11 European Union Agency for Fundamental
Proposal for a Council Regulation establishing a 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
|Legal base||Council Regulation -Article 308 EC; consultation; unanimity. Council Decision Articles 30, 31 and 34(2)(c)EU; consultation; unanimity
|Document originated||30 June 2005
|Deposited in Parliament||7 July 2005
|Basis of consideration||EM of 20 July 2005
|Previous Committee Report||None; but see (26126) 14223/04: HC 38-i (2004-05), para 1 (1 December 2004) and HC 38-viii (2004-05), para 1 (10 February 2005)
|To be discussed in Council||No date set
|Committee's assessment||Legally and politically important
|Committee's decision||Not cleared; further information requested
11.1 The European Monitoring Centre on Racism and Xenophobia (EUMC)
was established by Council Regulation (EC) No. 1035/97
as a Community body to provide the Community and the Member States
with objective, reliable and comparable information on racism,
xenophobia and anti-Semitism. The European Council decided on
12 and 13 December 2003 to extend the mandate of the EUMC "to
make it a Human Rights Agency".
11.2 The Commission subsequently published a consultation
document seeking views on how the objective outlined by the European
Council might be achieved. The previous Committee considered this
document on 1 December 2004 and 10 February 2005 and recommended
it for debate in European Standing Committee B, which debate took
place on 14 March 2005. The proposal for a fundamental rights
agency was also debated in Westminster Hall on 2 February 2005.
The previous Committee drew attention to the risk that the proposed
agency might duplicate the work of the institutions of the Council
of Europe under the European Convention on Human Rights (ECHR)
and did not think that the Charter of Fundamental Rights of the
European Union should be relied on to determine the powers of
the new agency, unless and until the Charter were to become legally
The proposed draft Council Regulation
11.3 The proposed draft Council Regulation seeks
to establish a "European Union Agency for Fundamental Rights".
An associated draft Council Decision is proposed under Articles
30, 31 and 34(2)(c) EU which would "empower" the Agency
to pursue its activities in the areas covered by Title VI of the
EU Treaty (i.e. police and judicial cooperation in criminal matters).
The Commission explains that the objective of the proposal is
to "establish a centre of expertise on fundamental rights
at the EU level" and that establishing an agency "will
make the Charter more tangible".
11.4 The draft Council Regulation is based on Article
308 EC. Article 1 provides for the establishment of a "European
Union Agency", but it is not explained how an agency of the
European Union can be created under the powers conferred on the
European Community by Article 308 EC.
11.5 The objective of the Agency, as provided for
in Article 2, is "to provide the relevant institutions, bodies,
offices and agencies of the Community and its Member States when
implementing Community law with assistance and expertise relating
to fundamental rights". Such assistance and expertise would
be given "in order to support them when they take measures
or formulate courses of action within their respective spheres
of competence to fully respect fundamental rights".
11.6 According to Article 3 the Agency will carry
out its tasks within the competences of the Community as laid
down in the EC Treaty, and in so doing will "refer"
to Article 6(2) EC and the Charter of Fundamental Rights. Article
3(3) provides that the Agency will "concern itself"
with the situation of fundamental rights in the EU and its Member
States when implementing Community law. By virtue of Article 3(4),
the Agency will also provide information and analysis, as requested
by the Commission, on human rights in third countries with which
the Community has concluded association agreements, where those
agreements contain provisions on human rights.
11.7 Article 4 sets out a series of tasks for the
Agency which include collecting data and making studies, but also
formulating "conclusions and opinions on general subjects"
for EU institutions and Member States when implementing Community
law, either on its own initiative or at the request of the European
Parliament, the Council or the Commission. However, by virtue
of Article 4(2) such "conclusions and opinions" may
not be made in respect of the legality of Commission proposals
under Article 250 EC, positions taken by the institutions in the
course of the legislative procedure, the legality of acts within
the meaning of Article 230 EC or the question of whether a Member
State has failed to fulfil an obligation under the Treaty within
the meaning of Article 226 EC. In addition, the Agency is to "make
its technical expertise available" to the Council at its
request in the context of proceedings under Article 7 EU.
11.8 Article 5 enables the Commission to adopt a
five year framework programme for the Agency in accordance with
the regulatory procedure.
The programme or "Multiannual Framework" would determine
the "thematic areas" of the Agency's work "always
including racism and xenophobia".
11.9 Articles 6 to 9 provide for working methods
of the Agency and its cooperation with other bodies, notably the
Council of Europe. Article 11 provides for a Management Board
composed of one independent person appointed by each Member State,
one by the European Parliament and one by the Council of Europe.
The Commission may appoint two representatives, but there is no
requirement that these be independent. The Agency is also to have
an Executive Board composed of the chairman and vice-chairman
of the Management Board and the two Commission representatives.
The Director of the Agency is to be appointed by the Management
Board on the basis of a list of candidates proposed by the Commission.
11.10 Article 14 provides for a "Fundamental
Rights Forum" to be chaired by the Director of the Agency
and composed of representatives of non-governmental organisations
"responsible" for fundamental rights and efforts to
combat racism, xenophobia and anti-semitism as well as trade unions
and employers' organisations, social and professional organisations,
churches, religious, philosophical and non-confessional organisations,
universities and qualified experts and European and international
bodies and organisations. The maximum number of the Forum is to
be 100, and it is to be selected by an "open selection method"
to be determined by the Management Board. The Forum is to meet
annually and is to act as a mechanism for the exchange of information
and the pooling of knowledge and is to "ensure close cooperation
between the Agency and the relevant stakeholders". The Forum
may also make suggestions for the annual work programme.
11.11 Provision is also made for the Agency to have
legal personality and to enjoy the privileges and immunities of
the European Communities and for the application of the EC Staff
The draft Council Decision
11.12 The draft Council Decision is a measure proposed
under Articles 30, 31 and 34(2)(c) EU. It provides that "in
conformity with" Article 28 of the draft EC Regulation
the Agency is empowered to pursue its activities also in the areas
covered by Title VI of the EU Treaty (i.e. police and judicial
cooperation in criminal matters). It is further provided that
the provisions of the Regulation are to apply by analogy to the
Agency's activities in the areas covered by Title VI EU, and that
references to Community bodies, agencies and offices are to be
understood as referring also to 'Union' bodies established on
the basis of Title VI.
The Government's view
11.13 In her Explanatory Memorandum of 20 July 2005
the Parliamentary Under-Secretary at the Department for Constitutional
Affairs (Baroness Ashton of Upholland) explains that on initial
consideration the Commission proposal seems to be broadly in line
with the UK positions on the Agency, and that the legal basis
for the Regulation, the objective, scope and tasks of the Agency,
its areas of activity and its structure are all "broadly
acceptable to the UK government".
11.14 On the use of Article 308 EC as the legal base
for the proposal, the Minister comments that the European Court
has confirmed that fundamental rights are part of the general
principles of Community law and that compliance with fundamental
rights is a condition of legality of Community acts. The Minister
also refers to Article 6(2) EU
as demonstrating the importance of fundamental rights, suggests
that there are reasonable arguments for arguing that it is a general
objective of the Community to ensure that its own action fully
respects human rights and concludes that this objective, which
applies in all areas of the Community's action, including in the
course of the operation of the common market, will be furthered
by the establishment of the Agency.
11.15 On the general policy implications of the proposal,
the Minister comments as follows:
"The decision to bring anti-racism and xenophobia
responsibilities together with human rights within one body is
consistent with UK policy to create a Commission for Equality
in Human Rights in the UK. The Government supports measures aimed
at building a genuine human rights culture within the Union, based
on the institutions".
11.16 The Minister adds that, as holding the Presidency,
the UK expects that the main areas for discussion will be the
remit of the Agency, both for third countries and the third pillar,
the question of duplication of roles, the degree of independence
of the Agency and way in which its work programme is set, the
legal base for the Agency and its management structure.
11.17 The Minister explains that the annual budget
for the present European Monitoring Centre on Racism and Xenophobia
of 8.2 million with a present staff of 37 is likely to increase
to 29 million in 2013, with a staff of 100. The Commission
has proposed that the Agency should have a growing budget for
the period 2007-2013 "to allow for gradual growth and transition".
11.18 We note the description of areas for discussion
which the Minister expects to arise during the UK Presidency,
but we would have found it helpful if the Minister had been more
forthcoming on the UK's attitude to such issues as the likely
duplication of roles with the Council of Europe and the independence
and management structure of the Agency.
11.19 The Minister has explained the use of Article
308 EC as the legal base for this proposal, but has not explained
how provisions of the EC Treaty can be used to create a European
Union body. If the Minister believes this may properly be done,
we ask the Minister to explain the grounds for such belief.
11.20 We ask if the Minister is content with the
role envisaged for the Commission in the running of the Agency.
In particular, we ask if the Minister agrees that it is acceptable
to impose an obligation on the Member States, the European Parliament
and the Council of Europe to appoint an independent person, but
to impose no requirement of independence on the Commission when
appointing its two representatives to the Management Board. We
also ask if the Minister is content that at least two of the four
members of the Executive Board should be representatives of the
Commission, despite the views apparently unanimously expressed
in consultation that the Agency should be independent of EU institutions.
11.21 We note that a reason advanced by the Commission
for the proposal is that "securing fundamental rights depends
on governance mechanisms to ensure that they are fully taken into
account in policy setting and decision-making in the Union",
but that the proposal prohibits the Agency from expressing any
view on the legality of Commission proposals. This appears to
us substantially to undermine the purpose of the Agency and we
ask the Minister if the Government agrees with this aspect of
11.22 We also ask the Minister if the Government
is content with the way the Charter of Fundamental Rights is referred
to in the proposal and if the Government agrees with the Commission
that establishing the Agency will make the Charter "more
11.23 We shall hold the document under scrutiny
pending the Minister's reply.
43 OJ No L 151, 10.6.97, p.1. Back
Article 7 EU provides for action by the Council where there is
a clear risk of a serious breach by a Member State of the principles
of liberty, democracy, respect for human rights and fundamental
freedoms and respect for the rule of law. Back
i.e. the delegated legislation procedure under Council Decision
1999/468/EC. The scope of the powers delegated to the Commission
under the "regulatory" procedure is less than that enjoyed
by it under the advisory or management procedures. Back
This simply provides that the Regulation is to be without prejudice
to the possibility of the Council empowering the Agency under
Title VI of the EU Treaty to pursue activities in the areas covered
by Title VI. Back
This provides that "The Union shall respect fundamental
rights, as guaranteed by the European Convention for the Protection
of Human Rights and Fundamental Freedoms signed in Rome on 4 November
1950 and as they result from the constitutional traditions common
to the Member States, as general principles of Community law".
i.e. questions of police and judicial cooperation in criminal
matters under Title VI EU. Back