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The EU Law has acquired a new dimension in the Lisbon Treaty

Eugene Eteris, European Studies Faculty, RSU, 28.06.2010.Print version
The new European Commission (2010-2014), in action since February 2010, has created – for the first time in the Union’s history - a new portfolio that was explicitly dedicated to issues of justice, fundamental rights and citizenship. Thus, it has become a strong symbol of the new Commission's determination to create a strong Europe of justice for its citizens.

The role of the EU Justice Commissioner (Viviane Reding), who is at the same time Commission’s vice-president, is to ensure that the Charter of Fundamental Rights – which is now part of the Lisbon Treaty – is fully respected and becomes an integral part of all other EU policies. Citizens should now enjoy the results of this new emphasis on justice and fundamental rights.

Law in the EU: Justice, Fundamental Rights and Citizenship

For a long time, the EU was striving but not really equipped to act in the interests of citizens in the important areas of justice and fundamental rights. The EU has often disappointed the citizens’ expectations in the past as to the proper protection of their rights.


The EU-27 member states’ justice and internal affairs ministers took the EU decisions and secondary laws behind closed doors; there was no parliamentary oversight in the so-called "third pillar" of the “EU temple”, to say nothing about the judicial control by the Court of Justice, which was simply excluded.


Since 1 December 2009, the situation changed drastically: the EU-27 finally has acquired the new Lisbon Treaty. This meant a true revolution for the whole field of the Union’s justice and home affairs. Hence, the co-decision procedure with the Parliament and qualified majority in the Council has become the rule for any new EU legislation. Judicial review in these fields is fully available both at the Court of Justice and in the national courts. Most important is that the EU Charter of Fundamental Rights is legally binding, and on an equal footing with the Treaties’ other provisions. Remarkable that when the new Commission’s college make an oath in 3 May 2010, for the first time the Commissioners also explicitly pledged to respect the new Charter of Fundamental Rights.

Commission’s opinion

“This is now the right moment to re-orient our policies. I believe that during the last few years Europe's policies have too often focused on security, and neglected justice. Lisbon Treaty gives an opportunity to bring a new balance into the EU policies to strengthen the citizens’ rights and freedoms”.

Viviane Reding, Vice-President of the European Commission responsible for Justice, Fundamental Rights and Citizenship, Brussels, 18 March 2010, Brussels

The Charter of Fundamental Rights

The legally binding Charter of Fundamental Rights represents one of the most important innovations of the Lisbon Treaty. It is a major step forward in terms of Union’s political commitment to fundamental rights, to the rule of law and legal certainty. It is a strong reflection of Europe’s “ever closer unity” drive for common approaches to justice. At the same time, it offers a powerful promise of a better Europe united by law and its common values. It represents a modern codification of fundamental rights and it is the clearest expression of the spirit of the Lisbon Treaty to put justice and the citizens at the heart of the EU politics and activities.


The Commission has four key priorities in implementing the Charter:


- First, the Charter should become the compass for all EU politics; with this in mind, the Commission proposes to add the fundamental rights chapter to all impact assessments of the Commission. Therefore, respect for the Charter must be an integral part of the daily work of all Commissioners. This why the Commission’s President Barroso included a reference to the Charter in the solemn oath of all 27 Commissioners.  

- Second, the Commission will use all the tools available under the Treaty to ensure compliance by the member states with the rights of the Charter and to apply a “zero tolerance policy” regarding violations of the Charter.

- Third, the Commission will publish an annual report on the application of the Charter by the member states; this report will be submitted for debates in the EP and subsequently to the Council to initiate a broader public debate.

- Fourth, the Commission will also set in motion the process to formally reconcile the coexistence of Europe's two supreme documents on fundamental rights – the Strasbourg Convention and the EU Charter. The historic process started in March 2010, when the Commission proposed directive’s draft for the Union's accession to the European Convention on Human Rights (ECHR). The EU’s accession to the ECHR has political and legal importance; it will provide ultimately a coherent system of fundamental rights’ protection throughout the EU-27 members. It will complete the level of protection introduced by the Lisbon Treaty through the legally binding Charter.

Charter’s priorities & the EU policies: legal effect

A truly functioning Charter sets a solid foundation for all of the EU policies and actions. However, three priority areas are most important to reveal changes in the Europe's policy according to the Treaty of Lisbon:


  • First, it is about the protection of the EU citizens’ privacy in the context of all EU policies, including law enforcement, crime prevention and the EU international relations.
  • Second, the Commission intends to strengthen the right of citizens to move freely in the EU. Free movement is above all a core right of the EU citizens and it must be more than a fixed notion in the Treaty. It needs to be tangible and bring a positive impact to the Union’s citizens.
  • Third, the Commission intends to ensure the development of strong procedural rights’ guarantees in the EU. This is essential to reinforce mutual trust between the EU legal systems and ensure an effective and fair application of the EU cornerstone principle of mutual recognition. An "Erasmus" exchange programme is opened to legal professionals, including lawyers and judges; it could improve the mutual knowledge of different judicial systems and trust in the EU’s legal order.


In the first half of 2010, the Commission intends to set an action plan in order to implement the guidelines provided by the Stockholm-2009 programme in combining justice and home affairs’ issues. 



Data Protection

On privacy and data protection, the Commission has initiated the process leading to the reform and modernisation of the 1995 Directive. In line with the legal prerequisite introduced by the Lisbon Treaty, the EU has presently a specific provision (art. 16, TFEU) to develop a comprehensive and coherent framework for the protection of personal data. The new legal framework should address new challenges of the information age, i.e. globalisation, development of information technologies, the internet, online social networking, e-commerce, video surveillance, behavioral advertising, data security breaches, etc.


This Treaty’s novelty is aimed at reinforcing the confidence of both citizens and businesses in data systems. A proper implementation will lead to better protection for individuals, as well as provide trust and confidence in the new EU services and products. These actions will in turn have a positive impact on the European economy.

Citizenship and the Civil Law

The same goes for citizenship and in particular the contribution that the EU makes to tackle the barriers that prevent people from taking full advantage of their rights – and especially their right to free movement, establishment and social security.


While citizens should feel at home in any EU member state when they are exercising their right to free movement, the reality is that there are still far too many cross-borders problems that prevent citizens and businesses from benefiting from a truly European area of freedom, security and justice. A good number of these problems were highlighted for the first time, in 2008, in a landmark report by Alain Lamassoure called “Le Citoyen et l'Application du Droit Communautaire”. In summary, Lamassoure drew attention to the numerous obstacles faced by EU citizens when they try to source goods and services across national borders. EU citizens should be able to make use of their rights in the same way as they use their rights in their country of residence. Before the end of 2010, the Commission promised to map out the existing obstacles for citizens and propose how they can be removed.


The Commission (and Mrs. V. Reding, in particular) suggested a sound legislation aimed at removing bureaucratic obstacles that currently hinder citizens' lives and that in addition simply provide extra costs and legal uncertainty to running business in Europe.


The Commission is currently preparing several practical solutions to remove such barriers:


  • First, getting a court judgement recognised without unnecessary legal fees (in other words, abolishing the old practice of the exequatur).
  • Second, making the recovery of cross-border debts as easy as recovering debts domestically. Currently around 60 per cent of cross-border debts cannot be recovered. To improve businesses' trust in the EU single market, the European Commission plans to make a proposal that will allow a creditor to block funds in a bank account.
  • Third, boosting online commerce and smoothing differences in contract law in Europe by developing a European Contract Law. The general terms and conditions for business-to-consumer relations are a huge burden for small companies. The EU needs a modern European Contract Law whish would exist in parallel to the national contract laws and provide standard terms and conditions for better trade, service and commerce.

Family law in the EU

Intensive people movement in the EU-27 raises essential issues of citizens' family life. To that end, the Commission revealed in May 2010 a proposal to make fast and concrete progress on the so-called Rome-III proposal. The end is simple and clear: to provide comfort and improve legal certainty for all those international marriages that end in divorce – and there are around 170,000 of these every year in Europe.


Divorce proceedings are a time when people feel very alone, being in a foreign country and not having a clear idea of the applicable rules. The EU law cannot leave people in the EU to face and manage complicated international divorces alone; they need to have clear rules so that they always know where they stand. Thousands of couples find themselves in difficult personal situations because the EU has so far failed to provide clear laws for their cases.


The previous attempt made in 2006 failed due to unanimity clause in the Council’s decision. Having exhausted all possibilities of compromise in the Council, the Commission turned to the option of referring to procedures concerning enhanced cooperation (Title III, TFEU, art. 326-334).


Civil law and citizenship issues in the EU (being generally reserved for lawyers and public officials in justice ministries) should –at the same time- put the citizens first and serve them in settling disputes and legal issues that arise between private parties. Getting married, having children, getting divorced, resolving contractual disputes, dealing with the consequences of an accident, these are all basic life experiences and urgent fields in EU civil law.


In the EU, presently, these basic life experiences increasingly have a cross-border dimension. Citizens confronted with such basic concerns need to see the tangible differences arising from the existing approaches to these issues in other member states’ systems of civil justice.


The Commission’s aim is therefore to ensure that differences between national judicial systems no longer constitute barriers to citizens' access to justice; and that mutual recognition and mutual trust are enhanced across the EU-27 and combined with appropriate harmonisation measures

Procedural Rights and Criminal Justice

The Commission intends to bring down barriers to judicial cooperation in criminal matters, as the EU objective is to develop a common European judicial area where national law enforcers and judiciaries can trust and rely on each other. The idea is to develop such a common area where judicial decisions taken in one jurisdiction can be effectively enforced in other jurisdictions as easily as they are nationally.


The EU’s starting point in procedural rights is the respect for a cornerstone principle, i.e. mutual recognition among the EU-27 each other's judicial decisions. This requires mutual trust between the EU judiciaries so that they trust each other's standards of fairness and justice. It also means that citizens can have confidence in the fairness of proceedings and the sound protection of their rights when they are in a court in another country. So far, it is to be acknowledged, that people on the profession cannot assume that this mutual trust exists, nor that it comes naturally. Besides, mutual trust cannot be made by a decree.


So, what can be done? Mutual trust can only bee earned and it requires very hard work. The European Commission has made already a proposal for improving suspects' minimum rights during procedures such as investigations and trial. The Commission believes that there should be high EU standards obliging all 27-member states to ensure effective right to interpretation and translation in criminal proceedings. One cannot have a fair trial if the accused does not understand the language of the proceedings. EU citizens should never feel that their rights are weakened because they left home. Nonetheless, this is what can happen when people are sent abroad to stand trial.


The question is, whether the public concern aroused by such cases will make it harder for judicial authorities to execute arrest warrants requests in future. The answer depends on how the authorities intend to rebuild citizens' trust in European justice. The role of the lawmakers in the EU, i.e. the Commissioners, the MEPs and Ministers in the Council’s configurations is to improve citizens' faith in that their rights are protected across Europe, and make sure that the judicial authorities in the member states can take their share of the burden. Only with the effective cooperation between the European Parliament, the Council and the EU “legal authorities” European citizens will be able to get proper rights that will accompany them throughout the EU-27.


These issues are not easy to implement in practice; thus, the Commission promised to present an Action Plan already at the end of April 2010. Now the plan is in the Commission’s files, not very much activity about its implementation, though.  

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