Select Committee on European Union Thirty-Seventh Report


29th REPORT: HUMAN RIGHTS PROTECTION IN EUROPE: THE FUNDAMENTAL RIGHTS AGENCY

Letter from Rt Hon Baroness Ashton of Upholland, Parliamentary Under Secretary of State, Department for Constitutional Affairs to the Chairman

  I am grateful to the Committee for its report on "Human rights protection in Europe: the Fundamental Rights Agency". I fully share the Committee's concern[27] that "a failure to delineate properly the tasks of the Agency could lead to wasteful duplication of the work of other bodies in the field". I also agree with the Committee that the Agency should not become just a "post box for collecting and sorting data". The Government's efforts in the Council negotiations are aimed precisely at avoiding this situation.

  As stated in its response to the 2004 Commission consultation paper on the Fundamental Rights Agency, the Government believes that it is essential that the Agency should provide genuine "added value" by establishing itself as an effective body able to make a real contribution to the furtherance of human rights. To this end, the Government believes that, with finite resources, it is necessary for the Agency to concentrate upon the areas in which it has the greatest potential relevance and utility. Its primary purpose (building upon the mandate of the European Monitoring Centre on Racism and Xenophobia) should be as a fact-finding and opinion-giving body able to assist Community Institutions on fundamental rights issues.

  It is clear from the Committee's "detailed recommendations"[28] that the Committee does not share several key aspects of the Government's view on the Fundamental Rights Agency. I would like to address the Committee's recommendations in turn.


LEGAL BASE

Paragraph 130. When the final role of the Agency is clear, the Government should report to Parliament on the question of the legal base (para 37).

  The Government will be happy to report again to Parliament on the question of the Agency's legal base once the Agency's role is finalised. The Government and all Member States are clear that Article 308 TEC[29] is the appropriate legal base for the Regulation establishing the Agency. Article 308 TEC provides the Council with the means to attain the objectives of the Community if the Treaty has not provided the necessary powers.

  The Commission proposal on the Fundamental Rights Agency will be adopted by the Council in consultation with the European Parliament. I would like to clarify paragraph 5 of the Committee's report[30] to state that the Council is not treating this dossier as if subject to the co-decision procedure but is consulting the European Parliament, namely the LIBE[31] Committee, on its content.

GEOGRAPHICAL SCOPE

  Paragraph 132, More detailed provisions for co-operation between the Council of Europe and the Agency in relation to third countries should be set out in the Memorandum of Understanding. The Memorandum should in particular specify the nature of the Council of Europe's role in assisting the EU in these cases and how the Agency would be involved in the process (para 61).

  Paragraph 133. The power to consult the Agency in relation to third countries should not be reserved to the Commission. The Parliament should also be able to make a request for the assistance of the Agency where the Parliament needs to consider the human rights position in third countries (para 61).

  Paragraph 134. Candidate countries should be able to participate in the Agency. These countries, although already members of the Council of Europe as required by the Copenhagen Criteria, would potentially derive substantial benefits from the assistance of the Agency as they prepare for Union membership (para 63).

  The Government agrees with the Committee that candidate countries should be able to participate to the Agency. In fact, Article 27 of the proposed Regulation on the Fundamental Rights Agency gives candidate countries the possibility of participation in the Agency subject to the decision of the relevant Association Council. Nevertheless, as already explained in previous correspondence with the Committee, the Government considers that extending the geographical scope of the Agency to include potential candidate countries and third countries (in other words, the rest of the world) would have serious negative repercussions on the Agency's limited resources, take the Agency's main focus away from the European Community and duplicate the work of the Council of Europe. This topic is the subject of intense negotiations in the Council Working Group where there is very little support for an Agency's third country remit.

  The Commission is leading the discussions on the Memorandum of Understanding between the European Union and the Council of Europe. The Government, like the other Member States, will have the possibility to view the final draft but it is ultimately the Commission which will adopt it on behalf of the Union.

THEMATIC REMIT

  Paragraph 136. The very limited general role envisaged for the Agency by the Commission does not add much, if any, value to existing mechanisms, it only serves to reinforce the views of its critics who argue against the proliferation of useless agencies in the EU. The Agency must have the power to seek specific information from EU institutions and Member States and to probe them should they delay in providing it (para 70).

  Paragraph 137. The Agency could play a valuable role in providing external monitoring of Commission proposals. Although we agree that a systemic assessment of the human rights implications of every legislative proposal would be too onerous a task, the Agency should be permitted to carry out legislative scrutiny as it sees fit (para 73).

  Paragraph 138. In order to assist the Agency with this task, EU institutions should be obliged to provide it with information as to whether they consider that their actions are compatible with the protection of fundamental rights and draft legislative proposals which raise obvious human rights concerns should be referred to the Agency for an opinion (para 73).

  Paragraph 139. The Agency should have an Article 7 TEU remit. We would be in favour of a right of initiative for the Agency in this area provided that the necessary Memorandum of Understanding with the Council of Europe is in place. However, given that Article 7 is rarely invoked in practice, we are satisfied with the current provision (para 76).

  Paragraph 140. It is essential that the Agency be empowered to carry out its activities in third pillar areas given that proposals in the third pillar regularly engage fundamental rights. We are, however, satisfied that the Agency is to have no second pillar remit at the present time (para 80).

  The Government considers the remit of the Agency to have been appropriately defined by the Commission in the proposed Regulation. The Agency's primary focus should remain assisting Community Institutions on fundamental rights issues. The Regulation itself sets out the mechanisms to achieve this goal and ensure the co-operation of both the EU Institutions and the Member States. I do not wish to anticipate my answer to the Committee's recommendations on the Agency's independence, but I would like to stress that it is precisely to strengthen the link between the Agency and the Member States that the Government would prefer to retain the National Liaison Officers[32] and to ensure that the Agency's Multiannual Framework is adopted by the Council on a proposal from the Commission and in consultation with the European Parliament. These steps, the Government believes, will ensure adequate interest and support from Member States to the work of the Agency.

  The Government is clear that the Agency should not play a formal pre-legislative scrutiny role on Commission proposals nor it should be transformed into a commission of inquiry on fundamental rights. The treaties are very specific on these issues and provide detailed procedure on the monitoring of EC legislative proposals[33] (both before and after they become EC law) and on the EU Institutions involved in the procedure in the case of serious human rights breach by Member States.[34] As regards the proposed role for the Agency under Article 7 TEU, the UK considers that there is no legal base for such a role as no provisions can be found either within the TEC or the TEU that would empower the Community or the Union to adopt further rules supplementing the procedure under Article 7 TEU.

  The Government also believes that there is insufficient legal base for the Agency's proposed third pillar remit. The proposed legal base for the third pillar remit (Articles 30, 31 and 34(2)(c) TEU) is inadequate as it refers to the fields of police and judicial co-operation in criminal matters (including specific agencies such as Europol and Eurojust) and not the general promotion of fundamental rights. Therefore the Council does not have, under the current treaties, the necessary powers to adopt the proposed decision on the third pillar remit. Furthermore, the Government considers that expanding the Agency's focus outside Community law would not "add value" since the Agency would duplicate existing human rights monitoring effectively carried out by the Council of Europe and other international bodies.

REFERENCE TO THE CHARTER

  Paragraph 141. We do not consider it to be possible to monitor fundamental rights across the EU without reference to the European Convention on Human Rights as this is the seminal instrument in this field. Although the Agency would almost certainly have regard to the Convention in practice, Article 3(2) should refer explicitly to the ECHR in recognition of its special position in the European human rights framework (para 82).

  Paragraph 142. We agree that the Agency should use the Charter as its principal point of reference. We would not, however, expect the Agency to become involved in the monitoring of the Treaties generally; this should remain the job of the Commission (para 84).

  The Government agrees with the Committee that fundamental rights issues across the European Union should be considered also in the light of the European Convention on Human Rights (ECHR). However, it considers that a reference to the ECHR in the Regulation would be inappropriate as it might give rise to confusion regarding two separate legal orders: EC law and ECHR.

  The Government agrees with the Committee that the Agency should refer to the Charter of Fundamental Rights as an important political declaration reaffirming rights already agreed by Member States in previous ,treaties, including the ECHR. The Charter is not, at this stage, legally binding and, to avoid any confusion with regard to its legal status, any reference to it should be moved from the Regulation to the Recitals and accompanied by the official explanations. The Government fully agrees with the Committee that the use of the Charter as an important reference document does not imply that the Agency will have a monitoring role on treaties.





    -  Scrutinise the legality of Commission proposals adopted under Article 250 TEC.

    -  Concern itself with the review of the legality of EC legislation carried out by the European Court of Justice under Article 230 TEC.

    -  Consider whether a Member State has failed to fulfil an obligation under the TEC. Thus the FRA will not have the powers that the Commission has under Article 226 TEC, namely the power to submit an opinion to Member States about alleged failures or to bring infraction proceedings (although the Agency's reports could be used by the Commission to do so).

MECHANISMS FOR CO-OPERATION

  Paragraph 144. The negotiation of the Memorandum should be a priority for Member States and the creation of the Agency should be conditional upon its conclusion and its agreement by the Council of Europe (para 92).

  Paragraph 145. The Agency could play a valuable role in helping to alleviate the caseload of the European Court of Human Rights through ensuring better compliance with fundamental rights. We trust that the Agency will work closely with the Court to identify the nature and content of that role. In particular, the relationship between the Court and the Agency should be clarified in the Memorandum of Understanding to be agreed (para 93).

  The Government agrees with the Committee's recommendation that clear and defined mechanisms of co-operation between the Agency and the Council of Europe are essential if any overlap between the two institutions is to be avoided. As mentioned earlier, the Commission is leading the negotiations with the Council of Europe on the drafting of a Memorandum of Understanding (MoU). At my last appearance in Sub-Committee E to discuss the Fundamental Rights Agency,[35] the Committee was already reviewing a first draft of the MoU dated 18 January 2006. To my knowledge, discussions are still underway between the Commission and the Council of Europe and no final MoU has been agreed yet. Although I share the Committee's concern about the shape of the MoU, I must remind the Committee that the Commission is ultimately responsible for negotiating and adopting this document as part of its role of external representation of the EU. However, the Government is clear that, if the Agency's remit is confined to Community law and its geographical scope to the EU and candidate countries, the risk of overlap with the Council of Europe would be greatly reduced.

  The Government does not see how the Agency can play a direct supporting role to the European Court of Human Rights as the latter is not part of the European Union and the Agency's main role will be assisting Community institutions. However, provided that there is no overlap between the activities of the Agency and those of the Council of Europe, the Government agrees with the Committee that, by promoting better compliance with fundamental rights, the Agency can indirectly help reducing the caseload of the European Court of Human Rights.

THE EUROPEAN INSTITUTE OF GENDER EQUALITY

  Paragraph 149. We do not agree that gender rights would be "marginalised" were they to be dealt with by a general fundamental rights agency. It would be somewhat inconsistent to absorb the work of the EU Monitoring Centre for Racism and Xenophobia within the Agency and at the same time seek to establish a separate body to look at gender equality. The Agency could effectively carry out the work envisaged for the Institute (paras 108-109).

  Paragraph 150. We see positive advantages in having a single body to cover human rights and all equality strands. This would strengthen the ability to promote a culture that respects the dignity, human rights and worth of everyone and deliver some economies of scale (para 110).

  Paragraph 151. We do not consider the possible future merging of the Institute and the Agency to be an attractive alternative to the establishment of a single body from the outset. If the Council does proceed to establish two separate agencies, we recommend that the Institute be established in Vienna to maximise co-operation and facilitate merging the two bodies at a later date (paras 111-112).

  Paragraph 152. The Agency and the Institute should co-operate closely with one another on a regular basis. The Institute should make full use of its powers to attend the management board meetings of the Agency as an observer. We would be in favour of a more direct consultation between the Agency and the Institute in the preparation of the Agency's Annual Work Programme and the Institute's annual programme of activities and suggest that the Directors of the two bodies could play a role in achieving this (para 113).

  As I stated during my oral evidence in Sub-Committee E on 1 March, the Government takes the view that gender equality would be best served by a separate body able to address issues specific to gender equality in the European Union, such as employment discrimination and child care. Merging the proposal for a European Gender Institute with the proposal for a European Fundamental Rights Agency might result in a loss of focus in these areas, and also give rise to a legal problem based on the different legal bases of the two bodies: Articles 13(2) and 141(3) TEC for the European Gender Institute and Articles 308 TEC for the European Fundamental Rights Agency.

  The subject of the location of the Institute has not been formally raised yet although several Member States have begun campaigning to host it. I totally agree with the Committee that the Agency and the Institute should closely co-operate but it is something that the two Agencies, particularly the two Directors, should be discussing as soon as they are in place.

INDEPENDENCE

  Paragraph 153. It is imperative that there be no unnecessary interference in the running of the Fundamental Rights Agency and an express provision to this effect should be included in the Regulation (para 118).

  Paragraph 154. Although there may be possible tensions between the stipulation in Article 15 that the Agency is to perform its tasks in complete independence and the role of the Commission in elaborating the Agency's work programme under Article 5, we are not persuaded that these will have an impact on the Agency's independence in practice and are satisfied that the Commission should adopt the Agency's Multiannual Framework provided that the European Parliament is consulted prior to the adoption of the Framework (para 119).

  Paragraph 155. it would not be prudent to increase the role of the Council in the running of the Agency. In particular, the Council should not have the power to approve the Agency's Annual Work Programme (para 120).

  Paragraph 156. The Agency should be accountable to the European Parliament. Should the management board be composed of Member States' representatives, its members should be subject to the approval of the European Parliament. The appointment of its Director should likewise be subject to the European Parliament's approval, as should his dismissal (para 121).

  I have already anticipated my point on the Agency's independence in my answer to the "thematic remit". The Government agrees with the Committee that the Agency should be as independent as possible. However, the Committee surely recognises the need to maintain a strong link between the Agency and the national governments, something that was also recommended in the 2002 evaluation of the European Monitoring Centre on Racism and Xenophobia.[36] It is essential for the success and effectiveness of the Agency that Member States are interested in its work and findings and provide their full assistance to the Agency, as the Committee has acknowledged. The Government is clear that this goal can be achieved by empowering the Council to adopt the Agency's Multiannual Framework (MF) on a proposal from the Commission and in consultation with the European Parliament. The Agency's Annual Work Programme should also focus on the thematic areas indicated in the MF and the National Liaison Officers should be retained.

  Making the Agency accountable to the European Parliament would only distance the Agency from Member States with potential negative consequences on the degree of support the Agency will receive from Member States in carrying out its primary task of data collection and analysis.

MANAGEMENT STRUCTURE

  Paragraph 157. The management board of the Agency should comprise a maximum of eleven members. It should be composed of representatives of the Council, representatives of the European Parliament, representatives of the Commission and representatives of the Council of Europe (para 126).

  Paragraph 158. We would expect the Parliament and the Council to be equally represented on the management board and would welcome the inclusion of two representatives of the Council of Europe, which we envisage would be filled by the Human Rights Commissioner and the Secretary General (or their representatives). This would ensure that no one institution had control of the management board and enhance the Agency's independence and cooperation with the Council of Europe (para 127).

  Paragraph 159. The composition of the executive board of the Agency should also be altered to ensure fairer representation. It should be composed of one representative from each of the Council, the European Parliament, the Commission and the Council of Europe, plus the chairperson of the management board (para 128).

  The Government fully shares the Committee's suggestion to appoint "representatives" instead of "independent persons" to the Agency's Management Board. In order to ensure close co-operation with the Council of Europe, the Government also supports the presence of the representative of the Council of Europe in the Executive Board as well as in the Management Board. However, for the reasons stated in my reply to the section on the Agency's independence, it cannot support the Committee's recommendation for an equal representation of the three EU Institutions inside the Management Board. Apart from creating the problem of which Member State, among 25, should be represented on the Board, it would also make the Agency equally accountable to the three Institutions with again potentially negative repercussions on the degree of support that Member States would be willing to extend to the Agency's work.

  Let me conclude by stating my full appreciation of the Committee's concerns with regard to the independence of the Agency and its effectiveness in the field of fundamental rights within the European Union. However, I am equally concerned about not going beyond what the current treaties allow us to do and what Member States are prepared to accept at this stage. I envisage a Fundamental Rights Agency starting with a clearly defined primary focus: assisting Community Institutions on fundamental rights issues.

18 April 2006


Letter from the Chairman to Rt Hon Baroness Ashton of Upholland

  Thank you for your response to our Report Human Rights Protection in Europe: the Fundamental Rights Agency. We are pleased to see that you have answered our recommendations in some detail; we are, however, disappointed that you are unwilling to take on board many of our comments. We make our detailed comments below.

LEGAL BASE

  We look forward to hearing from you on the question of legal base once the Agency's role has been finalised.

  In respect of the involvement of the European Parliament, we did not intend to imply that the proposal is subject to the rules and procedure of co-decision; our reference in the Report to the Parliament's participation in the elaboration of the proposal referred to the agreement between the institutions that a series of trialogues, a feature of the co-decision (and not the consultation) procedure which allows the European Parliament to participate in informal meetings with the Council and the Commission intended to broker an early deal between the institutions, would take place. We trust that this clarifies the matter.

GEOGRAPHICAL SCOPE

  We note what you say regarding the geographical scope of the Agency. However, we believe it important to recognise the distinction between States entitled to "participate" in the Agency (candidate countries) and States which may be monitored by the Agency (third countries), outlined in paragraphs 22-24 of our Report. We remain unconvinced that the Agency will be overwhelmed in the way you suggest.

THEMATIC REMIT

  As we said quite clearly in our Report, there is little value in creating an Agency which has no real power and can therefore add no value. We note that you remain firmly against a formal legislative scrutiny role; in your evidence before this Committee you did, however, envisage an informal scrutiny role for the Agency. Do you consider that the Agency will have the competence to carry out such a role, given the wording of article 4(2)?

  We are disappointed that you continue to oppose a Third Pillar remit for the Agency. We do not share your view that such a remit would necessarily lead to duplication with the work of the Council of Europe. Do you not agree that there are cases, such as the European Arrest Warrant, where advice on compliance with fundamental rights at both the legislative and implementation stages might be very helpful? Is there not a role here for a body with detailed knowledge of EU law?

REFERENCE TO THE CHARTER

  We do not agree that an express reference to the European Convention on Human Rights in the proposal would lead to confusion regarding the two European systems (the Council of Europe and the European Union). Indeed, a reference to the European Convention on Human Rights in the proposal could serve to flag up the difference between the two separate systems. We note that the Prime Minister of Luxembourg, in his recent report on EU-Council of Europe relations, recommended that the Statute of the Agency contain an express reference to the European Convention on Human Rights.[37]

  You say that the Government would like reference to the Charter to be moved from the body of the text to the Recitals. We do not see how its inclusion in the text can affect its legal status and would be grateful for clarification of your concerns.

MECHANISMS FOR CO-OPERATION

  We are concerned by your suggestion that Member States will only see a final draft of the Memorandum of Understanding with the Council of Europe. We would expect Member States to participate actively in identifying what the content of the Memorandum should be. While responsibility for concluding the Memorandum of Understanding rests with the Commission, the Council remains responsible for the adoption of the Regulation establishing the Agency. It is therefore for the Council to satisfy itself that the appropriate protections against duplication are in place and to take steps if they are not.

  We do not suggest in our Report that the Agency would assist the Court in a formal way. Rather, in line with the general message conveyed by the Report, the Committee seeks to promote meaningful dialogue between the Agency and Council of Europe institutions to minimise overlap and ensure the maximum effectiveness of the Agency. Do you agree that dialogue between all institutions concerned—Council of Europe and EU—will be important in preventing overlap?

THE EUROPEAN INSTITUTE FOR GENDER EQUALITY

  We note your position on this but remain of the view that there should be one body only. Any legal base issues would be more easily resolved at this stage than at a later stage, should the amalgamation of the two bodies be agreed.

INDEPENDENCE

  The Committee is in favour of strong support from Member States for the Agency; however, we do not agree that this should come at the cost of the Agency's independence and integrity. The Agency's success in the international framework of human rights bodies will be jeopardised if it seen to be merely an agent of the Member States. The Report to which you refer for support in arguing for more Member States control does not appear to make recommendations of the specific nature you imply and we continue to maintain that the Agency should be accountable to the European Parliament and not to the Council.

MANAGEMENT STRUCTURE

  We are pleased that you are in favour of Council of Europe representation on the Agency's executive board. However, we are aware that the management structure of the Agency remains under discussion and look forward to hearing from you in due course on the emerging consensus. We trust that you will give full consideration to the management possibilities of the Agency to ensure that the final structure chosen maximises the daily efficiency of the Agency and the proper participation of the Council of Europe.

TRIALOGUE UPDATE

  We understand that we are supported in a number of our recommendations by the LIBE Committee of the European Parliament. In particular we are advised that the Parliament favours a Third Pillar remit for the Agency. How many Member States oppose a Third Pillar remit? Would the Government maintain their objections on this in the face of support from a majority of Member States?

  We are aware that the proposal has been the subject of detailed discussion in the Council. Our Report dealt with the Commission's original draft. We would expect a new draft of the proposal to be submitted for scrutiny if substantial changes have been made. This should be provided in time to allow Parliament to scrutinise the document prior to any agreement in the Council. We would be grateful if you would in any case provide us with an update of the negotiations and the current shape of the proposed Framework Decision prior to the 8 June debate.

  It would be helpful to, have your response to this letter by close of play Friday 2 June to allow the Committee to consider your comments prior to the debate.

18 May 2006

Letter from Rt Hon Baroness Ashton of Upholland to the Chairman

  Thank you for your letter of 18 May 2006 in which you highlight the issues on which the Committee has concerns. I am also most grateful to the Committee for bringing forward the debate on the FRA to 8 June 2006 in view of the Austrian Presidency's decision to take the dossier to the General Affairs and External Relations Council of 12-13 June 2006 for political agreement.

  I would also like to inform you that the Government is considering your letter of 15 March 2006 on "Human Rights Proofing of EU Legislation" and my Department is co-ordinating a separate response. I apologise for the time this response is taking. This is due to the potentially wide implications, well beyond my Department, that your suggestions may have. I believe Government officials have recently met with the Committee's Clerk to clarify the outstanding issues. We are aiming to respond to your letter before the summer recess.

  Following my reply of 18 April 2006 to the Committee's Report,[38] I would like to take this opportunity to clarify further the Government's position on the FRA.

LEGAL BASE

  Although discussions on the Agency's role are still in progress, I can confirm that there is consensus among Member States to use Article 308 Treaty establishing the European Community (TEC) as the legal base of the Regulation establishing the Agency.

GEOGRAPHICAL SCOPE

  There now seems to be consensus among Member States to extend the Agency's geographical remit to six potential candidate countries that are part of the Stabilisation and Association Process (SAP), Croatia, Albania, Bosnia and Herzegovina, Serbia, Montenegro and the former Yugoslav Republic of Macedonia. As prospective Member States of the European Union, these countries will undergo a process of adaptation of their domestic law to Community law. The Agency may play a role in assisting these countries on fundamental rights issues arising from this process.

  For the reasons already stated in previous correspondence, I remain sceptical about extending the Agency's geographical remit any further to include third countries as the Committee suggests in paragraph 23 of its Report. Most Member States are also opposing an Agency's third country remit.

THEMATIC REMIT

  I agree with the Committee that an Agency with no real power would not add value to the system of human rights protection in the European Union. The Committee should know that Article 4(2) of the proposed Regulation (as amended by the Presidency) now allows for a limited legislative scrutiny role. According to this Article, the Agency will be able to formulate opinions on specific thematic topics, at the request of the European Parliament, the Commission or the Council, in relation to Commission legislative proposals under Article 250 TEC. However, the Agency will not be empowered to scrutinise the legality of Community law nor to question whether a Member State has failed to fulfil an obligation under Community law.

  I have to disagree with the Committee on the need to retain the Agency's third pillar remit (Title VI of the Treaty on European Union—Provisions on Police and Judicial Co-operation in Criminal Matters). I acknowledge that advice on compliance with fundamental rights in Third Pillar matters might be helpful but I do not consider that the current treaties allow the Agency to have such a remit. In contrast to those matters covered by the TEC, the Member States chose to retain the more intergovernmental processes of the Treaty on European Union (TEU) for police and judicial co-operation in criminal matters. There is no equivalent in the TEU to Article 308 TEC, which enables the establishment of an Agency that will exercise its functions in the field of Community activity. It is not the case that the area of police and judicial co-operation in criminal matters would be free of any scrutiny concerning fundamental rights if the Agency did not have a third pillar remit. Well-established mechanisms exist through the Council of Europe and national law and these would continue to operate as they do now.

  Four Member States currently support the UK Government in its opposition to the Agency's third pillar remit.

REFERENCE TO THE CHARTER

  The Government is considering whether a reference to the European Convention on Human Rights should be retained in the body of the Regulation. The Government maintains its view that it would be inappropriate to include a reference to the Charter of Fundamental Rights in the body of the Regulation as this might cause confusion about the legal nature of the Charter. The Charter remains an important political declaration but it is not legally binding. Therefore, in the Government's view, any reference to it should be moved to the Recitals.

MECHANISMS FOR CO-OPERATION

  I agree with the Committee that the Council remains responsible for the adoption of the Regulation establishing the Agency and that it should satisfy itself that "the appropriate protections against duplication" with the Council of Europe are in place. It is also for this reason that the Government is concerned not to widen the Agency's geographical scope to third countries and not to extend the Agency's remit to Third Pillar matters. I believe that, in both cases, the Agency would duplicate the work carried out by the Council of Europe. As the Committee states, the European Commission is responsible for concluding the Memorandum of Understanding which will establish the principles under which the co-operation between the two bodies will take place. However, it should be noted that, because all Member States are also part of the Council of Europe, Member States will have the possibility to review and amend, where necessary, the Memorandum of Understanding prior to its adoption.

  I fully agree with the Committee that dialogue between the EU and the Council of Europe will be essential to avoid any overlap between the FRA and the Council of Europe. I am therefore pleased that there seems to be consensus among Member States on the need to ensure a person appointed by the Council of Europe sits on both the Management Board and the Executive Board of the Agency. This mechanism and the continued primary focus of the Agency on advising Community institutions on fundamental rights issues, will minimise the risk of duplication.

EUROPEAN INSTITUTE FOR GENDER EQUALITY

  I am afraid that the issue of merging the Institute for Gender Equality with the Agency remains an area of genuine disagreement with the Committee. I will not repeat the argument against the merger but I would like to stress that merging together the two Agencies would mean re-opening the discussions on the Agency's legal base. At this final stages of the Council negotiations on both dossiers, it would be politically unrealistic to aim to reach a consensus on the Agency's legal base, other than Article 308 TEC, by the end of the Austrian Presidency to enable the Agency to start its activities on 1 January 2007.

  I remain very much in favour of close co-operation between the two Community bodies. To this effect, the Director of the Institute for Gender Equality will attend the meetings of the Agency's Management Board, as an observer. I also expect the officials of both bodies to work closely together.

INDEPENDENCE

  There now seems to be consensus among Member States to appoint "independent persons" instead of "representatives" of Member States to the Agency's Management Board. Although negotiations are still in progress, most Member States now seem in favour of ensuring that the European Parliament will be consulted on the adoption of the Agency's Multiannual Framework. The European Parliament will also have a greater role in the appointment of the Director.

MANAGEMENT STRUCTURE

  There seems to be consensus among Member States on a management structure composed of: Management Board (with "independent persons" instead of "representatives"), Executive Board (with one representative of the Commission, instead of two), Director (appointed by the Management Board after consultation with the European Parliament), Scientific Committee (composed of independent human rights experts appointed by the Management Board as guarantors of the scientific quality of the Agency) and a Fundamental Rights Platform (a network of human rights NGOs that will maintain the link with organised civil society). The person appointed by the Council of Europe would sit on both the Management Board (with restricted voting rights) and the Executive Board (as an observer).

  For your information, I attach the latest Presidency text of the proposed Regulation (not printed) with the caveat that negotiations are still continuing and the text will undoubtedly be revised again in the next few weeks.

2 June 2006




27   House of Lords European Union Committee, 29th Report of Session 2005-06 on Human rights protection in Europe: the Fundamental Rights Agency, paragraph 129, p 39. Back

28   Op cit, pp 39-42. Back

29   Treaty establishing the European Community. Back

30   Op cit, p 8. Back

31   Commission des Libertés Civiles, Justice et Affaires Intérieures (Civil Liberties, Justice and Home Affairs Committee). Back

32   Officials appointed by Member States and acting as contact points between the "European Monitoring Centre on Racism and Xenophobia" and national governments. Back

33   Articles 226, 230 and 250 TEC. In particular, under the current proposal, the Agency cannot take the following actions: Back

34   Article 7 TEU. Back

35   Oral Evidence on "European Fundamental Rights Agency", House of Lords, EU Select Committee (Sub-Committee E), 1 March 2006. Back

36   Centre for Strategy and Evaluation Service (on behalf of the European Commission), Evaluation of the European Monitoring Centre on Racism and Xenophobia, May 2002 (Recommendations 16-21 pp 87-89, Recommendation 24 p 91). Back

37   Juncker, Jean-Claude A sole ambition for the European Continent, published 11 April 2006. Back

38   House of Lords European Union Select Committee, Human rights protection in Europe: the Fundamental Rights Agency, 29th Report of Session 2005-06, 4 April 2006. Back


 
previous page contents next page

House of Lords home page Parliament home page House of Commons home page search page enquiries index

© Parliamentary copyright 2007