Consultation phase

The concept of consultation phase is applied here to define the next stage of the ex ante review of fundamental rights in the ordinary legislative process.

The consultation phase cannot be strictly placed in this stage, as it is a continuous process and it can and should take place at various phases of the process. When executed ideally, consultation should and often is carried out by the Commission already at the early phases of its preparatory work. I have, however, positioned consultation phase after the Commission has presented its proposal for a legislation and consultation of most notably the FRA and the EDPS gets underway.¹⁵⁶ At this stage, and for the purposes of this study, FRA and EDPS are the most important bodies, but I should also mention in this

152 Ibid., p. 11.

153 Christiansen, p. 148.

154 Another thing is that legal services of other institutions may take a different stand on legal aspects of the proposal. The same applies to national legal experts involved in the forthcoming phase of the legislative process.

155 Even though the ex-post control of compliance with clearly fundamental rights remains at the core of the EU judicial review, new softer methods of review have emerged during the last decade or so.

What is interesting is that the forerunner in this development has been the Commission that is often claimed to be the least democratic institution of the EU.

156 As stated earlier, different phases are often overlapping and, for example, the consultation phase can take place during the Council or the EP handling phases if institutions wish to seek guidance of the FRA.

context the ground-breaking work of the EU Network of independent experts in the field of ex ante review of fundamental rights.

The issue of establishing an EU agency dealing with fundamental rights issues was taken up at the highest political level in the Cologne European Council in 1999.¹⁵⁷ The idea of an agency was further processed in a report prepared by Philip Alston and J.H.H. Weiler for the Comité des Sages responsible for drafting leading by example: A Human rights agenda for the year 2000. The main argument regarding the necessity of the FRA was that the EU should adopt a preventive approach towards fundamental rights, thus paving the way for a more pro-active role in this field in addition to the traditional judicial review remedy.¹⁵⁸ In the European Council meeting in Brussels on 13 December 2005, the Heads of States and Governments of the EU Member States decided that FRA should be established.¹⁵⁹ The Council adopted the Council Regulation establishing the FRA on February 15, 2007 on the basis of a compromise proposal put forward already during the Finnish Presidency of the Council.¹⁶⁰ The EU can take advantage of the Agency’s expertise in different phases of its legislative process. It is quite evident that FRA can contribute to the preparatory stages in the EU legislative process and not the back end of it.

Nevertheless, the Agency may also have a significant role in analysing the effects of EU legislation from the fundamental rights’ point of view. As such, it is important to bear in mind that a prerequisite has been stipulated in Article 3 of the Council Regulation setting up the FRA, according to which “the Agency shall deal with fundamental rights issues in the European Union and in its Member States when implementing Community law”. In the explanatory memorandum of the proposal for a Council Regulation establishing the Agency it was stated that “the objective of the proposal is to extend the mandate of the EUMC and to establish a European Union Agency for Fundamental Rights. It will establish a centre of expertise on fundamental rights issues at the EU level”.¹⁶¹

157 In paragraph 46 of the Presidency Conclusions of the Cologne European Council held on 3 and 4 June 1999 it was stated that “The European Council takes note of the Presidency's interim report on human rights. It suggests that the question of the advisability of setting up a Union agency for human rights and democracy should be considered”.

158 Alston Philip and de Schutter Olivier: Monitoring Fundamental Rights in the EU. The Contribution of the Fundamental Rights Agency. Oxford and Portland, Oregon 2005, pp. 1-2. For argumentation in favour of the creation of the Agency see Alston Philip and Weiler J.H.H.: ‘An ever closer Union’ in need of a Human Rights Policy: The European Union and Human Rights. In Alston Philip et al. (eds.): The EU and Human Rights. Oxford University Press. Oxford 1999.

159 As a consequence of this political initiative the Commission presented its proposal for a Council Regulation that was to set up the agency on the foundations of the Vienna-based European Union Monitoring Centre on Racism and Xenophobia (EUMC). This important decision was not, however, a new idea of its kind although it came as a surprise to many at the time when it was adopted. See de Búrca Gráinne: New Modes of Governance and the Protection of Human Rights. In Alston Philip and de Schutter Olivier: Monitoring Fundamental Rights in the EU. The Contribution of the Fundamental Rights Agency. Hart Publishing. Oxford and Portland, Oregon 2005.

160 Council Regulation (EC) No 168/2007 of 15 February 2007 establishing a European Union Agency for Fundamental Rights, OJ L53/1, 22.2.2007.

161 COM(2005) 280 final, p. 2. Furthermore, Article 2 of the Regulation adopted later stipulated that ”The objective of the Agency shall be to provide the relevant institutions, bodies, offices and agencies of the Community and its Member States when implementing Community law with assistance and expertise relating to fundamental rights in order to support them when they take

The widely shared point of departure among the various institutions and stakeholders involved in the process was that FRA should have a pivotal role to play in monitoring and securing the realization of rights provided in the EU Charter of Fundamental Rights. The legal basis of the instrument establishing the FRA was Article 308 of TEC (currently Article 352 of TFEU). Although this catch-all Article was eventually selected as the foundation whence the creation of the Agency would derive there was also discussion on the possible inclusion of Articles 6 and 7 of TEU in the legal basis. This idea was, however, rejected.

According to Gráinne de Búrca, these two Articles have proved a significant trigger for human rights activity, in particular, at the EU level. A good example is the establishment of the EU network of independent experts.¹⁶² In the times before the Lisbon Treaty the legal basis used for the Agency Regulation restricted the scope of the Agency merely to the former Community pillar thus excluding the former third pillar of the EU from FRA competence.¹⁶³ The issue of possibly extending the coverage to this fundamental rights sensitive third pillar was simply left to Council Declaration that is only aspirational. Later, as a consequence of the Lisbon Treaty and the important Council Decision on multiannual framework for the FRA, this problem has been removed.¹⁶⁴ This has significantly increased the operational room for manoeuvre of the FRA.

It is relatively easy to conclude that the elevation of the Charter to the legal status of primary EU law has also strengthened the role of the FRA. The entry into force of the Lisbon Treaty and the subsequent change in the status of the EUCFR in practice means that the Charter is one of the starting points for the CJEU in fundamental rights cases.¹⁶⁵ The FRA and Charter could be considered to live in a symbiotic relationship – the reinforcement of either one ends up being a reinforcement of the other. As the FRA itself states “the Agency situates its work in the wider context of the Charter of Fundamental Rights of the European Union”.¹⁶⁶ The Charter is hence at the very heart of Agency activities.¹⁶⁷ Very soon after its adoption in a legally non-binding form, the

measures or formulate courses of action within their respective spheres of competence to fully respect fundamental rights”.

162 De Búrca, p. 30.

163 See Scheinin Martin: Euroopan unionin perusoikeusvirasto. In Yksilön oikeusasema Euroopan Unionissa. Institutet för mänskliga rättigheter vid Åbo Akademi. Åbo 2008, p. 178. Scheinin found that the legal basis and the subsequent scope of the Agency constituted an inadequacy and consequently the scope of the Agency would need to be revised in the future.

164 In 2011 the Commission presented a proposal for a Council decision establishing a Multiannual Framework for the European Union Agency for Fundamental Rights for 2013-2017, COM (2011) 880 final. The proposal whose spearhead clearly was the inclusion of police operation and judicial co-operation in criminal matters into FRA tasks and functions, however, was faced with some resistance from the part of the Council. After quite lengthy negotiations the Council Decision was finally adopted in March 2013, see Council Decision establishing a multiannual Framework for 2013-2017 for the European Union Agency for Fundamental Rights. OJ L 79/1, 21.3.2013.

165 Senden Hanneke: Interpretation of Fundamental Rights in a Multilevel context. An analysis of the European Court of Human Rights and the Court of Justice of the European Union. Intersentia.

Cambridge 2011, p. 31.

166 Draft Annual Work Programme of the FRA 2014, April 2013. Available at http://fra.europa.eu/sites/default/files/annual_work_programme_2014_english.pdf. Visited on 20 August 2013.

167 This becomes absolutely clear also in the Agency Regulation itself. In its recital 9 it is stipulated that “The Agency should refer in its work to fundamental rights within the meaning of Article 6(2) of the Treaty on European Union, including the European Convention on Human Rights and Fundamental

Charter triggered wide-ranging Commission-led exercises dealing with compliance of legislative proposals with the Charter. The Charter was also reflected to a great extent in the activities of the European ombudsman.¹⁶⁸ More importantly, the CJEU took a positive stand already in European Parliament v. Council in 2006 on the Charter by re-stating its importance in the context of constitutional traditions and international obligations common to Member States.¹⁶⁹ In this case it is worth noting that the EP launched this process.

The powers of the EU Agencies are generally relatively circumscribed.¹⁷⁰ For the analysis of tasks and competence of EU Agencies, a key CJEU case is always the landmark ruling Meroni.¹⁷¹ In this case, the court especially emphasized the importance of preserving institutional balance and the need to delegate competences only under clearly defined and limited circumstances.

Whenever setting up new Agencies in the EU, the relation of the founding act of the Agency concerned with Meroni always comes into discussion sooner or later in the context of competences and tasks of the Agency. The common feature of the Agencies, despite the wide variety of their activities, are legal personality, certain degree of organizational and financial autonomy and regulations that set them up to perform specific tasks.¹⁷²

Another important consultative EU body is the EDPS, which was established by the entry into force of the Regulation 45/2001 on the protection of individuals with regard to the processing of personal data.¹⁷³ The primary task of this independent supervisory authority is to ensure that fundamental rights and freedoms are respected by Community institutions and bodies. This applies especially to the right to privacy. The EDPS is also responsible for monitoring the provisions of this regulation and any other Community Act relating to the protection of fundamental rights with regard to the processing of personal data.¹⁷⁴ Furthermore, the EDPS obtains in this regulation various advisory functions.¹⁷⁵ In order to ensure the effective functioning of the EDPS, it has been provided with significant powers related to its field of work.

Therefore, we can see that institutionally the EDPS is a major player in issues related to especially the right to privacy and the right to protection of personal data – two significant fundamental rights.

Freedoms, and as reflected in particular in the Charter of Fundamental Rights, bearing in mind its status and the accompanying explanations. The close connection to the Charter should be reflected in the name of the Agency”.

168 Craig and de Búrca, p. 417.

169 C-540/03 European Parliament v. Council.

170 See e.g. Craig and de Búrca, p. 79.

171 C-9/56 Meroni v High Authority, Judgment of the Court of 13 June 1958.

172 Hartley T.C. The Foundations of European Union Law. Seventh Edition. Oxford University Press.

Oxford 2010, p. 36.

173 Regulation (EC) No 45/2001 of the European Parliament and of the Council of 18 December 2000 on the protection of individuals with regard to the processing of personal data by the Community institutions and bodies and on the free movement of such data. OJ L 8/1. 12.1.2001. Chapter V of the Regulation deals with EDPS.

174 Ibid., see Article 41 and particularly paragraph 2 thereof.

175 For an exhaustive list of EDPS duties see Article 46 of the Regulation.

The new methods of constitutional control, i.e. ex ante review, are often non-binding and softer. The same goes for other tools aiming at a high level of fundamental rights protection and deeper co-operation in this field. During the last decade or so, new soft law-oriented mechanisms have emerged at the EU level. ¹⁷⁶ Against this background, the EU Network of Independent Experts on Fundamental Rights should be noted, having been created in 2002 by the Commission in response to a recommendation in the EP's report on the state of fundamental rights in the European Union.¹⁷⁷ The network came into existence largely due to the inadequate time and resources of the LIBE Committee of the EP to carry out monitoring functions at that time.¹⁷⁸ The Network's main tasks were as follows: first, it was mandated to draft an annual report of the state of fundamental rights in the European Union and its Member States, assessing the application of each of the rights set out in the EUCFR. Second, it was given the task to provide the Commission with specific information and opinions on fundamental rights issues when requested to do so. Third, the Network was mandated to assist the Commission and the EP in developing EU policy on fundamental rights. Its objective was further to ensure a high degree of expertise in relation to each of the Member States and the EU as a whole. Martin Scheinin has argued that the mandate of the Network is typical for a human rights monitoring body, adjusted to the role of the EUCFR as the applicable set of standards. Furthermore, the Network has issued recommendations and identified best practices and taken forward their benchmarking.¹⁷⁹ Each year the Network produced a report on how fundamental rights are safeguarded in practice. It also published opinions on specific questions upon the request of the Commission. European citizens were also allowed to send information on safeguarding fundamental rights in the Union to the Network or the Commission. The Network attached in several reports particular importance to developing ex ante review mechanisms of compliance with fundamental rights at the level of the EU. The introduction in the Network’s report for the year 2003 covers the essential issues in taking up

“the need to integrate the concern for fundamental rights from the early stages of the elaboration of European law, according to an approach to fundamental

176 One example of this group is the open method of co-ordination. It has aimed at bridging the social deficit gap by using increasingly non-coercive soft law instruments and other ways of increased co-ordination in such sensitive policy fields as social protection where more legally binding solutions would not probably have proved useful. The method of open co-ordination has also left quite a lot of say at the Member State level due to its resort to soft law instruments and cautious approach towards far-reaching harmonization. On the method of co-ordination see Christodoulidis Emilios: A default Constitutionalism? A Disquieting Note on Europe’s Many Constitutions. In Tuori Kaarlo and Sankari Suvi (eds.): The Many Constitutions of Europe. Ashgate Publishing Limited. Farnham 2010, pp. 38-39.

177 See European Parliament resolution on the situation as regards fundamental rights in the European Union (2000) (2000/2231(INI). In the Resolution’s paragraph 9 the EP recommended that

“a network be set up consisting of legal experts who are authorities on human rights and jurists from each of the Member States, to ensure a high level of expertise and enable Parliament to receive an assessment of the implementation of each of the rights laid down notably in the Charter, taking account of developments in national laws, the case law of the Court of Justice of the European Communities and the European Court of Human Rights and any notable case law of the Member States' national and constitutional courts”.

178 See De Schutter 2010, pp. 5-6.

179 Scheinin Martin: Relationship between Agency and the Network of Independent Experts. In Alston Philip and de Schutter Olivier: Monitoring Fundamental Rights in the EU. The Contribution of the Fundamental Rights Agency. Oxford and Portland, Oregon 2005, p. 84.

rights which must be more preventive, and not simply remedial”.¹⁸⁰ The experts have further found that preventive control can offer better guarantees for legal certainty.¹⁸¹ A certain type of preventive character has been high on the agenda since the beginning of the Network’s work.¹⁸² In addition to this, the Network has also approached these questions from the angle of comparison between different systems of EU Member States.¹⁸³ Later, the FRA overtook the place of the Network, as the Network’s mandate expired in 2006.

According to Craig and de Búrca the mandate of the Agency was restricted to cover merely the collection of opinions, formulating opinions, highlighting good practices and publishing thematic reports.¹⁸⁴ This implies a rather pessimistic notion of the potential that FRA activity might offer, which may be applicable when relating to the monitoring of Article 7 of TEU. Nevertheless, this view overlooks the effect that FRA has already had on various fundamental right sensitive EU legal dossiers. The impact has often been of indirect nature, but clearly evident when reviewing final versions of EU legal acts. Taking into account the ubiquitous questions of division of competence at different levels in the domain of fundamental rights the most practical solution was to restrict the FRA’s activities in matters in which EU Member States are, inter alia, implementing EU law. This seems to be the case, since any attempts to shift the balance between the tri-polar system of the EU, the EU Member States and ECHR-centric system have been likely to cause a counter-reaction from the party under pressure to cede some of its competence. In fact, this direction is most likely and the division of competence in this field will be maintained as it is.

The impact of the Charter on realization of fundamental rights in particular legislative dossiers has not always been positive. This was true, for example, in the case of the European Arrest Warrant. In this legal act, the legislator raised fundamental rights and the principles enshrined in the Charter as the leading principle of this legal instrument, while elsewhere in the text endangered the

The impact of the Charter on realization of fundamental rights in particular legislative dossiers has not always been positive. This was true, for example, in the case of the European Arrest Warrant. In this legal act, the legislator raised fundamental rights and the principles enshrined in the Charter as the leading principle of this legal instrument, while elsewhere in the text endangered the