Explanatory Memorandum to COM(2011)880 - Multiannual Framework for the EU Agency for Fundamental Rights for 2013-2017

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dossier COM(2011)880 - Multiannual Framework for the EU Agency for Fundamental Rights for 2013-2017.
source COM(2011)880 EN
date 13-12-2011
1. CONTEXT OF THE PROPOSAL

2.

1.1. Grounds for and objectives of the proposal


On 15 February 2007, the Council adopted Regulation (EC) No 168/2007 (the Regulation) i establishing a European Union Agency for Fundamental Rights (the Agency). The Agency became operational on 1 March 2007.

The objective of the Agency is to provide the relevant institutions, bodies, offices and agencies of the Union and its Member States, when implementing Union law, with assistance and expertise relating to fundamental rights in order to support them when they take measures or formulate courses of action within their respective spheres of competence to fully respect fundamental rights. The tasks entrusted to the Agency relate to the collection and analysis of information and data; to the provision of advice through reports and opinions; and to cooperation with civil society and raising awareness of fundamental rights. The Agency is not authorized to deal with the legality of Union acts nor with the fulfilment of Member States' obligations under Union law.

According to Article 5 of the Regulation, the thematic areas of activity of the Agency shall be determined through a five-year Multiannual Framework. The Agency shall carry out the above-mentioned tasks within these thematic areas. The Multiannual Framework is not a work programme. The Agency's work programmes are adopted each year by its Management Board within the thematic areas determined by the Multiannual Framework. Following requests from the European Parliament, the Council or the Commission under Article 4(1)(c) and (d) of the Regulation, the Agency work can outside these thematic areas, provided its financial and human resources so permit.

The objective of this proposal is to establish the Multiannual Framework of the Agency for the period 2013-2017, as required by Article 5 of the Regulation. The current Multiannual Framework (2007-2012) expires at the end of 2012.

3.

1.2. Multiannual Framework 2007-2012


On 28 February 2008, the Council adopted Decision 2008/203/EC implementing Regulation (EC) No 168/2007 as regards the adoption of a Multiannual Framework for the European Union Agency for Fundamental Rights for 2007-2012[2]. Article 2 of this Decision sets out the following thematic areas:

(a) racism, xenophobia and related intolerance;

(b) discrimination based on sex, race or ethnic origin, religion or belief, disability, age or sexual orientation and against persons belonging to minorities and any combination of these grounds (multiple discrimination);

(c) compensation of victims;

(d) the rights of the child, including the protection of children;

(e) asylum, immigration and integration of migrants;

(f) visa and border control;

(g) participation of the citizens of the Union in the Union’s democratic functioning;

(h) information society and, in particular, respect for private life and protection of personal data;

(i) access to efficient and independent justice.

4.

1.3. Elements of the Multiannual Framework


The Multiannual Framework must determine the thematic areas of the Agency's activity and must be based on a number of elements laid down by Article 5(2) of the Regulation, together with the scope of the Agency under Article 3. These are the following:

(i) The Agency must carry out its tasks within the competencies of the Union as laid down in the Treaty on the Functioning of the European Union[3];

(ii) The Multiannual Framework shall cover five years i;

(iii) The Multiannual Framework 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[5] (see section 1.4 below);

(iv) The Multiannual Framework must have due regard to the Agency's financial and human resources[6]. It should be noted in this respect that the financial resources of the Agency for 2013 have been set by the financial framework annexed to the Inter-institutional Agreement between the European Parliament, the Council and the Commission on budgetary discipline and sound financial management of 17 May 2006[7] and presented in Document V Financial Programming 2008-2013 of Statement of Estimates of the Commission for 2008[8]. As regards 2014-2017, they will be set within the limits of the Multiannual Financial Framework for the years 2014-2020.

(v) The Multiannual Framework must include provisions with a view to ensuring complementarity with the remit of other Union bodies, offices and agencies, as well as with the Council of Europe and other international organisations active in the field of fundamental rights[9]. The most relevant Union agencies and bodies in relation to this proposal are the European Asylum Support Office (EASO)[10], the European Agency for the Management of Operational Cooperation at the External Borders (FRONTEX)[11], the European Migration Network[12], the European Institute for Gender Equality (EIGE)[13], the European Data Protection Supervisor (EDPS)[14], the European Union’s Judicial Cooperation Unit (EUROJUST)[15], the European Police Office (EUROPOL)[16], the European Police College (CEPOL)[17], the Agency for the operational management of large-scale IT systems in the area of freedom, security and justice (IT Agency)[18] and the European Foundation for the improvement of living and working conditions (EUROFOUND)[19].

(vi) The Multiannual Framework must include the fight against racism, xenophobia and related intolerance among the thematic areas[20].

5.

1.4. European Parliament and Council


Article 5(2)(c) requires the Multiannual Framework to 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. The following issues relating to fundamental rights have been raised through the European Parliament resolutions in recent years[21]:

– the protection of personal data and privacy;

– children's rights; all forms of violence against children, in particular sexual exploitation of children and child pornography; children of migrants, asylum seekers and refugees; unaccompanied minors; child poverty and child labour; justice for young people; assistance for children; participation of children.

– civil and criminal justice; rights of individuals in criminal procedures;

– protection of victims;

– citizen's rights and free movement;

– Roma exclusion and stigmatisation;

– racism and xenophobia;

– profiling, including on the basis of ethnicity and race, in counter-terrorism, law enforcement, immigration, customs and border control;

– non-discrimination and equality;

– protection of national minorities, minority rights;

– gender equality, women's rights, violence against women; female genital mutilation;

– homophobia and discrimination on the grounds of sexual orientation;

– disability issues and discrimination on the grounds of disability;

– discrimination based on age;

– freedoms of expression; freedom of the press and media pluralism;

– freedom of religion and discrimination on the basis of religion or belief;

– security and fundamental freedoms on the Internet;

– intellectual property rights;

– asylum and Common European Asylum System;

– immigration and border control;

– integration of migrants;

– social rights;

– poverty and social exclusion;

– right to healthcare.

– consumer rights;

– trafficking in human beings;

– fight against terrorism;

– respect for cultural, religious and linguistic diversity;

– memory of the crimes committed by totalitarian regimes.

The following issues relating to fundamental rights have been raised through the conclusions of the European Council in recent years[22]:

– protection of personal data and privacy;

– European area of justice;

– rights of the child;

– gender equality;

– European migration policy, including European Pact on Immigration and Asylum, Common European Asylum System, visa issues and border control;

– trafficking in human beings;

– social rights;

– internal security strategy;

– intellectual property rights.

6.

2. Consultation


When preparing its proposal, the Commission has consulted the Management Board of the Fundamental Rights Agency, and received a preliminary contribution on 8 June 2011. The Agency's Fundamental Rights Platform - a network of cooperation with civil society - has been consulted by the Management Board, which provided a contribution on 18 October 2011. The Commission took account of the comments made during the consultation on this proposal.

The Management Board has identified the following thematic areas:

(a) Effective judicial protection, including access to justice;

(b) Victims of crime;

(c) Judicial cooperation;

(d) Police cooperation;

(e) Immigration and integration of migrants, border control and visa; asylum;

(f) Racism, xenophobia and related intolerance;

(g) Roma integration;

(h) Discrimination as defined in Article 21 of the Charter of Fundamental Rights;

(i) Participation in the EU independent framework pursuant to Article 33(2) of the UN Convention on the Rights of Persons with Disabilities;

(j) Rights of the child;

(k) Information, privacy and personal data;

(l) Social rights.

7.

3. Legal aspects of the proposal 3.1. Content of the proposed action


In addition to the elements required by the Regulation (see section 1.3 above), the Commission has taken into account the following considerations in preparing this proposal:

(i) The entry into force of the Treaty of Lisbon and its impact on the Agency's activities. The Treaty of Lisbon amended the Treaty establishing the European Community by conferring competence on the Union (this notion replaces the words 'Community' and 'European Community') as regards the area of justice, security and freedom. This results in particular from Article 1(3) TEU, which states that 'The Union shall replace and succeed the European Community'. Matters previously included in Title VI of the EU Treaty (the former 'third pillar') have now become Chapters 4 ("Judicial cooperation in criminal matters") and 5 ("Police cooperation") of Title V ("Area of freedom, security and justice") of the TFUE.

(ii) The need to ensure that the Agency's work remains focused on key areas, taking into account its limited financial and human resources;

(iii) The need to ensure continuity in the Agency's work, particularly given the importance of the delivery of objective, reliable and comparable data by the Agency over the years.

In view of the above, the Commission proposes that the following thematic areas be included for the Multiannual Framework of the Agency for the years 2013-2017:

(a) Access to justice;

(b) Victims of crime;

(c) Information society and, in particular, respect for private life and protection of personal data;

(d) Roma integration;

(e) Police cooperation, taking into account the specific nature of this field;

(f) Judicial cooperation, taking into account the specific nature of this cooperation when it relates to criminal matters;

(g) Rights of the child;

(h) Discrimination based on race, colour, ethnic or social origin, genetic features, language, religion or belief, political or any other opinion, membership of a national minority, property, birth, disability, age or sexual orientation;

(i) Immigration and integration of migrants; border control and visa; asylum;

(j) Racism, xenophobia and related intolerance.

8.

3.2. Legal basis


The legal basis of the Multiannual Framework 2007-2012 is Article 5 i of Council Regulation (EC) No 168/2007 establishing the Agency. However, this legal basis can no longer be used because it is a secondary legal basis within the meaning of judgment of the European Court of Justice in case C-133/06[23].

The legal basis for the current proposal should therefore be a provision of the Treaty. In the absence of any other (more specific) provision, the legal basis should be that of the Agency's Regulation, which was adopted on the basis of Article 308 of the former Treaty of the European Community. Following the entry into force of the Lisbon Treaty, an amended version of this article has now become Article 352 of the Treaty of the Functioning of the European Union.

Contents

1.

Budgetary Implication



The proposal does not have any direct implication for the EU budget. The Agency will develop projects within the areas suggested and for which the resources have already been earmarked by the budgetary authority.

9.

5. Detailed explanation of the proposal


The thematic areas of the Agency's activity (Article 2) allow the Agency to look into all issues of fundamental rights - falling within the scope of EU law - that might arise within a given thematic area.

– Access to justice: The Stockholm Programme has underlined the need for better access to justice in the EU. This area could cover issues such as effective judicial protection, including access to efficient and independent justice, and the guarantees of a fair trial. The Agency has published reports within this area ('Access to justice in Europe: an overview of challenges and opportunities', EU Minorities and Discrimination Survey) and it needs to continue collecting data on the different issues around access to justice, including contract law and consumer rights.

– Victims of crime: The Agency has indirectly dealt with victims in its reports on Access to justice in Europe: an overview of challenges and opportunities or EU Minorities and Discrimination Survey. In view of the increasing number of EU initiatives regarding victims' rights, the work of FRA should cover, inter alia, victims' protection, victim-support services, legal standing, rights awareness, vulnerable victims and compensation for damages.

– Information society and, in particular, respect for private life and protection of personal data: Under this thematic area the Agency could collect data in particular on the implications of the online environment for fundamental rights, such as the protection of personal data and privacy. The importance of these issues has been underlined by the European Parliament. FRA has developed some work in this field (report Data Protection in the European Union: the role of National Data Protection Authorities) and it is expected that it should develop an expertise on it. The Agency's data-collection activities in this field could contribute to the smooth implementation of the reformed EU legal framework for data protection.

– Roma integration: Roma integration constitutes a clear priority for the EU. The Commission's Communication on an ‘EU Framework for National Roma Integration Strategies up to 2020’ requests the Agency, working together with other relevant bodies such as EUROFOUND, to collect data across the 27 Member States on the situation of Roma as regards access to employment, education, healthcare and housing, as well as to work with Member States in order to develop monitoring methods which can provide a comparative analysis of the situation of Roma across Europe[24]. Data collection will also be drawn from specific research funded by Socio-economic Sciences and Humanities Programme of the 7th Framework Programme. The Agency has built up an expertise in the collection of data on Roma issues over the last years, as shown by its reports Housing conditions of Roma and Travellers in the EU, The situation of Roma EU citizens moving to and settling in other EU Member States and EU Minorities and Discrimination Survey.

– Police cooperation, taking into account the specific nature of this field: The removal of the so-called pillars with the entry into force of the Treaty of Lisbon should lead to the inclusion of police cooperation among the thematic areas of the Agency, allowing FRA to collect data provided it falls within EU competence and without prejudice to ongoing work to improve crime statistics. FRA shall use data already existing/provided by Member States so as to avoid duplication with the work of law enforcement services.

– Judicial cooperation, taking into account the specific nature of this cooperation when it relates to criminal matters: This area includes judicial cooperation in civil and commercial matters as well as in criminal matters. The removal of the so-called pillars justifies this area being added to the thematic areas of the Agency. FRA could collect data on issues relating to, inter alia, the fight against organised crime, terrorism or human trafficking.

– Rights of the child: The promotion and protection of the rights of the child is one of the objectives of the EU on which the Treaty of Lisbon has placed further emphasis. Under this thematic area the Agency could contribute to the implementation of the EU Agenda for the Rights of the Child by collecting data on issues such as child-friendly justice and children in vulnerable situations, as well as by making operational the indicators on the rights of the child developed by the Agency[25]. The fight against child poverty is a key priority of the EU and FRA research on it would contribute to the implementation of the future Commission Recommendation on child poverty. FRA has published reports regarding children ('Child Trafficking in the EU: Challenges, perspectives and good practices', Separated asylum seeking children in EU Member States) and carried out educational projects such as the S-Cool Agenda, the Handbook for teachers 'Excursions to the past – teaching for the future' or the study on The role of historical sites and museums in Holocaust education and human rights education in the EU. Under this thematic area, FRA's work could also relate to the areas of education, social inclusion and youth policies and other relevant Union policies.

– Discrimination based on race colour, ethnic or social origin, genetic features, language, religion or belief, political or any other opinion, membership of a national minority, property, birth, disability, age or sexual orientation: It is expected that the Agency will continue to collect data on discrimination. The grounds of discrimination covered are those of Article 21 of the EU Charter of Fundamental Rights, but they exclude sex, since EIGE has now become fully operational and is responsible for collecting data on gender equality and discrimination based on sex. This should not prevent FRA from covering gender issues when dealing with multiple discrimination or including a gender perspective in its reports, in close cooperation with EIGE. This thematic area should enable multiple discrimination, discrimination at the work place, or aspects related to poverty reduction and social inclusion to be covered. FRA has published a number of relevant reports under this heading in recent years, such as Homophobia, transphobia and discrimination on grounds of sexual orientation and gender identity, Respect for and protection of persons belonging to minorities, 'Migrants, minorities and employment – Exclusion and discrimination in the 27 Member States of the EU', EU Minorities and Discrimination Survey, The legal protection of persons with mental health problems under non-discrimination law, Handbook on European non-discrimination law, 'The impact of the Racial Equality Directive – Views of trade unions and employers in the EU', Experience of Discrimination, Social Marginalisation and Violence among Muslim and non-Muslim Youth, and Racism, ethnic discrimination and exclusion of migrants and minorities in sport: the situation in the EU.

– Immigration and integration of migrants; border control and visa; asylum: The treatment at the borders and conditions in detention centres for regularly and irregularly entering immigrants, as well as aspects related to victims of human trafficking, have raised particular concerns from the point of view of fundamental rights. Integration of migrants is a thematic area closely related to immigration in which fundamental rights are also an important consideration. Aspects related to poverty reduction and social inclusion should not be disregarded. Most of the legislative instruments in the area of Borders and Visas contain specific clauses for the respect of the fundamental rights and freedoms. The practice of ethnic profiling could be dealt with under this thematic area. Asylum is an area covered by a wealth of EU legislation, of which fundamental rights are an essential component. The Agency should continue to work on the collection of data on this topic in close cooperation with EASO. FRA has published a number of reports on these topics in recent years ('Migrants in an irregular situation: access to healthcare in 10 EU Member States', 'Migrants, minorities and employment – Exclusion and discrimination in the 27 Member States of the EU', Migrants in an irregular situation employed in domestic work: fundamental rights challenges for the EU and its Member States, The asylum-seeker perspective: access to effective remedies and the duty to inform applicants, Detention of third country nationals in return procedures, Separated asylum seeking children in EU Member States, Coping with a fundamental rights emergency: The situation of persons crossing the Greek land border in an irregular manner) and carried out training on fundamental rights for border guards in cooperation with FRONTEX. The Agency should continue cooperating with FRONTEX. The expectation among stakeholders is that FRA will continue to collect data on the issues falling within this thematic area.

– Racism, xenophobia and related intolerance: this thematic area is laid down in the Regulation itself. FRA has significant expertise in the collection of data under this area, as shown by its reports Antisemitism: summary overview, Understanding and preventing ethnic profiling: a guide, Experience of Discrimination, Social Marginalisation and Violence among Muslim and non-Muslim Youth, and Racism, ethnic discrimination and exclusion of migrants and minorities in sport: the situation in the EU. Under this period, particular emphasis should be given to ethnic profiling, racist and xenophobic hate speech and hate crimes, as well as to analysing from a preventive perspective societal trends leading to such phenomena.