RICERCA ITALIANA     

The Draft Constitutional Treaty, the Eu Charter of Fundamental Rights and the privat autonomy.

Università degli Studi di Roma "La Sapienza"

Abstract

The on going research aims to analyse the the eruopean constitutional process that reached the approval of the Draft of a "Treaty that establishes a Constitution for Europe". The project will focus not only on the substance of the Draft Treaty as a fundemental constitutional text of the Union, but also on its effects for the protection of some principles and specific fundamental rights. The first stage of the work, developed in the first year, will supply the theoretical-constitutional frame of reference, also thriugh the organization of the law, bibliographical, e cases' material, with special attention to the connections with other subjects as publi and privat law, economics and economic geography in the context of the european "multilevel governance". In the present historical stage, law reasoning can not avoid to involve also the evolution of laws and the evolution of politics that related to the EU future, in so finding a good ground for meeting other subjetcs. The Draft Constitutional Treaty, issued by the European Convention and supervised during the last IGC, from one side goes with reviewing tecniques trough most delicate parts of traditional european constitutionalism, and from the other side, for some reason,mark a brake in respect of the traditional paths of modern constitutionalism. From the point of view of the constitutional lawyer, one can see that whereas the "positive elements" of the this "constitutional tale" grow under our eyes, still very difficult seem to be the defining of the categories that can be useful in order to represent, with adequate definitions, a new reality. By consequence, the preliminary analysis will found its foundations in the selectiv estudy of the "useful" categories of the "european constitutionalism" and in the designing of the a "common european constitutionalism". A specific evidence will be given to the s.c. "Convention's method", launched by the Convention encharged to draft the EU Charter of fundamental rights and adopted again by the Convention encharged to draft the Constitutional Treaty. Therefore the research will go deeply to focus the core of the Nice Charter, as foreword of the European Constitution. Each of the reasearche's unity will focus on specific sector of the subjects ruled by the EU Charter.
The first reasearch's unity will give specisfic attention not only on the "Convention's method" and its actual novelty, but also the specific profiles of the Constitutional Treaty, as principles and values of the institutional order, as the definition of competences, as the system of the sources of law, as the revising procedures and the right of withdrawl from the Union. The second research's unity will focus the rights' protection, with special reference to the law of enterprises between national and EU law, in particular, between national constitutional provisions and and the EU charter provisions. The third research's unit will analyse issues related to the contractual autonomy, between national and EU law. The fourth research's unit will be involved on the information right according to art.11 of the EU Charter. The fifth, will give specific attention to environment's protection according to art. 37 of the EU Charter, that will be analized from a inter-disciplinary perspective. The results of all those researches will be discussed in inter-disciplinary seminars and will be published. <<<

Principal Investigator

Vincenzo ATRIPALDI Universita' degli Studi di ROMA

Research Objectives

In the perspective of European constitutionalism the research aims to study: the freedom of expression and information, especially in telecommunications market; the freedom to conduct a business in respect also of international trade rules; principles ad rules of business contract; protection of fundamental right, free circulation of capital, commmodities and people and registration rules; and finally, the environmental protection and the principle of sustainable development. <<<

First Results

This first phase of research should allow to professors and researchers to get used to the principal practical legal problems deriving from the European codification process. This activity, with reference to the specific themes of each unity, will be developed through the consultation of all materials gathered and the direct contact with the practice. Moreover will be analysed both all projects of European code and European Convention.
In this way will be described at first the choice of economic community policy, the notion of freedom to conduct a business and the freedom of contract referring both to the prohibition of discrimination and to good faith clause and dilatory pleas. So the bases for the second part of the research are be placed.
In this phase is already foreseen the elaboration of articles and essays onto the research's theme or similars ones, with the precise aim to fix the relative outline and the arrangements' problems.
During the research should be organized seminars, meetings and lectures.The scope of the second and last phase is to achieve a coherent and general systematic, yet not definitive settlement of the most important theoretical and practical problems involves in an European contract code.
In this phase the work of each research unitiy will be gathered together and coordinated.
The preparation of a collective work gathering all separate contributes could be a useful instrument to divulge the results of the research.
A conclusive congress could be organized for the same purpose at the end of the research. <<<

Timescale

24 months

National and international background

In the present historical phase, the juridical reflection cannot leave out of consideration the evolution of normative and institutional process involving the future of the European Union, fining at the same time a profitable occasion with other disciplines. The Constitutional Treaty Draft, written by the Convention and examined by the Intergovernmental Conference, on the one hand, crosses the most delicate themes of European constitutionalism, on the other hand, shows a discontinuity with the traditional courses of modern constitutionalism evolution. From the point of view of those who study Public Law it ought to notice that while the positive elements of this "constitutional tale" are taking form, it still seems hard to individuate and think over such categories, useful to represent with proper names the new things of today. As a matter of fact, it happens too often that the admission of the Union as a political organization is followed by a great difficulty in the quest for the categories still well-grounded after the "phénomène nouveau". Consequently the preliminary analysis will select those "useful" categories of "European Constitutionalism" and shape a "Common European Constitutionalism". Therefore the research will be focused on the present "European constitutional process" where a particular emphasis will be given to the "Conventional Method", used to write the Charter of Fundamental Rights, and took again by the Convention to write the European Constitutional Treaty. Its characteristics consist in composition, that include, in addition of the representatives of the Governments of the States, for the fist time in the history of European Constitutional Process, representatives of both national and European Parliaments; furthermore a new decision system, not based on vote procedures, but on consensus. The research will proceed with an examination of the Charter of Rights of Nice, as a previous statement of the "European Constitution", examination divided in different fields, closely examined by each unit. The first segment will focus, in addition to an evaluation of the novelty of the "Conventional Method", the Constitutional Treaty specific profiles, from principles and values, to institutional order, from competences delimitation to sources of law system, from revision procedures to the right of recess from Union.
The second will analyse the rights tutelage, with particular attention to enterprise right between National and EU Law, between national constitutions and EU Treaty. The third segment will study the contractual autonomy, again between national and European law. The fourth will focus the right of information, moving its analysis from art. 11 of the Charter. The fifth will dedicate a particular search on environment tutelage, mentioned on art. 37, with an economical analysis perspective.

In respect with the right of information the research. Aims to study the rules concerning pluralism and information in each member states, and the establishing of content of right of information, as it results regulated by european system, in order to trace its limits, through a proceeding which aims to establish the correct balance between this right and other fundamental values. The two aims of this Research, which follow a parallel line, should lead to the third one. It tends to trace the real significance of right of Information in our democratic Society, in order to sign the balance between private economic and conctractual Freedom and normative systems which create limits to the exercise of this fundamental Right.

The research aims to reconstruct the typical traits of the market's communitary statute, the borders of freedom to conduct a business and the foundamental rights (the respect of which involvs to limit privates' economic and contractual freedom). We will carry out survey having as a starting-point the art. 16 of Bill of foundamental rights that gives and protects freedom to conduct a business.
We have already said about the characteristic traits of European economic policy and about the close connection between this policy and contract rules. On this subject, looking at the market in a global perspective, is also suitable to extend the research at the soft law borders and contents of freedom to conduct a business and of freedom of contract.
The European Community pursues the fulfilment of a market economy that tends towards to a "perfect competition". In this ideal market neither istitutions, nor agents, both on the side of demand (consumers) and on the side of offer (firms), are able to affect the market greatly determining balance conditions. In this context E.C. legislation aims to reach the free movement of goods, persons, services and capital passing measures in two principals ways.
On the one hand passing rules able to outline the market's (or markets') structure. Here is included both directives that liberalize complete economic sectors (for example directives on credits or on assurance), and all concurrence rules.
On the other hand directives on private relationship that settle the correct work of negotiations, the transparency contract's conditions and the re-balance of contracting parties.
These rules develop two functions:
- at the first fix clears and precises rules that every firms have to observe, so that competition happens on the same level;
- at second defend weak part of contracts from abuses.
The art. 16 of the European Constitution that gives the freedom to conduct a business in according to the E.C. law and States Members' law becames part of this context.The person and the protection of fundamental rights such as liberty, dignity, equality are the values which have been for a long consecrated in the main international and national normative law, including that of the European Union which must permeate the general system and the content of the single institutes or private situations.
Project aims to study the registration's various rules according to two fundamental perspectives: first, the analysis of different registration rules and verification of compatibility enter internal rules, communitarian principles and fundamental rights protection <<<