2 Multiannual framework for the European
Union Agency for Fundamental Rights
| (28922)
13025/07
COM(07) 515
| Draft Council Decision adopting a multiannual framework for the European Agency for Fundamental Rights
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| Legal base | Article 5(1) of Council Regulation (EC) 168/2007; consultation; simple majority
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| Document originated | 12 September 2007
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| Deposited in Parliament | 21 September 2007
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| Department | Ministry of Justice
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| Basis of consideration | EM of 3 October 2007
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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
2.1 The European Union Agency for Fundamental Rights (the Agency)
was established by Council Regulation (EC) No 168/2007.[14]
The adoption of this Regulation followed the decision of the European
Council in December 2003 that the European Monitoring Agency for
Racism and Xenophobia should become a "human rights agency".
The objective of the Agency is to provide advice and expertise
relating to fundamental rights to the institutions, bodies, offices
and agencies of the Community and its Member States when implementing
Community law.
2.2 The Regulation establishing the Agency was made
under Article 308 EC. The Agency therefore has no competence in
relation to matters falling under the EU Treaty.
2.3 Article 5 of Council Regulation (EC) No 168/2007
provides for the adoption by the Council, after consulting the
European Parliament, of a "Multiannual Framework" to
set out the broad areas of activity of the Agency. Article 5(2)
requires the Framework to determine the "thematic areas"
of the Agency's activities, which areas must include "racism
and xenophobia and related intolerance", and to include provisions
to ensure "complementarity" with the remit of other
Community and Unions bodies as well as with the Council of Europe
and other international organisations active in the field of fundamental
rights.
The draft Council Decision
2.4 The draft Council Decision sets out ten thematic
areas of activity for the Agency over the next five years. These
areas are as follows:
"(a) racism, xenophobia and related intolerance;
(b) discrimination based on sex, racial or ethnic
origin, religion or belief, disability, age or sexual orientation
or of persons belonging to minorities;
(c) compensation of victims, prevention of crime
and related aspects relevant to the security of citizens;
(d) protection of children, including rights
of the child;
(e) immigration and integration of migrants;
(f) asylum;
(g) visa and border control;
(h) participation in the Union's democratic functioning;
(i) human rights issues relating to the information
society; and
(j) access to efficient and independent justice."
2.5 The Commission advances the following by way
of justification for the choice of the above themes. Racism and
xenophobia (a) must be included as a theme, by reason of Article
5(2) of Regulation (EC) 168/2007. The Commission explains that
"virtually all stakeholders expect" that the Agency
will deal with discrimination on the grounds referred to in Article
13 EC (theme (b)). Theme (c), the compensation of victims and
the prevention of crime is explained on the basis that "the
establishment of the area of freedom, security and justice has
made the security policy essential also within the EC, with aim
to facilitate the free movement of persons while ensuring safety
and security of citizens". The Commission adds that crime
prevention "is an indispensable part of this work".
As far as the rights of victims are concerned, the Commission
states that these rights "should be included to [sic]
thematic areas corresponding to Community law on state compensation
to crime victims or victims of human trafficking" and argues
that "there is a proven interest by the stakeholders to [sic]
these areas". In relation to the protection of children and
the rights of the child (theme (d)), the Commission argues that
the link between Community priorities and the rights of the child
is "obvious" and that the work under this heading would
include the areas of free movement, education, social cohesion
and youth policies, "the media and other relevant Community
policies".
2.6 In relation to immigration and the integration
of migrants (theme (e)), the Commission notes that the treatment
of illegal immigrants at borders and in detention centres, as
well as aspects related to human trafficking, "have been
the subject of particular concerns form the point of view of fundamental
rights". The Commission comments that social inclusion, freedom
of religion, forced marriages and "female mutilation"
could also be dealt with by the Agency as an aspect of the integration
of migrants.
2.7 In relation to asylum, borders and visas (themes
(f) and (g)), the Commission notes the extensive Community legislation
on asylum and the specific provisions on fundamental rights in
legislation in this area.
2.8 The Commission describes theme (h) "participation
in the Union's democratic funding" as being concerned with
the right of a Union citizen to participate in local and European
Parliament elections.
2.9 Theme (i) "human rights issues relating
to the information society" is described as covering such
"major issues" as private life and data protection,
and is said to be "closely linked with the transparency of
Community policy and administration and countervailing privacy
rights and contains thus these issues". The Commission adds
that this theme would also bear on issues such as the internet
and other means of electronic communication, radio frequency identification,
freedom of speech and the public interest in security and fighting
crime as well as intellectual property.
2.10 Finally, in relation to theme (j) "access
to efficient and independent justice" the Commission notes
the existence of Community legislation to facilitate access to
justice on such matters as legal aid, simplified civil procedures
and consumer law.
The Government's view
2.11 In his Explanatory Memorandum of 3 October the
Minister of State at the Ministry of Justice (David Hanson) explains
that the Government's consideration of the Multiannual Framework
is based on the criteria, first that the thematic areas must fall
within the first pillar (i.e. Community law), secondly that they
must not duplicate the work of other human rights bodies and,
thirdly, that they must not overburden the Agency's financial
and human resources.
2.12 The Minister comments that the question of discrimination
based on sex, racial or ethnic origin, religion or belief, disability,
age or sexual orientation, or in relation to persons belonging
to minorities (theme (b)) meets the first and third criteria,
as Article 13 EC confers powers to take action in these areas,
but points out that in relation to discrimination based on sex
there may be a risk of duplication (the second criterion) with
the work of the European Institute for Gender Equality. The Minister
considers that the work of the Agency in monitoring gender discrimination
"must be complementary and subsidiary" to the work of
that Institute. The Minister notes that this risk will be minimised
by the conclusion of a memorandum of understanding between the
Institute and the Agency.
2.13 In relation to compensation of victims, prevention
of crime and related aspects relevant to the security of citizens
(theme (c)), the Minister considers that the first criterion would
be fulfilled to the extent that the Agency focuses on Community
legislation adopted so far,[15]
but that general crime prevention and the security of citizens
are third pillar matters and therefore outside the scope of the
Agency's work. The Minister also considers that this theme might
duplicate the work of the Council of Europe and the EU Crime Prevention
Forum and the European Crime Prevention Network if it were to
include matters outside the scope of existing Community law.
2.14 The Minister considers that the protection of
children, including the rights of the child (theme (d)) would
fulfil the Government's criteria if it were in pursuit of Community
policies in education, vocational training and youth, but that
it would have to be complementary to the activities of the European
Forum on the Rights of the Child and work currently being carried
out by the Council of Europe in this field.
2.15 The Minister notes that immigration, integration,
asylum and visa and border control (themes (e) to (g)) fall within
Title IV EC and so meet the first criterion in principle. The
Minister makes a similar comment in relation to "participation
in the Union's democratic functioning, noting that this work is
based on Article 17 to 22 EC on citizenship of the Union.
2.16 In relation to "human rights issues relating
to the information society" (theme (i)) the Minister comments
that this subject area mainly refers to the protection of personal
data, but points to a possible risk of duplication with the work
of the European Data Protection Supervisor. However, the Minister
also notes that Article 3(4) of the draft Decision provides that
any activity of the Agency is to be without prejudice to the responsibilities
of the European Data Protection Supervisor.
2.17 Finally, the Minister comments that "access
to efficient and independent justice" (theme (j)) meets all
the Government's three criteria, having regard to the activity
of the Community in the field of civil justice.
Conclusion
2.18 We thank the Minister for his helpful and
comprehensive Explanatory Memorandum.
2.19 We note that Article 5(2) of Council Regulation
(EC) No 168/2007 requires the Council to "determine the thematic
areas of the Agency's activities", which would appear to
us to require some element of selection in order to determine
priorities over a five year period. Instead, the Commission's
proposal appears to us to set out a catalogue of every issue which
the Agency might deal with, including some whose connection with
Community competence is doubtful. We ask the Minister if he agrees
with this assessment.
2.20 We support the Minister's remarks on the
theme concerning the compensation of victims of crime and crime
prevention. Community involvement in this field is very limited,
and the proposed theme does not reflect those limitations. We
ask the Minister if the Government will press for this theme to
be restricted by excluding crime prevention altogether and by
confining work on compensation for victims of crime to the cross-border
situations envisaged in Council Directive 2004/80/EC.
2.21 We shall hold the document under scrutiny
pending the Minister's reply.
14 OJ No. L 53, 22.02.07, p.1. Back
15
The Minister refers to Council Directive 2004/80 EC relating to
compensation to crime victims as an example. Back
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