Select Committee on European Union Sixteenth Report


Monitoring the passage of legislation

84.  The Communication goes further than its predecessor, the 2001 Decision, by including a new separate section entitled, "Monitoring respect for fundamental rights in the work of the legislature". The Commission, and especially the Group of Commissioners (described below), are to monitor "the work of the two branches of the legislative authority" (i.e. the Council of Ministers and the European Parliament) in order to ensure compliance with fundamental rights. The Communication continues: "The Commission will defend the standards for the protection of fundamental rights laid down in its proposals for legislation and will warn against any unjustified violation of them by the legislature".[41]

85.  We asked the Commission what was envisaged in practice. Dr Ladenburger explained that the Commission would react whenever amendments were presented by the Council or Parliament which it could not accept because it believed they violated fundamental rights. He made clear that the Communication would not require the introduction of specific new measures. It was merely a statement that the Commission was resolved to use its normal authority, as a participant in the legislative process, to defend human rights (Q 25).

86.  ILPA was sceptical as to how effectively the Commission would maintain a strong human rights position. Experience in relation to Justice and Home Affairs matters had not been promising. Professor Guild said: "the engagement of the Commission officials in brokering a compromise among the Member States in the Council and with the Parliament has the tendency of compromising their position as an independent actor in assessing whether or not fundamental rights continue to be complied with". Where the negotiations took place against the background of a political or Treaty deadline, "the political pressure to reach agreement at all costs leads to a diminution of standards". ILPA did not have great confidence that the Commission would carry out effective monitoring throughout the legislative process. They doubted whether the new Group of Commissioners would add much (Q 89).

87.  Notwithstanding the strengths and merits of the methodology set out in the Communication, any system of proofing EU legislation which is solely internal to or dependent on the Commission is subject to two criticisms. First, as Statewatch pointed out, no system of ensuring that EU measures are compatible with fundamental rights can be effective unless the Council and the European Parliament also ensure, throughout their role in EU legislative and decision making processes, that final texts are compatible with fundamental rights. Second, however admirable internal regimes may be, experience, particularly in the United Kingdom context, would suggest that independent expertise from outside the administration may be needed to inform and, where necessary, act as a check on the actors during the legislative process.

88.  Baroness Ashton of Upholland believed that the European Parliament, and in particular the Committee on Civil Liberties, Justice and Home Affairs ("the LIBE Committee"), could play a role in monitoring the legislative process. The Minister said: "[The LIBE Committee] has the capacity to take on many of the functions of the Joint Committee on Human Rights as we know it in our Parliament. We must bear in mind, with the amount of proposals that come out of the Commission, the fact that it probably would be impossible to do all of them, but it certainly can look at, and does look at, proposals that are important to it. The Parliament has its own role in addition to that" (Q 122).

89.  Viewed from our perspective, and particularly in light of the work of the Joint Committee on Human Rights, it seems a little odd that the Commission should be monitoring the legislative process rather than the European Parliament. As the Minister suggested, there is a monitoring role for the LIBE Committee to develop. We greatly encourage it to do so and would welcome the opportunity to discuss with them how best this might be done and what assistance might be given by national parliaments.

Annulment proceedings

90.  The Communication also states that the Commission reserves the right to initiate annulment proceedings (under Article 230 TEC) where it considers an infringement of fundamental rights has occurred and "there is no possibility of interpreting the act adopted as being compatible with fundamental rights". The Communication acknowledges that such proceedings would be "a last resort".[42]

91.  We queried how timely and effective an approach annulment proceedings were to the problem. It is always possible for the Commission to withdraw or alter its proposed legislation before adoption by the Council (Article 250(2) TEC) and so avoid what would seem to have been the most blatant violation. Further, the European Court of Justice might give short shrift to an application to strike down the whole or part of a measure which the Commission had apparently (if only by its silence or inaction) accepted.

92.  Dr Ladenburger did not accept this assessment: "First, the extent of and the conditions for the Commission's right to withdraw are, as you know, not entirely settled in Community law yet; second, the Commission may find it preferable to bring a well defined human rights question before the Court of Justice rather than to block an entire legislative procedure in which it has high interest; and, third, this way of proceeding may be particularly appropriate where it is possible to challenge only particular detachable provisions of a legislative act rather than the act as a whole" (Q 26).

93.  The NGOs acknowledged that the Commission's ability to bring annulment proceedings in the event of an infringement of fundamental rights was potentially an important means of protecting fundamental rights. But again there was an element of scepticism in their comments. Statewatch said: "these are empty words if the Commission does not take the opportunity to bring proceedings against acts which deserve to be challenged on such grounds—in particular the asylum procedures Directive and Framework Decision on data retention, which are due to be adopted shortly" (p 52). ILPA commented: "We look forward to the day when the Commission will match this high-sounding rhetoric with real action, but we remain to be convinced that we will see this any time soon" (p 25).

94.  The Commission's right to bring annulment proceedings is very much a last resort and its exercise may be complicated by political and procedural considerations. We would prefer to see the Commission being more active during the negotiation of legislation in resisting any amendment which may violate fundamental rights and where necessary exercising its right to withdraw or alter its proposed legislation before adoption by the Council.

The Group of Commissioners

95.  In September 2004, shortly after taking up his Presidency of the new Commission, Mr Barroso issued a Communication on the functioning of the Commission.[43] He set down key principles designed to govern the Commission's work and to strengthen the collegiality of Commission policy-making and decision-taking. The 2004 Communication provides: "New momentum needs to be given to the use of groups of members of the Commission … to prepare the work of the College and to provide policy input and guidance".[44]

96.  Five groups[45] of Commissioners have been established, including the Group on Fundamental Rights, Anti-discrimination and Equal Opportunities ("the Group"). It is intended that the groups should, within particular "families" of Commissioners or particular policy areas or issues, contribute to the better preparation and coordination of the Commission's activity, taking account of the Commission's priorities and the political guidance given by the President.[46] The groups are not empowered to take decisions on behalf of the College of Commissioners.

The Fundamental Rights, Anti-Discrimination and Equal Opportunities Group (CG4)

—Chair: President
—Vice Chair: Commissioner for Justice, Freedom and Security
—Commissioner for Institutional Relations and Communication Strategy
—Commissioner for Administration, Audit and Anti-fraud
—Commissioner for Information Society and Media
—Commissioner for Education, Training, Culture and Multilingualism
—Commissioner for Enlargement
—Commissioner for Development and Humanitarian Aid
—Commissioner for External Relations and European Neighbourhood Policy, and
—Commissioner for Employment, Social Affairs and Equal Opportunities.
Mandate: Its mandate is to:

    —Drive policy and ensure the coherence of Commission action in the areas of fundamental rights, anti-discrimination, equal opportunities and the social integration of minority groups;
    —Ensure that account is taken of gender equality in Community policies and actions, in accordance with Article 3.2 of the Treaty.

Proposed frequency: every 3 or 4 months.
Preparation: Mixed Cabinet-Services group, chaired by a Deputy Secretary-General.

The other groups are the Lisbon group (CG1), the Competitiveness Council Group (CG2), the External Relations Group (CG3), and the Communications and Programming Group (CG5).

97.  Dr Ladenburger explained that the main remit of this Group in practice would be to prepare Commission initiatives for adoption by the College (Q 46). In this context we note that the Group has responsibility for taking forward the proposals to create an EU Fundamental Rights Agency (which would replace the European Monitoring Centre on Racism and Xenophobia (EUMC) and have a wider mandate) and a European Institute for Gender Equality (to combat sex discrimination in the EU and promote equality between women and men), as well as formulating an anti-discrimination strategy. Both these proposals are currently held under scrutiny by the Committee.[47]

98.  The Communication states that in addition to the monitoring of compliance with the Charter carried out within the Directorates General, it is "nonetheless important that Members of the Commission, especially those in the Group … keep a close eye on its operation and the main results".[48] JUSTICE welcomed the fact that the Communication envisages the Group being kept informed on a regular basis and hoped that information would not be limited to cases where fundamental rights have been subject to internal monitoring (p 26).

99.  The Legal Service will in practice have the job of keeping the Group informed of developments and preparing a general appraisal of internal monitoring in 2007. The report is to be prepared in conjunction with the Justice, Freedom and Security DG and the Secretariat General of the Commission. The Communication indicates that the report may include proposals to amend or supplement the procedures described in the Communication.[49]

100.  The Communication also envisages that the Group may produce policy guidelines "in very special cases where proposals require a careful balance between several opposing fundamental rights". The Communication acknowledges that its guidelines could not exceed the margins for political discretion afforded for the provisions of the Charter.[50] The Law Society supported the idea that the Group should produce policy guidelines for the case where fundamental rights have to be weighed up against each other. Such guidelines should be drawn up with reference to the case of the European Court of Human Rights, which had much experience of balancing competing rights under the ECHR (p 50).

101.  ILPA doubted whether the Group could play an effective monitoring role if they could not impose sanctions where inadequacy was found (QQ 68, 70). The Government were waiting to see how the Group proposed to take forward its work (Q 125).

102.  We wait to see how active the Fundamental Rights Group will be and what effect the Group will have on the development and implementation of Union legislation and policies enhancing respect for fundamental rights.

Monitoring Member States

103.  The Communication is, as already mentioned, principally limited to the internal legislative processes of the Commission and its monitoring of others restricted to the law making and decision taking processes of the Council and the Parliament. We asked whether the Commission should be monitoring compliance with human rights in relation to Member States' implementation and application of EU measures.

104.  Dr Ladenburger replied that it was a conscious choice of the Commission to restrict the scope of the Communication to the institutions and first and foremost the Commission. Failure of a Member State properly to implement Community legislation, including a violation of fundamental rights, would be a matter on which the Commission could bring infringement proceedings under Article 226 EC (Q 39).

105.  Statewatch acknowledged that monitoring Member States' implementation of Community law would entail a different process than that described in the Communication. The matter was, however, of "critical practical importance" and Statewatch urged the Commission to consider developing such a process: "One element of this could be the issue of interpretative communications by the Commission, suggesting interpretations of relevant EU measures that would ensure the full compatibility of those measures with human rights obligations. Another could be reflecting on the use of the infringement procedure" (p 51).

106.  Both JUSTICE and ILPA saw a role for the Fundamental Rights Agency in monitoring Member States (QQ 92-93). As we explain below, the role of the Agency in this regard is controversial.

107.  Ensuring Member States' respect for fundamental rights within the scope of application of EU law is a matter of concern, as recent developments surrounding the European Arrest Warrant demonstrate.[51] Monitoring Member States is, however, a matter outside the scope of the present Communication.

Strengthening the role of Parliaments

108.  As mentioned above (paras 70-73), attention has been drawn to the lack of external control or supervision of the mechanisms proposed in the Communication.

109.  JUSTICE believed that the Fundamental Rights Agency and national parliaments had an external scrutiny role to play (Q 95). ILPA looked more to the European Parliament: "we have seen the democratic arm of the European Union, the elected part, perhaps more sensitive to fundamental rights issues than any of the other institutions, barring of course the ombudsman" (Q 99). Professor Guild said: "It seems to me that the protection of fundamental rights in any liberal democracy is intrinsically tied to the Parliament; it is the job of the Parliament, it is not a job of the Executive" (Q 100). She did not believe that the proliferation of bodies was necessarily the answer, but the reinforcement of existing committee structures (including the LIBE Committee) and widening the remit might provide a more effective mechanism (Q 101).

110.  The Communication views the European Parliament as one subject for the monitoring to be undertaken by the Commission. But it prompts the question whether the Parliament, and in particular the LIBE Committee, should also assume an active role in monitoring draft legislation for compliance with fundamental rights. As Statewatch suggests, consideration also needs to be given to whether more could be done by national parliaments. Greater involvement by the European Parliament and by national parliaments would go a long way to address the perceived democratic deficit in the mechanisms promoted by the Communication.

The Fundamental Rights Agency

111.  The Communication envisages a role for the Fundamental Rights Agency ("the Agency"): "Its activities and work … should be used as input for the methodology".[52] At present the Agency is merely a proposal,[53] but the Commission is proceeding on the basis that it will be operational in 2007. However, the extent of the Agency's mandate and its relationship with the EU institutions and the Member States are, as the Minister explained, subjects on which there are widely differing views (Q 127). Baroness Ashton of Upholland said: "We do not see it as having a role with individual Member States but we recognise that it would want to work across Member States … in looking at analysis of data, making sure we have consistency of view, and so on" (Q 128).

112.  JUSTICE expressed concern about the reference to the Agency being "used as input for the methodology". JUSTICE said: "it is not quite clear what is understood by this, especially when uncertainty still exists surrounding the exact scope and remit of the FRA" (p 26). Statewatch was also critical of the Communication for not going far enough in spelling out the role that the Agency might play. Nor did the Communication address the position of the existing Network of independent experts (p 52).

113.  JUSTICE saw the Agency as having a role in pre-legislative scrutiny as well as implementation (Q 92). The Law Society also wanted the new Agency to undertake pre-legislative scrutiny: its expertise should not be limited to formal consultations undertaken by the Commission but should be sought during preparations of any proposal affecting fundamental rights. In the Law Society's view, the expertise and data collected by the Agency "should feed into the Commission's impact assessments and its legal analysis of compatibility with the Charter" (p 50).

114.  But the Government were cautious as to whether the Agency should take on such a role because of the possible implications for resources and therefore for what else the Agency would be able to do (Q 129).

115.  We asked the Commission whether it was envisaged that the Agency would act as a scrutineer during the process of the legislation, with its own procedures and conclusions being open to the public. Dr Ladenburger thought that the Agency's input would not be limited to the methodology itself. It would also address substantive questions, in the sense that the Commission would be able to make use of the research, data, analyses etc of the Agency. Dr Ladenburger accepted that the possibility of the Agency scrutinising proposals and draft legislation was something to be considered (QQ 18-19).

116.  As mentioned above, the Fundamental Rights Agency is currently only a proposal and there are differing views on what its role should be, not just in relation to draft EU legislation but also the Member States. There is also a need to make clear how the work of the Agency would relate to the well-established role of the Council of Europe concerning the definition and safeguarding of human rights.[54] The proposal raises a number of concerns and is currently held under scrutiny. We shall pursue these questions further in that context.

41   Communication, at para 28. Back

42   Communication, at para 29. Back

43   Commission's Communication of 21.12.2004 on the functioning of the Commission and internal coordination ((SEC) 2004 1617/4). Back

44   Ibid, at para 28. Back

45   The Commission's Rules of Procedure enable the President to set up working groups of Members. See Article 3 of The Rules of Procedure of the Commission. C (2000) 361, [2000] OJ L308/26. Back

46   The 2004 Communication on the functioning of the Commission envisages the groups contributing to the improved implementation of the Commission's political priorities with its Annual Work Programme, developing a medium term strategic vision for broad policy areas within their responsibility, and providing policy orientations at an early stage for important issues (e.g. prior to the drafting of Green Papers, Communication, work on impact assessment etc). They would also prepare, at the request of the President, items to be placed on the agenda of Commission meetings. Back

47   The proposal for a Fundamental Rights Agency (doc 10774/05) is held under scrutiny by Sub-Committee E. The proposal for a European Institute for Gender Equality (doc 7244/05) is held under scrutiny by Sub-Committee G. Back

48   Communication, at para 25. Back

49   Communication, at para 25. Back

50   Communication, at para 25. Back

51   The German Constitutional Court has recently struck down the way in which Germany has implemented the Framework Decision on the European Arrest Warrant. See Bundesverfassungsgericht Press Release no 64/2005 of 18 July 2005. Back

52   Communication, at para 26. Back

53   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. COM(2005) 280 final. The proposal is currently held under scrutiny-doc 10774/05. Back

54   The Hague Programme: a five year agenda for EU justice and home affairs (10th Report, 2004-05, HL Paper 84, at para 15). Back

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