European Region of the International Lesbian, Gay, Bisexual, Trans and Intersex Association

New Constitution for the EU

A new Constitution: new beginning or prolongation of the Odyssey?

The meeting of the European Council on the 17-18 June 2004 marks an important step in the integration of the EU. The Irish Presidency managed to get the EU member states to agree on a Constitution for the EU with relatively few changes from the draft presented. Many EU citizens might see this as another step towards the concentration of powers in Brussels. However, it is important to realise that this text offers a potential greater protection of human rights in the EU. The preamble of the Constitution states that equality and human rights are central values of the EU. The Constitution includes the Charter of Fundamental Rights of the Union, which will be judiciable in the European Court of Justice (ECJ).

It presents a substantial change in relation to the rights of lesbian, gay, bisexual and transgender (LGBT) people in the EU since it enshrines protection against discrimination of the grounds of sexual orientation and sex (which includes gender according to the case law of the ECJ) (article II-21). It also recognises, amongst others, the rights to respect for private and family life (Article II-7) and the right to marry and found a family (Article II-9).

Although ILGA-Europe welcomes the agreement to sign the EU Constitution by the EU member states, it also knows that this not the end but rather the beginning of the Odyssey for a fully effective Constitution. The Constitution will enter into force only in 2007 and needs to be ratified by the 25 member states. Such ratification might prove difficult particularly in countries –like the UK- which will hold a referendum in an anti-EU climate.

Riccardo Gottardi, co-chair of ILGA-Europe said: “ILGA-Europe was a little surprised but pleased with the outcome of this Council. The text offers more guarantees for the protection of human rights and equality for LGBT people. It is a first important step to build a Union closer to the people, that guarantees the basic rights of every citizens, no matter what their sexual orientation or religion is.”

Christine Loudes

For more information contact:

The European Region of the International Lesbian and Gay Association 
avenue de Tervueren 94 - 1040 Brussels - Belgium - fax: 02 732 51 64 - www.ilga-europe.org

ILGA-Europe is a European NGO for national and local lesbian, gay, bisexual and transgender (LGBT) groups. ILGA-Europe works for human rights and against sexual orientation and gender identity discrimination at European level.

Background information

Working documents and agreed texts are available on the European Council website at http://europa.eu.int/comm/councils/bx20040617/index_en.htm.

Change from the draft presented by the Convention introduces the national veto in some key areas of EU competency: including tax, foreign and security policy and in any future review of the constitution.

The European Court of Justice in case C13/94 P. v. S and Cornwall County Council. had to statute whether Council Directive 76/207/EEC of 9 February 1976 on the implementation of the principle of equal treatment for men and women as regards access to employment, vocational training and promotion, and working conditions applied to protect transgender people against discrimination. It ruled that “the scope of the Directive cannot be confined simply to discrimination based on the fact that a person is of one sex or the other sex. In view of its purpose and the nature of the rights which it seeks to safeguard, the scope of the Directive is also to apply to discrimination arising, as in this case, from the gender reassignment of the person concerned.” (paragraph 20)