Exploring the Fundament of a New Agent in the Field

Gabriel N. Toggenburg*

Exploring the Fundament of a New Agent in the Field of Rights Protection: The F(undamental) R(ights) A(gency) in Vienna

I. Introduction: The European Landscape Europe is concerned about human and minority rights. This concern is evidenced by the fact that both the Organization for Security and Co-operation in Europe (OSCE) and the Council of Europe are equipped with institutions specialized in the protection of these rights. Half a century ago, the Council of Europe provided for an European Convention on Human Rights (ECHR) and a supranational European court specialized in this area of law (the European Court of Human Rights [ECtHR], Strasbourg). The fall of the iron curtain brought the protection of human and minority rights to the fore of international attention and allowed for a political climate favouring the establishment of new institutions and mechanisms in this area. In 1991, the OSCE established the Office for Democratic Institutions and Human Rights (ODIHR, Warsaw). In 1993 the Council of Europe installed the European Commission against Racism and Intolerance (ECRI, Strasbourg). The year 1993 gave birth to a minority-specific institution, namely the Office of the High Commissioner on National Minorities of the OSCE (HCNM, The Hague). Finally, in 1999, the Council of Europe established the Commissioner for Human Rights (CHR, Strasbourg). Also at the national level, the nineties stand for a dynamic period in the institutionalization of human rights concerns—countless national human rights institutions (NHRIs) had been established during that period. Even if the European Union (EU) might be perceived as a latecomer in this area, one can hardly overlook that a comparable development has taken place in the European Union (EU) context. At the institutional level, it is the European Parliament that *



Currently Senior Researcher in the Institute for Minority Rights at the European Academy Bozen/Bolzano and Visiting Professor at the University of Innsbruck. This article partly builds on Gabriel N. Toggenburg, “The Role of the New EU Fundamental Rights Agency: Debating the ‘Sex of Angels’ or Improving Europe’s Human Rights Performance?”, 3 ELR (2008), 385–398. For the EU’s human rights saga, see Philip Alston (ed.), The EU and Human Rights (Oxford

European Yearbook of Minority Issues Vol 7, 2007/8, isbn 978 90 04 00000 0, 000-000. ©  2010  Koninklijke Brill nv. Printed in The Netherlands.

Gabriel N. Toggenburg showed an early and pronounced interest in human and minority rights. Its Committee on Civil Liberties, Justice and Home Affairs (LIBE-Committee) is explicitly responsible for human and minority rights issues. Since the eighties, the parliament disposes over an intergroup dealing with national minorities (between 2004 and 2009 this was the intergroup on “Traditional national minorities, constitutional regions and regional languages” chaired by Mr Csaba Tabaijdi). Since 1992, the EU has been equipped with an ombudsman to investigate complaints about maladministration in the EU institutions. And between 1997 and 2007, the EU even had an European Monitoring Centre on Racism and Xenophobia (EUMC, Vienna) that was collecting data and coordinating research in the area of ethnic discrimination and racism within the EU. As regards the EU’s external relations, the Parliament’s Committee on Foreign Affairs (AFET Committee) disposes over a subcommittee on human rights that is also responsible for minority issues. Also the council tried to give the protection of fundamental rights an institutional anchorage in the EU’s foreign relations: in 1987 the so-called COHOM was created—a working group dealing with fundamental rights. Moreover, the council tried to give its external appearance a “human rights face”: since 2005 the EU’s High Representative for the Common Foreign and Security Policy (Mr Javier Solana) has been assisted by a Personal Representative for Human Rights (since the beginning of 2007 this position is held byMs Riina Kionka). There is, though, no internal structure within the council that specifically deals with fundamental rights. In fact, the parliament recently urged the council to establish a permanent working party on “fundamental rights and citizenship” that could work in tandem with COHOM.



 



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University Press, Oxford, 1999); for the minority-related development, see Gabriel N. Toggenburg (ed.), Minority Protection and the Enlarged European Union: The Way Forward (LGI Books, Budapest, 2004). For a synthesis, see, e.g., Gabriel N. Toggenburg, “Der Menschenrechts- und Minderheitenschutz in der Europäischen Union”, in Werner Weidenfeld (ed.), Die Europäische Union. Politisches System und Politikbereiche, 5th ed. (Bundeszentrale für politische Bildung, Bonn, 2008), 294–313.  Intergroups have no official institutional standing. They have to be re-registered after every election by representatives of at least three political groups. Before the 2009 elections, there were 20 registered intergroups. For the work of the intergroup, see Csaba Tabajdi (ed), Pro Minoritate Europae - Minorities of Europe Unite (study book for the 25th anniversary of the Minorities-Intergroup of the European Parliament, 2006), 162–205. See Council Regulation (EC) No. 1035/97 establishing a European Monitoring Centre on Racism and Xenophobia, OJ 1997 L 151, 10 June 1997, 1–7. COHOM is tasked with the collection and evaluation of information on current violations of human rights in various parts of the world and the coordination of the member states’ positions on human rights issues likely to arise within all relevant international fora. It meets at least twice a year. In 1999, its mandate was extended to include first-pillar issues so as to have under purview all human rights aspects of the external relations of the EU. See European Parliament resolution of 14 January 2009 on the situation of fundamental rights in the European Union 2004–2008 (based on the report delivered by Giusto Catania, 5 December 2008, A6-9999/2008), para. 17. At the technical level, the negotiations on the establishment of the FRA took place in a working group entitled, Fundamental Rights and Citizenship. This working party is, however, of an ad hoc nature.

Exploring the Fundament of a New Agent in the Field of Rights Protection: The As regards the European Commission, the Directorate General Justice, Freedom and Security (DG JFS) disposes over a “directorate dealing with fundamental rights and citizenship”, and under the Barroso Commission, human rights issues were coordinated by a “group of Commissioners” responsible for “Fundamental Rights, Anti-discrimination and Equal Opportunities”. All these bits and pieces within the single institutions of the EU can, however, not do away with the very fact that the EU was not equipped with an institution meant to deal in a transversal and inter-institutional way with fundamental rights issues in a proactive and general manner. This changed in March 2007 when the European Union Agency for Fundamental Rights (FRA, Vienna) became operative. As is well known, the genesis of the agency was not the outcome of any concerted political strategy. The very idea of an agency to safeguard human rights arose in academic circles in the second half of the 1990s. It received serious attention only when the three “wise men” ending the so-called “Austrian crisis” in 2000 raised the idea at the international political level. However, neither the council nor the European commission responded to these suggestions. Given this background, it came as a considerable surprise when representatives of the member states announced on 13 December 2003 their intent to establish a human rights agency.10 From the beginning it was only natural to think of a future EU human rights body as being based on the already existing European Monitoring Centre on Racism 

This directorate consist of the units “Fundamental Rights and the rights of children”, “Citizenship”, “Anti-drug policy”, “Financial support—Fundamental Rights and Citizenship” and “Data Protection”. Six directorates form the directorate general “Justice, Freedom and Security”.  See Philip Alston and J.H.H. Weiler, “An ‘Ever Closer Union’ in Need of a Human Rights Policy: The European Union and Human Rights”, in Philip Alston (ed.), The EU and Human Rights (Oxford University Press, Oxford 1999), 3–66, at 55–59.  For an analysis and further references, see Gabriel N. Toggenburg, “La crisi austriaca: delicati equilibrismi sospesi tra molte dimensioni”, 2 Diritto pubblico comparato ed europeo (2001), 735–756.  On the contrary, both institutions underlined their disagreement with the establishment of a human rights agency (at least as regards the foreign policy of the EU). See COM (2001) 252 final as of 8 May 2001, at 23, and the conclusions of the 2362nd council meeting from 25 June 2001. Note also that when discussing the reform of the EUMC, the commission reached the general conclusion that the latter “should continue to concentrate on racism and that an extension to other fields would be an unwelcome distraction within the limits of the resources likely to be available to the Centre”. See COM (2003) 483 final of 5 August 2003. 10 The somewhat abrupt start signal for the agency may also have been a reason for the later political difficulties in its development path: Matthew Heim speaks of a “regrettable genesis” (see Matthew Heim, “Towards a European Area of Freedom, Security and Justice? The Conceptual Limits of the FRA”, 14 Challenge Europe (2005), at . For arguments raised against the idea of a new human rights agency, see Gabriel N. Toggenburg, “The EU Fundamental Rights Agency: Satellite or Guiding Star?”, 5 SWP Comments (2007), online at .

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Gabriel N. Toggenburg and Xenophobia (EUMC) situated in Vienna.11 Because the prime objective of the latter was the provision of reliable and comparable data, this was perceived as a core task of any future agency in the field of human rights. Moreover, for obvious legal reasons it was already clear that, should the EU ever be equipped with its own human rights institution, the latter would be a rather weak one. Adhering to a typology of NHRIs,12 which distinguishes between an advisory committee model (to be found, e.g., in France, Greece or Luxembourg), an institute model (Denmark and Germany), an ombudsman model (Portugal, Spain and Sweden) and a commission model (Ireland), one could easily have predicted that an EU–agency dealing with fundamental rights will be a mixture of the committee model and the institute model. With its principle of enumerated powers, EU primary law does not allow for the establishment of a body assuming, for instance, any sort of judicial competence, as is the case for an NHRI following the commission model. The option of an EU–agency responsible for individual human rights violations or for the enactment of legally binding decisions was never considered. The article at hand aims at describing the de jure role and the de facto potential of the new EU–agency.13 It builds on the presumption that the role and the poten11 12 13

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See Council Regulation (EC) No 1035/97 of 2 June 1997, establishing a European Monitoring Centre on Racism and Xenophobia, OJ 1997 L 151, 10 June 1997, 1–7. See Valentin Aichele, Nationale Menschenrechtsinstitutionen: Ein Beitrag zur nationalen Implementierung der Menschenrechte (Peter Lang, Frankfurt, 2003), 101, 110, 203. As regards academic writing, the (genesis of the) agency did already pique considerable interest. See the various contributions in Philip Alston and Olivier de Schutter (eds.), Monitoring Fundamental Rights—The Contribution of the Fundamental Rights Agency (Oxford University Press, Oxford, 2005). Furthermore, see for instance, the following articles (listed in chronological order of publication): Armin von Bogdandy and Jochen von Bernstorff, “The EU Fundamental Rights Agency within the European and international human rights architecture: The legal framework and some unsettled issues in a new field of administrative law”, Common Market Law Review 2009 (forthcoming); Ines Härtel, “Die Europäische Grundrechteagentur: unnötige Bürokratie oder gesteigerter Grundrechtsschutz? ”, 4 Europarecht (2008), 489–513; Gabriel N. Toggenburg, “Die ersten Schritte der EU-Grundrechteagentur in Wien”, 11 Jahrbuch für Menschenrechte 2009 (2008), 274–286; Hannes Tretter, “Die Grundrechteagentur der Europäischen Union: Feigenblatt oder Auf bruchssignal? ”, 10 Jahrbuch für Menschenrechte 2008 (2007), 257–264; Lucia Scaffardi, “L’incerto mandato dell’Agenzia europea per i diritti fondamentali”, 1 Quaderni Costituzionali (2008), 156–159; Gabriel N. Toggenburg, “Die Grundrechteagentur der Europäischen Union: Perspektiven, Aufgaben, Strukturen und Umfeld einer neuen Einrichtung im Europäischen Menschenrechtsraum”, 1 MenschenRechtsMagazin (2007), 86–104; Gregor Schusterschitz, “Raum der Freiheit, der Sicherheit und des Rechts”, in Gregor Woschnagg (ed.), Hinter den Kulissen der EU-Österreichs EUVorsitz und die Zukunft Europas (Styria, Graz, 2007), 251–262; Marco Pacini, “L’agenzia dell’UE per i diritti fondamentali”, 7 Giornale di diritto aministrativo (2007), 693–701; Gabriel N. Toggenburg, The EU Fundamental Rights Agency: Satellite or Guiding Star? Raison d‘ être, Tasks and Challenges of the EU‘s New Agency, SWP Comments 2007 / C 05, at ; Waldemar Hummer, “The European Fundamental Rights Agency”, in August Reinisch and Ursula Kriebaum (eds.), The Law of International Relations—Liber Amicorum Hanspeter Neuhold (Eleven International Publishing, Utrecht,

Exploring the Fundament of a New Agent in the Field of Rights Protection: The tial of the agency is determined by a pyramid of legal–political layers. Its normative basis, that is, its quasi-constitutional framework, is laid down in the founding regulation.14 The multiannual framework, to be adopted every five years by the council, forms a second layer, based on the founding regulation, and defines the thematic focus of the agency’s activities. A final third layer is composed of the institutional practice as planned15 and exercised by the agency itself. Before focusing on the agency’s role, I begin with a short presentation of the agency’s institutional structure (Part II). Part III contains a detailed description and interpretation of the role of the agency as laid down in the founding regulation. In Part IV I describe the function and content of the Multiannual Framework and the Annual Work Programme. Finally, in Part V, I shed light on the relevance the agency has for Europe’s minorities. II. Agency’s Agents: The Internal Bodies The Agency has four bodies: a management board, an executive board, a scientific committee and a director.16 The management board comprises 30 experts: one independent person appointed17 by each member state “having high level responsibilities in an independent national human rights institution or other public or private sector organisation”, two representatives of the European Commission and one independent person appointed by the Council of Europe.18 The first meeting of the agency’s management board took place mid-July of 2007, and consequently the mandate of the current board ends in July 2012. Ms Anastasia Crickley, the independent person appointed by Ireland, was elected as chairperson of the management board. Hannes Tretter, the independent person appointed by Austria, was elected vice-chairperson. The person appointed by the Council of Europe is Mr Guy de Vel, and the persons nominated by the Commission are Francisco Fonseca Morillo and Emmanuel Crabit.

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2007), 117–144; Erica Howard, “The European Union Agency for Fundamental Rights”, 4 European Human Rights Law Review (2006), 445–455; Jan Muck Schlichting and Jörg Pietsch, “Die Europäische Grundrechteagentur”, 19 Europäische Zeitschrift für Wirtschaftsrecht (2005), 587–589; Ursula Werther-Pietsch, “Der lange Weg zu einer Europäischen Menschenrechtsagentur”, 1 Juridikum (2005), 10–15; Michael Beis, “Establishment of a European Agency on Fundamental Rights: Opportunities and Challenges”, eumap, at . See council regulation (EC) No 168/2007 of 15 February 2007, in OJ 2007 L 53, 22 February 2007, 1–14 (hereinafter ‘founding regulation’). See the Annual Work Programmes available at the website of the agency (). See Art. 11 of the founding regulation (the FRP is not a body, but rather a working method of the agency). Despite these appointments, the founding regulation envisages that the composition of the board “should ensure the Agency’s independence from both Community institutions and Member State governments and assemble the broadest possible expertise in the field of fundamental rights”. See Consideration No. 20 of the founding regulation. See Art. 12 of the founding regulation.

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Gabriel N. Toggenburg The management board is the “planning and monitoring body” of the agency. It adopts the Annual Work Programme, the annual report and the agency’s draft and final budgets. The board exercises disciplinary authority over the director and appoints and, if necessary, dismisses the latter. It also appoints and revokes the members of the scientific committee. The management board is furthermore responsible for more technical issues like the adoption of the agency’s rules of procedure (on the basis of a draft submitted by the director), the financial rules applicable to the agency, all the necessary measures to implement the staff regulations, the arrangements on transparency and access to documents or the administrative arrangements on the cooperation with other (inter)national players. The board is to convene at least twice a year. The executive board assists the management board, and the latter may delegate many of its responsibilities to the executive board.19 The executive board is made up of the chairperson and the vice-chairperson of the management board, two other members of the management board elected by the management board and one of the representatives of the commission in the management board. The person appointed by the Council of Europe in the management board may participate in the meetings of the executive board. The two additional persons currently forming the executive board are—next to Ms Crickley and Mr Tretter—Ms Elena Pacioti, the independent person nominated by Italy, and Ms Ilze Brands Kehris, the independent person nominated by Latvia. The director takes part in the meetings of the executive board but has no voting rights. The board decides by simple majority. It is convened by the chairperson whenever necessary to prepare decisions of the management board and to advise the director. The scientific committee—not foreseen in the initial commission proposal—is the “guarantor of the scientific quality of the Agency’s work, guiding the work to that effect”. In this sense the scientific committee is more than a mere scientific council that once a year looks at the agency’s functioning. On the other hand, scientific “guidance” is not meant to do away with the fact that the committee is a consultative organ; its pronouncements are not legally binding for other organs of the agency.20 Rather, it seems that the founding regulation looks at the committee as a semi-permanent partner of the operational services of the agency providing them with input and controlling their output. For this purpose, the director shall involve the scientific committee “as early as appropriate in the preparation” of all documents drawn up 19 See Art. 12, para. 7, of the founding regulation. 20 For a different opinion, see Bogdandy and von Bernstorff, op.cit note 13. The authors refer to the fact that the founding regulation explicitly establishes formal procedures for pronouncements of the committee (see Art. 14 (6)). It remains, however, unclear why and how the establishment of formal procedures of pronouncements should imply a legally binding effect of the committee’s pronouncements (also the EC Treaty establishes a formal procedure of consultation; but this does not imply that the pronouncements of the parliament taken in accordance with these procedures would be legally binding for the other EU institutions). In any event, the task of the committee is crucial. According to Consideration No. 22 of the founding regulation the committee guides the agency’s work “by means of scientific objectivity” (the German version speaks in this context of an assisting role). Therefore, the committee’s authority originates in the scientific qualification of its members and not in the legal nature of its opinions.

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Exploring the Fundament of a New Agent in the Field of Rights Protection: The in the Agency’s work”.21 “He is responsible for all these documents “in cooperation with the Scientific Committee”.22 The scientific committee comprises 11 independent persons “highly qualified in the field of fundamental rights”. Like in the case of the other bodies the term of office of the board members is five years (not renewable). The scientific committee elects its chairperson and vice-chairperson for a term of office of one year. The first chairperson is Mr Stefano Rodotà, the first Vice-Chairperson Ms Florence Benoit-Rohmer. They are allowed to attend the meetings of the management board as observers.23 The scientific committee has the right to submit its opinion concerning the draft Annual Work Programme before the latter is adopted by the management board.24 The same applies to the adoption of the agency’s rules of procedure.25 Furthermore, the committee has to be consulted before the management board adopts the annual report.26 The committee decides by two thirds majority. It shall be convened by its chairperson four times per year.27 The director of the agency is responsible for the agency’s general tasks and the preparation and publication of its various reports and studies, the preparation and implementation of the agency’s Annual Work Programme, all staff matters, all matters of day-to-day administration, the implementation of the agency’s budget, the implementation of “effective monitoring and evaluation procedures relating to the performance of the Agency against its objectives according to professionally recognized standards”, the cooperation with National Liaison Officers and the cooperation with civil society, including the coordination of the fundamental rights platform.28 On one of the supposedly most important tasks of the director, namely the representation of the agency in its international relations—the founding regulation remains surprisingly silent.29 On 7 March 2007, Mr Morten Kjaerum was appointed the agency’s first director.30 21 See Art. 14, para. 5, of the founding regulation. 22 See Art. 15, para. 4, lit. a of the founding regulation. 23 See Art. 12, para. 10, of the founding regulation. The other nine members are currently Ms Alpha Connelly, Mr Patrick Devlieger, Mr Peter Jambrek, Mr Jeremy McBride, Ms Angela Me, Ms Kati Mustola, Mr Patrick Simon, Ms Jacqueline Dutheil de la Rochère and Mr Armin von Bogdandy. 24 See Art. 12, para. 6, lit. a of the founding regulation. 25 See Art. 12, para. 6, lit. g of the founding regulation. 26 See Art. 12, para. 6, lit. b of the founding regulation. 27 If necessary, the chairperson shall launch a written procedure or shall convene extraordinary meetings on his or her own initiative or at the request of at least four members of the scientific committee. See Art. 14, para. 6, of the founding regulation. 28 See Art. 15, para. 4, of the founding regulation. 29 There is no doubt that it is primarily the task of the director to represent the agency in its external relations, because the agency “shall be headed” by the director (and the task of external rappresentation is not attributed to anyone else). See Art. 15 of the founding regulation. 30 Note that the selection procedure for the position of the director is highly complex. No other agency applies a comparable procedure. In this cooperation (or “concentration”)

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Gabriel N. Toggenburg III. The Agency’s Mandate: Objective, Scope and Functions A. The Objective of the Agency The agency’s objective is to provide assistance and expertise in the field of fundamental rights to bodies of the EC as well as to member states. The agency is to support and encourage them “to fully respect fundamental rights” within their respective fields of competence.31 When it comes to the agency’s reach vis-à-vis the member states, the founding regulation remains very cautious. The agency’s competence is limited to those cases in which the states are “implementing Community law.”32 However, this narrow formulation falls short of the wider formulation used by the Court of Justice, which sees the member state under an EC-borne human rights obligation wherever their “national regulations fall in the field of application of Community law.”33 Since the Agency cannot deliver any legally binding decisions and does not assess infringements of the member states, but is merely consultative in nature, it would be rather strange if its scope would not extend—in conformity with the case law of the court—to all national law falling in the field of application of EC law. What also arises is the question of whether “fully respecting” rights also implies active conduct or is rather limited to a passive stance of non-violation. In this context one has to accept that so far the Union applies a reactive rather than a proactive approach to fundamental rights. Fundamental rights violations are remedied ex post through the case law of the Court of Justice, and this has only more recently been complemented by trying to avoid violations through extended ex ante impact assessments.34 However there have been arguments and indications for transforming this approach into a clearly proactive one.35 Even the European Council underlined that incorporating the charter into the treaties and the EU’s accession to the European Convention will place the Union under “a legal obligation to ensure that in all its areas of activity, fundamental rights are not only respected but also actively promoted ”.36 Finally one should add that the founding regulation itself does offer provisions that indicate that the agency is not thought of as an institution merely avoiding fundamental rights violations, but also as a player involved in actively promoting fundamental rights.

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procedure the parliament, the commission and the council of the EU are involved. See Art. 15, para. 2, of the founding regulation. See Art. 2 of the founding regulation. Ibid. Established case law; see ECJ, case C-299/95, Friedrich Kremzow, judgement of 29 May 1995, para 15. However, as is well known, the charter also uses a limitative wording in this regard (cfr. Art. 51, para. 1, of the charter). See on this, Helen Toner, “Impact Assessments and Fundamental Rights Protection in EU Law”, 3 ELR (2006), 316–341. See in detail, Olivier de Schutter, Fundamental Rights and the Transformation of Governance in the European Union, Working Paper REFGOV-FR-13, at . European Council Conclusions, 4/5.11.2004 (see Annex: The Hague Programme); emphasis added.

Exploring the Fundament of a New Agent in the Field of Rights Protection: The For instance the founding regulation stipulates that developing “effective” institutions for the protection “and promotion” of human rights is a common value of European societies.37 Consequently, it provides that the evaluation of the agency would take into account inter alia its own impact on the protection “and promotion” of fundamental rights.38 In conclusion I would strongly argue for reading the agency’s mandate as a proactive one. If the agency wants to fulfil its, legally speaking, rather modest mandate in an efficient manner, it has to apply a proactive approach to the protection of fundamental rights in the EU system. Therefore the agency will have to not only monitor the implementation and enforcement of existing EU legislation, but also identify “where legislative improvements [at the EU level] would be most welcome”.39 In fact, it is what seems already to have taken place in the early practice of the agency.40 B. The Substantive Purview of the Agency The agency’s substantive purview is confined to the competence areas as prescribed in the EC treaty.41 It is, thus, a pure first-pillar agency, which, so far, is not concerned with second- or third-pillar issues. This was not clear from the very beginning of the agency’s genesis—the commission had proposed a council decision empowering the agency to also pursue activities in the area of police and judicial cooperation in criminal matters.42 However such an extension of competence to the third pillar of the EU treaty did not find consensus in the council and was therefore rejected. This is a substantial restriction. On the other hand, I think it is of the utmost importance to stress that within the first pillar the agency is free to deal with all kinds of fundamental rights concerns, therefore not to be confined to a specific policy area or set of fundamental rights. In this sense, the narrow vertical competence (no means allowing for hierarchical top-down intervention) is combined with an impressive horizontal competence, because the agency can deal with the entire gamut of fundamental rights. From a legal perspective, the point of reference for the agency’s work is the fundamental rights “as defined in Article 6(2) of the Treaty on European Union”.43 37 38

Consideration No. 4 of the founding regulation. Not later than 31 December 2011, the agency has to commission an independent external evaluation of its achievements during the first five years of operations. See Art. 30, para. 3, lit. a of the founding regulation. 39 See the Parliament resolution “Promotion and protection of fundamental rights” issued 26 May 2005, in OJ 2006 C117 E, 18 May 2006, 242–248, at para. 43 (based on the report drafted by Kinga Gal). 40 Compare for instance the agency’s proposals in the report “Homophobia and Discrimination on Grounds of Sexual Orientation in the EU Member States Part I – Legal Analysis” (2008). 41 Art. 3, para. 1, of the founding regulation. 42 See the commission proposal for a council decision empowering the agency “to pursue its activities in areas referred to in Title VI of the Treaty on the European Union” (also in COM(2005)280). 43 See Art. 3, para. 2, of the founding regulation.

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Gabriel N. Toggenburg The Charter of Fundamental Rights, which will become legally binding only with the entry into force of the Lisbon Treaty, is thus not seen as the normative backbone of the agency’s work:44 this role remains with the classical and rather flexible provision in Article 6 of the EU treaty, which imports fundamental rights standards from the European Convention on Human Rights and from the member states’ constitutions into the EU system. Nevertheless the founding regulating speaks of a “close connection between the Charter” and the agency.45 In fact the agency declared that it “situates its work in the wider context of the Charter” and began to structure its Annual Work Programme alongside the six chapters of the charter. By doing so the agency by no means insinuates a legal status the charter does not yet have. It just raises the visibility of a central fundamental rights document that, according to the founding regulation, represents a mirror reflecting the current human rights acquis.46 Returning to the third pillar, I would argue that the exclusion of the latter is difficult to reconcile with the agency’s overall purpose of raising awareness of fundamental rights in the EU,47 especially today, when many fundamental rights–sensitive measures are discussed, drafted or implemented in the area of anti-terror politics. It is therefore to be highly welcomed that the council agreed to reexamine the expansion of the agency’s competence in the third pillar before 31 December 2009.48 Likewise it is to be welcomed that the council stipulated that it is up to the EU organs to consult the agency on a voluntary basis within the range of the third pillar.49 If the agency 44 The commission’s initial proposal was ambivalent in this regard (cfr. Art. 2, para. 2, of the proposal: “in Nice proclaimed Charter [… is …] embodied “). This was criticized as a significant normative anticipation in politics (see the letter sent by Matthias Wissmann, Chairman of the Committee of EU Affairs in the German Bundestag to Angela Merkel and Frank-Walther Steinmeier on 8 June 2006) as well as in academia (see Schlichting and Pietsch, op.cit. note 13, 588). 45 See Consideration No. 9 of the founding regulation. Note that the parliament sees the setting up of the agency as a step towards the “establishment of an integrated regulatory and institutional framework designed to put the Charter into effect and guarantee consistency with the system established by the ECHR”. See the above-quoted European Parliament resolution, op.cit. note 5, as of 14 January 2009, para. 10. 46 See Consideration No. 2 of the founding regulation: the charter “reflects the rights as they result, in particular, from the constitutional traditions and international obligations common to the Member States, the Treaty on European Union, the Community, Treaties, the European Convention for the Protection of Human Rights and Fundamental Freedoms, the social charters adopted by the Community and by the Council of Europe and the case law of the Court of Justice of the European Communities and of the European Court of Human Rights.” 47 The raising of awareness is mentioned in Consideration No. 4, Consideration No. 15 and Art. 4, para. 1, lit h of the founding regulation. 48 This rendezvous clause has been inserted in a declaration recorded in the minutes of the council. See annex of the council document 6166/07, 12 February 2007, at 4. Cfr. also Consideration No. 32 of the founding regulation, which underlines that nothing in the regulation can be interpreted as to prejudice the question of whether the remit of the agency is to be extended to the third pillar or not. 49 See council document 6166/07, 4.

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Exploring the Fundament of a New Agent in the Field of Rights Protection: The is able to deliver convincing reports and successful advice when responding to such voluntary requests, the political resistance against the expansion of its scope to the third pillar might decrease. In fact, at the request of the French EU presidency, the agency has already delivered, in October 2008, an opinion on the commission proposal for a council framework decision, COM (2007) 654, on the use of Passenger Name Record (PNR) for law enforcement purposes. The concise agency paper was delivered in accordance with Article 4, paragraph 2, of the founding regulation at very short notice and might be seen as proof that the agency can also produce valuable input in third-pillar areas. The agency was also approached by the European Commission in the context of the discussion surrounding the full-body scanners—another example for the fact that there is a lot of potential for the agency in areas outside the first pillar. In fact, the parliament made it very clear that it reserves the “right to follow up the Agency’s work in the European Union and to address human rights issues which fall outside the Agency’s remit, and calls on the Commission to do the same”.50 As regards the possible extension of the mandate to the third pillar at the end of 2009, the Lisbon Treaty will without doubt work in favour of such an extension since the “de-pillarisation” it foresees would make the limitation of the agency’s work to areas included in the former first pillar appear even more artificial.51 So far there seems, at least to my knowledge, no major discussion as to whether the entry into force of the Lisbon Treaty will ipso facto imply that the agency would automatically become responsible for the areas formerly included in the third pillar. Should this not be the case, the question discussed in 2005, namely of whether a council decision extending the mandate of the existing agency to the third pillar can be validly based on the European Treaties, might eventually re-arise.52 Admittedly, the EU Treaty does not dispose over a residual-powers clause comparable to the current Article 308EC-Treaty. However, it is clear from current Article 6, paragraph 1, EU-Treaty that “the Union” shall respect fundamental rights.53 This implies that law produced under the third pillar is “inter50 51

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See the already quoted European Parliament resolution as of 14 January 2009, para. 13. Interestingly the German Bundesrat used the fact that the European Court of Justice has—according to the current legal system—only limited responsibilities in the third pillar as a legal argument to exclude a competence of the agency in this area. See Beschluss des Bundesrates 518/05 as of 23 November 2005, para. 5. It should be remembered that the council’s legal service was of the opinion that Art. 30, 31 and 34(2) lit. c EU do not offer a sufficient legal basis for this purpose. It was on these three articles that the commission’s initial “proposal for a Council decision empowering the European Union Agency for Fundamental Rights to pursue its activities in areas referred to in title VI of the Treaty on European Union” was based upon. See COM (2005)280 as of 30 May 2005. The council’s legal service came to the conclusion that the agency’s mandate could only be extended to the third pillar if the EU Treaty would dispose over a residual-powers clause equivalent to Art. 308 of the EC Treaty. This reading of the EU Treaty was not shared by the European Commission’s legal service—and rightly so. For the second pillar, this duty is reiterated in Art. 11, para. 1, EU. Admittedly such a pillar-specific provision is missing for the third pillar. However, the formulation in the current Art. 34, para. 2 EU, reads as follows: “The Council shall take measures and promote cooperation, using the appropriate form and procedures as set out in this title, con-

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Gabriel N. Toggenburg preted in such a way that fundamental rights [...] are respected”.54 The agency’s task in the third pillar would help to secure that upcoming EU measures in the third pillar are enhancing (and not infringing) fundamental rights and to provide factual evidence and fundamental rights expertise as to how existing measures should be applied in order to avoid fundamental rights problems. Therefore, legally speaking, the extension of the agency’s mandate does not at all seem problematic. And, politically speaking, it is difficult to disagree with the parliament, which stresses that “human rights issues cannot be artificially divided into areas under the first, second or third pillars”. The parliament regards as essential that the Commission and the Council, working with the Agency, should first of all seek to gain an overview of concerns in the area of human rights in the Member States beyond the strict framework of European rules, without confining themselves to topical issues in the European Union or to specific legal and political instruments, but identifying recurring and current human rights problems in the Member States and considering all existing mechanisms at international and European level.55

Such problems might very well be identified in the area of the third pillar. C. The Territorial Scope of the Agency One should recall that at the agency’s genesis there were voices arguing for its wide responsibility for the fundamental rights performance in third states—a fact that raised concerns in the Council of Europe. The commission proposal enshrined at least the possibility for the agency to collect information on countries with which the EC is planning to conclude association agreements, in particular countries covered by the European Neighbourhood Policy.56 In contrast to this, the founding regulation foresees only very limited possibilities to extend the agency’s territorial scope to third countries. Generally speaking, the territorial scope of the agency is strictly confined to the “European Union and its Member States”.57 However once third countries partici-

54 55 56 57

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tributing to the pursuit of the [general!] objectives of the Union”. The Union’s objective under the third pillar is therefore not only “to provide citizens with a high level of safety within an area of freedom, security and justice by developing common action among the Member States in the fields of police and judicial cooperation in criminal matters and by preventing and combating racism and xenophobia” (Art. 29 EU), but also to “respect fundamental rights, as guaranteed by the European Convention for the Protection of Human Rights and Fundamental Freedoms signed in Rome on 4 November 1950 and as they result from the constitutional traditions common to the Member States, as general principles of Community law” (as laid out by Art. 6 para 2 EU). ECJ, case C-105/03, Maria Pupino, judgement of 16 June 2005 in para. 59. See the quoted Parliament resolution of 14 January 2009, para. 11. See Art. 3 para. 4 of the Commission proposal. Art. 3 para 3 of the founding regulation.

Exploring the Fundament of a New Agent in the Field of Rights Protection: The pate in the agency as observers,58 the competence of the agency can also be expanded to the territory of these states. The agency is open for the participation of EU candidate countries only. This means that currently Croatia, Macedonia or Turkey may become observers following a decision by the respective EU association council. In such a case, the respective association council will also decide whether the agency may deal with fundamental rights issues concerning these countries.59 The years to come will be crucial for the EU’s enlargement policies; it does not seem implausible that also other Balkan countries will, in a not distant future, receive candidate status.60 Moreover, the Council of the European Union may, acting unanimously on a proposal by the commission, decide to invite a third country to participate in the agency’s work as an observer even if it does not (yet) hold candidate status in case this country has entered into a Stabilisation and Association Agreement (SAA) with the EC. In such a case, the respective association council can also decide that the agency would be allowed to deal with fundamental rights issues concerning the respective country.61 This could be of relevance for many countries of the Western Balkans. Albania signed the SAA at the end of 2006, Montenegro in October 2007 and the agreement with Bosnia was initialled in December 2007. Thus, one may conclude that the agency is—the above-mentioned procedural differences nothwithstanding—open to the participation of both candidate and potential candidate countries. However, the agency is excluded from dealing with the EU’s “ring of friends”. Whereas about two thirds of the nearly 30 EU agencies allow for the participation of ENP countries like the Maghreb states, the Caucasus, Ukraine or Belarus, this is not the case for the FRA. This can be explained by the fact that fundamental rights issues in the context of the adoption of the acquis communautaire are of less relevance to this group of states because they are not offered any EU membership perspective (and their general human rights performance can be evaluated in other fora).62

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Countries with observer status appoint an independent person (without the right to vote) in the Agency’s Management Board. See Art. 28 para. 2 of the founding regulation. 59 However there is, legally speaking, no automatic link between participation in the Agency and extension of its geographic competence (compare the German or Italian wording of the provision). 60 Note that Albania is said to apply for EU membership after the elections in June 2009, Bosnia and Herzegovina announced to apply for membership by June 2009, Montenegro applied for membership already on 15 December 2008 and Serbia announced to apply for membership in April 2009. 61 Art. 28, para. 3, of the founding regulation. 62 In contrast, see for instance the SAA concluded with Albania, reads in its Art. 70, para. 1: “Albania shall endeavour to ensure that its existing laws and future legislation shall be gradually made compatible with the Community acquis.”

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Gabriel N. Toggenburg D. The Agency as a Centralized Information Switchboard (Data Collection) The founding regulation identifies eight tasks that the agency is set to fulfil.63 It seems however that these can be subsumed under three major functions, namely data collection, the production of expert opinions and the establishment of a communication strategy. The most evident function of the agency is to collect, analyze and disseminate relevant, objective and comparable information in the field of fundamental rights and to develop methods and standards to improve the comparability, objectivity and reliability of such data at the European level.64 The UN human rights instruments alone produce over 2,000 annotations for the countries of Western and Eastern Europe a year,65 not to mention all of the opinions, comments, reports and information produced within the sophisticated regional human rights machinery of the Council of Europe. However, these various sets of data are dispersed, do not refer to the same moment in time and are sometimes difficult to access. Moreover they do not necessarily cover all 27 member states, and most importantly, they are not collected with specific regards to the special needs of the context of the EU and its legal system. Apart from the collection and evaluation of such EU-specific data, it would be a major contribution if the agency could provide an electronic one-stop shop in the field of European fundamental rights data: a user-friendly electronic interface leading to a well-administered type of “European Fundamental Rights Information System”.66 Only where data is not yet available should the agency begin establishing new datacollection mechanisms, which should then also feed into that database. Consequently, one of the agency’s first endeavours could be a mapping exercise that would provide a clear picture of the existent data collection and monitoring activities in the field of fundamental rights. This would be a vivid expression of the necessary cooperation between the agency and international organizations (especially the Council of Europe), which is so starkly stressed in the founding regulation.67 In fact this envisaged cooperation between the agency and other international players conforms to a general trend of revamped “inter-organizational” cooperation between international organizations, which seems more and more necessary after half a century of mere inter-national cooperation between the (member) states.68 63 Art. 4, para. 1, lit. a–g of the founding regulation. 64 Art. 4, para. 1, lit. a and b of the founding regulation and Consideration No. 4 of the founding regulation. 65 In relation to the UN, see the very useful database of the Universal Human Rights Index at . 66 The agency already runs an online legal database, but the latter seems still (like the FRA website as a whole) to offer considerable potential for improvement. 67 See Art. 6–10 of the founding regulation. 68 See in more detail on this interorganizational cooperation, Gabriel N. Toggenburg, “A Remaining Share or a New Part? The EU’s Role vis-a-vis Minorities after the Enlargement Decade”, in Marc Weller, Denika Blacklock and Katherine Nobbs (eds), The Protec-

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Exploring the Fundament of a New Agent in the Field of Rights Protection: The The task of data collection can very well concern also issues regarding pending EU legislation. Admittedly, Article 4 (2) of the founding regulation enables the agency to deliver “conclusions, opinions and reports” with regard to EU institutions’ positions taken in the course of the legislative process at the European level only when these institutions request the agency to do so. However, the task of data collection is of an incoming (“collecting”, “recording”) or internal (“analysing”) nature69 and can therefore be exercised without any request by an EU institution.70 Likewise it should be pointed out that, whilst the delivery of country-by-country reports on the member states’ fundamental rights performance (within and beyond the area of EU law) are not included in the agency’s tasks, the latter is not prevented from regularly “collect[ing], record[ing and] analys[ing]” information and data on such issues. For this data is relevant for fulfilling the objective of the agency as described above. E. The Agency as a Consultative Centre of Expertise (Policy Advice) The agency is to carry out, cooperate with and encourage scientific research, surveys and studies at its own initiative. Moreover, studies are also to be delivered at the request of one of the three main EU institutions as long as the respective research is “appropriate” and compatible with the agency’s priorities and its annual work programme.71 The founding regulation leaves it up to the agency whether it uses for this purpose inhouse resources or whether it outsources such activities. The way the agency dealt with the first requests by the parliament (a “comparative study on the situation concerning homophobia and discrimination on grounds of sexual orientation in the EU”72) and the tion of Minorities in the Wider Europe (Palgrave Macmillan, London, 2008), 95–127, at 112–116. 69 Compare Art. 4, para. 1, lit. a of the founding regulation. 70 Only at the stage of dissemination does the task of data collection become external and may, therefore, result in “conclusions, opinions and reports”. 71 See Art. 4, para. 1, lit. c of the founding regulation. 72 See invitations to tender 2-2007-3200-T05 as of 20 August 2007. The first part of the report on homophobia (the legal analysis) was presented at the end of June 2008. It identifies differences in treatment and protection by the law for Lesbians, Gays, Bisexuals and Transsexuals and a lack of full and equal enjoyment of rights in areas of EU competence, particularly with regard to same-sex partnerships. This relates to rights and benefits provided for spouses and partners under the EU’s Free Movement Directive, the Family Reunification Directive and the Qualification Directive. The report also highlights that homophobic hate speech and hate crime represent obstacles to the possibility for individuals to exercise their free movement and other rights in a non-discriminatory manner. Homophobia could be combated more effectively using EU-wide criminal legislation. Moreover, the agency finds that 18 out of 27 EU member states have already gone beyond the minimum requirements of EU anti-discrimination legislation and have provided for legal protection against discrimination on grounds of sexual orientation in the areas of employment, access to public goods and services, housing and social benefits. The report concludes that more-comprehensive legal protection, as well as wider powers and resources for equality bodies are required, and urges that the new measures on non-discrimination currently discussed by the EU will ensure this.

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Gabriel N. Toggenburg commission (a “study on indicators measuring the implementation, protection, respect and promotion of children’s rights in the European Union, mapping and assessment of available relevant data resources”73) as well as the establishment of the Fundamental Rights Agency Legal Experts (FRALEX), might indicate that research and reporting tasks will continue to be—at least to a certain degree—outsourced to external experts and institutes. FRALEX is a group of qualified experts in the area of fundamental rights law who were chosen on the basis of a public call for tender launched in July 2007.74 On the basis of this call the agency concluded framework contracts with the selected experts who provide the agency with legal studies, reports and relevant statistical and other data such as bulletins and other deliverables.75 Important and politically powerful tasks of the agency are the formulation and publication of “conclusions and opinions on specific thematic topics” for the Union and the member states (when implementing community law), the publication of the “annual report” or the publication of “thematic reports based on its analysis, research and surveys”.76 Of course, the agency is free to find additional labels for its output (like handbooks, research papers, multimedia products and so forth). However, as already mentioned, the founding regulation contains in Article 4(2) a crucial ‘brake’: conclusions, opinions and reports that “concern” legislative proposals from the commission or positions taken by the EU institutions in the course of the legislative procedure can be formulated by the agency only if the respective institution has requested it to do so. This restriction falls short of the so-called Paris Principles, which regulate the human rights institutions established at the national level and which were referred to by the commission as a potential “source of inspiration” for the EU agency.77 According to these principles, national human rights institutions may freely consider any questions falling within their competence, irrespective of whether they are submitted by the government and especially “without referral to a higher authority”.78 It is worthwhile to, once more, recall the genesis of the agency and underline that the initial commission proposal had entirely excluded the agency from commenting on EU legislative instruments. It seems as if the commission was afraid that the agency could regularly get engaged with addressing the commission’s proposals. A fact that the commission might either (wrongly) have perceived as putting the agency and the commission in a situation of competition or as putting the agency in danger of getting involved (by the other two EU institutions) in the legislative process for political reasons, thereby unnecessarily delaying the legislative procedure. 73 74 75 76 77 78

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See invitation to tender 2-2007-3200-T06 as of 20 August 2007. This study has, at the time of writing, not yet been published. See document 2007-178109, in OJ S 144/2007 as of 28 July 2007. The financial volume of the framework contract, which covers a 4-year period and includes all 28 lots (27 member states plus the EU), is estimated at 10 million EUR. A list of the various contracted institutions can be downloaded from the agency’s website. See Art. 4, para. 1, lit. d, e and f of the founding regulation. See the public consultation document COM(2004) 693 final, 25 October 2004, 4. See point 3, lit. a, of the principles relating to the Status of National Institutions (the Paris Principles) as adopted by UN General Assembly resolution 48/134 of 20 December 1993.

Exploring the Fundament of a New Agent in the Field of Rights Protection: The Whatever the reason might have been, the unfortunate “compromise” reached in Article 4(2) of the founding regulation is not convincing in my eyes. It does not prevent the scenario of the agency being approached for political reasons, and, considerably more worrying, it stands in sharp contrast to the necessary degree of independence prescribed by the Paris Principles. When it comes to fundamental rights problems in the law making process at the EU level, the agency remains dependent on a request by the EU institutions. The European Parliament—in its tradition of showing a strong fundamental rights commitment—might prove to be a door opener to the agency in this respect.79 In fact, the parliament called already on the commission to involve the Agency in the Community’s legislative process on anti-discrimination so as to allow it to play a significant role as a regular source of up-to-date and detailed information of relevance for drafting further legislation, consulting it at the preparatory stage in the process of drawing up draft legislation.80

Such requests, in the sense of Article 4, paragraph 2, of the founding regulation, can very well also concern third-pillar issues.81 Whether or not these requests will become a regular practice of the so often invoked European culture of fundamental rights will depend on the existence of inter-institutional trust at EU level. However, one should underline that the agency’s practice might show that there is also a margin of appreciation left to the agency in deciding whether or not to comment on a legislative proposal on its own initiative. This is because in many cases it will be difficult to assess whether an agency opinion or report concerns a proposal or a position from an EU institution or rather only deals with a legal issue that is of immediate interest to the latter. In ambiguous matters such as this, the profile of the agency will essentially be shaped by the agency’s leadership, i.e., its director. The agency’s conclusions, opinions and reports are not legally binding for the other EU institutions or the member states. What, though, arises is the question of whether they are therefore entirely barred from having any legal effect. What one could think of—and actually would expect—is that the member states and the EU institutions do, first, take notice of the contents and arguments enshrined in the agency’s different positions and, second, take these into account in their own institutional behaviour.82 These two duties can be inferred from the very fact that all the member 79

See rule 34 of the European Parliament’s rules of procedure, which obliges the parliament during the examination of a legislative proposal to pay “particular attention to respect for fundamental rights and in particular that the legislative act is in conformity with the European Union Charter of Fundamental Rights”. 80 See the already mentioned Parliament resolution of 14 January 2009, para. 38, op.cit. note 5. 81 The parliament calls for a council framework decision in the area of the fight against homophobia. This criminal law instrument should be proposed by the commission only “after consulting the Agency”. See the Parliament resolution of 14 January 2009, para. 39. 82 The parliament calls “on the Commission and the Council to use the information available as a result of the monitoring carried out within the European Union by the Agency

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Gabriel N. Toggenburg states agreed on the agency’s Founding Regulation and that the EU institutions were all involved in the process of setting up the agency. The principle of loyalty in Article 10 of the EC-Treaty is a further argument for assuming that both member states as well as EU institutions should “facilitate the achievement of the Community’s tasks” by taking the positions of EU agencies into due account. Despite the fact that Article 10 does expressis verbis only address the member states, the court soon made clear that the EU institutions also stand under an obligation of loyal cooperation amongst each other. It calls for an inter-institutional dialogue that is “subject to the same mutual duties of sincere cooperation as those which govern relations between Member States and the Community institutions”.83 Admittedly, the court refers in this context to the big EU institutions and not to agencies. However, one should not forget that after all EU agencies are installed to foster the community’s objectives and tasks and there is, therefore, in my eyes, no reason why it should be allowed that EU institutions ignore their input. In cases in which the agency discusses and evaluates concrete EU measures, the legal effect of the agency’s opinions and reports might be even more profound. This is especially the case when the agency is approached according to Article 4, paragraph 2, of the founding regulation: does the agency express itself on a concrete proposal in the framework of the EU legislative procedure? The respective EU institution is arguably not only under an obligation to take notice of the agency’s opinion or to take it into account. In these cases I would even argue that the EU institutions are under an obligation to indicate the reasons why they are diverging from a concrete agency position. In the context of an advisory body, the Court of First Instance argued that to the extent to which the Community institution opts to disregard the opinion, it must provide specific reasons for its findings by comparison with those made in the opinion and its statement of reasons must explain why it is disregarding the latter. The statement of reasons must be of a scientific level at least commensurate with that of the opinion in question. In such a case, the institution may take as its basis either a supplementary opinion from the same committee of experts or other evidence, whose probative value is at least commensurate with that of the opinion concerned.84

If EU institutions are simply proceeding with the legislative procedure while silently ignoring the loud and clear-cut caveats of the agency, they would not only lead the agency’s mission ad absurdum, but would arguably also violate their duty to “state the

[…] and to translate that information into corrective measures or a preventive legal framework”. Moreover it calls “on the Member States and the Commission to act in full on the recommendations of the Agency as set out in Chapter 7 of its first annual report”. See the Parliament resolution of 14 January 2009, para. 13 and 33. 83 See ECJ, case C-65/93, European Parliament v. Council, judgement of 30 March 1995, para. 23. 84 See CFI, case T-13/99, Pfizer Animal Health SA, judgement of 11 November 2002, para. 199.

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Exploring the Fundament of a New Agent in the Field of Rights Protection: The reasons” on which the concrete legislative measures are based.85 Such a violation of Article 253 of the EC Treaty is to be considered an infringement of an essential procedural requirement and can therefore be sanctioned by making recourse to an action for annulment in the sense of Article 230 EC Treaty. The agency’s reports will highlight “examples of good practice” as is spelled out explicitly for the annual report.86 Highlighting such examples is only possible after a process of horizontal monitoring amongst the member states. In this sense, the founding regulation does provide for indirect monitoring of these states. In fact the insertion of Article 7 in the EU Treaty was initially interpreted as enabling the EU institutions to “exercise their role in monitoring respect for fundamental rights in the Member States”.87 Later, scepticism grew and even the parliament came to the conclusion that Article 7 could not “be invoked in support of any right to, or policy of, permanent monitoring of the Member States by the Union”.88 However, this does not preclude the council from consulting the agency in the context of Article 7 either as an “independent person” or just as a source of relevant expertise.89 This was confirmed by the council itself.90 Recently the parliament seems to deplore that the agency is not competent for regular country-by-country monitoring. It points out that the annual reports on human rights drawn up by the European Network of Independent Experts in Fundamental Rights, published until 2005, scrutinised the application of all the rights recognised by the Charter in each Member State, and is concerned, therefore, at the fact that the Agency’s limited remit and the dissolution of the Network may exclude from systematic scrutiny a series of important areas of human rights policy in Europe.91 85

Compare Art. 253 EC, which establishes a duty to give reasons for EU legislation in order to make ex-post control of legislation easier. 86 Art. 4, para. 1, lit. e, and Consideration No. 14 of the founding regulation. 87 Parliament resolution on the situation concerning basic rights in the EU, 05 July 2001 (based on the Swiebel report A5-0451/2002 as of 12 December 2002); see also the communication of the commission, Art. 7 of the EU Treaty. Respect for and promotion of the values on which the Union is based, COM(2003) 606, 15 October 2003. 88 Parliament resolution of 20 April 2004 on respect for and promotion of values on which the Union is based, in OJ 2004 C 104 E, 408–411, para. 11, lit. a. Whereas the commission proposal stated that the agency could “make its technical expertise available to the Council” when the latter becomes active in the framework of Art. 7 EU Treaty , this provision—as already mentioned—was dropped in the founding regulation. 89 Note that the Treaty of Lisbon does away with the provision in Art. 7 EU Treaty refering to the possibility of “calling on independent persons to submit within a reasonable time limit a report on the situation in the Member State in question”. This does however not do away with the possibility that the council approaches natural or legal persons in order to receive expert input in an Art. 7 context. 90 See the respective declaration in the already quoted council document 6166/07, 12 February 2007, 4. 91 Parliament resolution of 14 January 2009, para. 10. For details on the network see Wolfgang Heyde, “EU-Netzwerk unabhängiger Grundrechtsexperten“, 2 MenschenRechtsMagazin (2006), 238–241.

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Gabriel N. Toggenburg In fact, the EU Network of Independent Experts on Fundamental Rights did offer regular monitoring of the member states fundamental rights performance in fields falling beyond EU law too.92 The impact of this monitoring exercise was nevertheless more limited than the impact the network had within the EU institutions. It was concluded that one reason for this is that the legal basis for such monitoring is “fragile, and thus its legitimacy still open to question”.93 As was already said, the agency is not thought of to carry out a systematic and permanent monitoring of the member states for the purpose of Article 7 EU Treaty and is not expected to produce “country reports, in order to avoid overlap with existing reporting systems”.94 This, however, can hardly imply that the agency should not be engaged with monitoring at all. The most probable solution to this foggy issue is a sort of two-track approach. The FRALEX Experts could provide for normative country-by-country monitoring, assessing legal pitfalls at the member-state level (vertical dimension). In contrast to the former network, the agency could decide to use these reports only internally. In any event, such reports would not be products of the agency as such but would form the basis for advisory monitoring done by the agency itself.95 This advisory monitoring would take a thematic approach and provide the benefit of mutual observation and mutual learning amongst the member states (horizontal dimension). Such an approach would allow combining a vertical normative with a horizontal advisory monitoring within the limits of the agency’s mandate. The first annual report delivered by the agency on 24 June 2008 builds on the ongoing data collection through the 27 RAXEN National Focal Points (NFPs). The RAXEN network was already established under the EUMC and collects data regarding racism, xenophobia and related intolerances. Consequently, the agency’s first annual report focuses on these issues. The agency finds that the implementation of the race directive remains unsatisfactory.96 Regarding ethnic discrimination cases in 12 member states, there have been no sanctions applied at all. The agency comes to the conclusion that this is often due to the weak position of the respective equality bodies. In this context the agency underlines that there is a complete absence of equal92 For details on the network see Heyde, op.cit. note 91, 238–241. 93 Olivier de Schutter and Valérie Van Goethem, The Monitoring of Fundamental Rights in the Union as a Contribution to the European Legal Space (I): The Added Value of a Systematic and Regular Monitoring of the situation of fundamental rights in the Member States for the evaluation of the implementation of Union laws and policies, Working Paper REFGOV-FR-5, 6, at . 94 Compare annex to the initial commission proposal. 95 As regards the report on homophobia, the agency seems more or less to follow this approach. Only the comparative report is an official document of the agency. The 27 national reports are not authored by the agency. A disclaimer makes clear at the beginning that they are merely “background material” for the comparative report and that the “the views expressed here do not necessarily reflect the views or the official position of the FRA”. Nevertheless, the country reports are made available online (“for information purposes only”). They explicitly do “not constitute legal advice or legal opinion”. 96 For an overall view on the race directive see, e.g., Gabriel N. Toggenburg, “The Race Directive: A New Dimension in the Fight against Ethnic Discrimination in Europe”, 1 EYMI (2001/02), 231–244.

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Exploring the Fundament of a New Agent in the Field of Rights Protection: The ity bodies in the Czech Republic, Luxembourg and Spain (and Germany and Malta only began to have equality bodies in 2007). Moreover the report takes a close look at racist violence and crime, discrimination in employment, housing, education and health care and presents proposals in these areas.97 The parliament calls in its recent resolution to ask the agency for an “annual report analysing the situation of individuals placed in detention centres under the authority of Member States, within or outside their borders, and to submit it to Parliament”.98 F. The Agency as a Communication Tool (Multilogue with Civil Society) The agency is to develop a communication strategy and promote dialogue with civil society. These tasks have the twofold aim of raising public awareness of fundamental rights and actively disseminating information about the agency’s work.99 The founding regulation underlines that greater knowledge and broader awareness of fundamental rights issues are conducive to ensuring full respect for fundamental rights.100 It is therefore the task of the agency to raise awareness about fundamental rights mechanisms in broad terms.101 This may very well also include an educational mission (which would have to be intensively coordinated with the Council of Europe and other players active in this field).102 The founding regulation recognizes the important role of civil society in the protection of fundamental rights. It is therefore the task of the agency to promote dialogue and work closely with nongovernmental organizations (NGOs). A permanent “structured and fruitful” dialogue is supposed to be institutionally guaranteed through the creation of the Fundamental Rights Platform (FRP), allowing for close cooperation with all relevant stakeholders.103 The mandate of the FRP, which is only roughly outlined in the founding regulation, makes clear that one-way communication of information to civil society is not enough. In fact, the platform is an institutional expression of the agency’s need to obtain (at least) three types of input from civil society: first, planning input required to draft the Annual Work Programme104; second, evaluation input required to gain feedback 105 and thereby enabling the director 106 and the manage97 98 99 100 101 102

103 104 105 106

The report can be downloaded from the agency’s website. See the Parliament resolution of 14 January 2009, para. 108. See Art. 4, para. 1, lit. h, of the founding regulation. Consideration No. 4 of the founding regulation. See Consideration No. 15 of the founding regulation. Compare Art. 4, para. 1, lit. k, of the commission’s initial proposal explicitly referring to the preparation of “educational material” . Also, the parliament seems to advocate an educational profile of the agency, since it “calls on national and local authorities to use the educational tools produced by the Agency and the Council of Europe”. See Parliament resolution of 14 January 2009, para. 41. See Consideration No. 19 and Art. 10 of the founding regulation. See Art. 10, para. 4, lit. a, of the founding regulation. See Art. 10, para. 4, lit. b, of the founding regulation. See Art. 15, para. 4, lit. f, and Art. 30, para. 1, of the founding regulation.

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Gabriel N. Toggenburg ment board107 to ensure that the agency performs the tasks entrusted to it; and third, information input, which allows the agency to track the various developments on the ground (i.e., court decisions, employment situation, development in the social sector, news in academia, etc.).108 How efficient and “fruitful” this dialogue will prove to be depends on the structure, the selection of participants and the working methods of the platform. All these elements should aim at guaranteeing a dynamic flow of inputs from all relevant branches of civil society to the agency. However, since dialogue is a two-way process, the destiny of the platform also lies to a considerable degree in the hands of civil society itself. The first two meetings of the FRP took place in autumn 2008 and spring 2009 in Vienna. The FRP currently comprises around 100 experts from civil society organizations. The meetings so far have focused on suggestions for the FRA’s work programme, collecting feedback on the annual report and establishing the working methods of the platform. During the first meeting, an interim FRP panel was elected, and at the second meeting an advisory panel was established.109 The panel’s purpose is especially to help the director with the organization of the platform and to help develop a communication strategy between the platform, the director and the management board of the agency.110 However, because the founding regulation leaves the nature, tasks and working methods of the platform very open, it seems too early to assess the platform’s potential and impact. IV. Fine-tuning the Agency’s Role: Multiannual Framework and Annual Working Programme A. The Multiannual Framework 2007–2012 The Multiannual Framework (hereinafter ‘MAF’) covers five years and is adopted by the council.111 Thereby, the member states can prevent the agency from setting “a political fundamental rights agenda of its own”.112 When adopting the MAF, the council

107 Cfr. Art. 12, para. 6, of the founding regulation. 108 Cfr. Art. 10, para. 4, lit. c, of the founding regulation. 109 The members are as follows: Ali Parvin, FATIMA Women’s Network; Barge Pierre, European Association for the Defense of Human Rights (AEDH); Charhon Pascale, European Network Against Racism (ENAR); Kinderman Peter, Mental Health Europe; Kitanovic Elizabeta, Conference of European Churches (KEK); Martin Rodrigo, Rainbow Rose; Pavlou Miltos, Hellenic League for Human Rights–KEMO; Porteous Wood Keith, International Humanist and Ethical Union; Rudolf Beate European Women Lawyers Association (EWLA). 110 The reports of the FRP meetings can be downloaded from the FRA website. 111 See for the first MAF the council decision of 28 February 2008, in OJ 2008 L 63, 14–15. 112 See Consideration No. 12 of the commission’s proposal for the founding regulation. Note that Art. 5 of that proposal foresaw that the MAF was to be adopted by the commission (and not the council).

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Exploring the Fundament of a New Agent in the Field of Rights Protection: The acts on a proposal from the commission and after consulting the parliament.113 The thematic areas listed in the MAF must be “in line with the Union’s priorities, taking due account of the orientations resulting from the European Parliament resolutions and Council conclusions in the field of fundamental rights”.114 The founding regulation establishes that the fight against racism, xenophobia and related intolerance is a permanent thematic area of the agency, which is therefore immune to any change from one MAF to another.115 The MAF must have due regard for the agency’s financial and human resources.116 It determines the “limits of the work of the Agency”.117 However, this is without prejudice to responses of the agency to requests from the three main EU institutions, which may very well fall outside the areas listed in the MAF. In that sense, the MAF limits primarily the autonomous room for manoeuvring of the agency. In fact, the parliament, expressing its opinion on the draft MAF, sought to avoid rendering the latter a trammel for the agency’s independent work and thus argued for the inclusion of a flexibility clause enabling the agency to undertake tasks in thematic areas not covered by the MAF “where there are exceptional and compelling circumstances”.118 This clause was not taken up by the council. Nevertheless, the first MAF offers considerable room for manoeuvring for the agency, because it is broad in scope and lists nine rather wide thematic areas.119 Besides the permanent thematic area (“racism, xenophobia and related intolerance”), it contains the fight against discrimination based on the elements listed in the current Article 13 EC Treaty, also including discrimination of “persons belonging to minorities” and the phenomenon of “multiple discrimination”.120 Other important areas included in the MAF are those contained in Title 113 The commission has to consult the management board of the agency before proposing the MAF. See Art. 5, para. 1, of the founding regulation. 114 See Art. 5, para. 2, lit. c, of the founding regulation. 115 See Art. 5, para. 2, lit. b, of the founding regulation. The protection of persons belonging to minorities and gender equality may be considered as further crucial thematic areas because they are explicitly mentioned in the considerations as “essential elements for the protection of fundamental rights” (see Consideration No. 10 of the founding regulation). 116 Art. 5, para. 2, lit. c and d, of the founding regulation. The Annual Work Programme in return has to be in accordance with the MAF. See Art. 12, para. 6, lit. a, of the founding regulation. 117 See Consideration No. 11 and Art. 5, para. 3, of the founding regulation. 118 Amendment 11 of the parliament’s resolution. See the parliament’s legislative resolution of 17 January 2008 (P6_TA(2008)0014), which is based on the Cashman report A6-0514/2007 as of 20 December 2007. For the commission proposal (which was hardly changed by the council) see COM(2007) 525 final, 12 November 2007. 119 Critically in this regard, e.g., the House of Commons stressing that the MAF “require(s) some element of selection in order to determine priorities over a five year period. Instead, the Commission’s proposal appears to us to set out a catalogue of every issue which the Agency might deal with, including some whose connection with Community competence is doubtful.” See the respective conclusion in the 38th report of the select Committee on European scrutiny, point 2.19 (conclusion). 120 Both of these additional elements have been included on the initiative of the European Parliament. Less successful was the parliament’s proposal to add the thematic area of

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Gabriel N. Toggenburg IV of the EC Treaty (“asylum, immigration and integration of migrants”, “visa and border control”). Moreover, the first MAF contains the areas of “compensation of victims”,121 “information society and, in particular, respect for private life and protection of personal data” as well as “access to efficient and independent justice”. Finally the MAF lists “participation of the citizens of the Union in the Union’s functioning” as another thematic area of the agency’s activity. In conclusion, this first MAF provides the agency with a broad mandate. It might be useful for the agency to underline that it is going to set its own priorities and will therefore not deliver equally in all these areas.122 B. The Annual Work Programme The Annual Work Programme (AWP) fine-tunes the agency’s mandate for the next year. The agency shall carry out its tasks “in the light of its Annual Work Programme”.123 Work carried out at the request of the European Parliament, the council or the commission should not only be “appropriate”, but also compatible with the agency’s “priorities and its annual work programme”.124 The AWP itself has to be “in accordance” with the Multiannual Framework and the available financial and human resources. It “shall take into account” the research and statistical work of “the Community” (the work of the European Commission will supposedly be of special relevance in this context).125 It is also crucial that the AWP take into account the respective activities of the Council of Europe.126 The agency’s director is responsible for the preparation and implementation of the AWP.127 The AWP is adopted by the management board on the basis of a draft submitted by the agency’s director. However, before the management board may decide on the AWP it has to wait for the European Commission and the agency’s scientific committee to submit their respective opinions.128 Moreover, the FRP is called upon to

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“extreme poverty and social exclusion”. See Amendments 13 and 15 in the parliament’s resolution. Note also that the parliament was calling more specifically for the inclusion of “traditional national and linguistic minorities”. Note that the commission’s proposal was considerably wider in this respect, mentioning also “prevention of crime and related aspects relevant to the security of citizens”. Note that a (more hidden) function of the MAF could be seen in providing a matrix against which the external evaluation, to be commissioned before the end of 2011, is going to check the “impact of the Agency on the protection and promotion of fundamental rights” (see Art. 30, para. 3, lit. a) of the founding regulation). Art. 5, para. 4, of the founding regulation. Art. 4, para. 1, lit. c) of the founding regulation. Art. 12, para. 6, lit. a) of the founding regulation. See Art. 9 of the founding regulation: “In order to avoid duplication and in order to ensure complementarity and added value, the agency shall coordinate its activities with those of the Council of Europe, particularly with regard to its Annual Work Programme”. Art. 15, para. 4, lit. b, of the founding regulation. Art. 12, para. 6, lit. a, of the founding regulation.

Exploring the Fundament of a New Agent in the Field of Rights Protection: The make suggestions to the management board as concerns the drafting of the AWP.129 Finally the so-called National Liaison Officers—every member states nominates a government official as its main contact point for the agency to ensure close cooperation with the member states—have the right to submit opinions on the draft AWP to the director prior to its submission to the management board.130 The first AWP of the agency was finalized in April 2008, shortly after the agency was created and is therefore strongly influenced by its EUMC period. In this sense one can look at the agency’s second AWP—which was finalized in December 2008—as the first proper AWP of the FRA. In fact the new AWP introduces some conceptual innovations and is in any event drafted in a more convincing and easier way to grasp. It establishes a new integrated approach to the planning and implementation of the agency’s activities. All projects have three main components: (1) research and analysis, (2) communication and awareness raising and (3) networking and education. The new AWP is structured along the chapters of the Charter of Fundamental Rights: freedoms, equality, citizens’ rights and justice.131 The 2009 AWP entrusts the agency with 20 different projects, some of them nearly finished, others at their very beginning.132 The total budget of the agency for 2009 amounts to 17 million EUR. 129 Art. 10, para. 4, lit. a, of the founding regulation. 130 Art. 8, para. 1, of the founding regulation. However, neither an opinion by the liaison officers nor the FRP is necessary for the management board to adopt the AWP. 131 “Dignity” and “solidarity” are not explicitly singled out, but their scope is partly covered within the various projects. 132 These projects are “Protecting, respecting and promoting the rights of irregular immigrants in voluntary and involuntary return procedures” (examination of the existing legislation in the light of the ”Return Directive”, budget: 375,000 EUR); “The situation of irregular immigrants in the EU” (comparative study of the fundamental rights situation in areas such as health, education, housing and employment; budget: 220,000 EUR); “Respecting and promoting the right to freedom of movement for Roma EU citizens” (project developed together with the OSCE High Commissioner on National Minorities and the Council of Europe’s Commissioner for Human Rights; budget: 100,000 EUR); “Reporting on the situation concerning racism, xenophobia, anti-Semitism, Islamophobia, and related intolerance” (builds on the RAXEN-work and will lead to a comparative report to be published in 2009; budget: 550,000 EUR); “Human Rights Education—lessons from the Holocaust” (ongoing project together with Yad Vashem; budget: 40,000 EUR); “Protecting, respecting and promoting the rights of disabled mentally ill persons in the European Union” (a first stage will develop a legal study on the rights of disabled mentally, and in 2010, a second stage will develop a sociological study of the mentally across the EU; budget: 225,000 EUR); “Multiple and intersectional discrimination on grounds of gender, age and ethnic origin in the EU Member States” (this 3-year project focuses on the combined impact of ageism, sexism and racism particularly in the areas of employment and health; budget: 50,000 EUR); “The situation regarding racisms in sport in the European Union and positive initiatives to combat it” (ongoing project which will also prepare a programme of activities for the 2010 World Cup and EURO 2012; budget: 121,000 EUR); “The housing situation of Roma and Travellers in the EU” (ongoing project; budget: 137,500 EUR); “Good Practice Handbook for preventing and combating ethnic profiling” (on the basis of ongoing research this project will lead in a handbook to be published in 2009; budget: 75,000 EUR); “Engaging with Roma women” (coopera-

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Gabriel N. Toggenburg V. Last but Not Least: What Is the Relevance for Europe’s Minorities? To argue that a well-functioning FRA is of relevance to Europe’s minorities means to state the obvious. Persons belonging to minorities are very often in a disadvantaged situation and therefore in a special need for having fundamental rights applied properly. Moreover it is generally recognized that minority rights do, over large parts, form part of general human rights. Finally, the foregoing analysis showed that the agency has a pronounced interest in addressing specific minority situations. This can be seen in all three of the legal–political layers mentioned in the introduction. The agency’s ‘constitution’, its founding regulation, underlines that the “work of the Agency should continue to cover the phenomena of racism, xenophobia and anti-Semitism, the protection of rights of persons belonging to minorities [...] as essential elements for the protection of fundamental rights”.133 Also the agency’s second programmatic layer, the Multiannual Framework, lists discrimination “against persons belonging to minorities” as one of the thematic areas the agency should focus on between 2007 and 2012.134 It is true that the council did not accept the proposal of the parliament to explicitly specify here that this includes the protection of “national” or “traditional” minorities. However, there is no reason to therefore interpret the agency’s notion of ‘minorities’ in a narrow way. Because there is in EU law (just as in international law in general) no definition of what a minority is (and who belongs to one), EU texts generally refer tion with a grassroots network and the OSCE High Commissioner on National Minorities and the Council of Europe; budget: 25,000 EUR); “EU-MIDIS: European Union Minorities and Discrimination Survey” (ongoing project addressing the lack of comparable criminal justice data on racist crime in the EU; budget: 284,000 EUR); “Pilot Media Project” (dissemination effort of a completed projected that analyzed how migrants and minorities are presented in a sample of print media in selected member states; budget: 31,700 EUR); “Co-operation with Equal Treatment Public Bodies” (aims at organizing modalities of cooperation in general and within specific projects; budget: 40,000 EUR); “Racism and social marginalisation: potential pathways to violent radicalisation” (ongoing project based on surveys in different schools in three member states; budget: 105,000 EUR); “Media Diversity Toolkit” (building on its existing toolkit, the agency now wants to reach out to a wider range of media organizations; budget: 30,000 EUR); “Indicators for the implementation, protection, respect and promotion of the rights of the child” (ongoing project that is going to result in a comparative report to be published in 2009; budget: 70,000 EUR); “Mapping the resource capacity of human rights NGOs across the EU” (follow-up project leading to a comparative study; budget: in-house resources); “Accessing the right to vote: problems and solutions for vulnerable categories of voters, including the homeless, the illiterate, members of minorities, and persons with disabilities” (research will examine legal measures facilitating the right to vote for vulnerable groups and legal developments as regards “civic citizenship”; budget: 275,000 EUR); “Accessing efficient and independent justice” (in a first phase, the project will engage in a mapping exercise as regards the legislation in the member states; in 2010, a second phase will look from a sociological perspective into concrete experiences of access to justice; budget: 245,000 EUR). 133 See Consideration No. 10 of the founding regulation. 134 See Art. 2, lit. b, of the MAF.

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Exploring the Fundament of a New Agent in the Field of Rights Protection: The rather vaguely to “migrants and minorities”. There can be, though, no doubt that traditional minorities are also addressed in the framework of the EU’s fight against discrimination and social exclusion.135 At the level of annual planning and implementation, the agency shows special interests in a variety of minorities. The director of the agency underlined that the goal of the Union’s future initiatives should be to “ensure the effective implementation of policies aimed at improving the material and human rights situation of persons belonging to minorities across the European Union”.136 The mandate of the agency as it was described in this article is well suited to contributing to this aim. In fact, in this regard, the agency can build on the work delivered by its forerunner, the EUMC. The latter has addressed unequal treatment in employment, housing and education.137 the fight against ethnic discrimination,138 racist violence,139 the attitudes of majorities vis-á-vis minorities,140 the disadvantages experienced by migrants and minorities in the area of education,141 the appearance of minorities in the media,142 the situation of

135 For more detail on the EU’s relationship with (national) minorities, see Gabriel N. Toggenburg, “The European Union vís-à-vís Minorities: A Play in Three Parts and an Open End”, in Csaba Tabajdi (ed), Pro Minoritate Europae—Minorities of Europe Unite, 2009 (study book for the 25th anniversary of the Minorities-Intergroup of the European Parliament), 162–205. Admittedly a more outspoken engagement of the EU for national minorities is contested at the political level. The latest example for the tensions involved when drafting an EU document focusing on national minorities was the motion for a resolution tabled by the president of the intergroup in autumn 2008 to spring 2009. 136 Taken from Mr Kjaerum’s speech at the meeting with the Advisory Committee of the FCNM on 9 October 2008 in Strasbourg (available online at the agency’s website). 137 See for instance the Report on Racism and Xenophobia in the Member States of the EU, which builds on data of 2005 and 2006 (2007, available at the agency’s website). 138 See for instance the report Trends and Development 2997-2005: Combating Ethnic and Racial Discrimination and Promoting Equality in the European Union (2007, available at the agency’s website). 139 See the reports Policing Racist Crime and Violence (2005) and Racist Violence in 15 EU Member States (2005). Compare also Racism, Football and the Internet (2002). The reports are available at the agency’s website. 140 See the report Majorities’ Attitudes towards Migrants and Minorities: Key findings from the Eurobarometer and the European Social Survey (2005, available at the agency’s website). 141 See the Comparative Report: Migrants, Minorities and Education (2001, available at the agency’s website). 142 See the report Racism, Xenophobia and the Media: Towards respect and understanding of all religions and cultures (2006, available at the agency’s website) or the report Racism and Cultural Diversity in the Mass Media (2002, available at the agency’s website).

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Gabriel N. Toggenburg Muslims in Europe,143 manifestations of anti-Semtism144 or the situation of Roma.145 Recent reports like Community Cohesion at Local level: Addressing the Needs of Muslim Communities (March 2008) or the agency’s Incident Report on Violent Attacks against Roma in Italy (August 2008), reacting swiftly to the events in Italy, show that the new agency, from its beginning, also dedicates special importance to minority issues. This becomes even more clear when looking at the new EU-MIDIS study. EU-MIDIS is considered the first ever EU-wide survey of immigrant and ethnic minority groups’ experiences of discrimination and victimization in everyday life. EUMIDIS involved face-to-face interviews with 23,500 persons from selected immigrant and ethnic minority groups in all 27 member states of the EU. A total of 5,000 persons from the majority population were also interviewed to compare the results. The survey was used to address the lack of reliable and comparable data on minorities in many EU countries and examine experiences of discriminatory treatment, racist-crime victimization, awareness of rights and the reporting of complaints. The results of the project are to be released throughout 2009 in a series of so-called “Data in Focus Reports” on specific minority groups as well on key issues examined in the survey. The full results of the survey will be presented at the FRA Fundamental Rights Conference in December 2009 in Stockholm, held under the auspices of the Swedish Presidency of the EU. The first Data in Focus Report was released in early 2009—it deals with the Roma. Of all the groups surveyed by the FRA survey, the Roma emerged as the group most vulnerable to discrimination and crime. In fact, the report reveals a bleak picture for the estimated 12 million Roma in the EU. Roma reported the highest overall levels of discrimination across all areas surveyed. Of Roma, 66% to 92% (depending on the country) did not report their most recent experience of discrimination to any competent authority, and 65% to 100% of the Roma respondents reported lack of confidence in law enforcement and justice structures.146 The second Data in Focus Report was released in the late spring of 2009. It focused on Muslims. Of the Muslim respondents, 31% were discriminated against in the past 12 months and 11% experienced a racist crime. In comparison, of all ethnic groups surveyed within EU-MIDIS, 37% experienced discrimination, and 12% had been a victim of a racist crime. Interestingly, of those Muslim respondents who experienced discrimination in the past 12 months, the majority believed that this was mainly due 143 See the reports Muslim in the European Union: Discrimination and Islamophobia (2006), The impact of 7 July 2005 London bomb attacks on Muslim Communities in the EU (2005), Reports on Anti-Islamic reactions within the European Union after the acts of terror against the USA (2002). The reports are available at the agency’s website. 144 See report Manifestations of Antisemtism in the EU 2002-2003 (2004) or The fight against Antisemtism and Islamophobia: Bringing Communities together (European Round Tables Meetings) (2003). The reports are available at the agency’s website. 145 See the reports Roma and Travellers in Public Education (2006) and Breaking the Barriers—Romani Women and Access to Public Health Care (2003). The reports are available at the agency’s website. 146 The report The Roma can be downloaded from the FRA website—it is available in 10 especially relevant languages.

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Exploring the Fundament of a New Agent in the Field of Rights Protection: The to their ethnic background. Only 10% stated that they thought that the discrimination they experienced was based solely on their religion. However, 51% of Muslims compared to 20% of non-Muslim ethnic minorities surveyed believe that discrimination on grounds of religion or belief is “very” or “fairly” widespread.147 Also, the current Annual Work Programme 2009 confirms that the agency is concerned with minority issues.148 That national minorities as such are not explicitly singled out as a special target group corresponds to the very fact that the EU has no mandate to get involved with issues of group rights or constitutional engineering, issues regularly associated with the protection of national minorities.149 This, however, does not at all mean that the agency has nothing to contribute when it comes to the needs of persons belonging to such minorities.

147 The report Muslims can be downloaded from the FRA website. 148 See note 136. 149 See, in this regard, the model of Inverted Diversity Pyramids, which tries to describe the division of labour and competences between the EU and its member states: Gabriel N. Toggenburg, “Who is managing ethnic and cultural diversity within the European Condominium? The moments of entry, integration and preservation”, 4 JCMS (2005), 717–737.

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