Human Rights Law and Evidence-Based Policy

The Impact of the EU Fundamental Rights Agency

Rosemary Byrne,Han Entzinger

• Publisher: Routledge
• Year: 2019
• ISBN:
  9780429588655
• Edition: 1
• Topic: Law
• Subtopic: Law Theory & Practice
• Index: Law

The EU Fundamental Rights Agency (FRA) was established to provide evidence-based policy advice to EU institutions and Member States. By blending social science research with traditional normative work, it aims to influence human rights policy processes through new ways of framing empirical realities. The contributors to this volume critically examine the experience of the Agency in its first decade, exploring FRA's historical, political and legal foundations and its evolving record across major strands of EU fundamental rights. Central themes arising from these chapters include consideration of how the Agency manages the tension between a mandate to advise and the more traditional approach of human rights bodies to 'monitor', and how its research impacts the delicate equilibrium between these two contesting roles. FRA's experience as the first 'embedded' human rights agency is also highlighted, suggesting a role for alternative and less oppositional orientations for human rights research. While authors observe the benefits of the technocratic approach to human rights research that is a hallmark of FRA's evidence-based policy advice, they also note its constraints. FRA's policy work requires a continued awareness of political realities in Brussels, Member States, and civil society. Consequently, the complex process of determining the Agency's research agenda reflects the strategic priorities of key actors. This is an important factor in the Agency's role in the EU human rights landscape. This pioneering position of the Agency should invite reflection on new forms of institutionalized human rights research for the future.

Part I

FRA and its policy environment

1 The genesis of the EU Fundamental Rights Agency

Why a think tank rather than a monitoring body

Olivier De Schutter

Introduction

The Fundamental Rights Agency of the European Union was effectively set up in early 2008. Its mandate, according to its founding Regulation, is to

provide the relevant institutions, bodies, offices and agencies of the Community and its Member States when implementing Community law with assistance and expertise relating to fundamental rights in order to support them when they take measures or formulate courses of action within their respective spheres of competence to fully respect fundamental rights.¹

It thus constitutes a pole of expertise, which the institutions of the European Union and the EU Member States may rely upon in order to improve compliance with fundamental rights, as part of EU law. Over the past ten years, it has fulfilled its mission by publishing a number of reports and opinions, mostly informed by a comparative overview of the situation of fundamental rights in the EU Member States, and combining in its assessment legal analysis with empirical findings, informed by the methodologies of social sciences. It has made a difference.

This chapter recalls the context in which the Member States decided to establish a new ‘Human Rights Agency’ for the EU, and why the new agency – soon re-labelled ‘Fundamental Rights Agency’ by the Commission – was not given a monitoring role. This choice was guided, in part, by mere inertia: despite the mixed record of the EU Monitoring Centre on Racism and Xenophobia (EUMC), to which the Fundamental Rights Agency was to succeed (providing a more elegant solution than if the EUMC were simply to close down without being replaced), the model provided by the EUMC continued to prevail, forming a focal point for the negotiations within the Working Group of the Council of the EU. But even more importantly, the Agency’s mandate was discussed at a time when the relationships between the EU and the Council of Europe were at their lowest point: whereas, for many years, the EU had been seen as doing too little in the area of fundamental rights, it suddenly was perceived as wanting to do too much, at the risk of marginalizing its sister organization on the European continent. Though the establishment of the Fundamental Rights Agency was a response to the call for the EU to enhance the visibility of fundamental rights in the Union, the relatively narrow definition of the mandate of the Fundamental Rights Agency reflects this fear – and the fears, ultimately, weighed more in the balance than the professed ambitions.

1 Council Regulation (EC) No 168/2007 of 15 February 2007 establishing a European Union Agency for Fundamental Rights, OJ L 53, 22.2.2007, p. 1 (Art. 2).

Building a new ‘Human Rights Agency’ to succeed to the EU Monitoring Centre on Racism and Xenophobia (EUMC)

When the Heads of States and Governments of the Member States announced at their Brussels European Council of 13 December 2003 their intention to extend the mandate of the EU Monitoring Centre on Racism and Xenophobia (EUMC) in order to create a ‘Human Rights Agency’² entrusted with the mission to collect and analyze data in order to define the policy of the Union in this field, most observers were taken by surprise. The announcement was made without any feasibility study being prepared, and essentially, it would seem, to reinforce the presence of the Union in Vienna and to find a dignified solution to the need to reform the EU Monitoring Centre on Racism and Xenophobia.

Indeed, understandable in retrospect, the very choice of the European Council to create the Human Rights Agency by enlarging the competences of the EU Monitoring Centre on Racism and Xenophobia (EUMC)³ was not necessarily obvious when that option was proposed. At the time when the European Council announced its decision, the European Commission had already concluded, on the basis of an external evaluation of the activities of the EUMC between its creation in 1998 and end in 2001,⁴ that

2 The expression ‘Human Rights Agency’ was also used in the Hague Programme on the strengthening of Freedom, Security and Justice in the Union appended to the conclusions of the European Council of 4–5 November 2004.

3 This Monitoring Centre, sometimes referred to as the Vienna Observatory, was created by the Council Regulation (EC) 1035/97 of 2 June 1997 establishing a European Monitoring Centre on Racism and Xenophobia, OJ L 151 of 10.6.1997, p. 1. According to Article 2(1) of its instituting Regulation, the EUMC must ‘provide the Community and its Member States ( … ) with objective, reliable and comparable data at European level on the phenomena of racism, xenophobia and anti-Semitism in order to help them when they take measures or formulate courses of action within their respective spheres of competence’.

4 http://europa.eu.int/comm/employment_social/fundamental_rights/pdf/origin/eumc_eval2002_en.pdf.

5 Communication from the Commission to the Council, the European Parliament, the European Economic and Social Committee and the Committee of the Regions on the Activities of the European Monitoring Centre on Racism and Xenophobia, together with proposals to recast Council Regulation (EC) 1035/97, COM(2003)483 final of 5.8.2003.

the Centre should continue to concentrate on racism and that an extension to other fields would be an unwelcome distraction within the limits of the resources likely to be available to the Centre and that it would lead to a weakening of the emphasis on racism.⁵

The choice to broaden the mandate of the EUMC by transforming it into a Human Rights Agency seemed to go in the exact opposite direction, although that expansion was to be accompanied, obviously, with a significant increase in the resources.

The context, luckily, was a propitious one. First, the Charter of Fundamental Rights of the European Union had been proclaimed, on 7 December 2000, at the Nice European Summit.⁶ Inspired by the fundamental rights recognized by the European Court of Justice among the general principles of law it ensures respect for, and by the international human rights instruments binding upon the EU Member States, the Charter presented itself as an authoritative restatement of the acquis of the Union in the field of fundamental rights. But its main impact was not as a legal document – indeed, the Charter did not even have a binding force when it was initially proclaimed – its impact resided in the transformation it brought about in the culture and the practice of the institutions. On the basis of the Charter, it became possible for the European Parliament to systematically check whether the legislative proposals on which it deliberates comply with the rights, freedoms and principles which had been proclaimed in Nice. The Commission too announced its intention to verify the compatibility of its proposals with the Charter in 2001,⁷ a practice which, in more recent years, it has significantly improved.⁸ Invoking fundamental rights within the EU thus became routine in the work of the institutions, now that there existed a document, prepared under conditions which guaranteed it a high degree of legitimacy, which listed the said rights.

The second development was the entry into force, on 1 May 1999, of the Treaty of Amsterdam. This Treaty not only formulated (in what was then Article 6(1) EU) the values on which the Union was founded, which included human rights and fundamental freedoms,⁹ it also backed up this affirmation by a mechanism provided for in Article 7 EU, allowing for the adoption of sanctions against a State committing a serious and persistent breach of these values. In addition, following the crisis opened by the accession to power in Austria of a governmental coalition including a party from the far right in 2000,¹⁰ this mechanism was improved by the Treaty of Nice (in force since 1 April 2003), which introduced the possibility of recommendations being adopted preventively, where a ‘clear risk of a serious breach’ of those values is found to be present.¹¹

6 OJ C 364 of 18.12.2000, p. 1.

7 SEC(2001) 380/3.

8 For a systematic discussion, see O. De Schutter, The Implementation of the Charter of Fundamental Rights in the EU Institutional Framework, Study Prepared for the Committee on Constitutional Affairs of the European Parliament, study prepared for the Committee on Constitutional Affairs of the European Parliament, PE 571.397 (Policy Department for Citizens’ Rights and Constitutional Affairs, 2016); and O. De Schutter, ‘The Implementation of the Charter by the Institutions of the European Union’, in: S. Peers, T. Hervey, J. Kenner and A. Ward (eds), The EU Charter of Fundamental Rights. A Commentary, Hart Publ., Oxford and Portland, Oregon, 2014, pp. 1627–1655.

9 The Treaty of Amsterdam amended Article F, § 1, of the Treaty on the European Union (later renumbered Article 6(1)) to include a provision stating: ‘The Union is founded on the principles of liberty, democracy, respect for human rights and fundamental freedoms, and the rule of law, principles which are common to the Member States’. The original version of this clause, as it appears in the Treaty on the European Union signed in Maastricht on 7 February 1992 (in force on 1 November 1993), stated that ‘The Union shall respect the national identities of its Member States, whose systems of government are founded on the principles of democracy’. For the current version of this clause, now in Article 2 TEU, see above, note 4.

10 The crisis was opened by the entry into the Austrian governmental coalition of the Austrian Freedom Party (FPÖ) of Jörg Haider in early 2000. This led the EU Member States to suspend all bilateral contacts with the Austrian government, thus expressing their discontent about allowing an extreme-right political party to be trusted with governmental responsibilities. The crisis could only be overcome after a committee of three ‘Wise Persons’ delivered an opinion in which they concluded that, although Austria had not been acting in breach of the values on which the Union is founded, a preventive mechanism should be inserted in Article 7 TEU, allowing the Council of the EU to address recommendations to a Member State where such a risk is deemed to be present. On this crisis, see M. Merlingen, C. Muddle and U. Sedelmeier, ‘The Right and the Righteous? European Norms, Domestic Politics and the Sanctions against Austria’, Journal of Common Market Studies, vol. 39 (2001), p. 59;M. Happold, ‘Fourteen against One: The EU Member States’ Response to Freedom Party Participation in the Austrian Government’, International and Comparative Law Quarterly, vol. 49 (2000), p. 953; and E. Bribosia, O. De Schutter, T. Ronse and A. Weyembergh, ‘Le contrôle par l’Union européenne du respect de la démocratie et des droits de l’homme par ses Etats membres: à propos de l’Autriche’, Journal des tribunaux – Droit européen, vol. 65 (March 2000), pp. 61–65. On the insertion of Article 7(1) EU by the Treaty of Nice, see G. de Búrca, ‘Beyond the Charter: How Enlargement has Enlarged the Human Rights Policy of the EU’, in O. De Schutter and S. Deakin (eds), Social Rights and Market Forces: Is the Open Coordination of Employment and Social Policies the Future of Social Europe? Bruylant, Bruxelles, 2005, pp. 245–278, at pp. 259–262.

11 This preventive mechanism is now described in Article 7(1) EU.

The inclusion of such a mechanism soon raised the question of whether these provisions of the Treaty on the European Union should lead to a permanent monitoring of the situation of fundamental rights in the Member States of the European Union. The European Parliament, through its Committee on Civil Liberties, Justice and Home Affairs (LIBE Committee), took the leading role in this matter. As it noted itself, the Treaty of Nice ‘acknowledges Parliament’s special role as an advocate for European citizens’ by granting the European Parliament the right to call ...