Broadening the Rule of Law debate: towards a Fundamental rights strategy

Speech by FRA Director at a seminar on The future of the European area of Justice, Rule of Law and Fundamental Rights, Helsinki, 28 April 2014. Check against delivery.

Prime Minister, Commissioner, Ministers,

Ladies and Gentlemen,

Thank you first of all for the invitation to talk here today, so close to Tampere, where agreement was reached on the process of drafting the Charter of Fundamental Rights.

The comments made by Cecilia Malmström on the importance of fighting corruption are very timely, and it is promising that, as she noted, legislation has been passed, institutions set up and strategies created to counter corrupt practices in many EU countries, corruption profoundly undermines fundamental rights. I also concur with Prime Minister Katainen when he says that the European Commission’s proposed new Framework to strengthen the rule of law is a step in the right direction. It’s an important step.

Fundamental rights achievements

The EU has achieved a great deal in the area of fundamental rights. We have strong anti-discrimination legislation and the infringement procedures that ensure EU law is respected and implemented. First and foremost, though, we have the EU Charter of Fundamental Rights, which became a binding document when the Lisbon Treaty entered into effect. The Charter strengthens the protection of fundamental rights not only because it is a legally binding document, but also by making those rights more visible to EU citizens and thereby more accessible – a fact we also see if we look at the case law of both the EU and national courts.

Fundamental rights challenges

However, despite all the progress we have made in the EU over the last decades in emphasising the importance of human rights, many fundamental rights challenges remain. For example:

  • The ongoing debates over the right to privacy and data protection, as illustrated by the recent decision from the European Court of Justice on the retention directive
  • Threats to social and economic rights, such as access to health and education
  • The rise of extremism and populism throughout Europe, which in particular target ethnic and sexual minorities, and finally
  • The undermining of key components of the rule of law system in some EU countries

Rule of Law -> Article 2 TEU

The rule of law is a vital topic for us to be debating in Europe today but I will expand this discussion slightly.

Throughout the rule of law debate, there has been frequent mention of Article 2 of the Treaty of European Union. However, rule of law is only one of a number of values mentioned in Article 2. So while the proposed ‘EU framework to strengthen the rule of law’ is an important step, we need to go further. We need to put the rule of law alongside the other Article 2 values – respect for human dignity, freedom, democracy, equality and respect for human rights – and discuss how they can fit into a broader approach to ensure respect for all fundamental rights.

Given the fact that the Charter of Fundamental Rights covers close to all the values set out in Article 2, Member States and EU institutions could consider complementing the rule of law framework launched by the Commission with a strategic fundamental rights framework.

In May last year, the Council of the EU called for consensus on how to protect fundamental rights and promote the rule of law, putting seven points on the table to guide the debate that stressed all proposals needed to:

  1. be inclusive in terms of relevant bodies and participation of civil society
  2. be based on an agreed understanding of the problems to be addressed and methods applied
  3. guarantee full synergy and avoid overlaps, especially with the Council of Europe
  4. identify the EU’s added value of action
  5. consider the full range of possible avenues and seek consensus amongst Member States
  6. be based on transparency and equality
  7. aim at real positive impact on the lives of ordinary people.

The last point should rightly have been the first.

Strategic fundamental rights framework: added value

A strategic fundamental rights framework would be in a position to accommodate most, if not indeed all, of the points I have just mentioned. And it would have three elements of added value that we don’t have at present:

  • It could enable a more including and substantial reading of the rule of law, covering all fundamental rights in which the EU undoubtedly plays a role and has much to offer in terms of standards and procedures
  • It could ensure a more inclusive process by involving all relevant players, from the European Commission, through the European Parliament and the Council of the European Union, to other relevant EU bodies and other national-level institutions such as national parliaments, bodies with a human rights remit and civil society
  • It would not only address the behaviour of EU Member States, but also placing an emphasis on the EU’s own performance in terms of upholding the rule of law and safeguarding fundamental rights. It is important that the EU strategic framework starts with the EU itself, including the way EU law is created.

Strategic fundamental rights framework: content

Many elements would be needed to create such a strategic framework. For now, let me highlight two elements that could contribute to make it workable.

Firstly, an EU fundamental rights policy cycle would supply the procedural basis that brings all human rights actors together, helping to focus their work and assist in creating synergies between the key actors at European and national level. Because it is vital that we make use of the experiences of individual Member States to feed into EU-level policy developments. We therefore need input from governments and national parliaments, as well as ombudsmen, NHRIs and equality bodies, and civil society.

Secondly, we need to develop fundamental rights indicators in order to ensure progress on the substantive aspects of the framework. Such indicators would also permit an assessment of fundamental rights legislation and policies, and their practical effects on the lives of ordinary people. The indicators would be organised in a systematic framework, such as that applied by FRA, building on the UN Office of the High Commissioner for Human Rights. A system of indicators would not replace a thorough contextualisation and detailed analysis, but rather indicate concerns that need to be examined in more detail. In a peer review or another process.

FRA’s potential role

Ladies and gentlemen,

I would like now to dwell briefly on the ways in which FRA could contribute to the aspects of the strategic framework on fundamental rights I have just mentioned.

  1. In terms of the policy cycle: the Fundamental Rights Agency could assist in collecting and systematising the plethora of data that is already regularly submitted to and analysed by European and global bodies, thereby giving more visibility and efficiency to what is already out there in terms of standards, data collection and normative assessment.

    Indeed, such ‘a one stop shop’ would allow the Agency to draw up an annual report that synthesises the most important findings of the various data and analysis available, including its own comparative studies and surveys. 
     

  2. Such a report could use the indicators agreed on beforehand together with Member States. This would mean the methodology applied would result in a broad consensus for an annual peer review amongst EU Member States, as well as the EU institutions.

Debating and agreeing on indicators, discussing findings of an objective and impartial annual report and exchanging promising practices could create a truly European fundamental rights culture based on a shared desire to respect and protect the values enshrined in Article 2 of the EU Treaty.

Conclusion

To conclude:

As you can see from the points I have made today, we already have numerous tools at our disposal: we do not need to start from scratch. What we do need, however, is a joined-up approach, in which different mechanisms and institutions active in the area of fundamental rights cooperate more closely and efficiently.

Forming an internal EU framework for fundamental rights that mirrors the existing external fundamental rights framework would send a strong signal to the outside world. It would demonstrate beyond all doubt that the EU and its Member States are prepared to ‘walk their talk’, increasing the coherence between the Union’s internal practices and external procedures.

As we have already said many times during our discussions today, rule of law is crucial if our democracies are to flourish, and citizens with them and let’s recall that the rule of law is profoundly anchored in Fundamental Rights.

Thank you.