 Good morning and and welcome on behalf of the Glover and Institute for Democratic Governance our patrons and our partners It is my honor and with great enthusiasm that I welcome all of you to the first human rights and business training session in The next two days and we will consider and Reconsider the following challenge. How do we provide justice when a multinational company violates human rights? One thing we want to make clear is that this is not a threat a theoretical debate for policy makers It is a real problem in which each one of us has a stake and a responsibility Today we will look at six different, but real cases some involving Spanish multinational companies Some involving human rights violations in the European Union others in Asia South America and Africa Some in which justice was delayed or denied others which implemented alternative forms of justice The violation of rights are as diverse as the cases themselves environmental damage child labor substandard and unsafe working conditions corruption injury and death To accompany our case study analysis, we will hear perspectives from experts with frontline experiences Tomorrow we will consider the obligations and responsibility of corporations We'll analyze and debate the role of business in society We'll consider the effectiveness and the appropriateness of non-judicial remedies in cases concerning human rights violations Such as international arbitration and other forms of alternative dispute resolution Finally, we will consider the role of civil society of Each one of us to promote and to protect the human rights of all and when those rights are violated to consider What can be done when and how? To end the sessions, we will engage our panelists and participants in an open and participatory format for a dynamic interchange of ideas and hopefully and ideally to inspire a continued dialogue for the months and years ahead To engage in this plenary discussion and issue analysis We have with us a diverse group of speakers and panelists as diverse as our participants seated before us now We have with us international and national judges CEOs lawyers Professors business representatives international arbitrators and NGO directors I would also like to especially welcome everyone watching live via streaming over the course of the next two days All the way from New York City to Brussels to Lagos, Nigeria We invite you to participate in our discussion For all of our participants those both present and joining us virtually Please send us your comments and your questions via Twitter at hashtag human business EU And we would like to incorporate those comments and questions into our training sessions and Importantly, I would like to thank our patrons who without you we wouldn't be here today The European Commission the Santomo Museum and the European capital of culture 2016 Donostias and Sebastian We'd also like to thank our research partners who have joined us across six EU member states The University of Navarra the Frank Bolt society the University of Castilla la Mancha University of Jaume Uno University of Rovida and Vigili Case-Van-Diam consultancy Ludic Boltzmann Institute of Human Rights Tilburg University Utrecht University Leiden University the public University of Navarra the law offices of Quatre Casas Gonzales Pereira Adeghi key map University Humboldt University the University of Deuston and the University of the Basque Country So as you can see we have a diverse and a talented group of researchers But research and policy is only one step and one aspect of our work What we are doing today goes beyond the page It involves raising consciousness and interchanging ideas between knowledge creators and knowledge users So thank you for being here Now without further ado, I would like to introduce our keynote speaker Antonio Bittorino beyond being an extremely likable and knowledgeable person has quite the professional experience of which we are Lucky and honor to draw upon today a lawyer by profession Antonio Bittorino has been associated at the law firm of Quatre Casas Gonzales in Pereira also one of our researchers in our project a Member of Parliament for a number of years He was Minister of Parliamentary Affairs and the government of Mario Saudis the Deputy Secretary of Administration and Justice for the government of Macau He was a judge on Portugal's Constitutional Court who's elected member of the European Parliament in 1994 then chair of the Committee on Civil Liberties and Internal Affairs of the European Parliament in 1995 he became Deputy Prime Minister and Defense Minister of Portugal in 1999 he was a part of the European Commissioner for Justice and Internal Affairs a post that he occupied until 2004 As a representative of the European Commission, he took part in the Convention which drew up the EU Charter of Fundamental Rights In the Convention of the future of Europe He also participated in the intergovernmental conference which adopted the treaty establishing a constitution for Europe I could go on but I think it's quite clear that he has many interesting things to tell us today and Antonio Bittorino the floor is yours Thank you so much Good morning to all of you and first of all I would like to thank the Gloverness Institute For the invitation. I'm supposed to give you a brief overview on fundamental rights in the European Union My departing point is to say that in the original treaties there was no such thing as Bill of Rights But that does not mean that there were no fundamental rights enshrined in different rules of the Treaty of Rome and the Treaty of the European atomic energy The reality is that when we talk about fundamental rights in the European Union for four decades almost four decades The building up of a legal framework Based on fundamental rights was above all the work of the European Court of Justice. It's a jurisprudential origin for fundamental rights in the EU legal framework But as you can imagine since a very early stage of European integration process There was a huge debate whether the treaties should incorporate Fully fledged Bill of Rights. It will be difficult to understand that Being the Union or the communities at that time being an association of Democratic member states each one of them with its own constitution with its own Bill of Rights It would be difficult to understand that the treaties that have a constitutional role in the European Union who would not have a parallel instrument codification of the fundamental rights of the European integration process and of course there were voices saying that Such a move was fundamental to consolidate the constitutional concept of the role of the founding treaties. I believe that a big push forward in this debate occurred in the 80s When two relevant constitutional courts of the member states the German constitutional court and the Italian constitutional court raised the issue of knowing if indeed the protection of fundamental rights in the European Community Law was at the level of protection deserved to fundamental rights by the German and the Italian Constitution in fact the debate was based on the principle that the European Court of Justice had stated that the EU law should have primacy. Primacy is of course a quintessential element of the very nature of the EU legal order But if the EU law as a primacy over national law It will be difficult to accept and understand that the degree of protection of fundamental rights the deserved by the EU legal order will be less exigent less requiring that the protect the degree of protection by national constitutions. I believe that the conflict in the 80s between the ECJ and these two constitutional courts was a ceasefire Though both courts consider that in the overall the protection of fundamental rights at EU level was equivalent to the protection deserved by national constitutions, but and there is a very important but of course There was a push also in the sense that there should be some move at the European level to clarify the legal status of fundamental rights in the overall EU legal order and I consider that there are there is an element relevant in the aftermath of this debate in the late 80s when the Council of Ministers of Social Affairs adopted the what we in the European jargon called the social charter Which has got a different name. It is the European Charter on fundamental social rights of the workers in the late 80s 89 and Then the proposal of the European Commission and then chaired by Jacques de laure The Council of Ministers of Social Affairs adopted the social charter the social charter is a very interesting text Which is often forgotten. Nobody almost refers to it But it is the first attempt to codify at EU level a set of fundamental rights basically economic rights and social rights and It was presented by the European Commission as the so-called social dimension of the internal market in the sense that the basics of the internal market was of course the liberalization of the markets the far freedoms freedom of goods of services of a capital and of movement of people and there was a need to Compensate such a liberalization of the markets through the adoption of a set of fundamental rights of the Workers at that time 89 The charter was adopted by 11 out of the 12 member states There was one member state who did not subscribe to the charter It's not difficult to guess which member state I'm referring to. It's the usual suspect As you might guess it was the United Kingdom who did not subscribe to the Social charter the key issue of the social charter is that being the first attempt to have a codification of Fundamental rights. It was not primary law. I Mean it was not enshrined in the treaties It could not be considered of a substantial constitutional nature But the second moment after the debate in the 80s was and hopefully the Maastricht treaty The Maastricht treaty that of 92 that created the European Union was I believe a quintessential moment For the debate on the future of fundamental rights in the European Union level On one side because the Maastricht treaty Incorporate the concept of European citizenship by the way and they're the proposal of the then Spanish government was very adamant of having a set of rules on European citizenship and the concept of European city has been translated into the treaties on a set of Political rights, which are basically fundamental rights of the European citizens Above all the right to vote for the European Parliament the right to present complaints to the European Ombudsman so on one side you have the European citizenship With a set of political rights enshrined in the treaty has primary law and on the other side the solution that was found was that in article 6 the fundamental rights of the European Union should be interpreted as principles of Community law in light of the so-called common constitutional tradition of member states on the others on one side and On the other side on the European Convention of Human Rights What does this mean this mean that at Maastricht the compromise on fundamental rights was on one side To bring to the European level What is called the common constitutional tradition of member states in what respects fundamental rights? Please don't ask me what this mean Common constitutional tradition which he was a sufficiently ambiguous concept to incorporate different Interpretation and on the other side a specific reference to the European Convention of Human Rights Saying that the convention should be considered Has a fundamental principle of community law so not a text to refer to Directly in the sense that the communities or the Union should exceed to the European Convention of Human Rights But in the sense that the content of the European Convention of Human Rights Should be taken into consideration as a guideline to the interpretation of the fundamental rights in the EU legal order and in fact this compromise solution corresponds to the existence of two camps in the European Union as far as fundamental rights is concerned One camp was the federalist camp clearly saying there is no fully fledged Material constitution at you level if we do not have a bill of rights So we need a bill of rights at you level. It's the constitutional approach the federalists kept Insisting that it was absolutely necessary to include in the treaties a fully fledged set of fundamental rights, but on the other side a Number of member states considered that Being reluctant to the federalist concept being much more closer to the idea of the intergovernmental cooperation They favored a different solution an alternative solution having the European Union Exceeding to the European Convention of Human Rights. I mean having the European Union has In parallel to the member states to become one party in the European Convention on human rights And at those times beginning of the 90s the intergovernmental approach prevailed and The Council of Ministers asked the European Court of Justice If it was possible for the Union to exceed to the European Convention of Human Rights and in 1996 The European Court of Justice made it clear That for the European Union to be party to the European Convention of Human Rights It was necessary to have in the treaties as primary law a specific habilitation clause So it was not enough the reference to the European Convention of Human Rights as a fundamental principle of community law to allow the Union to require a formal accession To the European Convention of Human Rights. So the decision of the European Court of Justice was clearly a setback to those who have a more intergovernmental approach When you have a setback offer from one camp you can expect a push forward from the other camp definitely and the federalists came in 1999 with the idea that the moment is there to Draft a Bill of Rights specific to the European Union legal order and in fact during German Presidency 1999 the European Council of Essen decided to create a body Don't ask me what this means a body an entity that would be in charge of drafting a Charter of fundamental rights, but as he as it is very common in the European Union It was a very ambiguous compromise Because nobody said at that time if such a charter Would be legally binding or non legally binding? It was a charter It was a sort of a pure academic exercise and then when the body Started meeting and the the chairmanship of a former colleague of mine The former president of the German Constitutional Court Roman it took Well, the body took its destiny on its own ends. Sometimes these things happen with Institutions in the European Union the body started by calling itself convention and They started work. I was a member of the convention. So I am to be blamed to we started to draft a charter that was done in a way With a clear vocation of becoming legally binding. So it was based on articles it was drafted on a pure juridical approach and It had even a set of final articles very complex ones by the way that Will define the relationship between a legally binding bill of rights of the European Union With European Convention of Human Rights of which all member states were parties by the way and with the national legal order at the end of this exercise in 2000 the work done by the convention was presented to the heads of state and government of the European Union by the way very nearby in the Bia Ritz European Council of 2000 and their French Presidency and The the work was there. It was aimed to become legally binding But of course the split among member states prevailed the UK opposed With a very strong argument We have just joined the European Convention of Human Rights to fundamental rights shocks are a little bit too much for the British taste and Of course the opposition the British were not isolated the British were Supported by the Nordic countries Sweden Finland Denmark and by the Netherlands who had traditionally been in the intergovernmental camp and Were not very adamant of the federalist move towards a fully fledged bill of rights enshrined in the EU therefore the conclusion was that The charter would not be legally binding. It will be a pure political declaration But if you see the charter if you read the chart of fundamental rights You will see two main feature first It is the most updated attempt to codify a set of fundamental rights as they stand today after the evolution of the declaration of human rights of 48 and after the European Convention of Human Rights of The 60s in the Council of Europe and the several other legal instruments like the UN Civic Pact the UN political pact and so on so it is an attempt of a synthesis of The state of the art of fundamental rights and it is divided into Three four major key elements first civil rights as we know them and To a large extent the chart of fundamental rights in this aspect Overlaps with European Convention of Human Rights second building block economic social and cultural rights and this is extremely important for business because usually business just look at secondary law at European level And they forget that The secondary level of legislation is submitted to the primary law and the charter today is primarily Primary law I will come back to that point. So you have a set of economic rights social rights and cultural rights, and then you have The rights of the third generation of forced generation now I'm a little bit lost to be honest You have the right to open administration for instance, but you have also room rules on data protection and Data protection are going to be very much in the first page of the European debate in the mouse to come and they are extremely relevant for business I can guarantee you if I want it I was in the business side I would look very carefully To the rules on data protection that are enshrined in the fundamental in the chart of fundamental rights of the European Union and in the secondary legislation and the preparation on data protection and things like for instance genetic manipulation or The use of a genetic material those are the rights of the third or of the force generation, but Why am I talking about this if at the end the decision of parents was that the charter would just be a political declaration? Well, because life is more Dynamic than sometimes we expect First and foremost after the adoption of the political declaration Both European Parliament and the Commission decided that they should be legally binded by the charter Even if the charter was not legally binding in practical terms in the adoption of the legislation both legislators Commission and a Parliament will feel compelled to Check the conformity of the secondary legislation they were adopting in relation to the political declaration charter of fundamental rights and then during these last years between 2000 and 2007 several courts starting referring to the chart and To your surprise it was not European Court of Justice National constitutional courts start taking decisions Referring to the charter of fundamental rights the Italian constitutional court was the first one the Spanish Constitutional Court some superior courts in the member states starting in their statements making reference to the articles of the charter of Fundamental rights and last but not least the advocate generals in the European Court of Justice Started including in their arguments References to the chart that they were not taken on board afterwards by the ECJ, which is a very careful Institution, but in practical terms the argument was there and the argument was referred to the articles of the charter of Fundamental of fundamental rights, then we arrived to the 2003 In 2003 the convention on the future of Europe Decided to adopt an European constitution as you know and the first chapter will be the charter of fundamental rights the bill of rights So here we go back to our good old constitutional tradition if we have a constitution We need a bill of rights and the bill of rights is the opening job charter of a constitution but To give some leverage to the intergovernmental camp the convention on the future of Europe included an rule saying that at the same time the union was Abilitated to require access to the European Convention of Human Rights so as usual at the European level we try to reconcile the Best parts of two worlds one bill of rights But at the same time paved the way for accession to the European Convention on Human Rights as you know the Constitutional died in the shores of France and Netherlands in the eight two thousand and Five and then with the Lisbon Treaty The charter was reconvened as a protocol of the Treaty of the European Union Well as a protocol it is clearly primary law So there is no doubt that protocols have the same legal ranking has the treaties themselves So since the first of December 2009 the chart of fundamental rights is constitutional law of the European Union it is a parameter for evaluating the legality of all secondary legislation at EU level and As far as European Convention of Human Rights There is a huge difference huge difference between what had been decided in the convention on the future of Europe and What is now? legal legally binding Violet the Lisbon Treaty it know it's no longer an ability to Exceed to the European Convention. It's a legal obligation So making it clear the treaty says that the European Union Shall have to exceed To the European Convention of Human Rights so to a certain extent in the Lisbon Treaty the intergovernmental camp Got a compensation By an upgrading of The connection with the European Convention of Human Rights. It's no longer an habilitation clause It's a legal obligation. That's why I would say for the last three and a half years there has been a very cumbersome complex negotiation between the European Commission and the Council of Europe in order to Make it possible for the European Union to exceed to the European Convention of Human Rights It's a very complex issue because as you can imagine the Council of Europe is composed of if my memory does not fail me 47 member state of which of course 28 are members of the European Union So they are on two sides of the of the table, but of course you need to persuade the other 19 That the European Commission should include as a party one international organization the European Union of which are members countries that are already parties to the European Convention on Human Rights and After three and a half years of negotiation There is a mandate and there was a mandate and there is an agreement between the European Commission and the Council of Europe on Allowing the Union to become party in the European Convention of Human Rights in fact in December last year Disagreement was submitted to the overview of the European Court of Justice and The European Court of Justice in an opinion adopted in December in the on the 18th of December 2014 Decided to reject the accession agreement of the European Union to the European Convention of Human Rights on Three basic grounds the first one is that the European Court of Justice considers that the terms of accession do not preserve the autonomy of the EU law in Relation to the international public law that is the European Convention of Human Rights so for the European Court of Justice the terms of the accession Violate protocol 8 annex to the Lisbon Treaty that states that the accession cannot undermine the autonomy of the European Union law The second argument is a marginal one. It's a rather complex one. It's an interesting one it's about the scope of judicial review on Decisions and actions Taken by the European Union and their common foreign and security policy It's an interesting debate I think that it should be studied more in depth and it is a challenge for those who are in search of a subject for a PhD In fact, if you look to the Treaty of the European Union, you will see that the jurisdiction of the European Court of Justice on Issues referring to common foreign security policy policy is very limited. It's very limited. It's very much restricted If you compare the scope of judicial review on CFSP on common foreign security policy at EU level With the capacity of some national courts to Overview to judicial review on foreign policy of national member states You will see that the scope of the jurisdiction of the European Court of Justice is much more limited than the scope of Judicial review at national level. It is true that in some other member states Courts are very much prevented from interfering with foreign policy. So you have very different cultures When it comes to judicial review in foreign policy and the compromise solution that was adopted in the European Union treaties is a Halfway or Three quarter quarters way in between the different cultures among the member states The point being the point being that in the interpretation of the European Court of Justice The fact that we refer to the European Convention of Human Rights and the union can exceed to the European Convention of Human Rights the European Convention of Human Rights will enlarge the scope of review of judicial review on foreign policy and Therefore the court of Strasbourg of the European Convention of Human Rights will have a broader jurisdiction on foreign policy Than the European Court of Justice, which is the dedicated court of the European Union So the contradiction on foreign policy is one of the one of the arguments, but the key argument of the European Court of Justice is to say that one of the difficulties of the exercise of having the union exceeding to the European Convention of Human Rights is that one needs to clarify if a complain Should be addressed to one member state or To the union as such it's a very interesting Subject from the legal point of view because you have directives for instance adopted at you level That needs to be translated into the national legislation through national rules When there is a question concerning a fundamental right one must Clarify if the question that it is at stake refers to the national legislation that translated the directive or if it is Related to the directive itself and when clarifying Who is to be blamed? Let's go like this the European Court of Human Rights in Strasbourg will have to take a decision on the on the partition of competencies on the share of competencies between national level and the European level and European Court of Justice considers That's such a judgment by the group by the Court of Strasbourg is Illegitimate in light of the European Union legislation It will bind the European institutions to a criteria of share of competencies adopted elsewhere Outside European Union framework and that would violate the autonomy of the European law. So Coming to this conclusion and I'm concluding now The Court of Justice decided to block the accession of European Union to the European Convention of Human Rights So what's going to happen next? It's very easy Everybody goes back to the drawing board reopened the negotiations between the European Commission and the Council of Europe It took three and a half years last time. How long will it take now? I don't know nobody can know in advance And in between there is no emptiness, of course Because the charter is there the charter of fundamental rights will be implemented By the European institutions above all by the European Court of Justice some people say That the decision taken by the European Court of Justice is precisely to create a sufficient backlog of jurisprudence on fundamental rights Before the Court of Strasbourg is allowed to come in. Well, probably it's just pure criticism But I would say that for the years to come to quote Well, usually in this conference is one is supposed to quote high personalities of the legal world But if you allow me I would prefer to quote lucky luck The very famous fans in you know Saying that as far as fundamental rights is concerned the European Court of Justice is going to be the lonesome cowboy in town Thank you Thank you very much. That was quite an interview and I think you did very well at the time that was permitted And what stands out listening is is how much even though you mentioned so many important legal instruments What stands out the most is and as you referred to quote you the complex and cumbersome Negotiation and you know as we set out and embark as as researchers or as practitioners to to try and create some recommendations for policymakers Is our work a question of law or are is this a game in politics? I'm afraid I'm going to disappoint you but We lawyers and I am a constitutional lawyer We believe that there is no life Beyond the Constitution But I'm afraid I need to give you the bad news that there is more life beyond the Constitution In the sense that what non-aging Constitution on as in Mundo. No, unfortunately, there is a lot of world beyond the constitutional framework and It's the constitutional framework who needs to adapt Probably it's it's my personal problem I've lived so much so many times in the European institutions that I've learned that one needs to learn how to compromise to find solutions Solutions that are not always easy from the legal point of view. I mean if you ask me what is rational Well, it is very easy to identify what is rational from from the legal point of view But then you need to cope with political commitments and political compromise if you have two camps One very much federalist oriented saying we need a fully fledged Self-sufficient bill of rights, but on the other side You have another camp who has also strong arguments saying listen listen listen We are not developing a specific set of fundamental rights for the Quote elite countries of the European Union We cannot separate ourselves From the entire other European countries who share a broader ground called European Convention of Human Rights So we should not create an apartheid For the EU as far as fundamental rights is concerned We should keep a link a strong link with all the other European countries Even those we have no vocation to join the European Union such as for instance the Russian Federation And then what comes to the lawyer? Well, it comes to the lawyer to reconcile these two political positions You can say oh for God's sake forget that it's so confusing to bill of rights instead of one It's much easier to have one and then refer to it. Okay, that's fine You as a lawyer you feel happy with your statement. Thank you so much, but then Life comes in and when life comes in political life comes in You need to understand that if you want to build political consensus on your own bill of rights You knew you also need to give some ground for those who consider that the Union should be party in the European Convention of Human Rights I don't hide to you That the difficulty lies in the fact that The solution that we need to find cannot Translating to establishing a formal hierarchy between international courts. It's a very sensitive issue I mean you need to be sufficiently imaginative and contrary to the public opinion Lawyers are by far the most imaginative people in the world. I can guarantee you But in fact you need to be sufficiently imaginative to find a coordination solution between the two legal systems and the two courts that does not lead to a formal statement on Which one prevents which one is hierarchical superior to the to the other and that that's what we The Commission has tried to do in these negotiations for three and a half years Apparently the European Court of Justice is not satisfied with the solution So we need to go back to the drawing board and trying to find new solutions to Guarantee a mechanism of coordination of the two courts. I Don't hide to you for those who want to study make the comparison between The chart of fundamental rights of the opinion and European Convention of Human Rights That there are a few cases where the content of the Rules are not exactly the same I mean there has been a concern When drafting the chart of fundamental rights and I that I know very well Because I spent lots of hours of my life Trying to make sure that we will not create any gap between the concept of Key fundamental rights in the charter and the concept of those Corresponding key fundamental rights in the European Convention of Human Rights, but there are a few cases Where the drafting of the articles? Have the potential for a conflict or at least for different scopes of interpretation I'll give you two examples two examples The first one is an example that does not deal with business It's about the concept of family family what which is a family and and marriage It's a key. It's an issue of family law Does not deal with business, but it is quite clear in my interpretation that the drafting of the article of the chart of fundamental rights and family and The draft of the fundamental of the fundamental right of family in the European Convention of Human Rights do not coincide The charter is more. I don't know. I mean I do not want to use any moral Qualification is more open Than the concept of the European Convention of Human Rights probably it is the difference between the 60s and the 2000s, okay, but when it comes to the interpretation of the article there is a potential of differences there There is a second article, which is a well a little bit more tricky. It's about what the content of judicial review and The sense that in the European Convention of Human Rights It is possible to consider that there is sufficient judicial review Even when the review is not done by a fully fledged court, but it's done by an Administrative body with independent characteristics That's not the case in the European Union law in the European Union law and specifically in the article on judicial review in the charter it is much more exigent requiring on the very nature of the Very judicial nature of the reviewing body So to a certain extent things that can be considered in the light of the European Commission of Human Rights as being submitted to judicial review Should not pass the the exam the criteria of the European Court of Justice and off the charter of fundamental rights So I've just given you these two examples. There are a few more, but I will spare you the others But there are some areas where When interpreting the cons that the core of a fundamental right? There is a potential conflict between the interpretation of the fundamental right in Strasbourg and the interpretation of the same fundamental right in Luxembourg in spite of the fact that they are only 100 kilometers apart one from the other Thank you. We have time for believe me two questions from the participants Not all at once Yes Thank you very much Many of the cases will consider over the coming two days involve Human rights violations committed outside the European Union by companies that operate from the European Union Hence my question in via your view to what extent and under what conditions Does the EU Charter impose obligations on the EU or the member states to protect the people over there? So in Nigeria Bangladesh and so on to protect these people and their human rights So it's basically a question about the extraterritorial effect of the EU Charter. Thank you very much That's a time bomb The issue will come up The issue as far as I know has never been addressed In this in the scope of application of the Charter up to now It's quite clear that when it comes to the Territorial competence of the member states and of the European Union courts because as you know national courts are also EU courts It's quite clear that the jurisdiction applies to Everybody irrespective of their nationality because only a limited number of fundamental rights in the Charter are Specifically attributed to the EU citizens only a limited number the vast majority of the fundamental rights that are enshrined in the Charter are Applied to all persons all person which is a Something that has not been fully explored up to now But it will be in the sense that you don't need to be an European citizen You don't need to be an European corporation to claim for the fundamental rights that are enshrined in the Charter When we you are acting in the European Union and under the jurisdiction of the national member states and therefore the European courts Okay when it comes to extraterritorial competence the approach that has been followed up to now is To make the Union party in different international legal instruments For instance and the European Convention against organized crime Including smuggling of people and smuggling of weapons It's a UN Convention The member states are party to the Convention But the Union is also party to the Convention because some parts of the Convention Falls under the competence of the European Union are no longer in the member states They are in the competence of the European Union and for instance, I was co as a member of the European Commission. I had to sign partially the UN Convention against the organized crime because some of the competencies were represented by the Commission But the other Competencies were the exclusives of the member states confusing. Yes, definitely It's confusing, but that's the kind of share of competencies internally Which by the photo frost the jurisprudence of the European Court of Justice says that all competencies that in the legal internal order of the Union Are transferred to the European level can only be exercised at the European level All the other competencies that are not transferred to the European Union Are Remaining the member states. So if you have a comprehensive legal instrument That has competency European competencies and national competencies Everybody needs to be there including of course the European Union. The same applies to the 8th Convention the the participation of the Union in the 8th Convention to a large extent a number of legal instruments on civil international cooperation are Now Miniaturized let's go like this. So it's the community who needs to be there now the Union that needs to be there and therefore There is the huge question of being the Union being party of the 8th Conventions Which is a complex issue. There are other international conventions on the same in the same relations When it comes to human rights as fun as I know Well, I was defeated in the European Court of Justice when I was in the Commission On that specific point. So you you I'm suspicious to speak about that, but let me just very briefly tell you what happened It's an interesting case because the UN Security Council adopted the sanctions the list of terrorist organizations and people suspected of terrorism whose assets should be frozen, okay and And that if in my interpretation that creates an international legal obligation for the member states and At EU level it was decided that The implementation of those lists should be done by the European Union directly and So the lists were adopted by the Council of Ministers With the names of the people Who were suspected of terrorist activities and those assets should be frozen and There was a complaint against the regulation the EU regulation in the European Court of Justice By two Swedish citizens who had their assets frozen Because they consider that there was no sufficient judicial review on The decision taken to froze the those assets and then we had a very interesting case where You have an international obligation Created by UN Security Council you have the implementation at European level and You have a complaint that you don't have sufficient judicial review at EU level To guarantee the conformity of the decision taken by the EU Council And the court considered that the complaints were right There was no sufficient review at EU level because no court was Entitled to review the decision of freezing those assets, but the problem that arises from that is That we were just accomplishing an international obligation so if we default in the implementation of the UN Security Council resolution the member states or even the union itself one that does know Becomes legally responsible for not implementing a Resolution of the UN Security Council and so I Concluded by giving you back the question and which is the court that solves this this problem We can have time for one more quick one more question. Thank you. Philip Gregor Frank bolt I would like to ask to what extent made the EU Charter Justify the competence of the EU To ensure the enforcement of the rights enshrined in the in the EU Charter in The absence of secondary legislation okay, so we've got the EU Charter and one may argue that The Rhine's the rights enshrined in this Charter cannot be properly enforced due to various barriers and The question is whether this may justify the competence of the European Union to come with measures with legislation to improve the enforcement of these of these of these rights Well, it was a very conceptually speaking it was a very interesting debate because in theoretical terms the Charter of fundamental rights of the European Union should have a set of fundamental of fundamental rights that already exist and Are implemented at the EU level? so The basic idea in 2000 when we drafted the Charter Was what the French say adroit constant? So we should not innovate We should just stick to the existing level of fundamental rights So the question that you raise about enforcement Well, the the enforcement capacity is there if the fundamental rights were confined to the existing legislation The enforcement should be developed normally through secondary legislation The debate was a conceptual one saying well Can we have a bill of rights? That is silent about death penalty for instance about death penalty Can we have a bill of rights in the year 2000? That does not state clearly what is the common understanding of all new member states of the illegitimacy of death penalty and The answer was no Nobody would understand so there is an article that forbids death penalty But you can ask me well is anyone at EU level thinking about Applying death penalty to the violation of EU law of course not So the compromise solution in the Charter was to include a set of fundamental rights That go beyond the scope of the EU legislation But to a certain extent they represent a common culture on fundamental rights That could not be omitted in a bill of rights. It's the case of death penalty It's the case also a family law I mean there is no single union concept of family There is no legislation of European Union saying which is a family. What is a family who composes a family? How can you compose a family? But in fact in fact nobody could understand that there was no article on family on the concept of family Then you have other border cases Which are more complex like for instance the article which is a very interesting one on genetics genetic manipulation genetic research We tried to incorporate in the Charter What was enshrined in the Council of Europe Convention of Oviedo, okay? But we knew we knew that not all member states Not all member states were party to the Convention of Oviedo so There was a compromise there is an article on that Because we considered that in the future Most likely the union will be confronted with questions dealing with Genetic manipulation and genetic research and it is already dealing with that the stem cells debate What's the cells you can froze? How can you reuse the cells the steam steam cells as I see The cell is sushi as the French say steam stem cells stem cells stem cells How can you use them? How can you for forbid the the commerce the trade with of stem cells? All those elements are already there today in the debate in the European debate There were no rules about that at you level at all and we created a specific article on that in the chart of fundamental rights So I don't have a crystal clear answer to you in the sense that it was a compromise solution articles that could not be omitted because they are party of our core cultural understanding of fundamental rights Articles that are already there because there is already secondary legislation and so they should be codified and some potential new areas Where the existence of some fundamental rights in the charter is important as a guideline for the Legislative development like in data privacy for instance data protection like genetics manipulation So it's it's it's a mix. It's a mix but I do believe that the institutions are in charge of implementing the Charter and there is a dimension of the charter and I conclude with this that I believe it is important We Europeans are very much criticized by other by countries elsewhere in the world That we have the idea that we are we teach lessons on fundamental rights. We are the the professors on fundamental rights Well We have some scenes at home. We know that But even more than that, I believe that in our foreign policy Having a chart of fundamental rights is an important instrument Because it defines our our European profile in the global fundamental rights debate human rights debate whether it is in the UN whether it is in with other regional forum and We must be prepared to be judged by the others About the way we ourselves implement our own fundamental rights if if we put our money our lips Our money where are you our lips if we are effective in respecting our own principles Thank you. I think we have a sort of There's a quick comment or question We have a microphone Thank you for our presentation was extremely stimulating actually don't you think that apart from the conflict that we are We are seeing now between the two courts in a way Who is the most important court whether the Strasbourg or the Luxembourg court, but this is just just a Superficial approach actually don't you see there is a sort of new Debate like the debate that occurred in the past and you refer to it between the constitutional courts of some countries and the court in Luxembourg at the time the states Alleged they had more protection of rights than the community and Possibly it was the case at that time now The same debate goes between the council of Europe and you you But isn't the fact that the European Convention is old-fashioned and Does not protect the rights enough. I mean if we think that they Consider that the European Convention does not have yet a civil right to equality It's in a protocol, but it's not in force for the time being which is a basic Principle in the European Union and not only in European Union, but in the UN Bill of Rights so it's it's a bit how can I say out of time to think of Submitting the you in a way to the council of Europe Which has standards that are not at the level of the European Union Absolutely the I fully agree with you. I don't see too much added value in the accession If you take into consideration the fact that that is already the charter of fundamental rights So if you ask me Is the protection of fundamental rights in the opinion you're going to be loser Because you don't exceed to the European Convention of Human Rights my answer is no no definitely not because even the examples I could give you of Articles fundamental rights where do not coincide Usually Or I would say in all cases. I know The content of the article in the charter is broader than the content of it So the in the European Commission. It's always a more limited scope a Less protective scope than the one that is in the charter of fundamental rights So you are absolutely right from the substantial point of view The chart is much more updated The chart that tried to be with with the problems and the imperfections of course but tried to be a Synthesis of fundamental rights for the 21st century at least in the beginning of the 21st century and It's much more developed than a Charter that was drafted in the 60s in the 50s late 50s in the 60s and definitely even with the protocols is outdated The point is not Cannot just be seen from the perspective of the protection of fundamental rights. It's also a political point Some people in the European Union some member states considered That we should not create allow an enlarging gap between the countries of the European Union and the countries of the Council of Europe and when in what concerns fundamental rights and so keeping the Union linked Would be an incentive for the Council of Europe also to To move ahead Well, it's a limited scope. I do The impact will be a limited one But you know in the European Union you need to reconcile 28 different member states and If the price to pay to have a fully fledged bill of rights is to keep a link with the European Convention of Human Rights It's cheap Thank you again, thank you for the questions also as you can see we're working within a European context Which is complex legal political economic Social and lots of lots of considerations in this wide context and within that what happens How do we protect our multinational companies and then also how do we protect and promote the rights of human rights? Not just for European citizens, but as you mentioned rights that in theory are fundamental for all How do we provide access to justice when our own companies may violate those rights here and abroad? For the rest of the day today, we'll be looking at specific examples of when this happens and how we consider this And and what proposed solutions and challenges to consider