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Published online by Cambridge University Press: 27 October 2017
It has been argued in many places, and in different forms, that the establishment between the EU Member States of an internal market, and now of an area of freedom, security and justice, requires the European Union to legislate in the field of fundamental rights, either in order to avoid a form of regulatory competition between the Member States or in order to ensure mutual trust allowing for mutual cooperation between judicial, police and administrative national authorities. ‘Negative integration’, in the form of the lowering of barriers to the movement of goods, services, persons and capital, or in the form of mutual recognition of judicial decisions or exchange of information between national authorities, should thus be followed with, or compensated by, ‘positive integration’, in the form of the setting of common standards applicable throughout the EU Member States. The EU Charter of Fundamental Rights, moreover, provides the baseline from which to act, since it represents a set of values which all the Member States have agreed to consider as fundamental. The question (so it would seem) is now that of implementing the Charter, by using the legal bases provided for in the treaties to the fullest extent possible.
1 In this paper, unless otherwise specified, the expression ‘European Union’ will be used in the generic sense, to refer to both the European Union and the European Community, which technically of course are different international organisations, although they share common institutions.
2 There is an important difference between defining the limits which, if they are crossed, will result in violations of rights, on the one hand (the end to be achieved), and the choice of how to arrive at a situation where rights are fully respected, on the other hand (the means). It is relatively easy, for instance, to identify the cases in which freedom of expression is threatened by the excessive concentration of the media; how to ensure the pluralism of the media and a sufficient diversity in the viewpoints presented to the public may be more delicate. Similarly, while we may agree on limits beyond which there will be prison overcrowding threatening the right of detainees not to be subjected to inhuman and degrading treatment or punishment (in terms, for instance, of the number of prisoners per available square metre), how to reform criminal policy and the management of prisons in order to avoid such overcrowding may be less evident.
3 Council Regulation (EC) 168/2007 of 15 Feb 2007 establishing a European Union Agency for Fundamental Rights, OJ 2007 L 53/1.
4 This Monitoring Centre, sometimes referred to as the Vienna Observatory, was created by Council Regulation (EC) 1035/97 of 2 June 1997 establishing a European Monitoring Centre on Racism and Xenophobia, OJ 1997 L 151/1 (since amended by Regulation (EC) 1652/2003, OJ 2003 L 245/33).
5 SEC(2005)849, of 30 June 2005, 8.
6 Case 29/69, Stauder v Ulm [1969] ECR 419; Case 11/70, Internationale Handelsgesellschaft v Einfuhr- und Vorratsstelle Getreide [1970] ECR 1125; Case 4/73, Nold v Commission [1974] ECR 491; Case 36/75, Rutili v Minister for the Interior [1975] ECR 1219; Case 44/79, Hauer v Land Rheinland-Pfalz [1979] ECR 3727; Case 5/88, Wachauf v Germany [1989] ECR 2609.
7 See the decisions of the German Constitutional Court (Bundesverfassungsgericht) in Solange I [1974] 2 CMLR 540 and Solange II [1987] 3 CMLR 225, as well as the Bananas II Judgment, Order of 7 June 2000, 2 BvL 1/97, (2000) 53 Neue Juristische Wochenschrift 3124. The Corte costituzionale in Italy also threatened not to recognise the primacy of EC law where this would risk infringing fundamental rights listed in the Italian Constitution: see Frontini v Ministero delle Finanze [1974] 2 CMLR 372; Decision 170 of 8 June 1984 in SpA Granital v Amministrazione delle Finanze and Spa Fragd v Amminstrazione delle Finanze, Decision. 232 of 21 Apr 1989 (1989) 72 RDL.
8 See, for an excellent discussion of the relationship between the protection of fundamental rights and the question of competences, Eeckhout, P ‘The EU Charter of Fundamental Rights and the Federal Question’ (2002) 39 CML Rev 945 Google Scholar.
9 In favour of such a development see De Schutter, O ‘Les droits fondamentaux dans le projet européen. Des limites à l’action des institutions à une politique des droits fondamentaux’ in De Schutter, O and Nihoul, P (eds) Une Constitution pour l’Europe. Réflexions sur les transformations du droit de l’Union européenne (Brussels, Larcier, 2004) 81 Google Scholar.
10 The Hague Programme: Strengthening Freedom, Security and Justice in the European Union, Annex I to the Conclusions of the Brussels European Council of 4–5 Nov 2004, EU Council doc. 14292/04, para 2 of the general orientations.
11 That is not to say that where the line is traced will always be easily determined. On the contrary, commentators have long recognised the difficulty of defining the frontier beyond which the general principles of law, including fundamental rights for which the European Court of Justice imposes respect, shall not apply. See especially Weiler, J ‘The European Court at a Crossroads: Community Human Rights and Member State Action’ in Du droit international au droit de l’intégration. Liber amicorum Pierre Pescatore (Baden-Baden, Nomos Verlagsgesellschaft, 1987) 821 Google Scholar; Temple Lang, J ‘The Sphere in Which Member States are Obliged to Comply with the General Principles of Law and Community Fundamental Rights Principles’ (1991) 2 LIEI 23 Google Scholar; Weiler, J ‘Fundamental Rights and Fundamental Boundaries: On Standards and Values in the Protection of Human Rights’ in Neuwahl, N and Rosas, A (eds), The European Union and Human Rights (The Hague-Boston-London, Martinus Nijhoff, Kluwer, 1995) 56 Google Scholar; and Lenaerts, K ‘Le respect des droits fondamentaux en tant que principe constitutionnel de l’Union européenne’ in Mélanges en hommage à Michel Waelbroeck (Brussels, Bruylant, 1999) 423 Google Scholar.
12 The expression is borrowed from Leibfried, S and Pierson, P ‘Semi-sovereign Welfare States: Social Policy in a Multitiered Europe’ in Leibfried, S and Pierson, P (eds), European Social Policy: Between Fragmentation and Integration (Washington DC, Brookings Institution, 1995)Google Scholar.
13 The fundamental rights protected by the ECJ as general principles of law (and, now, by reference to Art 6(2) of the EU Treaty) apply to the acts of the EU institutions (see, eg, Case 374/87, Orkem v Commission [1989] ECR 3283, para 31), as well as to the acts of the EU Member States when they implement Union law (Case 222/84, Johnston v Chief Constable of the RUC [1986] ECR 1651) or when they rely on an exception allowed under Union law (see, eg, Case C–112/00, Schmidberger [2003] ECR I–5659; or Case C–36/02, Omega Spielhallen [2004] ECR I–9609).
14 In April 2005, the Commission adopted a Communication by which it seeks to improve the compliance of its legislative proposals with the requirements of the Charter (Communication from the Commission, Compliance with the Charter of Fundamental Rights in Commission legislative proposals. Methodology for systematic and rigorous monitoring, COM(2005)172 final of 27 Apr 2005). On 15 June 2005, it adopted a new set of guidelines for the preparation of impact assessments (SEC(2005)791, 15 June 2005). Although the new guidelines are still, as were the former impact assessments (see Communication of the Commission on Impact Assessment, COM(2002)276 of 5 June 2002), based on a division between economic, social and environmental impacts, the revised set of guidelines pays much greater attention to the potential impact of different policy options on the rights, freedoms and principles listed in the EU Charter of Fundamental Rights (indeed, a specific report was commissioned by the European Commission (DG Justice, Freedom and Security) to EPEC (European Policy Evaluation Consortium): see EPEC, The Consideration of Fundamental Rights in Impact Assessment. Final Report, December 2004, 61 pages). On this question see generally De Schutter, O ‘Mainstreaming Human Rights in the European Union’ in Alston, P and De Schutter, O (eds), Monitoring Fundamental Rights in the EU. The Contribution of the Fundamental Rights Agency (Oxford, Hart Publishing, 2005)Google Scholar; and House of Lords European Union Committee, Human rights proofing of EU legislation, Report with evidence, HL Paper 67, 16th report of the session 2005-2006.
15 Directive 2001/37/EC of the European Parliament and of the Council of 5 June 2001 on the approximation of the laws, regulations and administrative provisions of the Member States concerning the manufacture, presentation and sale of tobacco products, OJ 2001 L 194/26); Directive 2003/33/EC of the European Parliament and of the Council of 26 May 2003 on the approximation of the laws, regulations and administrative provisions of the Member States relating to the advertising and sponsorship of tobacco products, OJ 2003 L 152/16.
16 Case C–491/01, The Queen v Secretary of State for Health, ex parte British American Tobacco (Investments) Ltd and Imperial Tobacco Ltd [2002] ECR I–11453, para 67. This position was confirmed in two judgments of 14 Dec 2004: Case C–434/02, Arnold André GmbH & Co KG v Landrat des Kreises Herford [2004] ECR I–11825; Case C–210/03, Swedish Match AB and Swedish Match UK Ltd v Secretary of State for Health [2004] ECR I–11893. Compare this with Case C–376/98, Germany v Parliament and Council [2000] ECR I–2247 (where the Court annuled Directive 98/43/EC of the European Parliament and of the Council of 6 July 1998 on the approximation of the laws, regulations and administrative provisions of the Member States relating to the advertising and sponsorship of tobacco products, OJ 1998 L 213/9, since that Directive did not ensure free movement of products which are in conformity with its provisions, and therefore could not be said to contribute to the establishment of the internal market as required for Art 95 EC (then Art 100a of the EC Treaty) to be relied upon as a legal basis).
17 Preamble, 7th Recital, to Directive 95/46/EC of the European Parliament and of the Council of 24 Oct 1995 on the protection of individuals with regard to the processing of personal data and on the free movement of such data, OJ 1995 L 281/31. This Directive too is adopted on the basis of Art 100a of the EC Treaty (now Art 95 EC).
18 See, in particular, on the risks of such ‘regulatory competition’ Scharpf, F Governing in Europe. Effective and Democratic? (Oxford, Oxford University Press, 1999) ch 3CrossRefGoogle Scholar.
19 Barbou des Places, S and Deffains, B ‘Cooperation in the Shadow of Regulatory Competition: the Case of Asylum Legislation in Europe’ (2004) 23 International Review of Law and Economics 345 CrossRefGoogle Scholar. See also Barbou des Places, S Evolution of Asylum Legislation in the Field of Asylum. Insights from Regulatory Competition Theory, Working Paper of the European University Institute, Florence, RSC No. 2003/16.
20 As provided for in the ‘Dublin II’ Regulation implementing the Dublin Convention of 15 June 1990 into European Community law: Council Regulation 343/2003 of 18 Feb 2003 establishing the criteria and mechanisms for determining the Member State responsible for examining an asylum application lodged in one of the Member States by a third-country national, OJ 2003 L 50/1, and Commission Regulation 1560/2003 laying down detailed rules for the application of Regulation no 343/2003, OJ 2003 L 222/3. For the initial proposal of the Commission see COM(2001)447, OJ 2001 C 304/192.
21 Proposal for a Council Directive on minimum standards on procedures in Member States for granting and withdrawing refugee status (COM(2000)578 final of 20 Sept 2000, OJ 2001 C 62/231. The directive has now been adopted: Council Directive 2005/85/EC on minimum standards on procedures in Member States for granting and withdrawing refugee status, OJ 2005 L 326/13.
22 The case law of the ECJ has been confirmed by Art 6(2) of the EU Treaty, according to which ‘[t]he Union shall 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’.
23 This possibility has been recognised by the ECJ with respect to the permissible restrictions on the free movement of goods (Case C–368/95, Familiapress [1997] ECR I–3689, para 24; Case C–112/00, Schmidberger [2003] ECR I–5659) and on the free provision of services (Case 353/89, Commission v the Netherlands [1991] ECR I–4089, para 30; Case C–288/89, Stichting Collectieve Antennevoorziening Gouda et al. v Commissariaat voor de Media [1991] ECR I–4007, paras 9 and 10).
24 Both under international law and under EU law, the national authorities are obliged to refuse to cooperate with the authorities of another Member State where this would lead to a violation of a fundamental right. While this follows from the fundamental rights jurisprudence of the ECJ referred to here, it is further confirmed by the ‘fundamental rights exception’ clauses inserted in the recent instruments adopted under Title VI EU, especially in those instruments which are based on the principle of mutual recognition. See Council Framework Decision of 13 June 2002 on the European arrest warrant and the surrender procedures between Member States, OJ 2002 L 190/1, 12th Recital of the Preamble and Art 1(3) (‘This Framework Decision shall not have the effect of modifying the obligation to respect fundamental rights and funda mental legal principles as enshrined in Article 6 of the Treaty on European Union’); Council Framework Decision 2003/577/JHA of 22 July 2003 on the execution in the European Union of orders freezing property or evidence, OJ 2003 L 196/45, Art 1, second sentence (stating that the Framework Decision ‘shall not have the effect of amending the obligation to respect the fundamental rights and fundamental legal principles as enshrined in Article 6 of the Treaty’), as well as, with regard to the ne bis in idem principle, the observance of which may constitute a ground for non-recognition or non-execution: Art 7(1)(c); Council Framework Decision 2005/214/JHA of 24 Feb 2005 on the application of the principle of mutual recognition to financial penalties, OJ 2005 L 76/16, 5th and 6th Recitals of the Preamble as well as Arts 3 and 20(3) (‘Each Member State may, where the certificate referred to in Article 4 gives rise to an issue that fundamental rights or fundamental legal principles as enshrined in Article 6 of the Treaty may have been infringed, oppose the recognition and the execution of decisions’); Council Framework Decision 2006/783/JHA of 6 Oct 2006 on the application of the principle of mutual recognition to confiscation orders, OJ 2006 L 328/59, 3rd Recital of the Preamble and Art 1(2).
25 Case 353/89, Commission v Netherlands [1991] ECR I–4089, para 30; Case 288/89, Stichting Collectieve Antennevoorziening Gouda et al. v Commissariaat voor de Media [1991] ECR I–4007, para 23; Case C–148/91, Vereniging Veronica Omroep Organisatie v Commissariaat voor de Media [1993] ECR I–513, paras 9 and 10; and see, more recently, Case C–368/95, Familiapress [1997] ECR I–3689, para 24.
26 Case C–36/02, Omega, above n 13, para 37.
27 Case C–112/00, Schmidberger, above n 13, paras 89–90.
28 Case C–67/96, Albany International BV [1999] ECR I–5751, para 63.
29 OJ 1992 C 191/91.
30 For more detailed explorations of these issues, see the collection of essays in Dougan, M and Spaventa, E (eds) Social Welfare and EU Law (Oxford and Portland, Hart Publishing, 2005)Google Scholar.
31 In doctrine, see, inter alia, Scholsem, J-C ‘A propos de la circulation des étudiants: vers un fédéralisme financier européen?’ (1989) 3/4 Cahiers de Droit Européen 306 Google Scholar; Van der Mei, AP Free Movement of Persons Within the EC—Cross-border Access to Public Benefits (Oxford, Hart Publishing, 2003)Google Scholar; Davies, G ‘Welfare as a Service’ (2002) 29 LIEI 27 Google Scholar.
32 Case 293/83, Gravier v City of Liège [1985] ECR 593, 604.
33 Case C–209/03, Bidar [2005] ECR I–2119, paras 65–66 of the Opinion.
34 According to the characterisation of the argument by AG Jacobs in his Opinion in Case C–147/03, Commission v Austria [2005] ECR I–5969, para 36 of the Opinion.
35 Case C–158/96, Kohll [1998] ECR I–1931 (where a Luxembourg national challenged the refusal of the Luxembourg authorities to reimburse dental treatment sought for his daughter in Germany, despite the fact that this had been recommended by his doctor, since receiving the same orthodontic treatment in Luxembourg would have required a longer waiting time); Case C–120/95, Decker [1998] ECR I–1831 (where the Court was asked to decide whether the imposition of a prior authorisation for the purchase of a medical product abroad—in that case, a pair of spectacles with corrective lenses—was compatible with the rules of the EC Treaty pertaining to the free movement of goods). See further on these cases below n 49.
36 Case C–368/98 Vanbraekel [2001] ECR I–5363 (concerning a Belgian national who sought orthopaedic surgery in France for a disease in his knees, despite the initial refusal by the sickness fund to grant the authorisation sought in the absence of a supporting opinion from a doctor practising in a national university institution, as was required under Belgian law, and who thereafter sought to be reimbursed: the ECJ took the view that the level of reimbursement was to be defined by the competent (home) state, rather than according to the legislation of the host state).
37 Kohll, above n 35, para 41; Decker, above n 35, para 39; Vanbraekel, above n 36, para 47. See Hatzopoulos, V ‘Killing National Health and Insurance Systems but Healing Patients? The European Market for Health-care Services after the Judgments of the ECJ in Vanbraekel and Peerbooms’ (2002) 39 CML Rev 683; Van der Mei, VP ‘Cross-Border Access to Health Care within the European Union: Some Reflections on Geraets-Smits and Peerbooms and Vanbraekel’ (2002) 09 Maastricht Journal of European and Comparative Law 1 CrossRefGoogle Scholar; or, for broader perspectives on the significance of treating health care as services and medical products as goods circulating freely within the internal market see Jorens, Y ‘The Right to Health Care Across Borders’ in Baeten, R, McKee, M and Mossialos, E (eds) The Impact of EU Law on Health Care Systems (Brussels, PIE Peter Lang, 2003)Google Scholar; and, especially, Hervey, T and McHale, JV Health Law and the European Union (Cambridge, Cambridge University Press, 2004) ch 4CrossRefGoogle Scholar.
38 See the Opinion of AG Jacobs in Case C–147/03, Commission v Austria [2005] ECR I–5969, paras 33–34. AG Jacobs noted that, in contrast to health care, education has not been considered to constitute a ‘service’ in the meaning of Art 49 EC; furthermore, Council Directive 93/96/EEC of 29 Oct 1993 on the right of residence for students (OJ 1993 L 317/59) and, more recently, Directive 2004/38/EC of the European Parliament and of the Council of 29 Apr 2004 on the right of citizens of the Union and their family members to move and reside freely within the territory of the Member States amending Regulation (EEC) No 1612/68 (OJ 2004 L 158/77), allow the EU Member States to protect themselves from an influx of students from other Member States (at least when they have not legally resided in their territory for a continued period of 5 years), since such students may be excluded from being entitled to maintenance aid for studies consisting in student grants or student loans.
39 Case C–147/03, Commission v Austria [2005] ECR I–5969, para 64. As summarised by AG Jacobs, the argument of Austria was that the central aim of its education policy ‘is to grant unrestricted access to all levels of studies. That policy choice is meant to improve the percentage of Austrian citizens with a higher education qualification, which, according to Austria, is currently amongst the lowest in the EU and the Organisation for Economic Co-operation and Development (“OECD”‘). Bearing that objective in mind, if the conditions of access to higher education applicable in other Member States are not taken into consideration, there is a risk of the more liberal Austrian system being flooded by applications from students not admitted to higher education in more restrictive Member States. That influx would entail serious financial, structural and staffing problems and pose a risk to the financial equilibrium of the Austrian education system and, consequently, to its very existence [such a risk being] mainly posed by German applicants who have failed to fulfil the required conditions to access certain university studies in Germany’: see paras 26–27 of the Opinion.
40 Case C–65/03, Commission v Belgium [2004] ECR I–6427.
41 The Court itself imposed that, as citizens of the Union, even students should in principle benefit from the requirement of non-discrimination on grounds of nationality imposed by Art 12 EC, and thus should be afforded the same social advantages as those afforded to the nationals in the states in which they pursue their studies. See Case C–184/99, Grzelczyk [2001] ECR I–6193 (where the Court took the view that, since Directive 93/96 aims at preventing students from becoming an ‘unreasonable’ burden on the public finances of the host Member State, it therefore ‘accepts a certain degree of financial solidarity between nationals of a host Member State and nationals of other Member States, particularly if the difficulties which a beneficiary of the right of residence encounters are temporary’); see also Case C–224/98, D’Hoop [2002] ECR I–6191.
42 Commission v Austria, above n 39, para 66.
43 Case C–209/03 Bidar [2005] ECR I–2119.
44 Ibid, para 56.
45 Opinion of AG Geelhoed in Bidar, above n 43, para 65.
46 AG Geelhoed noted in his Opinion, ibid, that ‘if it is taken to its logical conclusion, this argument implies that if parents have not contributed to taxation or only made a modest contribution, their children would not be eligible for maintenance assistance, whereas students whose parents have contributed significantly would be entitled to such assistance. It does not seem probable that the United Kingdom would seriously accept the social discrimination inherent in this position’: para 65.
47 One very significant step in this development was Case C–85/96, Martínez Sala v Freistaat Bayern [1998] ECR I–2691.
48 In Kohll, above n 35, the Court concludes that Arts 59 and 60 of the EC Treaty preclude national rules such as Art 20 of the Luxembourg Codes des Assurances Sociales (Social Insurance Code) and Arts 25 and 27 of the statutes of the Union des caisses de maladie (UCM) under which reimbursement, in accordance with the scale of the state of insurance, of the cost of dental treatment provided by an orthodontist established in another Member State is subject to authorisation by the insured person’s social security institution. Implicitly relying on the need to protect the right of access to health care, Luxembourg and other intervening governments argued that the requirement of prior authorisation constituted the only effective and least restrictive means of controlling expenditure on health and balancing the budget of the social security system. However, while recognising that the EC Treaty permits Member States to restrict the freedom to provide medical and hospital services ‘in so far as the maintenance of a treatment facility or medical service on national territory is essential for the public health and even the survival of the population’ (para 51), the Court took the view that the rules at issue had not been demonstrated to be ‘necessary to provide a balanced medical and hospital service accessible to all’, or that they were ‘indispensable for the maintenance of an essential treatment facility or medical service on national territory‘ (para 52). Those rules, therefore, were not justified on grounds of public health. In the companion case of Decker, also above n 35, the Court declared that national rules under which a social security institution of a Member State refuses to reimburse an insured person on a flat-rate basis the cost of a pair of spectacles with corrective lenses purchased from an optician established in another Member State, on the ground that prior authorisation is required for the purchase of any medical product abroad, are precluded under Arts 30 and 36 EC. That conclusion followed from the admission by the Luxembourg government that the reimbursement at a flat rate of the cost of spectacles and corrective lenses purchased in other Member States would have no effect on the financing or balance of the social security system. In both cases, therefore, there was a conflict between national rules ostensibly portrayed as seeking to protect the right to health care and the freedom to provide service or the free movement of goods as protected in the EC Treaty; that conflict was resolved in favour of the economic freedoms of the Treaty, in the absence of a demonstrated impact of those freedoms on the ability of the state effectively to protect the right to health.
49 In fact, the idea that the conditions are created in the EU for a ‘race to the bottom’ in the area of social rights has been seriously questioned: Barnard, C ‘Social Dumping and the Race to the Bottom: Some Lessons for the European Union from Delaware?’ (2000) 25 EL Rev 57 Google Scholar.
50 Certain situations are difficult to interpret in the absence of a clear consensus on what represents ‘progress’ or ‘regression’ in the field of fundamental rights. When the Netherlands and Belgium partially decriminalised active euthanasia in 2001 and 2002 respectively, this created the possibility for patients residing in other Member States to travel to those countries in order to benefit from the provision of such a medical service. In that context, one is left to wonder whether the prohibition of euthanasia in other EU Member States still has a significance other than at the symbolic level, or for the residents in those states who cannot afford to travel abroad to seek euthanasia there.
51 It is unnecessary to draw up an exhaustive list of such legal bases. But a number of examples may be given. It is on the basis of Art 13 EC, now revised by the Treaty of Nice, that the Council adopted Directive 2000/43/EC of 29 June 2000 implementing the principle of equal treatment between persons irrespective of racial or ethnic origin (OJ 2000 L 180/22) and Directive 2000/78/EC of 27 Nov 2000 establishing a general framework for equal treatment in employment and occupation (OJ 2000 L 303/16). On the basis of Art 18 EC, which seeks to facilitate the exercise of the right of every citizen of the Union to move and reside freely, the European Parliament and the Council adopted Directive 2004/38/EC of 29 Apr 2004 on the right of citizens of the Union and their family members to move and reside freely within the territory of the Member States amending Regulation (EEC) 1612/68 and repealing Directives 64/221/EEC, 68/360/EEC, 72/194/EEC, 73/148/EEC, 75/34/EEC, 75/35/EEC, 90/364/EEC, 90/365/EEC and 93/96/EEC, OJ 2004 L 158/77. Acting on the basis of Arts 63 and 64 EC, the Council adopted Directive 2003/86/EC of 22 Sept 2003 on the right to family reunification (OJ 2003 L 251/12) and Directive 2003/9/EC of 27 Jan 2003 laying down minimum standards for the reception of asylum-seekers (OJ 2003 L 31/18). And it is on the basis of Art 31 EU that the European Commission proposed the adoption of a Council Framework Decision on certain procedural rights in criminal proceedings throughout the EU (COM(2004) 328 final, 28 Apr 2004). For other attempts to identify a list of competences which are attributed to the EU and which could be relied upon to adopt instruments implementing fundamental rights in the EU legal order, see EU Network of Independent Experts on Fundamental Rights, Position paper on the Human Rights Agency, 16 Dec 2004, available at cridho.cpdr.ucl.ac.be/DownloadRep/Reports2004/CFR-CDF.Agency16.12.04.pdf, n 15; De Schutter, O and Alston, P ‘Introduction: Addressing the Challenges Confronting the EU Fundamental Rights Agency’ in Alston, P and De Schutter, O (eds), above n 14, 1 Google Scholar; De Schutter, O ‘The Implementation of Fundamental Rights through the Open Method of Coordination’ in De Schutter, O and Deakin, S (eds) Social Rights and Market Forces. Is the Open Coordination of Employment and Social Policies the Future of Social Europe? (Brussels, Bruylant, 2005) 279 Google Scholar.
52 I am indebted to the work done in this direction by Chuck Sabel and Jonathan Zeitlin: see Sabel, CF and Zeitlin, J ‘Learning from Difference: The New Architecture of Experimentalist Governance in the European Union’, unpublished draft, Mar 2007 (on file with the author)).
53 See above nn 35 and 49.
54 Hervey, T and McHale, JV, above n 37, 139.
55 Ibid, 156.
56 See, in particular, ibid, ch 10; Hervey, T ‘The European Union and the Governance of Health Care’ in de Búrca, G and Scott, J (eds) Law and New Governance in the EU and the US (Oxford, Hart Publishing, 2006)Google Scholar, also available at http://eucenter.wisc.edu/OMC/Papers/Protection/hervey.pdf.
57 Health Council, 26 June 2002, EU Council doc. 10090/02 (Presse 182).
58 High-Level Reflection Group, High-Level Reflection Process on Patient Mobility and Healthcare Developments in the European Union HLPR/2003/16, 9 Dec 2003.
59 Communication of the Commission ‘Follow-up to the high-level reflection process on patient mobility and health care developments in the European Union’, COM(2004)301 final of 20 Apr 2004.
60 Ibid, 18.
61 Ibid, 6–7.
62 According to the summary available at http://ec.europa.eu/health/ph_overview/co_operation/mobility/high_level_hsmc_en.htm.
63 Communication from the Commission ‘Modernising social protection for the development of high-quality, accessible and sustainable health care and long-term care: support for the national strategies using the ‘open method of coordination’’, COM(2004)304 final of 20 Apr 2004.
64 Ibid, 4.
65 Ibid, 4.
66 SN 200/99 Presidency Conclusions of the Tampere European Council, 15–16 Oct 1999.
67 Communication from the Commission to the Council and the European Parliament on an open method of coordination for the Community Immigration Policy, COM(2001)387 final of 11 July 2001.
68 Ibid, 5.
69 Communication from the Commission to the Council and the European Parliament on the Common Asylum Policy, introducing an open coordination method, COM(2001)710 final, of 28 Jan 2001. This had already been anticipated by the Communication on the common asylum procedure and uniform status, COM(2000)755 final of 22 Nov 2000.
70 See Opinion of the Economic and Social Committee on the Communication on an open method of coordination for the Community Immigration Policy (above n 67)_, and on the Communication on the Common Asylum Policy, introducing an open coordination method (above n 69), OJ 2002 C 221/49, at paras 3.6. and 5.1.1.
71 See Proposal for a Council Decision on the establishment of a mutual information procedure concerning Member States’ measures in the areas of asylum and immigration, COM(2005)480 final of 10 Oct 2005.
72 COM(2006)367 final, of 4 July 2006.
73 Ibid, 3.
74 Ibid, 6.
75 The Communication also proposes a series of specific actions, such as EU child helplines and hotlines for missing and sexually exploited children, support to the banking sector and credit card companies in combating the use of credit cards for the purchase of sexual images of children on the internet, the launch of an action plan on development cooperation to address children’s priority needs in developing countries, and the promotion of a cluster of actions on child poverty across the EU. These actions, however, need not detain us here.
76 See Annex I to the Communication of the Commission ‘Towards an EU Strategy for the rights of the child’, above n 72, at para 3.2.
77 Initially, in meetings called ‘European Meetings of Ministers for Children’s Affairs’; now called ‘Meeting of the EU Ministers responsible for Childhood’.
78 See the Brussels Declaration adopted on 9 Nov 2001; and the Lucca Declaration adopted following the meeting of 25–26 Sept 2003.
79 All the information in this paragraph is from the website of ChildONEurope: http://www.childoneurope.org (last visited on 20 Mar 2007).
80 In June 2006, these covered 9 EU Member States. 14 other Member States were ‘associated members’, it being understood that ‘the latter may decide to form part of the Network at any given time by nominating a national institution able to furnish official public data on the condition of children and adolescents’.
81 See Annex I to the Communication of the Commission ‘Towards an EU Strategy for the rights of the child’, above n 72, at para 3.2.
82 Council of the EU, doc. 9778/2/05, 10 June 2005 (under the heading 1.2. Respect for and active promotion of fundamental rights).
83 Statement by Mrs Curtis-Thomas, House of Commons, 18 Dec 2006.
84 See, eg, the statement by Mr Rammell, the UK Minister for Higher Education and Lifelong Learning, during the debate held before the House of Commons already referred to: ‘It is good that the Union is encouraging member states to promote and protect children’s rights, but that is true only to the extent that the Commission’s proposals add real value and stay within the scope of the Union’s existing competences; otherwise, we run the risk of removing the power to take decisions about safeguarding children from those who are best placed to make those decisions, and the Government will certainly not allow that to happen. We also run the risk of detracting from intergovernmental arrangements that already work well…[W]hile there is a role for the EU in sharing best practice, monitoring what is happening and adding value, particularly in terms of asserting and pushing children’s rights internationally, there is no EU competence in the field of children’s rights. … The issue is about coordinating, adding value and forcefully upholding member states’ primary responsibility to assert and implement children’s rights.’ For the full text of the statement, see http://www. publications.parliament.uk/pa/cm200607/cmgeneral/euro/061218/61218s01.htm.
85 See above, text to nn 3–5.
86 Certain efforts have already been made in this direction. See Bernard, N ‘A “New Governance” Approach to Economic, Social and Cultural Rights in the EU’ in Hervey, T and Kenner, J (eds) Economic and Social Rights under the EU Charter of Fundamental Rights. A Legal Perspective (Oxford, Hart Publishing, 2003)Google Scholar; de Búrca, G ‘New Modes of Governance and the Protection of Human Rights’ in Alston, P and De Schutter, O (eds), above n 14; De Schutter, O, above n 51.
87 For a recent attempt to catalogue the existing fields in which OMC processes have been inaugurated see Szyszczak, E ‘Experimental Governance: The Open Method of Coordination’ (2006) 12 ELJ 486 CrossRefGoogle Scholar.
88 Although it has many different incarnations across a variety of policy fields, the open method of coordination was given a definition by the Conclusions of the Lisbon European Council of 23–24 March 2000, which described it as ‘a means of spreading best practice and achieving greater convergence towards the main EU goals’ and as involving ‘fixing guidelines for the Union combined with specific timetables for achieving the goals which they set in the short, medium and long terms; establishing, where appropriate, quantitative and qualitative indicators and benchmarks against the best in the world and tailored to the needs of different Member States and sectors as a means of comparing best practice; translating these European guidelines into national and regional policies by setting specific targets and adopting measures, taking into account national and regional differences; periodic monitoring, evaluation and peer review organised as mutual learning processes’ (para 37 of the Presidency Conclusions).
89 See, eg, Armstrong, K ‘The OMC and Fundamental Rights: a Critical Appraisal’ (2005) available at http://eucenter.wisc.edu/OMC/Papers/Rights/armstrong.pdf (contribution to a seminar on this question held at Columbia University on 4 Nov 2005, under the framework of the REFGOV project).
90 For a thorough attempt to evaluate, at an empirical level, the effectiveness of the open method of coordination, see the collection of esays in Zeitlin, J and Pochet, P (eds) The Open Method of Co-ordination in Action. The European Employment and Social Inclusion Strategies (Brussels-Bern-Berlin-Frankfurt am Main-New York-Oxford-Vienna, PIE Peter Lang, 2005)CrossRefGoogle Scholar. For an excellent summary of the risks associated with the reliance on the OMC see Hatzopoulos, V ‘Why the Open Method of Coordination (OMC) is Bad for You: a Letter to the EU’ (2007) 13 ELJ 309 CrossRefGoogle Scholar.
91 See the discussion of this risk by Hatzopoulos, V, above n 90.
92 See Parliamentary Assembly of the Council of Europe (PACE), doc. 10894 (11 Apr 2006), Follow-up to the Third Summit: the Council of Europe and the Fundamental Rights Agency of the European Union, Report to the Committee on Legal Affairs and Human Rights (rapp. Mr Erik Jurgens), at para 31: ‘What is clearly missing from the EU definition of subsidiarity…is the relationship between EU action and the activities of other international organisations, notably those with an essentially intergovernmental structure such as the Council of Europe’. See also paras 11.9 and 11.10 of Recommendation 1744 (2006) of the PACE, based on that report.
93 While it not possible in the context of this paper to be systematic, this may be illustrated by the situation of the EU Member States vis-à-vis the Council of Europe instruments. Apart from the European Convention on Human Rights, and leaving aside instruments such as the 1987 European Convention for the Prevention of Torture and Inhuman or Degrading Treatment or Punishment (CETS 126) which create mechanisms of protection rather than add substantive standards, the main human rights instruments of the Council of Europe are: the European Social Charter of 1961 and the Revised European Social Charter of 1996 (CETS 35 and 163 respectively); the Convention for the Protection of Individuals with regard to Automatic Processing of Personal Data of 1981 (CETS 108); the Framework Convention for the Protection of National Minorities of 1995 (CETS 157); the Convention for the protection of Human Rights and dignity of the human being with regard to the application of biology and medicine (Convention on Human Rights and Biomedicine) of 1997 (CETS 164); as well as the additional protocols to those instruments. The principles of the 1981 Convention for the Protection of Individuals with regard to Automatic Processing of Personal Data have been developed and extended in European Community law, especially through the adoption of Directive 95/46/EC of the European Parliament and of the Council of 24 Oct 1995 on the protection of individuals with regard to the processing of personal data and on the free movement of such data, OJ 1995 L 281/31. As to the other instruments adopted within the Council of Europe in the field of human rights, the level of acceptance of these different instruments by the EU Member States still varies relatively widely. On 1 Jan 2007, for instance, while all the Member States are parties either to the 1961 European Social Charter or to the 1996 Revised European Social Charter, Austria, the Czech Republic, Denmark, Germany, Greece, Hungary, Latvia, Luxembourg, Poland, Slovakia, Spain and the UK had not ratified the Revised European Social Charter. And both within the 1961 and the 1996 European Social Charters, the commitments of the States parties are variable, as they may, upon ratification, accept only a limited number of the provisions of these instruments. Belgium, France, Greece and Luxembourg have not ratified the Framework Convention for the Protection of National Minorities. Belgium, Finland, France, Germany, Ireland, Italy, Latvia, Luxembourg, Malta, the Netherlands, Poland, Sweden and the UK have not ratified the Convention on Human Rights and Biomedicine.
94 Eg, when the Directive on the protection of individuals with regard to the processing of personal data and on the free movement of such data was proposed, all the EU Member States were already parties to the Council of Europe Convention of 28 Jan 1981 for the Protection of Individuals with regard to Automatic Processing of Personal Data. However, this convention—a number of provisions of which are relatively vague and which, in any case, are generally not directly applicable—was considered to define an excessively low standard of protection. The Preamble to the Directive now states that its provisions ‘give substance to and amplify’ those contained in the Council of Europe Convention (11th Recital).
95 COM(2006) 332 final of 28 June 2006. The mechanism proposed in the communication, which is explicitly distinguished from a new OMC, consists in the Member States providing the Commission with information about the implementation of EU policies in the fields of freedom, security and justice, by the regular delivery of ‘factsheets’ (one for each policy area), describing the achievements of each Member State on the basis of a relevant set of indicators. Such factsheets should be communicated twice every 5 years, since they will focus on ‘slow-moving outputs and results and on medium-term data’ (at para 35). The information contained in these factsheets would be commented upon by the relevant stakeholders. The Commission would then prepare an ‘evaluation report’, including certain political recommendations. Finally, where justified, an ‘in-depth evaluation report’ would be prepared by the Commission in specific areas (paras 18–33).
96 In the Vienna Declaration and Programme of Action of 1993, the World Conference on Human Rights recommended that ‘each State consider the desirability of drawing up a national action plan identifying steps whereby that State would improve the promotion and protection of human rights’ (World Conference on Human Rights, Vienna Declaration and Programme of Action, Vienna, 14–25 June 1993, A/Conf.157/23, para 71). The UN human rights treaty bodies have repeatedly encouraged states to use this tool in order better to protect and promote human rights. Thus, the Committee on Economic, Social and Cultural Rights adopted General Comment no 15 (2002), The right to water (arts. 11 and 12), adopted at the 29th session of the Committee on Economic, Social and Cultural Rights, Geneva, 11–29 Nov 2002, E/C.12/2002/11, para 26, requiring states to adopt ‘a national water strategy and plan of action to realise this right’; in General Comment no 14 (2000), The right to the highest attainable standard of health (art. 12), adopted at the 22nd session of the Committee on Economic, Social and Cultural Rights, Geneva, 25 Apr–12 May 2000, E/C.12/2000/4, para 56, the Committee encourages states to establish ‘national mechanisms for monitoring the implementation of national health strategies and plans of action’ including ‘provisions on the targets to be achieved and the time-frame for their achievement;: General Comment 11 (1999), Plans of action for primary education (art. 14), adopted at the 20th session of the Committee on Economic, Social and Cultural Rights, Geneva, 26 Apr–14 May 1999, E/C.12/1999/4, paras 8–10, requiring states to adopt a detailed plan which ‘must be aimed at securing the progressive implementation of the right to compulsory primary education, free of charge, under article 14’. The Committee on the Rights of the Child, similarly, adopted General Comment 5 (2003), General measures of implementation of the Convention on the Rights of the Child (arts. 4, 42 and 44, para 6), adopted at the 34th session (Geneva, 19 Sept–3 Oct 2003, CRC/GC/2003/5, in paras 28–36 of which it recommends states to develop a ‘comprehensive national strategy or national plan of action for children’ (para 29); such a plan should set out ‘specific goals, targeted implementation measures and allocation of financial and human resources’ (para 32). In its General Recommendation 31 on the Prevention of Racial Discrimination in the Administration and Functioning of the Criminal Justice System, adopted on 17 Aug 2005 at its 67th session, the Committee on the Elimination of Racial Discrimination recommended that states should ‘implement national strategies or plans of action aimed at the elimination of structural racial discrimination’ and ‘entrust an independent national institution with the task of tracking, monitoring and measuring progress made under the national plans of action’ (advance unedited version, at 2.1, paras 9–10). The Committee on the Elimination of Discrimination against Women adopted General Recommendation 24 (1999), Women and Health (art. 12) in which it recommends that ‘States parties should implement a comprehensive national strategy to promote women’s health throughout their lifespan’ (paras 29–31). I am grateful to G de Béco for having provided me with these references.
97 See, inter alia, Raj Kumar, C ‘National Human Rights Institutions: Good Governance Perspectives on Institutionalisation of Human Rights’ (2003) 19 American University International Law Review 259 Google Scholar.
98 The human rights treaty bodies have emphasised the important contribution such institutions may play in the protection of human rights. See, eg, Committee on Economic, Social and Cultural Rights, General Comment 10 (1998), The role of national human rights institutions in the protection of economic, social and cultural rights, adopted at the 19th session of the Committee (Geneva, 16 Nov–4 Dec 1998), UN doc. E/C.12/1998/25 and Committee on the Rights of the Child, General Comment 2 (2002), The role of independent national human rights institutions in the promotion and protection of the rights of the child, adopted at the 32nd session of the Committee (Geneva, 13–31 Jan 2003), UN doc. CRC/GC/2002/2. See also World Conference on Human Rights, Vienna Declaration and Programme of Action, Vienna, 14–25 June 1993, A/Conf.157/23, para 36.