Communication from the Commission - The Fundamental Rights Agency Public consultation document {SEC(2004)1281}
Date: 2004-10-25
Institutions: European Commission
Subjects: EU Charter of Fundamental Rights, EU office or agency, access to EU information, fundamental rights, rules of procedure

COMMISSION OF THE EUROPEAN COMMUNITIES 

Brussels, 25.10.2004 
COM(2004) 693 final 

COMMUNICATION FROM THE COMMISSION 

The Fundamental Rights Agency 
Public consultation document 

{SEC(2004)1281} 

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COMMUNICATION FROM THE COMMISSION 

The Fundamental Rights Agency 
Public consultation document 

TABLE OF CONTENTS 

1. 

2. 

2.1. 

2.2. 

3. 

4. 

5. 

5.1. 

5.2. 

5.3. 

6. 

7. 

INTRODUCTION........................................................................................................ 3 

THE AGENCY’S FIELD OF ACTION ...................................................................... 5 

Remit confined to the scope of Community (or Union) law........................................ 5 

Remit covering Article 7 of the Union Treaty ............................................................. 6 

RIGHTS AND THEMATIC AREAS TO BE COVERED BY THE ACTIVITIES OF 
THE AGENCY ............................................................................................................ 7 

GEOGRAPHIC SCOPE............................................................................................... 7 

TASKS TO BE ENTRUSTED TO THE AGENCY.................................................... 8 

Data collection and analysis......................................................................................... 8 

Opinions and views intended for the EU institutions and the Member States............. 9 

A communications and dialogue strategy .................................................................... 9 

RELATIONS WITH CIVIL SOCIETY....................................................................... 9 

SYNERGIES WITH OTHER BODIES..................................................................... 10 

7.1.  With the Council of Europe ....................................................................................... 10 

7.2.  With the national institutions for the promotion and protection of human rights...... 10 

7.3.  With the network of independent experts on fundamental rights .............................. 10 

8. 

STRUCTURE OF THE AGENCY............................................................................ 10 

Annex: References ................................................................................................................... 12 

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1. 

INTRODUCTION 

The  representatives  of  the  Member States  meeting  within  the  European  Council  in 
Brussels on 12 and 13 December 2003 decided to extend the remit of the European 
Monitoring  Centre  on  Racism  and  Xenophobia  (1)1  in  order  to  convert  it  into  a 
Fundamental Rights Agency (2). 

That  decision  ended  a  long  debate  in  which  support  for  setting  up  such  an  Agency 
was  widely  expressed  (3).  In  June  1999  the  Cologne  European  Council  had 
suggested examining the need for an Agency for human rights and democracy (4), an 
idea supported by the European Parliament (5).  

The  Commission  fully  supports  the  decision,  which  is  line  with  the  specific 
commitments of the Union to respect fundamental rights (6).  

Furthermore,  accession  to  the  European  Convention  for  the  Protection  of  Human 
Rights and Fundamental Freedoms (ECHR) will strengthen the EU's commitment to 
protecting  human  rights  by  introducing  external  judicial  review  of  the  Union’s 
respect for fundamental rights (7). 

The  decision  to  set  up  a  Fundamental  Rights  Agency  clearly  continues  the  policy 
begun  with  the  objectives  entrusted  to  the  Centre,  which  already  has  the  task  of 
giving  the  Community  institutions  the  means  to  fulfil  their  obligation  to  respect 
fundamental rights in drawing up and implementing policies and acts adopted within 
their  fields  of  competence  (8).  To  that  end,  the  main  task  of  the  Centre,  which  at 
present has limited staff and resources (9), is to collect and analyse data on racism 
and xenophobia and study the causes.  

At the time the December 2003 decision was adopted, the Commission had presented 
a proposal to recast the regulation establishing the Centre (10) following an external 
assessment  of  the  Centre  (11).  Although  the  proposal  was  withdrawn,  the 
conclusions of the assessment remain valid as regards the Centre and will be taken 
into consideration when the Agency is set up.  

The establishment of the Agency raises delicate questions such as the legal basis (the 
Commission will carefully examine the impact of the Community's limited powers in 
the area of fundamental rights when drafting its proposal for a regulation setting up 
the Agency), the financial resources it will be given (12) and the questions linked to 
the definition of its field of action, its missions and tasks and the relations it might 
develop with the Council of Europe and other international institutions. It also raises 
problems  concerning  the  adaptation  of  the  existing  structure  to  ensure  that  the 
Agency is effective. 

The solutions to these problems should be sought with an eye to the beneficiaries of 
the  Agency’s  activities:  the  EU  institutions,  the  Member States  and  civil  society  in 
general. The Agency should be a crossroads facilitating contact between the different 
players in the field of fundamental rights, allowing synergies and increased dialogue 

1 

The annexes are in working paper SEC(2004)2181. 

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between all concerned. This should benefit the holders of fundamental rights, citizens 
and all those within the EU. 

The national institutions for the protection and promotion of human rights, set up by 
some Member States on the basis of UN principles (13) (14), can serve as a source of 
inspiration when establishing the Agency, even though care should be taken to avoid 
simply  transposing  these  examples,  given  the  specificity  of  the  EU.  According  to 
those principles, the institutions must have consultative, informative and monitoring 
functions  and  be  able  in  particular  to  formulate  opinions  and  draw  up  studies  and 
reports and education and information schemes. 

Several national institutions also have quasi-judicial powers (dealing with complaints 
and  petitions).  The  Agency  will  not  have  similar  powers  as  the  Treaty  has  already 
conferred them on the institutions: the Commission’s role of supervising the proper 
application of Community law must be respected. 

The  tasks  of  the  Agency,  which  will  be  set  up  by  an  instrument  of  secondary 
legislation, must not encroach on the powers conferred on the EU institutions by the 
Treaties. Like any other Community agency, it will be a European public-law entity, 
separate from the Community institutions and possessing its own legal personality. It 
will carry out highly  specific technical,  scientific or administrative tasks defined in 
the  instrument  setting  it  up  and  will  have  no  decision-making  powers.  Its  task  will 
thus  be  to  provide  support  for  the  institutions,  the  Member States,  the  members  of 
civil society and individuals. 

Lastly, as the Agency is to operate up in a global environment, it must ensure that it 
is  receptive  to  that  environment.  Dialogue  with  the  different  actors  in  the  field  of 
fundamental rights must be encouraged at this level too.  

Public consultation 

In  2005,  the  Commission  will  present  a  proposal  for  a  regulation  relating  to  the 
Agency, following in-depth consultations with all those involved in the development 
of fundamental rights in the EU (15). 

To  that  end,  the  Commission  would  like  to  receive  contributions  by  17 December 
2004, to be sent by e-mail to the following address: 

JAI-charte@cec.eu.int 

Contributions  received  will  be  published  on  “Your  Voice  in  Europe”  with  the 
authors’  names,  unless  they  wish  to  remain  anonymous  or  request  that  their  entire 
contribution be treated as confidential. 

The  dialogue  on  the  Agency  will  end  with  a  hearing,  attended  by  the  interested 
parties, to be held on 30 November 2004. 

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2. 

THE AGENCY’S FIELD OF ACTION  

Article  6(1)  of  the  Treaty  on  European  Union  (TEU)  lays  down  the  principles  on 
which  the  Community  is  founded.  It  lists  them  as  the  principles  of  liberty, 
democracy, respect for human rights and fundamental freedoms and the rule of law, 
and states that these principles are common to the Member States. Article 6(2) states 
that  the  Union  respects  fundamental  rights,  as  guaranteed  in  the  European 
Convention  on  Human  Rights  and  as  they  result  from  constitutional  traditions 
common to the Member States and the general principles of Community law. 

The  Charter  of  Fundamental  Rights  reaffirms  the  rights  arising  out  of  the 
the 
constitutional 
Member States,  the  ECHR,  the  EU  and  Council  of  Europe  Social  Charters  and  the 
case law of the Court of Justice and the European Court of Human Rights. 

international  obligations  common 

traditions  and 

the 

to 

It specifies that these provisions are addressed to the institutions, bodies and agencies 
of  the  Union  with  due  regard  for  the  principle  of  subsidiarity  and  to  the 
Member States only when they are implementing Union law (16).  

Article  7  TEU  (17)  requires  each  Member State  to  respect  the  principles  set  out  in 
Article 6, an obligation backed by a procedure which gives the Union the capacity to 
act  preventively  in  the  event  of  a  clear  threat  of  a  serious  breach  of  one  of  the 
principles or to determine the existence of a serious and persistent breach of one of 
these principles. The scope of Article 7 is broad, giving the EU institutions the ability 
to act not only within the limited framework of the areas covered by EU law but also 
in the event of a breach in an area where the Member States act autonomously. 

Given that the Agency will be required to monitor fundamental rights by area and not 
to prepare reports by country, how should the scope of its field of action be defined? 
Should it be confined to the areas covered by Community (or Union) law or should it 
extend  further  to  cover  the  scope  of  Article 7  TEU,  setting  up  a  procedure  which 
could be used only exceptionally, according to the gravity of the situations to which 
it would apply? 

It  must  be  ensured  that  the  field  of  action  chosen  for  the  Agency  gives  real  added 
value  to  the  protection  of  fundamental  rights  and  does  not  affect  the  Agency’s 
efficiency. 

2.1. 

Remit confined to the scope of Community (or Union) law 

By confining the Agency's remit to the scope of Community (or Union) law, its role 
would be to help ensure compliance with fundamental rights of both Community law 
and policies and implementation of the latter by Member States. 

The  Agency  would  thus  complement  the  Community  system  of  protecting  and 
promoting existing fundamental rights, characterised by different elements: 

– 

judicial  review  by  the  Court  of  Justice,  which  will  be  reinforced  by  external 
review  by  the  European  Court  of  Human  Rights  following  accession  to  the 
ECHR; 

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– 

– 

– 

– 

– 

monitoring by the European Ombudsman to ensure that EU institutions respect 
the right to sound administration;  

monitoring by the European Data-protection Supervisor of the protection of the 
freedoms  and  fundamental  rights  of  individuals  with  regard  to  the  processing 
of personal data by a Community institution or body;  

policy  follow-up  by 
the 
the  European  Parliament, 
Commission, both inside and outside the Union, through the adoption of annual 
reports  with  a  broader  remit  than  the  Community  powers  relating  to 
fundamental rights; 

the  Council  and 

setting  up,  at  the  request  of  Community  legislation,  independent  institutions 
responsible  for  enforcing  compliance  with  fundamental  rights  (18)  in  certain 
areas such as the fight against discrimination or the protection of personal data; 

the part played by the Centre in combating racism and xenophobia through its 
research and contacts with civil society. 

Confining the Agency’s remit strictly to the areas of Community competence would 
avoid duplicating the work of the other bodies operating at international and national 
levels. The coordination that  should be set up between the activities of the Agency 
and  those  of  such  international  organisations  as  the  Council  of  Europe  and  of 
national institutions for protecting and promoting fundamental rights, would thus aim 
to develop synergies.  

The  disadvantage  of  this  option  would  be  that  the  Agency  could  not  be  asked  to 
collect  and  process  the  information  needed  to  analyse  a  given  situation  in  which 
Article 7 TEU proceedings were to be taken, if the situation had no connection with 
Union law or extended beyond the fundamental rights field. 

2.2. 

Remit covering Article 7 of the Union Treaty 

As already stated, this Article gives the Union a different power of intervention from 
the  power  it  already  possesses  to  ensure  that  Member States  respect  fundamental 
rights when they implement EU law. It allows the Union to act outside the field of 
EU law, in areas where Member States act autonomously. 

Furthermore,  the procedure is not confined to failure to respect fundamental rights, 
as Article 7 refers to all the principles listed in Article 6(1): freedom, democracy, the 
rule of law and respect for human rights and fundamental freedoms. 

If  the  object  of  the  Agency  were  to  be  defined  as  to  act  as  an  early  warning 
instrument  for  situations  covered  by  Article 7,  the  Agency  should  in  any  event  be 
required only to provide institutions with the expertise that allows them to base their 
decisions on reliable and objective data. 

However,  this  raises  the  question  whether  such  an  extensive  remit,  covering  every 
situation in a Member State, can be reconciled with the aim of an effective Agency. 
Furthermore,  this  could  lead  to  overlaps  with  work  carried  out  by  the  Council  of 
Europe  and  national  human  rights  bodies  at  their  respective  levels.  There  is  a  very 
real risk of duplication and contradiction if proper coordination is not established at 

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the  outset.  To  avoid  such  situations,  the  Agency  should  engage  in  continuous 
dialogue  in  order  to  identify  the  methods  of  cooperation  that  would  place  their 
expertise at its disposal. 

3. 

RIGHTS AND THEMATIC AREAS TO BE COVERED BY THE ACTIVITIES 
OF THE AGENCY 

The  Charter  of  Fundamental  Rights,  which  was  proclaimed  in  Nice  in  December 
2000,  and  which  forms  Part  II  of  the  Constitutional  Treaty  with  legally  binding 
effect, brings together a package of rights, freedoms and principles which will, when 
the  Constitutional  Treaty  enters  into  force,  bind  the  EU  institutions  and  the 
Member States when they apply EU law. The Commission considers that, although it 
is  not  legally  mandatory  as  matters  stand,  it  already  constitutes  an  authentic 
expression of the fundamental rights protected by Community law as a set of general 
principles. 

As  such,  it  constitutes  an  essential  reference  document  in  the  discussion  on  the 
definition of the Agency’s areas of intervention. 

It might be worth asking the Agency to monitor all the fundamental rights protected 
by Community law and included in the Charter (19). This would provide an overall 
view  of  the  rights  on  which  the  EU  is  based,  which  is  essential  to  the  harmonious 
development of the  different  categories of fundamental rights. It would also  ensure 
that  any  hierarchisation  of  rights  does  not  jeopardise  their  universal  application  or 
prevent their interdependence from being emphasised. 

A reference to the Charter would, however, give the Agency an extremely broad field 
of action, especially if its activities were to include respect for fundamental rights in 
relations  between  the  individual  and  the  EU  institutions  or  States,  but  also  in  all 
social relations between individuals, as is currently the case in respect of racism and 
xenophobia. 

Another  option  would  be  to  focus  the  Agency’s  work  on  thematic  areas  having  a 
special  connection  with  Community  policies  or  the  Union  (immigration,  asylum, 
non-discrimination,  ethical  questions,  guarantee  of  criminal  proceedings,  violence, 
etc.).  Among  these,  racism  and  xenophobia  would  continue  to  be  given  priority  by 
the  Agency.  This  stems  from  the  December  2003  decision,  which  provides  for  the 
enlargement of the Centre’s remit. In this respect, the definition of the Agency’s aims 
must  take  account  of  the  recent  European  Council  decision  on  the  creation  of  a 
European Gender Institute (20). 

Whichever option is chosen, it must ensure a balance between a potentially vast area 
of  intervention  and  the  effectiveness  of  the  Agency.  Some  flexibility  is  therefore 
desirable. 

4. 

GEOGRAPHIC SCOPE 

Should  the  Agency’s  activities  be  confined  to  the  Union  or  should  they  also  cover 
third countries? 

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Confining  the  Agency’s  scope  to  the  Union  would  clearly  underline  the  will  to 
emphasise  the  importance  of  fundamental  rights  in  the  Union  and  would  be  an 
effective  means  of  placing  responsibility  on  its  institutions  in  the  field  of 
fundamental rights. It would also help in determining the capacity and the expertise 
that the Agency will require. 

This  message  might  be  diluted  if  the  Agency’s  remit  were  to  be  extended  to  third 
countries;  the  Commission  rejected  this  option  in  its  Communication  on  the  EU’s 
role in promoting human rights and democratisation in third countries (21), and the 
Council  shared  its  approach  in  its  conclusions  of  25  June  2001  (22).  In  addition, 
respect for human rights in the Union’s foreign policy is already taken into account 
in the context of cooperation with third countries. 

5. 

TASKS TO BE ENTRUSTED TO THE AGENCY 

The  Agency  should  collect  data  on  fundamental  rights  to  enable  the  Union  to  take 
fundamental rights fully into account when drafting and implementing its policies. 

This  would  mean  focusing  the  Agency's  tasks  on  two  areas:  data  collection  and 
analysis and the drafting of opinions (23). 

These tasks could certainly be supplemented by others, including maintaining regular 
dialogue  with  the  EU  institutions,  the  Member States  and  civil  society  in  order  to 
promote fundamental rights. 

5.1. 

Data collection and analysis 

The  Agency’s  principal  tasks  can  be  defined  as  the  collection  and  analysis  of 
objective, reliable and comparable data at European level. To that end, it is essential 
that it play an active part in networking with other bodies. 

Data  collection  is  the  main  objective  of  the  Centre,  pursuant  to  Article  2(1)  of  the 
1997 Regulation. 

Data should be collected in cooperation with the Member States and the members of 
civil  society  dealing  with  fundamental  rights,  notably  NGOs,  national  institutes  for 
fundamental rights and the Council of Europe. The network of independent experts 
for  fundamental  rights  could  also  be  an  important  source  of  information  for  the 
Agency. 

Several methods could be used to collect good-quality information. Methods should 
also be found for ensuring that the information is objective, reliable and comparable. 

An active approach could be taken by requesting the Agency to set up data collection 
mechanisms.  The  Centre  takes  this  approach  with  the  Raxen  network  (24).  The 
Agency could thus set up one or more networks to help it in this task, in addition to 
the existing network. 

On  the  other  hand,  data  could  be  collected  passively,  with  the  EU  institutions  and 
Member States  being  required  to  send  data,  for  example  in  the  form  of  regular 
reports.  The  data  could  be  supplemented  by  optional  reports  from  NGOs  or  other 

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members of civil society. By thus transferring the burden of collection, the question 
of data quality and comparability is left intact. 

The active solution, which leaves the Agency free to seek information from a variety 
of  sources,  means  it  must  select  it  with  care  to  ensure  that  it  is  reliable,  but  the 
Community and national authorities would be less involved in the process. 

The  passive  solution  releases  the  Agency  from  the  obligation  to  set  up  data  search 
machinery  and  places  the  responsibility  more  on  the  EU  institutions  and  the 
Member States  as  regards  the  transmission  and  quality  of  the  data.  Regular  reports 
would  also  allow  more  regular  monitoring  of  the  situation  as  regards  fundamental 
rights. 

5.2. 

Opinions and views intended for the EU institutions and the Member States 

Data  collection  and  analysis  should  be  targeted  on  the  drafting  of  opinions  for  the 
institutions and the Member States, in which the Agency would set out its analyses. 

Executing  this  task  could  take  the  form  of  published  reports  or  other  means  of 
communication.  

5.3. 

A communications and dialogue strategy 

Dissemination  of  the  work  carried  out  by  the  Agency  and  the  dialogue  with  the 
various  members  of  civil  society  should  form  part  of  a  clearly  defined 
communications  strategy that meets the needs  of  its  customers and thus creates  the 
conditions  for  coordinating  a  fundamental  rights  awareness  and  education  policy 
with what is being done nationally and by the Council of Europe. 

The  communications  strategy  would  notably  involve  the  publication  of  reviews, 
information  bulletins  and  studies,  the  organisation  of  a  website  and  a  database.  It 
would be a major tool in the dialogue between the Agency and the different actors in 
the field of fundamental rights, notably the NGOs (25), and in cooperation with the 
Council of Europe and the national human rights bodies. 

6. 

RELATIONS WITH CIVIL SOCIETY 

The  Agency  should  establish  relations  with  NGOs,  the  social  partners,  universities 
and  other  partners  involved  in  fundamental  rights,  as  well  as  with  the  specialist 
bodies dealing with the protection of fundamental rights in the field of personal data 
and privacy. 

It would be important to ask it to maintain regular contact with those parties whose 
expertise will make a valuable contribution to its work. 

The contacts could take the form of a network set up among the partners. 

The activities of the Agency must not, however, compromise the independence of the 
partners. 

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7. 

SYNERGIES WITH OTHER BODIES 

7.1.  With the Council of Europe 

Close  cooperation  must  be  established,  like  that  between  the  Centre  and  the 
European Commission against Racism and Intolerance (ECRI) (27), which provides 
for the participation of the Council of Europe (26). 

Specific forms of cooperation with the Council of Europe will be defined bilaterally. 
It  would  also  be  desirable  for  the  Agency  to  develop  close  relations  with,  for 
instance, the Commissioner for Human Rights to ensure that their respective areas of 
competence complement each other. 

7.2.  With the national institutions for the promotion and protection of human rights 

Special  attention  should  be  paid  to  the  links  which  the  Agency  could  develop  with 
national bodies, notably with a view to determining respective work programmes. A 
network could be set up between the Agency and the national agencies or equivalent 
bodies in the Member States. 

7.3.  With the network of independent experts on fundamental rights 

It  is  necessary  to  identify  the  synergies  which  the  Agency  could  develop  with  the 
network of independent experts on fundamental rights, set up by the Commission at 
the request of the European Parliament, and to determine whether retaining the two 
structures will give real added value to the promotion and protection of fundamental 
rights. 

8. 

STRUCTURE OF THE AGENCY 

In order to carry out its tasks objectively, the Agency must be independent. 

It  must  be  independent  of  all  those  with  whom  it  will  come  into  contact:  the 
Commission, European Parliament, Council, Member States and civil society. 

In exchange for the independence of the Agency in the pursuit of the tasks it will be 
given,  an  appropriate  system  of  responsibility  and  liability  (political,  financial, 
administrative, and legal) will also have to be clearly established. 

At the same time, the efficiency of the Agency, which is intended to be a lightweight 
structure  in  terms  of  staff  and  budget,  and  its  transparency  and  representativeness 
must not be compromised. 

These points must be considered and conclusions drawn with regard to the structure 
of the Agency and the composition of the management bodies. 

A  measure  of  the  importance  attributed  to  the  Agency  would  be  if  representatives 
appointed by the Commission, the European Parliament, the Member States and the 
Council of Europe were to participate in its management bodies. 

To ensure that it is effective, the Agency’s management bodies must: 

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– 

– 

have the necessary expertise to define the Agency’s work programme and also 
administer it; 

optimise the influence of the Agency on decision-makers in the Member States 
and  the  EU  institutions.  It  might  be  advisable  to  consider  adding  a  scientific 
committee  to  the  structures  of  the  Centre  (Management  Board,  Executive 
Board, Director) (28). 

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Annex: References  

(1) 

(2) 

(3) 

Created  by  Council  Regulation  (EC)  n°  1035/97  of  2  June  1997  establishing  a 
European Monitoring Centre on Racism and Xenophobia, OJ L 151 of 10 June 1997, 
p.  11.  The  European  Monitoring  Centre  on  Racism  and  Xenophobia  was  created  in 
June  1997.  The  primary  role  of  the  Monitoring  Centre  consists  of  collecting  and 
analysing  data  on  racism,  xenophobia  and  anti-Semitism,  as  well  as  studying  the 
causes of these phenomena, in order to help the Community and the Member States to 
conceive and to target their policies. The Monitoring Centre, which is based in Vienna, 
employs approximately 30 people and has an operational budget amounting in 2003 to 
€6.5 million.  

For the purposes of this text, the expressions “fundamental rights” and “human rights” 
carry the same meaning.  

In 2000, the wise mens’ report, (report of Messrs Martti Ahtisaari, Jochen Frowein and 
Marcelino  Oreja,  analysing  “the  commitment  of  the  Austrian  Government  to  the 
common  European  values,  in  particular  relating  to  the  rights  of  minorities,  refugees 
and immigrants”, presented on 8 September 2000 in Paris) recommended the creation 
of an EU Agency on Human Rights in order to contribute to the establishment “of a 
mechanism within the EU to monitor and evaluate the commitment and performance 
of individual Member States with respect to common European values”.  

(4) 

Item 46 of the conclusions.  

(5) 

(6) 

See, in particular, the European Parliament resolution on the annual report on respect 
for human rights in the European Union, of 16 March 2000, § 94 (A5-0050/2000), the 
European  Parliament  resolution  on  International  Human  Rights  and  European  Union 
Human  Rights  Policy,  of  16  March  2000,  §  10  (A5-0060/2000),  the  European 
Parliament  resolution  on  the  human  rights  situation  in  the  European  Union,  of  15 
January  2003,  §  8  (A5-0451/2002),  and  the  European  Parliament  resolution  on  the 
Communication from the Commission to the Council and the European parliament on 
the  European  Union's  role  in  promoting  human  rights  and  democratisation  in  third 
countries, of 25</Titre> April 2002, §§ 25 – 28 (A5-0084/2002).  

The  explicit  engagement  of  the  Union  to  respect  fundamental  rights  results  from 
Article 6 of the Treaty on European Union. The Charter of Fundamental Rights “The 
Charter”, declared in Nice in December 2000 and published OJ C 364 of 18 December 
2000,  p.  1,  has  been  included  in  part  II  of  the  Treaty  establishing  a  Constitution  for 
Europe,  with  binding  legal  force.  It  constitutes  an  authentic  expression  of  the 
fundamental rights protected by the Community legal framework.  

(7) 

To date, the European Union is not a member of the ECHR, although the legal and 
political consequences of such an adhesion have been discussed and examined for 
years.  

The question was in particular raised with respect to the Charter of Fundamental 
Rights. The importance of keeping a balance between this document and the ECHR 
led to the insertion of a provision in Article 52 (3) of the Charter, stating that “Insofar 
as this Charter contains rights which correspond to rights guaranteed by the 
Convention for the Protection of Human Rights and Fundamental Freedoms, the 

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meaning and scope of those rights shall be the same as those laid down by the said 
Convention. This provision shall not prevent Union law from providing more 
extensive protection”.  

Article I-9 (2) of the Treaty establishing a Constitution for Europe stipulates that the 
Union shall accede to the European Convention for the Protection of Human Rights 
and Fundamental Freedoms. Such accession shall not affect the Union's competences 
as defined in the Constitution. 

(8) 

See recital 2 of regulation 1035/97.  

(9) 

Currently, thirty people work at the Monitoring Centre; in 2003 the budget was €6.5 
million.  

(10)  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,  a  proposal  for  a  Council 
regulation  on  the  European  Monitoring  Centre  on  Racism  and  Xenophobia  (Recast 
version) COM (2003) 483 final version.  

(11)  The integral report submitted by the assessors may be consulted on the Internet at the 

following address:  

http://europa.eu.int/comm/employment_social/fundamental_rights/pdf/origin/eumc_ev
al2002_fr.pdf  

(12)  The  Commission  commits  to  go  ahead  with  its  regulation  proposal  after  an  ex-ante 

evaluation so as to ensure the principle of sound financial management.  

(13) 

In the annex, an opinion has been drawn up by the Network of independent experts on 
fundamental  rights  concerning  the  role  of  national  institutions  for  the  protection  of 
human rights in the member states of the European Union.  

(14)  The Council of Europe also formulated principles on the establishment of independent 
national  human  rights  institutions  for  the  promotion  and  protection  of  human  rights 
(Recommendation No. R (97) 14 of 30 September 1997).  

(15)  The  debate  has  already  been  complemented  by  a  working  paper  of  the  European 
Parliament  presented  by  Mrs  Swiebel  (EP  <NoPE>339.635)  and  by  contributions  of 
Amnesty  International,  Social  Platform  and  of  the  European  Association  for  the 
Protection of Human Rights (FIDH-AE).  

(16)  Article 51 of the Charter stipulates that it neither extends the scope of the law of the 
Union beyond the competences of the Union, nor creates any new competence or task 
for the Union.  

(17)  This article was the subject of a Communication from the Commission to the Council 
and the European Parliament on Article 7 of the Treaty on European Union - Respect 
for and promotion of the values on which the Union is based, COM (2003) 606 final 
of 15.10.2003.  

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(18) 

In  particular  the  case  of  Directive  46/95  on  data  protection  which  envisages  the 
creation by the Member States of supervisory authorities, and of Directive 2000/43/EC 
on  equal  treatment  between  persons,  irrespective  of  racial  or  ethnic  origin,  which 
provides for the designation by the Member States of bodies responsible for upholding 
this equality.  

(19)  The provisions of the Charter have a clear basis for interpretation in the "Explanations 
relating  to  the  complete  text  of  the  Charter",  a  document  drawn  up  under  the 
responsibility  of  the  Praesidium  of  the  Convention  which  drafted  the  Charter,  not 
having  any  legal  effect  and  intended  simply  for  clarifying  the  provisions  of  this 
document.  Although  these  explanations  do  not  have  in  itself  any  legal  effect,  they 
constitute  a  valuable  interpretation  tool  intended  to  clarify  the  provisions  of  the 
Charter. 

(20)  The conclusion 43 of the presidency of the European Council of Brussels (17 and 18 
June  2004)  pointing  out  the  aims  of  equality  stated  in  the  Lisbon  programme  and  in 
the  light  of  the  political  agreement reached within the Council, expresses its support 
for the creation of a European Institute for equality between men and women and calls 
on the Commission to submit it a proposal in this direction. 

(21)  COM  (2001)  252  final  of  8  May  2001,  item  5.  Indeed,  the  Commission  considered 
itself  to  have  complete  sources  of  information  and  advice  on  the  matter  and  did  not 
consider it convenient to create an implementation agency for the development of the 
projects with regard to the third countries.  

(22) 

"The Council underlines the importance of enhancing co-ordination and co-operation 
between Community actions and the CFSP in the promotion and protection of human 
rights  and  efforts  to  strengthen  democracy.  Hence,  the  Council  recalls  that  the 
Community's  actions  should  be  consistent  with  the  European  Union’s  action  as  a 
whole,  including  the  CFSP.  The  Council  shares  the  Commission's  opinion  that  these 
objectives should be achieved without establishing new structures", 2362nd session of 
the Council on – general Affairs. 

(23)  Opinions  restrict  themselves  to  expressing the  opinion  of  the  entity  that  it  emits  and 

are not binding opposite the entity to which they address themselves.  

(24)  See Article 2 (2) point h) of the regulation n° 1035/97.  

(25)  Strengthening  the  dialogue  with  the  civil  society,  in  particular  with  the  NGOs,  is  an 
objective  that  the  Commission  stated  on  several  occasions,  in  particular,  in  the 
Communication on Article 7 EUT, already mentioned (cf. its item 2.4).  

(26)  The Council of Europe has several instruments and mechanisms as regards protection 
of  human  rights,  the  principal  of  which  are:  the  European  Convention  of  Human 
rights,  the  European  social  Charter,  European  Convention  for  the  Prevention  of 
Torture  and  Inhuman  or  Degrading  Treatment  or  Punishment,  the  Convention  on 
Human rights and biomedicine, the Convention for the Protection of Individuals with 
regard to Automatic Processing of Personal Data, the Framework Convention for the 
Protection  of  National  Minorities,  the  European  Charter  for  Regional  or  Minority 
Languages and the European Commission against Racism and Intolerance. 

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(27)  Council  decision  of  21  December  1998  relating  to  the  conclusion  of  an  Agreement 
between  the  European  Community  and  the  Council  of  Europe  for  the  purpose  of 
establishing, in accordance with Article 7(3) of Council Regulation (EC) No 1035/97 
of  2  June  1997  establishing  a  European  Monitoring  Centre  on  Racism  and 
Xenophobia, close cooperation between the Centre and the Council of Europe, OJ L 
44 of the 18. 2.1999, p. 33.  

(28)  See Article 10 of the Council Regulation (EEC) No 302/93 of 8 February 1993 on the 
establishment of a European Monitoring Centre for Drugs and Drug Addiction, OJ L 
36, 12.02.1993, p. 1  

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