Human rights as an element of European Union policymaking in the context of modern constitutionalism transnationalization

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Human rights as an element of European Union policymaking in the context of modern constitutionalism transnationalization

Zabokrytskyy I.I.,

Candidate of Juridical Sciences (PhD), Associate Professor of the Department of Constitutional and International Law of the Institute of Law, Psychology and Innovative Education of Lviv Polytechnic National University

The article analyzes human rights as an element of European Union policymaking in the context of modern constitutionalism transnationalization. The EU Charter of the Fundamental Rigths of the European Union is examined as one of the “constitutional” acts of the EU. The Strategy for the Effective Implementation of the Charter of Fundamental Rights is examined, in particular such sub-areas as strengthening the fundamental rights culture in the Commission, taking into account the Charter during the legislative process, ensurance that that the EU Member States comply with the Charter when implementing EU law. The article also analyzes the Operational Guidelines on the Consideration of Fundamental Rights in Commission Impact Assessments. The conclusion is made tha such thorough Operational Guidelines are another indicator of the importance of the human rights issues in the activities of the European Commission. The adoption of the Strategy by the European Commission underlined the particular role of the fundamental rights conferred on the Commission in its activities, which can be separated into two main areas. First, it is to take into account and verify that the fundamental rights of any form of activity of the Commission are complied with, in particular in the framework of the European Union legislative process. Secondly, it is a preventative mechanism, informing the public and preparing annual reports on the application of the Charter, which can be assessed positively. It is noted that European Union is regularly improving the existing human rights protection mechanisms, which we can trace in the evolution of Charter since the adoption of the Charter in 2000 until the introduction of additional mechanisms aimed at its proper implementation.^ is important that human rights and the Charter should be applied both by the EU institutions in the legislative process (for which the Strategy for the Effective Implementation of the Charter of Fundamental Rights and the Operational Guidelines for the Consideration of Fundamental Rights in Commission Impact Assessments were developed).

Key words: human rights in the EU, EU policymaking on human rights, modern constitutionalism transnationalization, Strategy for the Effective Implementation of the Charter of Fundamental Rights, Operational Guidelines on the Consideration of Fundamental Rights in Commission Impact Assessments.

ПРАВА ЛЮДИНИ ЯК ЕЛЕМЕНТ ФОРМУВАННЯ політики ЄВРОПЕЙСЬКОГО СОЮЗУ в КОНТЕКСТІ ТРАНСНАЦІОНАЛІЗАЦІЇ СУЧАСНОГО КОНСТИТУЦІОНАЛІЗМУ

У статті аналізуються права людини як елемент вироблення політики ЄС в контексті транснаціоналізації сучасного конституціоналізму. Хартія ЄС про основоположні права розглядається як один із конституційних актів ЄС. Розглядається Стратегія ефективного втілення Хартії основоположних прав, зокрема таких підгалузей, як зміцнення культури основних прав у Комісії, врахувння Хартії під час законодавчого процесу, гарантування, що держави-члени ЄС дотримуються Хартії під час імплементації права ЄС. У статті також проаналізовано Операційні вказівки щодо врахування основоположних прав при оцінці впливу комісії. Зроблено висновок, що такі ґрунтовні Операційні вказівки є ще одним показником важливості питань прав людини у діяльності Європейської Комісії. Прийняття стратегії Європейською Комісією підкреслило особливу роль основоположних прав, наданих Комісії в її діяльності, які можна розділити на дві основні сфери. По-перше, слід врахувати та перевірити, чи дотримуються будь-яких основоположних прав під час діяльності Комісії, зокрема в рамках законодавчого процесу Європейського Союзу. По-друге, це превентивний механізм, що інформує громадськість та готує щорічні звіти про застосування Хартії, які можна оцінити позитивно. Зазначається, що Європейський Союз регулярно вдосконалює наявні механізми захисту прав людини, які ми можемо простежити в еволюції Хартії з моменту прийняття Хартії в 2000 році до впровадження додаткових механізмів, спрямованих на її належне виконання. Важливо, що права людини та Хартія повинні застосовуватися як інституціями ЄС у законодавчому процесі (для якого розроблена Стратегія ефективного впровадження Хартії основоположинх прав та Операційні вказівки щодо врахування основоположних прав при оцінці впливу Комісії).

Ключові слова: права людини в ЄС, розробка політики ЄС щодо прав людини, транснаціоналізація сучасного конституціоналізму, стратегія ефективної імплементації Хартії основоположних прав, Операційні вказівки щодо врахування основоположних прав при оцінці впливу Комісії.

Formulation of the problem and analysis of pub-lications. Human rights are important sphere of legal regulation and research. The European Union is based on different values, including respect to human rights protection, which is evidenced by extra attention and adoption of the Charter of Fundamental Rights of the European Union - one of the “constitutional” acts of the EU. However, it's not enough to adopt the Charter - further policymaking is required to complete all the purposes of sufficient human rights protection. This issue has been in the focus of several scientists research, including L. Bojarski, I. Butler, J.A. Hofbauer, N. Mileszyk and others. However, the purpose of this article is to specifically highlight the EU policymaking in this field in the context of modern constitutionalism transnationalization.

Thus, the study objective of this article is to exam-ine human rights as an element of EU policymaking in the context of modern constitutionalism transnationali-zation. рuman rights european union

Study results. We propose to start with the view of the Charter of Fundamental Rights of the European Union, which is one of “constitutional” acts of the EU, endowed with the power analogical to the founding trea-ties. The preamble to this Charter states that “the Union was founded on indivisible, universal human values such as human dignity, equality, and solidarity; the Union is founded on the principles of democracy and the rule of law; the Charter once again solemnly states the rights proclaimed in it derive from the constitutional traditions and international obligations common to the member states, as well as from the treaty establishing the European Union, the founding treaties of the Community, the European Convention for the Protection of Human Rights and Fundamental freedoms, the Social Charters (approved by the Community and the Council of Europe), the court case of the Court of Justice of the European Communities and the European Court of Human Rights”[1].

The Charter of Fundamental Rights envisages a new approach to the classification of human rights according to the values they protect.

The first section of the Charter deals with dignity (Articles 1-5) - it enshrines such rights as the right to life, the inviolability of a person, the prohibition of torture or inhuman or anything that may humiliate human dignity or punishment, the prohibition of slavery and forced labor.

The second section refers to the rights that protect and guarantee freedom (Articles 6-19) - the right to liberty and security, the right to respect for private and family life, the right to the protection of personal data, the right to marry and to found a family, freedom of thought, conscience and religion, freedom of expression and belief and information, freedom of assembly and of association, freedom of arts and sciences, right to education, freedom to choose an occupation and right to engage in work, freedom to conduct business, right to property, right to asylum, right to protection in the event of movement, expulsion or extradition.

The third section guarantees equality (Articles 20-26) - the principle of equality before the law, the prohibition of discrimination, cultural, religious and linguistic diversity, the equality of men and women, the rights of the child, the elderly and people with disabilities.

The fourth section protects solidarity (Articles 27-38) - the right of workers to information and consultation on their responsibilities, the right of workers and employees to collective bargaining, collective agreements and collective actions to protect their interests, the right of access to placement services, the right to fair working conditions, the prohibition of child labor and protection of young people at work, the right to protection of family and professional life, the right to social security and social assistance, the right to health care, environmental protection, consumer protection.

The fifth section provides guarantees concerning the citizen's rights (Articles 39-46) - the right to vote and to stand as a candidate at elections to the European Parliament, the right to vote and to stand as a candidate at municipal elections, the right to good administration, the right to access documents, the right to refer to Ombudsman and the right to petition the European Parliament, freedom of movement and residence, dip-lomatic and consular protection. As we can see, much of these rights derive from the essence of the European Union, in particular, the need to guarantee the right to vote at municipal elections to all citizens of the Member States of the European Union residing in another Member State, thus facilitating even closer integration of the states.

The sixth section of justice (Articles 47-50), refers the right to an effective remedy and a fair trial, the pre-sumption of innocence and the right to defense, the principles of legality and proportionality of criminal offenses and penalties, the right not to be tried or punished twice in criminal proceedings for the same criminal offense.

The seventh section of the Charter covers the defi-nition of the terms and procedure for the application of the Charter by EU bodies and Member States.

In this way, the Charter offers a qualitatively new vision of human rights, laying the foundations for the protection of fundamental human values, from which natural human rights originate. As we can see, the Charter establishes a new level of vision of human rights that meets the modern conditions of human deve-lopment - such as an article on the regulation of personal data protection (Article 8), according to which everyone has the right to the protection of personal data concerning himself or herself; such data must be processed fairly for specified purposes and on the consent of the person concerned or on any other legitimate basis laid down by the rules of law; everyone has the right to access and rectify the information collected concerning him or her; compliance with these rules is ensured by the control of an independent authority, which is a significant guarantee of protection in the information field.

The right to good administration (governance - in the original right to good administration) is relevant. According to Article 41 of the Charter, everyone has the right to have his or her affairs handled impartially, fairly and within a reasonable time by the institutions and authorities bodies of the Union. This right includes:

1) the right of every person to state his / her right (right to be heard) before any individual measure that would affect that person is applied; 2) the right of everyone to have access to his or her file while respecting the legit-imate interests of confidentiality and of professional and business secrecy; 3) it is the obligation of the administration to provide a justification for its decisions. In addition, each person has the right to compensation by the Community for any damage caused by its institutions or officials in the performance of their duties, in accordance with the general principles common to the laws of the Member States. Everyone has the right to make a written request to the Union institutions in one of the languages of the Treaties and to receive the answer in the same language.

It is important to highlight the rules of Art. 52 of the Charter, according to which any restrictions on the exercise of the rights and freedoms provided for in the Charter must be provided for by law and respect the essence of those rights and freedoms. In accordance with the principle of proportionality, restrictions are only permissible if they are necessary and genuinely consistent with the general interest recognized by the Union or the need to protect the rights and freedoms of others. It is also mentioned that if the Charter contains rights that correspond to those guaranteed by the Convention for the Protection of Human Rights and Fundamental Freedoms, the scope and meaning of those rights shall be the same as those laid down in the Convention. However, this provision does not preclude the Union from granting broader protection. Also Art. 51 of the Charter provides that it applies to the EU institutions and bodies, with due regard for the principle of subsidiarity, and to the Member States only when they are implementing EU law.

It should also be noted about the Strategy for the Effective Implementation of the Charter of Fundamental Rights, approved by the European Commission in 2010 [2]. In particular, the Strategy points out the main objective of the European Commission's policy after the entry into force of the Treaty of Lisbon - to make the fundamental rights enshrined in the Charter as effective as possible, since the Charter is not an abstract right, but the European Union must be exemplary in the field of human rights, and the Charter should “To serve as a compass for the Union's policies and their implemen-tation by the Member States” [2, p. 4]. With this aim, the European Commission identifies several sub-areas:

1. Strengthening the fundamental rights culture in the Commission. To this end, the Commission reviews the legislative proposals and acts it adopts to ensure that they comply with the Charter. To this end, the Com-mission establishes a checklist of fundamental rights, within which it must answer questions such as (i) what rights a particular proposal or act touches; (ii) whether the rights are absolute (such as cannot be restricted, such as the right to dignity and the prohibition of torture); (iii) what is the impact of the various policy options under consideration on fundamental rights, and whether this impact is positive (promotion of fundamental rights) or negative (limitation of fundamental rights); (iv) whether such options have both a positive and a negative impact, depending on the fundamental rights that may be affected; (v) whether restrictions on fundamental rights are formulated in a clear and predictable manner; and (vi) whether restrictions on fundamental rights are necessary in order to achieve the purpose of the general interest or to pro-tect the rights and freedoms of others, proportionate to the achievement of the necessary purpose and to preserve the essence of the fundamental rights [2, p. 5].

As we can see, the checklist of the European Com-mission is essentially the application of the principle of proportionality, similar to that applied by the European Court of Human Rights, in which it is necessary to find out the impact of a policy, the act of the European Commission on fundamental rights and, in the case of the potential restriction of such rights, whether such restriction is proportionate to the objective (legitimate aim) to be attained.

Also, under the sub-direction of strengthening the culture of fundamental rights, it is envisaged to carry out impact assessments ( which we will mention in more detail later) and to check the conformity of drafts of acts, if they relate to the fundamental rights.

2. Taking into account the Charter during the legis-lative process. This section specifies that amendments to the Commission's proposals must be in accordance with the Charter, in case of amendments lower the standards of human rights protection, the Commission must defend its position by various means, including the requirement that acts be adopted unanimously or, where it can be applied, withdrawing its proposal. It is also noted that the way in which the drafters of amendments raising the issue of compliance with the Charter should be subject to transparent inter-institutional dialogue, in order to ensure that the amendments are properly assessed for their impact on fundamental rights and their conformity with the Charter and, for example, in the case of the Council, they are brought to the attention of ministers, and the legal services of all three institutions are involved [2, p. 8-9]. In this way, the Commission pays attention to the due respect for human rights not only when drafting legislation but also during the legislative process in the European Union.

3. To ensure that the EU Member States comply with the Charter when implementing EU law. The Com-mission notes that this principle is particularly impor-tant in the light of the expansion of the European Union acquis in areas where fundamental rights are particu-larly relevant, such as freedom, security and justice, non-discrimination, EU citizenship, the information society, and the environment. In particular, the Com-mission directs its efforts to prevention mecnahnisms, such as reminding and assistance, where appropriate, to the responsible authorities. Also, in the event of a breach where the Member State of the European Union does not respect fundamental rights in the implementation of EU law, the Commission may, if necessary, appeal to the European Court of Justice [2, p. 10].

In addition, the European Commission Strategy intends to increase public awareness, in particular with the regard to the information on the EU's role in pro-tecting fundamental rights, providing proper language explanations, training and providing information to lawyers and judicial authorities, as well as informing about the legal ways of protection of rights. The last part of the Strategy is the preparation of annual reports on the application of the Charter [2, p. 10-14].

In this context, reference should also be made to the Operational Guidelines on the Consideration of Fun-damental Rights in Commission Impact Assessments [3]. This document contains a number of important provi-sions, indicating that respect for human rights is a necessary condition for the legality of the EU acts. One example is where the European Union Court of Justice found invalid [4] provisions of the EU Regulation obliging the EU Member States to publicly disclose the names of recipients of agricultural subsidies as natural persons, since in this case the Court found that these provisions disproportionately interfered with the fundamental protection of personal data and privacy, as recognized in Art. 7 and 8 of the Charter, stating that the Council and the Commission failed to assess before the adoption of the Regulation whether the chosen way did not go beyond what is necessary to achieve the legitimate aim of increasing the transparency of the management of EU agricultural funds [3, p. 4]. This example shows how, within the legal system of the European Union, the EU Court of Justice performs the function of constitutional justice, examining for compliance with the EU Charter of Fundamental Rights various legal acts of the EU. In this context, the Court has emphasized the importance of preventive scrutiny of draft legal acts for compliance with the Charter, and that purpose is fulfilled by the impact assessment mechanism and the Operational Guidelines on the fundamental rights.

The Operational Guidelines also contain a number of other important provisions. In particular, the main ones are:

- provisions on the need to also take into account international instruments among which the EU is a party, such as the 2006 UN Convention on the Rights of Persons with Disabilities [5; 3, p. 4];

- a provision that rights, freedoms, and principles may be relevant in all activities of the Commission [3, p. 4];

- a description of the process of assessing the impact and preparation of descriptive memoranda where human rights may be affected [3, p. 4-5];

references to the Charter of Fundamental Rights [6] and the clarification that, although these Explanations have no legal status, they must be taken into account by the courts of the Union and the EU Member States in interpreting the Charter. It is also noted that for a deeper understanding of human rights it is necessary to get familiarized with the case law of the European Court of Justice, the European Court of Human Rights and, where appropriate, the conclusions and general comments of the UN Human Rights Monitoring Committees [3, p. 7-8] (this is a very good example of the application of soft law within the legal system of the European Union and the importance of the legal system of the European Convention on Human Rights. The need to incorporate ECHR case law indicates that the two systems of human rights protection are closely intertwined and that there is an effort to put in place a mechanism that will ensure the highest possible level of such protection);

- the distinction between the absolute rights and such which are the subject to the restriction [3, p. 9-10];

- a common procedure for the using of human rights in the impact assessment process, including an initial assessment to determine whether the fundamental rights can be affected, procedural issues and stakeholder consultation, formulation of the problem, objectives, possible options and its comparisons as well as monitoring and evaluation [3, c. 10-23].

Conclusions. Such thorough Operational Guidelines are another indicator of the importance of the human rights issues in the activities of the European Commis-sion. The adoption of the Strategy by the European Commission underlined the particular role of the fundamental rights conferred on the Commission in its activities, which can be separated into two main areas. First, it is to take into account and verify that the fundamental rights of any form of activity of the Commission are complied with, in particular in the framework of the European Union legislative process. Secondly, it is a preventative mechanism, informing the public and preparing annual reports on the application of the Charter, which can be assessed positively. Of course, there are also opinions about the need for an even broader fundamental rights strategy for the entire European Union - as, I. Butler argues that the steps are taken in the field of human rights, in particular, the adoption of the European Commission Strategy analyzed above, are solitary, and therefore there is a need in implementing a large-scale strategy that would systematize the existing practices [7, p. 1-10]. However, we believe that the European Union is regularly improv-ing the existing human rights protection mechanisms, which we can trace in the evolution of the Charter since the adoption of the Charter in 2000 until the introduction of additional mechanisms aimed at its proper implemen- tation.It is important that human rights and the Charter should be applied both by the EU institutions in the legislative process (for which the Strategy for the Effective Implementation of the Charter of Fundamental Rights and the Operational Guidelines for the Consideration of Fundamental Rights in Commission Impact Assessments were developed).

REFERENCES

1. Charter on fundamental rights of the European Union, 2000. URL: http://www.europarl.europa.eu/charter/pdf/text_en.pdf.

2. COMMUNICATION FROM THE COMMISSION.Strategy for the effective implementation of the Charter of Fundamental Rights by the European Union. Brussels, 19.10.2010, COM(2010) 573 final . URL: https://eur-lex.europa.eu/LexUriServ/LexUriS- erv.do?uri=COM:2010:0573:FIN:en:PDF.

3. COMMISSION STAFF WORKING PAPER “Operational Guidance on taking account of Fundamental Rights in Commission Impact Assessments”, Brussels, 6.5.2011 SEC(2011) 567 final. URL: https://ec.europa.eu/info/sites/info/files/opperation- al-guidance-fundamental-rights-in-impact-assessments_en.pdf.

4. ECJ, Joined Cases C-92/09 and C-93/09 of 9 November 2010 (Schecke and Eifert). URL: https://eur-lex.europa.eu/ legal-content/EN/TXT/?uri=CELEX%3A62009CJ0092.

5. Convention on the Rights of Persons with Disabilities (CRPD). URL: https://www.un.org/development/desa/disabilities/ convention-on-the-rights-of-persons-with-disabilities.html.

6. EXPLANATIONS (*) RELATING TO THE CHARTER OF FUNDAMENTAL RIGHTS (2007/C 303/02). URL: https://eur-lex.europa.eu/LexUriServ/LexUriServ.do?uri=OJ:C:2007:303:0017:0035:en:PDF.

7. Dr. Israel Butler, A Fundamental Rights Strategy for the European Union. Open Society European Policy Institute, May 2014. URL: https://www.opensocietyfoundations.org/uploads/917c26c1-75e7-4fc0-b373-e7f936b9ee25/fundamental-rights-EU-20140530_0.pdf.

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