Speech to the European University Institute, Florence

Public lecture about the EU's fundamental rights architecture in occasion of the signature of the Memorandum of Understanding.

Mr President,

Ladies and gentlemen,

I am very happy to be here amongst you. I have great respect for the work of the European University Institute.

An often quoted definition of Europe that you all know is the one of Europe being built on three hills, namely the Palatin (reflecting the tradition of Roman law), the Olympia (symbolising Greek culture) and finally the Golgotha standing for a Judao-Cristian heritage.

I quite like metaphors, so what I find disturbing with this one is not its simplicity but the fact that it does not mention the hill of Fiesole and thus seems slightly outdated to me. Your Institute indeed plays a key role in preventing that the official Europe is entirely left to its day-to-day technocratic machinery. Europe needs intellectual challenges and seeds that help keeping the process of European integration an intellectual ambition! Your contributions are crucial in this regard.

Of course, I am especially happy to see that fundamental rights play an important role in the countless fascinating discussions taking place here on the hills of Fiesole. The summer school organised by the Academy of European law is just one example in this regard.

And, of course, many famous EUI professors have provided key contributions to the fundamental rights debate in Europe. I would like to just pick one example. In the EUI report "Leading by example: a human rights agenda for the European Union for the year 2000", the authors came up with the idea to establish a "Human Rights Monitoring Agency". Maybe not all too surprisingly, I believe that this was a good and important idea.

Now, let me in a first part of my speech put emphasis on what is increasingly referred to as the European Fundamental Rights Architecture

Recent years and developments show that also apart from the creation of the FRA the role of fundamental rights in the EU is increasing. In fact, the visibility of fundamental rights within the EU was consolidated by the entry into force of the Lisbon treaty at the end of 2009 and in 2010, Viviane Reding was designated as a Commissioner specifically responsible for Justice, Fundamental Rights and Citizenship. Also in 2010, a permanent Working Group within the Council of the European Union was created that is specifically tasked with fundamental rights.

In 2011 these internal developments were mirrored by the negotiations on the EU’s accession to the European Convention on Human Rights and by the entry into force for the EU of the United Nations’ Convention on the Rights of Persons with Disabilities – the first core international human rights treaty to which the Union has become party.

Today the EU level is relevant to the fundamental rights architecture in three ways.

Firstly, it has a range of bodies and mechanisms in place helping to ensure that the EU itself respects fundamental rights, such as the Fundamental Rights Agency, the European data Protection Supervisor or the European Ombudsman. In these months the Commission is preparing to establish a new monitoring mechanism under CRPD art. 33.

Moreover, checks of compliance with fundamental rights standards have been introduced as part of the process of formulating and negotiating legislation and policy by the three political institutions: the Commission, Parliament and Council.

Secondly, the EU has a range of mechanisms in place to ensure that the Member States implement EU law in conformity with fundamental rights standards. In particular the ‘infringement’ proceedings are important since the Commission may take action against Member States that are failing to meet their obligations. We saw the effect in the summer of 2010 when the Commission raised this flag vis a vis France concerning the Roma.

Thirdly, in certain limited areas the EU holds authority to create policy and legislation on certain fundamental rights issues, such as the fields of discrimination or data protection. EU law establishes common rules for all Member States in these areas and requires certain bodies – like Equality Bodies or Data Protection Authorities - or procedures to be established at the national level to ensure that rights are protected and promoted.

Despite this obvious importance of the EU, it can hardly be ignored that the EU is only one of many players in the field when it comes to protecting fundamental rights of person living on the European soil. What makes the European Fundamental Rights architecture so complex and challenging is indeed the interaction between the various layers of governances: the national level, the European Union, the Council of Europe and finally the international level as shaped by the work of the United Nations.

There are various shared aims and tasks between the mechanisms available for promoting the implementation of fundamental rights at the national, European Union, Council of Europe and UN levels.

In fact, there is in at least three ways an increased interaction between these players and layers.

Firstly, there is significant interplay between the four layers of the architecture in terms of the fundamental rights that they guarantee. This can be referred to as a ‘normative’ interconnection. Fundamental rights are rooted in the concept of ‘universality’ and reflect the values that are important to human beings in order to allow them to live their life in dignity.

As such they are based on a presumption that all human beings share minimum common values, such as the desire to voice one’s opinion, or not to be tortured. While rights may not be phrased in exactly the same language between different international treaties or national legal instruments, in substance they are largely identical in different systems.

In part this is also due to the fact that all EU Member States have entered human rights treaties at the UN and Council of Europe level, which cover the same issues. The EU’s own fundamental rights regime has also been based on Council of Europe and UN standards.

Secondly, consistency between the different layers does not stop with the content of the rights protected. Bodies in different layers turn to each other for guidance in interpreting the meaning given to rights. For example, national courts hearing cases relating to violations of fundamental rights will often draw on the case law of the ECtHR or UN treaty bodies in interpreting national provisions.

Similarly, the EU institutions, in ensuring that policies and legislation comply with the EU’s Charter of Fundamental Rights will often refer to the ECHR or relevant UN treaties in interpreting the Charter’s provisions since the Charter is partly based on these same international standards.

This can be referred to as an ‘institutional’ interconnection. In fact, Treaties at European and international level have often required or encouraged the creation of mechanisms at the national level to promote the implementation of these obligations, such as National Human Rights Institutions or other bodies covering specific fundamental rights.

As I mentioned already earlier, this is one area where the EU has had a particularly significant impact at the national level, requiring the creation of bodies with a mandate to promote equality under EU legislation prohibiting discrimination, and in the area of data protection.

The Fundamental Rights Agency has taken this one step further since the members of the management board should be appointed from "an independent national human rights institution or other public or private sector organisation". In this way the national and EU level is directly institutionally interconnected via the governing body of the Agency.

Thirdly, the different layers of the architecture do connect, formally and informally, to each other. This can be referred to as a ‘procedural’ ‘interconnection. For example, an individual wishing to make a complaint about a fundamental rights violation will first try to have their case resolved in the national courts.

If the complaint relates to an area of EU law, the national court may refer the case on to the Court of Justice of the EU. If the complaint falls outside EU law, and the individual does not get a favourable outcome from the national court, they may then have the option of taking the case to the ECtHR, or in the alternative, to one of the UN treaty bodies, or approaching one of the ‘special procedures’ of the UN.

This interrelationship between the procedures does not only concern complaints by individuals. It can also relate to other monitoring mechanisms. For example, where a State takes part in a reporting procedure before a UN treaty body, that State’s National Human Rights Institution may contribute with an independent perspective to the State’s report, or submit its own report to the UN.

Certain international Conventions even require the establishment of monitoring bodies at national level as is the case for the OPCAT or the CRPD. This is another new development showing that the layers once are increasingly interwoven.

In fact the EU is characterised by a Babushka situation. Like the Russian wooden puppets. The EU has to deal with being part of bigger puppets but also by including smaller puppets. And its 27 Member States are not only subject to fundamental rights obligations under EU law but also under the Council of Europe and the United Nations.

This can be easily exemplified with some figures. Last year EU Member States have ratified far over 20 international instruments in the area of fundamental rights. Over 50 international monitoring reports were delivered on the fundamental rights performance of different EU Member States. And the Strasbourg Court identified in 506 judgements a violation of the ECHR by EU Member States.

At the same time, last year also saw an increasingly important question, namely whether or not the European Union is able to guarantee that its member States are staying within what one could call the core values of the Union, including the protection of fundamental rights. This issue was and is especially discussed vis-à-vis the current situation in Hungary.

So let me in a second part of this speech focus on the European Values and how they related to the European architecture.

The Fundamental Rights Architecture as I have tried to describe it does not allow the Union to offer fully-fledged and overall control and protection of fundamental rights. Article 51 of the EU Charter of Fundamental Rights reminds us that fundamental rights do not extend the field of application of Union law beyond the powers the Member States have entrusted the Union with. At the same time the Union builds on the protection of fundamental rights at national level.

To give an example: The EU relies on efficient judicial systems at national level. This is why both the Charter of Fundamental Rights and the EU Treaty have provisions to ensure effective legal protection. European courts cannot make up for a lack of effective remedies at the national level.

This interdependency is also reflected when it comes to the so-called core values. Article 4 states that the Union shall respect the national identities of its Member States, including their political and constitutional structures. At the same time Article 2 establishes values such as democracy, fundamental rights or the rule of law as being common to the Union and to its Member States.

In fact, the EU depends on a certain degree of homogeneity across all EU Member States. The EU treaty establishes that the Member States assist each other in full mutual respect. Also, the treaty confers many rights to the EU citizens. Both the mutual respect, as well as the rights flowing from EU law, relies on Member States that respect the European core values.

In that sense, Article 2 of the EU Treaty preserves diverse constitutional cultures of Member States. But at the same time it also preserves unification. "United in diversity" is a coin with two sides: While diversity is protected, so is unity.

The obligation to respect core values extends far beyond the Union’s legislative competences. Thereafter, the legal means available to the EU to uphold these values are very restricted. The sanctioning procedure in Article 7 of the EU Treaty is a political procedure – not a legal procedure. For instance, the Court of Justice cannot be called upon to assess whether or not a specific situation is qualified for an Article 7 procedure.

With this, I come to my second point in this regard, namely the fact that the rule of law is an overarching principle in the context of Articles 2 and 7.

What does this mean? In European constitutional traditions, the rule of law requires public power to be subject to procedural as well as substantive limitations. In other words, the rule of law requires certain basic conditions to be guaranteed - including a separation of powers and the legality of administration. The state must respect the principle of legal certainty, the principle of reliability, the prohibition of retroactive acts, and the principle of proportionality. If these conditions are absent, there is a risk that fundamental rights remain law in the books - without becoming part and parcel of reality on the ground.

In this sense, robust and independent institutions of justice are a crucial prerequisite of a functioning human rights system and, more generally, for a democratic society based on the rule of law.

This concept of independence precludes any external influence, whether direct or indirect, which could call into question the performance of justice. Therefore, it is not enough that courts and judges act independently; they must also be perceived by the public to act independently. Confidence in the judiciary will grow once the public sees courts and judges functioning and passing judgements without interference from State administration. In this context it is centrally important:

- how judges are appointed,

- how the judiciary and its oversight are organised,

- how courts are established or abolished, and

- how cases are attributed to the courts’ bodies.

Of crucial relevance is the right to an effective remedy and to a fair trial. This right is explicitly enshrined in Article 47 of the Charter. Its immediate relevance in EU law is further stressed by Article 19 of the EU Treaty obliging Member States to "provide remedies sufficient to ensure effective legal protection". As mentioned before, courts at the European level cannot make up for a lack of effective remedies at the national level.

Equally relevant are other authorities that monitor compliance with human rights standards such as data protection institutions and which also have to be trusted to perform their tasks independent from external influence. It is one of the significant achievements of the EU Charter of Fundamental Rights to guarantee that compliance with data protection rules is controlled by an independent authority.

Let me come to my third and last point in the context of the respect for European values, which is on how to assess the performance of a Member State under Article 7.

When assessing whether or not a Member State is at a clear risk of seriously breaching core values, it is important to look not only at one single measure but at the combined effects of many developments. If, for instance, the independence of the judiciary and of monitoring bodies is weakened in favour of the government, this has significant repercussions on the system’s overall balance of powers.

Furthermore, other developments such as the introduction of new majorities to elect public officials, or new standard terms of public officials, or new electoral laws should be included in the overall assessment. In this sense, the whole is greater than the sum of its parts.

Coming back to the question as to whether or not the European Union is able to keep its house in order when it comes to the respect for shared values, I think we have to distinguish two situations. One is the EU aquis context, thus fundamental rights obligations that are enshrined in EU law itself. Here, I think it is very safe to say that the EU has an efficient system in place that helps guaranteeing that the rights as provided for by EU law are protected.

The other situation is that of Member States potentially violating fundamental values, principles or rights outside the reach of EU law. Here Article 7 of the EU treaty establishes a political procedure that allows for a certain degree of control. However, we see some limitations in the EU system as it currently stands.

In particular, the assessment of whether or not a Member States is risking to clearly breaching the core values of the European Union is a highly demanding exercise. It requires a sort of data collection and analysis that seems currently not yet in place. I would here propose an EU-wide approach characterised by three "C-s", namely a comparative, comprehensive and continuous analysis of various developments. Having this in mind for all the 27 EU Member States might help to guarantee a European Union in which human rights are secured.

Ladies and Gentlemen, in conclusion I would like to underscore that in the last decade the EU made impressive progress in the field of fundamental rights. Fundamental rights were not always at the very forefront of the process of European integration. However, I would say "better late than never" and focus on the overall trend. And the trend is positive as outlined in the beginning.

Fundamental rights have a new improved standing within the EU system. And I am sure that we can count on the EUI to further build on this trend. In fact, I came today to Fiesole in order to sign a memorandum of understanding between the EUI and the FRA allowing for regular stays of EUI researchers at our Agency in Vienna. We are not situated on a hill, but rather based on the reality of politics. But this makes us even more looking forward to this new cooperation between Fiesole and Vienna.

Many thanks for your attention.