Select Committee on European Union Minutes of Evidence

Memorandum by JUSTICE

  1.  JUSTICE is an independent all party law reform and human rights organisation whose purpose is to advance justice, human rights and the rule of law through law reform and policy work, publications and training. It is the British section of the International Commission of Jurists.

  2.  JUSTICE welcomes the House of Lords Select Committee's inquiry into the practical implications of the European Commission's Communication of 27 April 2005: "Compliance with the Charter of Fundamental Rights in Commission Legislative Proposals: methodology for systematic and rigorous monitoring". The introduction of a new mechanism to ensure that all Commission legislative proposals are "systematically and rigorously" checked for compatibility with the EU Charter of Fundamental Rights is needed especially in light of a European Union founded on the values of respect for human dignity, freedom, democracy, equality, the rule of law and respect for human rights, including the rights of persons belonging to minorities.[11] The increasing capacity of the Union's institutions to affect the human rights of its citizens makes it a pre-requisite for all Commission legislative proposals to be checked for compatibility with the EU Charter of Fundamental Rights.

  3.  JUSTICE believes the establishment of such a methodology will promote a strong "fundamental rights culture" within the EU which will give credibility and authority in monitoring respect for fundamental rights in the activities of the Commission.


The impact assessment

  4.  In order to comply fully with the Charter of Fundamental Rights in Commission legislative proposals, the Commission has equipped itself with new horizontal policy programming instruments, notably the impact assessment form. The introduction of two key documents, ie impact assessment and explanatory memorandum, submitted together with the draft legislative proposals at the preparatory and interdepartmental consultation stages will improve the scrutiny for fundamental rights. The impact assessment is intended to give a full and precise picture of the different impacts on individual rights. This impact assessment, however, won't be carried out for all legislative proposals. The reason given is that fundamental rights problems sometimes only arise with detailed implementing provisions or with very specific elements of a legal instrument which an impact could not forecast.[12] JUSTICE regrets that the impact assessment will be not applicable to all legislative proposals and would like to know what the criteria will be for deciding whether or not to subject specific legislative proposals to such an assessment.

  5.  The introduction of a number of additional questions specifically on fundamental rights in the impacts checklist are very welcome. Unfortunately, the Commission's Communication doesn't include the list of questions. JUSTICE would like to see this list of questions in order to check whether the questions asked are relevant concerns of fundamental rights.

  6.  The refusal to create in the checklist of the impact assessment a fourth separate category for fundamental rights aside from the three existing ones (economic, social and environmental) is quite unfortunate. JUSTICE wonders what will happen to those fundamental rights that don't feature in the three categories of the checklist. It is extremely important that all the rights incorporated into the Charter of Fundamental Rights are reflected in the checklist so that an accurate assessment of the human rights situation can be made.

The explanatory memorandum

  7.  Aside from the impact assessment, fundamental rights will also be taken into account in the explanatory memorandum. In 2001 the Commission decided for the inclusion of a recital in "legislative proposals or draft instruments which have a specific link with fundamental rights". JUSTICE regrets that the Charter recital won't be used systematically in the explanatory memoranda. The use of the recital on specific occasions won't bring any coherence in the legislative proposals but rather confusion. The criteria put forward in the Commission's Communication to guide current practice when the Charter recital will be used need to be explained in more detail.

  8.  The rule of briefly summarising the reasons pointing to the conclusion that fundamental rights have been respected in the explanatory memorandum whenever reference is made to the Charter recital is highly appreciated.

Follow-up by the Group of Commissioners

  9.  JUSTICE welcomes the follow-up of the internal monitoring by the members of the Commission, especially those in the Group on Fundamental Rights and Equal Opportunities. Keeping them informed should happen on a regular basis and not only when fundamental rights have been subject to internal monitoring.

  10.  JUSTICE raises some concern to the reference made in relation to the Fundamental Rights Agency. The Commission's Communication mentions "the FRA should be used as input for the methodology"[13] but it is not quite clear what is understood by this, especially when uncertainty still exists surrounding the exact scope and remit of the FRA.

Monitoring the work of the legislature

  11.  JUSTICE is happy to see that the work of the two branches of the legislative authority will be adequately monitored, particularly to determine compliance with fundamental rights. The ability to annul proceedings in the event of an infringement of fundamental rights is an important step forward into the protection of fundamental rights.

  12.  The initiatives put forward by the Commission establish a sound basis to ensure that all Commission legislative proposals are systematically and rigorously checked to fundamental rights. Despite the couple of concerns expressed, JUSTICE believes that this initiative will demonstrate the Commission's effort to secure compliance with fundamental rights, which will reinforce the credibility of its initiatives and will also publicly promote the image of the Charter as an essential vehicle based on common values.

June 2005

11   Article 6(1) TEU. Back

12   Commission Communication on Compliance with the Charter of Fundamental Rights in Commission legislative proposals-COM(2005) 172 final, 27.4.2005, paragraph 14. Back

13   Commission Communication on Compliance with the Charter of Fundamental Rights in Commission legislative proposals-COM(2005) 172 final, 27.4.2005, paragraph 26. Back

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