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[Luxembourg 2005 Presidency of the Council of the European Union]
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"Europe: Symbol of Fundamental Rights," address by the President of the Justice and Home Affairs Council on the establishment of the European Union’s Fundamental Rights Agency

Date of Speech : 25-01-2005

Place : Brussels

Speaker : Luc Frieden

Policy area : Justice and Home Affairs Justice and Home Affairs

Mr Vice-President,

Mr Chairman of the Committee on Civil Liberties,

Ladies and Gentlemen,

First of all, allow me to thank Vice-President Frattini for inviting me to co-open this day of hearings on the creation of the European Union’s Fundamental Rights Agency.

As President of the Justice and Home Affairs Council - and perhaps I should say, to align myself with the new name of Vice-President Frattini’s portfolio, the Justice, Liberty and Security Council - allow me to confirm the special importance that the Council, and the Luxembourg Presidency in particular, places on the defence and promotion of fundamental rights, both within the European Union and in other countries.

Europe is the symbol of fundamental rights.

Last Sunday, I was in Ukraine for the inauguration of the new president. I saw the Ukrainians' aspirations toward Europe, both in politicians and the people. The Ukrainians told me: "For us, Europe is democracy, the rule of law, and fundamental rights." This proves that we have a special responsibility to defend fundamental rights, both here at home and in other countries.

This week, we are commemorating the liberation of the Auschwitz camp, a symbol of a racist ideology that led to hundreds of thousands of deaths. It is our duty to these victims to continue to fight for the defence of fundamental rights.

Of course, the fathers of the treaty that created the European Economic Community made no formal stipulations that, in the exercise of their authority, community institutions were required to observe fundamental rights: the treaty was essentially economic.

It took until the end of the 1960s and the Stauder case (1969) for the Court of Justice of the European Communities, pressed by the Constitutional Courts of Italy and Germany, which were threatening to check the consistency of community law with the fundamental rights in their constitutions, to simply proclaim "the observance of human fundamental rights is part of the general principles of Community law with which the Court ensures compliance." Subsequently, the Court of Justice took inspiration from the constitutional traditions common to the Member States and from the European Convention on Human Rights and Fundamental Freedoms to identify and determine the scope of these fundamental rights.

Even if the Court of Justice was the precursor, the political officials ratified this jurisprudence in the Treaty of Maastricht.

Next, the Council took very specific initiatives that were reflected in the successive treaties,

- in Amsterdam, the extension of the Court of Justice’s authority in this area, and the creation of a sanction mechanism against a Member State that seriously and persistently violates the principles on which the European Union is based,

- in Nice, the proclamation of the Charter of Fundamental Rights and

- in Rome, on 29 October 2004, the integration of this charter into the "Constitutional Treaty", which will make it binding.

This allows me to say that a "Yes" to the European Constitution is also a "Yes" to the strengthening of fundamental rights within the European Union. This is one aspect we do not mention often enough when we discuss the European Constitution. The Luxembourg Presidency places great importance on this aspect.

The defence of fundamental rights should be seen in parallel with the further integration of Europe. We have communitarised the issues of asylum, immigration and border control, and we have assigned the European Union the objective of becoming an area of freedom, security and justice, of which fundamental rights are an important component.

This parallel step is also found in criminal judicial cooperation which will be strengthened by the European Constitution at the same time we make the Charter of Fundamental Rights binding.

This is the balance we are trying to strike in furthering the integration of Europe.

The Council is in favour of this Fundamental Rights Agency. May I point out that it was the representatives of the Member States who, at the European Council meeting in Brussels in December 2003, decided to expand the mandate of the European Monitoring Centre on Racism and Xenophobia in Vienna in order to turn it into a Fundamental Rights Agency.

Of course, we need to discuss this Agency’s missions, authority and composition. That is why the Council welcomes the Commission’s initiative of conducting a broad-based debate on this Agency.

The decision to create the Fundamental Rights Agency is embodied in an obvious continuity with the objectives assigned to the Monitoring Centre, whose major role is to give Community institutions the means to carry out the obligation of observing fundamental rights.

Obviously, I will not present the Council’s view to you, since the Council has not yet taken a position. In the short time allotted to me, I will simply relate to you some personal thoughts I have as the current President of the "JHA" Council on four issues that seem central to me:

1. The Agency’s missions:

May I begin by indicating what, in my opinion, the Agency should not be asked to do.

Giving the Agency the mission of overseeing the observance of fundamental rights by the Member States does not seem to be a priority. The existing oversight mechanisms, in particular those that have been developed in the Council of Europe and the Member States, are performing satisfactorily. There should be no duplication of mechanisms already in place.

Nor does it seem necessary that the Agency should be invested with a type of "normative" oversight over European Union action for the observance of fundamental rights. Politically speaking, this is incumbent upon the Parliament and, legally speaking, on the Court of Justice of the European Communities.

Rather, I see the Agency invested with the mission of recommending - on the basis of a review of national laws and practices - to the Institutions of the European Union, the initiative to take in the area of fundamental rights in order to achieve as far as possible the objectives that the treaties assign to them (the creation of the internal market and the creation of an area of freedom, security and justice, among others).

Allow me to illustrate this point using two examples:

- The Council is now discussing a proposal for a framework decision on the minimum guarantees to be given to defendants in criminal proceedings, and the Presidency considers this framework decision to be of great importance. It is about the fundamental rights of our citizens. This proposal is intended to implement the mutual recognition programme. Judges called upon to execute the European arrest warrants will have more confidence in the quality of the decisions of other Member States if they know that these decisions were subject to the observance of common minimal procedural guarantees. One could have thought that the agency would be the source of such a framework decision to be certain that fundamental rights, suspects’ rights and victims’ rights are ensured.

- At my initiative, the Council will very soon resume the discussion of the draft framework decision on racism and xenophobia that the Committee referred to it over two years ago. I could very well imagine that such legislation would be recommended by the Fundamental Rights Agency at the conclusion of a review of national criminal laws that reveals too much diversity in the area of liberty, security and justice, in the way in which denials of the Holocaust, the use of Nazi symbols, etc. are charged.

For us, this agency must collect and analyse this information with the objective of being able to make recommendations. This agency must play a proactive role. It should not simply ask the Member States to submit reports, but it should play an active role and analyse and propose.

2. Relations with the Council of Europe:

It goes without saying - and in this regard I will reassure our friends in the Council of Europe - that the Council of Europe is and must remain the leading institution for the protection of human rights. This pre-eminence has been recognised both by the Charter of Fundamental Rights and the Constitutional Treaty. This is not about establishing mechanisms that compete with those of the Council of Europe that have demonstrated their effectiveness. As the Commission suggests in its consultation document, this is about supplementing the system that exists within the Union.

3. Relations to be established with the network of independent experts:

The agency must establish relations with the network of independent experts which carry out remarkable work. While maintaining its independence, the Agency may have exchanges with this network while observing each body’s authority.

4. The Agency’s independence:

As the Commission’s documentr correctly states, and this is very important to me, in establishing the structures and mode of operation for the Agency, we should devise rules that ensure the Agency’s independence, as this is a condition of its impartiality. Such independence may not always be pleasant for the Member States and the institutions of the Union, but it is important to give the Agency real authority.

"Freedom, security, justice", we have always pleaded for these three components to move forward in unison. Striking a balance among the three is not an easy task. This balance, including the protection of fundamental rights, is the basis of the European judicial area. The Agency has its role to play therein.

Ladies and Gentlemen, I hope that your debates will contribute to the Commission’s thought process, so that the Commission can refer a legislative initiative to the Council next May in keeping with its commitment to do so.

I can assure you of the Luxembourg Presidency’s determination to submit it to the Council for review without delay.

This page was last modified on : 26-01-2005

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