Thijs ter Har EU Flags fundamental rights

October 11, 2016

Maria Maddalena Giungi examines whether the European Union Agency for Fundamental Rights, established in 2007, could trigger a new wave of policies and legislation focused on fundamental rights to counterbalance the growing power of the European Court of Justice.

The title of this article mentions the idea of balance and the idea of dominion of a specific institutional actor over other political and institutional actors. The use of the word “dominion” is certainly strong and provoking and it fits well with the idea of power as a commodity that has a proper equilibrium. Where such equilibrium collapses it becomes dominion. This is not certainly the case for the Court of Justice of the European Union (hereinafter ECJ), but we can equally say that the European Union is based on a unique multilevel and multi-centered system of power (Fabbrini & others, 2011) whose balance is continuously challenged by the different actors it is composed of (Möllers, 2013). In particular, with regard to the EU system of protection of fundamental rights, since the year 2000 the EU has adopted a series of initiatives, among which stands out the creation of an independent monitoring Agency committed to fundamental rights. The Agency was conceived as an opportunity for the relevant EU institutions to achieve a more coherent and positive system of policies and legislation committed to fundamental rights. Until then, the ECJ has been the only actor able to fill the lack of a fundamental rights discourse within the EU constitutional system. The present paper, throughout a presentation of the role and the function of the Agency, will try to answer to the question: has the Agency been an important key for counterbalancing a negative integration of fundamental rights and promoting a positive integration?

It will be argued that even though the Agency is an important player within the institutional process of implementation of human rights policies, its role is strongly limited, leaving other institutions, for instance the ECJ, being the main actor in the field of EU fundamental rights discourse.

In search of the right balance

The purpose of this article is not to offer an analytical account of how a post-national organization, the European Union, has fleshed out the classic doctrine of the separation of powers. It is sufficient to say that the European Union is based on a sophisticated balance of powers distributed at horizontal and vertical level. Here the conventional division of powers becomes something peculiar, or, in other words, “a unique system of checks and balances” (Witte, Muir, & Dawson, 2013). Indeed, in addition to the traditional tripartite form of distribution of powers (legislative, executive and judicial), the Union is supplemented with another kind of division of powers where supranational and intergovernmental actors balance each other within the single branches of government. This assumption is certainly true with regard to the executive and legislative branch of the governmental system of the European Union where its multilevel system finds its equilibrium within the balance between supranational and intergovernmental institutions. But with regard to the judiciary branch there are no internal “institutionally established counterbalancing mechanisms” (Witte et al., 2013). The lack of an intergovernmental counter-actor created the conditions for the ECJ to become a powerful court. According to Shapiro, the Court had, indeed, sufficient room to play a significant role in constitutionalizing the treaties and shaping the division of powers and individual rights jurisdiction of the European Union (Shapiro, 1998).

In particular, what is worth noting for the present inquiry is that the division of powers or the distribution of competences is also connected with human rights. Samantha Besson, in regard to this, points out Alexander Hamilton’s warning against the adoption of a federal bill of rights (Kofler, Maduro, Pistone, Besson, & Group for Research on European International Taxation, 2011, Chapter 1). Hamilton has stated in the Federalist:

I go further, and affirm that a bill of rights, in the sense and to the extent in which they are contended for, are not only unnecessary in the proposed Constitution, but would even be dangerous. They would contain various exceptions to powers not granted; and on this very account, would afford a colorable pretext to claim more than we granted. (Hamilton, Madison, Jay, & Ball, 2003)

As a matter of fact, the US Congress started to extend its competences in areas pertaining to constitutional and international human rights, and also the US Court took the opportunity to widen its judicial review power.

With regard to the European Union, the gradual incorporation of a human rights discourse within its constitutional framework began a process of development of new competences that Member States have always seen as problematic and concerning. As is well known, the EU founding treaties (ECSC and EECT adopted in 1950s) have no references to human rights or to international human rights duties. The treaties only mention the four economic freedoms and also, according to the same rationale, the principle of non-discrimination and equality between men and women.

However, the European Court of Justice started to develop fundamental rights as general principles of EU law as a response to Member States’ fear of the possible effects of the primacy of EU law (Alston, Bustelo, & Heenan, 1999, Chapter 27). De Búrca explains that the reason for such activism of the Court “is widely accepted to be its concern to maintain the autonomy and supremacy of the EC law, and to avoid claims that Community law must be subordinate to national constitutional rights” (Craig & De Búrca, 2011). To a large extent as a consequence of the German Constitutional Court’s reluctance to accept the idea that Community law might have prevailed over national constitutions, the ECJ has gradually recognized the existence of an unwritten “Community Bill of Rights” and has made itself a “creative law-maker” (Alston et al., 1999, Chapter 27). Such an activism of the Court is also easily explained given the “marked inequality of the other central organs” that at the time of the founding treaties consisted in “a very strong Council, a very weak Parliament and an uncertain relationship between the Council and the Commission” (Shapiro, 1998). In a nutshell, the Court started to define fundamental rights as a general principle of EU law (Stauder 1969). In the Internationale Heandelsgesellschaft (1970) and the Nold (1974) cases, the Court also added that in shaping the general principle of Community law it would have drawn inspiration from the common constitutional doctrines and international human rights. Then, from the late ’80s on, through leading cases such as Wachauf and Elleniki Radiophonia, the ECJ started to extend its jurisdiction to Member States’ acts performed within the sphere of Community law.

Despite the increasing jurisdiction of the ECJ, since the ’90s we have witnessed relevant institutional changes: in 1992 the Maastricht Treaty gave formal recognition to human rights as part of EU law (see Art. F of the Treaty, now Art. 6 TEU); the Amsterdam Treaty (1997) introduced important new provisions (Art. 6 was reinforced; it introduced Article 7, a procedural mechanism dealing with Member States in breach of Art. 6, and Art. 46 that empowered the ECJ to decide whether the institutions have failed to respect fundamental human rights); the Treaty of Nice reinforced Art. 7 sanctioning mechanism and the EU Charter of Fundamental Rights and Freedoms was proclaimed (2000). Whilst eminent scholars (Alston & Weiler, 1998) have recognized the value of these institutional arrangements, which have certainly triggered a new range of human rights policies and legislation, they also have agreed that such policies lack of coherence and uniformity. According to those scholars, “…too much faith is placed by the Community in the power of legal prohibitions and judicial enforcement. The gap between the political rhetoric of commitment to human rights and the unwillingness to provide the Union with the means to make the rhetoric a living reality has only served to underscore the inadequacy of the excessively judicially-focused strategy of negative integration in relation to human rights” (Alston & Weiler, 1998, p. 668).

Among other reasons, Weiler and Alston identified a partial explanation for the inconsistency of the approach of the Union to human rights in a “knowledge and monitoring gap” (Alston & Weiler, 1998). The Community has no comprehensive information base able to assist the relevant institutions in carrying out their legislative and policy work and in the allocation of administrative and budgetary resources in the field of human rights. Therefore, a model of negative integration of human rights, mainly based on prohibition of their violations, whose main actor is the ECJ, needs to be supplemented with arrangements able to trigger a proactive integration along with the consolidated ex post approach. To this purpose and in light of the above mentioned “knowledge and monitoring gap”, Weiler and Alston envisaged, among other reforms, the institution of an agency monitoring human rights extending the role and the scope of the exiting European Monitoring Centre on racism an xenophobia in Vienna. The Agency should offer systematic and reliable data on human rights to the relevant institutions and should play a strategic role as coordinator of a network of civil society organizations in the field of human rights. In 2007 the EU Fundamental Rights Agency (hereinafter FRA) was finally established. Since then, has the Agency been able to fill the “knowledge and monitoring gap” of the relevant EU institutions?

A special Agency monitoring human rights: an overview of its establishment process

In order to understand the role of the Agency as a significant tool able to trigger a much more virtuous process of human rights concern within the work of the relevant EU institutions, it must be clarified which are the components and which are the features of such a tool. In particular, we have to know how the Agency structure and functions were shaped in order to understand the efficiency and the limits of its work. To this purpose we have to go back in time and consider the institutional debate that led to its establishment.

If the idea of an Agency entrusted with monitoring functions in the field of fundamental rights has entered into the scholarship and political debate since the publication of Philip Alston’s and Joseph Weiler’s article in the late ’90s, it is worth noting that the Agency had to wait until 2007 to be established. The main obstacles to the instantiation of such a proposal were Member States (Slovak Republic, Ireland, the United Kingdom, Germany and the Netherlands) and the Council of Europe.

On one hand, the Member States saw the creation of a body committed to monitoring activities in the field of human rights within the Union as a possible threat to their constitutional rights. The Agency was seen as a supranational surveillance body able to interfere and so weaken the domestic system of protection of rights (Blom & Carraro, 2014).

“In the view of the Parliamentary Assembly of the Council of Europe, instituting a duplicate mechanism of human rights protection would jeopardize the ideal of a European system without dividing lines, especially in the area of human rights.”

On the other hand, the Council of Europe showed its concern over the creation of an institution whose mandate overlaps the activities and the tasks of institutions already existing and functional, and in particular those that duplicate its work in the human rights area. In the view of the Parliamentary Assembly of the Council of Europe, instituting a duplicate mechanism of human rights protection would jeopardize the ideal of a European system without dividing lines, especially in the area of human rights. It is particularly this area that demands, “Europe should be united by the same common standards and values” (PACE, Resolution 1427 (2005) on 18 March 2005).

On the side of the institutional debate, the European Parliament and the Commission supported the idea of a body able to offer them the information and data on human rights that they need to reinforce their work. Therefore, it is possible to identify two different approaches to the creation of the Agency: the supranational institutions (the Parliament and the Commission) positively received the idea of a new agency committed to human rights, while the inter-governmental body (Council of the European Union) expresses the concerns of the Member States.

Furthermore, it has to be taken into account that at the time of the establishment of the Agency the constitutional framework did not properly work in favour of its creation. Under the Nice treaty the Council of the European Union still had a stronger power in relation to the Parliament, even though they were both part of the co-decision procedure. Secondly, as with most of the regulatory agencies (now “decentralized agencies”) established in that period, the legal basis for the Fundamental Rights Agency was identified in Art. 308 TEC (now art. 352 TFEU), also called “flexibility clause”. It is, indeed, well known that Article 5 of the Treaty establishing the European Community (the EC Treaty) required the Community to act within the limits of the powers conferred on it, and of the objectives assigned to it, by the Treaty. Where there is not a specific legal base for some of the Community’s objectives, Article 308 of the EC Treaty may fill the gap. In order to give effect to the objectives of the Community, the article requests unanimity of votes of the Council of the European Union on a proposal from the Commission and after consulting the European Parliament.

The use of Article 308 TEC as the legal basis of the Agency brings to light two difficulties: first, the procedure to adopt secondary legislation acts requests the unanimity of votes at the Council of the European Union. This means that the adoption of a proposal of secondary legislation is more complex because it requests the approval of each Member State and thus takes much longer in terms of time. Second, as it has been pointed out, especially by the legal service of the Council of Europe and several Member States (for instance France, the United Kingdom, the Czech Republic), it was not clear how fundamental rights were part of the objectives of the Treaty. At the time of the Treaty of Nice, among the objectives of the Community (Art 2 TEC), the only reference to fundamental rights could have been found in relation to equality between man and woman. Protection of fundamental rights was rather included as one of the objectives of the Union, that is to say that it involves an intergovernmental decision-making process, which largely relies on unanimity. However, according to some scholars, it is true that Opinion 2/94 of the European Court of Justice on Community accession to the European Convention on Human Rights clarified the limits of the use of Art. 308 TEC (former Art. 235 TEC) and affirmed the impossibility of basing the accession to the ECHR on that provision, but it also determines three conditions on which Art. 308 TEC cannot be used as a legal basis. As Weiler and Alston pointed out, these three conditions are the following. Article 308 TEC cannot be used if: 1) it entails the entry of the Community into a distinct international institutional system; 2) it modifies the material content of human rights within the Community legal order; and 3) it has fundamental institutional implications. This would mean that possible grounds for an inclusion of fundamental rights within the Community objectives could be found in the European Court of Justice jurisprudence. According to the Court, indeed, fundamental rights are part of the general principles of Community law and thus compliance with fundamental rights is a condition of “lawfulness of Community acts” (Alston & Weiler, 1998).

Several concerns were also raised over the internal competences of the Agency. The Communication of the European Commission (COM(2005) 280 final) presented two proposals: a proposal for a Founding Regulation establishing the European Union Agency for Fundamental Rights and a proposal for a Council Decision empowering the European Union Agency for Fundamental Rights to pursue its activities in areas referred to in Title VI of the Treaty on European Union. According to these two documents the Agency should have quite a broad mandate. The Agency should be empowered of competences with respect to Art. 7 TEU. In other words, the Council of the European Union may have the possibility of exploiting the expertise of the Agency during the procedure under Art. 7 TEU (recital n. 12 and Art. 4(e)), in cases of a serious breach of the general principles of the European Union (Art 6 TEU). The Agency would also be endowed to carry out its monitoring activity with regard to matters under the third pillar (Police and Judicial Co-operation in Criminal Matters). Interestingly, both of these competences were rejected and do not appear in the final funding regulation of the Agency. Once again, the Member States and the Council of Europe express their disagreement about such a broad monitoring activity that may be seen interfere within an area of competence subjected to the inter-governmental decision-making process.

“The Agency should not assess general human rights situations in specific countries. Its work should be focused on specific thematic areas involving fundamental rights and having a special connection with EC/EU policies.”

With specific regard to the Council of Europe, the Parliamentary Assembly stated that the Agency should be an “independent institution for the promotion and the protection of human rights within the legal order of the EU” and should have “a well defined, focused and complementary role” (PACE, Resolution 1427 (2005) on 18 March 2005). In other words, the Agency should not be allowed to deal with fundamental rights in general, but only when the Member States implement EU/EC law. Second, the Agency should not assess general human rights situations in specific countries. Its work should be focused on specific thematic areas involving fundamental rights and having a special connection with EC/EU policies. Finally, the Agency should address its thematic reports only to the relevant institutions of the EU (Commission, Council and Parliament) and not to the Member States.

Despite these difficulties a final compromise was achieved and in 2007 the Council of the European Union adopted the Founding regulation of the Agency. However, the result of this five-year debate was the creation of an institution with quite a narrow mandate.

The Agency carries out its tasks within the competences laid down in the Treaty establishing the European Community (First Pillar). The Agency shall also carry out its activities within the limits of its Multiannual Framework (hereinafter MAF) that is organized into nine thematic areas specially connected with the EC policies, with special attention on issues related to non-discrimination, racism and minority rights. Despite its name, indeed, the Agency is not a monitoring body committed to the whole range of rights included in the EU Charter of Fundamental Rights. Only the European Parliament, the European Commission and the Council of the European Union can request the expertise of the Agency in relation to areas of competences outside the limits of the MAF and with the aim of scrutinizing the upcoming legislation. Furthermore, with regard to the Member States, the Agency shall carry out its monitoring activity only when they are implementing Community law. Therefore, in light of such limitations, it is fair to ask what the real impact of such institution on the work of the relevant EU institutions might be.

Impact of the Agency on the relevant EU institutions

In light of what we know about the framework of the Agency, we should now try to reflect on the impact of its activities on the legislative and policy-making work of the relevant EU institutions. To this purpose we will analyse its main products, reports and opinions, in two different periods: the period before the Lisbon Treaty came into force and the period after the Lisbon Treaty became legally binding.

Pre-Lisbon Treaty Period

From 2007 to 2009, the Agency delivered 5 opinions and produced 15 reports. During this initial period of activity, the Agency had a quite limited number of requests on behalf of the relevant EU institutions and thus focused its activity on areas of research within its competences. Only the Council of the European Union, in 2008, requested an opinion on a proposal for a Council Framework decision on the use of Passenger Name Record data for law enforcement purposes (see Chart 1 and Chart 4).

Chart 1

Chart 1

With regard to the reports, in 2007 and in 2008 the European Parliament requested a comparative report and a comprehensive report focused on homophobia and discrimination on the grounds of sexual orientation. In 2009 the Agency issued another comparative report upon request of the European Commission on child trafficking. The other 12 reports are initiated by the FRA and are mainly focused on discrimination issues, with special attention to the situation of Roma within the EU (see Chart 2).

Chart 2

Chart 2

After the Lisbon Treaty

In 2009 the Treaty of Lisbon became legally binding along with the EU Charter of Fundamental Rights. With the entry into force of the Treaty of Lisbon, the Constitutional Framework of the EU was finally reformed. The three pillars system was finally merged in one legal personality, the Union, equipped with a different system of competences. Most importantly, the European Parliament gained more powers. In particular, the Treaty extends the co-decision procedure over new areas, such as, for instance, the area of Freedom, Justice and Security.

From 2009 to 2015 the Agency produced 9 opinions and more than 50 reports. Interestingly, most of the opinions were requested by the European Parliament and some of them were related to the new area of competence of the co-decision procedure (see Chart 3 and Chart 4).

Chart 3

Chart 3

Chart 4

Chart 4

With regard to the reports, they are generally initiated by the Agency according to its competences. Most of the reports are mainly focused on the thematic areas of discrimination, immigration, integration of migrants and asylum, and xenophobia and related intolerance. To a small extent, the reports are also focused on access to justice, victim crimes, information society and data protection, Roma integration and the right of the child (see Chart 5).

Chart 5

Chart 5

Furthermore, in 2012 the Agency published a report on the impact of the Racial Equality Directive (2000/43/EC) in the EU Member States. The report intends to be one of a number of publications of the Agency in accordance to what Art. 17 of the Racial Equality Directive requires. As a matter of fact, Art. 17 of the Racial Equality Directive requires the European Commission to report to the European Parliament and the Council on its application and, in doing so, to take into account the views of the European Monitoring Centre on Racism and Xenophobia. The FRA took over the monitoring activity of the Centre and extended its mandate. It is therefore interesting to point out how the expertise of the Agency can be requested also by an act of secondary legislation, but for the moment it remains the only example of such practice.

In conclusion: positive or negative integration? Who wins?

These data show the amount of work that the Agency has carried out, in particular in the main field of discrimination, discrimination and asylum, and racism and related intolerance. With the entry into force of the Lisbon Treaty and of the EU Charter of Fundamental Rights, institutions like the European Parliament, through its LIBE committee, have certainly increase their collaboration with the Agency. However, its activity remains quite restrained and its potential as a key tool of a positive human rights integration remains unexplored.

We can identify three fundamental reasons for that:

First, the FRA cannot deal on its own initiative with matters covered by the former third pillar, which include a number of important human rights issues. Before the Lisbon Treaty was legally binding, this limitation of the FRA’s mandate was due to the three pillars system of competences. But even after the Lisbon Treaty came into force the Agency’s mandate remained untouched.

Second, the full range of rights present in the Charter does not find its full expression within the MAF. This approach can be explained by the fact that the Charter was only a political instrument before the Lisbon Treaty came into force, leaving to the EU institutions, in particular to the European Council, the autonomy to set up the structure of the MAF in accordance with the priorities of the EC. However, after the Charter became legally binding the MAF was not subject to any particular change.

Third, and most important, the Agency is an “untapped resource”(Ramboll (2012)) with regards to the EU legislative process. The FRA can only deal with EU legislative drafts upon request of the EU institutions, thus strongly limiting the role of the Agency as a body scrutinizing the upcoming legislation.

Certainly, a possible solution to the difficulties mentioned above could be amending both the FRA’s Founding Regulation and the MAF. However, since both these legal documents are based on Art. 352 TFEU (ex. Art. 308 TEC), the adoption of every amendment of little account would request the unanimity of votes at the European Council. This state of affairs leads to the fact that the FRA cannot be easily emendable and thus is subjected to the strict limitation of its internal legal framework.

Another constraint on the FRA activity is the exclusion from the current founding regulation of the provision providing the FRA’s advisory expertise in cases of serious breach of the EU values (Art.7 TEU), upon request of the European Council. Undoubtedly, the Agency indirectly contributes to a preventive monitoring of the Member States’ performance through the publication of its annual reports, which are useful tools in the hand of the relevant EU institutions. However, the FRA could undeniably play an important role offering its expertise within the warning procedure of Art. 7 (Closa, Kochenov, & Weiler, 2014).

Filling these gaps would allow the FRA to convey the entire framework of its potentialities and to be an important counter-actor of negative integration. Not filling this gap would leave the FRA unprepared to tackle future challenges such as the controversial accession to the European Convention on Human Rights system.

Maria Maddalena Giungi originally presented this research in Brighton, UK, at The European Conference on Politics, Economics and Law 2015. This conference has now been combined with the The European Conference on the Social Sciences.

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About Maria Maddalena Giungi

Dr Maria Maddalena Giungi obtained her doctoral degree in Public Law from University of Milan after having defended a thesis entitled "Strengthening fundamental rights in the EU: the role of the Fundamental Rights Agency of the European Union". Dr Giungi is a Postdoctoral Fellow of the Faculty of Political Science at Princeton University. Her research interests embrace Constitutional Law, European Human Rights Law, and Medical Law with a specific interest in surrogacy practice.

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