欧盟宪法草案对欧盟人权保护机制的影响 (The Draft Constitution and Human Rights Protection in European
cific reference to the Convention, stresses that the Charter cannot undermine rights already guaranteed by that agreement. Clearly, that means it is the Convention which supplies the minimum protection as the lowest standard but the aim of the Charter of EU is to provide fundamental rights protection at a higher level than the Convention, which focus depend on the enlargement and the improvement of the democracy institutionalization of EU itself.
In this context, as it states in the preamble of the Charter in the Constitution , the Union respects and interpreters the Charter in compliancy with the ECHR, could be only a scheme to recognize the current circumstance, while the principles of human rights protection derived from the Council of Europe have been general evolutes as constitutional traditions and international obligations common to the Member States.
3.4 possible consequences: two courts system
If the Constitution provides different protection of human rights for EU citizens, the question will left to the judicatory of EU: what a possible procedure could be for Courts of EU to refer questions relating to the Convention if the Constitution come into force, in which the accession to the Convention was expressed clearly in Article I-7. Though the accession would ensure a uniform minimum level of protection across Europe irrespective of the legal actor, it would bring the conflict of jurisprudence between two Courts- ECJ and ECtHR. It was suggested that the ECtHR could give its advisory opinion for the ECJ to apply. However, sensitive issues took place, for example: whether judges from countries outside the Union would hear cases relating to EU law. Especially as we mentioned, it is suspectable whether with the rapid expansion of Council of Europe membership in the east, there will be possibility that the standards of protection applied by ECtHR could be weakened. And what could deal with the appeal according to the rights provided by the Charter but not fall in scope of ECHR? It is now hard to give satisfactory answers to these questions, however, one thing is sure, that the Courts of EU should acquire more competence in this part.
Theoretically, the ECJ has played the same role as ECtHR in some cases. The ECtHR provides the ultimate remedy against relevant authority in case the applicant regards he is personally and directly the victim of a breach of one or more f these fundamental rights by one of the States when all domestic remedies has been ex
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In this context, as it states in the preamble of the Charter in the Constitution , the Union respects and interpreters the Charter in compliancy with the ECHR, could be only a scheme to recognize the current circumstance, while the principles of human rights protection derived from the Council of Europe have been general evolutes as constitutional traditions and international obligations common to the Member States.
3.4 possible consequences: two courts system
If the Constitution provides different protection of human rights for EU citizens, the question will left to the judicatory of EU: what a possible procedure could be for Courts of EU to refer questions relating to the Convention if the Constitution come into force, in which the accession to the Convention was expressed clearly in Article I-7. Though the accession would ensure a uniform minimum level of protection across Europe irrespective of the legal actor, it would bring the conflict of jurisprudence between two Courts- ECJ and ECtHR. It was suggested that the ECtHR could give its advisory opinion for the ECJ to apply. However, sensitive issues took place, for example: whether judges from countries outside the Union would hear cases relating to EU law. Especially as we mentioned, it is suspectable whether with the rapid expansion of Council of Europe membership in the east, there will be possibility that the standards of protection applied by ECtHR could be weakened. And what could deal with the appeal according to the rights provided by the Charter but not fall in scope of ECHR? It is now hard to give satisfactory answers to these questions, however, one thing is sure, that the Courts of EU should acquire more competence in this part.
Theoretically, the ECJ has played the same role as ECtHR in some cases. The ECtHR provides the ultimate remedy against relevant authority in case the applicant regards he is personally and directly the victim of a breach of one or more f these fundamental rights by one of the States when all domestic remedies has been ex
《欧盟宪法草案对欧盟人权保护机制的影响 (The Draft Constitution and Human Rights Protection in European(第9页)》
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