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
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