C Explanatory memorandum
by Mr Cilevičs, rapporteur
1 Introduction
1.1 My mandate
1. The present report stems from a motion for a resolution
on the need to avoid duplication of the work of the Council of Europe
by the European Union Agency for Fundamental Rights (
Doc. 11521),
Note tabled by Mrs Leutheusser-Schnarrenberger
(Germany, ALDE) and other members of the Assembly on 31 January
2008. On 2 June 2008, the Committee on Legal Affairs and Human Rights
appointed me as rapporteur.
2. The motion for a resolution reiterated a number of concerns
regarding the dangers of the European Union Agency for Fundamental
Rights (“the agency”) replicating tasks performed by the Council
of Europe. Following my appointment as rapporteur, I therefore decided
to look more closely at the problems that this might create, as
well as the specific areas in which the risk of duplication is most
real.
3. On 11 September 2009, the committee held an exchange of views
with experts on these issues, in order to identify possible areas
of duplication of the Council of Europe’s and the agency’s tasks.
The following experts took part in this hearing:
- Mr Morten Kjaerum, Director
of the Fundamental Rights Agency of the European Union, Vienna
- Mrs Florence Benoît-Rohmer, Professor, Chairperson of
the Scientific Committee of the Fundamental Rights Agency
- Mr Krassimir Kanev, Director of the Bulgarian Helsinki
Committee, Sofia
- Mr Rick Lawson, Professor, Faculty of Law, University
of Leiden
4. At the invitation of Mr Morten Kjaerum, the director of the
agency, I carried out a visit to the agency’s headquarters in Vienna
on 30 October 2009. During this visit, I met with Mr Kjaerum, Mr
Guy de Vel, the independent person appointed by the Council of Europe
sitting on the agency’s management board and its executive board,
and its staff members, Mrs Eva Sobotko and Mrs Maria Amor Martin
Estebanez. We discussed the different forms and possible areas of
co-operation between the Council of Europe and the agency, as well
as the latter’s remit, also in the perspective of the entry into
force of the Lisbon Treaty.
5. In November 2009, I also met with the chairperson of the Management
Board of the agency at that time, Mrs Anastasia Crickley, and Mrs
Ilse Brands Kehris, a member of the agency’s executive board,
Note with whom I discussed the current forms
of co-operation between the Council of Europe and the agency and
whether there was a real risk of unnecessary duplication of tasks
of the two institutions.
1.2 Aim of this report
6. During the negotiations leading to the creation of
the agency in 2007, considerable trepidation was expressed,
inter alia, by the Parliamentary
Assembly
Note and the Secretary General of the
Council of Europe regarding the role of the agency. The primary
concern was that the newly founded agency would undermine the Council
of Europe’s sphere of authority in the field of human rights protection
in Europe by duplicating parts of the work of Council of Europe
bodies. Such duplication, it was argued, could result in dividing
lines within Europe, cause confusion and waste valuable resources.
It was argued – and rightly so – that a
modusvivendi would need to be found to
permit the newly created agency to take into account and not undermine,
in its work, the highly developed and effective human rights instruments
and mechanisms developed by the Council of Europe consisting of
47 member states, including all 27 European Union member states.
NoteNote
7. That said, one can say now that such a
modus
vivendi has been found in the regulation founding the agency,
Note the Memorandum of Understanding
between the Council of Europe and the European Union of 2007
Note and the 2008 agreement on the co-operation
between the latter and the Council of Europe.
Note Furthermore, in its work, the agency
often refers to the European Convention on Human Rights (ECHR) and
other Council of Europe instruments. However, concerns still appear
to exist regarding the potential for the work of the Council of
Europe to be unnecessarily duplicated by the agency, as well as
the possibility of the agency’s mandate being extended.
8. The Assembly’s main concern relating to the existence and
the functioning of the agency is a potential duplication of activities
in some areas, in which both the Council of Europe and the agency
work (such as the protection of children’s rights, access to justice
and “human rights issues related to the information society”), which
may cause differing and even conflicting interpretations of European
human rights standards and even the emergence of double standards.
The need to prevent these negative trends becomes all the more urgent in
view of the growing budget of the agency and the potential participation
of certain non-European Union member states in its work.
9. One must, however, bear in mind the context in which this
subject is being broached, namely the progressive transfer to the
European Union of certain state competences which reinforces the
need for the Union to be bound by international human rights law
and, in particular, the urgency for it to accede to the ECHR,
NoteNotefollowing the entry into force of
the Lisbon Treaty.
Note If
the Union is to be truly founded on common European human rights
norms then these must be the same as those to which member states
have committed themselves internationally. Otherwise, the European
Union will expose its citizens “to the inadequacies of the lesser
protection available in its internal regime ... [and the possible]
propagation of separate human rights regimes for the Union and Member
States [which would] create confusion among the latter as to the
scope of their obligations and may provide them with a pretext for
ignoring their international undertakings in the areas in which
they have transferred powers to the Union”.
Note It is therefore in this context that
one should assess the work of the agency.
Note The
agency has the potential to make an important contribution to the
protection of human rights within the European Union within the
specific scope of its mandate. Indeed, there is no reason why, when
referring to the work of Council of Europe monitoring bodies and/or
other international standards, it should not strive to provide a
higher level of protection of human (fundamental) rights within
the Union. This type of work could also – potentially – positively
influence human rights standards within our own Organisation. But
it is also legitimate to explain why duplication by the agency of
the work of the Council of Europe is undesirable, and that this
is not merely a theoretical problem. There is a risk of divergent
interpretations, which could lead to a weakening of human rights
protection within Europe, the possibility of forum shopping and
an unnecessary waste of resources.
10. Here, several questions spring to mind: what mechanisms are,
or should be, put into place to ensure that the agency is able to
make good on its obligation to alleviate the danger of inefficiency
and duplication of the Council of Europe’s work? Also, is it not
likely that, due to the transversal character of human rights (see
below), the agency will in the course of its day-to-day work overstep
the limits of its areas of competence and, in the longer term, progressively
extend the ambit of its action? In the light of these different
dimensions of human rights monitoring, what are the real dangers
involved in parallel monitoring systems of the Council of Europe bodies
and the agency? How best to avoid double monitoring, leading to
diverging or conflicting assessments, which risks introducing double
standards in human rights protection in Europe? Should not additional
avenues of co-operation be sought with the agency and its staff
to see how best such potential difficulties can be circumvented?
11. A further ground for concern is that the European Commission
has already accepted some of the agency’s priority themes identified
by reference not to the agency’s mandate or the Union’s legal competences but
to the expectations of stakeholders.
NoteSuch an approach is likely to further
expand the scope of the agency’s activities in an uncontrollable
and unforeseeable manner. This may not necessarily entail negative consequences
for the Council of Europe, given that the implementation of its
own standards could, in effect, be enhanced by certain activities
of the agency.
12. In my report, I will strive to show that both the Council
of Europe and the agency have the potential to develop synergies
in several domains and their work may be mutually complementary,
since both institutions have different tasks and use different instruments
in carrying them out. However, one should also bear in mind the
overall context following the entry into force of the Lisbon Treaty:
the tendency to reinforce the European Union’s competences in the
field of the protection of human rights may also entail the risk
of unnecessary duplication of the work of the Council of Europe
and the risk of diverging interpretations of human rights protection
standards.
2 The agency’s field
of action
2.1 The establishment of the agency
and its tasks
13. The European Union Agency for Fundamental Rights
(FRA)
Notewas established on 15 February 2007
by Council Regulation (EC) No. 168/2007 ("the founding regulation"),
Note following the decision of the European Council
in December 2003 that the European Monitoring Agency for Racism
and Xenophobia (EUMC)
Note should become
a “human rights agency”.
14. The prescribed objective of the agency is to provide advice
and expertise relating to fundamental (human) rights to the institutions,
bodies, offices and agencies of the European Union and its member
states when implementing Community law.
Note To
meet this objective, the agency collects, records, analyses and disseminates
relevant, objective, reliable and comparable information and data
and develops methods and standards to improve their comparability,
objectivity and reliability. It also carries out, co-operates with
or encourages scientific research and surveys, preparatory studies
and feasibility studies, either on its own initiative or at the
request of the European Parliament, the Council of the European
Union or the European Commission. In addition, the European Parliament,
Note the
Council of the European Union
Note or the European Commission,
Note when
implementing European Union law, can request (legally non-binding
Note) opinions, conclusions and
reports on specific thematic topics from the agency.
NoteNote They may also concern the compatibility of
their legislative proposals with fundamental rights. Furthermore,
the agency may produce thematic reports on topics of particular
importance to the Union’s policies and publishes an annual report
on fundamental rights issues covered by the agency’s activities.
Other functions include raising awareness of the general public
about fundamental rights and promoting dialogue with civil society.
Note For this purpose, the agency
establishes a co-operation network through a Fundamental Rights
Platform,
Note composed
of non-governmental organisations and other stakeholders.
Note
15. The agency has no legislative scrutiny and no regulatory decision-making
powers. According to Article 4(2) of the founding regulation, the
agency’s opinions cannot deal with the legality of Community acts
within the meaning of Article 230 of the EC Treaty
Note (currently Article 263
the Treaty on the Functioning of the European Union
Note). Nor can it deal with the question
of whether a member state has failed to fulfil an obligation under
the treaty within the meaning of Article 226 of the EC Treaty (Article
258 of the Treaty on the Functioning of the European Union).
16. Furthermore, the agency is not permitted to undertake its
own investigations and cannot carry out any kind of enforcement
role. The agency cannot examine individual complaints or monitor
whether European Union member states adhere to the Union’s values
and principles, nor does the European Council have an obligation
to consult the agency before it decides that there has been a severe
and sustained violation of human rights by a member state (Article
7 of the Treaty).
2.2 The geographical scope of the
agency’s activities
17. One of the Assembly’s concerns has been the geographical
scope of the agency’s activities. As stipulated in the founding
regulation, the agency’s remit is limited to the European Union
and its 27 member states and should not extend to third countries.
However, Article 28 of the founding regulation declares that the agency
will also be open to the participation of candidate countries as
observers (Croatia, “the former Yugoslav Republic of Macedonia”
and Turkey), after a decision of the relevant association council,
which will indicate the nature, extent and manner of these countries’
participation in the agency’s work, taking into account the specific status
of each country. In addition, the association council may also invite
the Western Balkans countries, which have concluded a Stabilisation
and Association Agreement
Note with the EC, to participate in
the agency as observers. To date, no third country takes part in
the agency’s work as an observer.
Note
18. However, it should be noted that in the first year of existence
the agency’s work programme (for 2007) already explicitly included
capacity building and awareness-raising in Croatia and Turkey as
one of its operational priorities,
NoteNote even though neither country’s status
within the agency had been defined by the relevant association council,
as stipulated in Article 28(2) of the founding regulation. This
has been part of the process of preparing these countries for participation
in the work of EC agencies (in particular, the FRA (formerly the
EUMC)) since 2003. These activities were aimed at supporting and
building up the capacity of civil society actors
Noteby
integrating them into the data collection work of the EUMC/FRA through
its RAXEN network methodology.
Note
2.3 Substantive remit of the agency
19. Recital 8 of the founding regulation states that
“[t]he Agency should act only within the scope of application of
Community law”,
Note and
this is confirmed by Article 3(3) of the regulation. In line with
its geographical limits, the latter provision reaffirms that the
agency’s mandate is limited to scrutinising the European Union institutions
and the member states’ implementation of EC law. The agency does
not have a mandate to monitor the respect of human rights by European
Union member states acting within their own national legal orders
and outside EC competence. Submitting the European Union institutions
not only to the long-existing judicial review by the Court of Justice
of the European Union but also to an independent mechanism “monitoring”
their compliance with the standards of human rights protection in
Europe constitutes a step in the right direction. And, as already
indicated above, until such a time as the European Union accedes to
the European Convention on Human Rights, international organisations
– of which the European Union institutions are the most visible
examples – are the only public authorities operating in Council
of Europe member states that are still outside the jurisdiction
of the European Court of Human Rights ("the Court").
20. Within the area of European Union law, the agency’s mandate
was initially limited to issues falling under the “first pillar”
of the European Union.
NoteRecital
32 of the founding regulation expressly excluded any competence
of the agency in third pillar matters dealing with police co-operation
and judicial co-operation in criminal matters. The agency’s remit
has nonetheless changed following the entry into force of the Lisbon Treaty,
which eliminated the structure of “pillars” within the European
Union architecture. Consequently, police and judicial co-operation
fall under the scope of European Union law
Note and
therefore fall also under the scope of the agency’s activities.
On the one hand, from the Council of Europe’s perspective, this
broadened remit of the agency might not be welcomed, since an extension
of the agency’s mandate to cover former third pillar issues would
have rendered the risk of duplication with the Council of Europe’s
activities much greater. However, on the other hand, including former
third pillar issues in the agency’s remit of control may be considered
as an improvement, since these policy areas have the greatest potential
impact on human rights in the European Union. As a result of this
change, the agency will be able to deal with and provide advice
on issues such as counter-terrorism; the European Arrest Warrant;
police co-operation, including the exchange of personal data in
the context of criminal investigations; and the exchange of evidence
in criminal proceedings under the European Evidence Warrant. This
is significant since, at the same time, these also constitute the areas
where existing control mechanisms in the European Union are weakest.
For example, police co-operation is the area of European Union law
where the judicial oversight of the Court of Justice of the European Union
is most limited.
Note
21. A possible point of contention in relation to the agency’s
substantive remit is the fact that there is a fine line between
what is within the scope of Community law and what is within that
of the domestic law of European Union member states. This also touches
upon the manner in which the agency (the European Union?) may/should
differentiate between what are perceived as “fundamental rights”
(within the European Union context applicable to all citizens and
persons lawfully within a member state; an expression developed
by the European Court of Justice in the 1970s when applicants were
legal persons) and “human rights” (which, for instance, by virtue
of Article I of the ECHR, are secured for “everyone” within the
jurisdiction of states parties). Also, human rights are transversal:
they do not respect the artificial lines which separate domestic
issues from matters of European Union law. In the context of a report
on such issues as racism and xenophobia, for instance, it will be
difficult at times to separate those aspects which fall within the
scope of Community law from those which fall within the scope of
domestic law. For this reason, it would be desirable that the agency
deal with thematic human rights aspects without touching unnecessarily
upon issues falling under the scope of domestic law.
22. Another issue springs to mind in this context: European Union
external co-operation. Generally speaking, human rights concerns
are or ought to be a vital part of every internal and external European
Union policy, including external assistance, development co-operation,
and trade. Most European Union agreements include a human rights
clause, requiring partners to respect human rights and democratic
principles, and providing for targeted restrictive measures if such
principles are breached. As mentioned before, the founding regulation
broadly declares that “[t]he Agency should act only within the scope
of application of Community law”,
Noterestricting its
sphere of influence to the European Union institutions and the member
states’ implementation of EC law. Is it therefore right to assume
that the implementation of Community law is merely restricted to
matters in the European Union’s “internal” legal system? This matter
is not so simple, as it relates to the geographical remit of the
agency.
Note The European Union’s obligations
under Community law also include the duty not to violate human rights
in third countries. Thus one may also argue that the agency could
have a role in ensuring that the European Union correctly applies
its numerous conditionality clauses.
Note
23. The thematic areas of activity of the agency are laid down
in a multi-annual framework adopted by the Council of the European
Union, upon a proposal of the European Commission and after consulting
the European Parliament. They must include the fight against racism,
xenophobia and related intolerance. Article 2 of the multi-annual
framework of 28 February 2008
NoteNoteidentifies the following nine thematic
areas to be covered by the agency’s work within the next five years
(2007-2012):
23.1 racism, xenophobia
and related intolerance;
23.2 discrimination based on sex, race or ethnic origin, religion
or belief, disability, age or sexual orientation and against persons
belonging to minorities and any combination of these grounds (multiple discrimination);
23.3 compensation of victims;
23.4 the rights of the child, including the protection of children;
23.5 asylum, immigration and integration of migrants;
23.6 visa and border control;
23.7 participation of the citizens of the Union in the Union’s
democratic functioning;
23.8 information society and, in particular, respect for private
life and protection of personal data;
23.9 access to efficient and independent justice.
24. All of these themes are transversal and fall within both the
European Union’s area of competence and the member states’ exclusive
field of action. Therefore, the agency may not be able to address
these issues comprehensively without overstepping its substantive
remit.
25. Another possible point of contention is the definition of
“fundamental rights” in Article 6(2) of the Treaty on the European
Union (in its version before the changes introduced by the Lisbon
Treaty
Note), to which the agency shall refer in carrying
out its tasks.
Note This
implies that the agency shall refer, on the one hand, to the European
Convention on Human Rights, and, on the other hand, to the European
Union Charter of Fundamental Rights, which is now legally binding
on European Union institutions and member states, when applying
European Union law. As some authors note, there is a dual standard
of protection, since the two instruments have, to some extent, different
underlying philosophies, even though many provisions overlap.
Note While
the ECHR is rather based on securing individual autonomy and respecting
individual will, the European Union Charter of Fundamental Rights
is aimed also at providing an integrated account of civil, political
and social rights.
Note This
dualism of approach may create tensions in the work of the agency.
As pointed out by D. Chalmers:
If
it adopts the ethos of ECHR, it will be criticised for not developing
rights other than civil liberties and having a very thin vision
of fundamental rights – all the defects meant to be remedied by
the Charter. If it adopts the ethos behind the Charter, it will
be accused of a high degree of intrusion and policy-making as well
as not paying sufficient attention to individual autonomy – something
that is supposed to underpin national constitutional traditions
and the ECHR.Note
2.4 The agency’s tools and actions
2.4.1 Data collection and analysis
26. In order to ensure complementarity with (and added
value to) the work of the Council of Europe, it is necessary to
examine the agency’s specific tasks and working methods. A comparison
of those tasks with those already performed by the Council of Europe
may serve to demonstrate and assess the risks of duplication in
the agency’s activities with those already performed by the Council
of Europe. To start with, the founding regulation sets out a rather
narrowly defined and restrictive framework for the agency’s tasks,
limiting them,
inter alia,
to providing information on applicable human rights standards, passive
data gathering, the development of methods to improve the comparability
and objectivity of such data at the European level, as well as analysis
and reporting.
Note
27. It should be noted that, in carrying out its daily activities,
the agency uses various instruments aimed at collecting data, which
differ from those used by the Council of Europe. To conduct its
surveys, it often needs the help of contractors specialised in this
area, for instance GALLUP while carrying out the EU-MIDIS survey on
minorities and discrimination.
NoteNote
2.4.2 Opinions
28. At first sight, the agency seems to have been restricted
so severely in its functions as to resemble a mere “network of networks”
set up with the simple purpose of collecting, organising and analysing
data from different existing networks, namely national human rights
bodies and other actors in the human rights field. However, as clearly
spelled out in Article 4 of the founding regulation, the agency
also has the right to provide technical expertise to Union institutions
and the member states when implementing Community law.
Note
29. In so far as requests for opinions and/or technical expertises
are concerned, alignment with minimum Council of Europe human rights
standards ought to be ensured. Here I have in mind, for example,
the need to question the fairness of blacklisting for alleged terrorist
activity in the light of the recent case law of the European Court
of Justice and the findings of the Parliamentary Assembly,
Noteand the so-called Dublin II system with
its evident shortcomings
vis-à-vis the
ECHR as concerns asylum decisions.
Note Indeed, the French presidency
of the European Union Council already requested an opinion from
FRA on the Passenger Name Record (PNR) agreement that was being
negotiated with the United States.
Note
30. That said, the agency is merely allowed to formulate legally
non-binding opinions and conclusions for European Union institutions
and member states “when implementing Community law”. The latter
certainly does not include the introduction of human rights standards
in any form or way.
2.4.3 Monitoring?
31. Does the agency have a mandate in the field of monitoring?
If so, does the agency’s human rights monitoring have any added
value or would it merely duplicate the work of the Council of Europe’s
existing monitoring mechanisms? What would be the agency’s “monitoring
role” following the Stockholm Programme – Developing a Europe that
Protects, adopted by the European Council in December 2009?
Note
32. But it appears that the term of “monitoring” is employed by
the Council of Europe and the agency to describe different activities.
Monitoring as understood by the Council of Europe includes verifying
member states’ compliance with human rights standards and addressing
policy recommendations to individual countries.
NoteNote“Monitoring” within the meaning
of the agency’s competences comprises merely information gathering
and the preparation of comparative reports; hence the term “monitoring”
is – rightly – not even mentioned in the agency’s founding regulation.
Note But this subject merits further reflection.
Olivier de Schutter ably points out :
[T]he Fundamental Rights Agency’s mission is not supposed
to involve “normative monitoring” – evaluation of compliance on
the basis of a pre-existing normative grid; it is, rather, to provide
technical advice on the basis of its collection and analysis of
information pertaining to the situation of fundamental rights in
the Member States. However, it is uncertain whether it will be possible,
in practice, to maintain a watertight division between monitoring
consisting only in collecting and analyzing information in order to
offer technical assistance, on the one hand (“advisory monitoring”),
and monitoring implying an evaluation of the degree of compliance
with fundamental rights, on the other hand (“normative monitoring”):
even mere fact-finding, after all, necessarily consists in highlighting
certain situations, and thus putting pressure on the actors concerned
to remedy any deficiencies found to exist. In addition, even though
points of emphasis of formulation may differ – with expert bodies
of the Council of Europe explicitly evaluating certain situations
for their compliance with the relevant standards, and the Fundamental
Rights Agency more cautiously reporting about what it has found
to occur and making certain recommendations of a general nature
about trends – it remains the case that the same situations may
be considered under both mechanisms.Note
33. According to this author, the tasks of the agency remain distinct
from those of a monitoring body in the classic meaning of the expression,
such as those established under the Council of Europe instruments.
Note The agency’s “monitoring” is performed
for reasons specific to the Union, and in particular to assist European
Union member states in their implementation of European Union law,
which should better take into account fundamental rights, and in
order to facilitate the progress of candidate countries
Note to the European
Union towards meeting the accession criteria.
Note
34. However, even if there is an overlap in the tasks of the Council
of Europe bodies and the agency providing the European Union member
states with the “assistance and expertise relating to fundamental rights”,
whether this overlap is problematic depends on the nature of the
relationship between both institutions and, even more decisively,
on the status which the findings made by the Council of Europe monitoring
bodies will have in the agency’s opinions, conclusions and reports.
Note If
the agency refers explicitly and systematically to the findings
of the Council of Europe bodies, this might strengthen the authority
given to the interpretation by those bodies and contribute to an
improved follow-up of the recommendations they address to the states concerned.
Moreover, divergences in the conclusions made by both bodies could
thus be avoided.
Note
35. That said, one should always bear in mind that the instruments
of the Council of Europe impose minimum standards on the states
parties, and that they contain provisions which allow these states
to go beyond those minimal requirements, for instance by the conclusion
of international agreements affording more favourable protection
to the individual.
Note Nothing in the Council of Europe instruments
prohibits the European Union member states or the European Union
itself from further improving the protection of human rights.
Note
36. Existing or future European Union or agency “monitoring” mechanisms
could also offer an added value in relation to the existing Council
of Europe mechanisms, by producing more up-to-date data, having
a more flexible thematic scope and giving a more complete picture
of the human rights situation in respective member states. Thus,
with the aid of the European Union, the Council of Europe could
further improve the quality of its own monitoring activities.
Note
2.5 The agency’s budget
37. The agency is funded by the taxpayers of the same
states that fund 80% of the budget of the Council of Europe. The
Council of Europe, including the European Court of Human Rights
and the Parliamentary Assembly, has a budget of about €200 million
annually to implement its strong legal mandate to ensure the respect
for human rights, democracy and the rule of law throughout Europe.
It has had to accommodate a policy of zero real budgetary growth
over many years, endangering core activities. By contrast, the budget
of the agency is growing and will soon reach 10% of that of the
whole of the Council of Europe, including the European Court of
Human Rights.
Note
38. The budget of the Fundamental Rights Agency for the next few
years will be as follows:
| |
2007
|
2008
|
2009
|
2010
|
2011
|
2012
|
|
Budget, in € million
|
14
|
15
|
17
|
20
|
20
|
22
|
39. Its initial staff of 50 is still growing. It now
consists of 66 members (54 temporary staff members and 12 contract
staff members). According to the last FRA Staff Policy Plan, by
the end of 2010 the agency will employ 72 temporary staff members
and 25 contract staff members, hence in total 97 staff members.
40. It is obviously too early to assess how the overlap of similar
types of work should best be handled. Take, for example, the agency’s
project on “protection of children’s rights”
Noteand compare
it with that of the work in the Council of Europe on a closely related
topic.
41. Before the agency’s initiative, the Council of Europe had
launched its programme Building a Europe For and With Children,
which seeks to promote children’s rights and protect them from all
forms of violence. Through this programme, we are streamlining child-related
issues within the Council of Europe, ensuring better visibility
for Council of Europe standards and the case law of the European
Court of Human Rights. A High Level Conference took place to launch
the 2009-11 Stockholm strategy which refocuses the programme after its
first three years of operation (2006-09). The ratification of the
Council of Europe Convention on the Protection of Children against
Sexual Exploitation and Sexual Abuse was promoted through a series
of seminars and conferences (regional, national and continent-wide),
the last of which took place in Toledo, Spain, in March 2009. Campaigns
and initiatives were conducted in member states, most notably the
campaign Raise Your Hand Against Smacking!, with the Council of
Europe confirming its position as a leading organisation in the
field of children’s rights and as a key United Nations partner,
notably by providing the European forum for the follow-up to the
Global Study on Violence against children initiated by the Secretary General
of the United Nations.
Note
3 Co-operation between the Council
of Europe and the agency
3.1 General co-operation framework
and consultations
42. In terms of avoiding duplication of work, Article
9 of the founding regulation commits the agency to co-ordinating
its tasks with the Council of Europe’s work, and the Council of
Europe has signed both a Memorandum of Understanding
Note with the European Union and a Co-operation
Agreement with the EC which, to a certain extent, clarify the situation.
Note According to point 10 of the Memorandum of
Understanding, the Council of Europe “will remain the benchmark
for human rights, the rule or law and democracy in Europe”. The Co-operation
Agreement underlines the principle of non-duplication and the obligation
to co-operate and co-ordinate their work.
Note Co-operation between the two institutions
covers the whole range of the agency’s activities.
Note
43. An independent person appointed by the Council of Europe also
sits on the agency’s management board and on its executive board.
NoteHe
or she participates in the meetings of the agency’s executive board
and his/her views shall be duly taken into account, especially to
ensure complementarity and added value as regards the activities
of the agency and of the Council of Europe. He or she also has the
right to vote in the executive board as regards the preparation
of certain decisions of the management board.
Note
44. Furthermore, in accordance with the Co-operation Agreement,
Note regular
contacts have been established at the appropriate level between
the agency and the Council of Europe. The director of the agency
and the Council of Europe Secretariat have each appointed a contact
person to deal specifically with matters relating to their co-operation.
The person appointed by the Secretary General regularly takes part
in the management board’s meetings.
Note
45. As a general rule established by the Co-operation Agreement,
Note representatives of the Council of Europe
Secretariat are invited by the agency’s executive board to attend
meetings of the agency’s management board as observers (with the
exception of agenda items of an internal nature). On the other hand, on
the basis of the Co-operation Agreement,
Note the Council of Europe invites representatives
of the agency to attend – as observers – the meetings of the Council
of Europe intergovernmental committees in which the agency has expressed
an interest (for instance, in work relating to the Roma and the
rights of LGBT persons
Note). The
agency’s representatives may also be invited as observers to the
meetings or exchanges of views organised by the Council of Europe
human rights monitoring committees or committees set up under partial agreements
and to exchanges of views organised by the Committee of Ministers
of the Council of Europe (most recently in November 2009 with the
participation of the agency’s chairperson of the agency’s management board
and the director of the agency).
46. In order to co-ordinate its activities, the agency regularly
consults the Council of Europe Secretariat when preparing its annual
work programme
Note and annual report
Note and regarding its co-operation
with civil society (in particular within the Fundamental Rights
Platform).
NoteOn such
a basis, both institutions may agree on conducting joint and/or
complementary activities on subjects of common interest.
Note
47. Thus, the agency’s representatives regularly take part in
the proceedings of certain intergovernmental committees, conferences
and other activities of the Council of Europe.
48. It is also noteworthy that the Co-operation Agreement
Note provides for the possibility
for the agency to award grants to the Council of Europe in order
to promote co-operation between both institutions as well as temporary
exchanges of staff between them.
Note So far, these possibilities
have not been used.
49. According to the FRA document “FRA mission and strategic objectives
2007-2012”, referring to the multi-annual framework for the agency
for the period 2007-12, in achieving its long-term objectives, the
agency will be “… ensuring complementarity and maximising synergies
with the Council of Europe …”.
Note
3.2 Exchange of information
50. According to the Co-operation Agreement, the agency
and the Council of Europe shall provide each other with information
and data collected in the course of their activities. Such information
and data may be then used by both institutions in the course of
their activities.
Note Moreover,
the Co-operation Agreement obliges the agency to take due account
of the judgments and decisions of the European Court of Human Rights concerning
the areas of activity of the agency and, where relevant, of findings,
reports and activities of the Council of Europe’s human rights monitoring
and intergovernmental committees in the human rights field, as well
as those of the Council of Europe’s Commissioner for Human Rights.
Note Either institution, when
using information from the other’s sources, shall indicate the origin
and reference thereof.
Note Both institutions
shall also ensure, by means of their networks, the widest possible
dissemination of the results of their respective activities on a
reciprocal basis.
Note It would
be interesting to examine more closely to what extent these commitments
stemming from the Co-operation Agreement are observed in practice.
51. In its work, the agency refers to the European Convention
on Human Rights and other Council of Europe instruments. For example,
in the Annual Report for 2009,
NoteEuropean Union member states are
urged to take account of the case law of the European Court of Human
Rights when implementing the Council of Europe Convention on Action
against Trafficking in Human Beings,
Note and
references to recent judgments of the European Court are made in
relation to many of the thematic areas discussed. Reference is also
made to European Commission against Racism and Intolerance (ECRI)
and the European Social Charter. A recent report on child trafficking
referred extensively to the above-mentioned Convention on Action
against Trafficking in Human Beings and the Convention on the Protection
of Children against Sexual Exploitation and Sexual Abuse (2007)
and called for their ratification by those European Union member
states that had so far failed to do so.
Note Another example in this context
may be the agency’s 2009 report on “Homophobia and discrimination on
grounds of sexual orientation and gender identity in the European
Union member states.”
NoteNote Part I of this report (“Legal analysis”)
contains several references to the work of the Council of Europe
in this area, including Parliamentary Assembly’s recommendations,
recommendations of the Congress of Local and Regional Authorities,
statements by the Secretary General of the Council of Europe and
the Commissioner for Human Rights,
Note the
ECHR and the case law of the European Court of Human Rights
Note. Part II (“The social situation”)
Note states that the Council of Europe
was “… another important source of relevant data …” and for the purpose
of the preparation of the report, the Commissioner for Human Rights,
Thomas Hammarberg, was also interviewed.
Note
52. Co-operation between the agency and the Council of Europe’s
Office of the Commissioner for Human Rights is well under way. In
2009, it focused on a wide range of issues. The commissioner participated
in an International Conference on Roma Migration and Freedom of
Movement, jointly organised in Vienna by the FRA, the OSCE’s Office
for Democratic Institutions and Human Rights (ODIHR), the OSCE High Commissioner
on National Minorities and the Commissioner’s Office.
Note Information and data on a broad
range of human rights subjects were regularly exchanged between
the FRA and the commissioner’s office also in the context of expert
meetings, workshops and round tables organised by both FRA and the
Council of Europe. The human rights situation of Roma, persons with
mental health problems, discrimination on the grounds of sexual
orientation and gender identity, the rights of the child and multi-level
human rights implementation were shared priority concerns in 2009.
In December 2009, the commissioner participated in the high-level
panel of the European Union Fundamental Rights Conference in Stockholm,
organised by the FRA and the Swedish European Union Presidency.
Note Moreover, the commissioner’s office
is presently preparing a comparative study on the situation concerning
homophobia, transphobia and discrimination on grounds of sexual
orientation and gender identity in the Council of Europe member
states. This study will result in a policy-oriented, comparative
report covering all 47 Council of Europe member states, building
on and using the information already collected by the agency for
the 27 European Union member states. Moreover, in his paper on human rights
and gender identity, the Commissioner for Human Rights refers several
times to the data collected by the agency on this issue.
Note
53. The agency also co-operates with the Council of Europe’s monitoring
bodies in the field of combating discrimination and protection of
national minorities. Like its predecessor, the EUMC, it works in
close co-operation with the European Commission against Racism and
Intolerance. For instance, on 19 March 2010, both bodies, along
with the OSCE’s Office for Democratic Institutions and Human Rights
(ODIHR), issued a common statement on the occasion of the International
Day for the Elimination of Racial Discrimination.
Note Moreover, the agency also often
refers to the work of the Council of Europe Advisory Committee on
the Framework Convention for the Protection of National Minorities,
and in particular its country-specific opinions.
54. Currently, both institutions also co-operate on the issues
of Roma discrimination and the Rights of the Child project.
Note The
agency ensures the engagement of the Council of Europe in the main
projects on child trafficking and separated asylum-seeking children
and “rights of the child indicators”. On the occasion of the 20th
anniversary of the Convention of the Rights of the Child on 20 November
2009, the agency and the Deputy Secretary General of the Council
of Europe issued a joint statement. As regards Roma discrimination,
the agency and the Council of Europe work together on joint action
on freedom of movement and migration (conferences, reports, joint
statements). In May 2009, at the meeting of the Committee on Legal
Affairs and Human Rights in Târgu Mureş, a staff member of the agency
presented the results of the European Union survey on discrimination
of minorities. Further co-operation between both institutions is
also foreseen or already under way on subjects such as the situation
of irregular migrants, combating violence against women and human
rights education. Within the Council of Europe itself, it is also
more and more frequent for several departments, not only those dealing
specifically with human rights but also with health issues (for
instance, on the issue of disabled persons), to consult the agency
and/or refer to its reports and other documents.
55. It should also be noted that the Council of Europe and the
agency are developing new forms of co-operation. New projects are
elaborated jointly by both institutions from the very beginning.
For example, in January 2010, the European Court of Human Rights
and the agency embarked on a year-long joint project aimed at increasing
the knowledge and domestic implementation of European Union law
and other legal instruments in the field of non-discrimination.
The project will result in the publication of a handbook of the
case law of the European Court of Human Rights and the Court of
Justice of the European Union in several European languages.
Note A joint project on human rights
education will also start in the coming months.
56. The above-mentioned examples demonstrate that there are good
practices of co-operation between the Council of Europe’s bodies,
including its monitoring bodies, and the agency; both institutions’
activities may indeed be mutually complementary. Such a tendency
seems to be observed also by the Independent Person appointed by
the Council of Europe, who has indicated that co-operation is “well
under way”.
Note
4 Perspectives following the
entry into force of the Lisbon Treaty
57. Following the entry into force of the Lisbon Treaty
on 1 December 2009, there might be new developments in the European
Union policies on the protection of human rights and also in the
scope of the remit of the agency, which is now competent to deal
with issues falling within the scope of justice and police co-operation.
58. The European Union Charter of Fundamental Rights has become
legally binding. The European Union and its bodies, as well as the
member states, when implementing European Union law, are bound by
this charter.
Note
59. Moreover, new Article 2 of the Treaty on the European Union
Note refers
to the notion of “the rights of persons belonging to minorities”.
The introduction of this notion to the treaty also gives new possibilities
for the agency to widen and enhance its activities in the field
of the protection of such rights. It should be also noted that the
European Union Charter of Fundamental Rights underlines that discrimination
on the basis of “membership of a national minority” is forbidden
and that the “Union shall respect cultural, religious and linguistic
diversity”.
Note Moreover,
the Treaty of Lisbon contains a new general obligation for the European Union
to combat exclusion and discrimination,
Note which reinforces the agency’s tasks
in these fields. However, the agency’s new tasks in this area have
yet to be introduced in the second “multi-annual framework” (2012-2017)
that the commission is going to prepare soon.
Note
60. Changes in the scope of the agency’s tasks, as defined in
the multi-annual framework, might also follow after the appointment
of Ms Viviane Reding as the newly established Commissioner for Justice,
Fundamental Rights and Citizenship.
NoteNote In accomplishing her tasks, the
commissioner might refer more often to the data collected and analysed
by the agency. Since the commission will soon be preparing a new
multi-annual framework for the agency, the commissioner will certainly
contribute to its elaboration as from 2012.
Note It
is also likely that she will request more opinions on the implications
of the commission’s legislative proposals for human rights.
61. Finally, it is important to mention the Stockholm Programme,
defining the framework for European Union police and customs co-operation,
rescue services, criminal and civil law co-operation, asylum, migration
and visa policy for the period 2010–2014, as adopted by the European
Union summit in December 2009.
Note This document puts more emphasis on fundamental
rights.
Note More specifically, it invites the
European Union institutions to use the agency’s expertise and to
co-operate more closely with the latter at the stage of elaborating
legislative proposals touching upon fundamental rights.
Note In this document, the European Council also
noted that the Fundamental Rights Agency “has reached operational
maturity” in its field of activity.
Note The European Commission is now to prepare
an action plan to put in place the priorities established in this document.
Note
62. Eventually, the role of the agency may evolve following the
accession of the European Union to the European Convention on Human
Rights. It is likely that, in the years to come, the agency will
be consulted more often by European Union institutions, and in particular
by the European Commission.
5 Concluding remarks
63. It is too early to evaluate the work of the Fundamental
Rights Agency and it is not my mandate to do so. What is, however,
useful, is for us to see how best – together with the agency – we
can obtain a clearer picture of the agency’s role in promoting and
implementing human rights standards within the European Union without the
risk of undermining the position of the Council of Europe as the
leading human rights organisation in Europe. Permit me to recall,
in this connection, the Assembly’s position on this subject. In
its
Resolution 1427 (2005) the Assembly was of the opinion that “the creation of
a fundamental rights Agency within the European Union could make
a helpful contribution, provided that a useful role and field of
action is defined for it and that the agency therefore genuinely
’fills a gap‘ and presents irrefutable added value and complementarity
in terms of promoting respect for human rights”.
NoteNoteAnd in this resolution,
Note the
Assembly also took the view that “the role of the Agency should
be that of an independent institution for the promotion and protection
of human rights within the legal order of the European Union, along
the lines of similar national institutions that exist in several member
states”.
64. Since the creation of the agency in 2007, certain synergies
have been forged and developed between the latter and the Council
of Europe. Although several doubts remain as to the risk of unnecessary
duplication of tasks, there are several safeguards aimed at ensuring
the Council of Europe’s primary role in the area of human rights
protection in Europe, such as the appointment of the independent
person in respect of the Council of Europe in the agency’s managing
bodies and the contact persons within both institutions, as well
as provisions on the co-operation framework and methods in the Co-operation
Agreement. Both institutions are currently elaborating various methods
of fruitful co-operation in the areas which fall within the scope
of both through mutual consultations and exchange of data. The agency
often refers to the Council of Europe’s pertinent conventions, the acquis of its monitoring bodies
and the case law of the European Court of Human Rights. Simultaneously,
the Council of Europe bodies, including its Commissioner for Human
Rights, also quote the agency’s reports and the data it has collected
through surveys and other methods of gathering information. Hence
both institutions may well become complementary and their co-operation
of benefit to all concerned.
65. However, one should also bear in mind that human rights protection
mechanisms within the European Union will also change following
the entry into force of the Lisbon Treaty, which grants a legally
binding character to the European Union Charter of Fundamental Rights
and provides for a legal basis for the accession of the European
Union to the ECHR. On the one hand, these developments may increase
the role of the agency, which is likely to be more often consulted
by European Union institutions. On the other hand, there may also
be an increased risk of duplication of tasks (notably within the
remit of the newly established European Union Commissioner for Justice,
Fundamental Rights and Citizenship). As to the provisions of the European
Union Charter of Fundamental Rights that are based on the ECHR,
there is also an increased risk of diverging interpretations from
those of the European Court of Human Rights by the Court of Justice
of the European Union and other European Union institutions and
member states when implementing European Union law. That is why
rapid accession of the European Union to the ECHR would enable this
risk to be avoided.
66. Some degree of duplication of the Council of Europe’s tasks
by European Union institutions, including the agency, seems to be
unavoidable,
Note even though
certain safeguards have been put in place to minimise it.
Note This risk of overlapping
may increase in future, in particular in the area of the former
“third pillar” and in respect of European Union candidate countries.
The existing procedures for analysing the agency’s work and its
compliance with the Council of Europe standards should therefore
be applied vigilantly. Among different European Union bodies and
especially within the agency, the spirit of co-operation with the
Council of Europe should be continuously promoted and existing Council
of Europe standards should always be referred to as minimum standards
for human rights protection throughout Europe. Before developing
new activities and projects, the agency should consider what it
would add to the Council of Europe’s work on the same topic.
67. Stronger human rights standards among European Union member
states may stimulate other states to improve their own systems,
too, but care must be taken not to create new dividing lines in
Europe. That was always the assembly’s position and there is no
reason to depart from it now.
68. Care must also be taken that new European Union standards
do not occasionally fall behind those of the ECHR upheld by the
Council of Europe. Different political and economic interests pursued
by the European Union may at times create a situation in which existing
human rights standards are diluted in order to achieve other objectives.
This could also be an important common task of the agency and its
partners in the Council of Europe.
69. To conclude, one thing is certain: the Council of Europe must
remain the primary forum for human rights protection in Europe.
This role, and human rights protection in Europe, can best be strengthened
by strong and useful links with the agency, if synergies between
both institutions continue to be developed with full respect for
Council of Europe standards, and even more so if the European Union
accedes to the ECHR.
