Opinion of the European Economic and Social Committee on the Proposal for a Council Regulation establishing a European Union Agency for Fundamental Rights — Proposal for a Council Decision empowering the European Union Agency for Fundamental Rights to pursue its activities in areas referred to in Title VI of the Treaty on European Union  (COM(2005) 280 final — 2005/0124-0125 (CNS))
Date: 2006-04-11
Institutions: European Economic and Social Committee
Subjects: EU office or agency, fundamental rights, human rights, operation of the Institutions, powers of the institutions (EU)

11.4.2006

EN

Official Journal of the European Union

C 88/37

Opinion of the European Economic and Social Committee on the Proposal for a Council Regu-
lation establishing a European Union Agency for Fundamental Rights — Proposal for a Council
Decision empowering the European Union Agency for Fundamental Rights to pursue its activities
in areas referred to in Title VI of the Treaty on European Union

(COM(2005) 280 final — 2005/0124-0125 (CNS))

(2006/C 88/10)

On 22 September 2005 the Council decided to consult the European Economic and Social Committee,
under Article 262 of the Treaty establishing the European Community, on the abovementioned proposal.

The Section for Employment, Social Affairs and Citizenship, which was responsible for preparing the
Committee's work on the subject, adopted its opinion on 24 January 2006. The rapporteur was Mr Sharma
and the co-rapporteur was Ms Nouail Marlière.

At its 424th plenary session, held on 14 and 15 February 2006 (meeting of 14 February), the European
Economic and Social Committee adopted the following opinion by 94 votes in favour, no votes against
and four abstentions.

1. Gist of the Commission document

1.1
The objective of the proposal is to extend the mandate
of the European Monitoring Centre on Racism and Xenophobia
(EUMC) and to establish a European Union Agency for Funda-
mental Rights, as decided by the European Council on 13
December 2003.

1.2
The main difference between the existing legislation and
the present proposals is that the latter extend the scope from
racism and xenophobia, besides the regulatory systems recog-
nised by the UN, ILO and the Council of Europe, to cover all
areas of fundamental rights referred to in the Charter, without
prejudice to those areas which are already covered by other
Community agencies.

1.3
The Agency will deal with fundamental rights as regards
implementation of Union law, both in the Member States and
in those candidate countries and potential candidate countries
which participate in the Agency. In addition, the Commission
may ask the Agency to submit information and analysis on
third countries with which the Community has concluded asso-
ciation agreements or agreements containing provisions on
respect of human rights, or has opened or is planning to open
negotiations for such agreements.

1.4
The objective of the Agency is to provide the relevant
institutions, bodies, offices and agencies of the Community and
its Member States with assistance and expertise relating to
fundamental rights when implementing Community law in
order to help them to fully respect these rights when they take
measures or formulate a course of action within their respective
spheres of competence.

1.5 Within thematic areas, the Agency will,
in complete
independence, collect and assess data on the practical impact of
Union measures on fundamental rights and on good practices
in respecting and promoting these rights; express opinions on
fundamental rights policy developments; raise public awareness
of all the texts and regulatory instruments to which EU refers

and promote dialogue with civil society; and coordinate and
network with various actors in the field of fundamental rights.
The Agency will not have any complaint resolution mechan-
isms.

1.6
The proposal empowers the Agency to pursue its activ-
ities in areas referred to in Title VI of the Treaty on European
Union.

2. General comments

2.1
The Committee welcomes the decision of the European
Council to establish a European Union Agency for Fundamental
Rights (‘the Agency’ thereafter) to enhance the Union principles
and practices enshrined under Article 6 of TEU. It will create a
mechanism for the monitoring of fundamental rights in the
Union that could serve to improve the coordination of the
fundamental rights policies pursued by the Member States.
There is much in this Commission proposal that the Committee
would welcome, in particular:

— the use of The Charter of Fundamental Rights as the point
of reference for the Agency's mandate; making for the first
time, social and cultural rights indissociable and of equal
value. In this connection the Agency has a specific early
warning capacity with regard to the implementation of
social rights, including in EU relations with third countries;

— the extension of the scope of the Agency to include matters
relating to police and judicial cooperation in criminal
matters through Council Decision;

— the use of the Agency as the technical expert in the context
of proceedings commenced under Article 7 of the Treaty
on European Union;

— proposed measures

to promote the independence and
public interests within the Management Board, the Director
and the Forum;

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Official Journal of the European Union

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— participation of candidate or potential candidate countries.

of Europe's Revised European Social Charter when the neces-
sary competence has been acquired by the EU.

2.2
The Committee welcomes paragraph 2 of the Preamble
of the proposed Regulation, which recognises the scope of the
existing rights to protect citizens and non-citizens within the
Union. The Preamble states that ‘The Charter of Fundamental
Rights of the European Union reaffirms the rights as they result, in
particular, from the constitutional traditions and international obliga-
tions common to the Member States, the Treaty on European Union,
the Community Treaties, the European Convention for the Protection
of Human Rights and Fundamental Freedom,
the social charters
adopted by the Community and by the Council of Europe and the case
law of the Court of Justice of the European Communities and of the
European Court of Human Rights.’

The Committee recognises the need to strike the right balance
between security, in particular anti-terrorist measures, and the
protection and promotion of human rights and fundamental
freedom within the Union. In the aftermath of September 11
and the more recent Madrid and London bombings, human
rights and fundamental
freedoms may be compromised by
some of the new anti terrorist measures adopted by Member
States. However one of the biggest weaknesses of the European
cooperation in the field of security is the fact that these policies
remain outside the Community framework and are drawn up
mainly according to the intergovernmental method (the third
pillar of EU). The role of the European Union is therefore very
limited. This lacks transparency in the decision making process
by the exclusion of the European Parliament and the European
Court of Justice. Extending the remit of the new Agency to
include the third pillar of the EU (Title VI of the TEU) would be
a key element
in maintaining a proper balance between
freedom, security and justice in the policies developed by the
Union (1).

rights of

2.3
The Committee recognises the expertise and the existing
monitoring mechanism within the Council of Europe in the
field of human rights and fundamental freedoms, including the
enforceable social
the Revised European Social
Charter. We also recognise the competence of the Council of
Europe and its European Court of Human Rights to deal with
human rights violation in accordance with various Conventions
and international law in which the Agency does not have such
competence. Therefore a more robust coordination and coop-
eration between the Agency and the Council of Europe is para-
mount.

The Agency must, like the Court of Justice of the European
Communities in its opinions and judgements, refer to the inter-
national
texts as to the interpretation and application of
primary and secondary EU law.

The Committee reiterates its request for the EU to be a member
of the European Convention on Human Rights and the Council

‘the Forum’) of

2.4
The Committee has a major concern that the proposal
does not promote or support wider representation from orga-
nised civil society in the Management Board and the Funda-
the new
mental Rights Forum (thereafter
Agency. This is contrary to the European Governance White
Paper which states that Civil society plays an important role in
giving voice to the concerns of citizens and delivering services that
meet people's needs…..Civil society increasingly sees Europe as offering
a good platform to change policy orientations and society. This offers
a real potential to broaden the debate on Europe's role. It is a chance
to get citizens more actively involved in achieving the Union's objec-
tives and to offer them a structured channel for feedback, criticism and
protest (2).

2.5
The Management Board and the Forum should not just
be comprised of lawyers and academics; it should have a wider
diverse background of people, in particular NGOs, social part-
ners, cultural, religious and humanist organisations that advo-
cate and defend the fundamental rights of socially excluded and
disadvantaged groups in our society.

3. Specific comments

3.1 Legal basis to establish the EU Fundamental Rights Agency

3.1.1
It can be argued that using Article 308 TEC together
with a Council decision under Title VI, may not be sufficient to
ensure that the Agency has competence in the areas covered by
Union law. Article 308 TEC gives the Community (not the
Union)
the power to act unanimously to take appropriate
measures to achieve an objective of the Community, in situa-
tions where that power has not been provided for by the TEC.
It is a general objective of the Community to ensure that its
own action fully respects and protects fundamental human
rights but there are no specific powers provided for in the
Treaty to that end.

3.1.2
The proposed Council decision is to then empower
the Agency to pursue its activities in areas referred to in Title
VI of the Treaty of the European Union.

3.1.3
The Committee emphasises that the protection and
promotion of human rights are the common values and objec-
tives of the Union as expressed in Article 6(4) of TEU, which
states that ‘The Union shall provide itself with the means necessary
to attain its objectives and carry through its policies’. Therefore the
Committee requests the Council to anchor the Agency in the
strongest legal basis of competence in accordance with Article
in order to ensure that the Agency has the necessary
6(4)
powers to fulfil its functions.

(1) EESC opinion on ‘The Hague Programme –Freedom, Security and
Justice’ (rapporteur Mr. Pariza Castaños) – OJ C 65, 17.3.2006.

(2) COM(2001) 428 final, pages 14-15.

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3.2 Tasks of the Agency (Article 4)

3.2.1
The Committee recommends inserting a section in
Article 2 of the object clause, that one of the objectives of the
Agency is to formulate recommendations, which the institu-
tions, bodies, offices and agencies of the Community and its
Member States can use to take measures and formulate courses
of action on fundamental rights and to provide information on
the possibilities for legal action by the national human rights
agencies to protect the rights of those individuals or groups
discriminated against by legislation or by state practices which
do not respect the principle of the rule of law.

The Agency should draw up an annual report on the imple-
mentation of fundamental rights in the EU and periodic reports
regarding its relations with international institutions, particu-
larly in the area of trade and development aid, and regarding
the association agreements and the Cotonou Convention

The Committee also recommends that

3.2.2
the Agency
may be requested by the European Parliament, the Council or
the Commission to do assessments on the compatibility
between the Charter of Fundamental Rights and any proposed
new EU legislation and policy (including external policies such
as trade with developing countries), notwithstanding the right
initiate an assessment on any subject on European
to self
proposed legislation,
its
boards..

in agreement or on proposal of

3.3 Areas of activity (Article 5)

3.3.1
Feedback from the consultation showed that 90 % of
consultees wanted to ensure that the focus for the fight against
racism and xenophobia would not get lost within the Agency.
We therefore welcome the Commission's proposal under
Article 5(1)(b) that the Agency should always include racism
and xenophobia in the thematic areas of its activities within the
Multiannual Framework.

3.3.2
However, the Committee is of the view that in order
to mainstream the fight against racism and xenophobia in the
new Agency within the remit of Article 5(1)(b), a special
Committee on Racism and Xenophobia should be set up within
the Management Board to give direction, and to allocate the
necessary resources.

3.4 Management Board (Article 11)

3.4.1 Comp osi t i on

The Committee favours an inclusive Agency uniting all stake-
holders and holds the view that this should be reflected in the

the Management Board (3). However,

composition of
the
Committee is concerned that the proposed Regulation does not
promote or support wider representation from organised civil
society on the Management Board.

that,

states

‘The
The European Governance White Paper
Economic and Social Committee must play a role in developing
a new relationship of mutual responsibility between the institu-
tions and civil society, in line with the changes to Article 257
of the EC Treaty agreed at Nice’ (4). In accordance with this
statement we recommend that a nominee appointed by the
European Economic and Social Committee should serve as a
member of the Management Board.

3.4.2 G ov e r na nce a r r a ng e me nt s

The Committee has concerns about the Agency's independence,
not only with respect to the EU institutions but also to the
Member States. The previous experiences of EUMC show that,
‘Member States disturbed by the Centre's work, sought
to
increase their influence over the Management of the Centre’ (5).
Given that in many cases it is Member States acting individually
or collectively in the Council, which are likely to infringe
fundamental human rights when implementing EU law, the
new Agency should be protected from political intervention by
Member States. Safeguards should include the appointment of
independent Management Board members.

and

recommends

accountability,

Governance of the Agency must be able to stand up to public
scrutiny. The ‘European Governance’ White Paper develops five
principles of good governance; these are: openness, participa-
effectiveness
tion,
The
Committee
the Management Board is
that
appointed through an open and transparent process. The
Commission should provide job profiles for the members of
the Management Board to the Member States. The recruitment
process should be made more transparent by disseminating the
recruitment information through public advertisements in the
Member States, and also through existing national and Euro-
pean networks.

coherence.

The Commission is also required to approve the budget (Article
19(3)) and the work plan (Article 5(1)) of the new Agency. In
order to ensure the independence of the Agency mechanisms
need to be put in place to ensure as far as practicable that the
UN Paris Principle on the national institution of Human Rights
is complied with.

(3) EESC opinion on the ‘European Monitoring Centre on Racism and
Xenophobia’ (rapporteur Mr. Sharma) CESE 1615/2003, para. 3.3.3
(OJ C80, 30.3.2004).

(4) EC Treaty of Nice, Art. 257, p. 15.
(5) EESC opinion on the ‘European Monitoring Centre on Racism and
Xenophobia’ (rapporteur Mr. Sharma) CESE 1615/2003, para. 3.3.4
(OJ C80, 30.3.2004).

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3.4.3 N u mb e r of me e t i ng s of th e M a na g e me nt B oa r d

The Committee recommends that the Management Board of
the Agency should meet more than once per year to ensure
greater accountability and participation of the Board members.

3.5 Executive Board (Article 12)

The proposed Executive Board will be comprised of a Chair, a
Vice Chair and two representatives from the Commission. In
our view this is a high proportion of members from the
Commission and could be seen to compromise the indepen-
dence of
the
number of members of the Management Board is increased
from two to five.

the Agency. We therefore recommend that

The Committee reiterates a more robust coordination and
cooperation between the Agency and the Council of Europe is
desirable as we highlighted in paragraph 2.3 and create a
culture of human rights within the European Union as our
prime objective. The Committee therefore recommends that
one of the members of the Management Board in the Executive
Board should come from the Council of Europe. This arrange-
ment will ensure the synergy of the Agency and a complimen-
tary role between the Agency and the Council of Europe.

3.6 Fundamental Rights Forum (Article 14)

The Committee is concerned that the proposal does
3.6.1
not promote and support wider representation from organised
civil society on the Forum. The Forum should have the widest
representation from its stakeholders who are NGOs, social part-
ners, cultural, religious and humanist organisations who have
an interest in defending human rights. The Committee recom-
mends that at least 1/3 of the members of the Forum should
represent organised civil society.

3.6.2
The Regulation proposes that the forum should be
chaired by the Director of the Agency. The Forum should be a
sounding board for the Management Board as a whole and not
just for the Director. Accordingly the Forum should be chaired

Brussels, 14 February 2006.

by the Chairperson of the Management Board in order to
ensure there is a close link between the two.

The expertise of the existing network of independent
3.6.3
experts on Fundamental Human Rights should not be lost. The
Committee recommends that
Independent
Experts should be represented on the Forum.

the Network of

3.7 Independence and public interests (Article 15)

3.7.1
In order to ensure the independence of the Agency
mechanisms need to be put in place to ensure as far as practic-
able that the UN Paris Principles on the National Institution of
Human Rights is complied with. The Committee, therefore,
recommends the following clause to replace Article 15 (1)
which states that ‘The Agency shall fulfil its tasks in complete inde-
pendence.’:

‘The Agency shall fulfil its tasks in complete independence
in keeping with the UN Paris Principles on the National
Institution of Human Rights.’

3.8 Financial Provisions (Chapter 5), Article 19 (Drawing up of the

budget)

The Committee reiterates the Paris Principles on adequate
funding to resource the Agency to carry out its functions and
activities. The purpose of this funding should be to enable it to
funding.
have
Without adequate funding safeguards the Agency would be
vulnerable to political
influence by the EU institutions and
Members States.

and programme

staff, premises

sufficient

3.8.1
clause be inserted before Article 19(1):

Therefore the Committee recommends the following

‘(1A) The Agency shall have adequate funding from the
Union to carry out its functions through the annual budget
cycle. The Agency may exceptionally apply for additional
resources to carry out special or additional tasks not fore-
seen in the annual budget’.

The President

of the European Economic and Social Committee

Anne-Marie SIGMUND