The Charter of Fundamental Rights is the EU’s human rights catalogue – a modern legal instrument listing 50 fundamental rights which EU institutions and governments must promote, respect and protect whenever they act within their EU competences and obligations.
More than 10 years have passed since the Charter became binding law. The Commission's first strategy on the Charter’s effective application was adopted in 2010. The idea was that the EU would set an example and make fundamental rights a guiding light for EU action. The EU has made some progress towards respecting, protecting and promoting fundamental rights. But the EU frequently fails to step in to uphold rights, misses opportunities to improve the protection of rights and violates rights itself.
Later this year, the Commission will adopt a new strategy on the Charter of Fundamental Rights. To inform this work, the Commission asked for suggestions from rights and democracy groups. Liberties' new paper is a response to the Commission's request for input.
This paper identifies the main shortcomings and suggests specific tools and practices the Commission could implement to address them. Our key points are:
1) The Commission should use its powers to their full potential to promote fundamental rights
Fundamental rights are being breached in many areas where national laws are not good enough to protect them. Take, for example, abusive lawsuits filed by powerful private or public actors to try to silence watchdogs like media actors and civil liberties’ activists (known as SLAPPs – strategic lawsuits against public participation). No laws exist to prevent or sanction these practices in most EU countries. The Commission has the power to propose common EU rules to prohibit SLAPPs – but has not yet done so.
The Commission could:
- Grow its fundamental rights expertise, by more systematically relying on independent expert advice and making sure that in-house experts serve in all the Commission’s services;
- Develop an annual strategic workplan which can help clarify how EU laws and policies can better contribute to the respect and promotion of fundamental rights;
- Invest in communicating with the public on fundamental rights, including through annual reports which can enhance the Commission's accountability, transparency and participation by the public.
2) The Commission should improve the procedures in place to minimise the risk that EU institutions and bodies themselves violate the Charter
All EU institutions and bodies are under an obligation to refrain from adopting laws, measures or practices that violate fundamental rights. Yet, cases still emerge where breaches of fundamental rights are attributable to the action or negligent inaction of EU institutions. In a recent report, the EU was criticised by a UN monitoring body for giving money to Hungary to maintain the segregation of persons with disabilities in the country, contrary to fundamental rights and international legal obligations.
The Commission could:
- Improve the quality of the process by which it assesses the impact on fundamental rights of EU laws and policies;
- Make better use of its powers to avoid fundamental rights safeguards being weakened during negotiations on draft EU laws between EU governments and the European Parliament;
- Systematically evaluate EU laws and policies for their impact on fundamental rights;
- Monitor the action taken by EU agencies and bodies more closely and with more transparency.
3) The Commission should offer more detailed guidance to governments on how to implement EU law in a way that does not violate fundamental rights, and enforce the law systematically when governments do break it
The Commission has the duty to prevent EU governments from violating the Charter when they act in areas regulated by EU law, and to sanction them when they do commit violations. The Commission already has all the tools it needs to do this. The problem is that it often does not use them. For example, a number of EU countries, like the Czech Republic, Hungary and Italy, continue to stop Roma children being schooled like other children, including by segregating them in special schools or Roma-only classes. Although these practices were condemned many times by the European Court of Human Rights, and despite the fact that they are prohibited by EU law, the Commission has not to date brought one single country to court for this.
The Commission could:
- Provide formal guidance on how to comply with fundamental rights when applying key pieces of EU legislation to help prevent breaches;
- Sanction governments that violate the Charter systematically;
- Give money to those organisations, like rights and democracy groups, that promote fundamental rights at national level.