1 Creation of a Fundamental
Rights Agency
| (26126)
14223/04
COM(04) 693
| Commission Communication: "The Fundamental Rights Agency — public consultation document"
|
| Legal base | — |
| Document originated | 25 October 2004
|
| Deposited in Parliament | 12 November 2004
|
| Department | Constitutional Affairs
|
| Basis of consideration | EM of 25 November 2004
|
| Previous Committee Report | None; but see (24803) 12135/03: HC 63-xxxviii (2002-03), para 6 (19 November 2003), HC 42-iv (2003-04), para 4 (7 January 2004) and HC 42-xi (2003-04), para 8 (25 February 2004)
|
| To be discussed in Council | No date set
|
| Committee's assessment | Legally and politically important
|
| Committee's decision | For debate in European Standing Committee B
|
Background
1.1 The European Monitoring Centre on Racism and Xenophobia (EUMC)
was established by Council Regulation (EC) No. 1035/97[1]
to provide the Community and the Member States with objective,
reliable and comparable information on racism, xenophobia and
anti-Semitism. For this purpose the EUMC has devised a European
Information Network on Racism and Xenophobia (RAXEN).
1.2 We considered a draft Regulation to amend the
structure of the EUMC on a number of occasions up to 25 February
2004, when we noted that negotiations on that proposal had been
suspended in anticipation of its withdrawal by the Commission.
The reason for this was the decision by the European Council on
12 and 13 December 2003 to "build upon the existing European
Monitoring Centre on Racism and Xenophobia and to extend its mandate
to [become] a Human Rights Agency".
The Commission's consultation document
1.3 The Commission's consultation document seeks
views on how the objective outlined by the European Council might
be achieved. The Commission acknowledges that the establishment
of a Human Rights Agency raises "delicate issues" such
as the choice of the legal base, where the Commission says that
it will examine carefully the impact of the Community's limited
powers in the area of fundamental rights when drafting its proposal
for a regulation, the financial resources to be given to the Agency,
the definition of the Agency's field of action and the relations
it might develop with the Council of Europe and other international
institutions.
1.4 The Commission envisages that the Agency would
be set up by "an instrument of secondary legislation"[2]
but that its tasks must not encroach on the powers conferred on
the EU institutions by the Treaties. The Commission further describes
the Agency as being "a European public-law entity, separate
from the Community institutions and possessing its own legal
personality". In the Commission's view, the Agency would
carry out "highly specific technical, scientific or administrative"
tasks which would be defined in the instrument setting up the
Agency, but it would have no decision-making powers, its role
being to provide support for the Community institutions, the Member
States, civil society and individuals.
1.5 In considering the field of activity of the Agency,
the consultation document poses the question of whether this should
be confined to the areas covered by Community (or Union) law
or whether this should be broader so as to extend to the matters
addressed by Article 7 EU. (This provision requires Member States
to respect the principles of liberty, democracy, respect for human
rights and fundamental freedoms and the rule of law which are
referred to in Article 6 EU, and provides a procedure whereby
the rights of a Member State under the EU Treaty may be suspended
if these principles are not observed.)
1.6 The consultation document discusses the arguments
in favour of and against both options. If the remit of the Agency
were to be confined to the scope of Community (or Union) law,
its role would be to help to ensure compliance with fundamental
rights by complementing the existing Community arrangements such
as judicial review by the Court of Justice (which, the Commission
explains, "will be reinforced by external review by the European
Court of Human Rights following accession to the ECHR" (European
Convention on Human Rights)). The Commission points out that confining
the Agency's remit strictly to the areas of Community competence
would avoid duplicating the work of other bodies operating at
international and national level. On the other hand, the Commission
considers that the disadvantage of this option would be that the
Agency could not be asked to collect and process the information
needed for the purposes of proceedings under Article 7 EU if the
situation "had no connection with Union law or extended beyond
the fundamental rights field".
1.7 With regard to Article 7 EU, the Commission argues
that it gives the Union a "different power of intervention
from the power it already possesses to ensure that Member States
respect fundamental rights when they implement EU law". In
the Commission's view, Article 7 EU "allows the Union to
act outside the field of EU law, in areas where Member States
act autonomously". If the Agency were to act as an "early
warning instrument" for situations covered by Article 7 EU,
the Commission considers that it should in any event be "required
only to provide institutions with the expertise that allows them
to base their decisions on reliable and objective data".
The Commission questions whether such an extensive remit, which
would cover every situation in a Member State, can be reconciled
with the aim of an effective Agency, and points out that it could
lead to overlap with the work carried out by the Council of Europe
and national human rights bodies.
1.8 The Commission comments that the Charter of Fundamental
Rights, "although it is not legally mandatory as matter stand",
nevertheless "already constitutes an authentic expression
of the fundamental rights protected by Community law as a set
of general principles". The Commission further considers
that the Charter "constitutes an essential reference document
in the discussion on the definition of the Agency's areas of intervention".
1.9 The Commission raises in these terms the question
of whether the Agency should monitor all the fundamental rights
included in the Charter:
"It might be worth asking the Agency to monitor
all the fundamental rights protected by Community law and included
in the Charter. This would provide an overall view of the rights
on which the EU is based, which is essential to the harmonious
development of the different categories of fundamental rights.
It would also ensure that any hierarchisation of rights does not
jeopardise their universal application or prevent their interdependence
from being emphasised.
"A reference to the Charter would, however,
give the Agency an extremely broad field of action, especially
if its activities were to include respect for fundamental rights
in relations between the individual and the EU institutions or
States, but also in all social relations between individuals,
as is currently the case in respect of racism and xenophobia."
1.10 The Commission canvasses another option, which
is to focus the work of the Agency on themes having a special
connection with Community policies or the Union. In this context
the Commission refers to "immigration, asylum, non-discrimination,
ethical questions, guarantee of criminal proceedings, violence
etc." The Commission adds that whichever option is chosen
"it must ensure a balance between a potentially vast area
of intervention and the effectiveness of the Agency" and
that "some flexibility is therefore desirable".
The Government's view
1.11 In her Explanatory Memorandum of 25 November
2004 the Parliamentary Under-Secretary of State at the Department
for Constitutional Affairs (Baroness Ashton of Upholland) explains
that the decision to bring anti-racism and xenophobia responsibilities
together with human rights within one body is consistent with
government policy, and that the Government supports measures aimed
at building a genuine human rights culture within the Union, based
on the institutions.
1.12 The Minister makes the following further comments:
"The Government's view is that the general remit
of the new body needs to reflect the approach taken towards human
rights by the Constitutional Treaty. This means that the Agency
would be most usefully focused on the internal workings of the
Union, and upon awareness raising, good practice and, where appropriate,
co-ordination. The Government would endorse data collection as
the primary purpose of the Agency, but will underline also the
neutral promotion and awareness raising work. The Government acknowledges
that references to the Union must also include the Member States,
but only when they are implementing Union law, and are doubtful
that comprehensive data collection in this regard is necessary
or practicable.
"The Government is not convinced that there
is a case for a broader role for the Agency, in relation to monitoring
the internal affairs of Member States, for example, based on deductions
from Article 7 of the TEU. It may be argued that there is already
sufficient human rights law and monitoring at Member State level
— and the Commission Paper recognises the risk of overlaps
with work carried out by the Council of Europe and national human
rights bodies at their respective levels. In order to ensure the
Agency can make effective and efficient use of its budget, its
remit should not go beyond what is practical or necessary."
Conclusion
1.13 We agree with the Government's view that
there is no case for the broader role for the proposed Agency
as outlined in the Commission's paper. We are also concerned about
the ambiguous references to the Charter of Fundamental Rights,
and we doubt that it should be used in the way suggested to determine
the competence of the Agency, unless and until it comes into legal
force.
1.14 We believe the Commission is right to voice
concerns over the risk of the Agency duplicating the work of the
institutions of the Council of Europe in the field of human rights.
We consider it would be highly regrettable if the Agency were
to be given a role which led to the marginalisation of the European
Convention on Human Rights and its institutions.
1.15 We consider that the consultation document
raises issues of general importance which ought to be debated
so as to inform the Government's approach to this matter. We therefore
recommend that the document be debated in European Standing Committee
B.
1 OJ No. L. 151, 10.6.97, p. 1. Back
2
The "secondary legislation" referred to would appear
to be a Council Regulation. Council Regulation No. 58/2003 provides
for the creation of executive agencies by Commission Decision,
but these agencies are not independent of the Commission. Back
| 
