European Commission’s New Leadership Creates Momentum for Fundamental Rights

Incoming European Commission President Jean-Claude Juncker has given a vital role to the capable Dutch foreign minister, Frans Timmermans. Juncker has taken responsibility for protecting and promoting the rule of law and fundamental rights in the EU’s member-states out of the justice portfolio and put it in the newly established post of first vice-president that Timmermans will take up in November. Timmermans has shown a strong commitment to promoting human rights as part of Dutch foreign policy, and is well respected for his intellect. This decision creates several good opportunities for the EU to better protect and implement fundamental rights standards.

The first piece of good news is that Juncker has promoted fundamental rights and the rule of law in the Commission’s hierarchy. Under the outgoing Commission, fundamental rights had formed part of the portfolio of the justice commissioner, Viviane Reding. Reding was also one of eight Commission vice-presidents. The decision to promote responsibility for the rule of law and fundamental rights to the newly created post of first vice-president offers hope that the Commission will take its task to uphold these values very seriously. Certainly, Juncker’s “right hand” will carry greater political weight than the previous justice commissioner did.

Second, Juncker’s decision may also remove an obstacle to ensuring that Commission proposals comply with fundamental rights standards. All Commission departments are supposed to ensure that their proposed policies and legislation respect the Charter of Fundamental Rights. However, departments working on policy areas that superficially seem unrelated to fundamental rights, like regional development or competition, either have insufficient expertise to check or are unaware that their policies might infringe the Charter. Furthermore, some departments have not properly corrected policies (for example on agriculture and international trade) that damage fundamental rights in countries outside the Union and thereby undermine the human rights goals of EU foreign policy.

While DG Justice has taken steps to educate and help other Directorates-General, it could not force itself on reluctant peers. Furthermore, both the Commission’s Legal Service and DG Justice do not have a sufficient number of staff to perform thorough fundamental rights checks for all proposals. However, the first vice-president now has the political authority to ensure that all Commission departments comply with the Charter, and has been specifically charged with this task by President Juncker. Timmermans should also liaise closely with the EU’s future foreign relations chief, Federica Mogherini, and in particular her Special Representative on Human Rights, to prevent internal policies undermining human rights abroad.

A third advantage is that the Commission’s new structure makes it easier for the Union to mainstream fundamental rights across all its policies. The Treaty on European Union states that the EU’s overarching aim is to promote “the well-being of its peoples.” The EU’s goals in specific policy areas, such as monetary policy or environmental protection, do not exist for their own sake. Rather, they are designed to fulfil the broader purpose of improving the quality of life for all those living within its borders.

Timmermans could ensure that improving implementation of fundamental rights becomes the guiding principle of all Union policies. For example, the object of EU competition rules is to ensure that companies compete with each other to produce the best products at the lowest prices for the benefit of consumers. In certain areas, like the media market, a particular company could own print, online, radio, and television channels without breaching competition rules. However, such a company could still have significant influence over politicians and public debate, with a negative impact on the right to freedom of expression and democratic participation (recent examples of this problem lie in the UK, Italy, and Hungary). The first vice-president could ensure that all Directorates-General include improvement of fundamental rights as an overarching goal, alongside specific objectives such as economic development.

To achieve the full potential of his new office, Timmermans could develop an EU fundamental rights strategy. The EU has progressively given fundamental rights greater prominence in its law and policies. But it lacks an overarching and coherent framework under which it respects, protects, and promotes fundamental rights.

To improve respect for fundamental rights, the first vice-president could increase the number of rights experts among Commission staff, including its Legal Service. This would ensure that all proposals are compliant with the Charter. Timmermans should consider transferring those teams currently responsible for the Charter of Fundamental Rights and the rule of law from DG Justice and placing them under his supervision in the Commission’s Secretariat-General. This would send a clear message inside the Commission that fundamental rights have to be taken seriously. As the first vice-president also has responsibility for relations with the European Parliament and the Council, he could assist these institutions to develop and implement a system for screening their amendments to Commission proposals for compatibility with the Charter.

To improve protection of fundamental rights and the rule of law, the first vice-president should apply the framework on the rule of law, put in place in March of this year, to member-states that are introducing measures to undermine democracy, fundamental rights, and the rule of law, such as Hungary and Spain. Building on the recent example of the Czech Republic, Timmermans should also ensure that the Commission launches infringement proceedings against governments that fail to implement EU legislation that protects fundamental rights, with the same readiness that it takes action against countries for breaching internal market rules. For example, mass eviction and segregation of Roma in France and Italy are clear breaches of the Racial Equality Directive and Free Movement Directive.

To help the EU use its powers to promote fundamental rights, the first vice-president could perform an audit of EU competences. This would identify how the powers of each Directorate-General can be directed towards improving the implementation of fundamental rights. The EU has taken a similar approach to the rights of persons with disabilities.

The first vice-president can call on the EU’s Fundamental Rights Agency, Council of Europe, United Nations human rights mechanisms, and civil society organizations to assist in creating and implementing the strategy. The EU institutions should create channels for regular and structured dialogue between the Union and these bodies. Greater transparency of decision making—which is also part of Timmermans’s portfolio—will allow these organizations to make timely and pertinent contributions.

To devise and put a fundamental rights strategy into practice will require a change in culture in all the EU’s institutions, and could take the whole of Timmermans’s mandate to accomplish. But it would vastly improve the legitimacy of the Commission, and public support for the Union as a whole.