From public service broadcasting to the collection of our personal data, farmers’ subsidies to the extradition of criminal suspects, the range of issues that the European Union (EU) regulates is vast. But what is there to prevent the EU from creating laws that endanger our rights such as free speech, privacy, or a fair trial? The Charter of Fundamental Rights of the European Union lists the rights that the EU is legally obliged to respect whenever it takes action. In 2010 Viviane Reding, Vice-President of the European Commission announced the adoption of a fundamental rights strategy, according to which “the Commission will verify that all EU laws are in compliance with the Charter at each stage of the legislative process.”
The three institutions involved in EU law-making (the Commission, Council and Parliament) have created their own internal rules to ensure that proposals for new laws are checked against the Charter. But two years on, recent research suggests that what goes on in practice, however, is another story. Even though there is a legal obligation to respect the rights in the Charter, compliance with human rights standards is still treated as a political issue that is up for negotiation, rather than a legal requirement. Recent negotiations on a proposed EU directive on the use of passenger name record data illustrate this starkly. The directive would require information on all passengers to be collected by airlines and transmitted to law enforcement agencies to be stored for a period of five years. This not only allows authorities to interfere with the privacy of passengers by monitoring their travel – even when there is no evidence to suggest that they have committed a crime. It also increases the risk that personal information could be lost, stolen or misused, such as for racial profiling of travellers. Even though the three main expert EU bodies on this issue (the Article 29 Working Party, the European Data Protection Supervisor, and the European Union Agency for Fundamental Rights) all raised serious doubts about its compatibility with human rights standards, each of the institutions has pressed ahead with passing the legislation. If all the EU’s institutions are supposed to be screening legislative proposals for compliance with the Charter of Fundamental Rights, why are laws that are not compatible with human rights standards still being adopted?
What goes on in practice in the EU’s institutions?
The Commission, responsible for putting legislative proposals on the table, has been relatively systematic in implementing its own rules on checking for compliance with the Charter. Whenever major legislation is being considered, the Commission draws up an impact assessment to analyse its potential consequences on various issues, such as the environment or the economy. This assessment includes a “fundamental rights check-list”. But in practice the analysis is often very superficial. Worse still, at times relevant rights issues are simply not spotted at all. In a sense this is not surprising. One might not expect, for example, a civil servant creating policy on the internal market to realise that this could have a negative impact on the quality of care services delivered to the elderly. Such was the situation when the Commission proposed the Services Directive. This legislation was intended to make it easier for companies in different countries to compete with each other. The original proposal had included social services, which would have resulted in cheaper, poorer quality care services being provided by local authorities.
The Commission does have a potential second line of defence. Before it can formally adopt a proposal and send it on to the Council and the Parliament to negotiate, it must receive the endorsement of its own Legal Service. The Commission’s Legal Service checks that the proposal would not involve the EU doing something outside the powers given to it by national governments, and should include a check for compliance with the Charter. Unfortunately, the opinions that it delivers are not published. The Legal Service is not meant to act like a court, but more like a lawyer advising a client. So it presents the Commission with an analysis of the risk that a proposal, if passed into law, could be struck down by the Court of Justice of the EU if a case were to come up. The only piece of evidence available – a leaked opinion of the Legal Service on a proposal concerning an agreement on passenger name record data between the EU and the United States – shows that serious concerns raised by its Legal Service were, in fact, largely ignored.
Once the Commission’s proposals are sent on to the Council and the Parliament, these institutions may propose amendments – which should (in theory) also be checked for compatibility with the Charter. The Council of the EU, where national governments are represented, has its own set of guidelines to help diplomats involved in negotiations to check that any proposed legislation meets the Charter’s standards. Many of the negotiations are carried out by diplomats in “working parties” that specialise in different areas of policy, such as criminal law or pharmaceuticals. There is even a working party on fundamental rights, as well as the Council’s own Legal Service, which the Council’s guidelines specify are available to provide advice to other working parties. But according to several diplomats, the guidelines are not actually put into practice and questions on human rights are put to the Council’s Legal Service only occasionally. Human rights questions might be raised from time to time by a particular government – though often as a tool to block legislation that it opposes for political reasons. This may explain why diplomats cannot think of an occasion when the specialist working party on fundamental rights been asked for assistance by other working parties.
The Parliament has a strong track record of standing up for human rights, both inside and outside the EU. Many members of the European Parliament are receptive to the wealth of expertise offered by non-governmental organisations (NGOs). But the willingness of an MEP to make use of NGOs depends very heavily on his or her own political leanings. From time to time the Parliament has requested to the EU’s Fundamental Rights Agency or external consultants to analyse the human rights issues raised by a proposal. But it simply does not have the resources to systematically screen legislative proposals or the amendments to those proposals put forward by MEPs.
The EU needs to take its commitment to human rights seriously.
One draw-back to current arrangements is even though the EU is legally bound to respect the Charter, it is not legally bound to follow a process of screening legislation, or of implementing the findings of any screening process. To make its obligation to respect the Charter effective in practice, the current internal rules need to be made mandatory and implemented systematically. Moreover, if a screening exercise leads to a conclusion that a proposal breaches the Charter, the institutions must implement this finding, and not simply treat it as a political factor to be considered during negotiations.
How could the EU do better?
One problem facing the Commission is the lack of expertise on human rights among civil servants preparing proposals for legislation. To turn all civil servants into human rights experts would require a level of training that is not feasible. But to make the opinions of the Commission’s Legal Service publicly available could increase the accountability of the Commission when it chooses not to follow the advice given. It might also reveal whether the Legal Service itself has sufficient expertise on human rights, and in turn prompt it to recruit more staff in this area. The situation in the Council might be improved if its own guidelines on the Charter were implemented, and if the analysis of proposals and amendments were published, as they are in the Commission’s own impact assessments. As for the Parliament, it could consider setting up a more detailed screening procedure along the lines of the Commission. This could take the form of opinions being delivered by an expert body to assist the Civil Liberties Committee, where most legislation with a significant fundamental rights angle is currently negotiated.
The EU could also look into more creative solutions to draw on the expertise of other bodies. The Fundamental Rights Agency, the EU’s own expert human rights body, could be given a role in systematically screening legislative proposals—something that is not currently within its powers. Keeping in mind that the EU is also on course to join the European Convention on Human Rights, there is also room for greater cooperation between the EU and the Council of Europe. This could take the form of lawyers from the European Court of Human Rights being seconded to the EU institutions to boost expertise. The Council of Europe, which has a history of developing training materials, could also train EU civil servants to understand how their given policy areas, like the internal market or regional development funding, can have an impact on the rights protected by the Charter. Finally, the institutions could improve their cooperation with civil society organisations that have the expertise they lack. It is not unusual for NGOs to be excluded from the preparation of legislative proposals by the Commission. Similarly, negotiations in the Council are notoriously opaque and difficult to track. Opening up to outside expertise can only help the EU to improve the quality of its laws, and the ability of the EU to create legislation that can ‘promote the well-being of its peoples’, which the Treaty on European Union states is one of the organisation’s overarching aims. For now, Commissioner Reding’s ambition that all EU law ‘must be fundamental-rights proof’ is far from being realised.