Excellencies, distinguished guests,
Ladies and gentlemen,
It is an honour to participate in FIDE’s 28th Congress, and in such a beautiful setting here in Estoril.
I would like to begin by thanking President José Luís da Cruz Vilaça and the Portuguese Association for European Law for their hard work putting together a programme that directly addresses the most pressing issues facing the European Union, its Member States and – most importantly – its people.
I am particularly pleased also to participate in a meeting of lawyers, allowing me to speak as a colleague with colleagues. I have worked all my life as a human rights lawyer and, as such, am somewhat impressed to be invited to address this plenary. How far human and fundamental rights law has come in so short a time! – from a small side road of law and legal practice to being at its very heart – on its highway, if you will.
Staying with the analogy of travelling it will be my contention today that European Law and in particular its fundamental rights law constitute important road signs at the crossroad where the European Union currently finds itself.
Colleagues, as I prepared my remarks of today I could not but think of all those great lawyers who have helped us navigate moments of great social and political turmoil and change. In these days, especially, I have in mind the recently deceased Pakistani lawyer – Asma Jahangir, a jurist of global significance, to whom I will return in my closing remarks.
Values and law
Let me now turn to our topic.
Two days ago I listened to the United Nations High Commissioner for Human Rights deliver an address in Vienna on the occasion of the 25th anniversary of the Vienna World Conference on Human Rights. He described a worrying Europe – a place resiling from the rule of law (in some places), of rising patterns of hate, of discrimination and general intolerance of the other. He referred to the rise – and success – of populist politics with an associated erosion of democratic institutions.
The High Commissioner is surely correct – as the work of my own Agency confirms. The situation is disturbing. We are in a moment of some confusion. For me this is the crossroads at which we stand – a place where we are offered the choice to either abandon the moral, the ethical Europe that inspired the founders of the EU or, instead to reinvigorate our shared society as a place that cherishes all its people – a place that welcomes those in distress.
For me the choice is unavoidable – that of embarking on the path of reinvigoration. But how do we do that? It is clear that it is a task engaging all the great social forces and that it has political, economic and social dimensions. But it is no less a legal project and thus of direct relevance for our profession. Every step along the way to a better EU must be embedded in a solid legal framework – a framework comprising the corpus of EU law that has at its heart a set of values that have full normative force.
What are these values? And how can we better defend them in order to move forward?
Since the entry into force of the Lisbon Treaty rights and values have been explicitly codified in the EU’s primary law. Article 2 establishes that “the Union is founded on the values of respect for human dignity, freedom, democracy, equality, the rule of law and respect for human rights, including the rights of persons belonging to minorities.”
These are sometimes described as our “European values”. However, I am uncomfortable with that term. These are universal values. We also find them expressed in the United Nation’s Universal Declaration of Human Rights – the Magna Carta of human rights. What is more, it is clear – and scholarship increasingly confirms this assertion – that these values are of global origin. They are inspired by theistic and philosophical traditions and values from across the world. They speak to humanity not to geography.
It is for this reason that, rather than speak of “European values” I prefer to refer to those universal values that we hold dear in our European societies. In this regard it is also worth recalling that all the 28 EU Member States have ratified the core United Nations human rights treaties.
Often described as the “constitutional” or indeed the “untouchable core” of the EU, the values are – and here I am quoting directly from the treaties – “common to the Member States in a society in which pluralism, non-discrimination, tolerance, justice, solidarity and equality between women and men prevail”.
Furthermore – as the Court of Justice itself explained in its opinion 2/3 on accession to the European Convention on Human Rights – that premise “implies and justifies the existence of mutual trust between the Member States”.
In that sense, Article 2 forms the legal basis to assume that the values are recognized across the EU and, and that EU laws to implement them will be respected.
In response to a request from the European Parliament, my own Agency issued a legal opinion on Article 2. In it we argued that the listed values are explicated by the rights enshrined in the Charter of Fundamental Rights of the European Union. In other words, all of the 13 values listed in Article 2 are reflected to a greater or lesser degree in the Charter’s 54 articles. Indeed, it could be said that the Charter translates the Article 2 values into more detailed and operational human rights code.
Since the entry into force of the Charter at the beginning of December 2009, we have witnessed an escalating rate of reference to it before the Court of Justice. National courts also regularly refer to it when requesting preliminary rulings from the Court. In 2017, 14% of all such requests made references to the Charter.
And we all remember landmark judgments like Digital rights Ireland Ltd (C-293/12), where EU legislation was declared null and void as it did not come up to the Charter’s standards.
The Charter, then, is increasingly gaining status as a constitutional document guiding the EU’s processes.
Before moving away from a reflection on the legal status of the values and rights of which I speak I must briefly tackle persistent myths regarding their enforceability.
Those who would repudiate the values will say that Article 2 expresses vague political declarations reflecting a societal consensus at a certain point in time. Or that, since the procedures in place to protect these values outlined in Article 7 TEU is triggered by political institutions and cannot be reviewed in substance by the Court of Justice, these principles are insufficiently grounded in law.
Let me address these arguments in turn. First, I need not tell a room full of lawyers that the values provisions introduced by the Lisbon treaty largely correspond to legal principles developed by the Court of Justice over many decades and laid down in the Maastricht and then Amsterdam treaties. [As President Lenaerts so eloquently stated…], the CJEU has over time developed and refined what we now find in Article 2.
Secondly, it is simplistic to disregard these values as mere declarations because the sanctioning procedure described in Article 7 is triggered by political institutions and is largely out of the Court’s jurisdiction.
Of course, we are witnessing that Article 7 is not delivering and was perhaps never meant to deliver. But there are many treaty provisions beyond Article 7 TEU which indicate that the commitment to shared values is firmly grounded in law.
Indeed, the EU itself is not only obliged to respect the Article 2 values; it is also obliged to actively promote them in accordance with Articles 3 and 13 TEU.
The 28 Member States are also required by Article 51 of the Charter of Fundamental Rights to both respect and proactively promote the implementation of that instrument.
But enough of law - how are we doing in practice?
Evidence and data
Assessing the levels of fundamental rights compliance across the EU is a large part of the work of the Fundamental Rights Agency. It is our role to provide EU institutions and Member States with independent, evidence-based advice on fundamental rights with the aim of ensuring their full respect. We employ multiple tools – from the world’s most ambitious human rights sentiment surveys to the provision of hands on support in the field. This we do across numerous topics – from migration to the situation of the Roma; from data protection to the impact of counter-terrorism measures.
It is a feature of our work that, in assessing the situation on the ground, we do not just do a study of law and jurisprudence. Instead we adopt socio-legal methods. This permits us to examine the application of laws and their impacts in people’s daily lives. In so doing we measure human rights performance against the three so-called “S-P-O” dimensions developed by the United Nations. These dimensions are:
Our findings persistently show some progress in areas of fundamental rights. But we can also identify major challenges in most policy fields, with shocking findings in some contexts. Let me provide just a few examples:
Illustrative examples such as these very much speak to the Europe as described by the High Commissioner – A Europe that has only a mixed record in delivering on its value commitments.
Just before addressing the issue of better enforcement of our human and fundamental rights law let me turn briefly to the challenges we face in drawing on one particular category of data sources regarding our human rights situation – that is the repository of findings and analysis of the international human rights monitoring bodies – that vast output of findings, analysis and recommendations produced by the human rights courts and quasi-judicial monitoring bodies that have jurisdiction regarding EU member states.
There are over 80 of these, taking account of the mechanisms of the United Nations, the Council of Europe, the International Labour Organisation and the EU itself. I was a member for eight years of one of them, the Geneva-based United Nations Human Rights Committee.
These bodies do important work in assessing actual situations and proposing actions to improve human rights compliance. However, their impact is greatly impeded by the sheer volume of material and the diversity of its forms. There is no place where they can be pulled together into a single mutually reinforcing analysis of a country situation. It is even challenging to do a comparative examination of their outputs – for instance, the data bases which house the various findings are unable to “speak” to each other. Or, in the jargon, they lack inter-operability.
This is the context for a new project of our Agency – the development of what we call a European Fundamental Rights Information System – EFRIS. EFRIS, which we will roll out next year, will constitute an online tool whereby all human rights findings of all 80 instruments will be searchable at one location. It will be possible to search all findings by EU member state as well as by human rights theme. We believe that this mechanism will significantly enhance the visibility and indeed the usability at the national and European levels of the findings of the international bodies. And we think that such a new levels of accessible evidence will be relevant for legal practitioners working in a legal environment characterized by mutual recognition and mutual trust.
Enforcement
Finally, allow me a few observations on enforcement of our legally enshrined values. It is undeniable that, in the particular context of the EU, this is an area in need of considerable improvement.
But I see both possibilities and promising developments. In terms of possibilities, for instance, there is no reason why the infringement procedure – be it under Article 258 [this is the procedure launched by the European Commission] or 259 [the procedure launched by another Member States] TFEU – should not cover violations of Article 2 provisions. After all, they set out “obligations under the Treaties”.
The same applies to obligations expressed in the Charter. We know that the Charter is not a treaty itself; it is an atypical instrument which was ‘solemnly proclaimed’ (rather than ‘adopted’) by the EU’s Commission, Council, and Parliament acting together. But, according to Article 6 (1) TEU, the Charter ‘shall have the same legal value as the Treaties’.
As its legal force is the same as that of the treaties, it is also protected by the treaties. In fact, the Charter has already been used in the context of infringement proceedings and there is potential to make a far more prominent use of the infringement procedure as a human rights tool.
In terms of promising practice, jurisprudence is increasingly indicating how various provisions in primary and secondary law give concrete form to enforcement of Article 2 values. For instance, the court recently underlined in the case Associação Sindical dos Juízes Portugueses v Tribunal de Contas that Article 19 (1) TFEU – the provision that requires “Member States … to provide remedies sufficient to ensure effective legal protection in the fields covered by Union law” – “gives concrete expression to the value of the rule of law stated in Article 2 TEU” and that it relates to ‘the fields covered by Union law’, irrespective of whether the Member States are implementing Union law, within the meaning of Article 51(1) of the Charter.”
Against this background I also welcome the European Commission’s recent proposal of 2 May to protect the Union's financial interests from the risk of financial loss caused by generalised deficiencies as regards the rule of law in a Member State.
According to this proposed regulation, it would be for instance possible to suspend any EU payment where the situation in a Member States witnesses:
One other somewhat encouraging development to mention in terms of enforcement of EU values is the attention currently being paid to the Union’s tools to support the rule of law. Various proposals have been tabled in this regard with the European Parliament going as far as envisaging an interinstitutional “pact” on democracy, rule of law and fundamental rights. This pact would bring together exiting tools but also introduce new elements such as an “annual report on democracy, the rule of law and fundamental rights” with country-specific recommendations incorporating the reporting done by the FRA, the Council of Europe, and other relevant authorities in the field.
An already existing practice is the annual rule of law dialogue that takes place in the Council of the European Union. My Agency is supporting Presidencies of the Council in their initiatives to strengthen the rule of law dialogue process. For instance, under the Estonian Presidency I was invited to introduce the dialogue in the General Affairs Council and draw conclusions following the interventions. While this was a modest innovation it indicates a will among a considerable number of member states to make the dialogue a more meaningful enforcement and assistance tool.
Conclusion
Colleagues, though I have ranged widely in my remarks today, I have always insisted on one message: that even though we in the EU find ourselves in strange and dangerous times, we are by no means lost at the crossroads.
Instead, EU law provides a clear sense of direction that is rooted in the universal values of human rights.
Of course, following the road-signed path will never be easy, or comfortable. Even in some European states it will be risky. However, there are mentors from whom we can learn.
In this regard, even though she lived and died in faraway Pakistan, I will come back to the example offered by my late friend Asma Jahangir.
Personally Asma was fearless in standing up to power – be it executive or judicial or indeed corporate. She called out hypocrisy wherever she saw it.
But it was by and through law that she had greatest impact. She believed passionately in the vocation of the jurist – a responsibility to use the fullness of her skills and knowledge to ensure that those human rights found in constitutions and treaties be uncompromisingly honoured. For her the primary battle ground was the courtroom.
That said, she was no human rights law imperialist – she recognised it as just one element for a just and fair society – but she considered it a vital one without which our states lose their moral legitimacy. And armed with such strong and clear views Asma made a difference not just in Pakistan but across the world. Indeed here in Europe, in her capacity as a UN Special Rapporteur she delivered coruscating critique that triggered changes to law and policy in more than one country.
It is my wish that we might be inspired by such legal giants as Asma Jahangir – that we slip into her empowering shadow and play our unique lawyerly role in (re-)building a Europe of which we can be proud.
