Viewpoint: Does the EU need a “Fundamental Rights Agency”?
01 November 2004
In November 2001 the European Commission put forward a proposal for a "Council Framework Decision on combating racism and xenophobia" (COM 664, 28.11.01). Numerous drafts of the Council's position on the Commission proposal appeared between November 2001 and 26 March 2003. Since then there has been silence.
In June 1997 - during the "European Year on Racism" - the EU set up the European Monitoring Centre on Racism and Xenophobia (EUMC). An amended mandate for the EUMC in Vienna was circulated by the Council of the European Union on 19 May 2003 and the Council's Social Questions Working Party discussed the proposal. A "recast version" of the Council Regulation on the EUMC was circulated on 10 December 2003.
But at the EU Summit (prime ministers) just two days later on 13 December it was decided "in the margins" that the EUMC should "extend its mandate to make it a Human Rights Agency". "In the margins" means that this decision was taken outside of the formal proceedings (in the "corridors of power" as it were).
These two EU initiatives to combat racism were ditched in 2003.
The consultation document
The Commission's consultation document (October 2004 - COM 693) proposes the setting up of a EU “Fundamental Rights Agency” to replace EUMC. It outlines that the general context (Art 6.1. of the TEU, Charter of Fundamental Rights and the ECHR). As a "given" it says the "Agency" will monitor rights "by area" and "not prepare reports by country" as it would be "strictly" limited to areas of Community competence. The Commission's attitude to the Network of Independent Experts, set up in 2002, is ambiguous asking whether having both structures adds "value". Given the excellent work of this Network it is amazing that the Commission does not envisage a role for them in establishing the new agency. The Commission is uncertain whether the Agency should involve itself in the Community's remit regarding member states under Article 7 (TEU) where action is needed against a member state for a "serious breach" of fundamental rights - the Commission's own proposal for the enforcement of Article 7 says that because all EU governments adhere to the Union's "core values" (which seem to be shifting seemingly inexorably to the right) then it cannot ever imagine taking action against a member state.
On the Agency's "geographic scope" the Commission is adamant that it should not cover non-EU countries/issues:
“The Commission considered itself to have complete sources of information and advice on the matter and did not consider it convenient to create an implementation agency for the development of projects with regard to third countries”
But fundamental rights are surely indivisible, their principles (and monitoring of) should be the same whether inside and outside the EU.
The Commission says that the Agency's role should be "data collection and analysis and the drafting of opinions" and ensure that they are "objective and reliable". Crucial of course is where power and control lies. The Agency must be "independent" but have a:
"lightweight structure in terms of staff and budget"
and as to management:
“A measure of the importance attributed to the Agency would be if representatives appointed by the Commission, the European Parliament, the Member States and the Council of Europe were to participate in its management bodies”
Which begs the question of how "independent" could it ever be?
The "Paris Principles" and national Commissions
All EU member states are signed up to the European Convention of Human Rights and most have adopted national Human Rights Acts. However, it is remarkable how few have followed up by creating a national Human Rights Commission - according to an annexe in the Commission document, out of 25 EU member states only five have been set up in Denmark, France, Greece, Ireland and Northern Ireland (a Scottish Human Rights Commission and a UK-wide Commission