamentali dell'unione europea, firmata a Nizza il 7 dicembre 2000, artt. 21 e 26), che dispongono il divieto di discriminazioni nell'accesso all'impiego. Si deve aggiungere che il regime di favore nella progressione degli insegnanti imposto dall'art. 8-bis produce una ulteriore disuguaglianza, in quanto riservato ai soli disabili occupati nella scuola..." (cfr. il punto 4.1 della motivazione della sentenza n. 190/2006)". Date Authority Case n Quoted Art Subject 23/06/2006 TAR Campania Napoli sez. II , 26 Civil servants Type of quotation Indirect application "Richiamate tali premesse, si assume che nella stessa direzione sono orientati i principali atti dell'organizzazione delle Nazioni Unite [ ] e dell'unione Europea (Carta dei diritti fondamentali dell'unione europea, firmata a Nizza il 7 dicembre 2000, artt. 21 e 26), che dispongono il divieto di discriminazioni nell'accesso all'impiego". [ ] "Quanto ai citati articoli della Carta fondamentale dei diritti dell'unione Europea, gli stessi non contengono alcuna disposizione che possa far intendere la necessità del requisito della disoccupazione per i disabili. Il divieto di discriminazioni nell'accesso all'impiego, invocato al fine di regredire la tutela accordata ai disabili, è invero sancito in positivo dall'articolo 21 della Carta per evitare che vi siano discriminazioni fondate sugli handicap. Null'altro sancisce la Carta; anzi all'articolo 26 intitolato "Inserimento dei disabili" si afferma :"L'Unione riconosce e rispetta il diritto dei disabili di beneficiare di misure intese a garantirne l'autonomia, l'inserimento sociale e professionale e la partecipazione alla vita della comunità". Judgments Page 11 of 38

251 Date Authority Case n Quoted Art Subject 11/09/2006 Tribunale Bologna sez. III 3 Contracts Type of quotation Indirect application "Anche le Carte internazionali - l'art. 5 della Convenzione di Oviedo del 1997 e l'art. 3 della Carta di Nizza del sanciscono la necessità del consenso libero e informato del paziente, in ragione della inviolabilità della persona umana, della libertà personale e della libertà di salvaguardia della propria salute e della propria integrità psico-fisica". Date Authority Case n Quoted Art Subject 15/11/2006 Cassazione penale sez , 52 Criminal matters III Type of quotation Indirect application "I principi invocati dal ricorrente, e consacrati nell'art. 15, comma 1 del Patto internazionale sui diritti civili e politici stipulato a New York il ("Nessuno può essere condannato per azioni che, al momento in cui venivano commesse, non costituivano reato secondo il diritto interno o il diritto internazionale. Così pure, non può essere inflitta una pena superiore a quella applicabile al momento in cui il reato sia stato commesso. Se, posteriormente alla commissione del reato, la legge prevede l'applicazione di una pena più lieve, il colpevole deve beneficiarne"), nonchè nell'art. 49, comma 1 della Carta dei diritti fondamentali dell'unione Europea, proclamata a Nizza il (che ripete la norma predetta con qualche lieve variazione lessicale, in particolare stabilendo che "se, successivamente alla commissione del reato, la legge prevede l'applicazione di una pena più lieve, occorre applicare quest'ultima"), sono affermati già da tempo nell'art. 2 c.p. Tutti questi principi, però, incontrano il limite del giudicato, che è istituto insito in ogni ordinamento processuale, e che in via generale si deve ritenere riconosciuto anche dall'art. 52 della Carta di Nizza, laddove ammette che ai diritti proclamati dalla stessa Carta "possono essere apportate limitazioni solo laddove siano necessarie e rispondano effettivamente a finalità di interesse generale riconosciute dall'unione". E' infatti indubitabile che il limite del giudicato risponde alla finalità generale di salvaguardare la certezza del diritto". Judgments Page 12 of 38

252 Date Authority Case n Quoted Art Subject 23/11/2006 Corte Costituzionale Taxation Type of quotation Indirect application - Pronouncements on the binding force of the Charter "Il medesimo principio, sancito nell'art. 15 del già citato Patto di New York, è stato esplicitamente confermato dall'art. 49, comma 1, della Carta dei diritti fondamentali dell'unione europea, proclamata a Nizza il 7 dicembre la quale viene qui richiamata, ancorché priva tuttora di efficacia giuridica, per il suo carattere espressivo di principi comuni agli ordinamenti europei - secondo cui «se, successivamente alla commissione del reato, la legge prevede l'applicazione di una pena più lieve, occorre applicare quest'ultima»". Date Authority Case n Quoted Art Subject 23/11/2006 Corte Costituzionale Type of quotation Indirect application "Viene in considerazione, piuttosto, il distinto principio di retroattività della norma penale più mite: principio che - riconosciuto in strumenti internazionali (art. 15 del Patto internazionale relativo ai diritti civili e politici; v. anche art. 49 della Carta dei diritti fondamentali dell'unione europea, proclamata a Nizza nel dicembre 2000, qui richiamata ancorché tuttora priva di efficacia giuridica, per il suo carattere espressivo di principi comuni agli ordinamenti europei: sentenza n. 135 del 2002) - trova espressione nell'ordinamento interno, a livello di legge ordinaria, nell'art. 2, secondo comma e seguenti, cod. pen". Judgments Page 13 of 38

253 Date Authority Case n Quoted Art Subject 28/12/2006 TAR Puglia Lecce sez. II , 26 Civil jurisdiction Type of quotation Indirect application "Questa Corte ha già avuto modo di stabilire, vigente la precedente legislazione, che la tutela assicurata ai disabili tramite le quote concerne i disoccupati (sentenze n. 93 del 1985 e n. 279 del 1983) ed è volta alla facilitazione del reperimento della prima occupazione (sentenze n. 622 del 1987, n. 55 del 1961 e n. 38 del 1960). Nella stessa direzione sono orientati i principali atti dell'organizzazione delle Nazioni Unite (Regole standard sulle pari opportunità dei disabili del 20 dicembre 1993, risoluzione n. 48 del 1996 dell'assemblea generale, regola n. 7) e dell'unione Europea (Carta dei diritti fondamentali dell'unione europea, firmata a Nizza il 7 dicembre 2000, artt. 21 e 26), che dispongono il divieto di discriminazioni nell'accesso all'impiego". Judgments Page 14 of 38

254 Year 2007 Date Authority Case n Quoted Art Subject 23/01/2007 Tribunale Genova sez. IV 24 Divorce Type of quotation Indirect application "Si tratta, infatti, di un tutela già ritenuta di preminente interesse pubblico dalla Convenzione Internazionale di New York sui diritti del fanciullo, promulgata il 20 novembre 1989, alla quale la legge 27/7/1991, n.176, dato piena esecuzione in Italia. Ma si tratta anche di diritti che hanno acquistato particolare specificazione e valenza anche attraverso il meccanismo di rinvio di una fonte regolamentare quale è il Regolamento Comunitario 2201/03 (in tema competenza, riconoscimento ed esecuzione delle decisioni in materia matrimoniale e in materia di responsabilità genitoriale), ad un altro documento che avrebbe avuto altrimenti natura non cogente quale è la Carta europea dei diritti fondamentali del cittadino, firmata a Nizza nel 2000 (cfr. art. 24 dalla Rubrica "I diritti del bambino")". Date Authority Case n Quoted Art Subject 30/01/2007 Cassazione penale sez. VI 4614 Chapter VI Criminal matters Type of quotation Legal framework Date Authority Case n Quoted Art Subject 16/03/2007 Corte Costituzionale, Ordinanza Criminal matters Type of quotation Quoted by the applicant Judgments Page 15 of 38

255 Date Authority Case n Quoted Art Subject 26/03/2007 TAR Lazio Roma sez. III ter Type of quotation Indirect application - Not relevant in the case "Lo stesso art. II-86 del Trattato, riproduttivo dell'art. 26 della Carta dei diritti fondamentali dell'unione europea del 7/12/2000, nel proclamare che "l'unione riconosce e rispetta il diritto delle persone con disabilità di beneficiare di misure intese a garantirne l'autonomia, l'inserimento sociale e professionale e la partecipazione alla vita della Comunità", contiene una previsione che, anche a ritenere in parte qua immediatamente precettiva la Carta di Nizza, non può porsi a diretto fondamento della pretesa azionata nel presente giudizio, la quale implica l'accertamento dell'idoneità fisica per il conseguimento della patente nautica, e quindi una valutazione tecnica che l'amministrazione deve compiere secondo parametri predeterminati". Date Authority Case n Quoted Art Subject 31/03/2007 TAR Puglia Lecce sez. II , 26 Civil jurisdiction Type of quotation Indirect application "Questa Corte ha già avuto modo di stabilire, vigente la precedente legislazione, che la tutela assicurata ai disabili tramite le quote concerne i disoccupati (sentenze n. 93 del 1985 e n. 279 del 1983) ed è volta alla facilitazione del reperimento della prima occupazione (sentenze n. 622 del 1987, n. 55 del 1961 e n. 38 del 1960). Nella stessa direzione sono orientati i principali atti dell'organizzazione delle Nazioni Unite (Regole standard sulle pari opportunità dei disabili del 20 dicembre 1993, risoluzione n. 48 del 1996 dell'assemblea generale, regola n. 7) e dell'unione Europea (Carta dei diritti fondamentali dell'unione europea, firmata a Nizza il 7 dicembre 2000, artt. 21 e 26), che dispongono il divieto di discriminazioni nell'accesso all'impiego". Judgments Page 16 of 38

256 Date Authority Case n Quoted Art Subject 02/04/2007 TAR Campania Napoli sez. VIII , 26 Civil servants Type of quotation Indirect application "Da ultimo va precisato che tale ricostruzione ermeneutica del complessivo sistema normativo di tutela dei disabili ha di recente ricevuto l'autorevole avallo della Corte Costituzionale - la quale, peraltro, aveva già avuto modo di stabilire, vigente la precedente legislazione, che la tutela assicurata ai disabili tramite le quote concerne i disoccupati (sentenze n. 93 del 1985 e n. 279 del 1983) ed è volta alla facilitazione del reperimento della prima occupazione (sentenze n. 622 del 1987, n. 55 del 1961 e n. 38 del 1960). Nella stessa direzione sono orientati i principali atti dell'organizzazione delle Nazioni Unite (Regole standard sulle pari opportunità dei disabili del 20 dicembre 1993, risoluzione n. 48 del 1996 dell'assemblea generale, regola n. 7) e dell'unione Europea (Carta dei diritti fondamentali dell'unione europea, firmata a Nizza il 7 dicembre 2000, artt. 21 e 26), che dispongono il divieto di discriminazioni nell'accesso all'impiego [ ]". Judgments Page 17 of 38

257 Date Authority Case n Quoted Art Subject 03/04/2007 Corte Appello Firenze sez. lav. 31 Paid leaves Type of quotation Direct application - Pronouncements on the binding force of the Charter "La natura di diritto sociale fondamentale del riposo annuale per i lavoratori rappresenta, d altra parte, sicuro acquis dell ordinamento europeo, tanto che anche la Carta dei diritti fondamentali dell UE proclamata a Nizza nel dicembre 2000 sulla falsariga di analoghe declamazioni di principio contenute nella Dichiarazione universale dei diritti dell uomo del 1948, nelle Carte sociali europee del 1961 e del 1989, nel Patto Onu sui diritti economici, sociali e culturali del all art. 31.2, nell ambito del diritto a condizioni di lavoro giuste ed eque, ha affermato il diritto di ogni lavoratore a ferie annuali retribuite. Previsione quest ultima utilizzata dalle Conclusioni in data dell avvocato generale CGCE nella causa C-173/99, Bectu, per sottolineare l evidente vocazione del documento di Nizza a fungere da sostanziale parametro di riferimento per tutti gli attori della scena comunitaria, [fornendo] la Carta la più qualificata e definitiva conferma della natura di diritto fondamentale che riveste il diritto a ferie annuali retribuite (punto 28). Ed il valore non più soltanto assiologico e politico delle enunciazioni dei principi e dei diritti sociali individuali e collettivi della Carta di Nizza si coglie oramai anche dal richiamo ad essa operato su altre materie [ ] dalla Corte di Giustizia di Lussemburgo (CGCE , C-540/03, Parlamento c. Consiglio; CGCE , C-432/05, Unibet), che pertanto giunge a conferire alla Carta dei diritti fondamentali dell UE un ruolo molto prossimo a fonte sovraordinata omologa ad un testo costituzionale". Date Authority Case n Quoted Art Subject 10/05/2007 Consiglio Stato sez. VI Competition Type of quotation Quoted by the applicant Judgments Page 18 of 38

258 Date Authority Case n Quoted Art Subject 16/05/2007 Cassazione penale sez. II Criminal matters Type of quotation Indirect application - Pronouncements on the binding force of the Charter "La sentenza della Corte Costituzionale ha anche ricordato che l'analogo principio, sancito nell'art. 15, del già citato Patto di New York,è stato esplicitamente confermato dall'art. 49, comma 1, della Carta dei diritti fondamentali dell'unione europea, proclamata a Nizza il 7 dicembre richiamata, ancorchè priva tuttora di efficacia giuridica, per il suo carattere espressivo di principi comuni agli ordinamenti europei - secondo cui "se, successivamente alla commissione del reato, la legge prevede l'applicazione di una pena più lieve, occorre applicare quest'ultima". Judgments Page 19 of 38

259 Date Authority Case n Quoted Art Subject 09/06/2007 Corte Appello Firenze sez. lav. Generic Reference Heath Type of quotation Pronouncements on the binding force of the Charter - Direct application (disapplication of the internal regulation) "Il contenuto della Carta è oramai unanimemente considerato non soltanto più un documento politico, né solo la "rappresentazione simbolica" del "progetto" di costituzione di una "società europea", il "luogo" in cui bisogni, aspettative, interessi, diritti assumono dignità e reclamano tutela. Essa, nel rappresentare senza alcun dubbio il catalogo più aggiornato e ragionato di quello che configura il "precipitato" storico e valoriale di qualche secolo di esperienza politica, sociale e giuridica del continente europeo nel suo complesso, ha anche affermato con nettezza l'universalismo di alcune di queste posizioni fondamentali. Proprio per quanto attiene a questioni di più alta "temperatura" sociale, di più alta "tensione" etico-politica, quelle relative alla sicurezza sociale ed all'assistenza sociale, infatti, al paragrafo 2 dell'art. 34 della Carta dei diritti fondamentali è precisato che "ogni individuo che risieda o si sposti legalmente all'interno dell'unione", quindi il riferimento deve essere inteso ovviamente ai cittadini di paesi terzi soggiornanti regolarmente in un paese membro, "ha diritto alle prestazioni di sicurezza sociale ed ai benefici sociali", dove l'inciso conclusivo "conformemente al diritto comunitario e alle legislazioni e prassi nazionali" non può certo compromettere i principi generali dell'ordinamento comunitario (e, ad es., i suoi rapporti con la Cedu sopra delineati o il ruolo dell'interpretazione della Corte di Lussemburgo nella interpretazione "creativa" del diritto comunitario) né la tenuta effettiva delle discipline nazionali che si pongano in contrasto con l'incrocio multilivello delle normative di garanzia e tutela. [...] Appare conseguentemente di difficile confutazione la irragionevolezza della disparità di trattamento, lesiva quindi dell'art. 3 Cost., introdotta dalla disposizione in esame tra cittadini extracomunitari regolarmente soggiornanti sul territorio nazionale, sulla sola base del possesso di documenti differenti: si è detto che l'accesso alle prestazioni assistenziali è espressione della tutela di posizioni fondamentali della persona (per le quali già l'art. 2 d.lgs. 286/98 non aveva differenziato le discipline di tutela sulla base del tempo e dei titoli del soggiorno) e che l'art della Carta di Nizza ha reso "universale" questo accesso, che, dunque, non può sopportare limitazioni legate alla mera durata della permanenza in uno Stato ovvero collegate ad una già determinata capacità reddituale. [...] In conclusione sia la "interferenza virtuosa" tra ordinamenti giuridici - tutti, com'è pacifico, accolti nell'ordinamento italiano - attraverso il ricordato richiamo della Convenzione del 1950 da parte dell'art. 6 Tue e l'opera della giurisprudenza delle Corti di Lussemburgo e di Strasburgo sia il rinvenimento nell'art della Carta di Nizza di un postulato valoriale [...] che permette di assegnare alla sicurezza sociale anche dei cittadini extracomunitari la portata di diritto fondamentale esigibile presso le Judgments Page 20 of 38

260 Corti dell'unione in virtù della latitudine universale del principio di eguaglianza, consentono di affermare il diritto di questi ultimi alle provvidenze economiche destinate allo scopo di assistenza dall'ordinamento nazionale, senza che siano rilevanti distinzioni dettate dal possesso di uno o altro documento di regolare soggiorno, e di disapplicare la disciplina nazionale (quale l'art. 80, comma 19, l. 388/2000) che introduca siffatte distinzioni di regime, perché radicalmente contrastante con il detto generale principio di eguaglianza ed il divieto di discriminazione per nazionalità, in ragione dell'affermato primato degli ordinamenti comunitario ed internazionale in materia". Date Authority Case n Quoted Art Subject 06/07/2007 Corte Costituzionale Criminal matters Type of quotation Quoted by the applicant Date Authority Case n Quoted Art Subject 21/09/2007 Corte Appello Milano 34 Social security Type of quotation Indirect application "Le sentenze [ ] hanno posto in rilievo, [ ] la forza vincolante anche delle sentenze della Corte di Strasburgo nei casi di pronunce interpretative degli articoli della convenzione e comunque certamente ponendo in rilievo [ ] il proficuo dialogo instauratosi in tema di tutele dei diritti fondamentali della persona tra le due Corti, CGE e Corte di Strasburgo, tenuto conto anche del richiamo espresso che l art. 6 del TUE fa della convenzione stessa, oltre che della precisa indicazione contenuta nell art. 34 comma 2 della Carta di Nizza, che riconosce il diritto di ogni individuo che risieda legalmente all interno dell Unione alle prestazioni di sicurezza sociale, norma che sebbene ancora non dotata di sicura efficacia giuridica vincolante, stante la mancata ratifica del Trattato Costituzionale rafforza tuttavia l interpretazione secondo cui la natura di diritto sociale fondamentale delle prestazioni assistenziali rappresenta un sicuro acquis comunitario (così Corte d Appello Firenze)". Judgments Page 21 of 38

261 Date Authority Case n Quoted Art Subject 26/09/2007 TAR Salerno Campania sez. I Administrative procedure Type of quotation Indirect application "Il principio del contraddittorio procedimentale, infine, espresso dall'art. 41 della Carta di Nizza del 7/12/2000 e dall'art. II-101 della Costituzione per l'europa non è dettato con espressa esclusione di deroghe ragionevoli e giustificate, né siffatta esclusione è evincibile dalle formulazioni letterali descrittive del principio, per cui non appare sussistente il conflitto, pure dedotto, delle norme sospettate con le dette Norme Comunitarie". Judgments Page 22 of 38

262 Date Authority Case n Quoted Art Subject 04/10/2007 Corte Appello Roma sez. lav. 21, 31, 51 Employment Type of quotation Direct application - Indirect application "Il diritto dei lavoratori a "condizioni di lavoro eque e giuste" stabilito all'art. 31 della Carta di Nizza con una formula "riassuntiva" che vuole coprire tutte quelle situazioni di abuso o di discriminazione non disciplinate da altre norme specifiche dello stesso Bill of rights europeo ed anche il principio di non discriminazione (principio richiamato nella direttiva in più parti) di cui all'art. 21 della Carta (che nell'ultimo anno la Corte di Giustizia in tre sentenze del , del e del ha applicato indipendentemente dalla nota quaestio del suo carattere ancora "non vincolante") porta ad interpretare (dovendosi attribuire - sulla scia della giurisprudenza della nostra Corte costituzionale - al Testo solenne del 2000 un valore "espressivo" delle tradizioni costituzionali comunioni) la disciplina comunitaria ed anche quella nazionale che ha recepito la prima, nel senso di richiedere al datore di lavoro la specificazione "in concreto" della ragione dell'apposizione del termine, a meno di non compromettere le finalità dell'accordo quadro, della direttiva e della stessa legge italiana si da pregiudicare le legittime pretese dei lavoratori alla "trasparenza" nel ricorso a strumenti contrattali "atipici". Ai sensi dell'art. 51 della Carta, questa si applica al diritto comunitario ed a quello nazionale di applicazione del primo e il riconoscimento della sua natura ricognitiva delle "tradizioni costituzionali comuni" implica che - ai sensi dell'art. 6 TUE - i diritti da essa sanciti debbano essere considerati principi generali del diritto comunitario e pertanto strumento privilegiato di interpretazione del diritto di matrice sovranazionale e di quello interno che ha recepito il primo negli ordinamenti interni. [...] Anche le formulazioni già ricordate della Carta di Nizza (in particolare il principio di non discriminazione applicato numerose volte dalla Corte di giustizia per sindacare la irrazionale discriminazione tra lavoratori nel possesso dei diritti fondamentali: per tutte v. la sentenza Betcu C-173/99 del 2001) militano per tale risultato ermeneutico, impedendo che gli abusi nell'uso dei contratto a termine siano repressi in modo energico nei soli casi - come vorrebbe le Poste - di radicale mancanza di una allegazione di sorta sulle ragioni giustificatrici, venendo così a discriminare senza alcuna giustificazione razionale, i diversi casi di violazione della legge come quelli sopra evidenziati". Judgments Page 23 of 38

263 Date Authority Case n Quoted Art Subject 16/10/2007 Cassazione civile sez Chapter I, 3 Mental illness I Type of quotation Direct application "Dalla Carta dei diritti fondamentali dell'unione europea, adottata a Nizza il 7 dicembre 2000, si evince come il consenso libero e informato del paziente all'atto medico vada considerato, non soltanto sotto il profilo della liceità del trattamento, ma prima di tutto come un vero e proprio diritto fondamentale del cittadino europeo, afferente al più generale diritto all'integrità della persona (Capo 1^, Dignità; art. 3, Diritto all'integrità della persona)". Date Authority Case n Quoted Art Subject 24/10/2007 Corte 349 Generic Reference Expropriation Costituzionale Type of quotation Indirect application "E' vero, infatti, che una consolidata giurisprudenza della Corte di giustizia, anche a seguito di prese di posizione delle Corti costituzionali di alcuni Paesi membri, ha fin dagli anni settanta affermato che i diritti fondamentali, in particolare quali risultano dalla CEDU, fanno parte dei princìpi generali di cui essa garantisce l'osservanza. E' anche vero che tale giurisprudenza è stata recepita nell'art. 6 del Trattato sull'unione Europea e, estensivamente, nella Carta dei diritti fondamentali proclamata a Nizza da altre tre istituzioni comunitarie, atto formalmente ancora privo di valore giuridico ma di riconosciuto rilievo interpretativo (sentenza n. 393 del 2006)". Judgments Page 24 of 38

264 Date Authority Case n Quoted Art Subject 25/10/2007 Tribunale Bologna, Ordinanza 21 Civil servants Type of quotation Indirect application "[...] maggiori problemi interpretativi nascono con l entrata in vigore del nuovo Testo Unico sul pubblico impiego, il D.L.vo 165/2001 (che ribadisce una decisa limitazione all accesso al pubblico impiego), norma successiva ed equipollente per rango poiché anch essa primaria al T.U. sull immigrazione e con esso sostanzialmente in contrasto; né si può sostenere che la reintroduzione del divieto per i cittadini extracomunitari di accedere al pubblico impiego si dovuta ad una svista del legislatore che semplicemente riproduceva una disposizione già abrogata; e allora, solo una interpretazione sistematica conforme ai principi costituzionali può portare a ricomporre la frattura, interpretazione vieppiù avvalorata dall entrata in vigore del Decreto Legislativo n. 215/2003 attuativo della Direttiva Comunitaria n.43/00 [ ] che afferma come anche la disciplina dell accesso all occupazione e al lavoro debba essere regolamentata in base al principio della non discriminazione; si sottolinea come tale impostazione possa trovare fondamento sia pure solo in termini di interpretazione conforme - anche nelle disposizioni contenute nella Carta dei diritti fondamentali dell Unione Europea del 7 dicembre 2000 (Carta di Nizza), laddove all art. 21, comma 2, si legge Nell ambito della applicazione del Trattato che istituisce la Comunità europea e del Trattato sull Unione Europea è vietata qualsiasi discriminazione fondata sulla cittadinanza, fatte salve le disposizioni particolari contenute nei trattati stessi ; per quanto detto, la soluzione da ultimo offerta dalla Suprema Corte (Cassazione Sezione Lavoro - Sentenza n.24170) non appare convincente, essendo il principio di diritto là enunciato realmente supportato da una semplice norma regolamentare l art.2 del DPR n.487/ unica ancora che preveda il requisito della cittadinanza italiana per l accesso al pubblico impiego, e non essendovi alcun ragionevole motivo per riservare un diverso trattamento ai cittadini italiani, o comunque comunitari, e ai cittadini extracomunitari relativamente all accesso al lavoro presso la Pubblica Amministrazione nel vigore di altra normativa di grado superiore (Legge di ratifica della Convenzione OIL n.143/1975, T.U. sull immigrazione e D.L.vo n.215/2003) di segno diametralmente opposto, costituzionalmente corretto (Corte Cost. sentenza n.454 del 1998 di cui sopra) e conforme ai principi enunciati nella Carta dei diritti fondamentali dell Unione Europea del 7 dicembre 2000". Judgments Page 25 of 38

265 Date Authority Case n Quoted Art Subject 21/11/2007 Corte Appello Roma sez. lav. 21, 31, 51 Employment Type of quotation Direct application - Indirect application "Il diritto dei lavoratori a condizioni di lavoro eque e giuste" stabilito all'art. 31 della Carta di Nizza con una formula "riassuntiva" che vuole coprire tutte quelle situazioni di abuso o di discriminazione non disciplinate da altre norme specifiche dello stesso Bill of rights europeo ed anche il principio di non discriminazione (principio richiamato nella direttiva in più parti) di cui all'art. 21 della Carta (che nell'ultimo anno la Corte di Giustizia in tre sentenze del , del e del ha applicato indipendentemente dalla nota quaestio del suo carattere ancora "non vincolante") porta ad interpretare (dovendosi attribuire - sulla scia della giurisprudenza della nostra Corte costituzionale - al Testo solenne del 2000 un valore espressivo delle tradizioni costituzionali comunioni) la disciplina comunitaria ed anche quella nazionale che ha recepito la prima, nel senso di richiedere al datore di lavoro la specificazione "in concreto" della ragione dell'apposizione del termine, a meno di non compromettere le finalità dell'accordo quadro, della direttiva e della stessa legge italiana, si da pregiudicare le legittime pretese dei lavoratori alla "trasparenza" nel ricorso a strumenti contrattali "atipici". Ai sensi dell'art. 51 della Carta, questa si applica al diritto comunitario ed a quello nazionale di applicazione del primo e il riconoscimento della sua natura ricognitiva delle tradizioni costituzionali comuni implica che - ai sensi dell art. 6 TUE - i diritti da essa sanciti debbano essere considerati principi generali del diritto comunitario e pertanto strumento privilegiato di interpretazione del diritto di matrice sovra-nazionale e di quello interno che ha recepito il primo negli ordinamenti interni". [ ] "Anche le formulazioni già ricordate della Carta di Nizza (in particolare il principio di non discriminazione applicato numerose volte dalla Corte di giustizia per sindacare la irrazionale discriminazione tra lavoratori nel possesso dei diritti fondamentali: per tutte v. la sentenza B. C-173/99 del 2001) militano per tale risultato ermeneutico, impedendo che gli abusi nell'uso del contratto a termine siano repressi in modo energico nei soli casi - come vorrebbe le Poste - di radicale mancanza di una allegazione di sorta sulle ragioni giustificatrici, venendo così a discriminare senza alcuna giustificazione razionale, i diversi casi di violazione della legge come quelli sopra evidenziati". Judgments Page 26 of 38

266 Date Authority Case n Quoted Art Subject 26/11/2007 TAR Roma Lazio sez. III quater Health Care System Type of quotation Quoted by the applicant Date Authority Case n Quoted Art Subject 26/11/2007 TAR Lazio Roma sez. III quater Administrative Justice Type of quotation Quoted by the applicant Date Authority Case n Quoted Art Subject 26/11/2007 TAR Lazio Roma sez. III quater Health Care System Type of quotation Quoted by the applicant Date Authority Case n Quoted Art Subject 07/12/2007 Cassazione penale sez. V Freedom of press Type of quotation Indirect application "Ciò nonostante ove ricorra l'esercizio di attività di informazione, le notizie di cronaca, le manifestazioni di critica, le denunzie civili, con qualsiasi mezzo propalate, restano espressione di un diritto di libertà, direttamente tutelato nell'ordinamento interno dall'art. 21 Cost., comma 1 e nello spazio europeo dall'art. 10 della Convenzione europea nonchè dall'art. 11 della Carta deidiritti fondamentali, che della libertà di "stampa" è il presupposto e che è a garanzia della collettività prima che del loro autore". "Ma nè l'art. 21 Cost. nè l'art. 10 Convenzione EDU (o l'art. 11 della Carta di Nizza), proteggono unicamente le idee favorevoli o inoffensive o indifferenti - nei confronti delle quali non si porrebbe invero alcuna esigenza di tutela - essendo al contrario entrambi principalmente rivolti a garantire la libertà proprio delle opinioni che "urtano, scuotono o inquietano". Judgments Page 27 of 38

267 Date Authority Case n Quoted Art Subject 12/12/2007 Cassazione penale sez. III 7364 Generic Reference Criminal matters Type of quotation Indirect application "E' tuttavia irrinunciabile garanzia delle armonie del sistema che eventuali disimmetrie nella diversa modulazione delle facoltà distribuite fra le parti siano pur sempre contenute nel rispetto del criterio di ragionevolezza con i corollari di proporzionalità e di adeguatezza e con sostantivo rispetto del ricordato principio di parità, da intendersi - rileva additivamente il Collegio - certamente immanente all'intero ordinamento, ma con privilegiata ed esigente attenzione alla tutela delle naturali dialogie del processo penale, alle quali l'art. 111 Cost. dedica in via largamente esclusiva gran parte (quattro commi su otto) delle sue disposizioni, e che trovano rafforzato presidio negli obblighi conformativi, discendenti da numerose fonti del diritto internazionale ([ ] la Carta dei diritti fondamentali dell'unione europea, sottoscritta a Nizza il 7 dicembre 2000)". Judgments Page 28 of 38

268 Year 2008 Date Authority Case n Quoted Art Subject 16/01/2008 Tribunale Ravenna 34 Social security Type of quotation Direct application (disapplication of the internal regulation) "D'altra parte va anche ricordato [ ] come sulla materia venga in rilievo la stessa Carta dei diritti fondamentali dell'unione proclamata a Nizza nel dicembre 2000, nella quale è contemplato il catalogo più ampio ed aggiornato dei diritti fondamentali della persona, compresi quelli sociali; in particolare per quanto attiene alla sicurezza sociale ed all'assistenza sociale, al paragrafo 2 dell'art. 34 della Carta dei diritti fondamentali è precisato che "ogni individuo che risieda o si sposti legalmente all'interno dell'unione ha diritto alle prestazioni di sicurezza sociale ed ai benefici sociali conformemente al diritto comunitario e alle legislazioni e prassi nazionali". La norma secondo la dottrina deve essere intesa nel senso che serva a realizzare all'interno dell'unione una situazione di (seppur minima) eguaglianza materiale tra tutti coloro, cittadini e non, che a vario titolo...vi risiedono, coloro cioè che, avendo titolo per risiedere all'interno dell'u.e. hanno diritto alle risorse materiali per condurre un'esistenza dignitosa; essa perciò non tollera una sperequazione come quella stabilita dalla legge nazionale di cui si tratta. A queste decisive considerazioni occorre dunque riportarsi per disapplicare la normativa interna e riconoscere al ricorrente la prestazione dell'assegno d'invalidità pur in mancanza del possesso della Carta di soggiorno". Judgments Page 29 of 38

269 Date Authority Case n Quoted Art Subject 17/03/2008 Tribunale Roma, Ordinanza 7, 8, 17, 47 Type of quotation Indirect application "[ ] gli artt. 17 e 47 della Carta di Nizza tutelano rispettivamente quali diritti fondamentali il diritto di proprietà, a cui può ascriversi anche il diritto di proprietà intellettuale [...] e il diritto a un ricorso effettivo, mentre gli artt. 7 e 8 della medesima Carta garantiscono rispettivamente il diritto al rispetto della vita privata e il diritto alla tutela dei dati personali, riproducendo l art. 8 della Convenzione europea per la salvaguardia dei diritti dell uomo e delle libertà fondamentali e sono richiamati dal secondo considerando della citata direttiva 2002/58;" [...] "La Corte Spagnola ha chiesto alla Corte di Giustizia se il diritto comunitario, e specificamente 15 n. 2 e 18 della direttiva 2000/31, l art. 8 nn. 1 e 2 della direttiva 2001/29 e, l art. 8 della direttiva 2004/48, nonché gli artt. 17 n. 2 e 47 della Carta dei diritti fondamentali dell Unione Europea del 7 dicembre 2000 (d ora in poi Carta di Nizza), consentano agli Stati membri di escludere nei processi civili, l obbligo di conservare e mettere a disposizione i dati sulle connessioni ed il traffico generati dalle comunicazioni effettuate durante la prestazione di un servizio della società dell informazione da parte degli operatori di rete e di servizi di comunicazione elettronica e ai fornitori di accesso alle reti di telecomunicazioni". Date Authority Case n Quoted Art Subject 28/03/2008 Corte Costituzionale 72 Generic Reference Prescription Type of quotation Indirect application "[...] sebbene il principio della retroattività della lex mitior non sia costituzionalmente garantito, tuttavia lo stesso è sancito sia dalla normativa interna (art. 2 cod. pen.), per la quale la retroattività della legge più favorevole è la regola (salvo il giudicato), sia dalle norme internazionali (articolo 15 del Patto internazionale sui diritti civili e politici, adottato a New York il 16 dicembre 1966, ratificato e reso esecutivo con la legge 25 ottobre 1977, n. 881, recante Ratifica ed esecuzione del patto internazionale relativo ai diritti economici, sociali e culturali, nonché del patto internazionale relativo ai diritti civili e politici) ed europee (Trattato sull'unione Europea nel testo risultante dal Trattato sottoscritto ad Amsterdam il 2 ottobre 1997, ratificato e reso esecutivo con la legge 16 giugno 1998, n. 209, recante Ratifica ed esecuzione del trattato di Amsterdam che modifica il Trattato sull'unione europea; decisioni della Corte di giustizia delle comunità europee, Carta dei diritti fondamentali dell'unione europea, proclamata a Nizza il 7 dicembre 2000)". Judgments Page 30 of 38

270 Date Authority Case n Quoted Art Subject 21/04/2008 Tribunale Salerno sez. Intellectual Competition I property Type of quotation Indirect application "Piuttosto, la competenza per materia delle sezioni specializzate doveva, sin dall'istituzione di esse, intendersi estesa a tutta la tutela della proprietà intellettuale, la quale, sulla base del Trattato CE introdotto dal Trattato di Amsterdam del 1997, del protocollo addizionale del 1952 alla CEDU, della Carta di Nizza del 2000, nonché delle convenzioni istitutive delle diverse organizzazioni internazionali aventi competenza generale sulla stesse proprietà intellettuale, deve avere per oggetto i brevetti d'invenzione, i modelli d'utilità, i disegni o modelli industriali, i marchi di fabbrica o di commercio, i marchi di servizio, il nome commerciale e le indicazioni di provenienza o denominazioni d'origine, nonché la repressione della concorrenza sleale". Judgments Page 31 of 38

271 Date Authority Case n Quoted Art Subject 24/04/2008 Cassazione civile sez. I Consumers Type of quotation Indirect application "Una estensione della disciplina dell'esonero agli obblighi derivanti dall'art. 91, deve invece escludersi oltre che per ragioni testuali anche per l'evidente contrasto che si verificherebbe con la ratio della disciplina comunitaria e con lo stesso principio fondamentale sancito in questa materia dall'art. 38 della Carta dei diritti fondamentali dell'unione Europea che prevede come fine istituzionale dell'unione un elevato livello di tutela dei consumatori. Tale elevato livello di tutela consiste proprio, nella specie, nell'irrilevanza della causa del venir meno delle condizioni di utilizzabilita' dei servizi previsti nel contratto di soggiorno tutto compreso e cio' al fine di impedire che eventi estranei alla responsabilita' del consumatore e del tour operator comportino l'esonero di responsabilita' di quest'ultimo per l'adempimento degli obblighi derivanti dall'art. 91 del codice del consumo". Judgments Page 32 of 38

272 Date Authority Case n Quoted Art Subject 30/05/2008 Corte Costituzionale Police Type of quotation Indirect application "In tale ambito, secondo i principi che ispirano la disciplina del «patrimonio costituzionale comune» relativo al procedimento amministrativo (sentenza n. 104 del 2006), desumibili dagli obblighi internazionali, dall'ordinamento comunitario e dalla legislazione nazionale (art. 6 della Convenzione europea per la salvaguardia dei diritti dell'uomo e delle libertà fondamentali, resa esecutiva dalla legge 4 agosto 1955, n. 848, recante «Ratifica ed esecuzione della Convenzione europea per la salvaguardia dei diritti dell'uomo e delle libertà fondamentali firmata a Roma il 4 novembre 1950 e del Protocollo addizionale alla Convenzione stessa, firmato a Parigi il 20 marzo 1952», art. 47 della Carta dei diritti fondamentali dell'unione europea, firmata a Nizza il 7 dicembre 2000, nonché la legge 7 agosto 1990, n. 241, concernente «Nuove norme sul procedimento amministrativo»), vanno garantiti all'interessato alcuni essenziali strumenti di difesa, quali la conoscenza degli atti che lo riguardano, la partecipazione alla formazione dei medesimi e la facoltà di contestarne il fondamento e di difendersi dagli addebiti (sentenze n. 460 del 2000 e nn. 505 e 126 del 1995)". Judgments Page 33 of 38

273 Date Authority Case n Quoted Art Subject 06/06/2008 Corte Appello Roma sez. lav. 31, 51 Employment Type of quotation Direct application - Indirect application "Il diritto dei lavoratori a "condizioni di lavoro eque e giuste" stabilito all'art. 31 della Carta di Nizza con una formula "riassuntiva" che vuole coprire tutte quelle situazioni di abuso o di discriminazione non disciplinate da altre norme specifiche dello stesso Bi. Europeo (che nell'ultimo anno la Corte di Giustizia in tre sentenze del 27/6/2003, del 13/3/2007 e del 3/5/2007 ha applicato indipendentemente dalla nota quaestio del suo carattere ancora "non vincolante") porta ad interpretare (dovendosi attribuire - sulla scia della giurisprudenza della nostra Corte costituzionale - alla Carta di Nizza un valore "espressivo" delle tradizioni costituzionali comunioni) la disciplina comunitaria ed anche quella nazionale che ha recepito la prima, nel senso di richiedere al datore di lavoro la specificazione "in concreto" della ragione dell'apposizione del termine, a meno di non compromettere le finalità dell'accordo quadro, della direttiva e della stessa legge italiana, si da pregiudicare le legittime pretese dei lavoratori alla "trasparenza" nel ricorso a strumenti contrattali "atipici". Ai sensi dell'art. 51 della Carta, questa si applica al diritto comunitario ed a quello nazionale di applicazione del primo e il riconoscimento della sua natura ricognitiva delle " tradizioni costituzionali comuni" implica che - ai sensi dell'art. 6 TUE - i diritti da essa sanciti debbano essere considerati principi generali del diritto comunitario e pertanto strumento privilegiato di interpretazione del diritto di matrice sovra - nazionale e di quello interno che ha recepito il primo negli ordinamenti interni. [...] Anche le formulazioni già ricordate della Carta di Nizza (ivi compreso il principio di non discriminazione applicato numerose volte dalla Corte di giustizia per sindacare la irrazionale discriminazione tra lavoratori nel possesso dei diritti fondamentali: per tutte v. la sentenza Betcu C - 173/99 del 2001) militano per tale risultato ermeneutico, impedendo che gli abusi nell'uso del contratto a termine siano repressi in modo energico nei soli casi - come vorrebbe le Po. - di radicale mancanza di una allegazione di sorta sulle ragioni giustificatrici, venendo così a discriminare senza alcuna giustificazione razionale, i diversi casi di violazione della legge come quelli sopra evidenziati". Date Authority Case n Quoted Art Subject 26/06/2008 Cassazione civile sez. I Expropriation Type of quotation Quoted by the applicant Judgments Page 34 of 38

274 Date Authority Case n Quoted Art Subject 03/07/2008 Cassazione civile sez Generic Reference III Type of quotation Indirect application "E' ben vero che la Corte Costituzionale con le sentenze nn. 348 e 349 del 24 ottobre 2007, anteriori alla deliberazione di questa Corte, ma anche alla ordinanza negativa del 2008 ora in esame, in guanto vincolante per questa Corte, hanno compiuto un punto di svolta per l'apertura del nostro sistema di giustizia costituzionale verso il diritto europeo, consentendo alla Corte italiana di instaurare un dialogo con la Corte europea dei diritti dell'uomo, così come pretende anche il Trattato di Lisbona, in corso di ratifica (come risulta dall'agenda governativa e dal disegno di legge depositato in parlamento) con la ricezione della Carta di Nizza nel Trattato della Unione europea. Questo punto di svolta, che supera definitivamente i paletti (o controlimiti) posti dalla Corte Costituzionale con la lontana pronuncia del 19 gennaio 1993 n. 10, esige una migliore lettura del sistema delle fonti a partire dal testo dell'art. 117 Cost. italiana, comma 1, che esige un rapporto integrativo con le fonti europee sui diritti fondamentali della persona (Consiglio di Europa e Carta di Nizza) ed un confronto dialogico con le pronunce delle Corti europee del giustizia. Punto di confronto che induce la Corte Costituzionale, nelle sentenze appena richiamate (nn. 348 e 349 del 2007) ad una pronuncia di incostituzionalità delle norme vigenti italiane che non prevedono, per il caso di occupazione acquisitiva il ristoro integrale del danno subito dal proprietario dello immobile espropriato". Date Authority Case n Quoted Art Subject 04/07/2008 Corte Costituzionale 251 Generic Reference Disability Type of quotation Pronouncements on the binding force of the Charter "La Convenzione delle Nazioni Unite sopra indicata è qui richiamata - ancorché ne sia in corso il procedimento di ratifica ed essa, quindi, sia tuttora priva di efficacia giuridica - per il suo carattere espressivo di principi comuni ai vari ordinamenti nazionali, analogamente a quanto ritenuto da questa Corte per quanto concerne la Carta dei diritti fondamentali dell'unione europea, proclamata a Nizza nel dicembre 2000 (sentenza n. 394 del 2006). L'atto in questione assume, dunque, il valore di semplice ausilio interpretativo". Judgments Page 35 of 38

275 Date Authority Case n Quoted Art Subject 09/07/2008 Cassazione civile sez. III Damages Type of quotation Indirect application "In tal senso giova considerare anche l'art. 11 della Carta di Nizza, richiamata dal recente Trattato di Lisbona, come parte integrante dei principi comuni e delle tradizioni costituzionali comuni europee.detto articolo considera la libertà di espressione e di opinione, anche critica, accanto alla libertà di informazione.il trattato è in corso di ratifica, ma la lettura integrativa della norma costituzionale italiana (art. 21 Cost.), dovrà essere garantita anche dai giudici nazionali italiani". Judgments Page 36 of 38

276 Date Authority Case n Quoted Art Subject 27/08/2008 Corte Appello Roma sez. lav. 31, 51 Employment Type of quotation Direct application - Pronouncements on the binding force of the Charter "Il diritto dei lavoratori a "condizioni di lavoro eque e giuste" stabilito all'art. 31 della Carta di Nizza con una formula "riassuntiva" che vuole coprire tutte quelle situazioni di abuso o di discriminazione non disciplinate da altre norme specifiche dello stesso Bill of rights europeo (che la Corte di Giustizia in numerose sentenze del , del e dei , del Dicembre 2007 Viking e Laval ed ancora del e ha applicato indipendentemente dalla nota quaestio del suo carattere ancora "non vincolante") porta ad interpretare (dovendosi attribuire - sulla scia della giurisprudenza della nostra Corte costituzionale - alla Carta di Nizza un valore "espressivo" delle tradizioni costituzionali comuni) la disciplina comunitaria ed anche quella nazionale che ha recepito la prima, nel senso di richiedere al datore di lavoro la specificazione "in concreto" della ragione dell'apposizione del termine, a meno di non compromettere le finalità dell'accordo quadro, della direttiva e della stessa legge italiana, si da pregiudicare le legittime pretese dei lavoratori alla "trasparenza" nel ricorso a strumenti contrattali "atipici". Ai sensi dell'art. 51 della Carta, questa si applica al diritto comunitario ed a quello nazionale di applicazione del primo e il riconoscimento della sua natura ricognitiva delle "tradizioni costituzionali comuni" implica che - ai sensi dell'art. 6 TUE - i diritti da essa sanciti debbano essere considerati principi generali del diritto comunitario e pertanto strumento privilegiato di interpretazione del diritto di matrice sovra - nazionale e di quello interno che ha recepito il primo negli ordinamenti interni". [ ] "Ora la modifica della preesistente disciplina se escludesse, nell'ipotesi di nullità della clausola di apposizione dal termine, la conversione automatica del contratto di lavoro in contratto a tempo indeterminato, costituirebbe una violazione della clausola di non regresso come sopra intesa, vale a dire comporterebbe una riduzione del livello generale dì tutela del lavoratore, perché, come si è ampiamente argomentato, travolgerebbe quasi tutte le garanzie assicurate da norme inderogabili di legge a tutela del lavoratore. Va ricordato che, sebbene si discuta in dottrina, della reale portata delle "clausole di non regresso" e delle conseguenze sulla legittimità delle norme nazionali in contrasto con essa, qui rileva l'obbligo di "interpretazione conforme" che impone al giudice di seguire il più possibile le vie interpretative della legge nazionale che siano coerenti con le disposizioni "comunitarie" e con gli scopi perseguiti dalla regolamentazione sovra-nazionale, tra le quali rientra anche la citata clausola. Anche le formulazioni già ricordate della Carta di Nizza (ivi compreso il principio di non discriminazione applicato numerose volte dalla Corte di giustizia per sindacare la irrazionale discriminazione tra lavoratori nel possesso dei diritti fondamentali: per tutte v. la sentenza Betcu C del Judgments Page 37 of 38

277 2001) militano per tale risultato ermeneutico, impedendo che gli abusi nell'uso del contratto a termine siano repressi in modo energico nei soli casi - come vorrebbe le Po. - di radicale mancanza di una allegazione di sorta sulle ragioni giustificatrici, venendo così a discriminare senza alcuna giustificazione razionale, i diversi casi di violazione della legge come quelli sopra evidenziati". Judgments Page 38 of 38

278 Graphic representation of the results of the research The eminently empirical character of the analysis on the frequency and typology of references to the Charter of Fundamental Rights of the European Union explains our choice of graphically representing its results. The graphical transposition of the results may indeed constitute a useful tool to visualize immediately the incidence of the Charter both on the supranational legal system and on the domestic ones. For these reasons, we chose to distinguish between European case-law and Italian case-law and we concentrated our attention on the following data: numbers of references per year, most cited articles and subjects and the techniques of reasoning employed by the Authorities that effected the citation (Advocates General, judges of the EC Court and national judges).

279 European Union case-law Judges have shown an inclination to integrate the Charter in the EU multilevel jurisdictional circuit by reason of the formulation of its provisions. The themes on which a reference has been made span from the protection of dignity to the protection of environment, from freedom of expression to freedom of assembly and of association, from the right to a paid annual leave to the right of collective bargaining and action. It seemed more functional to a rational systematization to give separate consideration to documents containing explicit references to the Charter of Nice, in consideration of the contents and the modality of quotation. That was also in order to show the different attitude by supranational and national juridical operators towards the same legal document. On one hand, this separation highlighted a different attention for each part of the Charter (see Figure D for European case-law and Figure B for Italian case-law); on the other hand, it has shown that the overall more relevant modality of reference is what we define indirect application (Figure E for European case-law and Figure XX for Italian case-law).

280 Figure A: Total references per year (separate analysis of Judgments and Opinions) The figure shows the progression of the references to the Charter over the years, considered by typology of act (Opinions of Advocates Generals and Judgments). It is possible to observe a considerable difference in the number of citations for each authority. In fact, while the data for judgments appears constantly increasing, the trend of conclusions looks generally uniform in the period of time considered, because it was characterized by a high number of references from the origins (16 already in 2001). The tendency with respect to the Opinions of Advocates Generals (AGs) shows that they have welcomed the Charter more favourably from the beginning (this may contribute to explain the almost stable number of quotation over the years). On the contrary, the progressive raise of references operated by the Court of First Instance and the European Court of Justice can be taken as evidence of the Charter s growing authoritativeness in the eyes of the judicial authorities of the Community.

281 Figure B: Total quotations per year (Judgments and Opinions considered together) The figure shows the total references for year by all acts of AGs and Judges, i.e. without distinction between Opinions and Judgments. Over the entire period examined from January 2001 to December 2008 the total number of documents in which one can find a quotation to the Charter of Fundamental Rights of the European Union is 199, with a notable difference between Opinions and Judgments (133 and 66 respectively). From 2003 to 2006, we can remark a substantial stability in the level of attention towards the Charter. Since 2007 it is possible to remark a progressive increasing of the quantity of references to the Charter (32 in 2007 and 33 in 2008) in both Judgments and Opinions.

282 Figure C: The Advocates and the Charter The table has the scope of showing the correlation between each Advocate General and the number of his or her quotations. The difference in frequency may be read as an index of the diversity of approach of each Advocate in the appreciation of the binding force, actual or promised of the European Bill of Rights. In that direction it is possible to interpret the data relative to Advocates Ruiz-Jarabo Colomer (29), Kokott (22), Geelhoed and Poiares Maduro (15), which are indicative of a higher sensibility probably connected to their juridical, political and cultural background. At a consideration of the quantitative data may also be juxtaposed an evaluation of the specific gravity of the quotation to reveal the favor of each Advocate; we can take for example the Advocate General Verica Trstenjak that has done a limited number of citation (6) but in the case C- 350/06 e C-520/06 on paid annual leave has used the Charter as it was binding.

283 Figure D: Most quoted Articles The table shows the most quoted articles. This allows highlighting the use of the Charter as a basis for certain rights that constitute an established European heritage. This is true for the right to an effective remedy and to a fair trial in Article 47, for the right to good administration in Article 41, and for the respect for private and family life in Article 7. Chapter VI on Justice is most frequently mentioned section of the Charter (with almost a hundred references spanning across its various Articles). As to the other chapters, instead, it seems more difficult to make an analysis based on individual chapters because references are made to single articles which have autonomous importance, independently from their collocation in the Charter. The sections of greatest relevance for social rights are Equality (Articles 20-26) and Solidarity (Articles 27-38); they are characterized by an exiguous number of references, with the sole exception of the principle of non-discrimination in Article 21 something which confirms its nature of general principle of EU law (it was the object of 13 quotations).

284 Figure E: Types of quotations In this picture data relative to different typologies of quotation are aggregate in function of a progressive juridical "force" attributed to the Charter. Next to cases of reference that are merely evocative of those effected by the parties or by the Court of First Instance and later dropped - which were here classified as "other" because of their small juridical relevance - it is possible to remark cases with a higher weight, grouped as "Indirect Application" and "Direct Application". From the examination of the elements it emerged that citations of the Charter assume in the majority of cases (68 quotation) the character of Indirect Application, namely "*an interpretative aid to reach a decision otherwise taken or an aid of a line of argument otherwise buttressed*". In the category of "Indirect Application", it occurs frequently that the method of reference employed is "ad abundantiam", in which the reference to the Charter is accompanied by quotations to others bill of rights: from the European Convention for the Protection of Human Rights and Fundamental Freedoms, to the European Social Charter, to the Community Charter of fundamental social rights of Workers. It is also possible to find numerous discussions on the nature of the Charter and on its binding force; the Charter is sometimes considered as an instrument ricognitive and confirmative of rights already recognized at a community level and a privileged tool to identify the fundamental rights and general principles in European Law. Less frequent is the recourse to the modality of *hard* quotation, "direct application" - only found in 14 cases. In these cases the Charter represents the legal basis for the solution chosen by the Court or suggested by the Advocate General. A unitary attention should be paid to the cases of citation in note - accompanied sometimes also by declaration on legal binding force of the Charter - because of their collocation between a mere rethorical device and a more pregnant modality of reference.

285 Figure F: References by subject-matter This figure is meant to assess whether there is an hypothetical relation between number of references and the subject-matter of the case. The subject in which the Charter has most frequently been used is Competition (20 cases). Moreover, when considering jointly all references relating to enterprise law in a broad sense, such as competition, freedom of establishment, freedom to provide services, enterprise law, State aid and Free movement of goods, it is possible to see a considerable recourse to the Charter in these matters (35 quotations). Even more frequent is the reference to the Charter in the subjects which may broadly be qualified as social, such as social policy, free movement of persons, staff regulations and social security for migrant workers ; these received a total of 37 quotations.

286 Italian case-law The analysis on the number and typology of references made in the judgments by domestic courts was carried out through the consultation of private databases; at first, the keyword Charter was researched, and subsequently the term fundamental rights. However, such a methodology of research does not allow for an examination of all relevant documents, because it is up to the discretion of the editors of the database to decide on which documents to include in the databases. For these reasons, we preferred not to graphically represent the results of annual trends of quotation to the Charter, scarcely significant in the context of a sample survey; nonetheless, we opted to graphically illustrate the data on the most quoted Articles, on the authorities that made the reference and on the most employed typology of reference.

287 Figure A: Domestic judges and the Charter Domestic jurisdictional authorities showed a considerable interest in the Charter, proven by the high number of quotations (46) in the period considered. The data on single authorities are substantially homogeneous, i.e. without considerable difference among courts of first and second instance, administrative courts, the Constitutional court, and the Supreme Court of Cassation. The authority that has made most references to the Charter is the Supreme Court of Cassation, with a sensible predominance of quotations from its civil sections (10 references out of a total of 17) and a significant introduction of the Charter in the arguments of the Court in its enlarged composition ( Sezioni Unite ). Constitutional judges (with 14 references) also seemed very sensitive towards the effects of the rights enshrined in the Charter. The number of references of first and second instance judges, which appear in the graph respectively as Tribunals (Tribunali) and Courts of Appeal (Corti d Appello), is substantially homogeneous (respectively. 8 and 7). Finally, it is worth highlighting that there is a frequent reference to the Charter from administrative courts of first instance ( Tribunali Amministrativi Regionali ), but the higher administrative court (Council of State, Consiglio di Stato ) has shown little consideration for the Charter (3 references).

288 Figure B: Most quoted Articles The analysis of references to the Charter in the Italian case-law showed a marked difference in the preferences of domestic authorities from European ones (see Figure C European case-law). More specifically, while the Articles most quoted by Italian judges can be traced back to the subject-area of social rights with a total of 24 quotation from Chapters III and IV on the other hand the section of the Charter on Justice (Chapter VI) receives little consideration, with the significant exception of the principles of legality and proportionality of criminal offences and penalties in Article 49.

289 Figure C: Type of references From the examination of the judgments of domestic judges it is possible to notice that references are for the greatest part (39 references) in the form of indirect application. More rarely, it is possible to find the Charter being used as a basis of the conclusion reached in the case (direct application); sometimes, this usage has reached the maximum grade of binding force, practically demonstrated by the non-application of a domestic law allegedly in contrast with a principle enshrined in the Charter (see Corte d Appello Firenze, Sez.Lav., 9 June 2007 and Tribunale di Ravenna, 16 January 2008).