Does the EU need a “Fundamental Rights Agency”?
01 March 2005
Viewpoint: Tony Bunyan, Statewatch editor, looks at the proposal and wonders if it will be just another “figleaf” for inaction
In November 2001 the European Commission put forward a proposal for a "Council Framework Decision on combating racism and xenophobia" (COM 664, 28.11.01). Numerous drafts of the Council's position on the Commission proposal appeared between November 2001 and 26 March 2003. Since then nothing has been adopted.
In June 1997 - during the "European Year on Racism" - the EU set up the European Monitoring Centre on Racism and Xenophobia (EUMC) [1]. An amended mandate for the EUMC in Vienna was circulated by the Council of the European Union on 19 May 2003 and the Council's Social Questions Working Party discussed the proposal. A "recast version" of the Council Regulation on the EUMC was circulated on 10 December 2003.
But at the EU Summit (meeting of the prime ministers), just two days later on 13 December 2003, it was decided "in the margins" of the Summit meeting that the EUMC should "extend its mandate to make it a Human Rights Agency". "In the margins" means that this decision was taken outside of the formal proceedings (in the "corridors of power" as it were). There had been no public demand for such an agency - rather calls by civil society for the EU to act in accordance with standards on fundamental rights and international conventions, and that racism be tackled seriously.
From 1997 when the EUMC was set up it was placed under the Commission's Directorate-General for Employment, Social Affairs and Equal Opportunities. So if there was to be a "Fundamental Rights Agency" which Commission DG would it come under, which one would set the terms and parameters and then be responsible for running it? The answer did not take long, it is to be the DG for Justice and Home Affairs, or as it likes to call itself now the DG for "Justice, Freedom and Security" - when it would be better defined as the DG for "Law, Order and Security". DG JHA (as it then was) put out a consultation document in October 2004. Then in a little noticed decision by the full Commission on 2 March 2005:
"the Commission decided to transfer responsibility for the European Monitoring Centre on Racism and Xenophobia from Employment, Social Affairs and Equal Opportunities DG to Justice, Freedom and Security DG, which would become the parent Directorate-General for the Centre. This decision would take effect immediately."
The consultation document
The Commission's consultation document (October 2004 - COM 693) proposes the setting up of a EU “Fundamental Rights Agency” to replace EUMC. It sets out the general context as Art 6.1. of the TEU, Charter of Fundamental Rights and the ECHR. As a "given" it says the "Agency" will monitor rights "by area" (issue) and "not prepare reports by country" as it would be "strictly" limited to areas of Community competence. The Commission's attitude to the Network of Independent Experts, set up in 2002, is ambiguous asking whether having both structures adds "value". Given the excellent work of this Network it is amazing that the Commission does not envisage a precise role for them. Moreover, as the Secretary-General of the Council of Europe, Terry Davis, said in an interview that: "I cannot understand what it [FRA] is going to do" and that there was a real danger of proliferation.
The Commission is uncertain whether the Agency should involve itself in the Community's remit regarding member states under Article 7 (TEU) where action is needed against a member state for a "serious breach" of fundamental rights - the Commission's own proposal for the enforcement of Article 7 says that because all EU governments adhere to the Union's "core values" (which seem to be shifting inexorably to the right in the name of the "war on terrorism") then it cannot ever imagine taking action against a member state.
On the Agency's "geographic scope" the Commission is adamant that it shoul