Abstract
This Chapter examines the role of the European Parliament in promoting the respect of fundamental rights within and outside the European Union. The authors submits that the entry into force of the Lisbon Treaty will enhance the position of the EP as a central actor for the protection of fundamental rights within and outside the European Union. Besides from the important links that should be developed with the national parliaments and the Fundamental Rights Agency, the binding force attributed to the Charter of Fundamental Rights and the future accession to the ECHR are considered to particularly noteworthy. On the one side, the breach of rights contained in the CFR amounts to a violation of the Treaty and constitutes autonomous ground for annulment or compensation. On the other side, should the Union fail to comply with the standard set by the ECHR, it would be possible to turn to the Strasbourg Court.
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Notes
- 1.
As Harald Romer (former EP Secretary General) noted in a recent contribution on the matter: “From the outset, the European Parliament has worked to defend the values that underpin the European Union: freedom, democracy, respect for human rights and fundamental freedoms, and the rule of law. Starting from the principle that these values are universal, Members of the European Parliament endeavour to promote fundamental rights inside and human rights outside the European Union”. See F. Benoit-Rhomer, The European Parliament as a champion of European values (European Parliament, Office for Official Publications of European Communities, 2008) 19.
- 2.
Joint Declaration of 5 April 1977 by the European Parliament, Council and Commission on the protection of fundamental rights, [1977] OJ C 103/1.
- 3.
This initiative is more commonly referred to as the Spinelli Project, after the well known Italian MEP.
- 4.
Cf. Art. 6 TEU.
- 5.
On the protection of individual rights in the former second pillar, see in this volume L. Paladini, “Chapter 14”.
- 6.
F. Geyer, Centre for European Policy Studies (CEPS), A Synthesis of the former EP Resolutions in the field of Fundamental Rights, EP publication, 2007, Directorate-General Internal Policies Policy Department Citizens Rights and Constitutional Affairs.
- 7.
- 8.
- 9.
F. Geyer, n. 6 above.
- 10.
The European Parliament has prepared annual reports on human rights since the late Nineties, thereby enhancing its proactive role. In many cases, the Reports are a response to the Council’s Annual Report on Human Rights in the World. See 2006 (2007/2020/INI) and 2007 (2007/2274/INI) EP Annual Report on Human Rights. As a matter of fact the EP is not involved in the drafting of the latter report and has been constantly demanding to be associated to the procedure for its elaboration.
- 11.
Cf. Art. 49 TEU.
- 12.
Cf. Arts. 217 and 218 (6) letter (a) TFEU (former Arts. 300 and 310 TEC).
- 13.
[1998] OJ C 13/28.
- 14.
EP Resolution of 18 June 1987, A2-33/8.
- 15.
EP Resolution containing the European Parliament’s recommendation to the Council on the conclusion of a Euro-Mediterranean Association Agreement between the European Community and its Member States, on the one side, and the Syrian Arab Republic, of the other, 2006/2150(INI).
- 16.
With the exception of the agreements mentioned in Art. 218 (6) letter (a), TFEU, the European Parliament is required to deliver an opinion during the negotiation of an international agreement (Art. 218 (6) letter (b), TFEU).
- 17.
Doc. PE, A5-0271/2004, 2004/0064(INI).
- 18.
See Opinion 1/04 of the European Court of Justice. In particular, the European Parliament submitted to the ECJ the following questions: (a) is the first sentence of the first subparagraph of Art. 300(3) EC the appropriate legal basis for the Council Decision on the conclusion of the proposed agreement between the European Community and the United States of America on the processing and transfer of Passenger Name Record data by air carriers to the United States Department of Homeland Security, Bureau of Customs and Border Protection? and (b) must the above mentioned proposed agreement be regarded as being compatible with the right to protection of personal data, as enshrined in particular in Art. 8 of the European Convention on Human Rights (ECHR), which the Community is required to observe in the same way as the Treaty? The text of the Opinion can be found at the following address: http://www.curia.eu.
- 19.
Case C-317/04 Parliament v. Council [2006] ECR I-4721. In particular, the European Parliament put forward four pleas in support of its action, namely: misuse of powers by the Commission, breach of the fundamental principles of Directive 95/46/EC, breach of fundamental rights and breach of the principle of proportionality.
- 20.
[2006] OJ L 386/1.
- 21.
In particular, during the first reading phase, the EP obtained an adjustment of the objectives and scope of the envisaged measures as well as modifications intended to guarantee a prompt response in case of sudden events. Most notably, it successfully proposed the introduction of a new Article providing for “ad hoc measures”, whereby the Commission would be entitled to allocate small grants on an ad hoc basis to human rights defenders responding to urgent protection needs. Furthermore, during the proceedings the responsible committee proposed a series of amendments designed to flesh out the various categories of action for which support would be provided through civil society, and also added new categories as “the promotion and defence of freedom of expression, including artistic and cultural expression, and the fight against censorship”. See the Summary of the EP position in first reading, COD/2006/0116, http://www.europarl.europa.eu/oeil/resume.
- 22.
Resolutions in this area are generally based on the EP Rules of procedure (7th parliamentary term, December 2009), notably: Art. 98 (resolutions on breaches of human rights); Art. 110 (resolutions following Statements by the Commission, the Council and the European Council); Art. 115 (resolutions following questions for oral answer with debate); Art. 122 (resolutions following debates on cases concerning breaches of human rights, democracy and the rule of law, also known as “urgent resolutions”). See Beyond Activism, The impact of the resolutions and other activities of the European Parliament in the field of human rights outside the European Union (EUIC, 2006), 105. Moreover, it should not go unnoticed that the MEPs can acquire information from a particular person on a specific issue.
- 23.
Beyond Activism, n. 22 above, at 91.
- 24.
Case T-346/03 Krikorian [2003] ECR II-6037. In this instance the Court affirmed: “It suffices to point out that the 1987 resolution is a document containing declarations of a purely political nature, which may be amended by the Parliament at any time. It cannot therefore have binding legal consequences for its author nor, a fortiori, for the other defendant institutions. 20. That conclusion also suffices to dispose of the argument that the 1987 resolution could have given rise to a legitimate expectation, on the part of the applicants, that the institutions would comply with that resolution” (paras 19–20).
- 25.
EP resolution on the Commission Communication to the Council and the European Parliament on an EU Strategy towards China: Implementation of the 1998 Communication and future steps for a more effective EU policy– 2001/2045(COS), points 36 and 46.
- 26.
Statement by NPC Foreign Affairs Committee on Report on Commission Communication on Europe and Asia: A Strategic Framework for Enhanced Partnerships Passed by European Parliament (2002.09.09). http://www.china-un.ch/eng.
- 27.
See Arts. 2, 6 and 11(1), 5th indent, TEU.
- 28.
- 29.
See Art. 19 TFEU (former Art.13 TEC, introduced by Art. 2 (7) of the ToA).
- 30.
See Art. 7 TEU.
- 31.
See, for example, the Report on Human Rights in the Union released in 1999, [2000] OJ C 377/344.
- 32.
F. Benoit-Rhomer, n. 1 above, at 19.
- 33.
[1991] OJ C 240/45.
- 34.
[1993] OJ C 115/115.
- 35.
[2000] OJ C 364/1.
- 36.
For a detailed list of the competences of the LIBE Committee, see http://www.europarl.europa.eu/activities/committees/committeesList.do?language=EN
- 37.
As F. Sylla, rapporteur of the 2002 resolution, noted : “this report constitutes a valuable point of reference for elaborating and implementing EU policies. It is also an open method of coordination which highlights good practices in the Member States and makes it possible to draw a comparison between initiatives and ensure compatibility between them. It provides a means of allowing and supporting the establishment of the prevention mechanism under Art. 7 of the Treaty on European Union. It should also contribute to publicising and sharing the European Parliament’s commitment in this specific area and, lastly, it promotes transparency and facilitates dialogue with civil society”. EP Report on the situation concerning fundamental rights in the European Union (2002) 2002/2013/INI, OJ C 76 E of 25 March 2004, p. 245.
- 38.
These are the words of the former President of the European Parliament, Nicole Fontaine, on 7 December 2000 in Nice, during the official proclamation of the Charter of Fundamental Rights of the European Union by the European Parliament, the Commission and the Council of the European Union.
- 39.
SEC(2001) 380/3.
- 40.
COM(2005)0172.
- 41.
EP resolution of 15 March 2007 on compliance with the Charter of Fundamental Rights in the Commission’s legislative proposals: methodology for systematic and rigorous monitoring, 2005/2169(INI).
- 42.
A. Williams, ‘Respecting Fundamental Rights in the New Union: A Review’, The Fundamentals of EU Law Revisited: Assessing the Impact of the Constitutional Debate (Oxford University Press, 2007) 71.
- 43.
Art. 34 of the EP Rule of Procedure, Examination of respect for fundamental rights, the principles of subsidiarity and proportionality, the rule of law, and financial implications: “During the examination of a legislative proposal, Parliament shall 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, the principles of subsidiarity and proportionality and the rule of law. In addition, where a proposal has financial implications, Parliament shall establish whether sufficient financial resources are provided”.
- 44.
See R. Corbett, F. Jacobs and M. Shacklethon, The European Parliament (John Harper, 2007) at 300; L. Daniele, ‘Parlamento europeo e Corte di giustizia: chi la dura la vince?’ (1991) Foro Italiano 1.
- 45.
Art. 8 of the Council Decision of 28 June 1999, 1999/468/EC [1999] OJ L 184/23.
- 46.
Commission Decision 2004/535/EC of 14 May 2004 on the adequate protection of personal data contained in the Passenger Name Record of air passengers transferred to the United States Bureau of Customs and Border Protection [2004] OJ L 235/11.
- 47.
On the protection of personal data in the former third pillar and the impact of the Lisbon Treaty in this field see in this volume V. Bazzocchi, “Chapter 10”.
- 48.
Case C-540/03 Parliament v. Council of the European Union [2006] ECR I- 5769.
- 49.
Council Directive 2003/86/EC of 22 September 2003 on the right to family reunification [2003] OJ L 251/12. In particular, the Parliament contested the final subparagraph of Art. 4(1), Art. 4(6) and Art. 8 of the Council Directive.
- 50.
In particular, reference was made to Arts. 7 (non-discrimination) and 21 (right to privacy) CFR.
- 51.
Case C-540/03 Parliament v.Council, n. 48 above, para 38.
- 52.
This assumption finds further confirmation in a number of events patronized by the European Parliament. Amongst the latter, the yearly conferral of the Sacharov Prize for Freedom of Thought is noteworthy. Since 1998 this prize is awarded to individuals or organisations for their efforts on behalf of human rights and fundamental freedoms. Despite its merely symbolic value, the event can nonetheless give international visibility to the candidates and most importantly to the causes they embraced. See also, Beyond Activism, n. 22 above.
- 53.
F. Benoit-Rhomer, n. 1 above.
- 54.
See also Art. 227 TFEU (former Art. 194 TEC).
- 55.
The European Parliament has always made use of petitions as a way of gathering privileged information and use it to exercise its political monitoring powers, with a particular focus on serious infringements of Community law, while at the same time giving citizens a chance to express their day-to-day expectations or fears concerning Europe. See EP Resolution on the deliberations of the Committee on Petitions during the parliamentary year 2002–2003, 2003/2069(INI).
- 56.
Report on the deliberations of the Committee on Petitions during the parliamentary year 2007, Doc. Ref. 2008/2028(INI).
- 57.
But see in this volume G. Sanna, “Chapter 9”.
- 58.
Case C-441/02 Commission v. Germany [2004] ECR I-3449.
- 59.
2007/2118/INI.
- 60.
Case C-193/07 Commission v. Poland Republic, withdrawn.
- 61.
Council Regulation (EC) No 168/2007 of 15 February 2007 establishing a European Union Agency for Fundamental Rights [2008] OJ L 53/1.
- 62.
Art. 4(2) of the original proposal of the European Commission, COM/2005/0280 final – CNS 2005/0124: “The conclusions, opinions and reports formulated by the Agency when carrying out the tasks mentioned in paragraph 1 shall not concern questions of the legality of proposals from the Commission under Article 250 of the Treaty, positions taken by the institutions in the course of legislative procedures…”.
- 63.
G. N. Toggenburg, ‘The role of the new EU Fundamental Rights Agency: Debating the “sex of angels” or improving Europe’s human rights performance?’ (2008) 3 European Law Review 384.
- 64.
Report of the European Parliament of 26 September 2006 on the proposal for a Council regulation establishing a European Union Agency for Fundamental Rights, A6-0306/2006.
- 65.
E. Soler, I. Lecha, ‘Debating Turkey’s accession: National and ideological cleavages in the European Parliament’, in M. E. Barbé Izuel and A. Herranz (eds.), The role of parliaments in European foreign policy: Debating on accountability and legitimacy (IUEE 2005) 55. The Author uses this expression to qualify the activism of the EP in the field of the enlargement of the European Union.
- 66.
Furthermore, it should not go unnoticed that the new Treaty foresees the possibility to extend the ordinary legislative procedure to other legal bases for which the application of a special legislative procedure is established. To be sure, Art. 48 (7) TEU provides that: “Where the Treaty on the Functioning of the European Union provides for legislative acts to be adopted by the Council in accordance with a special legislative procedure, the European Council may adopt a decision allowing for the adoption of such acts in accordance with the ordinary legislative procedure”.
- 67.
Under the former treaties, Art. 300 (3) TEC provided that the assent is required for Association Agreements, other agreements establishing a specific institutional framework by organising cooperation procedures, agreements having important budgetary implications for the Community and agreements entailing amendment of an act adopted under the codecision procedure.
- 68.
Art. 218 TFEU.
- 69.
R. Passos, ‘Recent developments concerning the role of national parliaments in the European Union’ (2008) ERA 25. P. Kitver, ‘The composite case for national parliaments in the European Union: Who profits from enhanced involvement?’ (2006) 2 European Constitutional Law Review 331.
- 70.
J. V. Louis, ‘National Parliaments and the principle of subsidiarity’, in Ceci n’est pas une Constitution – Constitutionalisation without a Constitution?, ECLN Conference Sofia, 2008, at 132; S. Rothenberger, O. Govt, ‘The “Orange Card”: A fitting response to national parliaments’ marginalisation in EU decision making?’, Paper presented at the conference Fifty Years of Interparliamentary Cooperation, 13 June 2007, Bundesrat, Berlin, organised by the Stiftung Wissenschaft und Politik (SWP), accessible at http://www.swpberlin.org/en/common/get_document.php?
- 71.
On the consequences of the EU accession to the European Convention on Human Rights, see in this volume the contribution by G. Di Federico, “Chapter 2”.
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Camporesi, F. (2011). The European Parliament and the EU Charter of Fundamental Rights. In: Giacomo, D. (eds) The EU Charter of Fundamental Rights. Ius Gentium: Comparative Perspectives on Law and Justice, vol 8. Springer, Dordrecht. https://doi.org/10.1007/978-94-007-0156-4_4
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