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The Fundamental Rights Agency: Towards an Active Fundamental Rights Policy of the Union

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De Schutter, Olivier [UCL] Van Goethem, V. []

Discussing the relationship between the EU Network of Independent Expertson Fundamental Rights and the forthcoming Fundamental Rights Agency, the Working Document of 25 March 2004 on the proposal for a Council Regulation on the European Monitoring Centre on Racism and Xenophobia (Recast version) prepared with the European Parliament’s Committee on Citizens’ Freedomsand Rights, Justice and Home Affairs (rapp. J. Swiebel) concluded: “Itisimpor tanttostr esstha t theanal ytical, evaluative and advisory functions of the Experts’ Network continue to befulfilled in an independent way. This should not prevent close links between the Human Rights Agency and the Experts’ Network being established.” This paper is an up dated version of the presentations given by the authors at the ERA conference “European Fundamental Rights Agency”, 12–13 June in Trier. The paper was finalised just before consensus was reached by the JHA Council at its Brussels meeting of 4 and 5 December 2006 that not with standing the “pending… examination of the Eur opean Parliament’sopinion” the Agency should beest a blished and functioning as from early 2007 on (Council press release 15801/06, 2768th Council meeting, p. 10).

Document type Article de périodique (Journal article) – Article de recherche
Access type Accès libre
Publication date 2006
Language Anglais
Journal information "ERA Forum" - Vol. 7, no. 4, p. 587-606 (2006)
Publisher Springer (Berlin)
issn 1612-3093
e-issn 1863-9038
Publication status Publié
Affiliation UCL - DRT/INT - Département de droit international Charles De Visscher
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  1. The expression “Human Rights Agency” instead of “Fundamental Rights Agency” has also been used. The European Council has referred twice to the “Human Rights Agency”, once in conclusions from the Brussels European Council of 13 December 2003, and in the Hague Programme on the strengthening of Freedom, Security and Justice in the Union annexed to the conclusions of the European Council of 4–5 November 2004.
  2. COM(2004) 693 final; A proposal for the establishment of amonitoring centre for human rights within the European Union, which could serve to improve the coordination of the fundamental rights policies pursued by the Member States, had already been made earlier, in particular, in a report prepared for the Comité des Sages responsible for draftingLeading by Example: A Human Rights Agenda for the European Union for the Year 2000: see P. Alston and J.H.H. Weiler, “An ‘Ever Closer Union’ in Need of a Human Rights Policy: The European Union and Human Rights”, in P. Alston, with M. Bustelo and J. Heenan (eds.), The European Union and Human Rights, Oxford, Oxford University Press, 1999, p. 3.
  3. All the contributions to this consultation are available on the following website: http://ec.europa.eu/justice_home/news/consulting_public/fundamental_rights_agency/news_contribution_fund_right_agency_en.htm Most of the contributions addressed the issues of the independency of the future Agency, its geographical scope, the quality of its expertise, its role under Article 7 EU and its complementarity with the already existing monitoring mechanisms in these fields, in particular with the Council of Europe and with the national human rights institutions. In additiona, acting upon the request of the European Commission, the European Policy Evaluation Consortium (EPEC) prepared two reports analysing the various responses to the public consultation and presenting the results of the discussions that took place during the public hearing: EPEC,Preparatory Study for Impact Assessment and Ex-Ante Evaluation of Fundamental Rights Agency Analysis of Responses to Public Consultation, 19 J anuary 2005 and EPEC,Preparatory Study for Impact Assessment and Ex-ante Evaluation of Fundamental Rights Agency -Public Hearing Report, February 2005. These reports are available on the following websites: http://ec.europa.eu/justice_home/news/consulting_public/ fundamental_rights_agency/analysis_written_contributions_en.pdf; http://ec.europa.eu/justice_home/news/consulting_public/fundamental_rights_agency/report_public_hearing_en.pdf.
  4. Proposal for a Council Regulation establishing a European Union Agency for Fundamental Rights and Proposal for a Council Decision empo wering the European Union Agency for Fundamental Rights to pursue its activities in areas referred to in Title VI of the Treaty on European Union (COM(2005) 280 final of 30.6.2005).
  5. SEC (2005) 849 of 30.6.2005, atp. 8.
  6. 2000/2231(INI).
  7. For general information on the Network, see http://ec.europa.eu/justice_home/cfr_cdf/members_en.htm.
  8. The provisions of the Charter are systematically interpreted by the Network in the light of the international and European human rights law and its related jurisprudence. See alsoEU Network of Independent Experts in Fundamental Rights, Commentary of the Charter of Fundamental Rights of the European Union, Office for the Official Publications of the European Union(to be published in 2007, but already available, under the heading ‘Commentary of the Charter’ on the following website: http://ec.europa.eu/justice_home/cfr_cdf/index_en.htm).
  9. Communication from the Commission to the Council and the European Parliament establishing for 2007–2013 a framework programme on Fundamental Rights and Justice, COM (2005)122 final of 6.4.2005.
  10. Art. 4, a), of the Proposal.
  11. Art. 3, b), of the Proposal. While the Council has to decide on this proposal of the Commission, it should be noted that the Commission may decide, without having to refer this to the Council, to establish groups of experts with an advisory mandate. In March 2003 for example, the Commission has set up a consultative group called “Experts Group on Trafficking in Human Beings” (Commission Decision 2003/209/EC of 25 March 2003 setting up a consultative group, to be known as the “Experts Group on Trafficking in Human Beings”, OJ L 79 of 26.3.2003, p. 25), consisting of twenty individuals specially qualified in this field, proposed by the governments of the European Union Member States, as well as by international, inter-governmental and non-governmental organisations active in preventing and combating trafficking in human beings. The mission of this Group is to issue opinions or reports to the Commission at the latter’s request or on its own initiative, taking into due consideration the recommendations set out in the Brussels Declaration that was adopted following the “European Conference on Preventing and Combating Trafficking in Human Beings-Global Challenge for the 21st Century”, which was held from 18 to 20 September 2002. One of those recommendations was precisely the setting up of such an experts group. Another example is the “European Group on Ethics in Science and New Technologies”, created by a decision of 16 December 1997, which is an independent, pluralist and multidisciplinary body (consisting of fifteen members appointed by the Commission for their expertise in this field) that advises the European Commission on ethical aspects of science and new technologies in connection with the preparation and implementation of Community legislation or policies.
  12. As rightly underlined in the Explanatory statement of the Report of the European Parliament of 11 May 2005, ‘in order to understand what the protection of fundamental rights within the European Union involves today, it is necessary to first decide whether a future agency dealing with the issue should be regarded as an aim or a tool in the process’ (Report of the European Parliament Committee on Civil Liberties, Justice and Home Affairs, rapp.Kinga Gál. of 11 May 2005 on promotion and protection of fundamental rights: the role of national and European institutions, including the Fundamental Rights Agency, 2005/2007 (INI), p. 12).
  13. European Parliament resolution of 26 May 2005 on the promotion and protection of fundamental rights: the role of national and European institutions, including the Fundamental Rights Agency (2005/2007(INI)), P6_TA(2005)0208.
  14. M. Scheinin, The Relationship between the Agency and the Network of Independent Experts, in Ph. Alston and O. De Schutter, Monitoring Fundamental Rights in the EU-The Contribution of the Fundamental Rights Agency, Hart Publishers, Oxford, 2005, pp. 73–90.
  15. The national reports are accessible online at www.cpdr.ucl.ac.be/cridho.
  16. For the years 2002 and 2005, the reports on the activities of the European Union were merged with the ‘Synthesis Report’ containing the conclusions and recommendations of the Network. However, the reports on the activities of the European Union for the years 2003 and 2004 were published separately. See: http://ec.europa.eu/justice_home/cfr_cdf/members_en.htm.
  17. Memorandum of M. Vitorino and the Presidency:Application of the Charter of Fundamental Rights, SEC (2001) 380/3.
  18. Communication of 15 June 2005 from the Commission,Compliance with the Charter of Fundamental Rights in Commission legislative proposals. Methodology for systematic and rigorous monitoring, COM (2005) 172 final of 27.4.2005.
  19. SEC (2005) 791.
  20. See Communication of the Commission 5J une 2005 on Impact Assessment, COM(2002)276.
  21. Indeed, a specific report was commissioned by the European Commission (DG Justice, Freedom and Security) to EPEC (European Policy Evaluation Consortium): see EPEC,The Consideration of Fundamental Rights in Impact Assessment. Final Report, December 2004, 61 pages.
  22. COM (2003)606 final of 15.10.2003.
  23. For the full list of the opinions of the Network, see: http://ec.europa.eu/justice_home/cfr_cdf/list_opinions_en.htm.
  24. Article 6(1) of the Proposal.
  25. According to this report, Article 6(1) of the Council Regulation establishing the Agency shall provide that“in order to ensure the provision of objective, reliable and comparable information, the Agency shall, drawing on the expertise of a variety of organisations and bodies in each Member State and taking account of the need to involve national authorities in the collection of data, (a) set up and co-ordinate information networks, such as the network of independent experts on fundamental rights, and use existing networks (…)” (Report of the European Parliament’s Committee on Civil Liberties, Justice and Home Affairs, rapp.: Kinga Gál) of 25 September 2006 on the proposal for a Council regulation establishing a European Union Agency for Fundamental RightsCOM(2005)0280 -C6 0288/2005 -005/0124(CNS)). The interest of maintaining such a monitoring mechanism has also been highlighted by several non-governmental organisations (see the contributions to the public hearing organised by the European Commission on the Fundamental Rights Agency,
  26. Impact Assessment Report of 30 June 2005, SEC(2005)849 of 30.06.2005.
  27. A number of academic commentators have noted that the notion of ‘scope of application of Union law’ has borders difficult to define, which in certain cases may make it difficult to identify whether or not the European Court of Justice would consider it is competent to ensure the respect of fundamental rights included among the principles of law, where measures adopted by the Member States are concerned. On the precise delineation of the situations in which the Member States are bound by fundamental rights as general principles of EC or EU law, see esp.J. Weiler, The European Court at a Crossroads: Community Human Rights and Member State Action, in: Du droit international au droit de l’intégration. Liber amicorum Pierre Pescatore, Baden-Baden, Nomos Verlagsgesellschaft, 1987, p. 821;J. Temple Lang, The Sphere in Which Member States are Obliged to Comply with the General Principles of Law and Community Fundamental Rights Principles, L.I.E.I., 1991/2, p. 23;J. Weiler, Fundamental Rights and Fundamental Boundaries: On Standards and Values in the Protection of Human Rights, in: N. Neuwahl et A. Rosas, The European Union and Human Rights, Martinus Nijhoff Publ., Kluwer, The Hague-Boston-London, 1995, p. 56; andK. Lenaerts, Le respect des droits fondamentaux en tant que principe constitutionnel de l’Union européenne, Mélanges en hommage á Michel Waelbroeck, Bruxelles, Bruylant, 1999, p. 423.
  28. Article 7(2) to (4) EU and, for the implementation of these sanctions in the framework of the EC Treaty, Article 309 EC. This improvement of Article 7 EU was proposed by theComité des Sages which reported in September 2000 to the European Council on the human rights situation in Austria and the means by which the EU could respond to possible human rights problems in an EU Member State (the report was submitted by Martti Ahtisaari, Jochen Frowein and Marcelino Oreja, adopted in Paris on 8 September 2000: See http://www.virtual-institute.de/en/Bericht-EU/report.pdf).
  29. See the Impact Assessment Report appended to the Proposal for a Council Regulation establishing a European Union Agency for Fundamental Rights of 30 June 2005 (SEC(2005) 849 of 30.06.2005), pp. 8–9.
  30. See the statement by Ms de Boer-Buquicchio, Deputy Secretary General of the Council of Europe, made at the Public Hearing on the Agency on Fundamental Rights of 25 January 2005, available on the following website: http://europa.eu.int/comm/justice_home/news/consulting_public/fundamental_rights_agency/index_en.htm. See also, in particular, Parliamentary Assembly of the Council of Europe (PACE) Resolution 1427(2005) adoptedon 18 March 2005 (rapp. McNamara), and the answer which the Committee of Ministers of the Council of Europe provided on 13 October 2005 to Recommendation 1696 (2005) of the Parliamentary Assembly (CM/AS(2005)Rec1696 final, adopted at the 939th meeting of the Ministers’ Deputies). A Memorandum was provided by the Secretariat of the Council of Europe to Vice-president F. Frattini on 8 September 2005, summarising the need to avoid an overlap between the mechanisms of the Council of Europe and those of the Union.
  31. Doc. PE 339.635, at p. 4.
  32. Communication of the Commission to the Parliament and the Council, ‘Article 7 of the EU: Respect for and promotion of the Values on which the Union is based’, COM(2003)606 of 15.10.2003. In this Communication the Commission noted that, by its reports, the Network of Independent Experts in Fundamental Rights may help to ‘detect fundamental rights anomalies or situations where there might be breaches or the risk of breaches of these rights falling within Article 7 of the Union Treaty’; and that it may ‘help in finding solutions to remedy confirmed anomalies or to prevent potential breaches’.
  33. Respect for and promotion of the Values on which the Union is based, EP doc. P5_TA(2004)0309.
  34. See in this regard the position paper adopted by the EU Network of independent experts on fundamental rights on the Fundamental Rights Agency of the Union, 16 December 2004.
  35. It is for instance on the basis of Article 13 EC that the Council has adopted Directive 2000/43/EC of 29 June 2000 implementing the principle of equal treatment between persons irrespective of racial or ethnic origin (OJ L 180 of 19.7.2000, p. 22) and Directive 2000/78/EC of 27 November 2000 establishing a general frame work for equal treatment in employment and occupation (OJ L 303 of 2.12.2000, p. 16). It is on the basis of Article 18 EC that the European Parliament and the Council adopted Directive 2004/38/EC of 29 April 2004 on the right of citizens of the Union and their family members to move and reside freely within the territory of the Member States (Dir ective 2004/38/EC of the European Parliament and of the Council of 29 April 2004 on the right of citizens of the Union and their family members to move and reside freely within the territory of the Member States amending Regulation (EEC) No 1612/68 and repealing Directives 64/221/EEC, 68/360/EEC, 72/194/EEC, 73/148/EEC, 75/34/EEC, 75/35/EEC, 90/364/EEC, 90/365/EEC and 93/96/EEC, OJ L 158 of 30.4.2004, p. 77). It is on the basis of Articles 63, al. 1 and 2, EC, and 64(2) EC and Article 63, al. 3 and 4, EC that the Council adopted Directive 2003/86/EC of 22 September 2003 on the right to family reunification (OJ L 251 of 3/10/2003, p. 12) and Directive 2003/9/EC of 27 January 2003 laying down minimum standards for the reception of asylum-seekers(OJ L 31 of 6.2.2003, p. 18). It is on the basis of Article 31 EU that the European Commission proposed the adoption of a Council Framework Decision on certain procedural rights in criminal proceedings throughout the European Union (COM(2004) 328 final of 28.4.2004).
  36. On this issue seeM. Scheinin, The relationship between the Agency and the Network of independent experts, in: Ph. Alston and O. De Schutter (eds.), Monitoring Fundamental Rights in the EU. The Contribution of the Fundamental Rights Agency, cited above. The approach adopted by Martin Scheinin in this chapter is based on a conceptualisation of the notion of monitoring in respect of fundamental rights. Although the notion of monitoring is occasionally also used in respect of the mandate of the future Agency, the author emphasises “the legal-normative nature of true monitoring as something quite distinct from the planned profile of the Agency which relates to the collection and analysis of data for the purpose of providing input for policy-making”.
  37. As underlined by Martin Scheinin, “the rationale for the Network is quite different from the one planned for the Agency. The mandate of the Network is typical for a human rightsmonitoring body, adjusted to the role of the EU Charter of Fundamental Rights as the applicable set of standards. (…)Such a monitoring function is primarily one of legal assessment of complex information against the grid of human rights/fundamental rights norms”. (M. Scheinin, The relationship between the Agency and the Network of independent experts, in Ph. Alston and O. De Schutter (eds.), Monitoring Fundamental Rights in the EU. The Contribution of the Fundamental Rights Agency, citedabove, atp. 84).
  38. Communication from the Commission to the Council and the European Parliament establishing for 2007–2013 a framework programme on Fundamental Rights and Justice, COM (2005)122 final of 6.4.2005.
  39. European Parliament resolution of 26 May 2005 on the promotion and protection of fundamental rights: the role of national and European institutions, including the Fundamental Rights Agency (2005/2007(INI)), P6_TA(2005)0208. See also: Report of the European Parliament Committee on Civil Liberties, Justice and Home Affairs, rapp.Kinga Gál) of 11 May 2005 on the promotion and protection of fundamental rights: the role of national and European institutions, including the Fundamental Rights Agency (2005/2007 (INI)).
  40. However the role of the EU Network of Independent Experts in Fundamental Rights in this field has been highlighted by the European Commission, notably in its Communication to the Council and the European Parliament regarding the Evaluation of EU Policies on Freedom, Security and Justice (COM(2006) 332 final of 28.6.2006), where the Commission identifies the existing mechanisms for evaluating respect of fundamental rights with regard to EU policies on freedom, security and justice (p. 97).
  41. See A. Weyembergh and S. de Biolley (eds.), Comment évaluer le droit pénal européen?, Institut d’études européennes de l’ULB, Bruxelles, 2006; and the Communication to the Council and the European Parliament regarding the Evaluation of EU Policies on Freedom, Security and Justice (COM(2006)332 final of 28.6.2006).
  42. Proposal for a Council Framework Decision on certain procedural rights in criminal proceedings throughout the European Union, COM(2004)328 final of 28.4.2004.
  43. SEC(2004) 491 of 28.4.2004, p. 22.
  44. See para. 83 and 84 of the Explanatory Memorandum, Proposal for a Council Framework Decision on certain procedural rights in criminal proceedings throughout the European Union, COM(2004) 328 final of 28.4.2004.
  45. On this issue, see:O. De Schutter andV. Van Goethem, The added value of a systematic and regular monitoring of the situation of fundamental rights in the Member States for the evaluation of the implementation of Union laws and policies, in: A. Weyembergh et S. De Biolley, Comment évaluer le droit pénal européen?, cited above, at pp. 125–146.
  46. Doc. PE 339.635, at p. 6.
Bibliographic reference De Schutter, Olivier ; Van Goethem, V.. The Fundamental Rights Agency: Towards an Active Fundamental Rights Policy of the Union. In: ERA Forum, Vol. 7, no. 4, p. 587-606 (2006)
Permanent URL http://hdl.handle.net/2078.1/95547