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‘Guardians’ of EU rights also bound by charter


‘Guardians’ of EU rights also bound by charter


European citizens are being reminded that the European Union Charter of Fundamental Rights, which came into force in 2009, is not just legally binding on EU member states: the guardians of those rights are also obliged to stick to the principles.

The charter, which spells out key political, social and economic rights, is also legally binding on EU institutions in all of the actions they take, including when European laws and policies are drawn up. The reminder comes in the latest progress report on the implementation of the document.

There is a clear message that the EU itself must be ‘exemplary’ when it comes to the respect of fundamental rights and that the charter is ‘addressed first and foremost’ to the institutions.

And that message is not new. A statement from the European Commission in 2010 on a strategy for the effective implementation of the rights charter said: ‘The Commission makes regular checks to ensure that its legislative proposals and acts are compatible with the charter. Nevertheless, it must strengthen these checks within the departments drawing up the proposals and acts, introducing “a culture of fundamental rights” into all stages of the procedure.’

The statement also said : ‘That the Union is exemplary is vital not only for people living in the Union but also for the development of the Union itself. Respect for fundamental rights within the EU will help to build mutual trust between the Member States and, more generally, public confidence in the Union’s policies.’

Some EU institutions have already come under pressure themselves regarding the respect of fundamental rights. For example, the European Ombudsman, who investigates citizens complaints against official European bodies and agencies, has already come out and criticised the European Commission on the subject.

The following is a media release issued from the ombudsman’s office in March in a case directly related to one of the rights in the charter: the public’s right to have access to documents.

‘The European Ombudsman, P. Nikiforos Diamandouros, has welcomed the European Commission’s decision to give access to documents drafted by its services on the UK opt-out from the EU Charter of Fundamental Rights.

This follows a complaint from the European Citizen Action Service (ECAS), a Brussels-based NGO, which wanted to find out why UK citizens do not enjoy the same fundamental rights as other EU citizens.

The Commission initially rejected the Ombudsman’s recommendation to disclose the documents. After the Ombudsman addressed a critical remark to the Commission, ECAS again requested access to the documents. The Commission then reviewed its position and released all the documents.

ECAS lodged a complaint with the Ombudsman about the Commission’s refusal to give access to five documents, drafted by its services and concerning the UK opt-out from the EU Charter of Fundamental Rights.

The opt-out was a major issue in the intergovernmental negotiations leading to the adoption of the Lisbon Treaty and the documents were prepared by the Commission in that context. The Commission explained its refusal by referring to the need to protect both the legal advice it receives, as well as its internal decision-making process.

After inspecting the documents, the Ombudsman concluded that the Commission’s arguments for non-disclosure were not convincing. As access to documents is itself one of the fundamental rights guaranteed by the Charter, and as the Commission failed substantively to engage with certain of his arguments, the Ombudsman strongly criticised it for “a most serious instance of maladministration”.

ECAS has now informed the Ombudsman that the Commission reacted to his criticism by releasing all the requested documents.

Mr Diamandouros commented: “Public access to documents concerning how EU law is adopted is key to winning the trust of European citizens. I am therefore delighted that the Commission has finally agreed to give public access to documents concerning how one of the most important EU laws, namely, the Charter of Fundamental Rights, was adopted”.’

Article 42 of the charter spells out: ‘Any citizen of the Union, and any natural or legal person residing or having its registered office in a Member State, has a right of access to documents of the institutions, bodies, offices and agencies of the Union, whatever their medium.’

It is clear that the ‘guardians’ of the charter, who along with the courts have the power to clamp down on member states who do not meet their rights obligations, are themselves not immune to scrutiny when it comes to upholding the principles laid down in the document.

By Seamus Kearney

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