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.
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| Legal base | — |
| Document originated | 15 October 2003
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| Deposited in Parliament | 21 November 2003
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| Department | Foreign and Commonwealth Office
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| Basis of consideration | EM of 11 December 2003
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| Previous Committee Report | None
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| To be discussed in Council | No date set
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| Committee's assessment | Legally and politically important
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| Committee's decision | Not cleared; further information requested
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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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