The essay - examining some of the most remarkable effects that Lisbon Treaty produces (and will produce) in the process of progressive recognition and community guardianship of fundamental rights - stresses those dispositions of the new European Treaty concerning two themes: the juridical value of the Charter of Fundamental Rights of the European Union and the relationships between EU and ECHR. Under this aspects, actually it would seem that there has been a decisive turning-point in the process of community political integration, even if some important knots remain still unsolved. The new art.6 TEU attributes the same juridical value of the treaties to the Charter oh Nice. This clearly involves remarkable positive consequences in subject of community protection of human rights; so for instance: the Charter becomes a real parameter of judgment of the community judge, and moreover there is a real widening of the guardianship (recognition, together, of civil and political rights and economic and social rights).Equally however - beyond the impasse that the existence of a Charter of the rights (legally binding) will determine on the role assumed by the Court of justice in the protection iure pretorio of the subjective fundamental juridical situations - there are, in the new Treaty, some shadow areas (for instance, the absence, among the dispositions on the founding Treaties, of a textual reference to the Charter of the rights EU; the right of opting out of States members) that would seems to hide the fear (from States) to recognize apertis verbis the protection of fundamental rights as qualifying element of the ontological essence of the same Union. All of this, as demonstration of the difficulty to reach a complete community integration. And besides, the circumstance for which the Charter of Nice constitutes, nowadays,community right in force sets complexes interpretative problems in the hypothesis of antinomy between national italian law and a disposition of the Charter (with direct effect) having the same content of a disposition of the ECHR. Always with reference to the new art.6 TEU (which sets the bases for the definitive adhesion of the Union to the ECHR), the author - analyzing the relationships between the Court of justice and the Court of Strasbourg - underlines as the conditions subsist for giving, to the two European Courts, the chance to act in synergy; so that to raise the level of protection cross-area of the fundamental rights inside an integrated and multi-level system of guardianship. At the same time, however, it must be noticed that - existing the difficulty to harmonize, between them, the decisions (sometimes conflicting) of the European judges (in consideration, also, of the absence, in subject of fundamental rights, of competences precisely circumscribed), and to coordinate them with the action of the national constitutional Courts - a real collaboration between the two European Courts is not an easy goal to reach. Anyway, it must be said however that, in subiecta materia, the perspective of the "difference" could constitute a "positive aspect". The dialectical comparison between different jurisprudential orientations, in fact, could allow to trace with greater precision the limits and the rules, with the purpose to assure a more real guardianship of the fundamental rights.

Pensabene Lionti, T. (2010). El Tratado de Lisboa:¿ un cambio sustancial en el proceso de integración europea en materia de derechos fundamentales?. REVISTA EUROPEA DE DERECHOS FUNDAMENTALES, Revista Europea de Derechos Fundamentales n.16/2° - 2010(n.16/2° 2010), 207-258.

El Tratado de Lisboa:¿ un cambio sustancial en el proceso de integración europea en materia de derechos fundamentales?

PENSABENE LIONTI, Tommaso
2010-01-01

Abstract

The essay - examining some of the most remarkable effects that Lisbon Treaty produces (and will produce) in the process of progressive recognition and community guardianship of fundamental rights - stresses those dispositions of the new European Treaty concerning two themes: the juridical value of the Charter of Fundamental Rights of the European Union and the relationships between EU and ECHR. Under this aspects, actually it would seem that there has been a decisive turning-point in the process of community political integration, even if some important knots remain still unsolved. The new art.6 TEU attributes the same juridical value of the treaties to the Charter oh Nice. This clearly involves remarkable positive consequences in subject of community protection of human rights; so for instance: the Charter becomes a real parameter of judgment of the community judge, and moreover there is a real widening of the guardianship (recognition, together, of civil and political rights and economic and social rights).Equally however - beyond the impasse that the existence of a Charter of the rights (legally binding) will determine on the role assumed by the Court of justice in the protection iure pretorio of the subjective fundamental juridical situations - there are, in the new Treaty, some shadow areas (for instance, the absence, among the dispositions on the founding Treaties, of a textual reference to the Charter of the rights EU; the right of opting out of States members) that would seems to hide the fear (from States) to recognize apertis verbis the protection of fundamental rights as qualifying element of the ontological essence of the same Union. All of this, as demonstration of the difficulty to reach a complete community integration. And besides, the circumstance for which the Charter of Nice constitutes, nowadays,community right in force sets complexes interpretative problems in the hypothesis of antinomy between national italian law and a disposition of the Charter (with direct effect) having the same content of a disposition of the ECHR. Always with reference to the new art.6 TEU (which sets the bases for the definitive adhesion of the Union to the ECHR), the author - analyzing the relationships between the Court of justice and the Court of Strasbourg - underlines as the conditions subsist for giving, to the two European Courts, the chance to act in synergy; so that to raise the level of protection cross-area of the fundamental rights inside an integrated and multi-level system of guardianship. At the same time, however, it must be noticed that - existing the difficulty to harmonize, between them, the decisions (sometimes conflicting) of the European judges (in consideration, also, of the absence, in subject of fundamental rights, of competences precisely circumscribed), and to coordinate them with the action of the national constitutional Courts - a real collaboration between the two European Courts is not an easy goal to reach. Anyway, it must be said however that, in subiecta materia, the perspective of the "difference" could constitute a "positive aspect". The dialectical comparison between different jurisprudential orientations, in fact, could allow to trace with greater precision the limits and the rules, with the purpose to assure a more real guardianship of the fundamental rights.
Settore IUS/08 - Diritto Costituzionale
Pensabene Lionti, T. (2010). El Tratado de Lisboa:¿ un cambio sustancial en el proceso de integración europea en materia de derechos fundamentales?. REVISTA EUROPEA DE DERECHOS FUNDAMENTALES, Revista Europea de Derechos Fundamentales n.16/2° - 2010(n.16/2° 2010), 207-258.
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Utilizza questo identificativo per citare o creare un link a questo documento: https://hdl.handle.net/10447/55412
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