Strengthening fundamental rights protection in the EU
Is the Commission’s attempt to improve fundamental rights protection enough?
On 2 December 2020, the European Commission presented its Strategy to strengthen the application of the Charter of Fundamental Rights in the European Union, setting out a 10-year plan for its implementation. Through its Strategy, the Commission aims to ensure the Charter is applied to its full potential throughout the Union. The effective implementation of this instrument is relevant in the context of new challenges to fundamental rights which have emerged due to technological developments. For example, new technologies may be used to surveil or silence communities which can have a significant impact on individuals’ freedom of expression.
The Charter of Fundamental Rights of the European Union was adopted in December 2000 and became legally binding in 2009 when the Lisbon Treaty entered into force. The Charter lays down political, social and economic rights of individuals in the EU. It applies to EU institutions in their actions, and to Member States when implementing EU law, for example, by transposing Union directives into national law.
Over the years, the Charter has promoted and protected the fundamental rights of individuals throughout the EU and has triggered the adoption of new legislation aimed at protecting specific rights. While the instrument is frequently being invoked in cases before the Court of Justice of the EU, public awareness of the Charter remains low. As a result, the Commission’s new Strategy, which reflects the institution’s renewed commitment to promoting and protecting fundamental rights, is promising. The question that remains is whether the Strategy is enough to improve fundamental rights protection of individuals across the Member States or whether different measures should be put in place to offer more effective protection.
The Strategy sets out the plan for the implementation of the Charter for the next ten years, focusing on four pillars. The first pillar of the Commission’s Strategy – the effective implementation by Member States – focuses on strengthening the partnership between the Commission and Member States for the effective application of the Charter. The Commission highlights the importance of national and local administrations in promoting the rights laid down in the Charter. The Commission will support Member States in implementing EU law effectively and in compliance with the Charter and will launch infringement proceedings when there is a breach of EU law. Starting this year, the Commission will also provide annual reports on the Charter, looking specifically at how the Charter is being applied in Member States in specific areas. The 2021 Report will focus on fundamental rights in the digital age. The first pillar is also aimed at ensuring the effective application of the Charter in EU funding. Both the Commission and Member States must ensure that EU-funded projects comply with the Charter.
Under the second pillar, the Commission is focused on protecting and supporting civil society organisations and rights defenders, who have repeatedly faced challenges across the Member States, as they are often victims of harassment and intimidation. In its Strategy, the Commission commits to taking action against national measures that breach EU law which affect civil society organisations. The Commission also encourages Member States to promote a supportive and safe environment for civil society organisations and rights defenders within their territory. Member States which have not done so are invited to establish national human rights institutions. Independent human rights institutions play a significant role in the protection of fundamental rights since they act as links between the government and civil society by monitoring the application of the Charter on the ground and providing support to victims of fundamental rights violations. Recognising that knowledge of the Charter and its application remains low even among national judges, the Commission will support judges and justice practitioners and promote Charter training activities for them.
The third pillar of the Commission’s Strategy centres around fostering the use of the Charter as a compass for EU institutions. The Commission commits to take into account Charter compliance throughout the decision-making process, in particular by ensuring that its proposals for new legislation include provisions aimed at protecting fundamental rights. The Commission also underlines the need for the European Parliament and the Council to ensure that the Charter has been complied with when adopting legislation. Moreover, the Commission will monitor the compliance with fundamental rights standards of countries wanting to join the EU.
The fourth pillar – strengthening people’s awareness of their rights under the Charter – is based on informing individuals of their rights under the Charter. One of the main problems in the effective application of the Charter is that the European population is largely unaware of its existence and the way it works in practice. The Commission wants to raise awareness particularly among young people through information campaigns and through the Erasmus+ programme. Member States are also encouraged to come up with their own initiatives to contribute to raising awareness.
Benefits of the Strategy
The Commission framework is a useful development in strengthening the application of the Charter. Since the instrument was adopted 21 years ago, reality has changed drastically for the EU population. New fundamental rights challenges have emerged since 2000 and it is indeed time for the EU institutions and Member States to renew their commitment to respecting fundamental rights. It is also important that individuals in the Member States become aware of the Charter and how it works.
It is clear that the Commission has tried to include all aspects into its Strategy, from the inclusion of fundamental rights safeguards when adopting legislation at EU level to raising awareness about the Charter in the Member States. The Commission’s plan to strengthen awareness and to empower civil society, while also ensuring that the instrument is applied effectively by Member States is a step in the right direction for promoting the Charter and ensuring effective protection.
Room for improvement
While the Commission Strategy is a welcome development, it may not be enough to significantly enhance the protection of fundamental rights in the EU. Fundamental rights protection could be improved through the accession of the Union to the European Convention on Human Rights (ECHR), the regional human rights instrument of the Council of Europe. The rights under this Convention are protected by the European Court of Human Rights (ECtHR) which has jurisdiction to rule on complaints submitted by individuals and States concerning violations of the Convention. While all Member States of the EU are parties to the ECHR, the EU as an organisation has not acceded to the Convention yet. There have been discussions of the EU’s accession since the 1970s and its accession is now required under Article 6(2) of the Treaty of Lisbon. In 2013, a draft accession agreement was concluded between the 47 States of the Council of Europe and the EU. The Commission requested an Opinion from the Court of Justice of the EU on the agreement’s compliance with EU law. The Court concluded that the 2013 agreement would be liable to undermine the autonomy of EU law. As a result, the agreement did not enter into force.
The EU’s accession to the ECHR would ensure that the Union is subjected to international oversight as the 47 members of the Council of Europe are. It means that the EU and its institutions will have to answer for their actions before the ECtHR. Accession would also reduce the possibility of contradiction in European human rights protection by ensuring a common standard in the two courts. Despite the fact that Article 52(3) of the Charter of Fundamental Rights requires that corresponding provisions of the CFREU and ECHR be given the same meaning and scope, contradictions are bound to arise in two courts operating concomitantly. Accession would reduce that risk and would ensure a decreased potential for diverging interpretations.
The Commission’s Strategy states that becoming a party to the ECHR is still a priority, but this must become a reality before real change will be noticed to human rights protection in Europe. The EU’s accession to the ECHR would create a coherent framework of fundamental rights protection throughout Europe and would ensure that the EU is subject to the same examination of its fundamental rights protection as the 47 Contracting States.
Daria Stănculescu has obtained a degree in European Studies and is currently pursuing a master’s degree in International and European Law at the University of Amsterdam.
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