Select Committee on European Scrutiny Fourth Report


3 Promotion of European Union values

(25066)

14981/03

COM(03) 606

Commission Communication on Article 7 of the Treaty on European Union - Respect for and promotion of the values on which the Union is based.

Legal base
Document originated15 October 2003
Deposited in Parliament21 November 2003
DepartmentForeign and Commonwealth Office
Basis of considerationEM of 11 December 2003
Previous Committee ReportNone
To be discussed in CouncilNo date set
Committee's assessmentLegally and politically important
Committee's decisionNot cleared; further information requested

Background

3.1 Article 6(1) of the Treaty on European Union provides that the Union "is founded on the principles of liberty, democracy, respect of human rights and fundamental freedoms". Article 7(1) of the Treaty provides for action to be taken by the Council in the event of a "clear risk of a serious breach" by a Member State of the principles mentioned in Article 6(1) EU, and Article 7(2) provides for action in the case where a "serious and persistent breach" of such principles has taken place.

3.2 A clear risk of a serious breach is determined by the Council under Article 7(1) on a reasoned proposal by one third of the Member States, by the European Parliament or by the Commission. A four-fifths majority of Member States and the assent of the European Parliament are required for the Council to act. Before making a determination the Council must hear the Member State in question. The Council may also "call upon independent persons to submit within a reasonable time a report on the situation in the Member State in question". Once the Council has determined that there is a risk of a serious breach by a Member State of the principles mentioned in Article 6(1), the Council may address recommendations to that State.

3.3 In determining under Article 7(2) the existence of a serious and persistent breach of the principles under Article 6(1), the Council acts on a proposal by one third of the Member States or by the Commission.[5] The Council must invite the government of the Member State in question to submit its observations.[6] Thereafter it must obtain the assent of the European Parliament and must act by unanimity (apart from the vote of the Member State in question) in making a determination. Having made such a determination, the Council may go on to decide[7] by a qualified majority to suspend certain of the EU Treaty rights of the Member State in question, including its voting rights in the Council. Corresponding provision for the suspension of EC Treaty rights is made by Article 309EC.

The Commission's Communication

3.4 The Commission Communication reviews the provisions made by Article 7(1) and (2) of the EU Treaty. It notes that the provisions relating to the determination of a "clear risk of serious breach" of the principles mentioned in Article 6(1) EU were introduced by the Treaty of Nice and that these "greatly enhanced the operational character of the means available under the Amsterdam Treaty, which allowed only remedial action after the serious breach had already occurred".

3.5 The Commission considers that the amended Article 7 "confers new powers on the Commission in its monitoring of fundamental rights in the Union and in the identification of potential risks". It adds that "the Commission intends to exercise its new right in full and with a clear awareness of its responsibility".

3.6 The Commission also reports its view that "members of the public and representatives of civil society who are most active in the protection of fundamental rights are unsure of the exact scope of Member States' obligations under Article 7 of the Union Treaty". It notes that the "regular complaints" it receives from individuals show that "Union citizens often regard Article 7 of the Union Treaty as a possible means of remedying the fundamental rights breaches that they have suffered".

3.7 The Commission argues that the scope of Article 7 is not confined to areas covered by Union law but that it also applies in the event of a breach in an area where the Member States act autonomously. It adds that Member States are obliged to respect fundamental rights as general principles of Community law,[8] but that this obligation, unlike that under Article 7, is enforced by the Court of Justice and applies only to national situations falling within the scope of Community law. The Commission notes that Article 7 gives the Council a discretionary power whether to determine the existence of a clear threat of a serious breach or the existence of such a breach, and that the Council is not obliged to apply penalties in the latter case. The Commission considers that "these options underline the political nature of Article 7 of the Union Treaty, which leaves room for a diplomatic solution". It adds that, despite its "repeated suggestions", the Treaty does not give the Court of Justice the power to review the Council's decision and that the role of the Court is limited by Article 46(e) EU to reviewing "the purely procedural stipulations of Article 7".

3.8 The second part of the Communication is concerned with the means for securing respect for and promotion of common values on the basis of Article 7EU. In addition to describing the nature of the consultation which the Commission would conduct with the Member State concerned before making a proposal, the Commission argues for the introduction of "regular monitoring of respect for common values" and for the development of "independent expertise".

3.9 With regard to the former, the Commission describes the European Parliament's annual report on the fundamental rights situation in the European Union as "a major contribution to the elaboration of an exact diagnosis on the state of protection in the Member States and the Union". The Commission adds that many other sources of information are available such as the reports of international organisations, NGOs and the decisions of regional and international courts, "among them the European Human Rights Court".

3.10 The Commission also makes this comment:

"The very large number of individual complaints addressed to the Commission or the European Parliament are another valuable source of information. In most cases the Commission has no grounds for investigating a breach of Community law and bringing an action against the Member State before the Court of Justice, as they concern situations for which the Member States alone are responsible without any link to Union law, but they do provide a basis for summing up the public's major concerns in fundamental rights matters."

3.11 The Commission also says that, following a report by the European Parliament in 2000 recommending the establishment of a network of "authoritative fundamental rights experts", it has established a pilot project by means of a contract with the Université Catholique de Louvain. The contract, which is of limited duration, sets up a network of national experts with a main task of preparing an annual report of the fundamental rights situation in the Union, giving a precise picture of the situation in each Member State. The Commission explains that the published report reaches a wide audience and that the information it contains "should make it possible 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".

3.12 The Commission states that the network is independent of both the Commission and the Parliament and that this independence "must be preserved". It adds that "obviously, neither the Commission nor the Parliament is bound by the network's analyses". It argues for a continuing role for the network, as follows:

"The role played by the current network of experts will be meaningful only if its continuity, or even permanent status, is ensured. To this end, the network's work needs to be provided with an appropriate legal basis."

3.13 With regard to cooperation with other bodies, the Commission considers that proper coordination would be needed to avoid any risk of duplication with the European Monitoring Centre on Racism and Xenophobia.[9] The commission also indicates that it is willing to establish contacts with the Council of Europe's Commissioner for Human Rights and a "regular dialogue with NGOs responsible for fundamental rights in the Union".

The Government's view

3.14 In his Explanatory Memorandum of 11 December 2003 the Minister for Europe (Mr Denis MacShane) summarises the main aspects of the communication and explains that the Government welcomed the procedure agreed in the Treaty of Amsterdam to provide a mechanism for the Council to take action against a Member State which has seriously and persistently breached human rights, as well as the provision in the Treaty of Nice for an early warning mechanism where there is a clear risk of those rights being breached. The Minister adds that "it makes sense for the Council to act before breaches occur", but that the Government "will consider carefully the need for any change in the status of the network of independent fundamental rights experts".

Our assessment of the Communication

3.15 Whilst we agree with the Minister that it may make sense for the Council to make recommendations under Article 7(1) EU before the occurrence of serious and persistent breaches of the kind referred to Article 7(2) EU, we question the need for the Commission to assume the role of monitoring human rights, either at all or in the way in which this has been done in the Commission's pilot project.

3.16 In this connection, we note that the provisions of Article 7 EU do not give the Commission any exclusive or even pre-eminent right of initiative. It is for the Council, after obtaining the assent of the European Parliament, to make the relevant determinations, and if it so wishes to call on independent persons to report. As the Commission itself acknowledges, Article 7 EU relates to matters which fall outside the scope of Community law , and we question the Commission's justification for concluding, on the strength of complaints which it has no powers to investigate, that these provide it with a basis for "summing up" the major concerns of the public in "fundamental rights matters".

3.17 It is also the case that the civil and political rights deriving from the principles of liberty, democracy, respect for human rights and fundamental freedoms and the rule of law, as mentioned in Article 6(1) EU, are already subject to UN and Council of Europe instruments which include systems of monitoring and reporting. In the case of the latter, we note in particular the role of the Council of Ministers under the European Convention on Human Rights (ECHR) and that of the Commissioner for Human Rights under that Convention. It seems to us to be improbable that a serious and persistent breach of the principles mentioned in Article 6(1) EU, or a clear risk of such a breach occurring, would escape the notice of these Council of Europe and UN bodies.

3.18 We have a number of concerns about the creation of the network by the Commission and the scope and methodology of its reports. First, it appears that it has been created as a pilot project with no specific legal basis. Secondly, the Charter of Fundamental Rights is described as the "reference instrument" of the network of independent experts and it appears that the annual report is based on assessments of "each of the rights set out in the European Union's Charter of Fundamental Rights".[10] At the very least, we consider it calls for explanation of how an assessment of a Member State's compliance with the principles of Article 6(1) EU is properly to be carried out on the basis of a document which is not generally accepted as legally binding and in any event can have an effect on Member States "only when they are implementing Union law".[11]

3.19 In addition to duplicating the efforts of established human rights bodies, the Commission's network appears to risk duplicating the work of the European Monitoring Centre on Racism and Xenophobia.[12] In this connection, we note that the conclusions of the representatives of the Member States meeting at Head of State or Government Level on 13 December 2003 included an agreement to "build upon the existing European Monitoring Centre on Racism and Xenophobia and to extend its mandate to become a Human Rights Agency"

Conclusion

3.20 We ask the Minister if he shares the concerns we express in our assessment of this Communication, in particular as to whether the Commission's network is an appropriate means of securing compliance by Member States with the principles of Article 6(1)EU.

3.21 We note that the Government will consider carefully the need for any change in the status of the Commission's network, and we ask the Minister to inform us of any development in the Government's thinking. In particular, we ask the Government to explain how it proposes to ensure that the role of the ECHR institutions does not become marginalised.

3.22 We also ask the Minister to explain the significance for the present document of the conclusions of the Heads of State and Government of 13 December calling for an extension of the mandate of the European Monitoring Centre on Racism and Xenophobia so that it would become a European Human Rights Agency.

3.23 We shall hold the document under scrutiny pending the Minister's reply.


5   Unlike the position under Article 7(1) the European Parliament has no power to make a proposal under Article 7(2). Back

6   There is no provision for the Council to call on independent persons to submit a report. Back

7   The Council may act of its own motion in this regard, and does not require a proposal to be made to it e.g. by the Commission. Back

8   Cf Wachauf [1989] ECR 2609, ERT [1991] ECR i-2925. Back

9   Established by Regulation (EC) No. 1035/97 of 2 June 1997, OJ No L 151, 10.6.1997, p1-7. Back

10   So described on the European Commission's website at www.europa.eu.int/comm/justice. Back

11   Article 51(1). Back

12   Established by Council Regulation (EC) No. 1035/97. Back


 
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