Europe of Human Rights

Is there a need to amend the Regulation establishing The EU Agency for Fundamental Rights in order to extend the Agency’s mandate to the areas of judicial cooperation in criminal matters and police cooperation? According to the Commission no such need exists. However, in the European Parliament voices have been raised that in order to extend the current Multi-annual Framework for the Agency, first amendments to the Regulation should be introduced. This may take a while, which would be especially unfortunate considering the numerous initiatives in the area of freedom, security and justice presented recently by the Commission.

 

The European Union Agency for Fundamental Rights (FRA) is an advisory body of the European Union. It was established in 2007 by the Regulation (EC) No. 168/2007 and has proved to be a successful research institute, regularly issuing reports in chosen interest fields. These among others include issues such as: access to justice, child rights, minorities, persons with disabilities, LGBT rights, racism and xenophobia. Since the creation of FRA the environment has changed. Due to the abolition of the pillar structure, the EU gained competences in the areas of judicial cooperation in criminal matters and police cooperation. Therefore, the FRA mandate should be expanded in order for the Agency to be able to address these issues.

From the legal point of view, this could be done without the need to change the law. The regulation which established FRA was based on Article 308 of the former EC Treaty. After the entry into force of the Lisbon Treaty this article became Article 352 of the Treaty of the Functioning of the European Union (TFUE). The former “third pillar” has now become chapters 4 (“Judicial cooperation in criminal matters”) and 5 (“Police cooperation”) of the TFUE. Thus, there is a strong case for arguing that the proposal aimed at adding the areas of judicial cooperation in criminal matters and police cooperation to the thematic areas of Multi-annual Framework which determines the thematic areas of activity of the Agency, is based not on the Regulation itself, but the Article 352 of the TFUE. This would mean that the Treaty provisions enable the Council to amend their decision regarding the Multi-annual Framework for the Agency.

Additionally, the original grounds for establishing the Agency further support the idea for expanding the mandate. According to the Commission, stakeholders consulted before putting forward the proposal for the creation of the Agency expressed a strong wish for the areas of judicial cooperation and police cooperation to be included in the scope of the Agency’s activities.

Finally, to put it plainly, the creation of unnecessary obstacles to the functioning of the Agency seems simply unreasonable. European Union policies in the area of freedom, security and justice are explicitly designed to provide ‘minimum judicial standards’ in respect to cross-border cooperation across Europe. Across many areas of EU policies, reviews of ‘third pillar’ issues require consistent focus on fundamental rights. In the area of cross-border cooperation on police and judicial matters, it is clear that potential threats to fundamental rights exist. Moreover, the Commission is now working on regulating criminal matters and the legislative process is ongoing. The importance of the protection and promotion of fundamental rights means that it is necessary for the Agency fully to address these issues. The current Multi-Annual Framework for the Agency includes many issues closely related to the ‘third pillar’, particularly racism and xenophobia, discrimination (on many grounds), compensation of victims or access to efficient and independent justice. But, if the Agency is not empowered to address issues in the area of police- and judicial cooperation in criminal matters, it will be less able to fulfill its role.

Dominika Bychawska-Siniarska and Zuzanna Warso, “Europe of Human Rights”

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