Human Rights Law and Evidence-Based Policy: The Impact of the EU Fundamental Rights Agency 9780367186999, 9780429197727

Citation preview

Human Rights Law and Evidence-Based Policy

The EU Fundamental Rights Agency (FRA) was established to provide evidence-based policy advice to EU institutions and Member States. By blending social science research with traditional normative work, it aims to influence human rights policy processes through new ways of framing empirical realities. The contributors to this volume critically examine the experience of the Agency in its first decade, exploring FRA’s historical, political and legal foundations and its evolving record across major strands of EU fundamental rights. Central themes arising from these chapters include consideration of how the Agency manages the tension between a mandate to advise and the more traditional approach of human rights bodies to ‘monitor’, and how its research impacts the delicate equilibrium between these two contesting roles. FRA’s experience as the first ‘embedded’ human rights agency in transnational governance is also highlighted, suggesting a role for alternative and less oppositional orientations for human rights research. While authors observe the benefits of the technocratic approach to human rights research that is a hallmark of FRA’s evidencebased policy advice, they also note its constraints. FRA’s policy work requires a continued awareness of political realities in Brussels, Member States, and civil society. Consequently, the complex process of determining the Agency’s research agenda reflects the strategic priorities of key actors. This is an important factor in the Agency’s role in the EU human rights landscape. This pioneering position of the Agency should invite reflection on new forms of institutionalized human rights research for the future. Rosemary Byrne is Professor of Legal Studies at New York University Abu Dhabi. Han Entzinger is Professor Emeritus at Erasmus University Rotterdam, where he previously held the chair in Migration and Integration Studies.

Routledge Research in Human Rights Law

Care, Migration and Human Rights Law and Practice Siobhán Mullally China’s Human Rights Lawyers Advocacy and Resistance Eva Pils Indigenous Peoples, Title to Territory, Rights and Resources The Transformative Role of Free Prior and Informed Consent Cathal M. Doyle Civil and Political Rights in Japan A Tribute to Sir Nigel Rodley Edited by Saul J. Takahashi Human Rights, Digital Society and the Law A Research Companion Edited by Mart Susi Criminal Theory and International Human Rights Law Steven Malby Women’s Health and the Limits of Law Domestic and International Perspectives Edited by Irehobhude O. Iyioha For more information about this series, please visit: www.routledge.com/Routledge-Research-in-Human-Rights-Law/book-series/ HUMRIGHTSLAW

Human Rights Law and Evidence-Based Policy The Impact of the EU Fundamental Rights Agency Edited by Rosemary Byrne and Han Entzinger

First published 2020 by Routledge 2 Park Square, Milton Park, Abingdon, Oxon OX14 4RN and by Routledge 52 Vanderbilt Avenue, New York, NY 10017 Routledge is an imprint of the Taylor & Francis Group, an informa business © 2020 selection and editorial matter, Rosemary Byrne and Han Entzinger; individual chapters, the contributors The right of Rosemary Byrne and Han Entzinger to be identified as the authors of the editorial material, and of the authors for their individual chapters, has been asserted in accordance with sections 77 and 78 of the Copyright, Designs and Patents Act 1988. All rights reserved. No part of this book may be reprinted or reproduced or utilised in any form or by any electronic, mechanical, or other means, now known or hereafter invented, including photocopying and recording, or in any information storage or retrieval system, without permission in writing from the publishers. Trademark notice: Product or corporate names may be trademarks or registered trademarks, and are used only for identification and explanation without intent to infringe. British Library Cataloguing-in-Publication Data A catalogue record for this book is available from the British Library Library of Congress Cataloging-in-Publication Data A catalog record has been requested for this book ISBN: 978-0-367-18699-9 (hbk) ISBN: 978-0-429-19772-7 (ebk) Typeset in Galliard by Swales & Willis, Exeter, Devon, UK

This volume is dedicated to Dr Kristīne Krū ma, an exceptional scholar and a much-appreciated member of FRA’s Scientific Committee from June 2013 until her passing on 4 July 2016. Dr Kristīne Krū ma’s career spanned academia and public service. As an academic, she taught first at the University of Latvia (where I was privileged to have her as my undergraduate European Union law lecturer) and then at the Riga Graduate School of Law, where she became the Associate Professor and Pro-rector. Dr Krū ma taught and researched both public international law and European Union law. Her monograph, EU Citizenship, Nationality and Migrant Status: An Ongoing Challenge (Martinus Nijhoff, 2014), and her most influential articles explored the role of citizenship in the contemporary legal order(s). She took her undergraduate degree from the University of Latvia and her master’s and doctorate in law (LL.D.) from the University of Lund. Dr Krū ma started her public service at the Ministry of Foreign Affairs in Latvia, where she was the Head of the International Organizations and Human Rights Policy Division at a time when crucial policy decisions were made regarding the relationship with the Council of Europe, the European Union and NATO. She was (and remains) the youngest appointment to the Constitutional Court of Latvia, where she served as a Judge from 2007 to 2015. Judge Krū ma was widely perceived to be the leading liberal figure on the bench, as one can glimpse from her (rare but

influential) separate opinions. The exceptional respect in which Dr Krū ma was held by the professional and academic community is reflected in her international appointments as an arbitrator of the OSCE Court of Conciliation and Arbitration, an ad hoc Judge of the European Court of Human Rights, a member of the European Commission against Racism and Intolerance and, of course, a member of the EU Fundamental Rights Agency’s Scientific Committee. Dr Krū ma combined the highest professionalism, seriousness of purpose and unaffected modesty with impatience for pretentiousness and humbug, as well as a wonderfully irreverent sense of humour. Her passing is a great loss for those who knew and loved her, and those who care about the rule of law in Latvia and Europe. She is survived by her husband and their daughter. Martins Paparinskis

Contents

Foreword

x

MICHAEL O’FLAHERTY

List of editors and contributors Introduction

xii 1

ROSEMARY BYRNE AND HAN ENTZINGER

PART I

FRA and its policy environment 1 The genesis of the EU Fundamental Rights Agency: why a think tank rather than a monitoring body

11

13

OLIVIER DE SCHUTTER

2 A new agency, and so what? Giving flesh and blood to FRA’s founding Regulation

28

MORTEN KJÆRUM

3 Hand in hand for a better protection of human rights in Europe: the relationship between the Council of Europe and FRA

43

TATIANA TERMACIC

4 FRA’s policy impact and future posture: lessons from the perspective of the European Commission

57

SALLA SAASTAMOINEN

5 Human rights communicators: FRA’s evolving voice on research, rights and policy ROSEMARY BYRNE

69

viii

Contents

6 Exploring the political role of FRA: mandate, resources and opportunities

82

JAN WOUTERS AND MICHAL OVÁDEK

PART II

Researching applied rights 7 FRA as a meeting place of law and social sciences

103 105

HAN ENTZINGER AND GERARD QUINN

8 A reflection on the quality of FRA’s research and methodology

117

ANGELA ME

9 Equality and inclusion: designing research to reconcile rights, ideas and policy practices at FRA 131 HAN ENTZINGER

10 FRA’s efforts to combat hatred, xenophobia and racism

143

FRANÇOISE TULKENS

11 Promoting equality: FRA’s work on Roma

158

JOSÉ MANUEL FRESNO AND JOHANNA NIEMI

12 Violence against women: policy impact and FRA’s evidencebased research

172

ROMAN WIERUSZEWSKI AND KATARZYNA SĘKOWSKA-KOZŁOWSKA

13 Borders and migration control: FRA’s research at protection black spots

185

JENS VEDSTED-HANSEN

14 Embedded EU research on refugee protection: FRA’s work on asylum and irregular migration

197

ROSEMARY BYRNE

PART III

Overcoming constraints

207

15 FRA’s response to the current human rights challenges

209

MANFRED NOWAK AND ANNA MÜLLER-FUNK

Contents

16 Upholding the rule of law in the EU: what role for FRA?

ix 219

LAURENT PECH AND JOELLE GROGAN

17 Concluding reflections on human rights law and evidence-based policy

237

ROSEMARY BYRNE AND HAN ENTZINGER

Index

251

Foreword

I once heard a diplomat express the view that the international community had created a human rights protection system just strong enough to show that it mattered and just weak enough to ensure that it would not be a nuisance for governments. The remark, of course, is fatuous, but it does recall the great challenges in developing an effective human rights architecture at regional and international levels. Where can we locate the Fundamental Rights Agency (FRA) within this construction? To what extent does it strengthen the human rights protection edifice? These are the questions engaged in this volume, edited by Rosemary Byrne and Han Entzinger (both of whom have served as distinguished chairs of the FRA Scientific Committee – a statutory body “composed of eleven independent persons, highly qualified in the field of fundamental rights”). I welcome their initiative and find both the analysis and conclusions of considerable interest. A powerful testimony to the scale of achievement of the agency within its first decade is the declaration by our Management Board in 2018 that it is the European Union’s independent centre of fundamental rights excellence. This volume offers rich evidence and analysis in support of this contention. Whereas the contributions cannot reflect the most recent developments, including the agency’s restructuring and additional focus on capacity building, communication and hands-on-advice, they offer a valuable insight into the work of what I consider to be one of the most interesting and innovative institutions in the international human rights landscape. Research and data analysis – relying on statistical, legal and social science methods – remain at the heart of our activities. These have come to be complemented by an extensive programme of capacity-building and technical support at EU and Member State levels. Our work is enriched by the extent to which the Agency has embedded itself within the broader communities of human/fundamental rights actors. Also, over time a solid complementarity has emerged of our activities and those of the Council of Europe. Beyond our formal outputs, such as reports and other deliverables, we are also widely engaged in delivery of advice to policy and law makers at national and European levels. The FRA’s Fundamental Rights Forum, that takes place every three years in Vienna, is

Foreword

xi

a notable showcase for the current state of the Agency – showing it to be engaged, relevant, diverse and smart. The ultimate test of the Agency must always be its effectiveness – its impact for the strengthening of fundamental rights protection. Across the sectors we see our work making a difference for people. For instance, to take just one aspect of just one area, the situation of migrant children, we can point to strengthened child protection law and practice thanks to FRA research and field work. Regarding our surveys, repeatedly we see how the results trigger the important debates that precede legal and policy shifts. This is well illustrated by the ongoing impact of our 2018 survey on anti-Semitism as well as by our upcoming ‘Fundamental Rights Survey’ which will provide robust evidence of the situation of fundamental rights in the concrete experience of people in the EU (for this purpose, we are currently conducting in-depth interviews with 30,000 persons across the EU). Looking to the future I anticipate a high level of likely impact in such developing work areas as our research on artificial intelligence and fundamental rights. The current healthy state of play must not allow for any form of complacency. The Agency needs to continuously self-reflect, testing the rigour of its methods. That is the context for the attention we are paying, for instance, to the issue of successfully delivering human-rights-related messages in a moment of ascending populism and the spread of misinformation. No less importantly, we must never cease determining if we are engaging the most compelling fundamental rights issues of the moment. It was on this basis that we rapidly re-deployed capacity to respond to the migration crisis that commenced in 2015. Today it is the context for increasing attention to the enjoyment of fundamental rights by our general populations. And as our Management Board has repeatedly indicated, we should be accorded a stronger mandate and the increased resources that are commensurate with both need and expectations. As the Fundamental Rights Agency moves forward in the second decade of its existence I am confident that this volume will provide valuable intellectual support. It will help us repudiate the cynical sentiment that I cited in my opening words. It will show that the European Union, in establishing the Fundamental Rights Agency, showed impressive leadership and delivered a good practice of global significance. Michael O’Flaherty, Director of the EU’s Fundamental Rights Agency

Editors and contributors

The editors Rosemary Byrne is a Professor of Legal Studies at New York University Abu Dhabi. She is a graduate of Barnard College, Columbia University and Harvard Law School, where she earned her JD degree. Her academic and policy career has been in the area of international human rights. She served as a Human Rights Commissioner for the Irish Human Rights Commission, which was established in the aftermath of the Good Friday Agreement. She was a member of FRA’s Scientific Committee from 2013 to 2018, and the Committee’s chair from 2013 to 2015. Previously, she was on the law faculty of Trinity College Dublin, and has been a Visiting Professor of International Law at the Paris School of International Affairs, Institut d’Études Politiques (Sciences Po), a member of the visiting faculty at the China-EU School of Law, China University of Political Science and Law, Beijing, a Human Rights Fellow at Harvard Law School, and a researcher at Jawaharlal Nehru University, New Delhi. Han Entzinger is Professor Emeritus of Migration and Integration Studies at Erasmus University Rotterdam. He was vice-chair (2013–2015) and chair (2015–2018) of FRA’s Scientific Committee. Before joining Erasmus University in 2001, he held a chair in General Social Sciences at Utrecht University. He has worked extensively in different areas of public policy, including for the Scientific Council for Government Policy, a think tank affiliated with the Prime Minister of the Netherlands, and for the International Labour Office (ILO) in Geneva. He studied sociology with economics at the universities of Leiden, Rotterdam and Strasbourg, and obtained his doctorate at Leiden University. His main research interests include migration, migrant integration, multiculturalism, policy making and the welfare state, on which he has published extensively. He has frequently acted as a consultant to the European Union, the Council of Europe, national and local governments on these issues. Since 2016 he has also been a fellow of the Centre for Migration Law at Radboud University in Nijmegen.

Editors and contributors

xiii

The contributors Olivier De Schutter obtained his LLM from Harvard University and his PhD from the University of Louvain (UCL). He is a Professor at the Catholic University of Louvain and at Sciences Po (Paris). He is also a Member of the Global Law School Faculty at New York University and Visiting Professor at Columbia University. From 2002 to 2006 he chaired the EU Network of Independent Experts on Fundamental Rights, a high-level group of experts that advised the European Union institutions on fundamental rights issues. He has acted on a number of occasions as expert for the Council of Europe and for the European Union. From 2004 to 2008 he was the General Secretary of the International Federation of Human Rights (FIDH) on the issue of globalization and human rights. From 2008 to 2014 he served as the UN Special Rapporteur on the right to food, and since 2015 he has been a member of the United Nations Committee on Economic, Social and Cultural Rights. He was a member of FRA’s Scientific Committee from 2013 to 2018. His publications are in the area of international human rights and fundamental rights in the EU, with a particular emphasis on economic and social rights and on the relationship between human rights and governance. José Manuel Fresno is the founder and director of Fresno, the right link, an international consulting firm on social policy based in Madrid. He was a member of FRA’s Scientific Committee from 2013 to 2018. Mr Fresno has 25 years of work experience in positions as Executive Director of major civil society organizations, such as the Fundación Luis Vives and Fundación Secretariado Gitano. He was a member of the ECRI and promoter of the European Antipoverty Network (EAPN Europe). He has a long track record of working with different UN agencies. He has acted as advisor to various social inclusion projects of different European Commission Directorates and the Council of Europe. He has conducted major research projects on Roma inclusion policies, investing in equality and non-discrimination, minimum income schemes and demonstrating the positive impact of social investment. He holds a university degree in Sociology and a Master’s degree in Business Administration. Joelle Grogan is a Senior Lecturer in Law at Middlesex University, London. She was elected as a scholar of Trinity College Dublin, and graduated with distinction from Oxford University where she pursued research on the rule of law in the European Union. Her main areas of research include the intersection between EU and UK public law, legal uncertainty and the realization of the rule of law. She has been involved in large scale and international research projects at Oxford University and Middlesex University. She is a member of RECONNECT, an EU-funded H2020 project, and focusses on the significance of and challenges to the rule of law in the EU. She has served as advisor to citizens’ rights advocacy groups, and is also the creator of Sticky Tricky Law, an online legal education project which makes complex legal concepts accessible to the wider public.

xiv

Editors and contributors

Morten Kjærum is the Director of the Raoul Wallenberg Institute of Human Rights and Humanitarian Law and adjunct Professor at Aalborg University, Denmark. He holds a Master of Law from Aarhus University. From 2008 to 2015 he was Director of the European Union Agency for Fundamental Rights. He is currently Chair of The Board of the European Council on Refugees and Exiles as well as Chair of the Board of Trustees of the Voluntary Fund for Technical Cooperation in the Field of Human Rights and of the Universal Periodic Review, appointed by the UN Secretary General. He was director of the Danish Institute for Human Rights and has, among other things, been a member of the UN Committee on the Elimination of Racial Discrimination as well as Chair of the Network of Directors of EU Agencies and Chair of the International Coordinating Committee for National Human Rights Institutions. Angela Me is the Chief of the Research Branch at the United Nations Office on Drugs and Crime where she oversees global, regional and national research in the areas of drugs and crime. She is responsible for global reference research publications such as the World Drug Report, the Global Report on Trafficking in Persons, the Global Study on Homicide, and the World Wildlife Crime Report. While working for the United Nations since 1995, she has supported countries to improve their statistical and analysis systems, and she has authored, contributed to and supervised the production of analytical reports, international statistical standards, discussion papers and inter-governmental documents in the areas of drugs, crime, population, gender, disability and migration. From 2008 to 2013 she was a member of FRA’s Scientific Committee. As an Italian national, Ms Me holds a PhD in statistics from the University of Padua in Italy. Anna Müller-Funk graduated from Aston University and the University of Birmingham in the UK. She is a senior researcher at the Ludwig Boltzmann Institute of Human Rights and the Academic Coordinator of the Research Centre Human Rights at the University of Vienna, Austria. She has contributed to numerous international, European and Austrian research projects as well as various TWINNING projects. From 2009–2017 she was also the research assistant to the Austrian member of the FRA Management Board. Johanna Niemi (Niemi-Kiesiläinen) is Minna Canth Academy Professor and Professor of Procedural Law, University of Turku. She was a member of the FRA Scientific Committee from 2013 to 2018. Before joining the faculty in Turku she served as vice dean (education) at the University of Helsinki, Finland. She also worked as a professor at Umeå University, as a visiting professor at Lund University and as a Fulbright scholar at the University of Wisconsin. She is Doctor Honoris Causa at Uppsala University, Sweden. Niemi’s research interests include criminal procedures, consumer insolvency, human rights and the construction of gender in legal discourses. She has led several socio-legal research projects. Her publications include Suzan van der Aa, Niemi et al., Mapping the Legislation and Assessing the Impact of Protection Orders in the European Member States, 2015,

Editors and contributors

xv

Nousiainen et al. (eds), Responsible Selves. Women in the Nordic Legal Culture, 2001. Manfred Nowak is Professor of International Human Rights at Vienna University, co-director of the Ludwig Boltzmann Institute of Human Rights (BIM) and Secretary-General of the European Inter-University Centre for Human Rights and Democratisation (EIUC) in Venice. He is also Independent Expert leading the UN Global Study on Children Deprived of Liberty. In the past he was judge at the Human Rights Chamber for Bosnia and Herzegovina in Sarajevo and held various expert positions in the United Nations (e.g., Independent Expert on Enforced Disappearances and Special Rapporteur on Torture), the Council of Europe, the OSCE and the EU, including Vice-Chair of FRA’s Management and Executive Boards (2012–2017). He was also Director of the Netherlands Institute of Human Rights (SIM) at Utrecht University and Visiting Professor at various other universities, including Lund, Geneva and Stanford. He has published more than 600 academic articles and books in the field of public and international law, human rights and politics. Michal Ovádek is a PhD researcher at the Centre for Legal Theory and Empirical Jurisprudence, KU Leuven, Belgium. His research focusses on the interplay between law and politics in the European Union, in particular the contestation of legislative procedures and competences. Michal worked previously as a researcher at the Leuven Centre for Global Governance Studies on the Horizon 2020 project ‘Reconciling Europe with its Citizens through Democracy and Rule of Law’ (RECONNECT) and the FP7 project ‘Fostering Human Rights Among European Policies’ (FRAME). Michal holds degrees in international relations and international and European law from the College of Europe and the University of Groningen. He was a trainee at FRA in 2016. Martins Paparinskis is Reader in Public International Law at University College London, Faculty of Laws, which he joined in 2013 from the University of Oxford. He is a generalist public international lawyer with a variety of specialist interests, including international human rights law. Martins is the book review editor of the Journal of World Investment and Trade, a co-editor of Current Legal Problems and a member of the UCL Press Executive Group (editorial board). He is also a member of the World Bank’s ICSID Panel of Arbitrators (since 2014), the Permanent Court of Arbitration (since 2017) and the implementation committee of the UNECE Water Convention (since 2018). Since 2017 he has been the Latvian member of the Management Board of the EU Fundamental Rights Agency. Laurent Pech is Professor of European Law and Head of the Law and Politics Department at Middlesex University, London. Professor Pech is currently a member of the editorial board of the Hague Journal on the Rule of Law and a member of the EU H2020-funded RECONNECT project: www.reconnecteurope.eu. His most recent academic publications focussing on the rule of law include: Why Autocrats Love Constitutional Identity and Constitutional Pluralism –

xvi

Editors and contributors

Lessons from Hungary and Poland, RECONNECT Working Paper No. 2. September 2018 (co-authored with Professor Kelemen); ‘Illiberalism Within: Rule of Law Backsliding in the EU’ (2017) in the Cambridge Yearbook of European Legal Studies (co-authored with Professor Scheppele). Professor Pech was also the lead author of a research report commissioned by the European Parliament on the establishment of an EU mechanism on Democracy, the Rule of Law and Fundamental Rights (PE 579.328, April 2016). He also regularly publishes on legal blogs such as the Verfassungsblog: https://verfassungsblog.de/author/laurent-pech/. Gerard Quinn holds two research chairs at the Raoul Wallenberg Institute, Faculty of Law, at the University of Lund, Sweden, and at Leeds University, UK. A graduate of Harvard Law School, the King’s Inns, Dublin, and the National University of Ireland, he formerly held a chair at the National University of Ireland where he founded and directed a Centre on Disability Law & Policy. He served as First Vice-President of the European Committee on Social Rights (a human rights monitoring body on economic and social rights in the Council of Europe) from 2001–2006. He was the lead ‘focal point’ for the global network of National Human Rights Institutions (NHRIs) during much of the negotiations of the UN Convention on the Rights of Persons with Disabilities and was head of delegation for Rehabilitation International during the UN Working Group (2004) that laid the basis for the text of the disability treaty. He has received three lifetime awards for his work on international disability law – from Rehabilitation International, the US International Council on Disability and the European Association of Service Providers. He was a member of FRA’s Scientific Committee from 2013 to 2018. Salla Saastamoinen is a Director for Civil and Commercial Justice in Directorate-General Justice and Consumers at the European Commission. She was the desk official in charge of the establishment of the Fundamental Rights Agency at DG Justice in 2003–2007, and later, as Head of Unit Fundamental Rights and Rights of the Child, a member of the FRA Management Board in 2013–2014. Salla Saastamoinen has worked in the European Commission since 1996, first as lawyer in DG Environment and then in various positions in DG Justice. As Director for Equality, she was also a member of the Management Board of the European Institute for Gender Equality (EIGE) in 2014–2016. She is a Licentiate of Laws from the University of Helsinki, Finland, and has postgraduate studies in law from the Europa-Institut, University of Saarbrücken, Germany and University of Zürich, Switzerland. Katarzyna Sękowska-Kozłowska holds a PhD in Law and is an assistant professor at the Institute of Law Studies of the Polish Academy of Sciences, Poland. She is also the director of the Poznań Human Rights Centre of the Institute of Law Studies of the Polish Academy of Sciences and a member of the scientific board of the Interdisciplinary Centre for Cultural, Gender and Identity Studies of Adam Mickiewicz University, Poland. Her field of research is international human rights law with a focus on gender issues (including reproductive rights, violence against

Editors and contributors

xvii

women, temporary special measures, gender stereotyping). She is the author of a number of academic publications, reports and analyses, and cooperates with numerous non-governmental organizations. Tatiana Termacic heads the Coordination and International Cooperation Division in the Council of Europe’s Directorate General of Human Rights and Rule of Law, and has been the Council of Europe’s contact person with FRA since 1 October 2017. Before that and since joining the Council of Europe in 1999, she held responsibilities in the field of cooperation, supporting member states to fulfil their obligations in areas such as reform of criminal justice systems, the creation and strengthening of judicial and non-judicial remedies, the fight against ill-treatment and impunity, human rights training and case law harmonization. Previously, she worked for the United Nations as a Human Rights Officer for the Special Rapporteur for the former Yugoslavia, Tadeusz Mazowiecki, and as a Research Officer at the International Criminal Tribunal for the former Yugoslavia. She holds a Master’s degree in Comparative Public Law from the Panthéon-Sorbonne University and was called to the Paris Bar in 1992. Françoise Tulkens has a Doctorate in Law, a Master’s degree in Criminology and a Higher Education Teaching Certificate (agrégation de l’enseignement supérieur) in Law. She was a Professor at the University of Louvain, Belgium, and has taught, in Belgium as well as abroad, as a visiting professor at the Universities of Geneva, Leuven, Ottawa, Paris I, Rennes, Strasbourg and Louisiana State University in the fields of general criminal law, comparative and European criminal law, juvenile justice and human rights protection systems. From November 1998 to September 2012 she was a Judge in the European Court of Human Rights, serving as Section President and Vice-President of the Court. She has been an Associate Member of the Belgian Royal Academy since 2011. From 2011 to 2016 she chaired the Board of Governors of the King Baudouin Foundation. In September 2012 she took up an appointment as a member of the United Nations Human Rights Advisory Panel for Kosovo, which completed its work in June 2016. From 2013 to 2018 she was a member of the Scientific Committee of the European Union Fundamental Rights Agency (FRA), serving as Vice-Chair from 2015 to 2018. She holds honorary doctorates from the Universities of Geneva, Limoges, Ottawa, Ghent, Liège and Brighton. Jens Vedsted-Hansen is Professor of Human Rights Law at Aarhus University, Denmark. Before taking up his current position in 1999 he held academic posts at Aalborg University, Faculty of Social Sciences (1980–1983), Aarhus University, School of Law (1983–1995), the Danish Centre for Human Rights (1993–1997) and the Faculty of Law at the University of Copenhagen (1997–1999). He studied law at Aarhus University and obtained the LLD degree in 1997. His research interests include international, European and Danish human rights law, asylum and immigration law, as well as administrative and constitutional law. At the domestic level he served as a member of the

xviii

Editors and contributors

Refugee Appeals Board 1987–1994 and again 2013–2016, and he is currently a member of the Equal Treatment Board. He was the Danish member of the FRA Management Board from 2012 to 2017. As of January 2018, he was appointed member of the European Commission against Racism and Intolerance (ECRI) in respect of Denmark. Roman Wieruszewski is a Professor of Constitutional Law and Human Rights Law at the European High School of Law and Administration in Warsaw, Poland, and a retired professor of the Institute of Law Studies of the Polish Academy of Sciences. He is also a former director of the Poznan Human Rights Centre. From 2013 to 2018 he was a member of FRA’s Scientific Committee. From 1996 to 1998 he served as the Chief of Mission of the UN High Commissioner for the Human Rights Field Operation in the Former Yugoslavia in Sarajevo. He also is a former member of the UN Human Rights Committee, of which he was the vice-chairman from 2002 to 2004, a former member of the Polish Refugee Board (1999 to 2014) and an ad hoc Judge of the European Court of Human Rights. Jan Wouters is Full Professor of International Law and International Organizations, Jean Monnet Chair ad personam European Union and Global Governance, Director of the Institute for International Law and of the Leuven Centre for Global Governance Studies (both a Jean Monnet Centre of Excellence and a University Centre of Excellence) at KU Leuven, Belgium, and President of the University’s Board for International Policy. He is Adjunct Professor at Columbia University, New York, and Visiting Professor at Sciences Po, Paris, LUISS, Rome, and the College of Europe, Bruges. A Member of the Belgian Royal Academy and Of Counsel at Linklaters, he has published widely on international and EU law, international organizations and global governance. He was Coordinator of a large FP7 Project on Fundamental Rights among EU Internal and External Policies, FRAME, in which capacity he often worked together with FRA. He is currently Coordinator of a large Horizon 2020 Project, RECONNECT (Reconnecting Europe with its Citizens through Democracy and Rule of Law). He regularly advises and trains international organizations and governments, and is often asked to comment on international events in the media.

Introduction Rosemary Byrne and Han Entzinger

This book appears at a time when the human rights movement is on the back foot across Europe, intensifying the search for improved models for human rights protection and promotion. The current climate contrasts with the comparatively more optimistic reception that human rights discourse, and indeed European governance, enjoyed over a decade ago when in 2007 the EU Fundamental Rights Agency (FRA) was established.1 Based in Vienna, situated institutionally within the European Union and mandated to provide evidence-based policy advice, the Agency has become integral to the attempts of the EU and many governments to better inform and legitimate policy choices. Yet, in the human rights realm, research has typically been produced outside of, rather than embedded within, governmental or intergovernmental bodies. In many ways, FRA is thus a pilot project for both the EU and the human rights movement. Its experience could be relevant for other regional institutions, such as the African Union or the Organization of American States, and, more generally, rightsbased global governance. The hallmark of the Agency’s approach – fusing law and social science methods, reflecting a shift away from the legal dominance of the human rights field – invites close scrutiny from international, regional, state and nonstate actors. FRA’s Founding Regulation identifies eight tasks for the Agency to fulfil.2 Gabriel Toggenburg subsumes these under three major functions, namely ‘the provision of solid evidence (data collection), policy advice (including technical assistance, capacity building and expert opinions), and the communication of rights (including the building and maintenance of networks)’.3 Thus, the Agency’s work moves beyond the traditional legal model of human rights promotion towards one that explores the lived experience of those affected by EU

1 Council Regulation 168/2007/EC of 15 February 2007 establishing a European Union Agency for Fundamental Rights [2007] OJ L 53/1. 2 Ibid. Art. 4(1)(a–g). 3 Gabriel Toggenburg (2018) ‘The European Union Fundamental Rights Agency’, in: Gerd Oberleitner (Ed.) International Human Rights Institutions, Tribunals and Courts, Singapore: Springer, pp. 443–460.

2

Rosemary Byrne and Han Entzinger

and Member State laws and policies on the ground. The empirical pictures that emerge lend greater credibility and a sharper edge to the Agency’s policy recommendations, enabling the organisation to reveal and respond better to the constantly changing context for rights within and across Member States. Instinctively comparing FRA’s scientific approach with the sophisticated human rights reporting of leading NGOs is misleading, however. The Agency is embedded within the EU institutions it seeks to advise, and it does not have a ‘monitoring’ mandate. Likewise, monitoring NGOs that are masterful at capturing rights violations on the ground, usually through qualitative interviews and often with empirical data, produce advocacy rather than scientific reports. The outcomes of social science research have been used in the construction of Europe, as is evident in the economic theory of the single market or the legal underpinning of the acquis communautaire. Yet it was not until the 2000s that Europe began investing more substantially in social science research.4 In some ways, the Agency is part of this broader process as it performs the functions of an ‘in house’ think tank for the EU. Drawing upon the tradition of evidencebased policy, FRA’s establishment can be seen as an EU investment in science as a mechanism to generate trust in the policy process. It promised new ways of framing realities and developing more sustainable solutions and outcomes. This turn to the social sciences in human rights also demonstrates a recognition that policy systems are not geared to respond speedily or effectively to purely legal analysis.5 As lawyers know well, laws and policies are more successful when tailored to often complex empirical realities on the ground. Yet exploring these complex realities to advance protection requires skilful framing of human-rightsbased questions to direct social science research, the legal background for which is often missing. Without this, the rich potential of the social sciences to inform human rights policy can easily be lost. For FRA, this process occurs within the EU eco-system. In practice, the ‘agencification’ of governance, competition and cooperation across and between regional and national institutions, legal mandates and their tactical applications, networks of stakeholders, communication media and human rights narratives can also affect evidence-based research for human rights policy.

Aims of this collection The central objective of this volume, is to attempt to identify the added value to scholarship and policy that FRA’s approach to evidence-based research provides, as well as the implications of the Agency’s embedded institutional model for evidence-based human rights policy. The Agency is a typical example of what in

4 Kristoffer Kropp (2018) ‘The European Social Survey and European Research Policy: Homological Structures And Conjunctural Alliances’, European Journal of Cultural and Political Sociology 5(3), pp. 295–319, at 306–308. 5 Michael Freeman (2017) Human Rights, Cambridge: Polity. 3rd Edition, especially Ch. 5.

Introduction

3

the sociology of science literature and in policy sciences has become known as a ‘boundary organization’.6 The niche of such organizations is their capacity to connect processes of knowledge production and knowledge utilization. They often occupy positions within both fields and they have to find ways to blur the rules of the game in a way that allows for interaction between them. This has been researched in areas as diverse as technology assessment, climate change and migration, but the concept can be used in human rights as well. Internally, boundary work also involves a degree of balancing so as to maintain authority within the fields of both knowledge production and knowledge utilization. The portrait of FRA’s evolving work that emerges from the perspectives of the scholars, officials and activists who have contributed to this volume illuminates the delicate interplay between the Agency’s research and policy roles. It is also the unfolding story of human rights in Europe. Notwithstanding their different foundations, the terms ‘human’ and ‘fundamental’ rights are typically used interchangeably in human rights literature; our contributors follow this usage too. The EU Charter on Fundamental Rights applies to EU institutions and bodies, and only to Member States when they are implementing EU law. Unless authors are explicitly discussing the Charter itself, their mention of ‘fundamental rights’ should be understood as engaging with universal and regional human rights law. Furthermore, the membership of the EU has changed over the years, a dynamic we anticipate will continue with Brexit. Hence the text of this volume may refer to different numbers of Member States, depending upon period and context. Five themes recur in the chapters that follow. The first theme concerns the struggles over FRA’s mandate. The mandate gives the Agency the power to advise but not monitor. This raises core questions about the interplay between the mandate of a human rights research body and the scientific process. More centrally, in a field where the law and social sciences has typically fused to monitor state practice, how does an official body without monitoring powers navigate the boundaries between monitoring and research of rights realities on the ground? When the Agency engages in research reports on Member States, in comparative or in longitudinal research, it provides a de facto benchmarking system for human rights practices in Member States. Is this form of research an adapted form of monitoring, and, if so, is it a viable way to proceed? What does this tell us about the nature of human rights evidence and its strategic uses?

6 David H. Guston (2000) Between Politics and Science. Assuring the Integrity and Productivity of Research, New Brunswick, NJ: Rutgers University; Clark A. Miller (2001) ‘Hybrid Management. Boundary Organizations, Science Policy and Environmental Governance in the Climate Regime’, Science Technology and Human Values 26(4), pp. 478–500; Robert Hoppe (2005) ‘Rethinking the Science-Policy Dialogue Structure: From Knowledge Utilization and Science Technology Studies to Types of Boundary Arrangements’, Poiesis & Praxis: International Journal of Technology Assessment and Ethics of Science 3(3), pp. 199–215.

4

Rosemary Byrne and Han Entzinger

The second theme relates to the conflicts that arise with embedded research, especially given the prevailing nature of human rights research that typically assumes an oppositional analysis of state policies and practices. To what extent can a humanrights-based research centre maintain its integrity and credibility when it is part of institutional governance? FRA is not merely a research centre. It also provides policy advice and raises awareness of human rights among EU citizens, directly through its communication activities, and indirectly through its close contacts with NGOs in the field. This makes the question of whether the Agency’s delicate position affects the interface with external research communities even more pressing. In all fields in the EU, there is increased movement of scholars across different academic, political and bureaucratic spaces. When boundaries between these domains are permeable, what is the effect on knowledge production? In the realm of human rights, which is positioned as a contesting voice of dissent, one may ask if this is a compromised space for academics, or rather an additional avenue for influence, if entered with self-awareness. The nature of FRA’s technocratic approach to human rights research is the third theme. A technocratic approach, in the words of Scholten et al., implies that ‘researchers not only provide knowledge, but they also frame policy problems and develop solutions’.7 This has been an established feature of much human rights promotion work. It has the advantage of depoliticizing often sensitive or contentious issues through using language devices such as ‘promising practices’ or sterile descriptions of mechanisms for legal and bureaucratic reform. The questions that technocratic research poses are often focussed on the practical policy problems of governance; their answers usually seek to drive incremental improvements. This might entail a nuts-and-bolts breakdown of practices on the ground, rather than a deep exploration of the underlying principles and assumptions that drive or misguide these policies. Does the decade plus of evidence-based human rights policy now available reveal this technocratic strategy as an important advance for protection? Or does it signal the risks of reinforcing underlying constructs of EU power and policy that ultimately undermine fundamental rights? The steady backdrop of political considerations in the operation and research of the Agency provides this volume’s fourth theme: who sets FRA’s research agenda within the EU’s opaque, cumbersome bureaucratic and political processes? Compared with most scientific researchers, FRA’s embedded nature also means that its relative lack of independence puts great pressure on its researchers to ensure the integrity and standards of their work. Does FRA’s experience offer insights into how institutions with political constraints and finite resources can effectively anticipate and proactively engage with rapidly emerging human rights challenges?

7 Peter Scholten, Han Entzinger and Rinus Penninx (2015) ‘Research-Policy Dialogues on Migrant Integration in Europe. A Conceptual Framework and Key Questions’, in: Peter Scholten et al. (Eds) Integrating Immigrants in Europe: Research-Policy Dialogues, Cham: Springer, pp. 4–5.

Introduction

5

The fifth and final theme of this book is about the relationship between the Agency and regionalism in human rights within a diverse Europe. How does a regional body engage with the challenges of researching rights in a diverse and enlarged EU? Differences in culture and traditions lead to differences in the way human rights are implemented, experienced and enforced. How do such differences manifest and to what extent do they limit research, regionalism and rights protection? These five themes emerge from chapters that address the institutional and scientific implications of evidence-based human rights policy within an evolving EU agency that can be characterized as a typical ‘boundary organization’. The analysis seeks to supplement the rich debates that have emerged in the literature around evidence-based policy research to understand FRA’s interaction with the surrounding historical, political and legal context; the implications of FRA’s mandate; and the impact of constraints on an embedded research body. All of the contributors are to some extent aligned with the overall project of the Agency to use human rights evidence for advancing EU policy. Deeper structural critiques of embedded evidence-based research for human rights policy are left for future debate.

The contributors Independent academics and policy makers, all of whom have direct experience with FRA’s work, author the collection of chapters in this book. They include leading experts in thematic areas central to the Agency’s mandate, as well as academics who have served either on FRA’s Scientific Committee, established under the Agency’s Founding Regulation to ‘be the guarantor of the scientific quality of the Agency’s work’, or on the Agency’s Management Board. The majority of contributors have a background in law, mostly in human rights law. The other contributors are social scientists. Unlike the lawyers, few of the latter would readily identify themselves as human rights specialists, in spite of their work overlapping with many core areas of the human rights field. Consequently, this book reflects the multidisciplinary nature of much of FRA’s work and thus its most distinctive characteristic. The desire to provide critical, close analysis of the Agency’s internal mechanics while objectively considering its scientific processes, output and impact has driven this project. The authors have attempted to navigate the complexities, advantages and disadvantages of the Agency’s embedded research agenda. Fundamentally, this book seeks to reflect the varying perspectives of actors within and outside of the institutional framework.

The structure and logic of the volume Part I of this volume sets the scene, presenting FRA’s genesis, its mandate, its policy environment and how it communicates to its stakeholders. Part II describes the main characteristics of FRA’s approach. Its first three chapters

6

Rosemary Byrne and Han Entzinger

focus on methodological challenges: particularly those that arise from the Agency’s multidisciplinary research into policy and practice. The next five chapters are thematic. They explore the impact of a range of central rights issues on the European agenda over the first decade of FRA’s existence, covering only a small part of all fundamental rights areas on which the Agency works. Preference was given to thematic areas where FRA has fulfilled a pioneering or agenda-setting role: hate crime, violence against women, the position of the Roma, migration and asylum. Part III, the final part of the book, assesses broadly what FRA has achieved during its first decade of existence, and what shifts within and outside the Agency have taken place in this period. It also looks ahead, trying to define a role for FRA in light of the current human rights challenges facing the EU and some of its Member States. Olivier De Schutter provides in Chapter 1 the historical backdrop that led to the establishment of the Fundamental Rights Agency. He examines FRA’s genesis, places it in the inter-institutional context of the EU and explores the institutional and political concerns that led to the mandate in the Founding Regulation rejecting a monitoring role for the Agency. FRA was instead vested with the power to offer technical advice based on its collection and analysis of information pertaining to fundamental rights in Member States. In Chapter 2, Morten Kjærum, the Agency’s first director, recalls the early years and the challenges of shaping the institution with what some considered a ‘non-mandate’ meant to prevent in-country human rights monitoring within Member States. He discusses how FRA established its role within the field of institutional actors by finding complementary common ground and working on the wide range of rights that fell within the Agency’s remit. The core function of producing evidence-based policy advice was one that FRA itself derived from the designated discrete tasks under the Founding Regulation. Next, in Chapter 3, Tatiana Termacic looks at the delicate relationship arising from the overlapping competencies of FRA and the Council of Europe from the vantage point of Strasbourg. She discusses key thematic areas where potential conflict and tension between the two bodies have been translated into effective collaboration by amplifying resources and policy work in areas such as children’s rights, anti-discrimination and surveillance. In an era of increasing fragmentation of human rights bodies, this chapter offers a model for complementarity in inter-institutional relationships. Many FRA observers continuously watch for the degree of independence it is able to enjoy from the European Commission, perhaps the most relevant of FRA’s stakeholder organizations. In Chapter 4, from the perspective of the Commission Salla Saastamoinen considers the Agency’s policy impact. She argues that FRA’s added value lies above all in its availability as an EU internal human rights monitoring mechanism and its use of sociological-statistical methods to demonstrate fundamental rights. Views vary on how much FRA has influenced the work of the Commission, but the benefits of its research are obvious in a number of relevant policy areas.

Introduction

7

In Chapter 5, Rosemary Byrne considers the evolution of FRA’s communication about human rights in a decade marked by the universal revolution in communication methods and technology. This upheaval has occurred in tandem with a transformed political environment. In the early years of the Agency’s existence, rights language enjoyed greater legitimacy in the public sphere, but it has become increasingly engaged within polarized discourses. After serving as a mere conduit of rights-based research, in this latter period the communication of human rights has emerged as a freestanding sub-field, where the Agency has fostered a collective conversation on messaging rights with wider civil society. FRA occupies a specific place in the network of decentralized EU agencies. The politically sensitive nature of fundamental rights and the existence of a great range of actors, both EU and non-EU, to supply expertise in this field conditions the political role the Agency plays in the EU system. This is explored in Chapter 6 by Jan Wouters and Michal Ovádek through the prism of three crucial factors: the mandate of the Agency, its budgetary and staff resources, and the opportunities for policy relevance at the EU level. Their analysis points to a grounded view of FRA’s political role – which is arguably in keeping with the intentions surrounding the Agency’s creation. Part II of the book opens with Chapter 7. Here Han Entzinger and Gerard Quinn analyze how FRA combines theories and methodologies of different disciplines, particularly across law and social sciences. This approach proves useful for a better understanding of the experiences of vulnerable communities, as well as of those charged with law enforcement and implementing fundamental rights in every-day practice. The authors identify four advantages of FRA’s interdisciplinary approach: it may reveal facts that would otherwise have remained hidden; it enhances legislative effectiveness; it encourages researchers to ‘park their ideological and cultural baggage’ and, finally, in FRA’s specific setting as an EU Agency, it may help to avoid interinstitutional competition. In Chapter 8, Angela Me investigates the types of data collection and research that FRA undertakes and analyzes its methodologies. Fundamental rights have hardly been researched from a quantitative perspective, and existing national registration systems have been of little help here. Therefore, in a vast range of policy areas the Agency had to generate its own data often through surveys. The fact that FRA’s work covers all Member States poses particular challenges for the use of terminology and the comparability and reliability of statistics and registration systems. The author suggests that FRA focusses its resources more strategically, on areas such as testing new methodologies, defining parameters to ensure comparability, collecting data on emerging issues and developing early warning systems. In Chapter 9, Han Entzinger discusses the concepts of equality and social inclusion, both crucial in the Agency’s work. Initially, the main idea behind much of FRA’s work was that inclusion needed to take place within a framework that respects fundamental rights. The reverse view has gradually also gained momentum: that promoting inclusion and integration can also

8

Rosemary Byrne and Han Entzinger

facilitate enjoyment of fundamental rights. FRA not only examines how fundamental rights are embedded in legislative processes, it also tries to find out how these work in practice. Yet providing policy prescriptions that will achieve genuine equality and inclusion across the EU remains an unmet challenge. The author mentions several obstacles, such as the limited role of the EU in social policy matters, and the fact that inclusion is defined increasingly in cultural rather than in social and economic terms. Hatred, xenophobia and racism are three phenomena that clearly undermine fundamental rights. Françoise Tulkens explores in Chapter 10 why and how the Agency has put the study of these phenomena high on its agenda, and how its interdisciplinary methodologies have complemented the predominantly legal approach of other international bodies. Several EU-wide surveys have generated substantial factual knowledge on the spread of these phenomena. For FRA, this knowledge has served to raise awareness throughout the EU, particularly among professionals. It has also served as an incentive for action, not only at the EU level, but equally by Member States and NGOs. Consecutive FRA surveys on the Roma have shown scant progress in their situation in most Member States over the past decade, despite increased attention on discrimination against them and substantial support from the EU, also of a financial nature. In Chapter 11, José Manuel Fresno and Johanna Niemi analyze FRA’s work on the Roma, while attempting to assess why improving their situation remains so difficult. They argue that the Roma suffer from a lack of fundamental rights on a variety of strongly interrelated fronts; this may explain why their situation is so resistant to improved outcomes. The authors claim that a rights-based approach alone is insufficient. Also needed are coordinated, targeted and thoroughly monitored inclusion policies, preferably at the local level. Roman Wieruszewski and Katarzyna Sękowska-Kozłowska examine the Agency’s work on violence against women in Chapter 12. They focus on FRA’s research on the nature and frequency of violence experienced by 42,000 randomly selected women that the Agency surveyed. The widespread occurrence of violence that this survey revealed, also in Member States reputed for their gender equality policies, came as a surprise to many. The survey received considerable international attention, and its report is widely cited in public debates across the EU. The study offers valuable research illustrating the link between violence against women and their structurally weak position in society. In Chapter 13, Jens Vedsted-Hansen discusses FRA’s work in monitoring the implementation of fundamental rights in migration control, particularly at borders. FRA has carried out several studies on how controls at EU sea, air and land borders actually take place. These studies illustrate the Agency’s socio-legal approach to applied rights research on the ground. The precarity of human rights protection at borders is considerably enhanced when controls shift location, are carried out extraterritorially, outsourced to third states or through cooperative arrangements with non-EU states, such as Turkey. FRA’s research has provided important empirical evidence and normative guidance in these matters.

Introduction

9

Rosemary Byrne next reflects on FRA’s work on asylum and irregular immigration. In Chapter 14 she argues that, while much academic scholarship focusses on the EU legal rights framework up to and including status determination, FRA’s work engages significantly with the vulnerability of rejected asylum seekers and other irregular migrants who are arguably among the individuals most at risk within Member States. The recent asylum crisis has prompted FRA to explore forms of ‘real time’ research, meant to capture the rights holders’ ‘lived experience’. At times, this requires being embedded in places that would otherwise not have been accessible for research, such as refugee camps in Greece, notwithstanding real or perceived challenges that this poses to institutional independence. Part III of the book starts with Manfred Nowak and Anna Müller-Funk observing in Chapter 15 that the human rights situation in Europe in particular and the world in general was better when FRA began its activities in 2007 than it is today. Since then, we have witnessed a huge financial crisis, the migration crisis, and the rise of populist and nationalist movements in a significant number of Member States. The authors consider how FRA could respond to these developments. Should its mandate be expanded so that EU institutions can directly use its growing body of knowledge to further promote fundamental rights? Or should the Agency continue to operate as a think tank, capitalizing on its role linking civil society and policymakers? Nowak and Müller-Funk weigh the pros and cons of both options. In Chapter 16, Laurent Pech and Joelle Grogan discuss issues around FRA’s future role. They argue that FRA is only marginally involved in the EU’s rule of law mechanisms. In recent years, both the Commission and the Council have stepped up efforts to promote dialogue between Member States on the rule of law. This has happened as a response to undesirable developments in some Member States, particularly in Poland and Hungary. A major problem here is that the Union cannot extend its involvement to areas beyond those governed by EU law. The European Parliament has stepped in, proposing a new mechanism to monitor more effectively Member States’ continued adherence to EU core values. FRA could play a role in this. Nonetheless there is also some hesitation in clearly mandating FRA to monitor compliance with the rule of law and to help detect emerging systemic threats or violations. In conclusion, in Chapter 17, editors Rosemary Byrne and Han Entzinger consider evidence-based advice for human rights policy using insights from the expert authors on the innovative institutional and methodological precedents that a human rights agency embedded within the EU has established. The five themes noted earlier are explored: how evidence-based policy advice confronts the Agency with the boundaries of its ambiguous mandate; how institutional embeddedness requires acceptance of different levels of independence, which would typically be seen as compromising in human rights scholarship; how technocratic evidence-gathering that seeks to influence policy invites different metrics for research success; how the rather opaque approach to setting research agendas relates to effectiveness; and, finally, how regionalism and diversity create

10

Rosemary Byrne and Han Entzinger

pragmatic challenges for an Agency like FRA. We conclude with reflections on the need for stakeholders to adapt how they view this new type of institution for evidence-based policy advising on human rights, and the mutual obligation and benefit for academia and FRA of engaging more closely. We are very grateful to many who contributed to the writing and production of this volume. Financial support for editorial assistance was generously provided by New York University Abu Dhabi. Olivier De Schutter and Gerard Quinn provided important intellectual grounding at the early stages of this project, while Patricia Prendiville helped us better understand the practical impact of FRA’s work. FRA Senior Legal Advisor Gabriel Toggenburg generously shared his unparalleled expertise on FRA from a legal and historical perspective. We also owe special thanks to Joanna Goodey and Ioannis Dimitrakopoulos for their comments, to the many FRA staff who have kindly shared their insights and expertise over many years, and to Ciara O’Rourke and Micheline Tusenius for their editorial support. Last but not least, Afsheen Siddiqi provided outstanding administrative support with her characteristic wisdom and energy.

Part I

FRA and its policy environment

1

The genesis of the EU Fundamental Rights Agency Why a think tank rather than a monitoring body Olivier De Schutter

Introduction The Fundamental Rights Agency of the European Union was effectively set up in early 2008. Its mandate, according to its founding Regulation, is to provide the relevant institutions, bodies, offices and agencies of the Community and its Member States when implementing Community 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.1 It thus constitutes a pole of expertise, which the institutions of the European Union and the EU Member States may rely upon in order to improve compliance with fundamental rights, as part of EU law. Over the past ten years, it has fulfilled its mission by publishing a number of reports and opinions, mostly informed by a comparative overview of the situation of fundamental rights in the EU Member States, and combining in its assessment legal analysis with empirical findings, informed by the methodologies of social sciences. It has made a difference. This chapter recalls the context in which the Member States decided to establish a new ‘Human Rights Agency’ for the EU, and why the new agency – soon re-labelled ‘Fundamental Rights Agency’ by the Commission – was not given a monitoring role. This choice was guided, in part, by mere inertia: despite the mixed record of the EU Monitoring Centre on Racism and Xenophobia (EUMC), to which the Fundamental Rights Agency was to succeed (providing a more elegant solution than if the EUMC were simply to close down without being replaced), the model provided by the EUMC continued to prevail, forming a focal point for the negotiations within the Working Group of the Council of the EU. But even more importantly, the

1 Council Regulation (EC) No 168/2007 of 15 February 2007 establishing a European Union Agency for Fundamental Rights, OJ L 53, 22.2.2007, p. 1 (Art. 2).

14

Olivier De Schutter

Agency’s mandate was discussed at a time when the relationships between the EU and the Council of Europe were at their lowest point: whereas, for many years, the EU had been seen as doing too little in the area of fundamental rights, it suddenly was perceived as wanting to do too much, at the risk of marginalizing its sister organization on the European continent. Though the establishment of the Fundamental Rights Agency was a response to the call for the EU to enhance the visibility of fundamental rights in the Union, the relatively narrow definition of the mandate of the Fundamental Rights Agency reflects this fear – and the fears, ultimately, weighed more in the balance than the professed ambitions.

Building a new ‘Human Rights Agency’ to succeed to the EU Monitoring Centre on Racism and Xenophobia (EUMC) When the Heads of States and Governments of the Member States announced at their Brussels European Council of 13 December 2003 their intention to extend the mandate of the EU Monitoring Centre on Racism and Xenophobia (EUMC) in order to create a ‘Human Rights Agency’2 entrusted with the mission to collect and analyze data in order to define the policy of the Union in this field, most observers were taken by surprise. The announcement was made without any feasibility study being prepared, and essentially, it would seem, to reinforce the presence of the Union in Vienna and to find a dignified solution to the need to reform the EU Monitoring Centre on Racism and Xenophobia. Indeed, understandable in retrospect, the very choice of the European Council to create the Human Rights Agency by enlarging the competences of the EU Monitoring Centre on Racism and Xenophobia (EUMC)3 was not necessarily obvious when that option was proposed. At the time when the European Council announced its decision, the European Commission had already concluded, on the basis of an external evaluation of the activities of the EUMC between its creation in 1998 and end in 2001,4 that

2 The expression ‘Human Rights Agency’ was also used in the Hague Programme on the strengthening of Freedom, Security and Justice in the Union appended to the conclusions of the European Council of 4–5 November 2004. 3 This Monitoring Centre, sometimes referred to as the Vienna Observatory, was created by the Council Regulation (EC) 1035/97 of 2 June 1997 establishing a European Monitoring Centre on Racism and Xenophobia, OJ L 151 of 10.6.1997, p. 1. According to Article 2(1) of its instituting Regulation, the EUMC must ‘provide the Community and its Member States ( … ) with objective, reliable and comparable data at European level on the phenomena of racism, xenophobia and anti-Semitism in order to help them when they take measures or formulate courses of action within their respective spheres of competence’. 4 http://europa.eu.int/comm/employment_social/fundamental_rights/pdf/origin/eumc_eva l2002_en.pdf.

The genesis of the EU Fundamental Rights Agency

15

the Centre should continue to concentrate on racism and that an extension to other fields would be an unwelcome distraction within the limits of the resources likely to be available to the Centre and that it would lead to a weakening of the emphasis on racism.5 The choice to broaden the mandate of the EUMC by transforming it into a Human Rights Agency seemed to go in the exact opposite direction, although that expansion was to be accompanied, obviously, with a significant increase in the resources. The context, luckily, was a propitious one. First, the Charter of Fundamental Rights of the European Union had been proclaimed, on 7 December 2000, at the Nice European Summit.6 Inspired by the fundamental rights recognized by the European Court of Justice among the general principles of law it ensures respect for, and by the international human rights instruments binding upon the EU Member States, the Charter presented itself as an authoritative restatement of the acquis of the Union in the field of fundamental rights. But its main impact was not as a legal document – indeed, the Charter did not even have a binding force when it was initially proclaimed – its impact resided in the transformation it brought about in the culture and the practice of the institutions. On the basis of the Charter, it became possible for the European Parliament to systematically check whether the legislative proposals on which it deliberates comply with the rights, freedoms and principles which had been proclaimed in Nice. The Commission too announced its intention to verify the compatibility of its proposals with the Charter in 2001,7 a practice which, in more recent years, it has significantly improved.8 Invoking fundamental rights within the EU thus became routine in the work of the institutions, now that there existed a document, prepared under conditions which guaranteed it a high degree of legitimacy, which listed the said rights. The second development was the entry into force, on 1 May 1999, of the Treaty of Amsterdam. This Treaty not only formulated (in what was then Article 6(1) EU) the values on which the Union was founded, which included human

5 Communication from the Commission to the Council, the European Parliament, the European Economic and Social Committee and the Committee of the Regions on the Activities of the European Monitoring Centre on Racism and Xenophobia, together with proposals to recast Council Regulation (EC) 1035/97, COM(2003)483 final of 5.8.2003. 6 OJ C 364 of 18.12.2000, p. 1. 7 SEC(2001) 380/3. 8 For a systematic discussion, see O. De Schutter, The Implementation of the Charter of Fundamental Rights in the EU Institutional Framework, Study Prepared for the Committee on Constitutional Affairs of the European Parliament, study prepared for the Committee on Constitutional Affairs of the European Parliament, PE 571.397 (Policy Department for Citizens’ Rights and Constitutional Affairs, 2016); and O. De Schutter, ‘The Implementation of the Charter by the Institutions of the European Union’, in: S. Peers, T. Hervey, J. Kenner and A. Ward (eds), The EU Charter of Fundamental Rights. A Commentary, Hart Publ., Oxford and Portland, Oregon, 2014, pp. 1627–1655.

16

Olivier De Schutter

rights and fundamental freedoms,9 it also backed up this affirmation by a mechanism provided for in Article 7 EU, allowing for the adoption of sanctions against a State committing a serious and persistent breach of these values. In addition, following the crisis opened by the accession to power in Austria of a governmental coalition including a party from the far right in 2000,10 this mechanism was improved by the Treaty of Nice (in force since 1 April 2003), which introduced the possibility of recommendations being adopted preventively, where a ‘clear risk of a serious breach’ of those values is found to be present.11 The inclusion of such a mechanism soon raised the question of whether these provisions of the Treaty on the European Union should lead to a permanent monitoring of the situation of fundamental rights in the Member States of the European Union. The European Parliament, through its Committee on Civil Liberties, Justice and Home Affairs (LIBE Committee), took the leading role in this matter. As it noted itself, the Treaty of Nice ‘acknowledges Parliament’s special role as an advocate for European citizens’ by granting the European Parliament the right to call for a procedure to be opened in the event of a clear risk of a serious breach.12 But even

9 The Treaty of Amsterdam amended Article F, § 1, of the Treaty on the European Union (later renumbered Article 6(1)) to include a provision stating: ‘The Union is founded on the principles of liberty, democracy, respect for human rights and fundamental freedoms, and the rule of law, principles which are common to the Member States’. The original version of this clause, as it appears in the Treaty on the European Union signed in Maastricht on 7 February 1992 (in force on 1 November 1993), stated that ‘The Union shall respect the national identities of its Member States, whose systems of government are founded on the principles of democracy’. For the current version of this clause, now in Article 2 TEU, see above, note 4. 10 The crisis was opened by the entry into the Austrian governmental coalition of the Austrian Freedom Party (FPÖ) of Jörg Haider in early 2000. This led the EU Member States to suspend all bilateral contacts with the Austrian government, thus expressing their discontent about allowing an extreme-right political party to be trusted with governmental responsibilities. The crisis could only be overcome after a committee of three ‘Wise Persons’ delivered an opinion in which they concluded that, although Austria had not been acting in breach of the values on which the Union is founded, a preventive mechanism should be inserted in Article 7 TEU, allowing the Council of the EU to address recommendations to a Member State where such a risk is deemed to be present. On this crisis, see M. Merlingen, C. Muddle and U. Sedelmeier, ‘The Right and the Righteous? European Norms, Domestic Politics and the Sanctions against Austria’, Journal of Common Market Studies, vol. 39 (2001), p. 59; M. Happold, ‘Fourteen against One: The EU Member States’ Response to Freedom Party Participation in the Austrian Government’, International and Comparative Law Quarterly, vol. 49 (2000), p. 953; and E. Bribosia, O. De Schutter, T. Ronse and A. Weyembergh, ‘Le contrôle par l’Union européenne du respect de la démocratie et des droits de l’homme par ses Etats membres: à propos de l’Autriche’, Journal des tribunaux – Droit européen, vol. 65 (March 2000), pp. 61–65. On the insertion of Article 7(1) EU by the Treaty of Nice, see G. de Búrca, ‘Beyond the Charter: How Enlargement has Enlarged the Human Rights Policy of the EU’, in O. De Schutter and S. Deakin (eds), Social Rights and Market Forces: Is the Open Coordination of Employment and Social Policies the Future of Social Europe? Bruylant, Bruxelles, 2005, pp. 245–278, at pp. 259–262. 11 This preventive mechanism is now described in Article 7(1) EU. 12 See the Report on the Commission communication on Article 7 of the Treaty on European Union: Respect for and promotion of the values on which the Union is based (COM(2003)

The genesis of the EU Fundamental Rights Agency

17

before that Treaty entered into force, the European Parliament inaugurated the practice of adopting annual reports on the situation of fundamental rights in the Union. The adoption of the EU Charter of Fundamental Rights at the Nice Summit of 2000 facilitated that practice, making it both easier and more legitimate by providing a clearer grid of analysis by which to analyze the practice of the EU Member States.13 The monitoring role of the Parliament was justified by the consideration that, following the proclamation of the Charter, it is […] the responsibility of the EU institutions to take whatever initiatives will enable them to exercise their role in monitoring respect for fundamental rights in the Member States, bearing in mind the commitments they assumed in signing the Treaty of Nice on 27 February 2001, with particular reference to new Article 7(1), and that it is the particular responsibility of the European Parliament (by virtue of the role conferred on it under the new Article 7(1) of the Treaty of Nice) and of its appropriate committee [the LIBE Committee] to ensure […] that both the EU institutions and the Member States uphold the rights set out in the various sections of the Charter.14

606 – C5-0594/2003–2003/2249(INI)) (rapp. J. Voggenhuber), para. 6 of the proposal for a resolution; this passage has been maintained without amendment in the European Parliament legislative resolution on the Commission communication on Article 7 of the Treaty on European Union: Respect for and promotion of the values on which the Union is based (COM(2003) 606 – C5-0594/2003–2003/2249(INI)), adopted on 20 April 2004 (see para. 6 of the operative part of the resolution). 13 See the Report on the situation as regards fundamental rights in the European Union (2000) (rapp. Th. Cornillet), PE 302.216/DEF, EP doc. A5-0223/2001 (2000/2231(INI)); the Report on the human rights situation in the European Union (2001) (rapp. J. Swiebel), PE 311.039/DEF, EP doc. A5-0451/2002 (2001/2014(INI)) (and Resolution of 15 January 2003 on the situation concerning fundamental rights in the European Union (2001), OJ C 38 E, 12.2.2004, p. 174); Report on the situation as regards fundamental rights in the European Union (2002) (rapp. F. Sylla), PE 329.881/DEF, EP doc. A5-0281/2003 (2002/2013(INI)) (and Resolution of 4 September 2003 on the situation as regards fundamental rights in the European Union (2002), P5_TA(2003)0376); Report on the situation as regards fundamental rights in the European Union (2003) (rapp. A. Boumediene-Thiery), PE 329.936/DEF, EP doc. A5-0207/2004 (2003/2006(INI)). The resolution proposed on the basis of the report by Ms A. Boumediene-Thiery was rejected by the European Parliament. The Cornillet Report was the first one to use the EU Charter of Fundamental Rights as its template. However, the practice of preparing an annual report on the situation of fundamental rights of the Union predated the adoption of the Charter: see Resolution on the annual report on human rights in the EU (1998–1999), (rapp. Haarder) of 16 March 2000 (EP doc. A5-0050/2000). 14 Resolution of 5 July 2001 on the situation of fundamental rights in the European Union (2000) (rapp. Thierry Cornillet) (2000/2231(INI)) (OJ C 65 E, 14.3.2002, pp. 177–350), paras 2–3.

18

Olivier De Schutter

Little by little, thus, a ‘fundamental rights culture’ was being established within the EU institutions. But a number of different directions were being explored at the same time, and when the European Council announced that a ‘human rights agency’ would be established in Vienna, it was still unclear which of these such an agency would support. First, the idea had taken root that neither the EU institutions nor the EU Member States when they implemented EU law could afford to ignore the requirements of fundamental rights in the course of their activities. The adoption of the Charter of Fundamental Rights, by the large visibility it soon gained, served essentially that purpose: it provided guidance and legal certainty, thus facilitating self-monitoring by the institutions. Second, the preparation by the European Parliament of annual reports on the situation of fundamental rights in the EU on the basis of Article 7 EU by the European Parliament gave birth to the idea that the EU might progressively develop a monitoring role, in order to identify at an early stage whether certain Member States might be adopting a conduct which would threaten the mutual trust on which the area of freedom, security and justice was to be built. Third, finally, was the idea that such a systematic comparison could constitute a condition for the development of an active ‘fundamental rights policy’ of the EU. This was linked to the idea that a systematic comparison of the developments of fundamental rights in the Member States might lead to the identification of situations where an initiative from the EU is required, or of the emerging good practices which could be diffused; it was expressed most explicitly in the ‘open method of coordination’ proposed by the EU Network of Independent Experts on fundamental rights, a group of experts established in September 2002 at the request of the European Parliament to support its monitoring role, but that also advised the European Commission on the implementation of the Charter.15 What should the new ‘Human Rights Agency’ focus on? Was it to support the EU Member States to ensure that they would implement EU law in compliance with fundamental rights? Was it to perform a monitoring role, extending beyond the scope of application of Union law, to ensure that the values on which the Union is built would be complied with? Or was it to develop as a pole of expertise to help shape a fundamental rights policy of the EU? The European Council had decided that the new agency should be established in Vienna; the rest was left remarkably open. Indeed, it is perhaps telling that despite two particularly active presidencies of the Council of the EU on this

15 See in particular on this suggestion O. De Schutter, ‘The Implementation of Fundamental Rights through the Open Method of Coordination’, in O. De Schutter and S. Deakin (eds), Social Rights and Market Forces. Is the Open Coordination of Employment and Social Policies the Future of Social Europe? Bruylant, Bruxelles, 2005, pp. 279–343; O. De Schutter and V. Moreno-Lax (eds), Human Rights in the Web of Governance. A Learning-Based Fundamental Rights Policy for the EU, Bruylant, Bruxelles, 2010.

The genesis of the EU Fundamental Rights Agency

19

16

subject, three more years of discussions were necessary in order to arrive at an agreement on the tasks, structure and relationships to other bodies or organizations of the Fundamental Rights Agency for the European Union. In large part, this is to be explained by the coexistence in the discussions of these three distinct rationales, to which correspond different tools, different degrees of independence and different institutional balances.

Defining the mandate of the Agency: the initial debate When the European Council requested that the European Commission make a proposal on the establishment of a ‘Human Rights Agency’ for the EU, the Commission therefore had no preconceived opinion about the structure such an Agency should be given, nor even about its precise mandate. Understandably, the Commission chose, prior to making a formal proposal, to organize a wideranging consultation in order to identify more precisely where the added value of a Fundamental Rights Agency for the European Union might reside, how it should be structured and how its tasks should be defined. The Commission presented a public consultation document on 25 October 2004.17 In reply to this consultation document, the Commission received contributions from a wide range of actors and, in order to discuss the modalities of the proposed institution, a public hearing was held on 25 January 2005.18 The proposals made by the Commission on 30 June 200519 thus reflected the result of more than a full year of debate, which involved a remarkably large number of stakeholders. In the end, however, despite the number of options explored, continuity prevailed. Most of the structural features of the Fundamental Rights Agency, both in the proposals put forward by the Commission in June 2005 and in the final Regulation adopted in February 2007, closely link it to the EUMC. Although some form of monitoring the situation of fundamental rights in the EU Member States had developed in 2000–2006, through the combined and partly overlapping practices of the European Parliament’s LIBE Committee and of the EU Network of Independent Experts on Fundamental Rights, this task clearly was not entrusted to the

16 The Austrian presidency of the first semester 2006, for obvious reasons, was particularly eager to achieve an agreement, and was mostly effective in moving towards finding a consensus. Germany was due to succeed Austria in 2006 but stepped aside in favor of Finland, the next in line, as general elections were scheduled in Germany for that period. Agreement on the Fundamental Rights Agency was thus reached under the Finnish presidency of the second semester 2006, again thanks to an effective presidency. 17 COM(2004) 693 final. 18 For a discussion of the various views expressed in the course of this consultation, see P. Alston and O. De Schutter (eds), Monitoring Fundamental Rights in the EU. The Contribution of the Fundamental Rights Agency, Hart Publ., Oxford, 2005. 19 Proposal for a Council Regulation establishing a European Agency for Fundamental Rights and Proposal for a Council Decision empowering the European Union Agency for Fundamental Rights to pursue its activities in areas referred to in Title VI of the Treaty on European Union, COM(2005)280, 30.6.2005.

20

Olivier De Schutter

Agency. The founding Regulation does not confer upon the Agency the mandate to supervise compliance with fundamental rights in the Union, even as regards the activities of the institutions or bodies of the Union or of the Member States when they implement Union law. Rather, the Agency is to be seen as a pole of expertise in human rights, which will provide advice to the institutions and the Member States, in order to improve their understanding of the requirements of fundamental rights and to better inform any initiatives they adopt in this field.20 The Paris Principles on national institutions for the promotion and protection of human rights recommend that such institutions choose freely which issues to take up, provided they relate to their role in the promotion and protection of human rights.21 But the Paris Principles failed to influence the proposals of the European Commission on this point. Neither the initial proposals of the Commission nor the final Regulation authorized the Agency to decide for itself what issues it should focus on, and whether it should address recommendations to the institutions on pending legislative discussions. Instead, it was agreed that the annual work programme of the Agency would be based on a Multi-Annual Framework adopted by the Council on a proposal of the Commission.22 And the possibility for the Agency to intervene in the legislative process was severely constrained by Article 4(2) of the founding Regulation, which stated that the conclusions, opinion and reports the Agency could adopt: may concern proposals from the Commission (…) or positions taken by the institutions in the course of legislative procedures only where a request by the respective institution has been made (…). They shall not deal with the legality of acts within the meaning of Article 230 of the Treaty [concerning actions for annulment of Community acts] or with the question of whether a Member State has failed to fulfil an obligation under the Treaty within the meaning of Article 226 of the Treaty [concerning infringement proceedings against Member States for failure to comply with their obligations under EC law].

20 See Art. 2 of Regulation No. 168/2007: ‘The objective of the Agency shall be to provide the relevant institutions, bodies, offices and agencies of the Community and its Member States when implementing Community 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’. 21 The Paris Principles on national institutions for the promotion and protection of human rights were approved by the United Nations General Assembly in 1993 in resolution 48/134 of 20 December 1993 (A/RES/48/134, adopted by the 85th plenary meeting of the UN General Assembly, ‘National institutions for the promotion and protection of human rights’). After having been initially adopted in 1991, at a conference convened by the French Commission nationale consultative des droits de l’homme – the earliest of such institutions to be established, in 1947 – and the Office of the High Commissioner for Human Rights, these principles were approved by the Commission on Human Rights in resolution 1992/54 of 3 March 1992 before being submitted to the UN General Assembly. 22 See Article 5 of the founding Regulation.

The genesis of the EU Fundamental Rights Agency

21

The latter restrictions imposed on the Agency were the combined result of a faithful replication and consolidation of what had been the practice of the EUMC during its nine years of operation, and of a desire of the institutions not to see their legislative work disrupted by interferences by the Agency – although it was clear from the start that the European Parliament would be tempted to rely on the Agency in all cases where serious doubts are expressed about the compatibility of a legislative proposal with the requirements of fundamental rights. The exclusion of any role of the Agency in the monitoring of the Member States was largely influenced by the very active role of the Council of Europe in the debate on the establishment of the Fundamental Rights Agency. Through various channels, the Council of Europe expressed the fear that it would risk being marginalized if the EU Fundamental Rights Agency were to duplicate the monitoring performed by the Council of Europe bodies.23 The initial reaction of the Council of Europe to the decision by the European Council to set up a ‘Human Rights Agency’ for the European Union was not openly hostile; but it was clearly defensive. In her intervention at the public hearing organized by the European Commission on 25 January 2005, the Deputy Secretary General of the Council of Europe Ms de BoerBuquicchio sought to distinguish the function the EU Fundamental Rights Agency could fulfil – crafted along the lines of a national institution for the promotion and protection of human rights for the Union – from the tasks entrusted to the Council of Europe monitoring bodies, by emphasizing the difference between monitoring as collection and analysis of data on the one hand (what might be called ‘advisory monitoring’), and monitoring as evaluation of compliance with certain standards on the other (or ‘normative monitoring’).24 Although to deny to the EU Fundamental Rights Agency any role in ‘normative monitoring’ thus understood might seem contradictory with the idea that it should be an independent institution for the promotion and protection of human rights for the EU – indeed, under the Paris Principles, NHRIs should, inter alia, adopt opinions on ‘situation of violation of human rights which it decides to take up’25 – the preoccupation behind this distinction was clear enough: the Agency should not duplicate the work of the monitoring bodies of the Council of Europe, it was suggested, since this might undermine their efforts and

23 On the relationship during that period between the EU and the Council of Europe, see O. De Schutter, ‘The Two Europes of Human Rights. The Emerging Division of Tasks Between the Council of Europe and the European Union in Promoting Human Rights in Europe’, Columbia Journal of European Law, vol. 14, No. 3 (Summer 2008), pp. 509–561. 24 Monitoring ‘can also be understood as comprising the verification of actual compliance, identifying violations, shortcomings and best practices as well as addressing recommendations to individual states. It is in this latter sense that monitoring is understood and carried out within the Council of Europe’ (Public Hearing on the Agency on Fundamental Rights of 25 January 2005, statement by Ms de Boer-Buquicchio, Deputy Secretary General of the Council of Europe, available at: http://europa.eu.int/comm/justice_home/news/consulting_public/ fundamental_rights_agency/index_en.htm. 25 See para. 3, a), ii), of the Paris Principles (Principles Relating to the Status of National Institutions, annexed to UNGA Res. 48/134, ‘National institutions for the promotion and protection of human rights’, 20 December 1993).

22

Olivier De Schutter

diminish their authority; it should constitute a think tank, a pole of expertise on human rights issues for the EU institutions, but not be some appeals tribunal for the evaluation performed by the Council of Europe. Those concerns were further expressed by the Parliamentary Assembly of the Council of Europe (PACE).26 Acting on the basis of the McNamara report prepared within the Committee on Legal Affairs and Human Rights,27 the Parliamentary Assembly adopted on 18 March 2005 a resolution in which it recalled the human rights acquis developed by the Council of Europe through intergovernmental cooperation, the monitoring by the Council of Europe of compliance with these standards by its member states,28 and the practical assistance work by the Council of Europe designed to facilitate attainment of the requisite standards, as well as its activities in the field of human rights education and awareness-raising. While welcoming the establishment of a Fundamental Rights Agency of the EU, the PACE insisted that ‘there is no point in reinventing the wheel by giving the agency a role which is already performed by existing human rights institutions and mechanisms in Europe. That would simply be a waste of taxpayers’ money’.29 Like the Council of Europe Deputy Secretary-General, the PACE concluded that the role of the agency should be limited to ‘collect[ing] and provid[ing] to the EU institutions information about fundamental rights that is relevant to their activities,

26 It should be noted, however, that the president of the Parliamentary Assembly, the Dutch René Van der Linden, seemed to adopt a rather more radical attitude of opposition towards the very establishment of a Fundamental Rights Agency of the EU. As a result of his opposition, which he saw as a means of defending the monitoring bodies of the Council of Europe against the risk of marginalization, the Dutch Senate – of which Mr Van der Linden is a member – adopted by unanimity a motion in March 2006 in which it took the view that, since an agreement could be concluded between the EU and the Council of Europe in order for the EU to benefit from the monitoring systems already established in the framework of the Council of Europe, the proposal to establish a Fundamental Rights Agency for the EU did not pass the test of subsidiarity. On 31 March 2006, the President of the Dutch Senate, Ms Yvonne Timmermann-Buck, wrote to the speakers of the national parliaments of the other EU Member States as well as to the speaker of the European Parliament urging them to use the tools of ‘parliamentary diplomacy’ in order to oppose the establishment of the Fundamental Rights Agency. 27 ‘Plans to set up a Fundamental Rights Agency of the European Union’, Doc 10241, draft resolution and draft recommendation adopted unanimously by the Committee on Legal Affairs and Human Rights of the Parliamentary Assembly of the Council of Europe on 27 January 2005. 28 Resolution 1427 (2005) notes in this regard: ‘Such monitoring is carried out by several wellestablished independent human rights bodies with recognised expertise and professionalism, both on a country-by-country basis (including through country visits and on-the-spot investigations) and, increasingly, also thematically. Through these mechanisms, the Council of Europe monitors compliance with all the human rights obligations of its member states (including the twenty-five member states of the European Union), identifies issues of noncompliance, addresses recommendations to member states and, in the case of the European Court of Human Rights, issues judgments binding on states parties whenever these standards are not respected’ (at para. 4). 29 At para. 10.

The genesis of the EU Fundamental Rights Agency

23

and thus contribut[ing] to mainstreaming human rights standards in the EU decision-making processes’.30 The Parliamentary Assembly in particular insisted that the EU Fundamental Rights Agency should have a mandate limited to the scope of application of Union law, including the implementation by EU Member States of Union law, but should not intervene in areas outside EC/EU competence, where member states act autonomously. In other words, although the mutual trust on which mutual recognition mechanisms within the Union are built presupposes that the EU Member States comply with fundamental rights in general rather than only in the implementation of Union law, the Agency should not monitor fundamental rights beyond the situations to which the fundamental rights recognized as general principles of Union law already apply under the supervision of the European Court of Justice, and which define scope of application of the EU Charter of Fundamental Rights.31 Second, the Agency should work on a thematic rather than on a country-by-country basis, focussing on certain specified themes having a special connection with EC/EU policies. While this restriction does not follow from the definition of the Fundamental Rights Agency as a ‘national institution for the promotion and the protection of human rights’ for the Union, it was put forward, presumably, to limit any risk of the Agency competing with the monitoring bodies of the Council of Europe, and in particular of the Agency arriving at different conclusions to those of these bodies as regards specific situations arising in the Member States. Indeed, in a later recommendation, the PACE stated very clearly that ‘the agency should be explicitly excluded, in its mandate, from engaging in activities that involve assessing the general human rights situation in specific countries, in particular those that are members of the Council of Europe’.32

30 At para. 13. 31 On the precise delineation of the situations in which the Member States are bound by fundamental rights as general principles of EC or EU law, see esp. J.H.H. Weiler, ‘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, Nomos Verlagsgesellschaft, Baden-Baden, 1987, p. 821; J. Temple Lang, ‘The Sphere in Which Member States are Obliged to Comply with the General Principles of Law and Community Fundamental Rights Principles’, L.I.E.I., vol. 18, no. 2 (1991), p. 23; J.H.H. Weiler, ‘Fundamental Rights and Fundamental Boundaries: On Standards and Values in the Protection of Human Rights’, in N. Neuwahl and A. Rosas (eds), The European Union and Human Rights, Martinus Nijhoff Publ., Kluwer, The Hague-Boston-London, 1995, p. 56; and K. Lenaerts, ‘Le respect des droits fondamentaux en tant que principe constitutionnel de l’Union européenne’, in M. Dony and A. de Walsche (eds), Mélanges en hommage à Michel Waelbroeck, Bruylant, Bruxelles, 1999, p. 423. The wording of the Charter of Fundamental Rights is more restrictive than the case-law of the European Court of Justice would suggest, since it refers not in general to the scope of application of Union law – which would include situations where the Member States act under exceptions provided by EC/EU law (see, e.g., Case C-368/95, Familiapress, [1997] ECR I-3689 (para. 24); Case C-112/00, Schmidberger, [2003] ECR I-5659 (para. 81)) – but only to the situation where the EU Member States implement Union law (see Article 51 of the Charter). 32 PACE Recommendation 1744 (2006), Follow-up to the 3rd Summit: the Council of Europe and the proposed Fundamental Rights Agency of the European Union, adopted on

24

Olivier De Schutter

Third, the PACE considered that the future Agency should include within its reference instruments not only the European Convention on Human Rights, but also the other human rights instruments of the Council of Europe.33 The PACE also recommended that the Council of Europe be included in the management structures of the Agency, and that a cooperation agreement be concluded to that effect between the Council of Europe and the Union.34 There were two reactions by the governments of the Member States of the Council of Europe to the position thus expressed by the Parliamentary Assembly. At their Third Summit held in Warsaw on 16–17 May 2005, the Heads of State or government of the Member States of the Council of Europe adopted a Declaration on the future relationship between the EU and the Council of Europe,35 and they agreed on a set of guidelines on the relations between the Council of Europe and the European Union, which stated in particular that: ‘The future Human Rights Agency of the European Union, once established, should constitute an opportunity to further increase cooperation with the Council of Europe, and contribute to greater coherence and enhanced complementarity’.36 The Heads of State or government also requested that the Prime Minister of Luxembourg, Jean-Claude Juncker, prepare, in his personal capacity, a report on the relationship between the Council of Europe and the European Union, on the basis of the decisions adopted at the Summit and taking into account the importance of the human dimension of European construction.37 Second, the Committee of Ministers of the Council of Europe replied on 13 October 2005 to Recommendation 1696 (2005) of the Parliamentary Assembly.38 After recalling the results of the Warsaw Summit, the Committee of Ministers referred to the proposals made in the meantime by the European Commission on the establishment of a Fundamental Rights Agency,39 which (it considered) take several of the recommendations made by the [Parliamentary Assembly of the Council of Europe] and the Secretary General into account. Many of the tasks foreseen for the agency would indeed be complementary to the activities carried out by the Council of Europe. As regards co-operation

33 34 35

36 37

38 39

13 April 2006 on the basis of the report prepared within the Committee on Legal Affairs and Human Rights (doc. 10894, rapp. Mr Jurgens) (see para. 11.4. of the recommendation). PACE Resolution 1427 (2005), para. 14, ii). Id., para. 14, iii). These elements are summarized in Recommendation 1696 (2005) adopted by the Parliamentary Assembly on the same day. See the Declaration adopted at the Warsaw Summit (Third Summit of the Heads of State and Governments of the Member States of the Council of Europe), www.coe.int/t/dcr/ summit/20050517_decl_varsovie_en.asp. Para. 8 of the guidelines. ‘Council of Europe – European Union; a sole ambition for the European continent’, report by Jean-Claude Juncker to the Heads of State and government of the Member States of the Council of Europe, 11 April 2006. CM/AS(2005)Rec1696 final, adopted at the 939th meeting of the Ministers’ Deputies. See above, n. 22.

The genesis of the EU Fundamental Rights Agency

25

with the Council of Europe, the Committee of Ministers acknowledges that the draft regulation [establishing the EU Fundamental Rights Agency] provides for a close institutional relationship, including provisions that the agency shall co-ordinate its activities with those of the Council, that a bilateral co-operation agreement shall be concluded and that an independent person shall be appointed by the Council to the management board of the agency. It also stated, in para. 4 of its reply, that it ‘agrees with the Assembly that the agency’s mandate should focus on human rights issues within the framework of the European Union, address its advice to the EU institutions and ensure that unnecessary duplication with the Council of Europe is avoided’; and it expressed its hope ‘that these points will be fully reflected in the future Community regulation’. These statements did not fully reassure the Secretariat and the Parliamentary Assembly of the Council of Europe. After his meeting in July 2005 with VicePresident F. Frattini, in charge within the Commission of Justice, Freedom and Security, the Secretary General of the Council of Europe, Mr Terry Davis, agreed to provide the Commission with an analysis, by the Secretariat of the Council of Europe, of the proposals on the establishment of the EU Fundamental Rights Agency. This memorandum was finalized on 8 September 2005.40 Many of the themes evoked above are reiterated, in particular the idea that, in order to avoid duplication with the missions of the Council of Europe, the Agency should not systematically monitor the human rights performance of non-EU Member States who are Member States of the Council of Europe. These concerns were again reiterated by the Parliamentary Assembly of the Council of Europe in April 2006.41

Conclusion The founding Regulation did not task the Fundamental Rights Agency with a monitoring mission, in the sense of ‘normative monitoring’ – evaluation of compliance on the basis of a preexisting normative grid42 – its role is, rather, to provide technical advice on the basis of its collection and analysis of information pertaining to the situation of fundamental rights in the Member States. The definition of the mandate of the Fundamental Rights Agency as a pole of expertise rather than as an ‘ombudsinstitution’ – a think tank rather than a monitoring

40 This document is on file with the author. It will be referred to hereafter as the ‘Council of Europe Memorandum of 8 September 2005’. 41 PACE, Recommendation 1744 (2006), Follow-up to the 3rd Summit: the Council of Europe and the proposed fundamental rights agency of the European Union, cited above n. 35. 42 On this distinction, see M. Scheinin, ‘The Relationship between the Agency and the Network of Independent Experts’, in Ph. Alston and O. De Schutter (eds), Monitoring Fundamental Rights in the EU. The Contribution of the Fundamental Rights Agency, Hart Publ., Oxford, 2005, at pp. 73–90.

26

Olivier De Schutter

body – appears as the result of two powerful forces: inertia and fear. Ten years later, the ghost of the EUMC has stopped haunting us, however. And the concerns expressed by the Council of Europe institutions can now be put into their proper perspective. In 2004–2007, when the negotiations on the Agency took place, the concerns expressed by the Council of Europe bodies that any monitoring role of the Agency would constitute an existential threat for the Council of Europe were well received by the EU Member States within the Council of the EU. Indeed, to some, they provided a welcome justification for narrowing down the competences of the Agency, and for strictly restricting, in particular, its ability to examine the situation of fundamental rights in individual countries. But the practice since shows that it has not always been possible to maintain a watertight division between providing expertise on fundamental rights and assessing developments in the Member States: even mere fact-finding, after all, necessarily consists in highlighting certain situations, and thus putting pressure on the actors concerned to remedy any deficiencies found to exist. In addition, even though the emphasis or formulations may differ – with expert bodies of the Council of Europe explicitly evaluating certain situations for their compliance with the relevant standards, and the Fundamental Rights Agency more cautiously reporting about what it has found to occur and making certain recommendations of a general nature about trends – it remains the case that the same situations may be considered under both mechanisms. The EU Fundamental Rights Agency is allowed under the founding Regulation to publish annual reports and formulate conclusions and opinions on fundamental rights dimensions of the implementation of EU law by the Member States. Although the adoption of reports or recommendations on individual Member States is not defined as one of the tasks of the Agency in Article 4 of the Regulation – on the contrary, Article 4(1)(d) specifically mentions that the Agency shall ‘formulate and publish conclusions and opinions on specific thematic topics, for the Union institutions and the Member States when implementing Community law’, a formulation which seems to be calculated to exclude conclusions and opinions on individual Member States or on specific events or measures43 – it would have been clear from the start that the Agency could not fully abstain from at least naming in its thematic reports or annual reports specific Member States when describing the situation of fundamental rights in the Union.44 Nevertheless, the tasks of the Agency remain distinct from those of a monitoring body in the classic meaning of the expression, such as those

43 In the original proposal of the Commission this provision read: ‘[the Agency shall] formulate conclusions and opinions on general subjects, for the Union institutions and the Member States when implementing Community law, either on its own initiative or at the request of the European Parliament, the Council of the Commission’ (emphasis added). 44 Indeed, on various occasions, the Fundamental Rights Agency did in fact assess countryspecific situations, delivering an opinion on 29 November 2016, for instance, on fundamental rights in the ‘hotspots’ in Greece and Italy.

The genesis of the EU Fundamental Rights Agency

27

established under Council of Europe instruments. Moreover, the second limitation imposed by the founding Regulation to the tasks entrusted to the Agency plays an equally decisive role. The EU Member States are only assisted by the Agency (and ‘monitored’ through the opinions and reports of the Agency) in the implementation of Community (now Union) Law. This seems to exclude any role for the Agency in ensuring that EU Member States comply with democracy, the rule of law and fundamental rights – all values listed in what is now Article 2 EU. Are these restrictions still justified today? Should the founding Regulation be amended to expand the mandate of the Agency? This is one of the major questions to be answered in the coming years. It will come back in different forms in many chapters of this volume.

2

A new agency, and so what? Giving flesh and blood to FRA’s founding Regulation Morten Kjærum

Introduction It was a proud moment when the EU was granted the Nobel peace prize in 2012. The increased cooperation between the EU Member States has created a region of peace, security and stability for 70 years. In this period, trust between people, between governments and trust in the institutions has developed gradually but surely. Although the latter years have carved in on the trust-capital, we are still far from the level of mistrust at the time when the idea of the European Community/ Union was conceived. The economic cooperation was always a cornerstone in the European integration process, however equally important and a precondition for the economy to prosper is the insistence on shared values across the continent. Without shared values, trust and economic development cannot be built across the continent. The shared values make it easy to interact, to rely on and predict decisions from the institutions and they create confidence that people generally will treat others according to the common and shared values. Article 2 of the Treaty on European Union outlines the values underpinning the European Union: The Union is founded on the values of respect for human dignity, freedom, democracy, equality, the rule of law and respect for human rights, including the rights of persons belonging to minorities. These values are common to the Member States in a society in which pluralism, nondiscrimination, tolerance, justice, solidarity and equality between women and men prevail. These core values have throughout the years been made concrete in legally binding texts such as the equality directives, in strategies on the rights of children and other groups in situations of vulnerability and in very concrete actions such as infringement procedures. A particular milestone is the Charter on Fundamental Rights of the European Union, which became legally binding with the Lisbon Treaty in December 2009. The Charter has contributed to mainstreaming fundamental rights throughout the work of the institutions.

A new agency, and so what?

29

There is hardly another continent where so much blood has been shed because religious, racial or ethnic groups have been set against each other. Since trust between people is a necessity for the European project to succeed a nondiscrimination policy became a key element in tying Europe together. From the outset, the prohibition of discrimination on the basis of nationality formed a core of the process of European integration. Gender soon became another important bedrock in the Community’s anti-discrimination efforts. At the end of the nineties the EU extended its non-discrimination agenda and the year 2000 saw the adoption of prominent and ambitious equality directives that heavily influenced discrimination legislation across the EU Member States. Equality and the dedication to protect vulnerable groups is also reflected in the Charter of Fundamental Rights. Such guarantees alongside a dedicated agency has rejuvenated the EU by instilling trust – new flesh and blood – through improved fundamental rights.

The agency and its mandate It is in this environment that the EU’s Fundamental Rights Agency (FRA) was launched in 2007, building on the work of the European Monitoring Centre on Racism and Xenophobia (EUMC) but with a wider mandate covering all human rights. The development of the founding Regulation was a process where the drafters started out with a wide scope, wanting to create an institution with teeth and a broad mandate. However, not all stakeholders involved in development of the remit of the Agency were first and foremost concerned about creating a strong institution that could address some of the human rights challenges in the EU. Some were rather concerned about their own mandate and, when it came to the Member States, it was rather the wish not to have yet another institution that would tell them what to do and not do. The Council of Europe was undoubtedly the institution that had most concerns and they were very active in the negotiations of the mandate of FRA. In the end, it was agreed that the geographic scope of the agency would be limited to EU Member States (exceptions for countries from the Western Balkans are possible). And the founding Regulation does not explicitly task FRA to engage in country-by-country monitoring, which is an area the Council of Europe is traditionally engaged in. Throughout the first years of my tenure as director of the agency, time and efforts were spent ensuring that the two institutions could understand each other; not as overlapping or competing bodies but rather as playing a complementary role. Consistently FRA underscored the great potential in addressing issues together in order to strengthen the likelihood of change. Therefore, it was important to find concrete areas of collaboration and the first such issue was in relation to the work on LGBTI (lesbian, gay, bisexual, transgender and intersex) where the Agency gave the Council of Europe access to its data before it was published. This was done in order to deepen the recommendations elaborated by the

30

Morten Kjærum

Council of Europe1 with the wealth of data that the Agency had collected on the issue. This was a critical juncture and the Council of Europe realized that it is not a zero-sum game but rather that both institutions can benefit from searching for complementarity rather than fearing overlap or being competitive. A few years later an official from the Council of Europe expressed in one of the evaluations of FRA that he could not think of any two international organizations working so well together. In the Parliamentary Assembly of the Council of Europe the scepticism lasted the longest. However, from 2013 the collaboration matured and today it works well. I started my tenure as director in June 2008 and initially I was often asked why I would work in an institution with such a “non-mandate”. An institution that no one really felt a strong ownership for, apart from the Austrian government and certain individuals in the Commission. The question surprised me since I saw the so-called “non-mandate” as a strength in the way that the Agency should not do what all the others are already doing in terms of traditional monitoring and handling individual complaints. The founding Regulation is peculiar when reading it from a traditional human rights perspective but it opened up the way for something new. FRA was created in a different world than, for example, the UN treaty bodies and mechanisms, in the sense that the UN system created the first players, and for a long time the only players, in the human rights arena, along with regional organizations such as the Council of Europe. They operated in virgin territory. Contrary to this, the Agency came into a populated human rights world with not only UN mechanisms and the Council of Europe but also the OSCE covering a variety of human rights issues. On top of that, all EU Member States have well-established equality bodies and more than half of the Member States have National Human Rights Institutions (NHRIs) or human rights ombudspersons. Thus, if we were to stick to the mantra of complementarity and a strong focus on adding value, we needed to be creative in framing the task of the Agency. It took us six months and a lot of discussions internally and with the Management Board to reach the correct framing: the evidence-based advice. Looking at the experience of the EUMC of collecting data, although limited in scope, it had had impact on certain issues. Further, we took inspiration from work done by many NHRIs across the world. The evidence-based advice was in the end a synthesis of Articles 2 and 4 of the founding Regulation of the Agency: The objective of the Agency shall be to provide […] assistance and expertise relating to fundamental rights; Collect, record, analyse and disseminate relevant, objective, reliable and comparable information and data; Formulate and publish conclusions and opinions on specific thematic topics. The evidence-based advice marked something new at that time, bringing evidence-based policy making to the human rights field. Moving human rights

1 Recommendation CM/Rec (2010) 5 of the Committee of Ministers on measures to combat discrimination on grounds of sexual orientation or gender identity.

A new agency, and so what?

31

work from being primarily a legal discipline to adding sociological, statistical and anthropological dimensions as well as political science. The pragmatic part of this was also that FRA inherited the EUMC staff with only a few lawyers but a good number of social scientists. Today all this may seem very innocent and obvious, however it should be recalled that even on these issues there was considerable resistance. The spirit that reigned when creating the founding Regulation, that FRA should do as little as possible or replicate what EUMC had done, kicked in here and in many other instances. The much-famed surveys, the EU Minority and Immigrant Surveys (EU-MIDIS) and the Violence Against Women Survey were all contested in the planning phase, mainly from the view that it could amount to monitoring of Member States. The Violence Against Women Survey was further contested on the basis that it would overlap with the work of the FRA sister agency EIGE (European Institute for Gender Equality) although surveys of that kind were not part of their work methodology and beyond their institutional capacity. With diverse arguments, most surveys could have been rejected if the management, staff and key persons on the Board had not been adamant that FRA should add this new dimension to the human rights work in the EU. In all fairness, I have to say that those who initially opposed it, after seeing the impact of the work, often then gave credit and recognized the contribution made. Prior to FRA surveys, policies and actions were based on official figures from police, equality bodies, ombudsinstitutions and the like. These data only offer a shallow picture of the situation. With EU-MIDIS, FRA documented that minorities and immigrants in Europe are confronted with discrimination in many aspects of life ranging from education, health services, to hate crime. FRA has contributed to de-masking the extent and the depth of the problems minorities are confronted with. One particularly alarming finding was that an overwhelming majority of the respondents – up to 80–90% – reported that they would not turn to the police if confronted with hate crime and they would not know about the legislation and institutions that have been established to protect and assist them in cases of discrimination. Consequently, data from these institutions only offer rudimentary and, at times, possibly a misleading picture of the situation. This lack of evidence had led to inaction from authorities in many Member States: why take action in relation to a non-existing problem has often been the attitude. Following the findings from FRA on the level of hate crime across different minority groups, including sexual minorities, the issue attracted more attention both at EU level as well as in Member States. The JHA Council conclusions from December 2013 expressed in clear terms that this issue shall be addressed and a working party was convened by FRA to develop further reporting mechanisms for victims to the police. The methodology and work on Violence against Women have now been taken over by Eurostat. This is exactly the role FRA should play: highlight the substantial issues and develop the methodologies, while subsequently others with more power and resources shall then address the problems and ensure that follow-up evidence is provided to demonstrate that the

32

Morten Kjærum

actions have impact. This is how FRA contributes to the mainstreaming of fundamental rights in Europe.

Bodies of the agency In order to ensure the best possible academic standard of the work of FRA, the lawmakers established a Scientific Committee. The Committee comprises 11 independent persons, highly qualified in the field of fundamental rights. Their mandate is to be the guarantor of the scientific quality of the Agency’s work and guiding the work to that effect. Internally we soon realized that we needed an internal quality control in order not to be embarrassed by the critique from the Scientific Committee. Consequently, we created an internal mechanism called FRACO (FRA Opinions Committee) where all draft publications were discussed, sometimes in two or three rounds. Initially, the staff felt it was rather daunting. However, FRACO, in combination with the Scientific Committee, contributed greatly to the high quality of FRA work. At the beginning, there were many discussions about the role and function of the Scientific Committee. The first committee was under the impression that the committee should be a body independent of the Agency that in its own right should comment on EU legislation, policies and strategies. Individual members of the committee were, on this issue, strongly supported by some members of the European Parliament. It created tensions between the first committee and the daily operations of FRA since our reading was that the committee should offer its critique and comments on the draft works of FRA without being entitled to bind the Agency or interact in its own capacity with the outside world. At a certain point the issue was raised to the level of the Management Board and finally it landed where the committee should offer its academic expertise to the staff of the Agency. At the same time, we made sure that the role of the committee is actually more prominent than the founding Regulation would suggest. We adopted an internal system according to which every report published by FRA is assigned a “rapporteur” who drafts a detailed opinion on that report, which is then discussed and adopted by the plenary of the committee and subsequently addressed by the services. A contact person at FRA makes sure that there is a dense cooperation with the Scientific Committee and that their opinions are adequately taken into account. The original approach of the committee was later flagged during the discussions on what role the Agency could play in relation to the Rule of Law discussions. In some of the discussions in the European Parliament and elsewhere the idea surfaced to turn the Scientific Committee into a sort of “Venice-Commission of the EU”. This would require an amendment of the founding Regulation; however, the idea is something that is worth considering. The Scientific Committee is important in relation to ensuring the quality of the work of the Agency. The strategic management of FRA is in the hands of the Management Board (MB) and its Executive Committee (EC). As in any organization, the interaction between the chairperson and its director is of key

A new agency, and so what?

33

importance for the well-being of the organization. To my great relief the MB had a remarkable capacity to appoint highly qualified chairpersons that created a strong bridge between the daily management and the MB. Many difficult issues were first discussed with the chairperson. In these relations two things were of high importance: first, that an agreement with the chairperson would stand in the MB and, second, that a level of trust was built to create space for the director to be able to act and take the initiative. These two elements are particularly important when building a new institution where the daily management need to have the space to make decisions to move the Agency forward. If all half-important decisions have to await the Board’s decision then very little would happen. Further, the independence of MB members from Member States contributed to ensure that decisions in the MB and EC were less politicized than in other agencies and thereby more predictable for the director to take directions from. Further to the bodies of FRA, each Member State has a liaison officer and these meet regularly, discussing issues related to the work of the Agency. Finally, there is a Fundamental Rights Platform which is, technically speaking, a working method rather than a body of the Agency, where civil society meets and exchanges views and offers input to FRA. This could potentially look like a nightmare: a weak mandate and five different “bodies” controlling in one way or another the work. A recipe for nooutcome. In the early days, there were many discussions internally about what we in the daily operations of FRA should do to avoid frictions with bodies that would make life difficult for us. However, after a while, the attitude changed from an us and them approach to viewing all actors as part of a “fundamental rights landscape,” in which each component has its distinct role to play. Thus, a stronger “sense of we” was created, which was an important element in avoiding endless, tedious discussions between the actors. This is not to say that there were no tensions but, as Anastasia Crickley as first chairperson of the Board underscored, healthy tensions are needed in all organizations for them to move forward and be relevant. Thus, the challenge was to keep them healthy. Having explored for some years different working approaches with the bodies of the Agency with the aim of optimizing all the resources, we realized that an important strength of FRA was that we had strong ties to the Council of Europe and the EU Commission as well as with almost all key institutions in Member States: government, civil society, academia and NHRIs (including via the Management Board). The only actor missing was national parliaments. Thus, in 2014, we contacted the secretariats of all the national parliaments and asked if they would be interested in a closer interaction with the Agency. Within a few months 27 positive and often enthusiastic replies came in. Only one parliament – of a smaller country – replied that they did not need a closer interaction and felt well serviced by the government. This completed the entry points in Member States and FRA has on its hands a very strong European network of the key human rights actors.

34

Morten Kjærum

This was inspired by the writings of Professor Anne-Marie Slaughter who writes in her book A New World Order: Given the potential power of vertical government networks, the architects of the next generation of international institutions should focus on how best to structure the relations between a supranational entity and its domestic counterpart. Assuming … that the goal is in fact to make the institution in question maximally effective […].2 Further, she writes: “The most highly developed and innovative transgovernmental system is the European Union”.3 FRA could serve as an illustrative example. With all these networks, the Agency has helped to build a European-wide human rights network that involves people from all sectors. It has created an invaluable resource to further build the European human rights architecture, connecting most if not all of the dots on the European human rights map. Officials from ministries of justice and interior meet and informally discuss issues such as the rule of law in Europe, the rights of irregular migrants and other highly complex topics. Often officials from the EU Commission, the Council of Europe and other relevant bodies participate and at other times also civil society representatives and experts. We often heard that key national human rights actors from the very same countries met for the first time at one of our events. The informal status of these networks opened the possibility to address difficult issues in non-committal and non-confrontational settings in Vienna. Issues that were discussed in these meetings were, for example: some of the first explorations of the role of the EU in addressing Rule of Law issues; the apprehensions of irregular migrants; how to address hate crime committed by Muslim youth against Jews; LGBT rights versus religious norms and family values. Groups that had never met and discussed the issues met for the first time at FRA with the minimalistic aim to at least agree on where they disagree. Often it went much further than that. This very dynamic interaction has had a significant impact on many European discussions, policy decisions and legislation.4 The joined-up approach to human rights work can be taken further in coming years at the national and regional levels in order to ensure a more effective and efficient promotion and protection of human rights. Finally, in the words of Anne-Marie Slaughter, the networks also help to “build trust and establish relationships among their participants […]”.5

2 3 4 5

A.-M. Slaughter, A New World Order (Princeton University Press, 2004) p. 147. Ibid., p. 50. This networking dimension is an important feature of several of the 40 EU Agencies. Slaughter, op cit., p. 3.

A new agency, and so what?

35

In the early days, it was an important task to sort out how to organize the Fundamental Rights Platform. The Agency shall, according to the founding Regulation (Article 10), closely cooperate with […] institutions of civil society, active in the field of fundamental rights including the combating of racism and xenophobia at national, European or international level. To that end, the Agency shall establish a cooperation network (Fundamental Rights Platform), composed of non-governmental organisations dealing with human rights, trade unions and employer’s organisations, relevant social and professional organisations, churches, religious, philosophical and non-confessional organisations, universities and other qualified experts of European and international bodies and organisations. Despite this rather all-embracing wording there was a heated discussion about who to include in the platform. Some traditionalists wanted to keep it to the core group of human rights organizations while others were open to a slight expansion. However, in the end it was decided to make an open call whereby any organization that was perceived to work on issues related to human rights could participate.6 According to a set of criteria, including geographic spread, non-dominance of particular topics, a mix of grassroots actors and European networks, relevance for the Agency, etc., we decided case by case. It became very controversial for two reasons. The first was that we included some of the so-called family value groups that traditionally have a rather hostile approach to LGBTI people. The other was that since we had a number of opposing groups on the platform we needed to insist on a respectful and dignified tone. On that account, one organization was excluded since it insisted on calling LGBTI people an “expression of human degeneration”. The NGO complained to the EU Ombudsperson who found no reason to critique the decision of the Agency. In general, however, our approach remained dedicated to openness, which was not pleasing to everyone as shown by a letter that we received from a group of key MEPs who expressed their concerns about this inclusive approach. The Fundamental Rights Platform became a very important place to meet and the discussions were relevant and dynamic and embraced a lot of difficult questions. Increasingly parliamentarians, officials, experts and others wanted to participate and take part in the discussions. To make it vibrant we received good support from professional facilitators advising the Agency on how to organize large gatherings effectively and achieve meaningful outcomes. We were allergic to the ticking off meetings, thus for FRA it was important that three things

6 On the innovative nature of the Platform see Morten Kjærum and Gabriel N. Toggenburg, “The Fundamental Rights Agency and Civil Society: Reminding the Gardeners of their Plants’ Roots”, European Diversity and Autonomy Papers, EDAP 02/2012.

36

Morten Kjærum

were met when meetings were held: participants would benefit from the discussions, FRA would become wiser, and networks would be strengthened. Those three demands helped to create meetings that most felt were very inspiring. By meeting and interacting, some of the opposing groups got to hate each other a little less, and that was thanks to the Platform. After some years one of the key MEPs who had signed the letter told me that having now seen what the Platform had achieved he felt that we had chosen the correct inclusive path. The Platform together with the annual Fundamental Rights Conference became the two flagship events of the Agency and that could have continued. However, the idea prevailed that it could be developed further and, in the process, merging the two events was discussed. At a staff meeting a junior colleague came up with the great idea that FRA and Vienna should contribute the last dot in a central European triangle: discussions on economy in Davos, security in Munich and finally democracy and human rights in Vienna. The world is obviously more than economy and security. In this way, the Fundamental Rights Forum was born with support from the City of Vienna and the Austrian government. I was very pleased that my successor embraced it and now takes it to a new dimension. The Fundamental Rights Forum is where all the actors working on issues related to human rights and democracy meet and develop the thinking for the future. And in these years it is needed more than ever since the end of the Second World War.

Working on the substance Very early in my tenure I decided to visit Member States to learn more about the concerns across Europe. It was vital to pick up on issues that would be important for the Agency to be aware of or even to include in our programme. Furthermore, it provided us with a reality check in relation to our approach and priorities. Finally, it gave the Agency the opportunity to become more visible and known across Europe. Much to our surprise these visits became very contested by the European Commission. They tried again and again to discourage or even stop them, however the chairpersons always supported it together with a big majority of the members of the Management Board. Members found that the visits helped them in their work in Member States, giving FRA a higher visibility among relevant stakeholders such as ministries and NGOs. It was an important lesson for me in understanding one of the elements that I found very problematic: Commission officials often did not fully realize the importance of understanding, or at least paying respect to, what happened in Member States. This attitude changed during the financial crisis and the increased critique of the EU. However, having seen it from the inside, I understand where some of the frustrations about the EU in Member States came from. One of the things that I picked up during the visits was the increased anger that could be detected in all corners of Europe in those years when the economic crisis carved in on jobs, welfare, housing, pensions and even access to

A new agency, and so what?

37

school. I met kids in impoverished communities that could not attend school because austerity measures had cut their school bus or pensioners who had to give up their housing, not to mention the devastating living conditions for Roma and other marginalized communities. For this reason, we raised in the European Commission and Council of the EU the importance for the Agency to address in a focussed way economic and social issues. This discussion came up when the Multiannual Framework of the Agency was to be adopted by the Council after the first five years. It was supported by the European Parliament and many active NGOs in the field. The Commission was generally supportive, however, knowing the difficulties in the Council where certain Member States were firmly against economic and social rights, the Commission renounced this. However, it was in the end agreed that the Agency could work on economic and social rights issues in relation to the rights of the child. Through that doorway studies could potentially be made on their parents and thereby touch some of the important issues. However, it did not really take off apart from when looking into particular vulnerable groups such as Roma, irregular migrants and others. The FRA Roma studies got a new momentum following the summer 2010 European discussion on the situation of the Roma population, provoked by the French expulsions of some Roma people to Romania. The FRA surveys and studies provided a level of detail and comparability between Member States that had not been available previously. Based on the FRA studies the Commission could develop sharper and more precise policies that materialized in the 2011 Commission Communication “An EU Framework for National Roma Integration Strategies up to 2020”.7 The Agency was tasked to follow up on a regular basis as well as assisting Member States in developing national indicators for the implementation of the national Roma strategies. The focus was in particular on the right to housing, education, employment and health. The increased focus on the Roma population has led to some improvements, in particular in relation to housing and education.8 However, their situation is still worrying and the Agency should continue to put it high on its agenda and push the EU institutions to remain vigilant. The Agency also conducted important studies on irregular migrants, a group of citizens that are often overlooked in the discussions about refugees and legal migration. Following a number of sociological and legal reports the agency carried out an economic study on the cost of their exclusion from healthcare. With these studies EU institutions and Member States would almost have a 360degree perspective on the situation of this particular group. The Agency convened a working group with Member States that resulted in Guidelines on “Apprehension of Migrants in an Irregular Situation – Fundamental Rights

7 COM/2011/0173. 8 Communication from the Commission, Midterm Review of the EU Framework for National Roma Integration Strategies, COM/2017/478.

38

Morten Kjærum

Considerations”. Although the guidelines have no formal status they are being used and referred to in these complex matters. Initially the work was highly contested by some Member States. This way of addressing economic and social rights was useful for the particular group in focus, however it was problematic since the critique of human rights is often focussed on a perception that human rights are about one or the other minority and not about the majority. FRA built on the work of the EUMC, which made it even more pertinent to get out of the understanding that the Agency only works on issues related to race and ethnicity. We tried to balance the work programme in order to ensure that as many Europeans as possible could mirror themselves in our work. Issues like right to privacy and data protection, as well as different aspects of access to justice, are all highly relevant for everybody. Furthermore, the work on rights of persons with mental health problems also touches many people, either personally or because they have family or friends with mental health problems. In terms of reaching out to the general public, the big survey on violence against women was most important as it hit the headlines across Europe and, among others, was awarded a prominent prize in Spain. Nevertheless, the large-scale surveys mapping the situation for ethnic minorities, the LGBT people, the Jewish population and the Roma were all of great importance since human rights have a key role to play in protecting minorities against discrimination and marginalization. Others will have to assess whether, in the end, FRA managed to strike the right balance between working on issues related to the minorities as well as issues related to the general population. But I do regret that FRA did not have the opportunity to address the issues of those people in the general population who are left behind by globalization, by the introduction of new technologies, by being victims of climate change, or hit by austerity measures. The mistrust in the political life today is, among others, a product of the neglect of their daily social and economic rights problems. Europe could have done better if there had been more action taken, also by FRA, on the many early warning signals that we picked up. a

Rule of law

FRA has its offices in Vienna, which in almost all aspects is a pearl in Europe with so much to offer. A very liveable city and beautifully situated in central Europe. Several new layers were added to my European identity just living in Vienna and experiencing the neighbouring countries and regions. Vienna is moreover very close to Hungary – only two and a half hours’ drive from Budapest. Also in that light, it was very difficult to sit still and watch the rapidly deteriorating rule of law and human rights protection in that country only 50 km away. Regularly we received experts, NGOs, parliamentarians, business people and others who wanted to discuss the situation in their country. They were, for very good reasons, deeply concerned. Almost as frequently I received

A new agency, and so what?

39

letters of invitation from the Hungarian ministries to this or that conference or the opening of an exhibition about the Holocaust and what Hungary had done or rather not done to protect its Jewish population during the Second World War. They knew very well that the prevailing anti-Semitism would add seriously to the negative perception of Hungary following the erosion of the rule of law institutions. By focussing on the past, the government tried to divert attention away from the present-day anti-Semitism that was well-documented by FRA and the serious rule of law issues. I say this in no way to diminish the importance of coming to terms with the history, however the timing was hardly coincidental. At FRA we had many discussions on the role the Union should play in relation to a situation like the one in Hungary, which could spread to other countries, as we have witnessed in recent years. Watching the continued deterioration, we kept the issue on the burner and so did the European Parliament and obviously also the European Commission, which initiated an infringement procedure in relation to the dismissal of the Hungarian Supreme Court judges. An important milestone in this regard was the hearing in the European Parliament on 9 February 2012. Here the Parliament discussed the possibility to open an article 7 procedure. FRA was invited to speak and in my speech I stressed that the EU Treaty expresses full respect for national constitutional values and identities but, at the same time, EU law depends on a certain degree of constitutional homogeneity across the EU Member States. The principle of mutual respect within the EU system but also concrete rights flowing, for instance, from EU citizenship are in need of a certain degree of unity. This interdependence is reflected in the core values that are common both to the Union as well as to its Member States. I then continued to stress that in this sense, the margins defining the underlying concept of a pluralist society are defended in both directions: as leaving room for and preserving diverse constitutional cultures of Member States; but also as margins not to be transgressed by the Member States. In this latter sense Article 2 is clearly prescriptive. “United in diversity” is a coin with two sides: while diversity is protected, so is unity. When assessing whether or not a Member State is at a clear risk of seriously breaching core values, it is important to look not only at one single development. For instance, it would not be sufficient to look in isolation at the appointment of judges. Other developments such as the introduction of new majorities to elect public officials, or new standard terms of public officials, or new electoral laws should be included in the assessment. Thus, in my conclusions I stressed that we have to look at the combined effects of many developments. In this sense, the whole is greater than the sum of its parts. Such an assessment is not an easy exercise. It requires an EU-wide approach characterized by

40

Morten Kjærum three “Cs”, namely a comparative, comprehensive and continuous analysis of various developments.9

The discussion in the Parliament did not render any immediate results since the necessary majority was not present. However, the concerns continued and the EU institutions increasingly realized that the illiberal developments could undermine the entire EU project. Thus, it led to the development of the Commission EU Framework to strengthen the Rule of Law10 that has been applied in relation to Poland. Furthermore, there are now annual rule of law discussions in the Council and the Director of FRA speaks at these important meetings. Although the steps may seem timid they are gigantic when seen in the light of where we came from. One interesting side effect of this was that the Commission realized that the Council of Europe could be more helpful than what was generally the perception. The Venice Commission has far better opportunities than the Union to address some of the core constitutional issues that emerge in the illiberal States. Furthermore, the Council of Europe Human Rights Commissioner has a wider and more flexible mandate than FRA, whose mandate is limited to issues falling within the scope of EU law. Finally, even the OSCE became an actor that the Union could relate to on these issues in particular when addressing the freedom of media, given that the OSCE for several years had a very strong rapporteur. In this way, the work on the rule of law challenges brought together the European institutions. However, so far, the institutions may only have delayed certain developments since at time of writing they seem to continue. Considering this, it is worthwhile to reflect on strengthening FRA. First, the Agency could deliver stronger country reports underpinning the discussions in the Council. What is needed are reports that connect the different elements in a way that goes beyond what a court can do on individual cases or the Venice commission can do on particular legal issues. FRA did one report in 2013 on these issues where we compared the developments in Greece and Hungary.11 The Agency was severely criticized in particular by Hungary but also by other Member States for having allegedly transgressed our mandate. Contrary to this, Greece expressed its satisfaction with the report and found it useful as an instrument to address the issues that were highlighted. The report was widely used and referred to. Another step that could be considered is to return to the early discussion about the role of the Scientific Committee, turning it in the direction of an EU Committee submitting rule of law analysis at a high level. This role of the Scientific Committee as a “Venice-Commission of the EU” and requesting deeper three-C analytical reports from the Agency like the Hungary/Greece

9 http://fra.europa.eu/en/newsletter/2012/fra-newsletter-march-2012-0. 10 Brussels, 11.3.2014 COM(2014) 158 final. 11 http://fra.europa.eu/en/publication/2013/racism-discrimination-intolerance-and-extrem ism-learning-experiences-greece-and-hungary.

A new agency, and so what?

41

report are two areas where the immense resources of the Agency could be used more to benefit the rule of law development in Europe.

EU agencies How to use the resources of FRA is part of a larger discussion that was embarked upon when FRA was chairing the network of all EU agencies in 2014–2015. At that time there were around 40 agencies. During the chairpersonship we launched two agendas, namely that the EU could use its agencies much better than is the case today and that all agencies should consider the Charter of Fundamental Rights in their work. The latter took long discussions and for some agency directors human rights was not really on their agenda. However, in the end the group of directors adopted a good resolution stressing the obligation of all agencies to respect the Charter in their daily activities. As usual, the most important thing was not the wording of the resolution but the discussions leading to the adoption of the text, since that helped to sensitize the agencies to the subject. The issue of bringing agencies closer to the heart of the Union was harder. Despite the fact that the agencies represent 20% of all EU staff I was the first chairman of the network that met with the Secretary General of the Commission in that capacity. I was the first to meet with the group of Member States parliamentarians that meet in the so-called COSAC group.12 This was particularly important since agencies in many national parliaments are either ignored or not too well received. Thus, we found it very important to open up that dialogue, so at least their positions could be based on realities and facts. This is all part of a wider picture of agencies that are still living a life at the margins of the Union. Underusing existing institutions is a considerable waste of resources and a missed opportunity to create a wider and more nuanced image of the Union. Each of the agencies possesses a wide expertise within their fields, which ranges from food security, disease control, to drug misuse, refugee protection and human rights and the environment. A normal journalist in Europe will most likely be able to mention 3–4 of over 40 agencies and most often that journalist will never have been in touch with any of these to seek information or be enlightened on issues. It would offer a powerful image of the Union if people not only saw the images of politicians discussing but also saw the high level of expertise that is available via the EU agencies to the European citizens. With rather small means FRA managed within a few years to be one of the EU bodies with the strongest outreach to European citizens with our publications, videos and other material distributed also via social media. We were conscious about a multifaceted communication strategy in order to reach different stakeholders.

12 Conference of European Community Affairs Committees (COSAC).

42

Morten Kjærum

In the daily life of the EU institutions the expertise of agencies can be utilized to a much larger extent to qualify the output of the European Union. Further, as mentioned above, the networking dimension of the work of FRA was a deliberate strategy, however similar networks are linked to the other 40-plus agencies. More consciousness about the professional networks built up over the years in Europe with the agencies at the core should be elaborated to ensure that Europe is sufficiently capitalizing on this immense strength. Any other region of the world would look at this with envy and, at the same time, would be surprised to see that bringing the networks into play is often obstructed or ignored. Often there is a jealousy or, even worse, a lack of knowledge about the agencies among the officials in Brussels, thus agencies are kept out of far too many important processes. We took some first steps during the FRA chairmanship but there is still a long way to go.

Conclusion Despite the fact that I was born five days after the European Community was created in 1957, I was actively campaigning against the EU when in 1973 Denmark had a referendum to join. Luckily, I was too young to vote. Eventually, I understood more and more about the importance of the EU so in all subsequent referenda I voted in favour of the Union. After seven years inside the apparatus and now again being outside I am today an even stronger supporter of the Union. Nobody’s perfect and nor is the Union, but overall Europe can only address its issues in collaboration and inside there are many committed and engaged individuals who on a daily basis do extraordinary work for the European citizens and people living in the EU. The FRA staff has collectively and with great commitment contributed to lifting the human rights protection of many people living in Europe. In this way FRA and other agencies contribute to deepening the work of the EU, adding substance and strength to Europe. All with the purpose to do justice to the EU’s Nobel Peace Prize so that our grandchildren and their children can celebrate another 70 years of peace in Europe in 2082.

3

Hand in hand for a better protection of human rights in Europe The relationship between the Council of Europe and FRA Tatiana Termacic1

Three disclaimers at the outset. This chapter is based on interviews conducted with persons from the Council of Europe who have, in some measure, been involved in the setting-up and the work of the Fundamental Rights Agency (FRA), including two of the three independent persons mandated to sit on the Agency’s management and executive boards.2 However, it reflects solely my personal views and interpretations, and not those of my generous interlocutors who shared their rich experience with me, nor that of the Council of Europe. It is also important to underline that the overview of the relationship between the Council of Europe and FRA that will be presented in this chapter is not intended to be exhaustive; there are many instances of joint cooperation endeavours that I will not dwell on, not because they were unsuccessful or uninteresting but because of the limited space available. In fact, the relationship between the oldest human rights organization in Europe and the young EU agency deserves an entire book in itself. Finally, I need to say that I love Vienna, walking along beside the grand Habsburg stone buildings that make my birth city, Paris, look modest, and I would gladly cross Schwarzenbergplatz every morning on my way to work to join the impressive building where FRA is situated. However, Strasbourg has become my city, the city where human rights, the rule of law and democracy continue to be built and protected for the benefit of the entire European continent.

1 This chapter presents my personal views and does not reflect the official position of the Council of Europe. I wish to thank Jennifer Schuetze-Reymann and Marja Sulce for their help in the preparation of this chapter, as well as all the colleagues who have checked the accuracy of the matters I have described. 2 Daniele Cangemi, Guy de Vel, Simona Granata-Menghini, Rainer Hofmann and Jeroen Schokkenbroek. I also benefited from the sharing of the experience of the Director General of Human Rights and Rule of Law, Christos Giakoumopoulos, and of my immediate predecessor as contact person Markus Jaeger.

44

Tatiana Termacic

It is also important to note that the drafting of this chapter has coincided with the important movement of people towards Europe, to escape war, extreme poverty and the consequences of climate change. Addressing this sensitive issue has had the potential to put fundamental rights at risk. As a consequence, the Secretary General of the Council of Europe appointed a Special Representative on Migration and Refugees to gather information on how the fundamental rights of migrants and refugees are protected on the ground in the Member States, and to develop proposals for action at national and European levels. On its side, FRA has provided on-the-ground support to migration “hotspots” in Greece and Italy. In doing so, it could have taken its advisory role to EU institutions and Member States perhaps further than might originally have been envisaged by some involved in drawing up the Founding Regulation, so the Council of Europe and FRA have sought practical ways of avoiding any overlap that could have jeopardized the dialogue the former has with States through its monitoring mechanisms. This will be elaborated in the third section of the present chapter.

Overcoming initial mistrust The initial reaction to the idea that the EU should set up an agency to deal with fundamental rights was that of outcry, both on the part of the Parliamentary Assembly and the Committee of Ministers of the Council of Europe. How could the EU take such an initiative that would ultimately risk damaging the overall European human rights protection system based on the Council of Europe? The then President of the Parliamentary Assembly, René Van der Linden (2005–2007), was particularly vocal in his objections.3 A more consensual and constructive approach was taken by Kevin McNamara, after being appointed Rapporteur in the Committee of Legal Affairs and Human Rights of the Parliamentary Assembly, in his report on the “Plans to set up a Fundamental Rights Agency of the European Union”.4 The line he took was: if we cannot stop it, then let’s steer it in the right direction. The Committee of Ministers shared the views of the Parliamentary Assembly in its reply to Recommendation 1696 (2005) and Resolution 1427 (2005), where it recalled “the role of the Council of Europe as the primary forum for the protection and promotion of human rights in Europe” as reaffirmed in the Warsaw Declaration and Action Plan.5 The Committee of Ministers also fully shared “the Assembly’s concern that any unnecessary duplication with the role, functions and activities of the human rights institutions and mechanisms of the Council of Europe is to be avoided”. For this, it agreed “with the Assembly

3 See My Presidency: 2005–2007 Realities and Dreams, Parliamentary Assembly of the Council of Europe. 4 Doc. 10449 of 31 January 2005. 5 CM/AS(2005)Rec1696-final.

Better protection of human rights

45

that the agency’s mandate should focus on human rights issues within the framework of the European Union [and] address its advice to the EU institutions […]”. Indeed, the Council of Europe’s main concern at the time was that the setting up of a new Fundamental Rights Agency with a broader mandate than its predecessor, the European Monitoring Centre on Racism and Xenophobia (EUMC), could lead to duplication of roles and activities, accompanied by an excessive strain on the scarce budgetary resources allocated to human rights, ultimately leading to inconsistencies that could create confusion and undermine effective respect for standards that Member States have committed to implement at national level. However, given the supra-national nature of the EU and the expansion of its competencies in areas in which human rights were highly relevant, such as justice, judicial cooperation in civil and criminal matters, immigration, asylum, police cooperation, etc., it was only legitimate that the EU would strive to include human rights in its legal order. How could this be done without compromising the place and authority of the Council of Europe? As long as it filled a gap and presented an added value and complementarity with a view to promoting and furthering respect for human rights, the initiative was seen as welcome. But reinventing the wheel, as Mr McNamara wrote, was not on the agenda; not only would it waste taxpayers’ money, but creating an agency with a mandate that would significantly overlap with the Council of Europe’s, could lead to the dilution and weakening of the authority of both institutions. It was therefore necessary to find the right approach that would lead to the definition of the “complementarity” the Agency could bring to the Council of Europe. This was done by taking as a starting point that it would be legitimate for the EU’s legal order to seek to promote human rights through an institution that would be akin to a national human rights institution.6 Simple and efficient, it did the trick and actually filled a gap. FRA’s Founding Regulation of 15 February 2007 thus mentions in paragraph 4 of its Preamble that developing effective institutions for the protection and promotion of human rights is a common value of the international and European societies, as expressed by Recommendation No R (97) 14 of the Committee of Ministers of the Council of Europe of 30 September 1997.7

6 It was taken on in McNamara’s report that led to the Parliamentary Assembly adopting Resolution 1427(2005) and Recommendation 1696(2005) on “Plans to set up a Fundamental Rights Agency of the European Union”. 7 CM Recommendation on the establishment of independent national institutions for the promotion and protection of human rights.

46

Tatiana Termacic

Indeed, as for Member States, a national body to advise on human rights was necessary at the EU level as the EU itself developed its own policies in fields where respect for human rights is essential. The risk that FRA would encroach on the Council of Europe’s role and mandate was therefore mitigated by this qualification of its nature. There were other areas of tension. One related to the scope of thematic areas on which FRA would work. A Multi-Annual Framework (MAF) was therefore put in place in order to ensure that governments kept a final say. Another reason that led to the setting-up of the MAF was the need to avoid duplication with the Council of Europe – a major issue of concern for many EU Member States. The MAF is adopted for a five-year period by the Council of the European Union8 on the basis of a proposal of the European Commission and the consent of the EU Parliament. Also, a thematic area that has been the subject of much discussion and controversy from the outset is judicial cooperation in criminal matters, which is still not explicitly covered in FRA’s mandate. The possibility of extending FRA’s activities to the area of police and judicial cooperation in criminal matters is specifically provided for in the Founding Regulation. Moreover, FRA’s work on matters covered by its MAF already has implications for judicial cooperation in criminal matters, notably as regards hate crime, policing, ethnic profiling and detention conditions. Nevertheless, not all EU member countries feel comfortable with this extension and it has been specifically excluded in the MAF, which covers judicial cooperation, “except in criminal matters”. Thus, there have been calls by the FRA Management Board to increase the legal clarity by amending the Founding Regulation to explicitly cover cooperation in criminal matters.9 This prospect remains a sensitive subject at the Council of Europe due to what is perceived as an obvious risk of duplication with the work of its monitoring bodies, most notably the European Committee for the Prevention of Torture and Inhuman or Degrading Punishment (CPT). It was also seen as important to make sure that FRA’s working methods would not be perceived as overlapping with those of the Council of Europe, especially if it were to be given the mandate to monitor the state of implementation of fundamental rights in the EU Member States.10 This was generally avoided by providing the Agency with a unique and original mandate, focussing on data collection, expert reports and communication in the area of human rights in the EU. As a result, the Agency is neither responsible for evaluating

8 The third and latest MAF (2018–2022) was adopted by the Council of the European Union at its session on 7–8 December 2017. 9 The Management Board of the European Union Agency for Fundamental Rights, “Recommendations regarding changes in the Agency, its working practices and the scope of its mission” (2017), Decision n.2017/05. 10 Council Regulation (EC) No. 168/2007 of 15 February 2007 establishing a European Union Agency for Fundamental Rights.

Better protection of human rights

47

the human rights conduct of the Member States nor for considering the human rights situation in non-EU countries. Thus, instead of competing with each other, the Council of Europe and FRA have been building on each other’s strengths and expertise, reinforcing their respective messages and recommendations to EU Member States. Paragraph 18 of the Preamble and Article 9 of the Founding Regulation provided additional guarantees to the Council of Europe that overlap will be avoided and complementarity sought by providing that the European Community would enter into an agreement with the Council of Europe for the purpose of establishing close cooperation between the latter and FRA. At that stage, it was already foreseen that the agreement would include the appointment of an independent person by the Council of Europe as a member of FRA’s Management Board. The Agreement, adopted in June 2008, established a general cooperation framework with the aim of avoiding duplication and ensuring complementarity and added value, mandating FRA to coordinate its activities with those of the Council of Europe.11 In 2013, the Council of Europe and the European Union decided not to revise the Agreement, a possibility foreseen in Article 23, having concluded that it provides for an appropriate and flexible instrument for cooperation. All these reassurances on the part of the European Union, limiting FRA’s work on data collection and providing advice to EU institutions and Member States to situations when EU law is implemented, have led to ten years of effective cooperation, which has shown that FRA’s unique working method has contributed to the work of the Council of Europe and that the standards and findings of the Council of Europe’s monitoring mechanisms remain FRA’s baseline. Several carefully selected examples will illustrate this.

Together on the same road The forms of cooperation between FRA and the Council of Europe are manifold. In some cases, FRA’s studies have led to the adoption of new standards by the Council of Europe, in others, they have helped the Council of Europe in its task to assess the compliance of standards by its Member States. There are also a few examples of proper “joint projects” that could definitely be usefully emulated and built upon in the future. The cooperation of the Council of Europe and FRA mainly focusses on: developing joint projects in areas of mutual concern, engaging in dialogue with stakeholders in order to improve the situation of fundamental rights in Europe, coordinating cooperation activities to increase awareness regarding fundamental

11 Agreement between the European Community and the Council of Europe on cooperation between the European Union Agency for Fundamental Rights and the Council of Europe, in Official Journal of the European Union L 186/7, 15 July 2008.

48

Tatiana Termacic

rights, informing each other about the results of respective activities, exchanging data and consulting each other at the operational level. These activities take place within the specific thematic areas defined in the MAF. The latest one agreed by the Council of the European Union for 2018–2022 includes the following: victims of crime and access to justice; equality and discrimination based on any ground such as sex, 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, or on the grounds of nationality; information society and, in particular, respect for private life and protection of personal data; judicial cooperation, except in criminal matters; migration, borders, asylum and integration of refugees and migrants; racism, xenophobia and related intolerance; rights of the child; integration and social inclusion of Roma. Apart from cooperation at the operational level, there are institutional mechanisms of cooperation that stem from the Founding Regulation and the Agreement.

Institutional cooperation A unique feature is the “independent person”,12 who is a member of FRA’s Management Board – with limited voting rights – and who participates in its Executive Board.13 This “character” in the saga was created to give the Council of Europe the possibility within FRA’s structures of ensuring that the Agency would be fully aware of the Council of Europe’s activities so as to avoid overlap or duplication. However, the role of the “independent person” is not limited to preventing overlap. His/her contribution is extremely important in moments such as the discussions on the Annual Work Programme, the contents of the MAF, the election of the members of the Scientific Committee and, last but not least, in providing his/her own human rights expertise to the Management and Executive Boards. As Professor Rainer Hofmann, the current independent person, put it during the 2017 annual exchange of views between the Council of Europe Committee of Ministers’ Rapporteur Group on External Relations (GR-EXT): “as both management and executive boards are working towards achieving decisions based on consensus, the actual influence of individual members on substantive matters is not depending on actual voting rights”.14 Expertise is undoubtedly essential for the position-holder, as is the importance of in-depth knowledge of the inner workings of the Council of Europe since this allows the person concerned to be able to exploit the potential for synergies by identifying possible

12 Part V of the Agreement. 13 Of the three independent persons so far, two were recently retired Council of Europe senior members of the Secretariat, Guy de Vel (2008–2012) and Maud de Boer-Buquicchio (2012–2015), and the latest, still in place, Professor Rainer Hofmann (2015–2020) was member in respect of Germany and President of the Advisory Board of the Framework Convention for the Protection of National Minorities. 14 GR-EXT of 5 April 2017.

Better protection of human rights

49

areas of cooperation, and to provide relevant and timely information in order to avoid any risk of overlap. Regular contacts between the Council of Europe and FRA are also ensured pursuant to Article 3 of the Agreement, through the appointment of a contact person on each side to deal specifically with matters relating to cooperation. Institutional exchanges also take the form of the address by the Director General of Human Rights and Rule of Law at FRA’s Management Board once a year and regular exchanges of views between the GR-EXT, the Chairperson of the FRA Management Board, the FRA Director and the independent person. The FRA Founding Regulation15 prescribes consultations between FRA and the Council of Europe during the preparation of the Agency’s Annual Work Programmes and its Annual Report on fundamental rights issues. This ensures that the Council of Europe’s priorities, activities and findings are taken into account in FRA’s documents. Last but not least, the Council of Europe is part of the pre-selection panel of the members of the Scientific Committee, which verifies the eligibility of candidates for appointment.

Selected cooperation samples Both the Council of Europe and FRA have embarked on “the human rights road” for the benefit of millions of men, women, children, non-governmental organizations, foundations and companies that are under the jurisdiction of the states that comprise Europe, and which have all committed to protect their rights by ratifying the European Convention on Human Rights, the European Social Charter, and over 200 other Council of Europe treaties. The action of the one leads to another action by the other that makes the wheel turn. Let’s look at one turn of the wheel: during the preparatory phase of the 2014 FRA Survey on violence against women, the Council of Europe was regularly consulted and was invited to present the concepts and definitions developed under the Istanbul Convention.16 FRA agreed to incorporate them where they could in the final document that compiled prevalence data, i.e., information on the extent of women’s exposure to sexual violence and rape, domestic violence, sexual harassment, etc. The survey led to presenting new courses of action to ensure efficient protection of women against violence. It is interesting that FRA’s decision to carry out a survey based on an initiative by the Spanish presidency was referred to in the Explanatory Report to the Istanbul Convention. In the conclusions of the 2014 survey report, FRA also recommended the EU to explore the possibility of accession to the Istanbul Convention.17 This brings us

15 Article 9. 16 Adopted on 11 May 2011 and entered into force on 1 August 2014. 17 FRA 2014, Violence Against Women: An EU-Wide Survey, https://fra.europa.eu/en/publica tion/2014/violence-against-women-eu-wide-survey-main-results-report.

50

Tatiana Termacic

to the second turn of the wheel: the EU signed the Istanbul Convention on 13 June 2017.18 Another remarkable example of cooperation concerns children’s rights: after the joint organization of the fundamental rights conference under the Belgium presidency of the EU in December 2010 on “Guaranteeing Justice and the Protection of all Children”, the European Commission prioritized child-friendly justice in the EU Agenda for the Rights of the Child (2011–2014). Through this, the Commission committed to publicizing and translating in all EU languages the Council of Europe’s Guidelines on Child-Friendly Justice,19 which focus on children’s rights to be heard, to be informed, to be protected and safe. This endeavour led to other turns of the wheel: in cooperation with the European Commission and complementing its work, FRA collected and analyzed data to determine to what extent these rights are fulfilled in practice. The coordinated and systematic data collection included the child rights indicators developed in 2010 and further elaborated in 2012. These indicators were further refined by referring notably to the Guidelines. In parallel, FRA also conducted interview-based field work in a number of EU Member States.20 And, in turn, the indicators developed on the basis of FRA’s study “Aiming at Supporting the European Institutions and the Member States when They Take Measures or Propose Actions” have been tremendously helpful to the Council of Europe for the development and implementation of its project “Building Europe For and With Children”. A last turn of the wheel in this area: one of the findings of the study underline the need for clear and practical training for all professionals involved in judicial proceedings. This has led the Council of Europe, under its European Programme for Human Rights Education for Legal Professionals (HELP), to develop a distance-learning course on child-friendly justice.21 The recent revelations on mass surveillance have shown the impact on the enjoyment of human rights and, as a consequence, the necessity for a democratic society to have oversight mechanisms that will prevent violations in the context of intelligence activities. Both the Council of Europe and FRA have looked at the legal framework related to surveillance and accountability mechanisms currently in place in Europe. Thus, following an original request of the Committee of Ministers and a subsequent one of the Committee on Legal Affairs and Human Rights of the Parliamentary Assembly of the Council of Europe, the Venice Commission examined these mechanisms as regards its members. While the FRA, on the basis of a request made by the European Parliament, examined them in regard to the EU Member States. The exchange of information and expertise that has characterized this exercise has shown the

18 Together with other factors. 19 Adopted by the Committee of Ministers on 17 November 2010. 20 Report Child-Friendly Justice Perspectives and Experiences of Children Involved in Judicial Proceedings as Victims, Witnesses or Parties in Nine EU Member States (2017). 21 www.coe.int/help.

Better protection of human rights

51

complementarity of the methods used by the Venice Commission and FRA, the former, with its collective adoption of opinions and reports, and the latter, with its practical and empirical approach. The result of these parallel and complementary exercises carried out in full cooperation has had a direct impact in clarifying the most useful approaches to subjecting surveillance to oversight.

Joint projects The “joint projects” initiated by the Council of Europe has led to a sustained long-term relationship with the Council of Europe Secretariat, the European Court of Human Rights and the Human Rights Commissioner respectively. Over the years, FRA and the Council of Europe, in particular the Strasbourg Court, have developed together five handbooks on topics such as nondiscrimination, data protection, the rights of the child, refugees and asylum, and access to justice.22 Combining Strasbourg and EU perspectives, the handbooks summarize the key European principles and seek to raise awareness of the relevant legal standards set by the European Union and the Council of Europe through the case law of the Court of Justice of the European Union and the European Court of Human Rights. They primarily target legal professionals, practitioners and policy-makers who deal with the issues elaborated in them. The cooperation did not stop at the conceptualization and development phase, it continued beyond: the handbooks were later translated into non-EU languages under cooperation projects managed by the Council of Europe and their content was used for the development of on-line training courses under the European Programme for Human Rights Education for Legal Professionals (HELP). Furthermore, to ensure their continued relevance, the handbooks are regularly updated.23 Another “joint project” concerned the equality of LGBTI persons and again can be described as a wheel in motion. FRA’s input was instrumental to the work of the Council of Europe’s Steering Committee for Human Rights (CDDH) during the drafting of the recommendation on measures to combat discrimination on grounds of sexual orientation or gender identity that was subsequently adopted by the Committee of Ministers in 2010.24 Indeed, the 2008 comparative study prepared by FRA on homophobia and discrimination based on sexual orientation to identify the shortcomings and to propose remedies to its Member States was an important resource for the CDDH. The cooperation continued when the second part of the survey, focussing on sociological aspects,

22 A sixth handbook will be jointly developed on cybercrime and fundamental rights in 2018–2020. 23 The updated handbook on non-discrimination was launched in April 2018 and the one on data protection in May 2018. 24 Recommendation CM/Rec(2010)5 of the Committee of Ministers to Member States on measures to combat discrimination on grounds of sexual orientation or gender identity.

52

Tatiana Termacic

was conducted in 2009 together with the Commissioner for Human Rights, who covered the non-EU Member States. Later, FRA assisted the Council for the first implementation report in 2011 and the dialogue is continuing as regards the second report due in 2019. The Council of Europe has been following the preparations of the second wave of the EU LGBTI survey and exchanged with FRA on different matters related to this work, which will be of major importance for the implementation of the 2010 Recommendation following the second review. The cooperation wheel has also been turning as regards anti-discrimination and minority issues to the mutual benefit of both the Council of Europe and FRA. While the European Commission against Racism and Intolerance (ECRI) relied on the scientific data produced by FRA, FRA in turn relied on the findings of ECRI and the Advisory Committee on the Framework Convention for the Protection of National Minorities to frame its own action in these areas. Moreover, ECRI participated actively in the sub-group on methodologies for collecting and recording data on hate crime, which is coordinated by FRA. As regards Roma, the EU-MIDIS surveys and the 2011 FRA and UNDP Roma survey have proven over time to be an effective tool in policy impact for Roma inclusion both at EU and national levels. The Council of Europe’s Roma and Travellers Team has been incorporating FRA Roma data into its work to strengthen policy and policy development in the Member States. Further, while the Council of Europe’s Ad Hoc Committee of Experts on Roma and Traveller Issues (CAHROM) makes reference to FRA’s reports and surveys in its thematic reports, FRA participated in CAHROM’s thematic visit to Greece in October 2016. The next step could be for FRA to align its terminology with that of the Council of Europe (to include “Travellers” and use the organization’s footnote25) and for both to renew efforts to explore opportunities for cooperation at local level field work. These are just a few examples that show the complementarity between the Council of Europe, an inter-governmental organization, and FRA, an agency of the EU, and only lack of space prevents me from elaborating on the cooperation that takes place to improve the situation of refugees and migrants, improve access to justice and in all other areas in which the Council of Europe, including the Commissioner for Human Rights, and FRA inevitably work in tandem. It is, however, important at this juncture to emphasize the human factor which makes this cooperation possible. Institutional links, such as the ones foreseen in the Agreement, are one thing, the strong personal engagement of the staff in

25 “The term ‘Roma and Travellers’ is used at the Council of Europe to encompass the wide diversity of the groups covered by the work of the Council of Europe in this field: on the one hand a) Roma, Sinti/Manush, Calé, Kaale, Romanichals, Boyash/Rudari; b) Balkan Egyptians (Egyptians and Ashkali); c) Eastern groups (Dom, Lom and Abdal); and, on the other hand, groups such as Travellers, Yenish, and the populations designated under the administrative term ‘Gens du voyage’, as well as persons who identify themselves as Gypsies. The present is an explanatory footnote, not a definition of Roma and/or Travellers”.

Better protection of human rights

53

both institutions is quite another; in other words, the Agreement would risk becoming a lettre morte without colleagues in Strasbourg and Vienna working together with mutual trust on a daily basis towards a common goal.

Perspectives for the future Coherence in the messages delivered by the Council of Europe and FRA is a prerequisite for an efficient protection of human rights in Europe. Such coherence can be achieved only through dialogue. It can also be reinforced through concerted action. This was the aim when “cooperation platforms” were set up in 2013 between the Council of Europe and FRA, together with the European Network of National Human Rights Institutions (ENNHR) and the European Network of Equality bodies (Equinet), on four thematic areas: Roma, social rights, hate speech, and migration.26 The idea to create such platforms came from the first director of FRA, Morten Kjærum, and the current Director General of Human Rights and the Rule of Law, Christos Giakoumopoulos. It was after they saw that the concerted action of the Council of Europe, in this case the European Court of Human Rights when it delivered its judgment in M.S. S. v Belgium and Greece,27 and FRA had a concrete impact on EU Asylum Law, in particular on the application of the Dublin II Regulation and on the Reception Conditions Directive. Indeed, why not emulate this experience by creating thematic platforms where the four could agree on concerted actions to improve EU law that affects fundamental rights when need be? Assessing the results that the platforms brought after several years of existence, the Council of Europe and FRA have agreed that the CoE would continue with the two that it leads. FRA will remain associated with it and the objectives and expected outcomes will be pre-determined jointly by the Council of Europe and FRA. FRA, on the other hand, will have a more neutral platform, which could either address the same topic as the focus chapter of the FRA annual report, or select a topic that will be addressed in a given year by the four platform partners. The aim will remain what triggered first the setting-up of these cooperation platforms, that is, to influence in a concerted manner EU law-making and implementation. Coherence in the messages delivered is also essential to prevent Member States playing the Council of Europe and FRA against each other. An area where there might have been such a risk has been FRA’s presence and work in immigration centres such as the “hotspots”, where its staff has provided advice, identified human rights challenges and made recommendations to EU bodies and national authorities. Instead, the continuous and constructive dialogue between the Council of Europe and the Agency has led to the conclusion that the Agency and the CPT working closely together within their respective

26 The first two are led by the Council of Europe, the last two by the FRA. 27 21/01/2011, Application 30696/09.

54

Tatiana Termacic

mandates is crucial given the complementarity of FRA’s support and advice to EU Member States and the CPT’s monitoring of these states, be it in the area of immigration detention or other relevant fields. As a result, FRA has played an important role in ensuring that the CPT’s recommendations are properly taken into account by the EU and its Member States. In turn, FRA’s views on areas where CPT monitoring would be beneficial have been particularly appreciated. What should be avoided is that Member States’ obligations stemming from their accession to Council of Europe conventions are diluted or confused with information stemming from other sources than the monitoring mechanisms that are established by ratified treaties. Thus the interesting and unique initiative undertaken by FRA to create a European Fundamental Rights Information System (EFRIS), the objective of which is to make existing data and information by international human rights monitoring mechanisms, including the Council of Europe and its European Court of Human Rights, the UN and the OSCE, more accessible, visible and used. This on-line tool is meant to act as a “onestop-shop”. The initial worries from the Council of Europe, notably as regards “synthesis reports” or “normative analysis” of its findings being placed on the knowledge-based system, were alleviated after high-level and operational level meetings with FRA. It is now actively involved in the conceptualization and development of EFRIS, to make sure that it brings added value to the Member States themselves by providing them with a less complex and piecemeal picture of where they stand as regards the fulfilment of their human rights obligations, and to the EU institutions so as to allow them to link their actions more directly to respect of human rights by its Member States. Once EFRIS is launched in 2019, it will provide a searchable interface, structured by topic, right, and EU Member State, thus presenting available evidence from existing monitoring mechanisms. Ultimately, it is likely that EFRIS will also provide relevant information on Rule of Law compliance in EU Member States if and once a “Rule of Law mechanism” is put in place by the EU. A sensitive question for the Council of Europe definitely remains FRA’s mandate. If and when the Founding Regulation is amended, it will be important for the EU legislator to recall the Parliamentary Assembly’s crystal clear message:28 Avoiding duplication is not only a matter of upholding the pre-eminent role of the Council of Europe in the protection and the promotion of human rights in Europe: it is first and foremost about the vital interest of hundreds of millions of individuals in Europe in the effective enjoyment and protection of human rights. A multiplication of European institutions in the field of human rights will not necessarily mean better protection of those rights. On the contrary, creating institutions with mandates which overlap with those of existing

28 Resolution 1427 (2005) on “Plans to set up a Fundamental Rights Agency of the European Union”.

Better protection of human rights

55

ones can easily result in the dilution and weakening of their individual authority, which in turn will mean weaker, not stronger, protection of human rights, to the detriment of the individual.29 On the other hand, it is clear for the Council of Europe that sooner or later FRA’s mandate might be explicitly extended to police and judicial cooperation in criminal matters, making it able to act in this area on its own initiative. Another possible prospect is that in the future FRA’s mandate could be extended to other non-EU Member States, outside the Western Balkans (for example, members of the European Economic Area). This was one of the recommendations, presented by the FRA Management Board after the second independent external evaluation, as a way to increase the impact of the Agency’s work. Nevertheless, as long as the Agency’s role and working methods are different from those carried out by the Council of Europe, this will only benefit the EU institutions and EU Member States. In this context, it will be important that FRA’s on-going project on detention conditions and their monitoring does not lead to an oversimplification of assessments and to less exacting standards.30 This goes for all the thematic areas that both institutions have in common, continuing building on each other’s strengths rather than encroaching on each other’s territory and joining forces for new emerging themes, such as artificial intelligence, business and human rights, as well as developments in the bioethics field.

Conclusion By bringing its expertise and experience, the Council of Europe has undoubtedly helped FRA in finding its path. As its own activities have developed, FRA has, in turn, brought a unique perspective and quality output from which the Council of Europe greatly benefits. It is their complementary roles which make their relationship mutually beneficial and which lends their respective work outputs high impact throughout the

29 Which unfortunately seems to have been overlooked in the Second Independent External Evaluation of the European Union Agency for Fundamental Rights conducted by Optimity (2017) and by the Management Board in its follow-up recommendations Further Increasing Clarity, Efficiency and Impact of the Agency’s Work. The External Evaluation conducted a survey regarding overlaps between FRA and CoE work, where almost 15% of non-EU respondents said there are overlaps “to a large extent” and 30% said “to a moderate extent”. On the other hand, an internal survey of the FRA staff showed that around 42% believe that cooperation between FRA and CoE has improved to a large extent (pp. 114–115). The survey has interpreted these results quite positively. The Management Board recommendations do not mention the duplication of efforts. 30 FRA’s objective is to provide practical tools to the judiciary following the CJEU judgment in the Aranyosi and Caldararu case (C – 404/15) by producing a comparative table of the relevant national standards pointing to the CPT’s standards. It also plans to publish a database showing each Member States’ international obligations with links to CPT reports, ECHR judgments, as well as SPACE and EUROPRIS information.

56

Tatiana Termacic

European Union.31 Maintaining this delicate balance in a field in which the expertise and unique working methods of both have proved their value and impact is more important than ever in a period when the human rights road is faced with so many obstacles.

31 The impact of FRA’s work in non-EU Member States is not yet sufficiently documented. Nonetheless, anecdotal evidence suggests that FRA’s findings, such as those of EUMIDIS, are shared with the other Council of Europe Member States where relevant to their particular situations. Undoubtedly, more concrete data regarding this impact will eventually be forthcoming, particularly as regards those countries which have recently become or are about to become observers in FRA’s Management Board, such as North Macedonia, Albania and Serbia.

4

FRA’s policy impact and future posture Lessons from the perspective of the European Commission Salla Saastamoinen1

Introduction The Fundamental Rights Agency of the European Union, the FRA, aims to provide the institutions of the European Union, including the European Commission, with assistance and expertise relating to fundamental rights. The FRA thus supports the institutions when they take measures or formulate courses of action with their competence to fully respect the fundamental rights (Article 2 of the FRA founding Regulation). According to Article 2 of the Treaty of the European Union (TEU), the EU’s aim is to promote its values, e.g., equality and respect of human rights, and the well-being of its people. Indeed, the fundamental rights are important for the well-being and happiness of everybody, not only for persons belonging to minorities. Based on the World Happiness Reports,2 which assess countries on the basis of a happiness index,3 it seems that there is a strong correlation, if not causal reasons to conclude that such countries are high in the level of well-being in which also the level of the respect and promotion of fundamental rights is considered to be high.4 The Commission’s task is to promote the general interest of the Union, meaning that it must advance the objectives set by and ensure the application of the Union Treaties. Thus, the Commission contributes to the increased well-being and happiness of the people in Europe by working for the respect and promotion of fundamental rights. This chapter reflects on the impact of the FRA and its work from the perspective of the European Commission. I aim to consider in which ways and to what extent the work of the FRA has been innovative and how it has benefited the

1 This chapter presents the personal views of the author. It does not reflect opinions of the European Commission. 2 http://worldhappiness.report/. 3 The index consists of six factors: GDP per capita/income, healthy life expectancy, social support (measured as having someone to count on in times of trouble), perceived freedom to make life decisions, trust (measured by perceived absence of corruption in business and government) and generosity (measured by recent donations). 4 E.g., on the basis of the UN Universal Human Rights Index (UHRI), World Reports of Human Rights Watch, Human Rights by Country by UN Office of the High Commissioner, Verisk Maplecroft Human Rights Risk Index.

58

Salla Saastamoinen

work of the Commission. On that basis, I will consider what room for improvements there could be in the future. I have worked on several FRA-related tasks in the European Commission, for instance as responsible desk official at the time of creation of the FRA and as Head of Unit Fundamental Rights when it has been operational. In that position, I also represented the Commission in the Management Board of the FRA for two years. The lessons drawn in this chapter are based, first, on my own experiences and observations. Second, I have carried out short interviews with the highest civil servants of the European Commission in charge of the FRA, the Director-Generals of Directorate General Justice and Consumers (earlier DG Justice, Freedom and Security, thereafter DG Justice) from 2007 to 2019.5 DG Justice and Consumers has been the tutoring service for the FRA since its establishment. The interviews had questions on the above three issues, the innovativeness of the FRA, its added value and the future outlook. The views expressed both by myself and by the interviewees are personal and do not represent the opinions of the European Commission.

The innovative nature of the FRA’s work The first aspect of innovativeness relating to the FRA that was stressed in the interviews is the mere existence of an EU-level agency covering a wide remit of fundamental rights. This is seen as a major achievement considering the legal framework of the EU. TEU or TFEU6 did not contain a clear legal mandate for the EU to take general measures to respect and to promote fundamental rights at the time of the establishment of the FRA. Such measures were rather in the competence of the Member States. The EU mandate had followed a sectoral approach, in which only certain rights, like those related to non-discrimination, gender equality, data protection or citizen’s rights, were specifically mentioned in the founding treaties, subject to secondary legislation and protected also by the CJEU case law. The predecessor of the FRA, the European Monitoring Centre on Racism, had a narrow focus on the phenomena and manifestations of racism, xenophobia and anti-Semitism.7 The FRA became politically possible in the aftermath of the solemn proclamation of the Charter of Fundamental Rights of the EU in year 2000. Indeed, there has been a huge development in the governance system relating to fundamental rights in the EU after the Charter.

5 Jonathan Faull, Director-General Justice, Freedom and Security 2003–2010 (interviewed on 7 April 2017); Françoise Le Bail, Director-General Justice 2010–2014 (interviewed on 1 September 2017); Paraskevi Michou, Acting Director-General Justice and Consumers 2014–2015 (interviewed on 19 May 2017); Francisco Fonseca Morillo, Acting Director-General Justice and Consumers 2015–2016 (interviewed on 11 April 2017); and Tiina Astola, DirectorGeneral Justice and Consumers 2016–2019 and on-going (interviewed on 17 August 2017). 6 Treaty on the Functioning of the European Union. 7 Council Regulation (EC) No 1035/97 establishing a European Monitoring Centre on Racism and Xenophobia, OK L 151, 10.6.1997, p. 1.

FRA’s policy impact and future posture

59

Besides the FRA, the EU has adopted funding instruments, first the Fundamental Rights and Citizenship programme8 and thereafter the Rights, Equality and Citizenship Programme,9 which can support projects promoting rights in the Member States.10 The Commission has built up a fundamental rights impact assessment mechanism11 that vets every initiative proposed or adopted by the Commission against its compliance with the Charter. There is an annual reporting system on the application of the Charter,12 followed by political conclusions at the Council, a Council working party dedicated to fundamental rights, the annual colloquium on fundamental rights in the EU, etc. As a second element, several interviewees mentioned the specific nature of the FRA, being “inside of the EU system but outside of the Commission”. Earlier, the human rights monitoring in Europe was done mainly by the Council of Europe or by the UN human rights mechanisms in the framework of the international human rights conventions. The Commission used these external assessments of the human rights situation in the EU and its Member States when it was looking for data and information as a basis for its policy decisions. But the EU Charter, in particular when it became binding in 2009,13 required more EU-focussed data, analysis and interpretation. The legislative proposals of the Commission must respect the fundamental rights. When impact assessments were started to be carried out for all major initiatives, the Commission needed more data on the fundamental rights impacts and this was needed more often than before. At the same time, the Commission as guardian of the Treaties wanted such information also for monitoring the correct application of the acquis in full respect of fundamental rights. The creation of an independent expert EU body to collect EU-specific data and give advice on fundamental rights served these purposes. It was innovative to have such a fully-fledged

8 Council Decision establishing for the period 2007–2013 the specific programme “Fundamental Rights and Citizenship” as part of the General programme “Fundamental Rights and Justice”, OJ L 110, 27.4.2007, p. 33. Recital 9 of the Decision underlines that the objectives of the Programme should be complementary to those of the FRA. 9 Regulation (EU) No 1381/2013 of the European Parliament and of the Council establishing a Rights, Equality and Citizenship Programme for the period 2014 to 2020, OJ L 354, 28.12.2013, p. 62. 10 Furthermore, in 2018, the Commission proposed a Rights and Values programme for the period of 2021–2027, see COM(2018)383. 11 The impact assessments are carried out as part of the Commission’s better regulation agenda, https://ec.europa.eu/info/law-making-process/planning-and-proposing-law/impactassessments_en. See, e.g., Commission Staff Working Paper Operational Guidance on taking account of Fundamental Rights in Commission Impact Assessments, SEC(2011)567, 6.5.2011, and most recently, Commission Staff Working Document Better Regulation Guidelines, SWD (2017)350, 7.7.2017. 12 The first annual report on the Charter was issued by the Commission in 2010. See all reports until 2016: http://ec.europa.eu/justice/fundamental-rights/charter/application/index_en. htm. 13 Article 6 TEU, with the Treaty of Lisbon, signed in 2007, entered into force on 1 December 2009.

60

Salla Saastamoinen

“in-house” agency collecting data, publishing reports and formulating conclusions and opinions on fundamental rights to the EU institutions. The FRA work providing evidence-based advice could alert the Commission if something was going wrong and thus diminish the risk for the Commission or the EU to become subject to criticism for failures to respect fundamental rights by external bodies, e.g., by the Council of Europe or European Court of Human Rights. The FRA itself also refers to this role, e.g., in its opinion on the implementation of the Charter, where it suggests that a more structured involvement of the FRA could be envisaged to mitigate such risks.14 The third aspect of innovative nature of the FRA relates to the methods it has developed to gather data and to work on the ground. At the EU-level, it was a novelty to approach the fundamental rights situation through the sociologicalstatistical method, through surveys and statistics. The fundamental rights policy had earlier followed rather a legalistic approach, based on the legal analysis and interpretation of the EU provisions and international human rights conventions. The data gathering on the situation on the ground is necessary in order to know about the real state of affairs and to make visible the problems. Indeed, the biggest success of the FRA is the development of the transnational and comparative victim survey methodology: it has made the situation of different groups with possible fundamental rights problems visible and concrete. Largescale surveys have been carried out both in face-to-face and by internet-based questionnaires for the various focus groups at risk of discrimination or of other fundamental rights violation. The method has given a voice to those concerned, to the victims of the violations. It has helped to quantify the problem; the quantifying argument is very important for the policy-makers such as the Commission. This kind of evidence is required both for setting policy lines and for carrying out impact assessment for the individual legislative initiatives. One interviewee described this as an in-depth approach with the necessary resources and methodology that gave credibility to the results delivered by FRA. Good examples of this approach are the EU-MIDIS surveys on immigrant and ethnic minority groups of 200915 and of 2015,16 the Roma Pilot survey of 2011,17 the EU LGBTI survey of 201218 on discrimination of the persons belonging to the minorities of sexual orientation or gender identity, the anti-Semitism survey of 201219 of Jewish people’s experiences and perceptions of discrimination and

14 Opinion of FRA 24.9.2018: Challenges and opportunities for the implementation of the Charter of Fundamental Rights. 15 http://fra.europa.eu/en/project/2011/eu-midis-european-union-minorities-and-discrimin ation-survey/publications. 16 http://fra.europa.eu/en/project/2015/eu-midis-ii-european-union-minorities-and-discrim ination-survey/publications. 17 http://fra.europa.eu/en/survey/2012/roma-pilot-survey. 18 http://fra.europa.eu/en/survey/2012/eu-lgbt-survey. 19 http://fra.europa.eu/en/survey/2012/fra-survey-jewish-peoples-experiences-and-percep tions-discrimination-and-hate-crime.

FRA’s policy impact and future posture

61

20

hate crime in the EU, as well as the survey of 2012 on gender-based violence against women. Another original way through which the FRA has approached the fundamental rights situation on the ground is its work in the hotspots for asylum-seekers in Greece in 2016 and in Italy in 2017. The Commission formulated the hotspot approach in the European Agenda on Migration21 in response to the increased migratory pressure. Given the fundamental rights challenges relating to the situation, the FRA gave first advice but then moved to posting the staff members first to the Greek and later also to the Italian hotspots.22 The attitude of doing and participation in the real world, not only observing but also guiding, training and practical advising reinforced the human rights in the migration hotspots concretely. On this basis, the reporting of the FRA relating to migration was influential because it came from the experience on the ground.

FRA’s added value to the work of the Commission The views of the director-generals varied on whether or how much the FRA has brought benefits to and influenced the work of the Commission. Some considered that the FRA has not had an enormous impact on the Commission and some found several points of importance to the Commission’s policy-making. It appears that there were some doubts about the FRA in the beginning when it was created. There were, for instance, fears in the Commission that the FRA would try to take too political a role, to become an EU “Commissioner for fundamental rights”.23 This led to a certain defiance towards the FRA, at a political level in the Commission but also at civil servants’ level, and to a strong call on the FRA to focus on data collection only. Partly it was also a general Commission message towards all agencies to stress their role as limited to data collection because of the concern that the agencies could become too political and too independent and interfere with the European Parliament.24 The founding regulations of some agencies provide for their “independence”, the FRA Regulation even for its “complete independence”. Nevertheless, the Commission understood this as being independent for carrying out tasks under its mandate, not for taking

20 21 22 23

http://fra.europa.eu/en/survey/2012/survey-gender-based-violence-against-women. COM(2015)240, 13.5.2015. http://fra.europa.eu/en/theme/asylum-migration-borders/fra-work-hotspots. Comparison made to the Council of Europe Commissioner for Human Rights established in 1999. The mandate of the Commissioner under Resolution (99)50 of the Committee of Ministers has many similar features as the FRA founding regulation, but the practical function of the Commissioner for Human Rights has developed to be quite political. 24 FRA started its work in 2007. In 2008, the Commission issued a Communication on the European agencies, describing how it saw the role of agencies and their place in the governance of the EU, COM(2008) 135 of 11.3.2008. The FRA was classified under “Agencies responsible for gathering, analysing and forwarding objective, reliable and easy-to-understand information/networking”.

62

Salla Saastamoinen

political positions. The Commission’s lukewarm attitude led to uncertainty at the side of the FRA that had difficulties to coordinate its work with the policy priorities of the Commission. The interviewees stressed that there has to be a balance between the FRA operating very independently on the one hand and the FRA coordinating closely with the Commission and its policy priorities on the other hand. The first is crucially important for the credibility of FRA’s results, but the latter is decisive for how valuable the FRA is found by the Commission and how concretely its work influences the European policies and measures initiated by the Commission. When roles are clear and there is a mutual trust, the relation of the FRA and the Commission was described as a positive circle: the FRA is reinforcing the Commission’s work to promote fundamental rights by its research, data, opinions and stakeholder activities. The Commission can use the outcomes of the FRA’s work in its political measures, and this results in more human-rightsfriendly policies in general and, in the best case, a more human-rights-friendly EU, which finally benefits the FRA. The FRA was seen as adding value to the fundamental rights work also in another way: the FRA, with its annual budget of around 20 million euros and close to 100 members of staff,25 has brought extra resources to the research for fundamental rights. The common view is that the European Parliament and the Council, i.e., the EU legislators and budget authorities, would not have allocated a similar amount of additional resources to the Commission in the EU budget; it is also very doubtful that the Member States would have added comparable additional resources for the human rights institutes at the national level either. With its resources, the FRA has done research that was not, and could not have been done by the Commission, the EU Member States or others. As regards policy-related impacts, the first one mentioned in the interviews was that the establishment of the FRA and the reports and opinions the FRA has produced have made the fundamental rights in general more visible and they have balanced the security-oriented policies on law enforcement and antiterrorism. This was important at the time when the FRA was created, but also continues to be important today when the security concerns strongly direct the EU policies. The FRA has influenced in particular by giving numerous opinions relating to the Commission legislative projects in the area of criminal justice and raising the relevant fundamental rights elements.26 This balancing aspect can be also mentioned in relation to the FRA opinions in the area of migration policy,

25 Communication from the Commission to the European Parliament and the Council: Programming of Human and Financial Resources for Decentralised Agencies 2014–2020, COM (2013) 519, 10.7.2013. 26 E.g., opinion on the draft directive regarding the European Investigation Order (EIO) in 2011, opinion on the confiscation of proceeds of crime in 2012, opinion on a proposal to establish a European Public Prosecutor’s Office in 2014, opinion on the exchange of information on third-country nationals under a possible system to complement the European Criminal Records Information System in 2015.

FRA’s policy impact and future posture

63

where indeed FRA has delivered most of its opinions on legislative initiatives in recent years. These opinions were quite powerful in strengthening the fundamental rights elements for the decision-making concerning migration measures.27 The FRA has supported the evidence-based policy making of the Commission on fundamental rights. The development of the Roma policy was mentioned by some interviewees as one of the first influential cases. In EU-MIDIS of 2009, of all groups surveyed, the Roma emerged as the group most vulnerable to discrimination and crime.28 The FRA used the survey methodology to interview the Roma and to produce the remarkable statistical results describing both the social exclusion of Roma and their discrimination. The Roma policy was very sensitive at its start at the EU level when the Commission made the initiative for the EU Framework for National Roma Integration Strategies.29 It was therefore important for the Commission to show in this highly political area that it availed data and acted on its basis. The Commission initiative was confirmed by the Council and resulted in a Council Recommendation on effective Roma integration measures in the Member States.30 The Recommendation confirms the appreciation for the FRA work, when it stipulates in point 3.5 that the FRA should support the monitoring and efficient reporting on the situation of Roma in the Member States. On the other hand, the interviewees mentioned also the challenges: the outcome of the FRA research on Roma was found to be fragmented and spread over a long time, too complicated and difficult to use in a crisis situation31 where the Commission would have needed facts and figures fast. The EU-level policy on non-discrimination of persons on the grounds of sexual orientation or gender identity can be given as a second example of the added value of the FRA. Sexual orientation is listed in Article 19 TFEU and in the Charter amongst the reasons on the basis of which it is forbidden to discriminate. It is also covered by the Employment Equality Directive.32 However, there was no specific EU policy focussing on the rights of the LGBTI persons before the FRA survey made it concrete how they encountered discrimination in their daily lives in the EU. Such objective data could not be denied by reasoning from traditions or religions. The FRA organized also stakeholder events to spread the results. The Commission used the data to justify the need to act and the policy frame was concretized in the List of Actions advancing LGBTI

27 See the list of opinions relating to the migration area in http://fra.europa.eu/en/publica tions-and-resources/opinions. 28 FRA: EU-MIDIS Data in Focus Report 1: The Roma, 2009. 29 COM(2011)173, 5.4.2011. 30 Council Recommendation (2013/C 378/01), OJ C 378, 24.12.2013. 31 E.g., relating to the Commission’s need to deal with policy and legal questions concerning the expulsions of Roma from France and Italy in 2009–2010. 32 Council Directive 2000/78/EC establishing a general framework for equal treatment in employment and occupation, OJ L 303, 2.12.2000, p. 16.

64

Salla Saastamoinen

equality issued at the end of 2015.33 This is the first ever Commission or EU-level broad policy frame concentrating on the rights of the LGBTI persons only.34 The List of Actions was endorsed also in the Council Conclusions in 2016. By taking the measures in the List of Actions, the Commission aims for a broad well-being of citizens. If citizens are discriminated against and cannot live publicly with their sexual orientation or gender identity, the fundamental rights based on the Charter are violated. The FRA work was a strong enabling factor for the policy development at the EU level. Next, the interviewees referred to the importance of the survey on genderbased violence against women. It was said that its results were politically shocking in some countries by making visible the amount of violence suffered by women, based on real data. This relates horizontally to the benefit of the FRA in dealing with the fundamental rights in all Member States, at the EU level of policy. The results suggest that there is no Member State that would not have some challenges with the fundamental rights. The Commission had worked to eradicate violence against women mainly by using financial instruments, in particular the Daphne Programmes.35 There existed also legislative cross-border protection orders36 as part of the judicial cooperation, and general legislation to protect a victim’s rights.37 The data on gender-based violence helped the Commission to propose more focussed legislative action, the signature38 and conclusion39 of the EU to the Council of Europe Convention on Eliminating Violence Against Women and Domestic Violence (the so-called Istanbul

33 http://ec.europa.eu/justice/discrimination/files/lgbti_actionlist_en.pdf. 34 Earlier, the Commission had issued broad strategies for promoting gender equality, like the Roadmap for Equality Between Women and Men 2006–2010, the Strategy for Equality Between Women and Men 2010–2015, and the Strategic Engagement for Gender Equality 2016–2019; for rights of disabled persons European Commission’s European Disability Strategy 2010–2020, for race and ethnic origin, An Action Plan Against Racism in 1998 or the EU Framework for National Roma Integration Strategies in 2011. 35 The Daphne programmes I (2000–2003), II (2004–2008) and III (2007–2017). Since 2014, the financing for projects fighting violence against women is part of the Rights, Equality and Citizenship Programme (2014–2020). 36 Directive 2011/99/EU on the European Protection Order, OJ L 338, 21.12.2011 and Regulation (EU) No. 606/2013 on mutual recognition of protection measures in civil matters, OJ L 181, 29.6.2013. 37 Directive 2012/29/EU establishing minimum standards on the rights, support and protection of victims of crime, OJ L 315, 14.11.2012. 38 Proposal for a Council Decision on the signing, on behalf of the European Union, of the Council of Europe Convention on preventing and combating violence against women and domestic violence, COM(2016)111, 4.3.2016. 39 Proposal for a Council Decision on the conclusion, by the European Union, of the Council of Europe Convention on reventing and combating violence against women and domestic violence, COM(2016)109, 4.3.2016.

FRA’s policy impact and future posture

65

40

Convention) that was signed by the EU in 2017. In addition, the Commission led 2017 as a year of actions to eliminate the violence against women, with awareness-raising campaigns and funding allocated for the actions for prevention of violence and for support of victims, as well as dedicating the 2017 Annual colloquium on fundamental rights to gender equality and eradication of violence against women. The Commission has also started the project on development of the statistical policy at EU level to collect data on gender-based violence regularly. Finally, the survey on Jewish people’s experiences and perceptions of discrimination and hate crime was referred to as an example of the FRA’s work having had influence. It showed the seriousness of the anti-Semitic situation in the EU, and the Commission took this as the subject of the first Annual Colloquium on Fundamental Rights in 2015, which then was followed by the appointment of a special coordinator on anti-Semitism in the Commission.41 The survey was repeated in 2018.42 It is to be noticed that, for example, the EU-MIDIS surveys were not explicitly mentioned in the interviews. Neither was the role of the FRA in relation to the rights of persons with disability, although, in this area, the FRA also plays a formal role as part of the EU Framework for the UN Convention on the Rights of Persons with Disabilities43 and has produced over the years many studies in this area, most recently on independent living.44 Besides the above example of the Commission proposals for the signature and conclusion to the Istanbul Convention, there are no obvious direct links from the FRA research and data collection work to legislative initiatives of the Commission, in the sense that the Commission would have launched such an initiative because of the findings and outcome of the FRA research. This does not mean that the FRA findings would not have been influential during the legislative preparations. The FRA opinion on data protection,45 for example, was very relevant in preparing and negotiating the initiative on the General Data Protection Regulation and related legislation.46 It was mentioned by several interviewees that the FRA has increased its profile in recent years, because it has aligned its areas of activity closer to the political priorities of the Commission. In particular, the above-mentioned work in the

40 Signed by the EU on 13 June 2017, on the basis of the two decisions on signing the Istanbul Convention adopted by the Council on 11 May 2017. 41 http://ec.europa.eu/justice/newsroom/fundamental-rights/news/151201_en.htm. 42 https://fra.europa.eu/en/publication/2018/2nd-survey-discrimination-hate-crime-againstjews. 43 The Council adopted the Decision for the conclusion of the United Nations Convention on the Rights of Persons with Disabilities on 26 November 2009. For the EU, the Convention entered into force in 2011. The Framework became operational in 2013, based on a proposal by the Commission that was endorsed by the Council in 2012. 44 http://fra.europa.eu/en/press-release/2018/free-choose-free-decide-people-disabilities. 45 The FRA opinion on proposed EU data protection reform package in 2012. 46 Regulation (EU) 2016/679 of the European Parliament and of the Council on the protection of natural persons with regard to the processing of personal data and on the free movement of such data, and repealing Directive 95/46/EC (General Data Protection Regulation), OJ L 119, 4.5.2016.

66

Salla Saastamoinen

migration hotspots was welcomed as an influential input to the management of the refugee crisis. It was found that the presence of FRA and its regular reports with up-to-date data on the migrant situation and on their circumstances in the hotspots have contributed significantly to the ongoing political discussions and decision-making.47 The issuing of the Commission’s Communication on the protection of children in migration48 that develops measures to help the children was strongly assisted by how the FRA work kept the migrant children’s precarious situation in the political focus.

FRA’s work – refined and improved for the future The interviewees approached the question of the future of the FRA in two ways: on one hand considering possible risks that the FRA will need to tackle in order to continue working at high level and, on the other hand, making also some concrete proposals on the methods and working areas of the FRA in the future.49 Most often was mentioned the risk related to decreasing resources. The future funding and resources of the FRA, like that of all other EU agencies, may be affected by the post-2020 financial perspectives for which the EU will have a smaller general budget because of Brexit. This means that the FRA will have to use its resources even more efficiently. The interviewees considered that the FRA must focus its work and its strategies well and that it must continue to align its priorities with the policy priorities of the Commission and other EU institutions. The FRA’s work has been guided by the multi-annual policy framework, and within it by the midterm and annual work programmes, nowadays called programming documents. This has forced the FRA to plan carefully and to target its work, which has brought higher influence, since bigger, long-term research projects were possible. Aligning policy priorities should happen within this framework, where the FRA should critically accompany, but not undermine, the work of the EU institutions, leading to better decisions and results. Indeed, it is always important for the FRA to prioritize its work both thematically and also as regards activities, and the Management Board should be ready to take strong decisions to keep the priorities limited. The second aspect of keeping the work focussed relates to the geographical scope of FRA’s work: the interviewees

47 See more on the FRA’s regular reporting on the migration situation in 14 selected Member States: http://fra.europa.eu/en/theme/asylum-migration-borders/overviews/2018. 48 COM(2017)2011, 12.4.2017. 49 The FRA itself has carried out reflections on the future based on external evaluations that have been done twice, the latest in 2017. The FRA Management Board has given recommendations, e.g., suggesting extending the FRA’s mandate to cover police and judicial cooperation in criminal matters and that the FRA has adequate resources. https://fra.europa. eu/en/news/2018/fra-delivers-high-quality-fundamental-rights-support-find-externalevaluators.

FRA’s policy impact and future posture

67

mentioned that the FRA should keep focus in the EU also in the future and refrain from activities concerning human rights situations outside the EU. A second possible risk that the FRA has to pay attention to is overlapping work with other actors in the human rights area. Already when the FRA was being established, there were fears that it will overlap and do double work, e.g., with the Council of Europe or the European Court of Human Rights (also see Chapters 1 and 3). It has proved not to be the case; the FRA has developed an original profile, and also the close cooperation and coordination with the Council of Europe has ensured avoiding overlaps.50 The importance of this cooperation was underlined in the interviews. The FRA’s work with other actors should be mutually reinforcing, not competing or repeating. The police cooperation, law enforcement and criminal justice were mentioned as areas where the fundamental rights work of the FRA would be needed in the future. This reflects the thinking of the Commission from the beginning, since the Commission had proposed in 2005 a Council decision empowering the FRA to pursue its activities in the areas of police and judicial cooperation in criminal matters51 together with the proposal for the Regulation establishing the FRA, but this did not find sufficient support in the Council. The views have continued to differ as to whether the Treaty of the Union extended horizontally the competencies of the agencies outside of the old “community” area. The Council excluded judicial cooperation on criminal matters from the 2013–2017 Multi-annual Framework,52 whereas the Commission had included this area in its 2011 proposal.53 The Commission again proposed including judicial and police cooperation in the Multi-annual Framework for 2018–202254 but the Council did not follow this when adopting the Framework.55 The FRA should develop research projects also to the direction of analyzing and explaining more the reasons that lead to certain type of results in given Member States. This should include cross-analysis of the collected survey data on fundamental rights with other existing sociological and political data to explain the findings. Getting behind the quantitative results, i.e., a higher or lower number of fundamental rights violations, would be helpful for developing the right measures to tackle the issues causing the situation. The analyzing work should not forget to look at the situations or countries with a high level of

50 There exists an agreement between the European Community and the Council of Europe on cooperation between the European Union Agency for Fundamental Rights and the Council of Europe, OJ L 186, 15.7.2008, p. 7. 51 COM(2005)280 of 30.6.2005. 52 I.e., Council Decision No 252/2013/EU of 11 March 2013 does not contain the area. OJ L 79, 21.3.2013, pp. 1–3. 53 COM(2011)880 of 13.12.2011. 54 COM(2016)442 of 5.7.2016. 55 Council Decision (EU) 2017/2269 of 7 December 2017 establishing a Multi-annual Framework for the European Union Agency for Fundamental Rights for 2018–2022. OJ L 326, 9.12.2017, p. 1.

68

Salla Saastamoinen

fundamental rights with questions about what they have done right and effectively. The further analysis should then examine how much of the best practice and measures relating to that “good” situation are transferable. The FRA’s method of going to the ground as it did in the Greek and Italian hotspots for asylum seekers was commended and proposed to be continued in the future. It is important however that this is done on the basis of the selected priorities and that such operational interventions are limited in time. Some interviewees mentioned that the FRA should also continue to give the “traditional” opinions, the independent advice. Their importance might increase in the future, since the case law of the European Court of Justice on the EU fundamental rights develops further continuously. For instance, the FRA has issued opinions or conclusions on data protection and privacy and their relation to security, the lines of which the Court has later confirmed in its judgments. In general, the interviewees stated that the FRA should remain flexible in its working methods and constantly search for the most effective ways and tools on how to bring the real benefit. In addition to its in-depth research, the FRA should find ways to become more agile and put in place systems which will allow them to assess crisis situations quickly (see also Chapter 17).56 Finally, it is clear that there is a need for a close, continuous coordination between the FRA and the Commission. The Commission has the possibility to comment on the annual work programme of the FRA, and it has representatives in the FRA’s Management Board (ref. Articles 12(1)c and 12(6)a of the FRA Regulation). The interviewees suggested adding to that formal frame also regular structured high-level contacts, e.g., to have twice a year a political discussion between the Director of FRA and, on the Commission side, either the Commissioner or the Director General, to share the concerns that are looming in Europe and to see how the FRA with its own knowledge and fundamental rights competence can help the Commission. Such proposals show that the interviewed director-generals consider that the FRA has become a reference in terms of fundamental rights in Europe and has established a strong and unquestionable reputation for the benefit of the EU and the Commission.

56 Also the rule of law crisis was mentioned by some interviewees as a situation where the FRA could be more closely integrated with the mechanism.

5

Human rights communicators FRA’s evolving voice on research, rights and policy Rosemary Byrne

Introduction If policy impact is the metric of FRA’s success, then its approach to communication of its scientific research is the mortar of the Agency. Unsurprisingly, the ‘development of a communication strategy’ is one of the specific tasks of FRA.1 Yet the direction of this mandate has evolved in the first decade of the Agency. By 2017, the Council of the European Union in Resolution 12913/17 invited the Agency ‘to work together with Member States to facilitate the exchange of good practices, tools and methods on the application of the Charter and on the communication of fundamental rights, values and freedoms [emphasis added]’.2 Council Resolution 12913/17 signals a striking development in evidencebased policy advising for the Agency, as communicating about rights becomes, in itself, one of the ends of the Agency’s work. Likewise, the boundaries of this young institution’s remit have subtly expanded to include not just rights and freedoms, but values.3 Furthermore, FRA’s stakeholders are no longer simply ‘human rights defenders’ but now encompass a new category of ‘human rights communicators’. This addition to the lexicon of human rights is a significant marker for the turn in human rights whereby an increasing sophistication in the tools of communication are matched by the quest for more effective means of messaging rights.

1 Article 4 (h) of Council Regulation (EC) No 168/2007 of 15 February 2007 establishing a European Union Agency for Fundamental Rights, OJ 2007 No. L 53/1. 2 See Council Resolution 12913/17 of 12 October 2017: ‘The Council recalls the importance of awareness-raising on the application of the Charter at national as well as at EU level among policymakers, legal practitioners and the rights holders themselves [emphasis added]’. In the same Resolution, the Council invites FRA ‘to work together with Member States to facilitate the exchange of good practices, tools and methods on the application of the Charter and on the communication of fundamental rights, values and freedoms’. 3 The preamble to the Founding Regulation in para. 1 states: ‘The European Union is founded on the principles of liberty, democracy, respect for human rights and fundamental freedoms, and the rule of law, which are common values to the Member States’. The rights are the rule of law and the designated ‘common values’ whereas the Council Resolution of 2017 implies that values are co-existent with rights.

70

Rosemary Byrne

Human rights has typically been a field marked by its dissident voice. When rights are spoken from within the governmental structures, rather than from outside, the tone and substance may change. As other contributors to this volume allude, issues of focus, tone and substance in communicating research may be determined in part by strategic policy considerations. This approach stands at times in tension with prevailing approaches to human rights research and advocacy. Much of the Agency’s work is focussed on making FRA research products more engaging and accessible. There are however inherent limits to the appeal of research reports aimed at policy audiences, be it the Commission or Member States, and many discussions directed at functionaries would not be expected to lend themselves to wide consumption, no matter how creative the communication strategy might be. At the core of communicating human rights are the overlapping objectives of advancing protection, creating awareness and persuading shifting constituencies of stakeholders of the merits and feasibility of rights-based policy solutions. The Agency’s reports are in different formats, including short summaries of vast projects contained in concise policy briefing papers, legal opinions and detailed reports that rely heavily on graphs and other visuals. Some studies employ data individualization, whereby users on the FRA website can select from a range of questions that will produce tailored data allowing, for example, an overview of the findings in relation to a particular Member State. While policy makers in European institutions and Member States are the primary stakeholders for the Agency, the real challenge for communicating rights effectively is the moving parade of stakeholders that have an interest in some aspect of the rights-based work underway at the Agency. This includes hundreds of civil society organizations and millions of EU citizens who have a vested stake in policy in different rights arenas. Although the Agency has neither the mandate nor the resources to engage directly with citizens, even working with governments and civil society actors across 28, soon to be 27, Member States is an overwhelming challenge. Effective policy communication also needs to be adapted to the context of the targeted audience, be it European, national or grassroots, including civil servants, police, social workers, border guards, health care workers or, for instance, those with intellectual disabilities.4 While communicating traditional legal or social science research is primarily centred on informing mainstream academic audiences, providing an evidence base for human rights policy is concerned with both informing and persuading diverse constituencies. The ascent of communication within the Agency’s mandate should not only be seen as a response to the external challenge of the declining currency of

4 FRA has produced an ‘easy read’ series which includes, as of December 2018, 13 adapted and accessible versions of the Agency’s reports covering topics with particular impact for individuals with intellectual disabilities; available at: http://fra.europa.eu/en/publication-type/easyread-publication.

Human rights communicators

71

rights discourse in select EU constituencies. Its importance is also a symptom of the times, in which communication strategies assume greater relevance and scientific research conducted across all sectors and institutions is increasingly expected to be ‘policy relevant’ and display ‘impact’.5 This chapter looks at the ways in which the Agency exercises its voice in relationship to evidence-based policy in the changing political and technological contexts that have marked the Agency’s lifespan to date. It does not attempt to survey the wide range of activity undertaken by the ‘communication’ unit of FRA. Rather it is focussed on particular strands related to transmitting evidencebased policy advice. First it will look at FRA’s communication of scientific research in the context of what was, in 2007, a newly enlarged European Union. The universal revolution in communication methods and technology that was underway remains on-going, transforming how information is channelled through old and new media, as well as the ways in which information is accessed and understood. It will then consider some methods of communication used by FRA that have adapted so as to be heard in the context of an increasingly polarized reception of rights in Europe. It will reflect upon perhaps the most critical contribution of FRA in the realm of communication and human rights, whereby communication has been flipped from serving as a mere conduit of rights-based research to being a domain generating its own evidence base drawn from the experience of experts and stakeholders in the field. The Agency is engaging in a collective conversation amongst ‘human rights communicators’ across sectors, at a time when the old human rights narrative has lost its traction in a struggling Europe.

Communicating through an established human rights narrative In 2007, when the Agency was established, it might have safely been assumed that human rights enjoyed the widespread acceptance of Member States and citizens. The international human rights movement was still on an upward trajectory, galvanized by the fall of the Berlin Wall and the accession of the Baltic and Central and Eastern European states to the European Community. From the Holocaust onwards, Europe has been at the centre of the narrative of the human rights movement, in which the expansion of the EU was seen as one more step in the progressive unfolding of history.6 Against the backdrop of Europe’s history, Holocaust remembrance is a central part of the Agency’s rights narrative as developed through its Holocaust and education project. The narrative of the relevance of the past with the present is integrated into the Agency’s

5 Kristoffer Kropp, ‘The European Social Survey and European Research Policy: Homological Structures and Conjunctural Alliances’ (2018) 5 European Journal of Cultural and Political Sociology, pp. 295–319 at pp. 306–308. 6 For an analysis of the metanarrative of the Holocaust in human rights see Stephen Hopgood, The Endtimes of Human Rights (Ithaca: Cornell University Press, 2013), pp. 47–68.

72

Rosemary Byrne

annual reports on anti-Semitism, and on its education outreach, both for teachers and public officials.7

Communicating across an enlarged Europe The recentness and scale of EU enlargement created exceptional challenges for FRA’s communication mandate, for that mandate envisions impact on both regional and national levels. When the Agency was established in 2007, two additional states entered the EU, joining the ten new Member States that acceded to the Union in 2004.8 EU enlargement almost doubled the number of Member States that would fall under FRA’s remit, diversifying national legal frameworks for rights and policy communities, and (critically for the communication strategy of the Agency) bringing the number of official EU languages to 23. On the research front this clearly created challenges as administrative practices and legal infrastructures are extremely varied across borders, as are the traditions of rights within old and new Member States. The objective of the Agency to use evidence to inform human rights policy extends beyond the EU institutions and Brussels’ directives and regulations. It is also concerned with the practice of rights on the ground within national jurisdictions. Hence, FRA’s mandate entails communicating in a way that penetrates domestic spheres, ideally amplifying its messages at the national, local and grassroots levels. While the Agency has translated many of its reports of particular importance to select Member States, budgetary constraints effectively mean that most evidence-based policy reports are primarily in English. Even if the Agency wanted a direct impact on the ground, the best it can achieve within this framework is the filtering of its work through civil society or the media.

Communicating from an embedded institution The approach to communicating the findings and opinions of the Agency’s research is likely to disappoint the expectations of stakeholders who, in spite of the Agency’s clear mandate to the contrary, expect the body to be engaged in monitoring

7 EU FRA, Experiences and perceptions of antisemitism—Second survey on discrimination and hate crime against Jews in the EU (December 2018), available at: http://fra.europa.eu/en/ publication/2018/2nd-survey-discrimination-hate-crime-against-jews; EU FRA, Overview of data available in the European Union 2007–2017 (November 2018) available at: http://fra. europa.eu/en/publication/2018/antisemitism-overview-2007-2017; EU FRA, ‘Discover the Past for the Future’ (January 2010); EU FRA ‘Toolkit on the Holocaust and Human Rights Education in the EU’ (January 2010) available at: http://fra.europa.eu/en/publication/ 2010/discover-past-future-role-historical-sites-and-museums-holocaust-education-and. 8 On 1 May 2004 the following ten countries acceded to the European Community: Czech Republic, Estonia, Hungary, Latvia, Lithuania, Poland, Slovakia and Slovenia, Malta and Cyprus. This was followed by the accession of Bulgaria and Romania on 1 January 2007. Croatia joined on 1 July 2013.

Human rights communicators

73

Member State practices. There is a developed and successful template for human rights reporting that derives from the monitoring role of NGOs. These combine the normative approach of law with fieldwork on the ground to confront states with the gaps between state commitments, official claims and the realities. They tend to be hard hitting when naming and shaming states, and compelling in the portrayal of the lived experience of victims. This human rights reporting template is very distinct from the often incremental objectives driving the Agency’s approach to using realities on the ground to influence EU and Member State policy reforms through the highlighting of ‘promising practices’ in select Member States. The condemnation of governments, which is the operating style of human rights NGOs, is neither part of the strategy nor style of the Agency. Issues giving rise to individual state responsibility usually are buried diplomatically in the text. Absent from the messaging of the Agency is a deeper questioning of some of the underlying paradigms or assumptions of EU practices.9 Policy impact is the key objective of the human rights research produced by the Agency and this is done within the existing legal architecture of the EU, hence FRA’s design and communication of research is largely through pre-existing legal categories. For instance, FRA’s work and pronouncements on migrants rests upon the clear distinctions between asylum seekers, recognized refugees and irregular migrants, and it engages with the existence of ‘hotspots’ as a given on the landscape of migration policy. To speak to policy makers, one works within the established framework within which policy is designed and implemented. Some would argue that this pragmatic approach to achieve impact risks normalizing contested concepts and practices.10

Communicating using evidence-based research While the Agency’s approach to communicating research is not that of the standard human rights report, it also departs from the standard model of academic social science research. Evidence-based policy research is often characterized by its technocratic use of social sciences to address complex questions. It also warrants noting that evidence-based policy research takes place within

9 Baldwin-Edwards et al. argue that there is a ‘substantial ‘gap’ between the now significant body of evidence examining migration processes and European Union policy responses. This gap is attributed to three main factors: the long-standing ‘paradigm war’ in social research between positivist, interpretivist and critical approaches which means that what counts as ‘evidence’ is contested; competing knowledge claims associated with research and other forms of evidence used to construct and/or support policy narratives; and, perhaps most importantly, the politics of policymaking, which has resulted in policies based on underlying assumptions and vested interests rather than research evidence, even where this evidence is funded directly by European governments’. See Martin Baldwin-Edwards, Brad K. Blitz and Heaven Crawley, ‘The politics of evidence-based policy in Europe’s ‘migration crisis’, (2018) 45 Journal of Ethnic and Migration Studies 12, pp. 2139–2155. 10 For an analysis on the ‘normalizing’ role of FRA as an EU Agency and a new form of ‘government’, see Bal Sokhi-Bulley, ‘The Fundamental Rights Agency of the European Union: A New Panopticism’ (2011) 11 Human Rights Law Review 4, pp. 683–707.

74

Rosemary Byrne

a broader battle within the social sciences as to what constitutes ‘evidence’ in the first place.11 The social sciences have long explored core issues related to the enjoyment of rights, anything from work on economic inequality to social inclusion or biometric surveillance. However, they typically do not frame their questions or findings around core human rights instruments, as FRA does routinely. Tasked with communicating evidence-based research to influence policy, FRA was part of a widening trend across sectors using law and social sciences to impact policy. The momentum of human rights in the post-Berlin-Wall period ran in parallel to calls for empirical research to serve as the foundation of ‘evidence-based policy’. From the 1990s onwards, governments and think tanks increasingly turned to this approach starting in Britain, the US and Australia.12 There was a growing awareness amongst academics of the potential of empiricism to inform and advance proposed policy solutions. This created widening opportunities for social scientists in academia, think tanks and non-governmental organizations to engage with policy processes, even if not always successfully. Along with this trend came the augmenting pressure on researchers to demonstrate their policy ‘impact’, which is now a common component in the assessment of research funding proposals and of professional performance for advancement within faculties.13 By the time that FRA was established, the consequence of this trend was that the art of innovative communication techniques, that could make the core messages of complex research engaging to different actors in the policy making chain, had been pioneered by well-resourced think tanks and the innovative work of journalists. Academic scholars trailed behind in this process, with career incentives attached to costly peer-reviewed journals that would remain unread by the public and most policy makers. Even though this barrier is being gradually dismantled, with avenues for open access research publication becoming increasingly available, the skills required to frame policy relevant research questions and translate complicated research into a framework with which policy actors will engage remain highly underdeveloped across most academic faculties. Nonetheless, the amplifying effect that academic work still has in national and international fora suggests that there is a synergy between the objectives of the Agency and the academic community, and that there could be a greater interface between the Agency and academia. FRA’s research could be more widely cited in academic literature, and for the most part it is not published in international peerreviewed journals. As the body of the Agency’s work may expand over time, so

11 Ibid. 12 Rob Watts, ‘Truth and Politics: Thinking about Evidence Based Policy in the Age of Spin’ (2014) 73 Australian Journal of Public Administration 1, pp. 34–46, p. 34. 13 Paul Cairney, The Politics of Evidenced Based Policy Making (Basingstoke: Palgrave Macmillan, 2015), p. 20.

Human rights communicators

75

too may its integration into wider academic conversations to match the Agency’s impact in the policy arena. The demands on FRA staff do not provide sufficient opportunities to transform policy reports into traditional academic articles. For the present, while both FRA and academic actors communicate using evidence-based research, they appear to be unproductively running on two separate, seldom joined tracks.

Communicating with changing technology The rapid pace of technological transformation created a revolution in how information about rights is communicated and in how we find, process and think about the information we receive. For example, technology allowed the EU LGBT web-based survey to collect data from 93,000 individuals, one of the largest surveys of its kind.14 It also has allowed for the narrative of rights to be spoken through the experience of individuals. Technology has shaped large parts of the Agency’s research, which has included issues such as counter-terrorism, surveillance, biometric data and the storage and exchanging of information across databases between states inside and outside the European Union. Technology also introduced tools making it possible to communicate research to ever-widening audiences, enabling data interactivity and individualization, enhancing the Agency’s ability to realize its mandate while in theory engaging with multiple spheres of stakeholders: from the regional policy maker to the grassroots activists, to the mere EU citizen, and well beyond. The Agency can project its research into the limitless catchment area of the world wide web. The Agency’s website served as portal for its published research, at a time when access to much of human rights scientific research is still available at cost via subscription journals. Expectations of the potential outreach afforded by the web need to be tempered by the increase in on line competition for attention. In 1994, the web hosted under 3,000 sites: by 2014, this number had risen to 1 billion.15 Targeted search engines facilitate finding publications or more sophisticated users, yet there are many diversions and fierce competition online when attempting to attract the attention of more general users towards the Agency’s research and indeed the wider cause of human rights. The challenge for the communication strategy of an agency such as FRA is that these new forms of media and their increasing influence have not substituted for old media. Rather they have been grafted on – simply creating a wider range of channels along which the Agency needs to engage in messaging.16

14 EU FRA, EU LGBT survey—European Union lesbian, gay, bisexual and transgender surveyMain Results (October 2014) available at: http://fra.europa.eu/en/publication/2014/eulgbt-survey-european-union-lesbian-gay-bisexual-and-transgender-survey-main. 15 Netcraft 2014 October Web Surver Survey, https://news.netcraft.com/archives/category/ web-server-survey, Internet Lie Stats www.internetlivestats.com/total-number-of-websites. 16 Hugh McCay, ‘Information and the Transformation of Sociology: Inter-Activity and Social Media Monitoring’, (2013) 11, tripleC 1, pp. 117–126, p. 122.

76

Rosemary Byrne

FRA’s approach to communication has followed trends in visualization, graphics and interactivity, pioneered in many ways by the large old media publications. Given the metrics of media attention across Europe and numbers of downloads, it is not surprising that these lengthy EU reports employed interactive visualization. Accessibility and adaptability in the web presentation of these reports allowed the findings to be tailored by journalists and civil society to the concerns arising within their national jurisdictions and local communities. This benefit comes with inherent challenges. The direct manipulation of data by international, national and local media and other actors feeds into a dominant strand of ‘rights talk’ within the EU that focuses on the comparative performance of states as regards rights compliance. Interactive tools allowed readers within individual Member States the ability to get a snapshot of the gaps in human rights protection in their own jurisdiction, as well as to compare their records with other Member States. As European citizens we daily consume rankings of our quality of life, standards of hygiene, property prices, or the cost of telephone services. This impulse to rank rights ‘records’ stands in direct tension with the sui generis nature of fundamental rights that requires a layered understanding of the factors that drive how rights thrive or falter. A risk when we adapt our daily top ten lists to include fundamental rights is that we inadvertently convey that rights are relative. Acting as a bridge between empiricism and policy in the domain of rights, FRA’s communication policy has the added challenge of countering this relativizing of rights, a task complicated by its mandate to capture what is happening on the ground across Member States. In the competitive marketplace of communicators, comparative results no doubt enhance the attention paid to the voice of the Agency in policy discussions in Europe. For example, this was the case with the FRA Violence Against Women survey, which placed Denmark at the top of the charts compared with its European neighbours when women selfreported their experience of violence. The interactivity of data would, one assumes, facilitate an inherent interest in ranking. Mainstream media uses far more sophisticated (and costly) interactive data graphics to draw out the comparative narrative that evidently appeals to readers. In the realm of rights, FRA is confronted with having to communicate its more complicated messages regarding what is happening in respective communities. This requires overriding the take-home message for many, which in the above example risks being that congratulations are due to us all, since we have ‘scored’ better than the Danes. While FRA has made some of its databases available to researchers, there is a much wider trend towards ‘democratizing research’ that the Agency could contribute to. In Europe and beyond, the current move towards public policy towards open civic data means that extensive official data is increasingly being made accessible to the public in formats that facilitate different forms of analysis.17 FRA data

17 Jonathan Justice, John McNutt, James Melitski, et al. ‘The Civic Technology Movement,’ in John McNutt (ed.), Technology, Activism and Social Justice (Oxford: OUP, 2018), pp. 90–92.

Human rights communicators

77

are only a tiny fraction of rights relevant data in circulation. ‘Democratized research’ carried out by all types of actors can be done with the vast and open access civic data that is now available from all levels of governments and institutions within and across Member States. This ‘democratized research’ could significantly add to our understanding of the interplay between governance, policy and human rights within the EU. While researchers have been effectively using civic data from a wide range of sources, most will be social scientists who will be looking at human rights relevant data but will most often not be framing questions from a ‘human rights based’ perspective. Others working with civic data may be coming from human rights bodies in civil society, and will seek to frame effective human rights questions but may not have the requisite scientific experience. FRA’s current communication strategy logically focusses on messaging findings from its own data. With the trend towards ‘democratized research’, the Agency could extend its impact by providing an accessible design for researchers and human rights stakeholders that will facilitate the use of the enormous amount of civic data that is circulating outside of the Agency in order to gain a deeper understanding of the intersection between policies and human rights protection.

Communicating to polarized audiences FRA, the Offices of the UN High Commissioner for Human Rights, and the Council of Europe marked the 70th Anniversary of the Universal Declaration on Human Rights by observing that, ‘[r]egrettably, the past few years have seen the emergence of a discourse that is deeply hostile to human rights’.18 In theory, the impact of research supporting human rights-compliant policy choices is affected by the receptivity of audiences, whether in Brussels, Member State capitals, civil society, or grassroots right holders. Outside of Brussels and the European institutions, the openness to the message of human rights from European voices has changed markedly. The evolving hostility towards human rights discourse that the leading international and European human rights institutions noted has led to messages regarding rights being heard differently, and has occurred in two different stages. The first stage comprises the first five years of the Agency’s existence up until 2012, that witnessed the election of Victor Orbán in Hungary. With his 2010 victory came a wider recognition that Europe’s assumption, that the transfer of the acquis to the new Member States in 2004 would translate into their embrace of the rights and values embodied in the European Convention on Human Rights and the EU Fundamental Rights Charter, was flawed. The second stage

18 EU FRA, Office of the UN High Commissioner for Human Rights and Office of the Council of Europe International organisations commit to building broader support for human rights, Press Release (6 March 2018), available at: http://fra.europa.eu/en/news/2018/inter national-organisations-commit-building-broader-support-human-rights.

78

Rosemary Byrne

saw divides across Member States and within national societies hardening, whether as a result of the after-effects of the financial crisis of 2008, the migrant crisis of 2015, or the Brexit vote of 2016. FRA has worked creatively with the democratized media that has accompanied the technological revolution. This offers an opportunity for human rights groups to break out of their proverbial echo chambers, where preaching remains most often to the converted. Paradoxically, as recent history has illustrated, it is social media that has also led to a greater polarization of online communities. Amplifying evidence-based policy solutions beyond the remit of familiar stakeholders is difficult when audiences have a deepening skepticism towards the European human rights narrative that serves as the foundation of the Agency’s work. Even in an increasingly unreceptive political space outside of Brussels, communicating about rights through research increases the credibility of policy recommendations that are more easily perceived as vested with scientific neutrality and objectivity. The climate had changed even for this typically more insulated space enjoyed by scientific research. If the dynamics related to trust in research findings in North America over the past decade are mirrored, even to some degree, within Europe, then we are confronted with a decline in the presumed benefits of communicating with empirical evidence to advance rights-based policy solutions to doubting constituencies. In Drezner’s 2016 study that surveyed members of academia, think tanks and the media in the US, he found that there was a decrease of 19% over the past decade in the overall confidence in social science research.19 It warrants noting that this striking decline in trust was ‘from within’ the system of knowledge production, not from grassroots populist critics. FRA’s adopted methods are instructive for those engaging in evidence-based advising for human rights policy, as for instance the Agency’s frequent reliance on data visualization in its reports and on its website. Data visualization makes research accessible but, more importantly, it has been found when used in research on climate change to enhance the perception of credibility of scientific data when shown to those with sceptical views.20 Other studies have established that where messages threaten beliefs or group identities, data in visual displays was less likely to be disregarded.21 This is one example of how the communication methods relied upon by FRA might counter the hardening of negative attitudes towards the European institutions and/or mechanisms for the rights protection of marginalized groups. This would support the view that its use has been effectively tailored: in particular in reports addressing the rights of Roma, LGBT or migrants.

19 Daniel Drezner, The Ideas Industry (Oxford: OUP, 2017), p. 49. 20 Nan Li, Dominique Brossard, Dietram Scheufele, Paul Wilson and Kathleen Rose, ‘Communicating Data: Interactive Infographics, Scientific Data and Credibility’(2018) 17 JCOM 2, p. 2. 21 Ibid., p. 2 (citing Jamieson Hall and Keith Hardy, ‘Leveraging Scientific Credibility About Arctic Sea Ice Trends in a Polarized Political Environment’ (2014) 111, Proceedings of the National Academy of Sciences, Supplement 4, pp. 13598–13605.

Human rights communicators

79

Communicating as ‘human rights communicators’ As most of the contributions in this book highlight, the added value of FRA should be assessed in light of the Agency’s designated mandate. Commonly, when FRA opines it is within its primarily technocratic remit, destined to be heard through its communication channels linking it to the key Commission, EU and National Parliaments, along with EU Agency bodies and national civil servants. That technical pragmatic language that has impact in behind-thescenes corridors is not characterized by the expressive dynamism that can propel the Agency’s messages to ever-increasing communities of stakeholders. There is a limit to the extent to which research on topics such as the use of the Fundamental Rights charter by domestic courts, guardianship laws for minors, or biometrics will captivate the attention of different forms of media or of potential grassroots audiences. As an EU Agency FRA does not have the mandate or the capacity to assume a role as ‘thought leader’, of the sort that characterizes public discourse on both sides of the Atlantic. Nonetheless, in different forms of the Agency’s communication strategies, one can discern the techniques of the ‘ideas industry’ at play, such as in the Director’s ‘vlogs’ on various human rights themes.22 This is also evident in the FRA Fundamental Rights Forum, now held every three years as the Agency’s major initiative to bring together civil society actors from across the EU. In 2016, for instance, the forum offered innovative human rights thinkers and activists a platform for TEDx-style talks, with the pro-bono services of a public relations consultant to train speakers in the art of the medium. This platform filled a role the Agency could not, with experts speaking about future networks of cities, reform of the global asylum system, or a range of other ideas at the frontiers of human rights thinking. Working outside of its own limitations as an embedded institution with a set agenda of research projects and priorities driving its own evidence-based policy advising, the Agency shifted roles, acting as a hub for the communication of innovative developments in the field. FRA has linked into the digital tactics of mainstream movements to effectively extend its visibility and influence while supporting external rights-based advocacy initiatives. This can be seen in the way that the 2018 Fundamental Rights Forum grafted its discussion with civil society organizations regarding violence against women onto the #MeToo movement, using the adapted hashtag slogan #EUToo helping to end violence against women.23 When stepping into the Twittersphere, the Agency skirts the complicated fundamental rights implications attached to the #MeToo movement and the EU, offering a stark contrast

22 See the Director’s latest vlog: ‘Standing up for human rights’ (July 7, 2018) available at: http://fra.europa.eu/en/video/2018/directors-latest-vlog-standing-human-rights. 23 EU FRA, From #MeToo to #EUToo to help end violence against women (26 September 2018), available at: http://fundamentalrightsforum.eu/en/frf/blog/metoo-eutoo-help-end-vio lence-against-women.

80

Rosemary Byrne

to the detailed evidence-based research that directs most of its policy interventions. Human rights communication is confounded by the range of issues, varied constituencies and shifting of what can be legitimately claimed to be common ground. In 2017, FRA responded to mounting support for populist and far right politics by taking a hard look at the flagging communication strategies of human rights actors across the field. The sui generis nature of communicating rights is reflected in the composition of experts brought together by the Agency which included journalists, satirists, human rights educators, NGO communications experts, marketeers, neuroscientists, as well as professionals in political communication, intercultural education, data analysis and infographics. The transparent and candid self-critiques of approaches to human rights communication is a notable departure from the norm within the wider field of human rights. More critically, the outcome of this roundtable mimics an informal qualitative approach to providing insights and evidence for communicating rights.24 There is nothing new in a human rights institution or civil society organization reassessing the limitations of communication strategies and experimenting and assessing alternative techniques of reaching out to and persuading wider audiences. What is different, however, is that these discussions are typically conducted in-house. One can see a parallel initiative underway in the leading European NGO for refugee protection, ECRE (European Consultation on Refugees and Exiles), that was also one of the participants in the FRA communicating human rights discussions. On its open access website, ECRE provides an interview with its senior communication coordinator, giving strategic advice for activists speaking to the press about the refugee crisis, providing suggestions for messaging and framing answers.25 This is an example of seeing the role of communication less as a hidden art to transmit evidence-based policy advice, than as an accessible science in itself warranting careful scrutiny. FRA is engaged in opening the discussion on this critical subject at a critical time, making the collected input from experts publicly available. Communication has been reformulated to become an object of research itself. Alongside human rights defenders are human rights communicators.

Conclusion This chapter has looked at how FRA communicates through an established human rights narrative, across an enlarged European Union, from within an

24 EU FRA, 10 Keys to effectively communicating human rights (September 2018), available at: http://fra.europa.eu/en/publication/2018/10-keys-effectively-communicating-humanrights. 25 ECRE, Strategic communication is about consistency, coherence and authenticity, interview with ECRE Senior Communication Coordinator Villads Zahle (September 7, 2018), available at: www.ecre.org/strategic-communication-is-about-consistency-coherence-and-authenticity-inter view-with-ecre-senior-communication-coordinator-villads-zahle/.

Human rights communicators

81

embedded institution. It communicates using evidence-based research, with changing technology, to polarized audiences. It has introduced a specific identity of human rights communicators within the field. Communication is an interactive process, and it is not surprising that this facet of the Agency’s work in evidence-based policy advising is a product of the political, research and media spheres within which FRA operates. The techniques and strategies to be adopted in the future by the Agency will reflect the research innovations, technologies and techniques of the academy, all types of media and think tanks. The evolution in knowledge production and technology may also facilitate a more effective communication between the scientific work of FRA and wider scientific communities that remain important conduits at the national and regional levels for informing policy processes. While there is much for academics to learn about visual and interactive approaches to achieve policy impact, efforts by FRA to engage more closely with the scientific community could equip scholars to make research more relevant to rights-based issues, often merely by tweaking research proposals to address rights more directly. On the other hand, academic scholars might also support the adaptation of the Agency’s work so that it becomes a more common empirical reference point in the areas of its research. Perhaps FRA’s most important contribution remains the notion of the ‘human rights communicator’ whose vernacular is to seek an evidence base for the sui generis science of the communication of human rights.

6

Exploring the political role of FRA Mandate, resources and opportunities Jan Wouters and Michal Ovádek

Introduction Although mirroring a broader trend,1 which formed a large part of the regulatory state paradigm,2 the genesis of ‘agencification’ – the proliferation of European Union (EU) agencies in the 1990s and 2000s, which also led to the creation of the EU Fundamental Rights Agency (FRA or ‘the Agency’) and its predecessor, the European Monitoring Centre on Racism and Xenophobia (EUMC) – was linked to the Member States’ desire to avoid further integration leading to centralization of power in the hands of the European Commission.3 Situated in dozens of different locations across the EU territory (such as Vienna) and often containing internal governance levers for supervision by Member State representatives, agencies have been seemingly placed outside Brussels’ reach both figuratively and physically. Agencies were still to be connected with the EU’s institutions (especially the Commission) but not exclusively and in a networked way rather than hierarchically.4 It is a paradox of EU governance that the operational reality of the relationship between EU agencies and the Commission instead points to the de facto strengthening of the EU’s executive.5 This might be all the more surprising in the case of

1 Mark Thatcher, ‘Delegation to Independent Regulatory Agencies: Pressures, Functions and Contextual Mediation’ (2002) 25 West European Politics 125–147. 2 Giandomenico Majone, ‘The Rise of the Regulatory State in Europe’ (1994) 17 West European Politics 77–101. 3 Bickerton, Hodson and Puetter see agencies as part of ‘de novo bodies’ to whom powers were delegated in lieu of the Commission in the post-Maastricht period. See Christopher J. Bickerton, Dermot Hodson and Uwe Puetter, ‘The New Intergovernmentalism: European Integration in the Post-Maastricht Era’ (2015) 53 Journal of Common Market Studies 703–722 at 705. 4 Renaud Dehousse, ‘Regulation by Networks in the European Community: The Role of European Agencies’ (1997) 4 Journal of European Public Policy 246–261. 5 Morten Egeberg, Jarle Trondal and Nina M. Vestlund, ‘The Quest for Order: Unravelling the Relationship between the European Commission and European Union Agencies’ (2015) 22 Journal of European Public Policy 609–629.

Exploring the political role of FRA

83

6

FRA, as the notion, put forward by Kelemen, that the creation of EU agencies was part of a strategy of ‘bureaucratic self-aggrandizement’ by the Commission does not conform to the latter’s original negative position towards the establishment of the Agency.7 The specificity of FRA among EU agencies is, however, not confined to this point: the standard propositions about agencies in the literature are associated primarily with technical regulation of economic activity. An information agency concerned with fundamental rights represents a somewhat awkward object of study in agency research.8 Even when it comes to ‘social’ regulation, the omnipresence and general importance of fundamental rights in domestic and international legal orders and discourse sets the case of FRA apart. The idiosyncrasy is further compounded by a set of specific expectations concerning, in particular, institutional independence stemming from FRA’s incomplete mimicry of the model of National Human Rights Institutions (NHRIs).9 In this chapter, we focus on FRA in all its specificity insofar as such features are also politically relevant factors. Discussing the ‘political’ role of EU agencies might, however, appear oxymoronic to some: independent agencies can be understood as instruments of technocratic governance which depoliticize issues and thus replace ‘politics’ with ‘expertise’.10 The rich literature on principal–agent relationships and bureaucratic politics documents that agencies are, nevertheless, not entirely removed from the political process, both as subjects of political influence and as political agents. As argued by Martin Shapiro, this applies also in the case of ‘regulation by information’,11 the model of agency role popularized in the EU context by Giandomenico Majone: [introducing] transparency and participation into the internal processes of the new agencies […] will actually be hampered to the extent that we try to build the legitimacy of the agencies by insisting that ‘information’ and ‘technical decisions’ somehow lie in a cradle of scientific harmony above and beyond the clash of interests and the exercises of discretion in the face of uncertainty that we call politics.12

6 Daniel Keleman, ‘The Politics of “Eurocratic” Structure and the New European Agencies’ (2002) 25 West European Politics 93–118 at 95, 98. 7 Olivier De Schutter, ‘The EU Fundamental Rights Agency: Genesis and Potential’, in Kevin Boyle (ed.), New Institutions for Human Rights Protection (Oxford: Oxford University Press, 2009), p. 95. See also Chapter 1 of this volume. 8 Despite the fact that it has not been identified as an outlier in research looking at all agencies. See, for example, Egeberg, Trondal and Vestlund, ‘The Quest for Order’, 629. 9 Principles relating to the Status of National Institutions (The Paris Principles), Adopted by General Assembly resolution 48/134 of 20 December 1993. 10 Kathleen Bawn, ‘Political Control versus Expertise: Congressional Choices about Administrative Procedures’ (1995) 89 American Political Science Review 62–73. 11 Giandomenico Majone, ‘The New European Agencies: Regulation by Information’ (1997) 4 Journal of European Public Policy 262–275. 12 Martin Shapiro, ‘The Problems of Independent Agencies in the United States and the European Union’ (1997) 4 Journal of European Public Policy 276–291 at 291.

84

Jan Wouters and Michal Ovádek

Regardless of whether the creation of an agency on human rights represents the height of technocratic folly,13 the role of FRA should be seen as also having a political dimension, perhaps even more so than other EU agencies, given that it operates in a more sensitive and cross-cutting issue area, and despite the tasks of FRA being of an informational rather than regulatory nature.14 More specifically, two kinds of politics can be seen at play in the case of FRA: constitutive politics, as politics setting the institutional parameters which both enable and constrain the Agency, and operational (or bureaucratic) politics, as the ‘daily’ politics concerning information, management of relations with other actors and the identification of opportunities for engagement and impact.15 The two types of politics are not inevitably isolated from each other, as, for example, operational politics can produce constitutive effects when particular interpretations of the formalized mandate are put forward.16 Observing both constitutive and operational politics, we posit that the political role of FRA is chiefly determined by three partially interrelated factors: the Agency’s mandate, its resources and available opportunities for impact. These three variables not only embody the distillation of political influence on FRA by various political actors at different stages (establishment, resourcing, opportunitycreation) but their combined effect also captures the potential of FRA’s political influence. Although the mandate of FRA could be prima facie viewed as constant, it is in fact subject to the dynamics of interpretation and ongoing constitutive politics which play out both within FRA and in other institutions, notably the Council. In addition, the mandate and resources condition the scope of opportunities. We explore the three variables over the course of FRA’s existence and chart an overview of the main constraints they place on FRA’s political influence, while acknowledging that their relative importance may vary per event or issue.

Mandate The creation of FRA and its mandate was a complicated and multifaceted process, lasting broadly from 1999, when first proposals were floated, to 2007, when FRA’s ‘Founding Regulation’ was adopted.17 As the process is also well

13 Neil Walker, ‘Plato vindicated? Europe as epistocracy’, Francqui Chair lecture, 28 February 2017, Leuven. 14 Following the distinction in Daniel Kelemen, ‘The Politics of Eurocracy: Building a New European State?’ in Nicolas Jabko and Craig Prasons (eds), With US or Against US? European Trends in American Perspective (Oxford: Oxford University Press, 2005), pp. 173–189. 15 Drawing on the operationalization of the two concepts in Tannelie Blom and Valentina Carraro, ‘An Information Processing Approach to Public Organizations: The Case of the European Union Fundamental Rights Agency’ (2014) 18 European Integration online Papers (EIoP) 1–36 at 9–12. 16 Ibid., 12. 17 Council Regulation (EC) No 168/2007 of 15 February 2007 establishing a European Union Agency for Fundamental Rights, OJ 2007 No. L53/1, hereinafter the ‘Founding Regulation’.

Exploring the political role of FRA

85

18

documented in the literature, we only point to the most politically significant aspects of the Agency’s general19 mandate, understood here as consisting of the Founding Regulation and the Multi-annual Frameworks (‘MAFs’) adopted on a five-year basis.20 Moreover, we do not duplicate in-depth the ground work provided by other chapters of this volume.21 FRA has not been vested with any regulatory decision-making powers. Its main tasks are data collection, research, analysis, providing advice to policy makers and cooperation with stakeholders, including through networks and outreach activities. In principle, all of FRA’s tasks are liable to have at least a limited degree of political impact. For example, some research questions are generally more sensitive (e.g., discrimination of minorities) than others (e.g., access to justice), and in particular more for some Member States than for others (e.g., research on discrimination of language minorities resonates differently in Estonia than in some other Member States). FRA is generally conscious of Member States’ political sensibilities and while it safeguards the integrity of its research, it may take the sensitivity of certain topics in a particular Member State into account in its, especially more targeted, communication activities. The members of the Management Board (MB) – coming from the Member States, albeit according to the law in ‘individual capacity’ – can also raise such points.22 As mentioned previously, unlike most EU agencies, FRA was not designed subject to solely one (EU) agency model: a concurrent influence stemmed from the environment of national human rights institutions (NHRIs) which were based on an existing UN-approved template.23 NHRIs were also an obvious candidate for the establishment of a transnational regulatory (in the informational sense) network with FRA. The final design of the mandate of the Agency,

18 See, for example, De Schutter, ‘Genesis and Potential’, pp. 93–135; Waldemar Hummer, ‘The European Fundamental Rights Agency’, in August Reinisch and Ursula Kriebaum (eds), The Law of International Relations: Liber Amicorum Hanspeter Neuhold (Utrecht: Eleven International Publishing, 2007), pp. 117–144. 19 We do not analyze FRA’s role under the EU Framework for the UN Convention on the Rights of Persons with Disabilities, not least because it does not confer on the Agency competences which would significantly go beyond its general mandate. Nevertheless, the Framework does institutionalize FRA’s role in EU disability governance on the basis of EU implementation of an international treaty and similar arrangements linking other treaties to the EU might potentially represent a format for the strengthening of FRA’s mandate in the future, including possibly with impact on its ‘political’ role. 20 Council Decision No 252/2013/EU of 11 March 2013 establishing a Multi-annual Framework for 2013–2017 for the European Union Agency for Fundamental Rights, OJ 2013 No. L79/1. 21 See, in particular, Chapter 1. 22 Interview with a senior FRA official, Vienna, 17 March 2017. 23 Principles relating to the Status of National Institutions (The Paris Principles), Adopted by General Assembly resolution 48/134 of 20 December 1993. See on NHRIs in a European, comparative and international context: Jan Wouters and Katrien Meuwissen (eds), National Human Rights Institutions in Europe: Comparative, European and International Perspectives (Antwerp – Oxford: Intersentia, 2013).

86

Jan Wouters and Michal Ovádek

however, was clearly influenced more by EU-specific considerations, including continuity with the EUMC, than the Paris Principles, which are referenced only in the Preamble of the Founding Regulation.24 As a result, FRA’s mandate does arguably not fully satisfy the requirements of the Paris Principles, in particular on account of two issues. First of all, the FRA lacks the power to autonomously comment on EU legislative proposals. Second, it lacks autonomy when it comes to defining areas of activity; in practice, this has led to the exclusion of certain areas – notably police and judicial cooperation in criminal matters – from the MAFs thematically delineating the work of the Agency.25 However, frustrating purely from a human rights perspective, it should be remembered that these constraints emanate from years of discussions and are conscious political choices: they are design features rather than ‘bugs’. It must be acknowledged that both institutional constraints are also politically significant. The ability to issue opinions on legislative proposals is the only formal route for FRA to directly assess the fundamental rights aspects of future EU legislation. That FRA realizes the importance of this (constrained) competence is corroborated by the attention and resources it devotes to its opinions (see ‘Opportunities’ below). Making this crucial competence conditional upon requests from the European Parliament (EP), the Council or the Commission has two consequences. First, FRA is limited in its capacity to set its own agenda – the selection of legislative proposals on which it is allowed to comment is subject to complete (but individual) discretion of the three political institutions.26 This also means that opinions are not necessarily delivered on the files most in need of an independent fundamental rights perspective.27 Second, the recourse to FRA and a more impartial fundamental rights scrutiny of EU legislation is rendered optional, which undercuts the relevance of the Agency. FRA is clearly not indispensable in this regard, as the three institutions have their own capacities – however limited and wedded to political objectives – to determine the impact of legislative proposals on and their compliance with

24 De Schutter, ‘Genesis and Potential’, pp. 111–112. 25 Armin von Bogdandy and Jochen von Bernstorff, ‘The EU Fundamental Rights Agency within the European and International Human Rights Architecture: The Legal Framework and Some Unsettled Issues in a New Field of Administrative Law’ (2009) 46 Common Market Law Review 1035–1068 at 1058–1059. 26 The scope of the EU institutions’ competence to request opinions on legislative proposals from FRA has been disputed. Article 4(2) of the Founding Regulation stipulates that the opinions may relate to ‘proposals from the Commission under Article [293 TFEU] or positions taken by the institutions in the course of legislative procedures only where a request by the respective institution has been made’. This provision could be interpreted restrictively as meaning that requests for opinions by the Council and the European Parliament can only concern the positions taken by them with respect to legislative proposals of the Commission, not including the Commission proposal itself. In practice, requests by any of the three institutions have been treated as requests for opinions on the entire legislative proposal. 27 FRA enjoys discretion as to whether to accept a request for an opinion. However, it has so far almost never rejected such a request. This is logical, as the opinion requests offer FRA the only opportunity for expression in the legislative process.

Exploring the political role of FRA

87

fundamental rights. FRA does benefit, however, from the fact that the institutions compete with each other to an extent. In particular, the European Parliament may be keen on challenging the Commission’s proposals through FRA’s opinions. FRA’s positioning as an independent actor is even more obviously impeded by the adoption of MAFs in the Council. The MAF, required by Article 5 of the Founding Regulation, is adopted every five years in accordance with the special legislative procedure and, since 2013,28 on the basis of the ‘flexibility clause’ (Article 352 TFEU) which requires the consent of the European Parliament and a unanimous decision of the Council. The MAF lays down a list of thematic areas within which ‘the Agency shall carry out its tasks’.29 By way of derogation, when responding to a request of one of the three main EU institutions, the thematic limitation of the MAF does not apply.30 Despite the list of thematic areas being relatively extensive,31 it is not exhaustive. It is therefore obvious that the MAF constrains FRA’s own agenda-setting capacity by narrowing the scope of the Agency’s activity to politically pre-approved areas. Even if it were right to say that FRA is in its work free to look at the whole gamut of rights covered by the EU Charter of Fundamental Rights regardless of whether they correspond to an area stipulated by the MAF,32 not only does the political direction given by the MAF carry some weight even in this regard, but it also constrains the Agency’s choice of issue areas (as expected of the MAF).33 Together with the reliance on requests for opinions on legislative files, the adoption of the MAF thus represents a two-fold restraint of FRA’s independence with regards to agenda-setting. In addition, the fact that the MAF must be adopted following a special legislative procedure implies a degree of political control over FRA which is inimical to the Agency’s independent image, regardless of the actual extent of direct political interference, in particular from the Council, being virtually non-existent.

28 The first MAF was based on the secondary legal basis provided for by Article 5(1) of the Founding Regulation which requires, as opposed to Article 352 TFEU, only the consultation of the European Parliament (rather than its consent). See Council Decision 2008/203/EC of 28 February 2008 implementing Regulation (EC) No 168/2007 as regards the adoption of a Multi-annual Framework for the European Union Agency for Fundamental Rights for 2007–2012, OJ 2008 No. L63/14. On the basis of CJEU case law, in particular Case C-133/06, Parliament v Council [2008] ECLI:EU:C:2008:257, paras 55–61, both the Commission and Council Legal Service are of the opinion that the use of the secondary legal basis in Article 5(1) of the Founding Regulation is incompatible with the Treaties. Article 352 TFEU has been henceforth used as the legal basis for the Council Decision on the MAF. 29 Article 5(3) of the Founding Regulation. 30 Second sentence of Article 5(3) of the Founding Regulation. 31 See Article 2 of the 2013–2017 MAF, OJ 2013 No. L79/1. 32 Gabriel N. Toggenburg, ‘Fundamental Rights and the European Union: how does and how should the EU Agency for Fundamental Rights relate to the EU Charter of Fundamental Rights?’ EUI Working Paper Law 2013/13, pp. 6–7. 33 Alicia Hinajeros, ‘A Missed Opportunity: The Fundamental Rights Agency and the Euro Area Crisis’ (2016) 22 European Law Journal 61–73 at 68.

88

Jan Wouters and Michal Ovádek

A long-running saga of constitutive politics helps illustrate the importance of the MAF to FRA but also the Agency’s relative weakness to provoke desired changes to its mandate.34 From the outset, the Council did not include in the MAF thematic areas previously belonging to the third pillar of the EU (police and judicial cooperation in criminal matters). Not long after the adoption of the first MAF in 2008, and in particular following the entry into force of the Treaty of Lisbon in December 2009, a discussion emerged regarding the desirability and possibility of subsuming the former third pillar issues within FRA’s mandate. On the one hand, as traditional and sensitive state prerogatives, some Member States were wary of having FRA analyze the fundamental rights aspects of European criminal cooperation. On the other hand, the rationale according to which these areas should be excluded from the ambit of FRA’s activity was becoming considerably eroded as a consequence of proliferating EU legislation on the topic – with much of it focussed on fundamental rights – and the abolition of the distinctive character of criminal cooperation and the entire pillar structure with the Treaty of Lisbon. Fortunately for the Member States wishing to keep criminal cooperation matters away from FRA, the Council Legal Service formulated a legal argument against the very possibility of including such matters on the list of thematic areas in the MAF within the existing framework of the Founding Regulation and EU law generally. In two opinions adopted in 2011 and 2012,35 the Council Legal Service took the view that former third pillar matters cannot be incorporated into the MAF without first amending the Founding Regulation, as the provisions of the latter refer in several places to the ‘Community’ rather than the EU, and ‘Community law’ instead of EU law. From that the Council Legal Service deduced that the original intention of the legislators in drawing up the Founding Regulation was to exclude issues not falling within the first pillar from FRA’s scope of activity and this was not, according to the Service, altered by the entry into force of the Lisbon Treaty. As a result, the MAF, a subsidiary instrument, could not be used to expand the alleged first-pillar scope of the Founding Regulation. It is a thinly disguised secret in the EU fundamental rights community that the opinion of the Council Legal Service has been instrumentalized for political ends by a handful of Member States in order to resist the expansion of the MAF to include police and judicial cooperation in criminal matters.36 Nevertheless, as the required threshold for passing the MAF in the Council is unanimity, the former third pillar areas have been kept off the thematic lists in already three

34 We classify the MAF saga as an instance of constitutive rather than operational politics, as it concerns the renegotiation of a part of its mandate rather than testing its flexibility through daily bureaucratic politics. 35 Council of the European Union, Opinion of the Legal Service, doc. 6138/11, 4 February 2011; and Opinion of the Legal Service, doc. 6318/12, 9 February 2012. 36 Interview with a Member State official, Brussels, 11 July 2017.

Exploring the political role of FRA

89

successive MAFs. If business continues as usual until the end of the current MAF, the opposition to the mandate alteration will have successfully persisted for more than 10 years.37 This is striking and points to the continued inability of the other actors involved in this saga, FRA chiefly among them, to achieve a relatively trivial modification of the mandate. Further illustrative of the Council’s intransigence is the fact that both the Commission and FRA have persuasively disputed the Council Legal Service’s argument. In the opinion of the Commission, which is shared by FRA, the Treaty of Lisbon explicitly provided for all pre-Lisbon legal instruments to be converted according to the provisions of the newly enacted TEU and TFEU.38 This would mean that all references to the ‘Community’ should be read as references to the ‘Union’ and the same with respect to Community/Union law. As a result, the Founding Regulation would allow for the MAF to include thematic areas from the former third pillar. This interpretation was rejected by the Council Legal Service without addressing the relevant ‘conversion’ provisions of the Lisbon Treaty or demonstrating that its restrictive view of the transition from the Community to the Union was legally followed in any other legislative file. It has so far not mattered for the blocking Member States that making the MAF inclusive of judicial and police cooperation in criminal matters was recommended by an external review of FRA in 2012,39 the European Parliament,40 civil society,41 the Commission,42 and the FRA Management Board.43 Nor has the Council position been altered in light of FRA working on the disputed areas on the basis of Commission requests.44 FRA itself has expended over the years resources to harness support, build coalitions and lobby for the enlargement of

37 The most recently adopted MAF will run until 2022. See Council Decision (EU) 2017/ 2269 establishing a Multi-annual Framework for the European Union Agency for Fundamental Rights for 2018–2022, OJ 2017 No. L326/1. Discussions regarding the enlargement of the scope emerged during the period of the first MAF. 38 Article 5(3) of Treaty of Lisbon amending the Treaty on European Union and the Treaty establishing the European Community, signed at Lisbon, OJ 2007 No. C306/1. 39 Ramboll, ‘External evaluation of the European Union Agency for Fundamental Rights’, Final Report, 19 November 2012. 40 European Parliament, ‘Resolution of 12 December 2012 on the situation of fundamental rights in the European Union (2010–2011)’, Procedure 2011/2069(INI), P7_TA(2012) 0500, 12 December 2012, para 45. 41 Statement by the Human Rights and Democracy Network, ‘Strengthening the European Union’s response to human rights abuses inside its own borders’, 5 August 2013. 42 See, most recently, European Commission, Proposal for a Council Decision establishing a Multi-annual Framework for the European Union Agency for Fundamental Rights for 2018–2022, COM(2016) 442 final, Brussels, 5 July 2016. 43 Letter from Chairperson of the Management Board Maija Sakslin to European Commission Vice-President Viviane Reding, 4 June 2013. 44 EU Agency for Fundamental Rights, ‘Criminal detention and alternatives: fundamental rights aspects in EU cross-border transfers’, Report, November 2016; and ‘Rights of suspected and accused persons across the EU: translation, interpretation and information’, Report, November 2016.

90

Jan Wouters and Michal Ovádek

the mandate, all to no avail (so far). The Member States relied on the opinion of the Council Legal Service, which required an amendment to the Founding Regulation as a shield legally blocking the inclusion of criminal matters in the MAF. Such a legislative change has simply not been a priority in view of more pressing concerns (e.g., financial, migration crises, Brexit).45 This situation is likely not going to be maintained forever – the blocking Member States, especially following the UK’s impending departure, may give in regarding the extent of FRA’s mandate once a proposal for the necessary amendment of the Founding Regulation is tabled.46 However, while the special legislative procedure required presently for the adoption of the MAF is seen as too onerous and might be replaced by comitology or handed over to the FRA MB,47 the difficulties in the Council of changing the MAF should act as a cautionary tale for anyone expecting the review of the Founding Regulation to lead to a substantial enlargement of FRA’s competences.48 In any case, the MAF saga shows quite clearly the limited role of FRA in constitutive politics concerning its own mandate. Despite working behind the scenes and having seemingly the more persuasive legal argument and support of multiple stakeholders, FRA was not able to achieve a fairly trivial adjustment of the mandate. This suggests that, unlike FRA’s relative success at disrupting the constraints of its mandate through operational politics documented by Blom and Carraro,49 its ability to fruitfully engage in constitutive politics is more circumscribed. FRA might therefore wish to focus its efforts, as it already does, on making use of opportunities presented by the existing mandate. One hitherto underexploited aspect of the mandate, as highlighted by a senior FRA official,50 is the utilization of the MB as an additional network platform for FRA’s engagement with NHRIs and other national bodies. In accordance with Article 12(1) (a) of the Founding Regulation, Member States have to appoint to the MB ‘an independent person [ … ] having high level responsibilities in an independent national human rights institution or other public or private sector organisation’. If all MB members were also senior NHRI representatives,51 the degree of

45 Thus a Member State official with knowledge of the file: interview, Brussels, 11 July 2017. 46 Ibid. 47 Ibid.; and Council of the EU, Opinion of the Legal Service, doc. 6138/11, 4 February 2011, para 28. 48 See, for example, European Parliament, ‘Resolution of 25 October 2016 with recommendations to the Commission on the establishment of an EU mechanism on democracy, the rule of law and fundamental rights’, Procedure 2015/2254(INL), P8_TA(2016)0409, 25 October 2016, Articles 2, 6 and 10 of the Draft Interinstitutional Agreement ‘European Union Pact on Democracy, the Rule of Law and Fundamental Rights’. 49 Tannelie Blom and Valentina Carraro, ‘An Information Processing Approach to Public Organizations: The Case of the European Union Fundamental Rights Agency’ (2014) 18 European Integration online Papers (EIoP) 1–36 at 26. 50 Interview with a senior FRA official, Vienna, 17 March 2017. 51 One potential drawback of stepping up cooperation with NHRIs is that not all Member States have NHRIs with the highest accreditation. There are 16 Member States with A-status NHRIs and 6 with B-status institutions.

Exploring the political role of FRA

91

coordination and cooperation among NHRIs and FRA could be considerably strengthened. However, some Member States may consider, contrary to the requirement of independence, appointing persons with the aim of ‘reining in’ the Agency by primarily safeguarding national interests and sensitivities.52

Resources When it comes to resources, the most relevant and readily comparable indicators are the size of the budget and the number of staff available to EU agencies. The latter figure can, as Wonka and Rittberger pointed out,53 serve also as a proxy measure for the political principals’ understanding of policy complexity. More generally, budget and staff allocations shed light on the politically determined priorities that principals ascribe to a given agency and the issue area. This follows from both the procedures determining the budget and staffing of EU agencies, as well as from the fact that most agencies (including FRA) have virtually no independent revenue and are thus wholly reliant on allocations from the EU budget. Each year, the FRA Director drafts an estimate of revenue, expenditure and the establishment plan for the subsequent financial year. Subject to modifications, this estimate is transmitted through the MB to the Commission and eventually to the budgetary authority (the European Parliament and the Council) together with a draft made by the Commission of the general EU budget and FRA’s resources’ expected impact on it, in accordance with Article 314 TFEU.54 The final decision-making power lies with the budgetary authority, which authorizes the appropriations for the subsidy to the Agency and adopts its establishment plan. The budget is subsequently adopted by the MB and becomes final, subject to future adjustments, upon adoption of the general EU budget.55 Allocation of resources therefore represents another incentive for FRA to be on good terms with the three political EU institutions. Moreover, it should go without saying that the amount of resources allocated to a large extent defines the limits of what is possible for FRA to achieve in terms of research projects, visibility, stakeholder cooperation, and other tasks. The mandate is therefore not the only politically contingent factor which delineates FRA’s horizon of opportunities. While we do not analyze the value for money of FRA’s expenditures, we place its overall yearly resource allocations in a comparative context in order to obtain an indication of the development of the Agency’s resourcefulness since its creation. This overview can also serve as a crude and imperfect proxy for understanding the political institutions’ perception of FRA’s importance.

52 Interview with a Member State official, Brussels, 11 July 2017. 53 Arndt Wonka and Berthold Rittberger, ‘Credibility, Complexity and Uncertainty: Explaining the Institutional Independence of 29 EU Agencies’ (2010) 33 West European Politics 730–752 at 742. 54 The procedure for the adoption of FRA’s budget and establishment plan is set out in Article 20 of the Founding Regulation. 55 Article 20(8) and (9) of the Founding Regulation.

92

Jan Wouters and Michal Ovádek

For reasons of brevity, the comparison of FRA’s resources in Tables 6.1 and 6.2 is limited only to the thematically most proximate EU agencies, namely those belonging to the Justice and Home Affairs (JHA) network of agencies. Although FRA’s budget in 2017 was not the smallest among the nine JHA agencies, it was dwarfed by the budgets of Frontex, eu-LISA and Europol, and was more than two times smaller than those of EASO and Eurojust respectively. The significance of FRA’s revenue in the overall constellation is perhaps best summed up by its declining share of total revenue of all JHA agencies: in the ten-year period since FRA’s creation, the share of the revenue it receives declined from 8.8% of total in 2007 to merely 3.0% in 2017, the lowest share in spite of FRA collecting the highest nominal revenue (22.7 mil EUR). On average, the budgets of JHA agencies more than quadrupled between 2007 (or year of establishment) and 2017, while FRA’s revenue grew by 57%. The difference is even starker when 2010, following the initial budgetary increases, is used as the baseline year – since then, FRA’s revenue has increased by a mere 13%. Compared with the development in revenue, the decline of FRA’s share of total staff has been less pronounced (albeit still present). Nevertheless, and despite doubling the number of staff members in 2016 and 2017 compared with its inception, FRA still falls below the average ‘growth rate’ of JHA agencies in this period; the comparison is again even less positive when looking at the period since 2010 during which FRA’s staff has increased by merely 13%, in contrast to an average of 59%. Moreover, FRA employs a relatively large number (37 in 2017) of contract agents (‘CAs’) who are less permanent than the standard temporary agents (‘TAs’) making up the vast majority of total staff of EU agencies. According to Commission plans, the number of FRA’s TAs should fall to 70 by 2020 (currently 72).56 Not included in Table 6.2 is the fact that FRA also employs the highest number of trainees among the JHA agencies (35 in 2016) and it does so for longer periods (generally a year) than other EU institutions and bodies. On the whole, the comparison of FRA to other agencies in the JHA network reveals that it belongs to a group of less-resourced agencies, both in terms of budget and staff, and that the relative tendency in resource allocation does not favour the Agency. While to some extent the differences are understandable and explainable in light of the costs involved in some issue areas (naval missions, large-scale IT systems), there is a trend since the entry into force of the Lisbon Treaty to which FRA has been an onlooker as other agencies’ resources soared, in some cases very considerably. This shows that adding to FRA’s resources has, in particular in recent years, not been a priority of EU institutions and the Member States. It is not an unreasonable assumption to make that FRA’s ability to exert political influence would have benefited from

56 European Commission, ‘Programming of human and financial resources for decentralised agencies 2014–2020’, Communication, COM(2013) 519 final, Brussels, 10 July 2013, p. 26 (Annex II).

41.8 65.0 18.0 14.4 14.4 6.5 4.5 164.6 8.8%

42.7 65.0 24.1 15.0 15.0 8.7 6.4 177.0 8.5%

2008 88.3 68.1 28.2 17.0 14.0 8.8 6.9 231.2 7.4%

2009 92.8 92.4 5.25 32.3 20.1 15.2 6.3 6.5 270.9 7.4%

2010 118.2 84.8 8.0 31.4 20.2 16.2 7.3 6.4 292.4 6.9%

2011 76.3 83.1 10.0 32.6 20.4 16.3 7.8 7.7 254.3 8.0%

2012 92.0 22.6 82.1 10.5 32.2 21.3 16.3 7.9 7.5 292.6 7.3%

2013 86.7 48.9 84.3 15.7 33.6 21.2 15.7 8.9 7.4 322.4 6.6%

2014

146.6 71.2 95.4 15.9 33.9 21.2 16.0 8.8 7.8 416.9 5.0%

2015

232.8 82.3 104.3 53.1 43.5 21.4 15.4 9.9 7.8 570.4 3.7%

2016

302.0 153.3 114.6 69.2 47.9 22.7 15.8 10.5 7.7 743.8 3.0%

2017

Source: yearly statements of revenues and expenditure of the respective JHA agencies. Note: where available, the data shows final revenue after any budgetary amendments. In some cases, the revenue of agencies consists not only of an EU subsidy but also to a lesser extent of Member State and third country contributions and/or other sources of revenue. The total revenue remains, nonetheless, relevant, as all sources of revenue are taken into account by the EU budgetary authority when drafting the budgets of the agencies and in principle contributions from outside the EU budget can be allocated at a country’s discretion to any agency, thus serving as further indication of preference.

Frontex eu-LISA Europol EASO Eurojust FRA EMCDDA CEPOL EIGE TOTAL FRA %

2007

Table 6.1 Yearly revenue of JHA agencies in millions EUR 2007–2017

94

Jan Wouters and Michal Ovádek

Table 6.2 Total number of staff members in JHA agencies 2007–2017 2007 2008 2009 2010 2011 2012 2013 2014 2015 2016 2017 Europol Frontex Eurojust EASO eu-LISA FRA EMCDDA CEPOL EIGE TOTAL FRA %

406 133 179 57 107 31.5 882 6.5%

433 198 200 70 104 33.5 1005 7.0%

444 255 257 94 105 41 20 1216 7.7%

548 294 257 24 106 110 40 29 1408 7.5%

555 311 247 61 106 110 41 34 1465 7.2%

595 312 260 61 112 112 41 44 1537 7.3%

595 318 280 77 128 116 112 41 46 1713 6.8%

601 317 259 86 138 113 107 42.5 41 1662 6.8%

668 404 255 126 152 111 106 44.5 42 1864 6.0%

705 467 261 149 150 116 107 48 42 2045 5.7%

786 655 253 227 168 119 111 50 42 2411 4.9%

Source: the total number is a sum of permanent civil servants, temporary agents, contract agents and seconded national experts, as allocated in the establishment plans of the agencies, except where only actual figures (positions as filled) were available. Note that only the EMCDDA is entitled to employ a small (and falling) number of permanent civil servants and that the vast majority of all employees across all JHA agencies are temporary agents.

a more substantial increase in resources. Furthermore, it is notable that whereas the refugee and migration crisis and increased salience of security discourse following terrorist scares in the EU led to an extensive surge in the capacities of Frontex (including a strengthened mandate), EASO, EU-LISA and Europol, the resources and mandate of FRA have been left comparatively stagnant, despite the obvious fundamental rights dimensions entailed in greater EU involvement in issues pertaining to the Area of Freedom, Security and Justice (AFSJ).

Opportunities The preceding examination pointed to the various brakes put on the Agency’s mandate and resources. This in turn has a bearing on the opportunities for political impact available to FRA and its ability to generate them. With a modest mandate and resources, the Agency must work extra hard to create and pursue opportunities when they arise: its political influence and policy relevance depend on it. As a result of the formal and material constraints, FRA must rely on stakeholder cooperation for opportunities, which in turn further limits its autonomy. The most important relationships are those cultivated with the EU institutions, more specifically with the European Parliament, the Commission and the Council, as these can request opinions on issues that can be of immediate relevance to the legislative process insofar as fundamental rights issues are concerned. As

Exploring the political role of FRA

95

explained above, opinions are therefore the most important institutionalized vehicle for political influence of FRA, despite the Agency’s circumscribed ex officio capacity to issue them.57 It is clear from a glance at the list of opinions (Table 6.3) delivered by FRA that the vast majority (18 out of 23) of them have been requested by the Table 6.3 FRA Opinions delivered by end of 2018 pursuant to Article 4(1)(d) of the Founding Regulation FRA Opinion

Request

Delivered

5/2018

EP

27 November 2018

EP

24 September 2018

EP

5 September 2018

EP

30 August 2018

EP

11 April 2018

EP

30 June 2017

Council

10 April 2017

EP

22 December 2016

EP

29 November 2016

EP

23 November 2016

EP

3 May 2016

4/2018

3/2018

2/2018 1/2018 2/2017

1/2017 6/2016

5/2016 4/2016 3/2016

European Border and Coast Guard Regulation and its fundamental rights implications Challenges and opportunities for the implementation of the Charter of Fundamental Rights Fundamental rights implications of storing biometric data in identity documents and residence cards The revised Visa Information System and its fundamental rights implications Interoperability and fundamental rights implications The impact on fundamental rights of the proposed Regulation on the European Travel Information and Authorisation System (ETIAS) Improving access to remedy in the area of business and human rights at the EU level The impact of the proposal for a revised Eurodac Regulation on fundamental rights Fundamental rights in the ‘hotspots’ set up in Greece and Italy The impact on children of the proposal for a revised Dublin Regulation Requirements under Article 33 (2) of the UN Convention on the Rights of Persons with Disabilities within the EU context

(Continued )

57 According to the Founding Regulation, FRA can draw up opinions and reports on ‘specific thematic topics’ on its own initiative or at the request of one of the three main institutions (Article 4(1)(d)) but any opinions on legislative proposals must first be requested by one of the institutions (Article 4(2)).

96

Jan Wouters and Michal Ovádek

Table 6.3 (Cont.) FRA Opinion

Request

Delivered

2/2016

EP

8 April 2016

EP COM

23 March 2016 11 December 2015

EP

6 February 2014

Council

15 October 2013

1/2016 1/2015

1/2014 2/2013

1/2013

3/2012 2/2012 1/2012 1/2011

The development of an integrated tool of objective fundamental rights indicators able to measure compliance with the shared values listed in Article 2 TEU based on existing sources of information EU common list of safe countries of origin Exchange of information on third-country nationals under a possible system to complement the European Criminal Records Information System Proposal to establish a European Public Prosecutor’s Office Framework Decision on Racism and Xenophobia – with special attention to the rights of victims of crime The situation of equality in the European Union 10 years on from initial implementation of the equality directives Confiscation of proceeds of crime Proposed EU data protection reform package Proposed EU regulation on property consequences of registered partnerships Proposal for a Passenger Name Record (PNR) Directive Draft directive regarding the European Investigation Order (EIO) Proposal for a Council Framework decision on the use of Passenger Name Record (PNR) data for law enforcement purposes

1 October 2013 Selfinitiated58 EP EP

4 December 2012 9 October 2012

EP

11 June 2012

EP

15 June 2011

EP

23 February 2011

Council

28 October 2008

Source: FRA’s website

European Parliament. For years, FRA has been honing its relationship with the Parliament and in particular the Committee on Civil Liberties, Justice and Home Affairs (LIBE). This should not come as a surprise – ‘the European

58 FRA’s website lists six other earlier documents as self-initiated opinions but these vary widely in form, while the 2013 opinion on the situation of equality in the EU already follows the more standardized and legal layout of recent FRA opinions which signals the Agency’s intent in this regard.

Exploring the political role of FRA

97

Parliament was the sole authentic institutional supporter of the Agency’ in the process of its formation.59 The fruits of the FRA-EP relationship can be most visibly seen in 2016 when six opinions were delivered, all of them having been requested by the European Parliament. On the contrary, the list of delivered opinions indicates a complex relationship with the Commission, which has requested only one opinion (but several research activities, including on criminal matters, which are outside the scope of the MAF). Although political science literature has observed increasingly tighter relationships between the Commission and EU agencies,60 the case of FRA shows that this need not necessarily imply that the Commission increases the agencies’ opportunities for policy relevance. A number of interconnected factors are likely to play a role in the specific circumstances of FRA–Commission relations. First, the Commission’s originally sceptical attitude towards the idea of establishing a fundamental rights agency does not cast it as a natural champion of FRA in EU policy-making circles. Second, the Commission has ample fundamental rights expertise of its own and conducts checks and analyses of the legislation it proposes itself. In other words, it is not reliant on FRA to provide opinions, as is the case in other, more narrowly technical areas, such as medicines approval, where the Commission might defer considerably to the relevant agency on account of lack of expertise.61 Third and related, the Commission might wish to limit ‘competing’ expertise in EU governance, especially as FRA’s opinions might act as constraints on the Commission’s legislative proposals. Fourth, the horizontal character and political sensitivity of fundamental rights is more liable to spark political disagreements among EU institutions and the Commission might be reluctant to invest its political capital to promote potentially costly FRA opinions. The Commission has a role to play with respect to not only requests for opinions but also the drafting of the budget and the annual work programme, the MAF, the appointment of the Director and others. The Commission is furthermore the most active member in the MB, capable of steering the management direction of the Agency despite having only two representatives in the body.62 In addition to these institutionalized functions, the Commission can exercise

59 Blom and Carraro, ‘Information processing approach’, 18. 60 Egeberg, Trondal and Vestlund, ‘The quest for order’, 609–629. 61 See, for example, Madalina Busuioc, ‘Blurred Areas of Responsibility: European Agencies’ Scientific Opinions under Scrutiny’, in Monika Ambrus and Karin Arts (eds), The Role of ‘Experts’ in International and European Decision-Making (Cambridge: Cambridge University Press, 2014), 383–402. 62 Interview with a senior FRA official, Vienna, 17 March 2017. This is consistent with existing findings in the literature despite running contrary to the intended intergovernmentalconstraints model of MBs. See Morten Egeberg and Jarle Trondal, ‘Researching European Union Agencies: What Have We Learnt (and Where Do We Go from Here)?’ (2017) 55 Journal of Common Market Studies 675–690 at 680, 682.

98

Jan Wouters and Michal Ovádek

soft power with respect to FRA by, for example, controlling the flow of information and facilitating/preventing access to Brussels stakeholders. Concretely, the Commission decides on whether to request input or participation of FRA in High Level Expert Groups (HLEGs) which gather relevant stakeholders around a particular subject.63 All in all, FRA’s opportunities for political relevance are in many respects at the mercy of the Commission which, as opinions requests indicate, is neither an enthusiastic supporter nor exclusively dependent on FRA’s expertise, at least not to the same extent as with other agencies and regulatory networks where considerable information asymmetry to the detriment of the Commission can arise.64 ‘Softer’ – less institutionalized and formal than opinions – opportunities for FRA policy relevance can take different forms. For example, FRA regularly presents its views and research findings in the various preparatory bodies of the Council. These are short presentations (often under ten minutes) for Member State representatives on topics of interest to the work of the preparatory body; after the presentation, FRA officials must generally leave the meeting. Presentations can be facilitated through contacts with the staff of the General Secretariat of the Council or officials of the Member State currently holding the rotating presidency of the Council, who chair most (but not all) working parties. Ultimately, however, whether FRA is invited to present is at the full discretion of the chair of the Council working party who is responsible for the agenda of the meeting. In 2016 and 2017,65 FRA officials have presented more than 20 times in 15 different preparatory bodies of the Council, with most interventions (4) taking place in the Working Party on Fundamental Rights, Citizens and Free Movement of Persons (FREMP).66 FRA furthermore cooperates with Member States holding the Council presidency by coorganizing and participating in events.67 Many factors affect the extent to which Council presidencies involve FRA in their programme – not least the Member State political agenda – but generally there might be more room for FRA in the presidencies of smaller countries with less resources. Another activity aimed at developing relations between FRA and the Member States in the hope of creating opportunities are country visits conducted by the FRA

63 FRA is and has been involved in some way in a number of HLEGs and other expert groups, among others: on information systems and interoperability, on radicalization, on combatting racism, xenophobia and other forms of intolerance (with FRA coordinating a subgroup on methodologies for collecting data) and on disability. 64 See, for example, Busuioc, ‘Blurred Areas of Responsibility’. 65 The authors thank Tara Ohl for collecting the data on FRA activity in institutional relations. 66 This is natural, as activities relating to FRA, including the negotiation of the MAF, fall under the responsibility of FREMP. 67 There have been 19 joint and presidency events in which FRA participated in 2016 and 2017 (until 31/07). Promotional activities could represent more generally a way of raising the public profile of FRA, as the relevant provision of the mandate is relatively open-ended. See Article 4(1)(h) of the Founding Regulation.

Exploring the political role of FRA

99

Director. These visits, of which there are several every year, usually take place at the higher political levels, but it is difficult to determine their effectiveness in landing new opportunities for FRA. Consistent with the historical role as supporter of FRA and the predominant source of requests for opinions, the European Parliament indulges most often in the various facets of FRA attention. There is oral and written input on legislative files requested by the LIBE Secretariat, policy departments, individual MEPs and their assistants, and policy advisors of political groups.68 Moreover, FRA is also invited to speak in the meetings and hearings of European Parliament committees (20 times in 2016–2017), notably LIBE, and it participates in events organized by MEPs and political groups. FRA officials, chiefly the Director, also meet regularly with individual MEPs – 33 such meetings were organized in 2016–2017. Signs of the difference in degree of support to FRA among EU institutions can also be witnessed in discussions concerning its possible future roles. The debate about monitoring the rule of law in the face of ‘backsliding’ in some Member States is an example of such a discussion. On the one hand, the European Parliament has put forward a tangible proposal regarding the potential expansion of FRA’s opportunities based on involvement in a new mechanism for the monitoring of democracy, the rule of law and fundamental rights in the Member States.69 The proposal suggests an institutionalized role for FRA, in particular when it comes to drawing up an annual report on the state of democracy, the rule of law and fundamental rights which would form the basis of a subsequent political process. This would undoubtedly give greater political visibility and importance to FRA’s work, including its annual Fundamental Rights Report, whose impact in the congested area of EU fundamental rights reporting can presently be questioned.70 On the other hand, the European Parliament’s invitation to draft a legislative proposal has been all but rejected by the Commission, which found most of the ideas proposed by the European Parliament needless or unfeasible.71 With respect to FRA specifically, the Commission acknowledged that the Agency ‘has a role to play by making easily

68 Such input was given by FRA on 21 occasions in 2016 and 2017 (until 31/07). 69 See European Parliament, ‘Resolution of 25 October 2016 with recommendations to the Commission on the establishment of an EU mechanism on democracy, the rule of law and fundamental rights’, supra note 49. 70 This is not a problem confined to FRA reports. The issue in EU fundamental rights protection is increasingly seen as not the reporting per se but the follow-up or more precisely the lack thereof. See John Morijn, ‘Post-Lisbon civil rights protection by the three political EU institutions’, in Sybe De Vries, Henri De Waele and Marie-Pierre Granger (eds), Civil Rights and EU Citizenship (Cheltenham: Edward Elgar, 2018). The current practice of, among others, ‘welcoming’ the reports (not only of FRA) in Council conclusions, but usually with little other action, appears rather unsatisfactory. 71 European Commission, ‘Follow up to the European Parliament resolution with recommendations to the Commission on the establishment of an EU mechanism on democracy, the rule of law and fundamental rights’, 17 January 2017.

100

Jan Wouters and Michal Ovádek

accessible a clear overview of existing information and reports relating to Member States or particular themes’, but this was already reflected in FRA’s programming for 2017–2019, and in any case FRA was just one of ‘numerous other actors’ with data and reports to contribute.72 As the Commission’s reply is essentially a blanket disagreement with the European Parliament’s Resolution, this is not hard evidence of lack of support for FRA. But in the absence of other suggestions, it does not contradict the view that the Commission is not pushing for an expanded role of FRA either. The level of involvement of FRA in highly salient matters such as the rule of law is thus presently largely contingent – as are most of FRA policy-relevant opportunities – upon political demand, which inevitably varies. FRA has been, for example, invited in 2017 and 2018 to contribute to an expert meeting preparing the Annual Rule of Law Dialogue in the (General Affairs) Council. The preceding overview of institutional relations and the opportunities for FRA input and visibility among the Brussels-based EU decision-makers hopefully indicates at least partially the breadth of FRA’s cooperative engagement, which echoes the consensual spirit underlying FRA’s modus vivendi identified by senior officials and academics alike.73 Nevertheless, FRA is also capable of independently creating and seizing opportunities arising from contextual changes in its area of work. Following the eruption of the refugee crisis in 2015, the leadership of the Agency made the decision to become for the first time active on the ground in order to be able to assess the real human rights situation in the ‘hotspots’ created in Greece. Despite representing a very minor operation (a maximum of two persons at a time were present in the field between April and September 2016), this was a bold and unprecedented move by FRA that pushed against the boundaries of its mandate, which contains no reference to field activity. The fact that the mission was not shut down by the institutions represents arguably a success of FRA’s operational politics of the sort identified by Blom and Carraro.74 However, the reaction of the institutions was also not particularly supportive: instead of adjusting FRA’s mandate and resources in order to allow it to conduct the field activities properly – as they have done in the case of Frontex and EASO – FRA has been left to continue them on a makeshift basis. This episode therefore further illustrates the entrenched character of the constraints placed on FRA’s (political) role by the means of its mandate and resources.

Concluding remarks The foregoing analysis of the Agency’s mandate, resources and opportunities was inherently biased towards the traditional characteristics associated with

72 Ibid. 73 See Blom and Carraro, ‘Information processing approach’, 23. 74 Ibid., 26.

Exploring the political role of FRA

101

organizational power in bureaucratic environments. We have not examined, for example, the diffuse impact of FRA’s research – the Agency’s forte by most accounts75 – on policy outcomes. FRA’s policy relevance should certainly be seen in broader terms and more positively than the various constraints on its mandate and resources would indicate, especially as there is likely more independence and recognition of FRA’s ability in its long-term research projects focussing on large-scale data collection (such as on minorities and discrimination), even if that comes at the expense of immediate policy input. The observations that we have put forward, however, should instil a dose of realism into discussions about FRA’s ‘political role’. The contestation that surrounded the process of formation of the Agency and the limits resulting therefrom have not been surmounted significantly during FRA’s ten years of existence. FRA has not been able to elicit sufficient support to overcome the well-known deficits of its mandate. Neither has it been substantially strengthened on other fronts where its resources have been increased by less than the average of JHA agencies. Its opportunities for policy relevance remain crucially dependent on stakeholder cooperation. In other words, FRA’s political role continues to be limited – and that is in keeping with its design. At a deeper level, the limitations are linked to profound questions, far beyond the scope of this chapter, about European integration, national sovereignty and the centrality and implementation of European fundamental rights commitments. These are deeply political issues which are also implicitly present in debates about FRA. The European Parliament remains the main supporter of FRA and this relationship has tangible positive consequences for the Agency among others in the form of opinion requests. On the contrary, there have so far been few signs of the Commission and Council envisioning a shift towards a more permanently strengthened role for FRA. On a politically contingent basis, the institutions will continue engaging FRA in some of their initiatives. But in such circumstances FRA’s political role is bound to remain minor. A genuine strengthening of the Agency would require removing not only the de jure constraints on its independence – owninitiative opinions on legislative proposals, the MAF – but also the de facto constraints, which stem from limits in terms of resources, access to stakeholders and opportunities for visible interventions regardless of the principals’ political preferences. The requirements of the Paris Principles on NHRIs should act as a relevant source of inspiration and as a constant reminder of the shortcomings in this regard. We are not suggesting that FRA needs to be vested with decision-making powers. Rather, we submit that the potential of FRA’s ‘regulation by information’ character is left unexhausted without a strengthening of its independence (understood broadly). This is particularly so, as FRA does not for the most part possess the type of exclusive expertise gained by other EU agencies in more narrow and technical fields which would ‘bestow some autonomy upon

75 Ramboll, ‘External evaluation of the European Union Agency for Fundamental Rights’, Final Report, 19 November 2012, p. 24.

102

Jan Wouters and Michal Ovádek

[it] vis-à-vis [its] political principals’.76 The specificity of fundamental rights might also have other effects which diverge from an established understanding of the operation of the ‘Eurocracy’, such as the credibility of the Commission’s enforcement role.77 Although FRA might conform to mainstream political science precepts on EU agencies in some respects – such as attachment to the Commission – our findings suggest that FRA may well be the ‘odd one out’ for the purposes of agency research. Further studies could examine in more detail the impact of the horizontal and politically salient character of the issue area (fundamental rights) on FRA’s performance in comparison to other EU agencies.

76 Nina Boeger and Joseph Corkin, ‘Institutional Path-Dependencies in Europe’s Networked Modes of Governance’ (2017) 55 Journal of Common Market Studies 974–992 at 978. 77 Daniel Keleman, ‘The Politics of “Eurocratic” Structure’, 112.

Part II

Researching applied rights

7

FRA as a meeting place of law and social sciences Han Entzinger and Gerard Quinn

The European Union’s Fundamental Rights Agency (FRA) is charged with providing evidence-based advice on human rights to the EU and its Member States when applying EU law. It stands apart from more traditional human rights institutions that tend to offer advice based wholly if not exclusively on the law. An examination of its record to date is not merely of interest to EU citizens anxious to ensure that the EU lives up to its own self-professed goals. It is also of vital interest to many around the world who see in it a potential model that might be replicated elsewhere. Part II of this book presents a number of examples of how FRA is researching applied rights by connecting the precepts of human rights law with the characteristic insights and unique methodologies from the social sciences. Students of fields such as environmental protection hardly need to be convinced of the benefits of bringing the two broad disciplines into closer alignment. The intentional ‘marriage’ of both in the specific context of human rights is relatively new and exemplified by FRA’s work and working methods. It follows that an examination of the Agency’s record should reveal much about the benefits of a much closer alignment and indeed point the way to a much more impactful alignment in the future. In this chapter we set out the ambition of this ‘marriage’ of disciplines and methodologies in the context of human rights. We put FRA’s mission and operation in context by recounting how, for decades, jurists concerned with the real policy impact of the law have dreamt of the ‘law turning outwards’ to cognate disciplines.1 The ambition is not new; it stretches back to the early days of American and Scandinavian Legal Realism and Sociological Jurisprudence. In a way, FRA can be seen as delivering on these early ambitions. At the heart of the ambition is an appreciation of the limits of a purely legal approach. Also, at the heart of this approach is a desire to appropriately harness the social sciences and their characteristic methodologies to transcend these limits and thus achieve greater impact.2

1 See Minow, Martha, ‘The Law Turning Outwards’, 70 Telos (Winter 1986–1987), 79. 2 See Schlegel, Johann Elias, ‘American Legal Realism and Empirical Social Sciences: The Singular Case of Underhill Moore’, 29 Buff L. Rev., (1980) 195.

106

Han Entzinger and Gerard Quinn

This chapter has three parts. The first part sets the mission of FRA against a broader context by recounting the ambitions of Legal Realism and Sociological Jurisprudence to transcend the limits of purely legalistic legal approaches and explore ways of combining these with the study of social reality. The second part identifies four different ways by which this creative ‘marriage’ of disciplines and their distinctive methodologies helps to support the application of fundamental rights in the specific context of governance in the EU. The third part draws some strands together and specifies some of the new developments with serious fundamental rights implications that FRA will need to face with a multidisciplinary approach.

The origins of the philosophy of the ‘law turning outwards’ Jurists have long harboured the dream of the ‘law turning outwards’, to quote the former dean of Harvard Law School, Martha Minow.3 The ambition to do so is a long-cherished dream of jurists themselves from at least the 1930s. In the United States at least, the law was seen as the last bastion holding out against prudent social and other regulatory legislation. Progressive legislation fell victim to excessively narrow interpretation in the courts. The worst-case scenario was that the courts (specifically the US Supreme Court) would sometimes strike down legislation for violating vague provisions in the Constitution. In a sense the courts were seen as participants in political debates rather than neutral arbiters in the application of the resulting legislation. Change did not come from outside the legal system. It had to come from within. And it came in the shape of an unlikely assortment of legal personalities from Roscoe Pound, the austere Dean of Harvard Law School and founder of the Sociological Jurisprudence movement, to Jerome Frank, who authored one of the very first interdisciplinary books on understanding law and the legal system through the new science of psychiatry.4 What united these jurists was a rejection of a narrow and narrowing theory of law summed up as Legal Formalism.5 It was said that Formalism in law had four main characteristics or claims. The first claim was that the law is comprehensive, which meant that the law encompassed every possible legal dimension to an issue. It was also said that the law was complete in the sense that it did not need to reach beyond itself to address an issue. It was thus hermetically sealed from other disciplines. It was also said to have a deep internal conceptual ordering. Conceptualism is essentially the claim that the seeming chaos of contradictory rules and interpretations could be cleared by reference back to precepts that gave the field its structure and overall orientation. Again, the claim (pretence) was that these precepts came exclusively from within the law itself. There was

3 Minow, Martha, ‘Law Turning Outward’, 70 Telos (Winter 1986–1987) 79. 4 Frank, Jerome, Law and the Modern Mind (1931). 5 Schauer, Frederick, ‘Formalism’, 97 Yale. L.J. 509.

FRA as a meeting place of law and social sciences

107

no need to stray beyond the four corners of the law. And, lastly, the law was said to possess a distinctive methodology based entirely on formal rationality – a form of rationality that was immanent within the law and that screened out all extraneous considerations. Roscoe Pound (no radical) was particularly withering in his critique of conceptualism. To him there was indeed a conceptual order to law.6 But it was to be found outside the law. To Pound this meant that the pretence of an internally stable conceptual order – far from constraining judges and others – actually obliged them to choose sides and hide their choice. They were always acting politically whilst hiding behind a non-political image of a conceptual order. Pound meant to do away with this pretence and to instead get judges (and legislators) to adopt a more ‘sociological approach’ to their craft. He asserted that jurisprudence had the same task as modern pragmatism (as founded by William James) in philosophy and in science, which was to provide a means (a method) for the constant adjustment of legal precepts with the felt exigencies of the time. This he called the Sociological Jurisprudence. The school of Legal Realists, who stood on the shoulders of Pound, went much further. Just as importantly, they critiqued the role of formal logic or rationality in law. Homes himself had written as far back as the 1880s that the ‘life of the law has not been logic; it has been experience’.7 Traditional jurists had maintained that formal logic sets the law apart from other disciplines. In a sense the Realists turned this on its head by insisting that this logic is always partial and is always influenced by external considerations. Famously, one of the first applications of these Realist insights came in the form of the Brandeis brief, a set of arguments used by Brandeis (who later became a member of the US Supreme Court) to support the legality of legislative measures to regulate the working conditions of women in factories. In a lengthy brief of several hundred pages only three were devoted to legal arguments. The bulk of the brief contained statistical information on the actual working conditions of women and the deleterious impact of the same on their health, which was clearly a legitimate object of public policy. The relevant facts were cogently marshalled by Brandeis using techniques drawn from the emerging social sciences. The lawyer had almost become a social scientist. The facts spoke for themselves. Implicit in this – positivist – approach was an understanding (assertion) that when the facts are known they will, in themselves, point in one direction which that law should follow. Indeed, Holmes himself had once predicted that ‘for the rational study of the law the black-letter man may be the

6 See Pound, Roscoe, ‘Mechanical Jurisprudence’, 8 Colum. L. Rev 605 and ‘The Theory of Judicial Decision’, 36 Harvard L. Rev. 641. 7 Holmes, Oliver Wendell (1881) The Common Law; John Harvard Library, 1.

108

Han Entzinger and Gerard Quinn

man of the present, but the man of the future is the man of statistics and the master of economics’.8 From the 1930s onwards a ‘new normal’ emerged in jurisprudence. In legal education law subjects could henceforth not be taught on the basis that they were wholly self-contained bodies of rules. Instead, relevant perspectives from cognate fields like economics and ethics that gave the law both content and direction had to be superimposed. Though important and disciplining, formal logic was radically contextualized. Future advocates would have to learn how to marry formal logic with empirical evidence to make a particular interpretation stick. Sociologist Lydia Morris argues that while the normative element of human rights has traditionally drawn on some conception of natural law, that is law derived from rights and values held to be rooted in a universal human nature, this notion is clearly in tension with the idea of society as a human construct.9 Consequently, the classical deductive approach in law gradually became complemented by a more inductive one, facilitated by an improved systematic knowledge of social reality, the product of more theoretical and methodological sophistication in the social sciences in their broadest sense. Of course, psychiatry was not the only discipline from which advances were made towards the law and jurisprudence. In a valuable and comprehensive overview of the growing interplay between legal theory and practice and the use of social science during the past century, Jeremy Blumenthal shows that psychology soon followed, and so did sociology.10 He writes that ‘it is a harder task than most social scientists think to have research successfully incorporated into legal literature, legal reform or legal analysis’.11 This is due in part to social scientists’ lack of familiarity with specifics of legal doctrine and in part to a perception by lawyers that social science knowledge is preliminary, sketchy and inconsistent. Legal academics may also be insufficiently familiar with social science methodologies or lack the skills to interpret statistical data. They often doubt the generalizability of research outcomes in the social sciences. Yet, there can be no doubt that a gradual rapprochement between law and social sciences has taken place and will continue to take place. Though the previous paragraphs largely focus on US experiences, the rapprochement of law and social sciences has not been fundamentally different in Europe, even though variations occur from one country to another. Awareness

8 Holmes, Oliver Wendell, ‘The Path of the Law’, 1 Boston Law School Magazine (1897) No 4, p. 1, 11. 9 Morris, Lydia (2013) Human Rights and Social Theory; Basingstoke: Palgrave Macmillan, p. 159. 10 Blumenthal, Jeremy A. ‘Law and social science in the 21st century’, Southern California Interdisciplinary Law Journal 12:1, (2002) 1–53. 11 Blumenthal (2002), op.cit., p. 5.

FRA as a meeting place of law and social sciences

109

that social developments and claims for just and equal treatment may impact on the law and its application also emerged on this continent, particularly from the second half of the 19th century onwards. Civic and political rights were gradually expanded and supplemented by social rights.12 The countries in North-West Europe in particular, developed into welfare states, which necessitated a large-scale securing of rights and entitlements in the law. Since the days of Emile Durkheim, the social sciences in Europe, though initially less empirically oriented than in America, have provided more and better insight into the structure of societies and their dynamics as well as in the impact of legal provisions and the need to adapt these to changing circumstances.13 Policymakers and lawyers have acknowledged and made use of many of these insights, also in situations where rights may clash with one another, as, for example, in the recognition (of group identities) versus redistribution (of scarce resources) controversy.14 One might see FRA as an inheritor of the mantle of Legal Realism and Sociological Jurisprudence – an engine for constantly measuring the gap between norm and practice – and informing the policy world on the need for the ‘constant adjustment’ of law with the exigencies of justice as revealed through the social sciences.

The rapprochement of disciplines and the added value of FRA If the ‘marriage’ – or at least the rapprochement – of disciplines is not just a nice idea, then what practical benefit does it bring within the context of EU governance, especially in the field of fundamental rights and their application? We believe there are at least four ways in which this rapprochement can potentially overcome the narrow and narrowing prism of law. Revealing hidden facts The social sciences can reveal facts that were not hitherto considered salient. The interesting thing about the human condition is that we see what we want to see. Even when we perceive facts they do not really register sometimes as salient. Usually this is not malign. It is simply a function of habit: the law constrains or frames our interpretation of facts in the world. Sometimes it is a function of culture – perhaps we are not naturally prone to ‘see’ the other even when they live in close proximity. That being so, our legislation and our policies may be biased, and therefore seriously under-inclusive by missing out

12 Marshall, Thomas H. (1950) Citizenship and Social Class; Cambridge: Cambridge University Press. 13 Durkheim, Emile (1933) The Division of Labor in Society; Glencoe, IL: The Free Press. 14 Banting, Keith and Kymlicka, Will (Eds) (2006) Multiculturalism and the Welfare State: Recognition and Redistribution in Contemporary Democracies; New York: Oxford University Press.

110

Han Entzinger and Gerard Quinn

on significant rights violations and significant groups who remain literally and figuratively invisible. Lawyers sometimes have to be reminded by social scientists that their perspective of the world can be normative, often dictated, or at least inspired by the dominant norms of a society or, for that matter, by the elites of that society. The gradual expansion of political rights has enabled more of our citizens to influence the legislative process. However, the interpretation and the application of the law often have remained in the hands of elites. Judges, prosecutors and also attorneys tend to share comparable social backgrounds and legal training in which specific norms and values prevail. Not all members of a society have such a background, not only those who are from less privileged social circles, but perhaps even more so those who are of immigrant descent, or belong to minority communities. The idea of a universal human nature does not sit easily with a sociological awareness of diversity in modes of life, forms of belief and traditions of practice.15 It is to the credit of the social scientists, particularly sociologists, but also psychologists and social anthropologists, that their studies of what is actually happening in the more ‘remote corners’ of our societies has added to a ‘visibility factor’, something that corrects for invisibility and adds salience where it actually belongs. In other words, if we are serious about the mantra that human rights belong to all, then it behoves us to excavate deeper into the lived realities of the ‘other’. The social sciences enable us to peer into these hidden corners in a way that legal analysis never would. Over the past years, FRA has picked up this message. A substantial part of its work has been dedicated to immigrant and other religious, ethnic or cultural minorities living in the EU Member States. Their specific cultural and other interests can be overlooked in legislative processes and in policymaking, dominated as these tend to be by majority interests and forms of majority decision-making that can easily downplay on the rights of minorities. FRA’s extensive research into living conditions and experiences of population categories such as Roma, Muslims, Jews, immigrants and persons with an LGBTI background has revealed that many individuals who belong to these categories cannot take full advantage of their rights, and are even discriminated against. This can seriously restrict their chances and opportunities for advancement and full participation, even though, on paper, they may have the same rights as all other citizens. Large-scale surveys and other forms of sociological research, both quantitative and qualitative, have convincingly shown that a gap exists in virtually all Member States between the principle of equality and the practice of differential treatment (also see Chapter 9). Enhancing legislative effectiveness Even the best legislation and public policy do not exist in pure ether. Even ideal law has to be transcribed into a messy eco-system where human habits and behaviour

15 See Morris, op. cit., p. 157.

FRA as a meeting place of law and social sciences

111

can easily dent its full effectiveness. The contemporary field of the sociology of law is all about investigating how legislation – even well-intentioned legislation – works in reality. It may well be that unintended consequences occur. It may well be that the cultural and other changes needed to bring about real changes in behaviour are just not in place. Although the law itself may, over time, bring about such changes in attitudes and behaviour, something else might be needed in the short to medium term to give full effect to it. This may require adjustments in the law itself. Or it may only require attention to ‘nudge factors’ that can, on their own, generate more efficiency in the implementation of the law. The promise of the addition of the social sciences into the mix is that they can reveal these hidden impediments to the effectiveness of the law. From this perspective an interdisciplinary approach can be seen as leading to greater efficiency in the existing law. A considerable part of FRA’s work so far has been dedicated to analyzing how the law works out in practice. As we have already seen, certain minority communities may not be able to make full use of their rights because laws are implemented in a selective or even in a discriminatory manner. FRA has also given a lot of attention to concrete obstacles encountered by officials who, out ‘in the field’, are charged with implementing and enforcing the law and legal procedures. Very typical for FRA’s work is that it has attempted to supplement the traditional top-down approach of human rights, characteristic for most lawyers, by a bottom-up approach that is more common in the social sciences. FRA, for example, has interviewed immigration officers at land, sea and air borders to find out what concrete difficulties they encounter in their work and what problems they face when trying to observe the fundamental rights of third-country nationals arriving in the EU. FRA has also interviewed officials as varied as childcare custodians, prison guards, or staff members in reception facilities for asylum seekers to find out what concrete fundamental rights problems they encounter, and how these can be overcome. In all these cases, the ambition has been to achieve a more effective application of fundamental rights on the basis of empirical data – whether surveys, personal interviews, group discussions or systematic analysis of documents – collected through everyday practice. Parking ideological and cultural baggage Third, many rights issues are not really unpacked on their own terms. They carry larger baggage and can become lightning rods for other issues or even totems for warring creeds in our societies. In a sense this is entirely normal: the law sets rules and, by definition, rules are normative and therefore imbued with ideology. Rights ultimately go to justice, to the just terms of co-existence in our societies. Everyone has a view on this, and rightly so. Although rights-talk may seem objective and neutral as to faction, the fact is that it bears quite some political baggage. The point about this is that it is often this political baggage that gets in the way of viable (and mutually acceptable) solutions. If the political distortions could be side-lined we might be able to see our way toward satisfactory

112

Han Entzinger and Gerard Quinn

solutions. Again, the value of the social sciences is that they offer some hope of peeling away the political baggage and thus allow for some form of objective and rational considering of the particular rights issue at stake. If the salient facts become incontrovertible (or as incontrovertible as they are ever likely to be) a clearing is laid to reach beyond impasses. This will not always work since some political perspectives seem utterly oblivious to the facts. But in as much as impasses can be neutralized by the provision of hard facts it is an endeavour worth pursuing, even in an era like the present one where facts are increasingly being disputed, and where some consider the outcomes of scientific research as ‘just another opinion’. Though certain facts generated by the social sciences may be ‘harder’ than others, their unique insights and methodologies offer a way of knowledge production that law on its own never could achieve. Specific for much of FRA’s research is that it is comparative, as it maps situations in societies that differ fundamentally in their histories, identities and cultures. This adds an extra dimension to the challenges just mentioned: political ideologies may differ, but so do cultures and traditions, also when it comes to interpreting and applying fundamental rights. This sometimes generates research outcomes that may seem surprising at first glance, and that can be hard to interpret. FRA’s Violence Against Women survey, for example, found, amongst many other things, that in Denmark, Sweden and France the percentage of women that had experienced some form of sexual harassment since the age of 15 was more than twice as high as in Poland, Portugal and Romania.16 At first glance, this may seem counterintuitive: overall, there is less gender inequality in the former countries than in the latter, and sexual harassment is often taken as an expression of inequality between the sexes. Yet, one may also argue that what in some cultural settings is seen as undesired forms of sexual harassment, in other, more masculine cultures is considered ‘normal’ behaviour, even by those who are victims of such harassment. Likewise, the EU-wide EU-MIDIS II survey on discrimination against Muslims has found the highest scores for discrimination in the Netherlands, which is also the country where the share of Muslims with a strong residential status is highest.17 By contrast, Muslims in Italy, many of whom have a very weak residential status, claim in the survey that they have experienced much less discrimination. At first glance this finding also seems counterintuitive, but an explanation may be that those with a weak legal position fear the authorities, are less likely to complain, or may even accept being discriminated against as unavoidable.

16 FRA (2014) Violence Against Women: An EU-wide Survey; Luxembourg: EU Publications Office, p. 178. 17 FRA (2017) Second European Union Minorities and Discrimination Survey: Muslims – Selected Findings; Luxembourg: EU Publications Office, p. 19, 29.

FRA as a meeting place of law and social sciences

113

These two examples indicate that cultural factors, but also other contextual circumstances, do influence the outcomes of sociological research. Numbers and percentages may look like ‘hard facts’, but these too should be interpreted against their background. This is particularly pressing in comparative studies. Some lawyers may believe that they can ‘park’ their ideological and cultural baggage by appealing to the social sciences. This is true to some extent, but also in these disciplines research outcomes should be analyzed and interpreted with care, and with a bit of common sense. Avoiding inter-institutional competition Finally, there is the question of inter-institutional politics in the EU context. On the one hand there is the ever-present tension between the sovereignty of the Member States and the reach of EU law and policy. Rights-talk is not necessarily a ruse to intrude deeper than warranted on the sovereignty of the Member States. But at times it might look like that. And rights-talk is not necessarily something to be weaponized by one EU institution to assert competence at the expense of another, though at times it might look like that. Recent deep concerns about violations of the rule of law in two Member States, Poland and Hungary, may illustrate this point. The concerns are largely shared by Commission, Council and Parliament as well as by the other Member States, and yet it has proved very difficult so far to define an approach that is backed by all relevant stakeholders, all of whom seem to assess the situation differently, while pursuing their own agendas. The point is that there is a need for a corrective to the tendency for rightstalk to be seen instrumentally in the (entirely natural and generally healthy) inter-institutional tensions in the EU. This is probably not completely possible since rights do have implications for the inter-institutional balance of forces. But here again, clarification of the facts helps to diffuse this distorting tendency. If the advancement of rights can be seen as something separate from the evolving ‘structure and relationship’ of the various institutional actors there is a chance that meaningful steps can be taken. Abstract argumentation within law is hardly likely to achieve this on its own: empirical evidence about concrete cases where rights are not being applied as they should be can be much more convincing. FRA finds itself in a relatively strong position here. Although it is an EU Agency, it has more autonomy than most other agencies. This is reflected, inter alia, by the fact that its Management Board acts independently of the Member States. Article 10 of its Founding Regulations also requires the Agency to cooperate closely with civil society, particularly with non-governmental organizations active in the field of fundamental rights. To this purpose FRA has set up a very broad Fundamental Rights Platform, which influences the Agency’s agenda. At the same time, FRA’s research activities call for good contacts with the academic world; the members of its Scientific Committee are selected on the basis of their qualities only. As a consequence, FRA’s position is relatively autonomous. At the same time, however, the Agency has to avoid distorting the rather delicate balance between its major stakeholders: the main EU institutions and other European organizations (particularly the Council of Europe), civil

114

Han Entzinger and Gerard Quinn

society and academia.18 As long as this happens successfully, FRA can use this position by playing a significant role in safeguarding and promoting fundamental rights without falling prey to anyone’s specific interests. Of immense importance here is the fact that FRA has not been conceived as just an agency that supervises the application of fundamental rights, but as one that can actually generate its own information, using many sources, including the social sciences. Providing empirical evidence of fundamental rights violations based on social science research, developing concrete suggestions for improvement of the law and of policies based on it, informing people about their rights, as well as the exchange of experience and promising practices, all are activities that are on FRA’s agenda and that contribute to a better application of fundamental rights without distorting the delicate inter-institutional balances just described. There may be situations, however, where the violation of rights is so appalling that tougher measures are needed. Such situations face the Agency with a real dilemma, as became evident, for example, from FRA’s presence in certain asylum ‘hotspots’ in Greece and Italy during the ‘migration crisis’ of 2015–2016. Given its mandate, FRA should refrain from becoming actively involved in political debates and decision making on fundamental rights so as not to lose credibility with its many stakeholders. Although in the asylum ‘hotspots’ case FRA limited itself to providing advice to the authorities in charge, the mere presence of the Agency in those ‘hotspots’ under such politically sensitive conditions could be interpreted by some as a political act. However, if FRA had completely ignored the appalling human rights situation in the ‘hotspots’, the Agency could easily have been accused of looking away from serious human rights violations and hiding in its ‘ivory tower’. Similar dilemmas arise when we consider FRA’s attitudes vis à vis alleged fundamental rights violations in Member States such as Poland and Hungary. Such dilemmas are hard to cope with for an institution like FRA, which combines independence with a strong institutional embeddedness.

The way ahead This chapter placed the aspiration for a ‘marriage’ between law and social sciences in the human rights sphere into historical perspective. It described the process of the ‘law looking outwards’, and the gradual rapprochement that has taken place between the law and social sciences. This has occurred in many spheres of law, but is relatively new to human rights law. This chapter also has asserted that there are at least four ways in which this inter-disciplinary marriage can add value to policy debates at EU level and indeed in the Member States when applying EU law. These four benefits of a closer interdisciplinary cooperation are: (1) social sciences can reveal facts that hitherto have not been considered salient; (2) social sciences can help enhance

18 Also see: Optimity Advisors (2017) 2nd Independent External Evaluation of the European Union Agency for Fundamental Rights. Final Report; p. 119.

FRA as a meeting place of law and social sciences

115

legislative effectiveness; (3) social sciences can make lawyers more self-conscious of the need to focus on solutions rather than rehearse ideological debates; and (4) closer interdisciplinary cooperation, as in the case of FRA, can help avoid unnecessary inter-institutional competition, particularly at the EU level, and thus aid the overall effectiveness of the EU system. Looking back upon the first decade of its existence, we may conclude that FRA has made generous use of the advantages of interdisciplinarity. Its most widely discussed reports – publicly as well as politically – are the ones based on large-scale surveys, a common technique in the social sciences. Examples are the Violence Against Women report, EU-MIDIS I and II, and also its reports on Roma and LGBTI.19 Most of these reports are discussed in much more detail elsewhere in this book. A survey mapping the general population’s knowledge of fundamental rights and their experiences with these is currently on its way. It covers all 28 Member States and it is also likely to draw a lot of attention among policymakers and the general public. Some of these surveys, especially EU-MIDIS and the Roma studies, are being repeated at regular intervals, and therefore provide good insights into trends and social developments. All these reports provide interesting examples of how law and social sciences together can generate new evidence-based knowledge in the human rights area. This knowledge, based on empirical data, serves as the basis for conclusions that are then formulated as recommendations or opinions, which in turn reference EU and international human rights law. Similar interdisciplinary methods, though based on much smaller samples, are used in many other FRA reports, for example those on the use of biometrics, on severe labour exploitation, on unlawful profiling by the police, on health care for undocumented migrants or on border checks.20 In each of these reports FRA collected original data among officials charged with the implementation

19 See inter alia: FRA (2014) Violence Against Women: An EU-wide Survey; op.cit. FRA (2009) European Union Minorities and Discrimination Survey – Main Results Report; FRA (2017) Second European Union Minorities and Discrimination Survey: Muslims – Selected Findings; Luxembourg: EU Publications Office. FRA (2017) Second European Union Minorities and Discrimination Survey: Main Results; Luxembourg: EU Publications Office. FRA (2012) The Situation of Roma in 11 EU Member States – Survey Results at a Glance; Luxembourg: EU Publications Office. FRA (2014) EU LGBT Survey – European Union Lesbian, Gay, Bisexual and Transgender Survey – Main Results; Luxembourg: EU Publications Office. 20 FRA (2018) Under Watchful Eyes – Biometrics, EU IT-Systems and Fundamental Rights; Luxembourg: EU Publications Office. FRA (2018) Protecting Migrant Workers from Exploitation in the EU: Boosting Workplace Inspections; Luxembourg: EU Publications Office. FRA (2018) Preventing Unlawful Profiling Today and in the Future: A Guide; Luxembourg: EU Publications Office. FRA (2015) Cost of Exclusion from Health Care: The Case of Migrants in an Irregular Situation; Luxembourg: EU Publications Office. FRA (2014) Fundamental Rights at Airports: Border Checks at Five Airports in the European Union; Luxembourg: EU Publications Office. FRA (2014) Fundamental Rights at Land Borders: Findings at Five Selected European Union Border Crossing Points; Luxembourg: EU Publications Office. FRA (2013) Fundamental Rights at Europe’s Southern Sea Borders; Luxembourg: EU Publications Office.

116

Han Entzinger and Gerard Quinn

of the relevant rules. The outcomes then serve as a basis for recommendations that put the findings into a European or international human rights law perspective, and formulate suggestions and proposals for improvement either of the rules themselves or of their application. This interdisciplinary posture has served Europe well over the past decade. It should prove doubly effective as old human rights challenges persist and new ones emerge in the coming decade. Obviously, our societies are constantly evolving as economic, social, political and indeed new technological factors effect change. In essence our system is open to change and indeed welcoming of it, provided always that its human rights implications are carefully tended to. Some old challenges have not gone away and a continued use of the interdisciplinary methodology should help lead to solutions into the future. They include poverty and social security, continued migratory pressures, the ongoing marginal status of certain groups in society and the assurance of equality for all. Some of these challenges are new or can be anticipated, such as the impact of digital technology in re-setting expectations of privacy, the impact of new medical technology in re-shaping our understanding of what it means to be human, the advent of Artificial Intelligence and the challenge of positively harnessing the same. Most of all, a looming challenge in the decade ahead is the various critiques of the very essence of human rights and the need to (re)-defend them as essential foundations for the democratic order in Europe. These critiques are being articulated during a period where ‘fake’ news appears to influence the political agenda quite easily, and where fact-free politics seem to gain popularity. Having an EU Agency that bases its opinions and recommendations exclusively on facts generated through scientifically sound interdisciplinary research can be seen as a corrective to that tendency. In conclusion, the interdisciplinary approach epitomized by the work of FRA to date has served Europe well and is likely to become even more important and impactful over the next decade as these and other, as yet unidentified, challenges emerge.

8

A reflection on the quality of FRA’s research and methodology Angela Me1

Types of FRA research FRA research can be classified into three2 categories: large-scale quantitative social science surveys, qualitative fieldwork research and legal analysis. This chapter pays particular attention to qualitative and quantitative social science research, where most of FRA’s knowledge is generated. In terms of content, FRA undertakes quantitative and qualitative research both in terms of research methods employed and type of evidence gathered. Research is typically labelled as quantitative when social phenomena are approached through quantifiable evidence and when it relies on statistical analysis of many cases to create valid and reliable general claims. Qualitative research, on the other hand, usually refers to methods which prioritize contextual subjective accuracy over generality. But the distinction between qualitative and quantitative research is not a simple dichotomy. As displayed in Table 8.1, a combination of quantitative and qualitative approaches can be applied to the nature of the investigative method and to the essence of the topic under research. Evidence generated through FRA research covers all four combinations of quantitative and qualitative approaches described in the table. Qualitative and quantitative research undertaken by FRA includes population surveys and in-depth qualitative field work such as personal and focus group interviews, as well as interviews with informed stakeholders. The scale of FRA’s research activities varies, from large population surveys using a probabilistic sample of all EU Member States, to studies which cover only selected countries with a non-representative sample of informed stakeholders. The different scope of the research projects provides a wide range of information which serves multiple purposes. Large surveys provide benchmark data and can be used to monitor EU policies and compare EU states. Small-scale research

1 The opinions expressed in this chapter are the ones of the author and do not necessarily reflect those of the United Nations. 2 See FRA’s Founding Regulation: Council Regulation (EC) No. 168/2007, Art. 4.

118

Angela Me

Table 8.1 Description of evidence that can be obtained through quantitative and qualitative approaches Research method

Information collected/knowledge generated by the research

Quantitative* Quantitative*** Evidence of a quantifiable phenomenon obtained through a representative system of data collection (example: percentage of people who experienced physical violence among total population).

Qualitative/ Subjective****

Evidence of a subjective or qualitative phenomenon obtained through a representative system of data collection (example: percentage of people who feel discriminated against among total population).

Qualitative** Evidence of a quantifiable phenomenon obtained through a nonrepresentative data collection system (example: percentage of people who experienced physical violence among people participating in focus group discussions). Evidence of a subjective or qualitative phenomenon obtained through a nonrepresentative data collection system (example: a collection of quotes from research subjects concerning their personal experiences and views).

* Methods which aim at quantifying the size of a phenomenon (example: surveys and

administrative records). ** Methods which aim at gaining the insight and participation of informed stake-

holders with the purpose of understanding the nature rather than the precise size of the phenomenon (example: direct observations, communication with participants, analysis of texts). *** Information which relates to a quantifiable characteristic or experience which can objectively be measured. **** Information which relates to a perception or a subjective feeling not based on objective criteria.

identifies the nature of the problem and the perspective of the different actors involved and it gives a deep understanding of the issues involved; it provides evidence to advocate for action but it has a limited use for assessing the size of the problem and monitoring programmes.

Population surveys FRA has finalized three large-scale surveys covering all EU Member States with representative samples: EU-MIDIS I and II (European Union Minorities and Discrimination Survey) and a Survey of Gender-based Violence against Women. All three aimed at a national random sample of the targeted research groups (selected immigrants, national minorities and/or ethnic minorities for EU-MIDIS and women for the survey on gender-based violence) from each

The quality of research and methodology

119

3

of the EU countries to provide national and EU-level estimates. They are an example of the large-scale operations that FRA can manage and of the impact on policy-making FRA research can have at EU level. In fact, they involved the design of complex and sensitive methodology and an effective system to monitor implementation and quality of field operations across the EU. As an example of the impact that the information generated by FRA surveys has had in the EU, it is worth noting the number of policy actions that the Violence against Women (VAW) survey has triggered in the EU: a Roadmap for EU accession to the Istanbul Convention, a Proposal for a Council Decision for EU accession to the Istanbul Convention,4 a number of funding projects to combat VAW, and a number of funding projects to raise awareness about VAW. The European Parliament’s draft report concerning the EU accession to the Istanbul Convention also refers to FRA’s survey results (also see Chapter 12).5 FRA has been undertaking other population surveys, for example the LGBT survey, the Roma survey (see Chapter 11) and the survey of Jewish people’s experience and perceptions of discrimination and hate crime in European Union Member States. While these surveys were not based on an EU probabilistic sample and/or did not cover all EU Member States (in the case of the last two surveys), they are a unique source of data on minorities. The LGBT survey was a self-reported web survey, which by design was not representative of the LGBT population in the EU. However, it provides an extraordinary wealth of data originating from more than 93,000 EU survey participants who identified themselves as lesbian, gay, bisexual or transgender. The Roma survey provided the baseline data for the EU’s policy framework6 for national Roma integration strategies in education, employment, healthcare and housing. In December 2013, based on the data provided by FRA, the Council issued a Recommendation on national Roma integration strategies. FRA’s data on Roma were also used for the first time in the European Semester, the EU’s

3 Although in EU-MIDIS it was not always possible to have a national sample when the target groups (immigrants and ethnic minorities) were to a large extent concentrated in certain regions or cities in the country. Given the limited resources and in some cases absence of available sample frames, the sample was limited to selected regions/areas to avoid having to use cost-intensive methods such as random-route sampling in areas where there are no, or very few, immigrants/ethnic minorities (EU-MIDIS European Union Minorities and Discrimination Survey, Main Results report, methodology chapter). 4 Proposal for a Council Decision on the conclusion, by the European Union, of the Council of Europe Convention on preventing and combating violence against women and domestic violence, Brussels, 4.3.2016 COM(2016) 109 final 2016/0062 (NLE). 5 European Parliament. Draft Interim Report on the proposal for a Council decision on the conclusion, by the European Union, of the Council of Europe Convention on preventing and combating violence against women and domestic violence (COM(2016)0109–2016/0062 (NLE)). 6 https://ec.europa.eu/info/policies/justice-and-fundamental-rights/combatting-discrimin ation/roma-and-eu/roma-integration-eu-countries_en#nationalromaintegrationstrategies.

120

Angela Me

annual policy cycle for economic and budgetary coordination, and five countries were issued with so-called “country specific recommendations” concerning Roma inclusion.

The challenge of collecting and analyzing data where statistical standards are lacking FRA is often confronted with the challenge of collecting data in areas where regional or international statistical standards are limited. The measuring of fundamental rights remains an underdeveloped field within the international statistical community. Academia and civil society have been experimenting with tools, indicators and surveys, and international organizations such as the Office of the High Commissioner on Human Rights (OHCHR)7 have been promoting the development of human rights statistics at international level. Nevertheless, there has been no agreement regarding the statistical standards at international or European levels on how to collect, process and disseminate data on the broad field of human rights, particularly in the context of official statistics. Intergovernmental fora which involve official statisticians such as the UN Statistical Commission or the European Statistical System Committee (ESSC) do not include a formal item on human rights statistics in their agenda.8 As a result, FRA has often pioneered the application of methodologies to measure issues such as fundamental rights violations and discrimination, particularly among sub-population groups (such as LGBT, irregular migrants and ethnic or religious minorities). These groups are hard to reach and often hidden in mainstreamed statistics: they may be excluded from commonly used sample frames, they may be reluctant to participate in surveys perceived as representatives of authorities or there may be language barriers. Considering the knowledge across different fields including the academic community, civil society, practitioners and national official statistics, FRA has often become a laboratory for cross-country statistics on fundamental rights where innovative methodology has been debated, tested and implemented. Examples of innovative approaches developed by FRA are the methodology applied to sample the Roma population in the 2011 survey, the testing of the Respondent Driven Sampling approach to the web survey involving Jewish people9 and the development of the comparable questionnaire for the VAW survey. The 2011 FRA Roma survey is an example of the complexity around adequate representation of minorities. Given the

7 Human Rights Indicators, A Guide to Measurement and Implementation, United Nations Human Rights Office of the High Commissioner, 2012; A Human Rights-Based Approach to Data, Leaving No One Behind in the 2030 Development Agenda, United Nations Human Rights Office of the High Commissioner, 2016. 8 See Draft multi-year programme of work of the Statistical Commission, 2017–2021, United Nations, December 2016 document E/CN.3/2017/34. 9 Even if the RDS approach didn’t give the hoped for results, the testing itself can inform the design of similar future surveys.

The quality of research and methodology

121

absence of existing sample frames for surveying Roma, FRA had to develop a multistage process for the sampling. This involved disproportionate allocation of interviews to areas where Roma were estimated to live in medium and high concentration, followed by random route sampling in the selected areas with the final selection of the survey respondent within the household.10 While this targeted sample allowed a more adequate representation of Roma, it is likely that Roma not living in concentration areas were underrepresented. Since these Roma tend to be better integrated on average, the final data may be biased toward those Roma who are more marginalized. The latest wave of this survey in 2016 significantly improved the sampling methodology, for example by including Adaptive Cluster Sampling (ACS) in certain primary sampling units to increase the efficiency of the respondent screening process in low concentration areas where eligible individuals are rare.

Quality of research Ensuring the highest quality of research is fundamental in retaining trust in the Agency. However, the question of how quality in research can be defined arises. The interplay of many elements determines the quality of research. In the sphere of official statistics an abundant literature defining frameworks to ensure data quality11 is present. Furthermore, there are principles governing the production and dissemination of statistics at international level, which guide the collection, processing and dissemination of data by supra-national organizations such as FRA.12 Beyond statistics, however, there are no specific standards to guide research, particularly qualitative research at the international level. Nevertheless, quality of research is widely debated in the scientific literature, and a number of think-tanks and research institutes and some United Nations agencies have developed their own research ethics.13 Most elements considered in defining quality in research aim at ensuring the impartiality, objectivity, consistency and feasibility of the research process involving aspects related to the construction of evidence and the procedures of doing research. In academia, peer review is the golden quality standard although it doesn’t guarantee the lack of mistakes since reviewers do not re-do the research to test the results and do not always have incentives to heavily invest in peer-reviewing articles.14

10 Roma Pilot Survey – Technical Report: Methodology, Sampling and Fieldwork, FRA 2013. 11 Quality Assurance Framework of the European Statistical System (http://ec.europa.eu/euro stat/documents/64157/4392716/ESS-QAF-V1-2final.pdf/bbf5970c-1adf-46c8-afc358ce177a0646); International Monetary Fund, Data Quality Assessment Framework, (https://unstats.un.org/unsd/accsub/2010docs-CDQIO/Ses1-DQAF-IMF.pdf). 12 United Nations Statistics Division, Principles Governing International Statistical Activities (https://unstats.un.org/unsd/accsub-public/principles_stat_activities.htm). 13 See, for example, United Nations Office on Drug and Crime thematic research programme; RAND’s Institutional Principles: www.rand.org/about/principles.html or Oxfam research guidelines: http://policy-practice.oxfam.org.uk/our-approach/research/research-guidelines. 14 Research to Action, Research Quality and Think Tanks: Definition, Responsibility and Impact, February 2015.

122

Angela Me

When constructing the evidence, quality in research most commonly refers to the scientific process of designing a study, looking for example at the consistency between the methods and questions, replicability of the results, reliability (consistency if the results are replicated), objectivity (to avoid systematic bias) and validity.15 Quality frameworks for official statistics also include principles related to transparency, timeliness and ensuring a principle of proportionality with a minimum burden to respondents. Beyond the quality of the research study and the collection of evidence, other factors are often considered to ensure the quality of the research process including cost-effectiveness, accessibility and clarity of research findings, respect for privacy, conflict of interest and integrity when managing relations with research sponsors. Particularly relevant in the field of human rights research is the principle of “do no harm”, which calls for respecting the safety and identity of respondents and for not collecting data at all costs.16 Policy relevance and cross-country comparability are two components of research quality which are often not considered in the context of academic research but lie at the core of regional and international institutions such as FRA. There is a trade-off between the different aspects of quality, as maximizing some may involve minimizing others. For example, ensuring high accuracy of results usually requires large representative samples involving large financial investments and a considerable amount of time. So solely considering accuracy may not meet expectations regarding timeliness and cost-effectiveness. Ensuring policy relevance for all stakeholders may also not be conducive to comparability since single Member States may have specific information requirements which are not compatible with others. Overall, it is not feasible to equally maximize all quality components, so it becomes crucial to have a transparent approach to define the combination that best fits a specific institution or a specific research project. FRA has different procedures in place for overseeing the quality of its research development, application in practice and analysis of data – including a specific Quality Sector embedded into the Agency’s corporate service department. The Scientific Committee, established according to the FRA Founding Regulation, oversees the accuracy of the research outputs and ensures the application of sound methodology safeguarding the professional independence of FRA research.17 The methodology applied in every survey or qualitative research conducted by the Agency is published in detailed technical reports that contain a wealth of detail for transparency, but also to promote duplication of the work

15 What Are the Standards for Quality Research? Focus Technical Brief 9. 16 See, for example, World Health Organization Ethical and Safety Recommendations for Intervention Research on Violence Against Women, 2016. 17 http://fra.europa.eu/en/about-fra/structure/scientific-committee, accessed on 21 October 2017.

The quality of research and methodology

123

in more detail at national or regional levels. The Management Board also determines the work programme of the agency and ensures that the research topics are relevant to Member States and the EU.18 The Agency has elaborated working procedures for research, though it has not yet developed a formal research quality framework. Compared with other regional and international organizations, research methodology developed and implemented by FRA excels in transparency, beneficiaries’ ownership and comparability across countries. For example, research methodology and its limitations are always transparently described when research findings are presented. Comparability of findings is an important catalyst in FRA large surveys: methodology is developed considering its wide applicability across countries and pilots are systematically undertaken in different countries to cognitively test the equal understanding of survey questions across EU languages and cultures.19, 20 For all major research projects FRA applies an inclusive approach. The stakeholder involvement in the FRA research project on severe labour exploitation is an impressive example of the variety of stakeholders involved in FRA research projects: 48 organizations and institutions attended and actively participated in stakeholder meetings throughout the life of the project on severe labour exploitation (2012–2014). These stakeholders brought a wide range of expertise: from national, European and international institutions and civil society active in the field of labour exploitation to organizations and civil society involved in security and human rights issues. A similar approach was followed in the case of the LGBTI survey and the survey of Jewish populations, where stakeholders from national and local-level organizations were consulted and mobilized. In terms of methodologies applied to ensure broad stakeholder involvement, two interesting examples stand out. The first case concerns FRA’s multi-annual project on independent living for persons with disabilities, where Delphi methods were applied to actively seek the views of a range of stakeholders, as well as interview-based techniques. The second case concerns another multi-

18 The Management Board determines the work programme under the guidance of FRA’s multi-annual framework, which is set out by the Council of the EU. In this way the Member States are involved from the very beginning in setting FRA’s research agenda. 19 For example, for the VAW survey, a pre-test was undertaken in six EU Member States followed by a pilot in all 28 countries. 20 For large surveys FRA, as other European institutions, has used the method of “backtranslation” where independent translators translate the English questionnaire into other EU languages and then back to English. The objective is to ensure consistency of interpretation of questions rather than linguistic consistency. However, survey researchers have recently highlighted issues in the translation process which cannot be detected using the translation/ back-translation approach, and the current state of the art in the EU is to use the so-called TRAPD approach (translation – review – adjudication – pretesting – documentation). Building on this research evidence, FRA has moved from translation/back-translation to the use of the TRAPD approach in its most recent surveys.

124

Angela Me

annual FRA project on local engagement for Roma inclusion applying participatory action research in 21 localities across 11 Member States.21 When developing research methodology, consultation of different stakeholders is beneficial to its quality, though this can be challenging. Experts on pure methodology can ensure the validity of the scientific process, but if they work in isolation they may underestimate the complexity of its implementation and may jeopardize its feasibility. The perspectives of advocates, practitioners and concerned populations help to ensure the applicability and relevance of the methodology, including the participation of the target populations.22 However, these groups may have an interest to promote methodology that inflates the size of the problem to obtain more financial resources and/or political attention. The most accurate and relevant results are obtained when all perspectives are equally considered. Although it may seem obvious, open and balanced consultations are uncommon at the scale usually adopted by FRA, because they are difficult to manage in such a way that quality can prevail. The advantage of FRA is in its governance structure, particularly in its Scientific Committee that can ultimately ensure a scientific process together with a balanced consultation process.

A FRA quality framework? Building on the transparency that FRA has embedded in the development of its research to date, which has involved both research experts and stakeholders, the Agency could further develop a policy to define quality of FRA research. This can provide an opportunity for FRA and its stakeholders to reflect on the right balance across the different quality dimensions, that will meet the expectations of the Agency’s constituencies. Similarly to other agencies that produce research to serve an intergovernmental agenda, the challenge FRA faces is to maintain a scientific credibility (like others in academia) while respecting the needs and oversight of its constituency. Achieving both these expectations is inhibited by financial restraints and institutional governance. Defining a quality framework for FRA research can clarify expectations and emphasize any FRA comparative advantage in the field of human rights research. Maximizing policy relevance is, for example, the essence of the FRA research programme, which by mandate needs to support the formulation, analysis and implementation of policies. The challenge is that some of the indicators which are most policy-relevant are particularly difficult to populate with highly accurate data. So how is it possible to balance “traditional research” based on strict

21 For more information see: http://fra.europa.eu/en/publication/2018/empowering-roma. 22 For example, the LGBT survey was carried out in close collaboration with ILGA-Europe (an umbrella organization representing lesbian, gay, bisexual and transgender organizations in Europe), which was key to obtaining the large number of respondents in the LGBT survey.

The quality of research and methodology

125

scientific standards with innovation and experimentation which are needed to assess emerging threats of human rights violations (such as in the context of recent migratory flows)? Informing strategic EU priorities in the field of fundamental rights requires both a continuous monitoring of existing threats and the assessment of new threats and their impact on society. The first approach requires accurate benchmark indicators (with minimum statistical errors) able to monitor trends overtime, while the second one requires fast operations focussed on a few geographical spots and actors. The two approaches are at odds when defining research quality. Statistical accuracy is fundamental to one but not to the other, where timeliness is vital. A reflection on quality standards is particularly important for agencies like FRA whose governance structure involves the oversight of Member States. While the Scientific Committee guarantees the professional independence of FRA research, the risk of Member States pressing to define the parameters regarding their own national information system is present. Since FRA undertakes primary data collection in Member States, FRA and national estimates can be contradictory. Clarity on FRA and national quality criteria may help to explain differences and resolve institutional disagreements. Priorities of FRA and EU Member States may differ. Comparison across countries, for example, is an important requirement in methodology adopted by FRA, but it may not be in national data collection systems. Member States are more likely to prioritize the comparability over time of their internal time series rather than changing national practices to ensure cross-country comparability. The survey that FRA undertook to assess gender-based violence is an example of the inevitable trade-off between different quality criteria. The methodology was developed through an impressive consultative process and testing and the survey design is probably one of the best examples of multi-country VAW surveys available today. Great efforts were made to ensure comparability across countries, relevance, validity and objectivity but, given the limited budget, the survey design had to scarify on the national samples, making the survey results highly accurate at EU level, but weaker at national level with respect, in particular, to rarer events. Before the FRA survey, only some EU countries had implemented large-scale VAW surveys. When comparing national and FRA surveys it can be noted that similar questions produced fairly close results between FRA and national surveys,23 but for surveys which implemented a different methodology including different questions the overall national data differed and questions arise for policy makers and the public on what data to use. The table below (Table 8.2, p. 126) presents the results on Italy obtained by the FRA survey and a survey implemented by ISTAT in 2014, which highlights overall higher estimates obtained through the FRA survey. The ISTAT survey involved 25,000 respondents and the FRA survey 1,500 respondents. Questions in the survey took

23 see Goodey, J. “Violence against women: placing evidence from a European Union-wide survey in a policy context”, Journal of Interpersonal Violence 2017, Vol. 32 (12): 1760–1791.

126

Angela Me

Table 8.2 Comparison of the results obtained from two VAW surveys implemented in Italy

Lifetime prevalence of women that have experienced physical and/or sexual violence by any partner Lifetime prevalence of women that have experienced physical and/or sexual violence by non-partner Percentage of women who have experienced psychological violence during the relationship with current partner

ISTAT 2014 (women aged 16–70)

FRA 2012 (women aged 18–74)

13.6

19

24.7

17

26.5

25

a similar approach, but the FRA survey had a more comprehensive set of items. Without a thorough analysis of the discrepancies, it can be argued that these may be due to three main elements: mode of data collection (Computer-Assisted Telephone Interviews (CATI) with face-to-face interviews for foreign women for ISTAT and face-to-face interviews for FRA), the age range of interviewed women, questionnaire design and sample size. The two surveys score high in different quality aspects and it is difficult to define which one produced the “best” results. The FRA survey may provide the best data to compare Italy with other EU countries, while the ISTAT survey provides the high level of accuracy needed to assess and monitor domestic VAW policy over time for Italy. Different results can confuse a non-sophisticated user, so clarity and transparency on the limitation of data is essential to avoid a convenient rather than objective use of the data. The consistent and visible reporting of confidence intervals in all surveys can, for example, help a non-statistical user to understand that apparent discrepancies are due to a different level of statistical accuracy. Beyond a quality framework, an overall formal policy on the protection of fundamental rights in research is missing not only for FRA but for all EU institutions. FRA maintains high human rights standards during its research process, but this has not been translated towards a wider EU policy. FRA is the most capable institution in the EU to trigger the development of such EU policy. FRA has a wealth of experience in undertaking research among populations which are most at risk of human rights violations such as people with disability, migrants, ethnic and religious minorities, and LGBT; and it has established practices which could be translated into formal guidelines for EU institutions and EU Member States. Among these practices is the notion of participatory research.

FRA challenges in research methodology Similarly to other research institutions, FRA faces challenges related to the complexity of the topics under study and the constraints relating to institutional

The quality of research and methodology

127

resources and governance. From a methodological perspective, most challenging is the collection of information on hard-to-reach population groups. There are other challenges relating to institutional constraints. The most important one is the size of the agency and its budget, which limit the scope and coverage of its methodology. The expectations placed on FRA are wide, since they involve a range of sub-population groups and thematic and geographical areas.24 But the agency’s limited budget cannot support every year the creation of solid and comprehensive evidence for all these needs and for all EU Member States. Only some research projects have resources allocated to cover all EU Member States and even these can rarely possess the amount of depth to produce solid national estimates. The FRA budget doesn’t have the adequate size to compete with these national investments. EU-wide surveys implemented by FRA provide quality evidence to guide action at EU level, but they are not sensitive enough to guide national policy making since national samples are relatively small and cannot produce national estimates of high statistical accuracy. In the example of the FRA VAW survey, the small national samples may be adequate to estimate the most common forms of violence but they are not big enough to adequately estimate trends in annual prevalence of violence such as rape.25 These indicators are based on a small number of responses and are highly volatile, therefore their changes are more likely to reflect statistical variance rather than actual changes. At EU level the sample is large enough26 to accurately assess the aggregated EU picture. In short, FRA surveys do not substitute for national surveys. The value of a FRA survey to compare countries is also not always a given; it depends on the range of response rates across countries and on the cultural sensitiveness of the methodology.

24 The annual work programme of the Agency typically involves the implementation of many research projects of small or medium size leading to a fragmentation of research activities. Even when large-scale surveys are in the planning they compete for resources allocated to smaller projects. 25 The great majority of national estimates produced on annual prevalence of physical and/or sexual violence for current and previous partner are based on fewer than 30 responses). Confidence intervals of separated indicators on sexual and physical violence and for annual and lifetime prevalence were not published by FRA, but information published on confidence intervals related to aggregated life prevalence of physical and/or sexual violence show that in each country the interval can be quite wide (from 4.2 to 12.4 percentage points wide), meaning that the true value of national prevalence rates could be (with 95% probability) roughly minus or plus 2 points percentage of the estimates provided at best and 6 points percentage at worst (depending on the countries: countries that had a lower range of confidence interval – so a higher statistical confidence on this indicator – were Spain and France; countries that had a high range – low statistical confidence – were Bulgaria and Italy). It is reasonable to assume that annual prevalence rates (which are based on fewer responses) have a much lower statistical confidence (Violence Against Women: An EU-Wide Survey, main results table 2.3 and A2.4, 2014). 26 In fact, at EU level, the size of the confidence interval for estimates of the indicator analyzed in footnote 22 is much smaller – higher confidence – than the single countries: 2.4 with an estimate of the indicator been between 20.4–22.8.

128

Angela Me

Conclusions As described in this chapter, FRA surveys and other social science research have provided unique evidence and have contributed to the testing and innovation of social science tools to measure fundamental rights. But varieties of stakeholders and users have different needs and different expectations. Some are interested in research only for advocacy purposes; others demand robust evidence for policy making. It is not always possible to fulfil all requirements and the further development of an agency framework on quality can help manage these expectations. A well implemented quality policy can help FRA to identify blind spots, prioritize data collection, transparently define the quality of the different projects and ultimately maintain the trust of its users. Such policy could also help the Scientific Committee to define objective criteria for reviewing and approving the great volume of FRA social science research. FRA could draw from examples of such policies developed by other research institutions. In terms of data there are recommendations and an established literature on quality frameworks for national, regional and international organizations. The purpose is to initiate a dialogue within and outside the agency to reflect on the trade-off between different quality elements in order to adopt the combination that best fits FRA expectations and constraints. In numerous cases it may be a matter of openly discussing and formalizing existing practices to ensure they are fully institutionalized; other cases may require the creation of new practices or new policies. Guidelines to define criteria to produce national estimates may help to clarify FRA’s comparative role within the EU and Member States. Building on current FRA practices, a policy to ensure the protection of human rights in research can also help to institutionalize adequate research practices, not only in FRA but also within the wider EU. Defining FRA’s role and integrating more explicitly its efforts within the EU’s statistical efforts could amplify its impact in the generation of national data on fundamental rights. The size of FRA surveys cannot compete with the size of large surveys undertaken by national statistical systems in each Member State. A reflection on FRA’s comparative advantage can help the Agency to be more effective. On survey programmes FRA can play different roles: (1) developing EU-wide methodology and persuading countries to implement it, (2) undertaking surveys to only estimate EU aggregates or (3) undertaking surveys to estimate EU and national measures. There are benefits and shortcomings for all three approaches and hybrid solutions to consider. The experience of other EU and international organizations can inform this assessment. The European Monitoring Centre for Drugs and Drug Addiction (EMCDDA), for example, has taken the approach of supporting countries to implement an EU methodology rather than directly implementing their own surveys. This experience has shown that a long-term investment in this direction offers sustainable and quality solutions.27 Eurofound, on the other hand, has conducted regular surveys

27 EMCDDA is an agency similar to FRA in terms of size, governance and functions. Since its establishment EMCDDA has not focussed on the direct implementation of large EU surveys, but has developed EU standards to collect drug information such as the EMCDDA survey module on drug use. After more than a decade, the model questionnaire has been adopted by

The quality of research and methodology

129

on living and working conditions and quality of life across the EU since the 1970s. UNICEF has adopted a hybrid approach. It has developed a standard rigid survey methodology and has been supporting national statistical offices to carry it out with quality control programmes and training for the last two decades.28 The EU statistical system and the national statistical systems of EU Member States need leadership in defining statistical systems on fundamental rights. FRA can provide such a leadership, but only if it works within national statistical systems and not outside. A number of steps could guide this process: • • • • •

definition of a set of EU benchmark indicators to regularly monitor fundamental rights at country and EU levels; mapping of indicators and proxy indicators to data collection tools; assessment of data collection tools and data availability, identification of existing challenges in relation to gaps in specific indicators and lack of standardization across the EU; definition of a roadmap to improve the availability and quality of fundamental rights statistics with identified actions and needed budget together with a mechanism to oversee and monitor the implementation of the roadmap; identification in each country of a national mechanism to coordinate the production and dissemination of fundamental rights data.

Developing a list of statistical human rights indicators and agreeing on a set of headline indicators to support the design and monitoring of policies in the EU goes beyond the organization of a few meetings to define a menu of indicators. It took the OHCHR several years of research and consultation to develop an international indicator framework. The international indicator framework has become the reference standard and it is now widely accepted that human rights indicators include structural, process and outcome indicators. Structural indicators aim at monitoring countries’ obligations to international human rights standards, process indicators measure the implementation of the standards and outcome indicators assess the impact of the efforts made. All steps mentioned above require multi-stakeholder consultations. To ensure sustainability, national institutions which are expected to regularly produce data relevant to human rights are to be fully involved to ensure national ownership of the entire process. In addition, if data have to trigger action at domestic level, they must be fully integrated within national information systems and be considered authoritative by all national stakeholders. As for all statistical systems, national mechanisms developed to coordinate and produce human rights

all EU countries and drug use surveys have been embedded in drug information systems (www.emcdda.europa.eu). 28 www.unicef.org/statistics/index_24302.html.

130

Angela Me

statistics have to also enjoy professional independence and not be subject to external political pressure. An EU statistical framework on human rights can take the quality and availability of human rights data at a higher level and it can ensure the commitment of other EU agencies and institutions. FRA is already working in Eurostat thematic working groups to support EU Member States to embed a human rights perspective in selected areas such as crime statistics, migration statistics, equality statistics and health interview surveys. Nevertheless, a more strategic alliance with Eurostat could approach human rights statistics in a more holistic fashion. Beyond a fragmented intervention in sectorial statistics (such as crime), human rights need to grow as a statistical theme on its own merit with, for example, a dedicated EU working group at the same level as other statistical sectors. A statistical framework on fundamental rights requires two approaches: dedicated tools to measure specific human rights issues and proper disaggregation of existing information systems. There are areas related to human rights such as torture or extra-judiciary killings which are in need of better data collection systems, while some human rights concerns particularly related to discrimination require efforts to better disaggregate existing statistics. With the involvement of the European statistical system to work on large data collection systems and long-term strategies to mainstream human rights into national systems, FRA could probably focus its own data collection in areas where it has a unique advantage and greatest influence, such as testing of new methodology, definition of parameters to ensure comparability across countries, data collection on emerging issues and early warning systems, particularly on issues which have a transnational nature (such as migration) and require a supranational entity to adequately comprehend them. The new UN global framework for monitoring the Sustainable Development Goals is an opportunity for human rights statistics to grow. The strong political will for not leaving anyone behind in achieving the SDG agenda, together with specific targets and indicators on inequality and human rights institutions, call for better disaggregation across all statistical domains and better data on human rights issues related, for example, to access to justice and rule of law. This is an opportunity for FRA to develop stronger partnerships with official statisticians to ensure that the SDG agenda brings a real transformation in the European Statistical System.

9

Equality and inclusion Designing research to reconcile rights, ideas and policy practices at FRA Han Entzinger

Equality is one of the basic principles that lie at the roots of our European democracies and, therefore, also at those of the European Union. Traditionally, equality has been interpreted primarily as formal equality; that is equality before the law. Article 20 of the EU’s Fundamental Rights Charter stipulates that ‘everyone is equal before the law’. And, indeed, one of the greatest achievements of European history is that formal equality has been reached progressively for almost everyone. Nowadays, fundamental rights, whether freedoms or entitlements, equally apply to all citizens, or rather to everyone legally residing in a country, under nearly all circumstances. Even irregular residents possess rights, such as those to education for children of compulsory schooling age and, under certain conditions, to health care. This does not mean, however, that all those who possess these rights are actually able to enjoy them to the same extent. Across the EU many situations exist where fundamental rights are under threat or even violated, for example as a result of prejudice, discrimination or abuse of power, but also as a consequence of economic or technological developments. The rule of law is a great achievement, but it does not always work in practice. Differential treatment of citizens persists, also by public authorities; formal equality does not always imply substantive equality. In reality, people may possess the same rights, but they do not always have the same opportunities, which may lead to exclusion, often of a systematic nature. Lawyers tend to see such phenomena as a consequence of shortcomings in the legal system, which should then be compensated for by a more effective enforcement or by taking additional legal measures, such as anti-discrimination legislation, combating hate crime, or certain forms of affirmative action.

Linking up fundamental rights with inclusion in the EU Until not so long ago this was the dominant approach in applying and enforcing fundamental rights, not only in many of the EU’s Member States, but also at the EU level itself. In the past years, however, we have witnessed a progressive linking up of policies that aim at ensuring the application of fundamental rights with policies to promote social inclusion. Earlier, social inclusion was primarily seen as the outcome of an effective application of fundamental rights, and, more

132

Han Entzinger

particularly, as an effect of striving for equality. Since the beginning of this millennium, however, social inclusion has been given a broader significance as a policy principle and as a set of measures to achieve a fuller and more equitable participation for everyone in all areas of social, economic, cultural and political life. Fundamental rights and the promotion of social inclusion are no longer seen as two separate silos in European policy-making, each with their own legislative and institutional arrangements, but rather as two communicating vases. This shift has led to an interesting merger of more traditional legal measures on the one hand with a variety of other, socio-political measures that aim at promoting and encouraging a fuller participation for everyone. The shift has also generated a greater interest at the EU level in protecting the rights of minorities and creating sufficient conditions for pluralism in society, issues to which I shall come back later in this chapter. Article 2 of the 2009 Lisbon Treaty stipulates: The Union is founded on the values of respect for human dignity, freedom, democracy, equality, the rule of law and respect for human rights, including the rights of persons belonging to minorities. These values are common to the Member States in a society in which pluralism, non-discrimination, tolerance, justice, solidarity and equality between women and men prevail. Of course, neither guaranteeing formal legal protection nor pursuing policies that aim at encouraging social and economic participation should be seen as exclusive instruments to achieve non-divided, non-segregated or nonexclusionary societies. We need both and, when properly applied, the two can reinforce each other. The rights of individuals and (minority) groups still need to be protected and perpetrators need to be pursued and punished. At the same time, positive measures in a variety of social and economic policy areas can be even more powerful instruments to implement rights, encourage possibilities for their effective enjoyment, and achieve substantive equality and participation. At the EU level this ‘marriage’ of equality and social inclusion appeared for the first time in the Joint Report on Social Inclusion 2004 of the European Commission and the European Council. That report defines ‘social inclusion’ as: a process ensuring that those at risk of poverty and social exclusion gain the opportunities and resources necessary to participate fully in economic, social and cultural life and to enjoy a standard of living and well-being that is considered normal in the society in which they live. It ensures that they have greater participation in decision making which affects their lives and access to their fundamental rights.1

1 Council of the European Union, Joint Report by the Commission and the Council on Social Inclusion, 7101/04; Brussels, March 5, 2004, p. 8.

Equality and inclusion

133

In this definition a clear link is made between creating more and better opportunities in the social and economic field, promoting participation in decisionmaking, and guaranteeing access to fundamental rights. This triangle should contribute to realizing the following six priorities set by the same report and aiming at achieving a higher degree of social inclusion. These priorities are: 1

2 3

4 5 6

promoting investment and tailoring of active labour market measures to meet the needs of those who have the greatest difficulties in accessing employment; ensuring that social protection schemes are adequate and accessible for all and that they provide effective work incentives for those who can work; increasing the access of the most vulnerable and those most at risk of social exclusion to decent housing, quality health and lifelong learning opportunities; implementing a concerted effort to prevent early school leaving and to promote smooth transition from school to work; developing a focus on eliminating poverty and social exclusion among children; making a drive to reduce poverty and social exclusion of immigrants and ethnic minorities.2

Since 2004, the EU has actually made numerous efforts to implement these priorities, mainly by encouraging the Member States to take adequate measures. After all, EU competencies in most of the policy areas mentioned in the six priorities are limited. Individual Member States are and continue to be largely responsible for areas such as employment, education, housing, health care and social security. The social Open Method of Coordination (OMC), established by the Lisbon European Council in 2000, has been a major element of the EU framework for coordinating and supporting Member State policies on social inclusion and social protection. The overarching objectives for social protection and social inclusion of this OMC were reaffirmed in 2011, and then defined as follows: a

b

c

to promote social cohesion, equality between men and women and equal opportunities for all through adequate, accessible, financially sustainable, adaptable and efficient social protection systems and social inclusion policies; to promote effective and mutual interaction between the Europe 2020 objectives of smart, sustainable and inclusive growth, taking full account of the relevant social provisions of the Lisbon Treaty; to promote good governance, transparency and the involvement of stakeholders in the design, implementation and monitoring of policy.3

2 Ibid., p. 5. 3 The Social Protection Committee, Opinion of the Social Protection Committee on Reinvigorating the Social OMC in the Context of the Europe 2020 Strategy; SPC2011/05/1, Brussels, May 17, 2011.

134

Han Entzinger

The EU’s competencies in social policy-making are still quite limited, but the ambition to ensure that the social dimension receives a fair deal of attention in the European integration process is clear. Linking up social inclusion with fundamental rights has certainly been a significant step forward.

FRA’s work on social inclusion It is against this backdrop and in this spirit that the EU’s Fundamental Rights Agency (FRA) has been developing its activities in the field of social inclusion and integration ever since its inception in 2007. Initially, the main idea behind much of FRA’s work was that inclusion and integration needed to take place within a framework that respects fundamental rights. This, obviously, still is the case, but gradually the idea has gained momentum that policies aiming at promoting inclusion and integration can also facilitate and encourage the enjoyment of fundamental rights. As a consequence, the Agency not only examines how fundamental rights are embedded in legislative and policy processes at EU and national levels, but it also tries to find out how these work in practice, for example by attempting to identify trends, best practices and successful approaches. A good example of this is the report Together in the EU, which examines policies in the Member States that aim at promoting the participation of migrants and their descendants in the educational system, the labour market, language learning and the political system.4 The objective of this is to identify ways to promote and encourage participation as a means to help achieve the realization of fundamental rights for all in the EU. FRA has tried to give more flesh to the abstract policy concept of social inclusion by addressing it not only as a social challenge that mainly concerns economic deprivation and poverty problems, but also as a human and civil rights question. Migrants and their descendants are among the most vulnerable groups in the EU. Many of them are not EU citizens, they do not have qualifications that give them easy access to employment, or they may not speak the local language. Migrants and their descendants are often discriminated against or are victims of xenophobia, racism, hate speech or worse. Therefore, it is not surprising that FRA has given them a great deal of attention in much of its work. This is also a consequence of the heritage of EUMC, its predecessor, which focussed exclusively on racism and xenophobia, and hence on migrants and ethnic minorities. The two very large EU-MIDIS surveys, with more than 25,000 respondents each, drew a lot of attention when they were published in 2009 and 2017 respectively.5 Both surveys revealed in a detailed manner that discrimination of

4 FRA, Together in the EU; Promoting the Participation of Migrants and their Descendants. Luxembourg: EU Publications Office, 2017. 5 FRA, European Union Minorities and Discrimination Survey: Main Results; Luxembourg: EU Publications Office, 2010; FRA, Second European Union Minorities and Discrimination Survey: Main Results. Luxembourg: EU Publications Office, 2017.

Equality and inclusion

135

immigrants and ethnic minorities exists and persists in all Member States. Both reports recommended a mix of legal and social policy measures to improve the situation of migrants and ethnic minorities, in the expectation that such a combination would lead to a better mutual understanding and to a reduction of harassment and discrimination. FRA has also focussed its activities on other minorities in the EU population that encounter prejudice, exclusion and discrimination. Among the Agency’s first reports were overviews of both the legal situation and the social situation of LGBT persons in all Member States. Later, this was followed by an online survey among LGBT persons, a pioneering endeavour that also revealed a lack of comparable data in the EU and the difficulty of collecting reliable information on an issue that is still very sensitive in many Member States (also see Chapter 8). The Roma constitute another minority that has been the subject of both legal and social research by FRA. Both EU-MIDIS surveys singled out the Roma in a separate publication, while, in 2012, FRA published yet another survey carried out among Roma in 11 Member States (see Chapter 11). It became evident that their social situation is regrettably poor, and even much worse – on average – than that of immigrants and their descendants. Although a lot of new and detailed information has become available as a result of the work of FRA (and other bodies such as the Council of Europe), it is sad to say that, over the past ten years, the actual position of the Roma has only marginally improved.6 When carrying out surveys among minorities such as LGBT or Roma it is methodologically challenging to constitute representative samples: sexual orientation is never registered, so self-reporting is the best alternative that remains. In many situations Roma too can only be traced through self-identification. FRA has had to pioneer in developing methodologies that meet these challenges (see Chapter 8). The same holds for persons with disabilities, a category of people on which FRA has published extensively in the past ten years. Since 2010, the Agency has undertaken four major projects on the rights of persons with disabilities.7 So far, however, a large-scale survey comparable with the LGBT, the EU-MIDIS and Roma surveys is still missing. Other categories whose legal and social situations are potentially weak, but that tend to be more easily identifiable in registration systems, are children, asylum seekers and people in detention, just to mention some other categories of concern to the Agency. In the past few years, FRA has published several reports on poverty

6 FRA, Anti-Gypsyism as a Barrier to Roma Inclusion, Luxembourg: EU Publications Office, 2018. 7 These projects dealt with: fundamental rights of persons with intellectual disabilities and persons with mental health problems (2010–2013); the political participation of persons with disabilities (2014); violence against children with disabilities (2015); and independent living of persons with disabilities (since 2017). Summaries of the findings of these projects can be found in the Fundamental Rights Reports published by FRA annually. The full reports can be found on FRA’s website, see: http://fra.europa.eu/en/theme/people-disabilities/publications.

136

Han Entzinger

among children and has proposed ways of combating it. A better protection of children’s rights is absolutely a basic condition for social improvement, while fighting child poverty also strengthens children’s legal position.8 Here again, we can see how equality and social inclusion mutually reinforce one another. In the case of asylum seekers, the Agency has even gone one step further. It has not limited itself to publishing reports on the legal and social situation of these people, but since the peak of the ‘migration crisis’ in 2015 FRA staff members have actually been active in the field, particularly in Greece and Italy. Their task has been to advise local and national authorities as well as other EU Agencies present on the spot on how to best protect the rights of people seeking asylum. In addition to that, FRA has been publishing regular bulletins on how the EU and a number of Member States have been handling the asylum issue. Governments as well as NGOs contribute to these reports (see Chapters 13 and 14). FRA has not restricted itself to analyzing the legal and social position of specific minorities or other groups of people whose fundamental rights are under threat and who therefore risk being socially excluded. The Agency has also published reports on specific institutional areas in European society where rights risk being systematically violated as a result of unequal treatment or discrimination, such as the labour market and the health care system. The report on Severe Labour Exploitation of Workers Moving Within or Into the European Union identified a number of risk factors that lead to severe exploitation and violation of rights of non-national workers (both EU and third-country nationals) in the labour market.9 It also discussed means of countering this. In its report The Cost of Exclusion from Health Care – The Case of Migrants in an Irregular Situation FRA concluded that excluding irregular migrants from health care not only means violating the fundamental rights of these people, but also leads to higher overall public expenses in many cases, since postponing necessary medical treatment increases health risks and requires more costly forms of treatment at a later stage.10 Several other institutional areas where vulnerable groups run a high risk of having their fundamental rights violated have also been subject to FRA studies. We may think here, for example, of FRA’s work on childcare institutions, prisons and detention centres, and on border protection arrangements.

The gap between ideals and policy practices FRA’s work on a variety of minorities clearly reveals that a gap exists between the ideal of equality and inclusion and a practice of discrimination and exclusion

8 FRA, Combating Child Poverty, an Issue of Fundamental Rights, Luxembourg: EU Publications Office, 2018. 9 FRA, Severe Labour Exploitation of Workers Moving Within or Into the European Union, Luxembourg: EU Publications Office, 2015. 10 FRA, The Cost of Exclusion from Health Care – The Case of Migrants in an Irregular Situation, Luxembourg: EU Publications Office, 2015.

Equality and inclusion

137

that many individuals who belong to these minorities are facing. This gap is not a new phenomenon, but new is the fact that, as we have already noticed, this has become an issue of growing concern to the EU. The Union, to a certain extent inspired by FRA’s work, has been advocating measures and promulgating instruments that aim at bridging that gap. Many of these measures and instruments, however, lie in the areas of employment, education, housing or health care, and therefore are largely within the competencies of the Member States, though they may still be affected by EU law as, for example, non-discrimination and labour legislation. Also, in quite a few areas common policy frameworks have been developed meanwhile. These may be ‘softer’ than EU directives and regulations, but they can be quite effective at times.11 Nevertheless, when it comes to developing and implementing concrete policy instruments, national and even local authorities have substantial discretionary powers. Consequently, closer linkages between fundamental rights and social inclusion require a smooth interplay not only between different institutional areas, but even more so between different levels of governance, and also between ‘hard’ law enforcement and ‘soft’ positive measures, such as the promotion and adoption of best practices. This, in reality, is not always easy to achieve. In a vast majority of Member States there may not be a substantial disagreement on the fundamental rights as such. However, their translation at lower levels into actual policy measures that aim at promoting inclusion often depends on the political or ideological views one holds (and, of course, also on the financial means available). Especially when it comes to ways of including minorities political and ideological views differ widely within, but also between Member States. The ‘migration crisis’ that took the EU more or less by surprise in 2015 may serve as a clear illustration of this. It revealed profound cleavages between Member States in the way asylum seekers and irregular immigrants should be treated. So far, it has proved to be impossible to find a common denominator in these matters on which all Member States can more or less agree. The impossibility to display more solidarity in such an important affair where fundamental rights are at stake is seen by many as a serious threat to the Union. The example just given is one of the most outspoken ones in the recent past, but many other examples also exist of differential approaches in social inclusion of minorities even though on paper their fundamental rights may be guaranteed. In some cases this may be an effect of limited funding opportunities. Persons with disabilities, for example, tend to be better facilitated in the more affluent Member States than in those that are less well off. In many cases, however, other reasons than limited funding may explain a persistent lack of social inclusion. From FRA’s work it is evident that the Roma

11 An example of this is the Roma common policy framework, articulated around Communication COM(2010)133 and applied by Member States under a number of policy and legal constraints (national Roma integration strategies, funding conditionality, CEJ court cases), and followed and monitored by the Commission with FRA support and research.

138

Han Entzinger

constitute the minority population that are worst off when it comes to ‘participating fully in economic, social and cultural life’ and to ‘enjoying a standard of living and well-being that is considered normal in the society in which they live’, as the EU definition of social inclusion, mentioned earlier, stipulates.12 Some categories of (recent) immigrants and their descendants are also systematically confronted with social exclusion and with lacking opportunities, even when in theory they possess the same rights as the mainstream population. The same holds for LGBT persons.

The cultural dimension The majority often mentions cultural differences with minority populations and an insufficient familiarity among the latter with mainstream cultural values and forms of behaviour as an excuse for their exclusion. This touches upon aspects of fundamental rights stipulated in Article 2 of the Lisbon Treaty, in particular on pluralism, non-discrimination and tolerance. Article 21 of the Fundamental Rights Charter is more specific on this, when it states: Any discrimination based on any ground such as sex, 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 shall be prohibited. Article 22 adds to this: ‘The Union shall respect cultural, religious and linguistic diversity’.13 All this is easier said than done. Everyone knows how difficult it can be to prove discrimination in concrete cases, and everyone knows that respect for cultural, religious and linguistic diversity can be understood in a myriad of manners, while its implementation highly depends on time, place and circumstances. In a Union as varied as the EU-28 many different interpretations exist of notions such as cultural diversity and pluralism, and of the ways these should be dealt with in practice. Traditionally, the literature distinguishes between three main models of accommodating cultural diversity: the assimilationist, the multicultural and the differentialist approach (the latter sometimes also being referred

12 See: FRA, Anti-Gypsyism as a Barrier to Roma Inclusion, Luxembourg: EU Publications Office, 2018. 13 Here the question arises whether the notion of ‘diversity’ in EU primary law does at all refer to diversity within Member States or rather to diversity between Member States. Some argue in favour of the latter, which implies that ‘diversity management’ is mainly about protecting national identities within an EU context. Others, however, while pointing at other EU documents and at what actually happens in most Member States, claim that respecting diversity is a basic characteristic of liberal democracies, and should therefore be standing practice in all Member States. For a debate on this, see: Gabriel N. Toggenburg, (2004) The Debate on European Values and the Case of Cultural Diversity, 1 European Diversity and Autonomy Papers; Bozen/Bolzano: European Academy.

Equality and inclusion

139

to as ‘exclusionist’). Recently, these models have become challenged, but vast differences persist in the degree to which Member States are willing to recognize and facilitate cultural diversity. Only a quick look at the differences between, for example, France and the United Kingdom suffices to see that respect for diversity vis-à-vis immigrants and other minorities can take on a variety of institutionalized forms.15 Attempts to include minorities into mainstream society, especially those with a cultural, religious or ethnic background that differs considerably from the majority, give rise to various dilemmas. Many of these are not new and a lot of empirical research on such issues is available.16 In essence, these dilemmas can be reduced to the equality versus diversity principle, or, in a more legal terminology, to formal versus substantive equality. Aristotle already addressed this issue when he said ‘there is as much injustice in the unequal treatment of equal cases as there is in the equal treatment of unequal cases’.17 Contemporary authors have also analyzed these dilemmas, for example when discussing potential tensions between the homogenizing effects of the welfare state and the need to cope with increasing diversity in cultural and religious backgrounds and lifestyles.18 Or, as it has also been phrased, with the tension between recognition and redistribution.19 To me the crux of the matter seems to be that respect for diversity, more particularly for cultural diversity, implies above all a readiness to accept the fact that individuals and groups with different cultural values live together in one and the same society and are treated equally. Evidence shows that this is absolutely possible – it is even a basic characteristic of our Western democracies – but only on the condition of a sufficient degree of mutual respect and acceptance, and only up to a certain limit. When values clearly are incompatible, choices have to be made. In practice, this nearly always implies a choice in favour of the dominant values and a rejection of those of the minority. This is evident when the latter clash with fundamental rights, as, for example, in the case of polygamy or genital mutilation. There is, however, a major 14

14 See, for example, a standard work in this field: Stephen Castles, Hein de Haas and Mark Miller, The Age of Migration: International Population Movements in the Modern World, Basingstoke: Palgrave MacMillan, 2014 (5th Edition), p. 264 ff. 15 Michael Bommes and Dietrich Thränhardt (Eds), National Paradigms of Migration Research, Osnabrück: IMIS, 2010; Peter Scholten, Framing Immigrant Integration: Dutch ResearchPolicy Dialogues in Comparative Perspective, Amsterdam: Amsterdam University Press, 2011, p. 38 ff. 16 See, for example, Joseph H. Carens, Culture, Citizenship and Community: A Contextual Exploration of Justice as Evenhandedness, Oxford: Oxford University Press, 2000. 17 Artistotle, Nicomacheaen Ethics, Book V, Chapter 3. 18 Michael Bommes and Andrew Geddes (eds), Immigration and Welfare: Challenging the Borders of the Welfare State, Abingdon: Routledge, 2010. 19 See: Keith Banting and Will Kymlicka (eds), Multiculturalism and the Welfare State: Recognition and Redistribution in Contemporary Democracies, Oxford: Oxford University Press, 2006.

140

Han Entzinger

‘grey zone’ in which some see an incompatibility of values and behaviour based on these values, while others do not. Take the classical example of the headscarf as worn by many Muslim women in Europe. Some see this as a perfectly acceptable expression of their religious beliefs, while others consider it a symbol of oppression of women and therefore as a violation of the equality principle. What we see here is not only a clash of cultural or religious values, but also a clash of fundamental rights. The principle of equality of men and women clashes with the freedom of religion, and opinions diverge as to which of these principles should take precedence over the other. In recent EU and FRA documents we can observe a tendency to link up fundamental rights and fundamental values more closely than before, or even to use them interchangeably. Of course, rights do reflect values (equality, solidarity, dignity, etc.), but rights are much more specific than ‘Europe’s fundamental values’, a term that appears more and more often in EU documents, but that is seldom specified. Values are broad ideas that affect people’s thinking and their behaviour. Rights, by contrast, are much more concrete and they can also be enforced. Confounding these two bears certain risks.20 Linking up equality as a fundamental value and inclusion as a policy objective reveals that there is also a normative component to the latter, a consequence that is not immediately clear from the EU definition of social inclusion mentioned earlier. Inclusion as a concept is narrowly related to integration, which can be seen as a characteristic of a society (an ‘integrated or inclusive society’ is a society with a strong social cohesion), but also as a characteristic of an individual’s relationship to that society. In a fundamental rights context the latter approach seems the most fruitful one. From a sociological perspective, according to Heckmann, integration (or, for that matter, inclusion) is a process whereby an individual (or possibly a group) becomes gradually incorporated into a larger society. Heckmann distinguishes four dimensions in this process: (1) structural integration (sometimes also referred to as ‘institutional participation’); (2) cultural integration (or acculturation); (3) interactive integration (also called ‘establishing social contacts’); and (4) identificational integration.21 Of these four dimensions the EU’s Fundamental Rights Charter and the policy guidelines that are based on it primarily focus on rights that aim at promoting institutional participation. That is what is usually at stake when we use the term ‘inclusion’. On the other three dimensions mentioned by Heckmann there is more ambiguity. A potential contradiction looms between the need for

20 On this, also see: Gabriel N. Toggenburg, (2017) EU Values: A Fragile and Outdated Foundation for EU-ropean Unity? CIFE-Policy Paper 62; Nice: Centre International de Formation Européenne. 21 Friedrich Heckmann (ed.), Integration and Integration Policies, IMISCOE Network Feasibility Study; Bamberg: European Forum for Migration Studies, 2005, p. 15.

Equality and inclusion

141

acculturation on the one hand, and the call for pluralism on the other, which implies a right to preserve one’s culture. When it comes to interactive integration we must keep in mind that in our society all individuals are free to establish social contacts with any other individual. The nature of such contacts can be decisive for the course of an inclusion process but neither the law nor policy makers have much to say in such matters, which are considered private. Finally, identification with one’s surroundings is something that cannot be imposed on an individual either, and certainly not by law or decree. Integration experts argue that identification, as an element of integration, is often a long and painful process, particularly for those with a non-mainstream ethnic or religious background.22

Conclusion It is beyond doubt that the EU’s efforts to promote equality and social inclusion, particularly of immigrants and other minorities, start from the best intentions, as much as FRA does in its work. The enforcement of fundamental rights based on the principle of equality is far from easy, and so is the implementation of policy objectives that aim at inclusion. Most of the instruments needed to achieve this are in the hands of the Member States, while their actual implementation is often a local or regional responsibility. The EU can provide broad guidelines, but these can be and are being interpreted in many different manners.23 Realizing policy objectives in the field of social inclusion has become even more complex in the light of the current trend to define inclusion (or integration) increasingly in cultural terms rather than in structural ones. In large parts of Europe we observe a growing emphasis on identity issues among both majority and minority populations. More than in the past, many consider the nation to be the natural context for inclusion rather than, for example, the labour market or even citizenship, perceived as membership of a state and not necessarily of a nation. This explains a certain revival of nationalist attitudes throughout Europe, and it may also explain the growing criticism on the functioning of the European Union as well as the emergence of populist parties in a substantial number of Member States. If the trend to define inclusion in cultural rather than in structural terms persists, it will become even more of a challenge for the EU – and possibly also for FRA – to fulfil their mandates in the field of social inclusion on the basis of

22 See, for example, Hartmut Esser, What substance is there to the term ‘Leitkultur’? In: R. Cuperus et al. eds, The Challenge of Diversity: European Social Democracy Facing Migration, Integration and Multiculturalism, Innsbruck: Studienverlag, 2003, pp. 47–58. 23 See: Gabriel N. Toggenburg (2005) ‘Who is Managing Ethnic and Cultural Diversity in the European Condominium? The Moments of Entry, Integration and Preservation’, Journal of Common Market Studies (43) 4, pp. 717–738.

142

Han Entzinger

formal equality. European societies may develop in directions that differ too much from one another, while culturally inspired tensions may also increase within certain societies. Consequently, Member States may diverge rather than converge in their interpretation and their implementation of fundamental rights. Therefore, it will become more difficult to propose or even suggest instruments at an EU level that work effectively under such diverse conditions (leaving aside the discussion of whether the EU mandate allows for this).24 For the same reasons it will become harder for FRA to assess and compare policies and instruments that aim at inclusion, particularly if this is to generate answers that can actually be implemented at a level that is sufficiently concrete. An effect of all this may be that the EU will focus its efforts more exclusively on areas where common interests do converge, and where it is more likely to have an impact, such as the area of security. Over the years, migration and the inclusion of immigrant and national minorities have increasingly been considered from a security perspective at all levels of governance, including that of the EU. Such ‘securitization’, as it has been called, in the approach of migration and migrant integration, but also of national minorities, is indeed a risk, which until now FRA has managed to avoid. It is a risk not only because enhanced security measures may easily challenge individuals’ fundamental rights, but even more so because the rights of the most vulnerable tend to be affected most strongly. This development can thwart efforts to achieve more inclusion. I do not see a realistic alternative to linking up equality and social inclusion, but there are many challenges on the road.

24 See: ibid.

10 FRA’s efforts to combat hatred, xenophobia and racism Françoise Tulkens

Hatred, xenophobia and racism have a strong element in common: intolerance which leads to fear, anger and hostility, heightened by the devastating power of stereotypes, against certain persons or certain groups. They also have a strong result in common: gross violations of fundamental rights. The building of Europe as a democratic project is not only weakened by these practices, it is also called into question as an open society committed to pluralism and human dignity. In the face of the widespread phenomenon, it is essential to reaffirm and reinforce, firmly, time and again, “democracy’s vision of a society in which diversity is not to be perceived as a threat but as a source of enrichment”.1 While racism is discrimination directed against someone of a different race and xenophobia is a prejudice against foreigners or strangers who are considered as aliens, hatred could be envisaged as the “cupola” concept which encapsulates both xenophobia and racism. The two specific forms of hatred encompass hate crime or bias-motivated crime and hate speech. Hate crime refers to a criminal offence (assault, murder, rape, destruction of property, harassment, etc.) motivated by prejudice towards someone by reason of his/her personal/social characteristics such as race, gender, religion, disability, sexual orientation, gender identity, nationality or ethnicity,2 or against someone “perceived” to have these characteristics.3 Hate crime affects not only the persons targeted but also their communities and this could be recognized as a specific offence.4 For its part, hate speech is speech perceived as/aimed at disparaging a person or a group for the same reasons, which can escalate into hate acts and violence. This is why, for victims, hate crime and hate speech are inextricably linked. While, in the former, hatred could be either an aggravating circumstance or a substantive offence in itself, in the latter, hate speech is more often an offence in itself. The internet is

1 ECtHR (GC), Natchova and Others v Bulgaria judgment of 6 July 2005, § 145. 2 See the recent reference book: Ph. Bean (ed.), Hate Crime: Critical Concepts in Criminology, 4 volumes, Abingdon, Routledge, 2017. 3 ECtHR, Škorjanec v Croatia judgment of 28 March 2017 (on bias motives by association). 4 See, for a detailed framing of hate crime through a fundamental rights perspective: FRA, Making Hate Crime Visible in the European Union: Acknowledging Victims’ Rights, Luxembourg, Publications Office of the European Union, 2012.

144

Françoise Tulkens

a “turbo accelerator” of hate speech, not only because of its obvious wide access but also because of its anonymity which permits freedom without responsibility.5

A robust European legal framework Since 2000, the Council of Europe and the European Union have been joining their efforts in this field,6 and have produced and enacted a large and growing number of texts, of various nature, to counter hatred, racism and xenophobia, which is becoming a gangrene across Europe. Without exhaustiveness, I will limit myself to the key documents.

Council of Europe At the level of the Council of Europe, we have to note some important conventions, among them the Framework Convention for the Protection of National Minorities of 1 February 1995, the Convention on Cybercrime of 8 November 2001 (Budapest Convention) and its Additional Protocol of 7 November 2002 concerning the criminalization of acts of a racist and xenophobic nature committed through computer systems, and the Convention on Preventing and Combating Violence Against Women and Domestic Violence of 11 May 2011 (Istanbul Convention). At the political level, a number of Recommendations and Resolutions of the Committee of Ministers and the Parliamentary Assembly, which express the consensus of the 47 Member States, tackle these issues very strongly. Among them is Recommendation CM/Rec(2010)5 on measures to combat discrimination on grounds of sexual orientation or gender identity adopted by the Committee of Ministers on 31 March 2010. This recommendation suggests that Member States should take appropriate measures to ensure that victims (and witnesses) of hate crimes or incidents related to their sexual orientation or gender identity are encouraged to report, and that law enforcement structures, including the judiciary, have the necessary knowledge and skills to identify such crimes and incidents and provide adequate assistance and support to victims and witnesses.7 Finally, the European Commission Against Racism and Intolerance (ECRI) is

5 An application is currently pending before the European Court of Human Rights, Beizaras and Levickas v Lithuania, which has been communicated to the Government of Lithuania under Articles 8 and 14 of the European Convention on Human Rights. It concerns the Lithuanian authorities’ decision to discontinue a criminal investigation concerning allegedly homophobic comments posted on the first applicant’s Facebook page after he had published on his profile a photograph depicting a same-sex kiss between him and the second applicant. 6 The Handbook on European Discrimination Law (1st edition, 2010; 2nd edition, Luxembourg: Publications Office of the European Union, 2018), which is relevant in this field, serves as an excellent example of cooperation between the European Court of Human Rights and the EU Fundamental Rights Agency. 7 Recommendation of the Committee of Ministers to Member States on Measures to Combat Discrimination on Grounds of Sexual Orientation or Gender Identity, adopted by the Committee of Ministers on 31 March 2010, Appendix I.A.3.

Combatting hatred, xenophobia and racism

145

a specific dedicated agency within the Council of Europe to monitor the situation in the Member States.8 Concerning hate speech, Recommendation R(97)20 of the Committee of Ministers of 30 October 19979 adopted a definition of hate speech on which there seems to be a consensus, namely that this term shall be understood as covering all forms of expression which spread, incite, promote or justify racial hatred, xenophobia, anti-Semitism or other forms of hatred based on intolerance, including: intolerance expressed by aggressive nationalism and ethnocentrism, discrimination and hostility against minorities, migrants and people of immigrant origin.10 Within the European Convention on Human Rights, the natural place for hatred, racism and xenophobia is Article 14 which is a complementary right, prohibiting discrimination in the enjoyment of a right guaranteed by the Convention. In recent years, the European Court of Human Rights has significantly strengthened the potential of this provision and given it a new development.11 So, for instance, the practice of the Court to deem it not necessary to examine a discrimination complaint after having found a violation of one of the substantive rights of the Convention has now changed. Faced with a sensitive question concerning a discrimination based on ethnic origin, the Court found a violation of Article 2 of Protocol No. 4 to the Convention combined with Article 14.12 It stated that “no difference in treatment which is based exclusively or to a decisive extent on a person’s ethnic origin is capable of being objectively justified in a contemporary democratic society built on the principles of pluralism and respect for different cultures”.13 In this way, the Court has in a sense placed racial discrimination outside the framework of ordinary evaluation of discrimination cases in which, by tradition, a difference in treatment between comparable situations can be objectively justified when it involves a proportionate measure serving a legitimate purpose. Rather than a suspect criterion, racial discrimination now becomes an excluded criterion.14 In the Balazs v Hungary judgment of 20 October 2016, the Court went the other way round and concluded first to a violation of Article 14

8 M. Kelly, ECRI – 10 Years of Combating Racism in Europe: A Review of the Work of the European Commission against Racism and Intolerance, Strasbourg, Council of Europe, 2004. 9 Recommendation of the Committee of Ministers to Member States on “Hate Speech”, adopted by the Committee of Ministers on 30 October 1997. 10 Ibid., Appendix to the Recommendation, “Scope”. 11 See FRA, Unmasking Bias Motives in Crimes: Selected Cases of the European Court of Human Rights, Luxembourg, Publications Office, 2018. 12 ECtHR, Timichev v Russia judgment of 13 December 2005, §§ 53–59. 13 Ibid., § 58. 14 S. Van Drooghenbroeck, The European Convention on Human Rights. Three Years of CaseLaw of the European Court of Human Rights, 2002–2004, Volume 2, Articles 7 to 59 of the Convention. Additional Protocols, Brussels, Larcier, Les dossiers du Journal des tribunaux, No. 57, 2006, p. 131, § 483.

146

Françoise Tulkens

taken together with Article 3.15 In some other cases, the Court went further and having found a violation of Article 14 of the Convention, it deemed it unnecessary to examine the substantive right. From a complementary right, Article 14 is gradually becoming a substantial one, reflecting the paramount importance of equality and non-discrimination. Another significant development is to be found in the fact that hatred is now entering the field of Article 2 of the Convention, guaranteeing the right to life, under the procedural aspect of this provision.16 It means that if the criminal justice system overlooks the bias motivation behind a crime, this could amount to a violation of Article 14 of the Convention if all reasonable steps to unmask any racist motive have not been pursued.17 In the M.C. and A.L. v Romania judgment of 12 April 2016, the Court extended this case law, finding a violation of Article 14 in conjunction with Article 3 of the Convention on account of the failure of the authorities to take into account possible discriminatory motives in the investigation of homophobic attacks.18 In the Bayev and Others v Russia case of 20 June 2017, the Court issued a particularly strong-worded judgment concerning gay propaganda law in violation of Article 10 and Article 14 of the Convention.19 For its part, concerning hate speech and racist discourse,20 the Court relies either on the broader approach of exclusion from the protection of the Convention provided for by Article 1721 – “justice does not require that men must stand idly by while others destroy the basis of their existence”22 – or on the narrower approach of restrictions on protection provided for by Article 10 § 2 of the Convention.23

15 ECHR, Balazs v Hungary judgment of 20 October 2016. 16 ECtHR (GC), Natchova and Others v Bulgaria judgment of 6 July 2005, §§ 160–161. See also, concerning Article 3 of the Convention, ECtHR, Turan Cakir v Belgium judgment of 10 March 2009; ECtHR, Škorjanec v Croatia judgment of 28 March 2017 (raciallymotivated violence). 17 ECtHR, Bekos and Koutropoulos v Greece judgment of 13 December 2005, § 69. 18 ECtHR, M.C. and A.L. v Romania judgment of 12 April 2016. 19 ECtHR, Bayev and Others v Russia judgment of 20 June 2017. See P. Cannoot, “ECtHR Finds Russia’s Gay Propaganda Law Discriminatory in Strong-Worded Judgment”, Strasbourg Observers [on line], 11 July 2017. 20 M. Oetheimer, “La Cour européenne des droits de l’homme face au discours de haine”, Rev. trim. dr. h., 2007, p. 63 et seq.; A. Weber, Manual on Hate Speech, Strasbourg, Council of Europe Publishing, 2009, p. 23 et seq.; Fr. Tulkens, “When to Say is to Do. Freedom of Expression and Hate Speech in the Case-Law of the European Court of Human Rights”, in J. Casadevall, E. Myjer, M. O’Boyle and A. Austin, Freedom of Expression. Essays in Honour of Nicolas Bratza, Oisterwijk, Wolf Legal Publishers, 2012, p. 279 et seq. 21 ECtHR, M’Bala M’Bala v France, decision of 20 October 2015 (expression of hatred and anti-Semitism and Holocaust denial); ECtHR, Belkacem v Belgium, decision of 27 June 2017 (remarks made in YouTube videos and incitement to hatred). 22 J. Rawls, A Theory of Justice, Oxford, Oxford University Press, 1971, p. 218. 23 ECtHR, Vejdeland and Others v Sweden, judgment of 9 February 2012 (distribution of homophobic leaflets in a school).

Combatting hatred, xenophobia and racism

147

European Union The Charter on Fundamental Rights of the European Union is “the backbone of FRA activities”. Article 21 of the Charter on non-discrimination is crystal clear and contains an open list of grounds: 1. Any discrimination based on any ground such as sex, 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 shall be prohibited. 2. Within the scope of application of the Treaties and without prejudice to any of their specific provisions, any discrimination on grounds of nationality shall be prohibited. Article 22 introduces the obligation to respect cultural, religious and linguistic diversity, while Article 23 concerns gender equality. Furthermore, Article 10 of the Treaty on the Functioning of the European Union (TFEU) of 1 December 2009 requires the European Union to combat discrimination based on sex, racial or ethnic origin, religion or belief, disability, age or sexual orientation when defining and implementing its policies and activities. As far as the legislation is concerned, the European Union expresses a vigorous commitment to counter hatred, racism and xenophobia. The Council Framework Decision of 28 November 2008 on combating certain forms and expressions of racism and xenophobia by means of criminal law (Framework Decision on Racism and Xenophobia) is the main instrument.24 It does oblige all EU Member States to provide for criminal sanctions in relation to incitement to violence or hatred based on race, colour, descent, religion or belief, national or ethnic origin, as well as dissemination of racist or xenophobic material and condonation, denial or trivialization of genocide, war crimes and crimes against humanity directed against such groups. Member States are also obliged to consider racist or xenophobic intent as an aggravating circumstance. Recital (1) of the Framework Decision recalls that “racism and xenophobia are direct violations of the principle of liberty, democracy, respect for human rights and the rule of law, principles upon which the European Union is founded and which are common to the Member States”. In this Framework Decision there are also very clear guidelines concerning hate speech. Moreover, EU’s victims and anti-discrimination legislations are also of particular relevance. The Directive of the European Parliament and of the Council of 25 October 2012 establishing minimum standards on the rights, support and protection of victims of crime (Victims’ Rights Directive) includes the grounds of sexual orientation, gender identity and gender expression when recognizing the rights of victims,

24 Council Framework Decision 2008/913/JHA of 28 November 2008 on Combating Certain Forms and Expressions of Racism and Xenophobia by Means of Criminal Law.

148

Françoise Tulkens

helping to ensure that victims of crime receive appropriate information, support and protection, and are able to participate in criminal proceedings. In relation to hate crime, it is important that the Victims Directive considers victims of hate crime a special category (particular vulnerability, risk of repeated victimization) that deserve special needs assessment and special protection and support measures. The Council Directive of 29 June 2000 implementing the principle of equal treatment between persons irrespective of racial or ethnic origin (Racial Equality Directive) is followed by the Council Directive of 27 November 2000 establishing a general framework for equal treatment in employment and occupation (Employment Equality Directive), the Council Directive of 13 December 2004 implementing the principle of equal treatment between men and women in the access to and supply of goods and services (Goods and Services Directive) and the Gender Equality Directive of 5 July 2006. In all these Equality Directives, there are some specific provisions on harassment when unwanted conduct related to a protected group takes place, with the purpose or effect of violating the dignity of the person and/or creating an intimidating, hostile, degrading, humiliating or offensive environment.25 Finally, there is an important European Parliament Resolution of 14 March 2013 on strengthening the fight against racism, xenophobia and hate crime. This kind of political commitment statement must be taken seriously.

Organization for Security and Co-operation in Europe On the European level, it is also important to recall that the Organization for Security and Co-Operation in Europe (OSCE), to which all the 28 EU Member States belong, has declared its commitment to combatting hate crimes on several occasions. It also set up the Office for Democratic Institutions and Human Rights (ODIHR) that has the role to assist States and support their efforts to combat hate crimes and incidents of racism, anti-Semitism, and other forms of intolerance, including against Muslims.26 It is of course indispensable to take on board all the active forces and to find the best way of cooperation. Lastly, in a globalized world, the UN level cannot be neglected. The International Covenant on Civil and Political Rights (ICCPR) adopted by the UN General Assembly in 1966 prohibits “any advocacy of national, racial or religious hatred that constitutes incitement to discrimination, hostility or violence”. Moreover, the landmark UN Convention on the Elimination of All Forms of Racial Discrimination (CERD) of 7 March 1966 requires State Parties to outlaw hate speech27 and criminalize membership in racist organizations. This Convention

25 See, for instance, CJEU, Case C-303/06, S. Coleman v Attridge Law and Steve Law, judgment of 17 July 2008, concerning harassment of the mother of a disabled child, which, moreover, recognizes discrimination by association. 26 See OSCE (ODIHR), Hate Crime Laws, Warsaw, 2009. 27 See CERD Committee, General Recommendation No. 35 on Combating Racist Hate Speech, 26 September 2013, which moves away from a traditional criminalization of hate speech.

Combatting hatred, xenophobia and racism

149

has been ratified by the European Union, which means that its provisions are an integrated part of the Union’s legal order. Article 4 provides that dissemination of ideas based on racial superiority or hatred, incitement to racial discrimination, as well as all acts of violence or incitement to such acts against any race or group of persons of another colour or ethnic origin must be declared an offence punishable by law. Of course, like within the European Union, reliance only on criminal law can be discussed since, as we all know, this choice is faced with substantial difficulties and could be more an illusory means than an effective one. All States should prioritize the issue of prevention, which includes persuasion. In this sense, prevention should be inherent to prohibition. The UN Convention on the Rights of Persons with Disabilities of 13 December 2006 is also highly relevant. A (provisional) conclusion on this point. To tackle hatred, xenophobia and racism we benefit today from a strong legal framework, which is remarkable. So there is a corollary strong political obligation to implement it. However, at the same time, it is important to accept that to counter these situations is a complex and multidimensional task in which many actors are involved (parliamentarians, journalists, media actors and media institutions, law-makers, political leaders, civil society, teachers, academics, etc.). The main objective is to create an environment favourable to pluralism and democracy. So, before passing laws and imposing sanctions, or in addition to them, education and culture are of first and paramount importance to generate a long-term action.

The role of the EU Fundamental Rights Agency Against this background, it was therefore inevitable – and indispensable – that from 2007 onwards and persistently over the past ten years, hatred, racism and xenophobia attracted an intense and extensive attention of the Fundamental Rights Agency.28 Through the work it has deployed and achieved, FRA positions itself in two main directions, which can, in a nutshell, be identified by two words: awareness and actions.

Awareness-raising There is obviously in this field a real deficit of awareness and, therefore, of knowledge and acknowledgement. On the one hand, by their very nature, hatred, racism and xenophobia are most of the time hidden states of mind or attitudes and constitute disguised discriminations. On the other hand, very often, the victims are unaware of the possibility to report to law-enforcement agencies and, in particular, the criminal justice system, or are unwilling to do it

28 It is significant that each year a full chapter of FRA’s Fundamental Rights Report is devoted to racism, xenophobia and related intolerance. It is particularly interesting to follow year after year the evolution of hatred, xenophobia and racism (for instance, in 2010, fuelled by the asylum crisis in Europe).

150

Françoise Tulkens

for various reasons, including lack of confidence and trust, fear and shame. It should also be said that too often law-enforcement officials lack the tools to recognise hate crime when the victim is reporting, and that too often the police systems do not enable the recording of the bias behind the crime on the file. In other words, victims are not encouraged and supported to report and recording criminal justice systems are not effective in capturing hate crimes.29 It follows that the judicial evidence is faced with substantial difficulties to “unmask” the motivation behind racist crimes, which explains why some accommodations or adjustments have to be found at national and European levels. For instance, when a discrimination is seriously alleged (an arguable claim), the principle of the sharing or the shift of the burden of proof is recognized in all EU Equality Directives. The use of statistics is also a very useful tool accepted, under certain conditions, by the European Court of Human Rights as well as by the European Court of Justice.30 But the substantial effect of lack of awareness is more important than the legal one. If the reality of hatred, racism and xenophobia is not known, in its variety of dimensions and expressions, it is almost impossible to tackle these issues, to prevent and to react to them and, at the end, to have a serious hope to change the culture of intolerance. Indeed, as usual, “what is unknown is unwanted”. Yet, it is widely admitted today that there is almost no reliable and comparable data on the protection and the exercise of fundamental rights in this field. Empirical evidence and research are absolutely necessary for building a serious-oriented approach. In this respect, the numerous surveys established by FRA are very “precious assets”, in the sense that they offer to policy-makers within the EU and Member States a solid foundation on which to take evidence-based decisions. Here we can observe, in concreto, the originality of the FRA approach to fundamental rights “which creatively blends together social science and law”.31 The survey on discrimination and hate crimes against Jews in eight Member States (Belgium, France, Germany, Hungary, Italy, Latvia, Sweden and the United Kingdom), where 90% of the Jewish population are living, collected data allowing for a comprehensive analysis of the lived experiences (expériences vécues) of anti-Semitism and its effects on everyday life.32 This survey includes

29 See FRA, Hate Crime Recording and Data Collection Practice across the EU, Luxembourg, Publications Office of the European Union, 2018. 30 See ECtHR (GC), D.H. and Others v the Czech Republic judgment of 17 November 2007, § 188 (placement of Roma children in special schools); ECtHR, Abdu v Bulgaria judgment of 11 March 2014 (racially motivated violent assault); CJEU, Case C-54/07, Centrum voor Gelijkheid van Kansen en voor Racismebestrijding v Firma Feryn NV, judgment of 10 July 2008. 31 Cf. this book, Chapter 7, H. Entzinger and G. Quinn, “FRA as a Meeting Place of Law and Social Sciences”. 32 FRA, Discrimination and Hate Crime against Jews in EU Member States: Experiences and Perceptions of Antisemitism, Luxembourg, Publications Office, 2013. The results of the second survey are supposed to be published on 10 December 2018.

Combatting hatred, xenophobia and racism

151

perceptions of the extent to which anti-Semitism is widespread in the public sphere; the perceived threat of becoming victims of anti-Semitic attacks; experiences of crimes motivated by anti-Semitism, such as vandalism, physical assault or threats; experiences of specific forms of harassment, for example through the use of emails, text messages or the internet and social media; and the reporting of anti-Semitic incidents to the police or any other organization and, in cases of non-reporting, the reasons for this. This study is based on an internet survey with some 5,800 respondents. This survey provided information to assess the effectiveness of the protection afforded by the 2000 Racial Equality Directive. The FRA survey on discrimination and victimization of lesbian, gay, bisexual and transgender (LGBT) persons in EU Member States provides evidence on a range of issues, including homophobic and transphobic crime and speech.33 The survey presents data on reporting and non-reporting of incidents (and reasons for non-reporting), levels of confidence in the authorities, behaviour of public servants and types of perpetrators. This study is based on an internet survey with some 93,000 respondents. It is further interesting to note that this survey has also documented political hate speech: 44% of respondents said that offensive language by politicians about LGBT people is widespread and this causes damage not only to individuals but also to entire groups. It is a reality that deserves more and more attention. This gives echo to the 2007 Bączkowski and Others v Poland judgment of the European Court of Human Rights concerning a mayor’s public homophobic statements.34 In this context, two additional FRA reports deserve attention. First, following European Parliament requests for comprehensive research on homophobia and discrimination on the ground of sexual orientation, FRA provided regular reports on these subject matters and updated its comparatist legal analysis in 2015.35 Second, the European Commission and several Council of Europe bodies have supported policy-driven research on transgender persons. More specifically, through its Recommendation CM/Rec(2010)5 to Member States on measures to combat discrimination on grounds of sexual orientation or gender identity, the Council of Europe’s Committee of Ministers stressed the need to collect and analyze relevant data to monitor and redress any direct or indirect discrimination on the grounds of gender identity. In 2010, Equinet, the European network of equality bodies, published a report on the work of equality bodies in promoting equality for, and combating discrimination against, trans

33 FRA, EU LGBT Survey. European Union Lesbian, Gay, Bisexual and Transgender Survey. Results at a Glance, Luxembourg, Publications Office of the European Union, 2013. The survey will be repeated in 2019. See also FRA, Second European Union Minorities and Discrimination Survey – Questionnaire 2016, EU-MIDIS II, Luxembourg, Publications Office of the European Union, 2017. 34 ECtHR, Bączkowski and Others v Poland judgment of 3 May 2007. 35 FRA, Protection against Discrimination on Grounds of Sexual Orientation, Gender Identity and Sex Characteristics in the EU – Comparative Legal Analysis – Update 2015, Luxembourg, Publications Office of the European Union, 2015.

152

Françoise Tulkens

people at EU Member State level. FRA responded by including trans persons in its EU-wide LGBT survey, which for the first time provided EU-wide comparable data on the actual living conditions of trans people and the respect of their fundamental rights.36 In addition, FRA provided in 2014 a specific report, Being Trans in the European Union, which revealed the daily life of trans persons in the EU.37 The survey analyzed the responses of 6,579 self-declared trans – an umbrella term encompassing all those who identify with a different gender and/or express their gender identity differently from the one they were assigned at birth. Another FRA survey conducted in 2011–2012 concerns gender-based violence against women in the EU.38 On the basis of a representative sample of more than 42,000 women interviewed on their experiences of physical, sexual and psychological violence, it will allow an assessment of levels, forms and contexts of victimization, as well as the extent to which women report incidents of violence to the police and, where relevant, the reasons for non-reporting. The results are relevant because they show the extent of gender-based violence experienced by women, i.e., crimes that disproportionately affect women, such as sexual assault, rape and intimate partner violence, and which are predominantly perpetrated by men.39 This survey can further support other FRA surveys that have highlighted issues such as trust in the police and non-reporting of particular crimes. Finally, some suggestions for FRA activities. Since the different forms, contents or targets of hatred are evolving and changing, for instance recently moving from a focus on race and ethnicity to LGBT40 and disabled persons,41 it would be very useful to conduct surveys on these categories of vulnerable people. Furthermore, it becomes more and more obvious that persons with different backgrounds often face multiple or intersectional discrimination (ethnic origin, sexual orientation, etc.). This reality also deserves an in-depth analysis. Under EU law, the only mention of multiple discrimination at present can be found in recitals to the Racial Equality Directive and the Employment Equality Directive stating merely that “women are often the victims of multiple discrimination”. By contrast, in international law, intersectionality is recognized by the Committee on the Elimination of Discrimination against Women (CEDAW)

36 Cf. supra. 37 FRA, Being Trans in the European Union – Comparative Analysis of EU LGBT Survey Data, Luxembourg, Publications Office of the European Union, 2014. 38 See FRA, Violence Against Women: An EU-Wide Survey – Main Results, Luxembourg, Publications Office of the European Union, 2014. 39 See also, on women’s rights, discrimination and violence: FRA, Challenges to Women’s Human Rights in the EU: Gender Discrimination, Sexist Hate Speech and Gender-Based Violence against Women and Girls, Luxembourg, Publications Office, 2017. 40 See ECtHR, Identoba and Others v Georgia, judgment of 12 May 2015 concerning homophobic attacks against the participants to a peaceful assembly of LGBT associations. 41 See ECtHR, Đorđević v Croatia, judgment of 24 July 2012 concerning acts of harassment and violence directed against a mentally and physically disabled man and his mother.

Combatting hatred, xenophobia and racism

153

which stated that “States Parties must legally recognize and prohibit such intersecting forms of discrimination and their compounded negative impact on the women concerned”.42

Incentive for actions Following the same interdisciplinary approach joining social sciences and legal analysis, FRA focusses its results-oriented activities mainly into two operational areas: the position and the rights of the victims and the access to lawenforcement agencies, including the criminal justice system. “Giving victims a face and a voice”. This subtitle of the FRA Conference in 2013 was exactly to the point.43 In the field of hatred, racism and xenophobia, it is obvious that EU action could and should improve the situation of victims. Having in mind that official statistics are incomplete and probably inaccurate because of a large “dark figure” of offences which are not reported, collecting information from the victims themselves became a useful method from the mid-1960s. It is in the United States that, in 1967, on the initiative of the President’s Commission on Law Enforcement and Administration of Justice (Katzenbach Commission), the first national victimization survey was conducted.44 It was followed by many others, among which, in particular, one survey conducted in Great Britain and published in 1984,45 one conducted in France and published in 199046 and one international comparative survey conducted in 14 countries, also published in 1990.47 With excellent expertise in victimology, FRA has recourse very often to crime victimization surveys to shed light on the nature and extent of non-reported crimes, the reasons for non-reporting and the experiences of victims with law enforcement. In 2010 and 2012, FRA conducted the first EU Minorities Discrimination (EU-MIDIS) large-scale survey on immigrant and ethnic minority groups about

42 CEDAW Committee, General Recommendation No. 28 on the Core Obligations of States Parties under Article 2 of the Convention on the Elimination of All Forms of Discrimination against Women, 16 December 2010, § 18. 43 Fundamental Rights Conference 2013, Combating Hate Crime in the EU – Giving Victims a Face and a Voice, held in Vilnius, Lithuania, on 12–13 November 2013. 44 See P.H. Ennis, Criminal Victimization in the United States: A Report on a National Survey, Washington DC, US Government Printing Office, 1967. 45 See M. Hough and P. Mayhew, The British Crime Survey: First Report, London, HMSO, 1984. See also J. Goodey, “Race, Religion and Victimisation: UK and European Responses”, in S. Walklate (ed.), Handbook of Victims and Victimology, Abingdon, Routledge, 2007, p. 423 et seq. 46 See R. Zauberman et al., Les victimes – Comportements et attitudes – Enquête nationale de victimisation, Paris, CESDIP, 1990. 47 J.J.M. van Dijk et al., Experiences of Crime Across the World: Key Findings of the 1989 International Crime Survey, Deventer-Boston, Kluwer, 1990. For a detailed review of victimization surveys in Europe between 1970 and 2010, see M.F. Aebi and A. Linde, “A Review of Victimisation Surveys in Europe from 1970 to 2010”, in J.J.M. van Dijk et al. (eds), Final Report on the Study on Crime Victimisation, Tilburg, Intervict/PrismaPrint, 2010, pp. D1 et seq.

154

Françoise Tulkens

their experiences of discrimination and criminal victimization in everyday life, by interviewing random samples of members of immigrant and ethnic minority groups in the then 27 EU Member States.48 This survey, which was repeated in 2016, examined the rates of criminal victimization with respect to those respondents who perceived that this was due to bias motivation. It also analyzed people’s experiences when reporting this kind of crime and their awareness of the rights they hold when attempting to engage with police. This survey shows that “sizeable proportions of members of minority and immigrant groups in the EU perceive themselves to be the victims of ‘racially motivated’ criminal victimisation. Most of these did not report the crimes of which they were victims to any organisation, institution or body. The two most commonly cited reasons for not reporting crimes were a lack of confidence in the police being able to do anything about them and the perception that incidents were too trivial to be worth reporting”.49 In its report Making Hate Crime Visible in the European Union: Acknowledging Victims’ Rights, FRA enquired into current models and mechanisms of data collection by law-enforcement agencies, criminal justice systems and relevant state ministries, their merits and flaws.50 The report also aims to clarify basic concepts and the terminology used for drafting hate crime legislation and policies. What is really interesting in this report are the opinions formulated by FRA going into the gist of the problem: acknowledging victims of hate crime; ensuring effective investigation and protection; convicting hate crime offenders; making hate crime visible. Here, as in many other reports, the unresolved question is the impact/effect of these opinions or recommendations on EU institutions and Member States. In order to evaluate and assess the efficiency of FRA opinions and recommendations, it is urgent that an in-depth study be conducted on this point. In June 2013, at the request of the Council of the European Union Working Party on Fundamental Rights, Citizens Rights and Free Movement of Persons (FREMP), FRA was asked to deliver an opinion on fundamental rights associated with victims of crime in the context of the review of the Framework Decision on Racism and Xenophobia. In a comprehensive document 25 specific and concrete actions were proposed, applying the Directive of the European Parliament and the Council of 25 October 2012 establishing minimum standards on the rights, support and protection of victims of crime.51 This Opinion constitutes a real roadmap for EU Member States concerning the protection of victims of hatred,

48 FRA, EU-MIDIS Data in Focus 6: Minorities as Victims of Crime, Luxembourg, Publications Office of the European Union, 2012. 49 FRA, Making Hate Crime Visible in the European Union: Acknowledging Victims’ Rights, Luxembourg, Publications Office of the European Union, 2012, p. 46. See also the recently updated report: FRA, Hate Crime Recording and Data Collection Practice across the EU, Luxembourg, Publications Office of the European Union, 2018. 50 Ibid. 51 Opinion of the European Agency for Fundamental Rights on the Framework Decision on Racism and Xenophobia – With Special Attention to the Rights of Victims of Crime, FRA Opinion 02/2013, Vienna, 15 October 2013.

Combatting hatred, xenophobia and racism

155

xenophobia and anti-Semitism which covers the most urgent and indispensable measures, such as to unmask bias motivations and support reporting, to protect victims against secondary victimization and intimidation, to use the media services to encourage information, to safeguard democratic institutions against extremist groups, to make public data on hate crime and tackle them systematically.

Access to justice Let us start with this observation which shows the gap between the law and the reality. Article 8 of the Framework Decision on Racism and Xenophobia states that investigation into or prosecution of crimes shall not depend upon victims’ report or accusation. In law, this provision is in line with the acknowledgement of the vulnerable position of the victim in the criminal justice system. In fact, unless victims are encouraged to report crimes and are assisted in court proceedings, no investigation is taking place. It means, as J. Goodey rightly observes, that even the most comprehensive legislation does not guarantee effective implementation.52 The message is clear: court proceedings should be organized according also with the rights and the needs of victims. FRA deployed an intense activity for improving reporting and recording hate crime through various initiatives, including working parties and seminars.53 The underlying idea seems to address what is called secondary victimization, consisting in the fact that, too often, victims in criminal cases (primary victimization) have the feeling of becoming victimized a second time (secondary victimization) because of the attitude among the police and justice services and the way in which they are treated by them.54 In this respect, the 2016 Report Ensuring Justice for Hate Crime Victims: Professional Perspective55 is particularly relevant concerning the added value of FRA activities, i.e., to translate theoretical and empirical research into means/tools for action for the stakeholders. This report aims to contribute to the implementation of the Framework Decision on Racism and Xenophobia and relevant provisions of the Victim’s Rights Directive and its Article 22 which refers to victims of crimes committed with a bias or discriminatory motive.

52 J. Goodey, “Racist Crime in the European Union: Historical Legacies, Knowledge Gaps, and Policy Development”, in J. Goodey and J. Aromaa (eds), Hate Crime: Papers from the 2006 and 2007 Stockholm Criminology Symposiums, Helsinki, European Institute for Crime Prevention and Control, 2008. 53 See FRA, Working Party Improving Reporting and Recording of Hate Crime in the EU, November 2014; FRA Hate Crime internet page. The Working Party ceased to exist in 2016. It was replaced by the Subgroup on Methodologies on Recording and Data Collection on Hate Crime. 54 J. Shapland, J. Willmore and P. Duff, Victims in the Criminal Justice System, Gower, Aldershot-Brookfield, 1985. 55 FRA, Ensuring Justice for Hate Crime, Victims: Professional Perspective, Luxembourg, Publications Office of the European Union, 2016.

156

Françoise Tulkens

“Contextualizing” within FRA previous activities in the field, this report “both focuses on victims of hate crime and presents voices from within institutions that represent the entire criminal justice system: criminal courts, public prosecutors, police officers, as well as non-governmental organisations (NGOs) supporting hate crime victims. In total, 263 interviews were carried out in all EU Member States between the second half of 2013 and early 2014. Offering insights into the reporting and recording of hate crimes from the perspective of professionals, this report analyses the specific factors that affect how and why hate crime victims do or do not seek justice and how and why victims’ efforts to be acknowledged as victims of severe discrimination ultimately are – or are not – successful”.56 Against this background, the report delivered ten opinions proposing specific avenues of actions to implement the following recommendations: ensuring a more comprehensive and coordinated approach to establishing support services for hate crime victims; reaching out to victims and encouraging them to report; introducing specific hate crime offences into criminal law; introducing thirdparty reporting as a means of overcoming underreporting; evaluating all measures aiming to enhance the reporting and recording of hate crime; ensuring that bias motives are not overlooked when assessing victims’ protection needs (Art. 22 § 3 of the Victim’s Rights Directive); raising awareness of professionals (police, prosecutors and judges) through comprehensive training on hate crime; acknowledging the institutional aspects of discrimination; taking hate speech seriously.57 The same model of analysis was pursued for LGBT people: Professionally Speaking: Challenge to Achieving Equality for LGBT People,58 which complements the 2013 survey.59 The findings of this report underline the need to look closer at the role of public officials, professionals in education, health care and law enforcement, those who are the “frontline-officers” that are in daily contact with people, including LGBT persons.60 The key findings accompanied by FRA opinions converge on the urgent necessity to raising awareness and strengthening the capacity of those actors.61 It is obvious that understanding the obstacles to victims’ access to justice could allow EU institutions and Member States to adopt targeted measures that facilitate such access and make victims’ fundamental rights a reality. But, at the same time, the return of the victim and the place accorded to it in criminal

56 Ibid., p. 7. 57 Ibid., pp. 7–11. 58 FRA, Professionally Speaking: Challenge to Achieving Equality for LGBT People, Luxembourg, Publications Office of the European Union, 2015. 59 Cf. supra, § 22. 60 M. O’Flaherty, “Foreword”, in FRA (ed.), Professionally Speaking: Challenge to Achieving Equality for LGBT People, op. cit., p. 3. 61 FRA, Professionally Speaking: Challenge to Achieving Equality for LGBT People, op. cit., pp. 9–15.

Combatting hatred, xenophobia and racism

157

proceedings should inspire and trigger efforts to find alternative measures to the criminal justice system,62 such as, for example, restitutive and restorative justice.63 In this direction also, FRA could launch some research and surveys concerning the effectiveness of the penalty and sanctions.

Conclusion Hatred, racism and xenophobia not only persist but are also developing across the European Union. Given the “regrettable paucity of official figures” in this field,64 the collected data provided by FRA for a number of years is a mine of information. One of the more striking results is that, “however much people differ in ethnic background, beliefs, lifestyle and nationality, they are clearly affected by the fear of such offences: fear of being regarded as belonging to a certain group; fear that what has happened once will happen again; and fear that family members and friends may suffer as well”.65 If, according to the political philosopher T. Hobbes, the role of the State is to bring an end to fear, authorities within Europe must assume their role as peacemakers. After more than a decade of existence, the critical question is still the same. What is the impact of FRA observations and analyses in EU institutions (Commission, Council, Parliament), Member States, the Council of Europe, UN bodies, NGOs? How do they use this FRA unique material? How are they influenced by FRA reports and opinions? In the field at hand, hatred, racism and xenophobia, so far there is no valid assessment of these points. If there is one priority and an urgency for the next ten years, that is to launch an in-depth analysis on the evaluation of FRA activities along these lines. Finally, it should be recalled that FRA is an agency of the European Union focussed on fundamental rights. The institutional constraints can sometimes explain the relatively (too) soft opinions or recommendations. FRA is today recognized as a centre of excellence and its expertise is generally acknowledged. Therefore, the time is now ripe for FRA to be more audacious and to act as a watchdog for the protection and realization of fundamental rights in Europe.

62 See supra, § 15. 63 See, among many others, G. Johnstone, Restorative Justice: Ideas, Values, Debates, Abingdon, Routledge, 2nd edition, 2011. 64 I.N. Dimitrakopoulos, “Hate Crime in the European Union, Committee on Civil Liberties, Justice and Home Affairs”, speech at a meeting of the Civil Liberties, Justice and Home Affairs Committee of the European Parliament (LIBE) on the issue of hate crime, 23 January 2014. 65 Ibid.

11 Promoting equality FRA’s work on Roma José Manuel Fresno and Johanna Niemi

Introduction Roma inclusion has been an essential part of the FRA’s work programme from the beginning. The Roma population constitutes one of the largest ethnic minorities in Europe today, spread throughout the European continent, living in all countries, but highly concentrated in Central and Eastern Europe. In the EU Member States such as Romania, Bulgaria, Slovakia and Hungary, the Roma may represent between 7% and 10% of the population. Large Roma communities live also in candidate and potential candidate countries such as Turkey and Serbia, while in others such as the Former Yugoslav Republic of Macedonia or Albania they represent an important proportion of the total population. In Western Europe, the largest Roma population is in Spain and large Roma communities live in France and the UK. Besides the Roma themselves, the term Roma also covers groups that identify as Gypsy, Travellers, Sinti, Manush, Egyptians, Ashkalia and Kale; they may have linguistically or ethnically shared heritage; most of them have a history as travellers and they all share a history of marginalization, discrimination and exclusion. In this chapter we use the term Roma to cover all these groups. Discrimination against the Roma has historical roots and is well known, even if poorly documented. Historically, the Roma were excluded from the local communities, forcing them into a travelling way of life and creating cultural patterns that were compatible with this lifestyle.1 In other cases, integration policies forced them to renounce their culture and identity. In the Holocaust, the Roma suffered perhaps more than any other group but their history is far less known than that of the Jews.2 Today almost all Roma are sedentary but a high proportion of Roma experience extreme

1 Jean-Pierre Liégeois and Nicolae Gheorghe, Roma/Gypsies: A European Minority (London: European Minority Rights Group International, 1995), 8. 2 János Barsony and Ágnes Daroczi, eds, Pharrajimos: The Fate of the Roma during the Holocaust (New York: IDEA, 2008).

Promoting equality

159

poverty and social exclusion. The Roma remain the most marginalized ethnic group in Europe, facing discrimination and deep social problems related to low levels of education, high unemployment, inadequate housing and poor health.3 Discrimination against the Roma challenges European Union antidiscrimination law4 because it is persistent, structural and extends to all fields of life. The discrimination is embedded in the social structures, both in the practices of the social institutions, including education and public authorities, and in the actions and attitudes of the civil society. European antidiscrimination legislation has traditionally taken an individual-centred viewpoint of discrimination, which is not easily stretched to reach systemic or structural issues of discrimination.3 However, European human rights mechanisms have recognized the importance of improving the situation of Roma, now conceptualized as an integration challenge requiring active inclusion measures. The rights of the Roma were first valorized within the broader European human rights field, starting with the Council of Europe and its European Commission against Racism and Intolerance (ECRI). During the last decade the European Union has integrated the inclusion of Roma into its strategic policies and programmes.5 The issue has garnered the attention and support of a broader web of organizations including the Open Society Foundations, the World Bank and several NGOs. Together they helped to inaugurate the Decade for Roma Inclusion (2005–2015), which covered 12 European countries and strengthened cooperation between international organizations, governments and the Roma organizations.6 FRA has facilitated this process and provided the EU institutions with empirical evidence. The FRA has also participated in the process of monitoring the implementation of national policies and developing indicators. From the beginning, FRA has taken a comprehensive approach to the rights of the Roma, including analysis of discrimination, hate crime and access to social rights and inclusion in education, employment, health and housing. In this chapter we follow and discuss the process.

3 The evidence is most recently reported in FRA (2018) A Persisting Concern: Anti-Gypsyism as a Barrier to Roma Inclusion, available at: https://fra.europa.eu/en/publication/2018/romainclusion. 4 The second section of this chapter briefly discusses EU anti-discrimination law. 5 As the key documents, see European Commission (2011), An EU Framework for National Roma Integration Strategies up to 2020, COM(2011) 173 final (NRIS; EU Framework 2011), http://ec.europa.eu/justice/policies/discrimination/docs/com_2011_173_en.pdf; and the Council Recommendation (2013) on effective Roma integration measures in the Member States (Council Recommendation 2013). 6 For more information on the Roma Decade, see: www.romadecade.org/.

160

José Manuel Fresno and Johanna Niemi

The international processes on Roma rights The Council of Europe The Council of Europe has addressed Roma issues for 50 years: starting with the Parliamentary Assembly in 1969.7 The human rights and equality perspective has been strengthened by two treaties for the protection of national minorities,8 as well as through the actions of the Commissioner for Human Rights and the ECRI country reports.9 There has been a consistent pattern of actions and declarations over the years.10 Now, the Roma inclusion policies are supported in cooperation with the European Commission. For example, ROMED is a training programme for Roma mediators and JUSTROM promotes access to justice for Roma and traveller women.11 In addition, the EU and CoE promote good governance and Roma empowerment in Western Balkans and Turkey.12 The European Court of Human Rights has taken up several cases of discrimination against Roma concerning criminal procedures,13 health14 and family.15 In a series of cases in the early 2000s on the eviction of Roma settlements and traveller families, the ECtHRs was divided on the issue, but later the Court found a violation of the ECHR in a group of cases.16 As the Court acknowledged, the major limitation of the ECHR was that it does not include a right

7 Jean-Pierre Liégeois, Le Conseil de L’Europe et les Roms: 40 ans d’action (Strasbourg: Council of Europe, 2010). 8 The European Charter for Regional or Minority Languages 1992; Framework Convention for the Protection of National Minorities 1995. 9 European Commission against Racism and Intolerance (ECRI) website: www.coe.int/t/ dghl/monitoring/ecri/default_en.asp. 10 Council of Europe (2010), The Strasbourg Declaration on Roma. Council of Europe High Level Meeting on Roma, Strasbourg, CM(2010)133 final. Available at: www.coe.int/t/dc/ files/source/2010_cm_roma_final_en.doc. 11 For more information on ROMED see the website: http://romed.coe-romact.org/. 12 For more information on ROMACT see: http://coe-romact.org and https://pjp-eu.coe. int/en/web/roma-local-governance. 13 Paraskeva Todorova v Bulgaria 2010; Moldovan and others v Romania 2005. In Nachova and others v Bulgaria 2005, a racist comment by a police officer when pursuing and killing a suspect did not amount to a violation of the Convention. Violation was found, however, in how the investigation was conducted. 14 V.C. v Slovakia 2011 concerning sterilization; Centre of Legal Resources on behalf of Valentin Câmpeanu v Romania 2014. 15 In Muñoz Diaz v Spain 2009 discrimination was found when a widow from a traditional Roma marriage was excluded from a pension benefit. 16 No violation in Buckley v UK 1996; Chapman v UK 2001; Beard v UK 2001; Coster v UK 2001; Smith v UK 2001; Lee v UK 2001. Violation of the ECHR was found in Connors v UK 2004, Yordanova and others v Bulgaria 2012 and Winterstein and others v France 2013. In detail see Lilla Farkas, The Meaning of Racial or Ethnic Origin in EU Law: Between Stereotypes and Identities (European Commission, European Network of Legal Experts in Gender Equality and Non-Discriminantion, 2017).

Promoting equality

161

to housing. The Court had to operate with the right to privacy. In contrast, the right to education has been part of the European human rights regime since the first protocol to the ECHR in 1952. Thus, the ECtHR has found discrimination in the segregation of Roma children in basic education.17 The main legal venue for Roma rights, however, has been the European Social Committee, which has in a row of decisions found violations of the European Social Charter in particular regarding the right to housing.18 In the Charter system, in which the state parties can choose which rights they consider as binding, Article 31 on right to housing is not one of the mandatory articles. In conclusion, the Council of Europe policy agenda has advanced Roma rights throughout the decades, and though cooperation with NGOs and the EU the rights of the Roma have become part of the legal arena as well. The legal approach in the ECtHR has not been very effective.19 It takes years and considerable resources to process a case first through the national courts and then in the ECtHR. When the parties and NGOs have made the effort and gone through the legal processes, the focus on the civil and political rights has been a limitation to effective protection against discrimination of the Roma people.

The European Union The principle of non-discrimination has evolved in the European Union law since the founding of the European Community in the 1950s. The European Court of Justice actively interpreted the principle of non-discrimination based on nationality and sex as part of the free movement in the internal market. As a general principle, the equality provision in the treaties was broadened and deepened at the turn of the century as the Treaty of Amsterdam in 1997 widened the scope of EU law to cover discrimination on the grounds of racial and ethnic origin, religion or belief, disability, age and sexual orientation.20 The

17 D.H. and others v the Czech Republic 2007; Oršuš and others v Croatia 2010; Horváth and Kiss v Hungary 2013. In Lavida et autres c. Grèce 2013 segregation of Roma children was found to violate the Convention. Restrictions in access to school on the basis of problems with administrative documents was also found to violate the convention in Sampanis v Greece 2008. See also Lilla Farkas, Report on Discrimination of Roma Children in Education (European Commission, 2014). 18 Médecins du Monde International v France 2012; Centre on Housing Rights and Evictions (COHRE) v Italy 2010. 19 Farkas, The Meaning of Racial or Ethnic Origin in EU Law: Between Stereotypes and Identities; Goodwin Morag, “Multidimensional Exclusion: Viewing Romani Marginalisation through the Nexus of Race and Poverty,” in European Union Non-Discrimination Law: Comparative Perspectives on Multidimensional Equality Law, eds Dagmar Schiek and Victoria Chege (London: Routledge-Cavendish, 2009), 137–162. 20 Amsterdam TEU Art. 13. After the Lisbon Treaty, the prohibition is in Article 19 of the Treaty on the Functioning of the European Union (TFEU). In this chapter, we refer to the Treaty articles now in force.

162

José Manuel Fresno and Johanna Niemi

general principle of equality is confirmed in Article 2 of the Treaty of European Union (2009), including the rights of persons belonging to minorities. The Union is committed to combatting social exclusion and discrimination and promoting social justice and protection (TEU Art. 3.3). The Treaty on the Functioning of the European Union (TFEU) Article 19 confers competence on the Union to adopt legislative and other measures to combat discrimination on these new grounds. Even more important in principle, even if not strictly legally binding at the time, was the adoption of the European Charter of Fundamental Rights in 2000 in Nice. The Charter recognizes the principle of equality before the law as a general principle (Art. 20), joining the tradition of general human rights treaties and declarations as well as the constitutions of the Member States. The Charter also contains a detailed prohibition of discrimination, explicitly covering race, social origin, national minority and birth (Art. 21.1). The legal status and significance of the Charter was unclear until the Treaty of Lisbon came into force in 2009, lifting the Charter to the level of the Treaties. 21 However, the observance and application of the Charter must respect the limits of the powers of the European Union. Thus, the Member States are bound by the Charter when they implement EU law.22 Right after Treaty of Amsterdam, the European Union proceeded to adopt two directives on discrimination, the Racial Equality Directive and the Framework Employment Directive.23 The Race Directive prohibits discrimination across a broad range of fields, including housing, social protection, social advantages, access to the supply of goods and services, based on ethnicity, thus covering discrimination of Roma. The Directive has been transposed into the national anti-discrimination laws. The implementation of the Directive has been critiqued for inefficiency.24 However, in 2016 the European Court of Justice made a paramount decision on the discrimination against Roma. In that case the electricity meters were placed differently in a predominantly Roma area than in other localities and the customers were not able to check the meter. The ECJ found that the prac-

21 TEU after Lisbon Art. 6. 22 TEU Art. 6.2; CFR Art. 51,1. On the implementation of the Charter see FRA (2018) Applying the Charter of Fundamental Rights of the European Union in Law and Policymaking at National Level – Guidance. Available at: https://fra.europa.eu/en/publication/2018/ national-guidance-application-eu-charter. 23 Racial Equality Directive 2000/43/EC and Employment Equality Framework Directive 2000/78/EC. 24 See, e.g., Mark Dawson and Elise Muir, “Individual, Institutional and Collective Vigilance in Protecting Fundamental Rights in the EU: Lessons from the Roma”, Common Market Law Review 48, no. 3 (2011): 751–775.

Promoting equality

163

tice was discriminatory and violated the Race Directive, even when the applicant herself was not Roma.25 As important as this case is, the anti-discrimination law alone is not an effective tool to stop structural discrimination against Roma.26 Anti-discrimination law and its remedies, which require legal action by an individual claimant, cannot reach the systemic causes or reverse the accumulated disadvantages when the relevant discrimination and exclusion is as deep-rooted and structural as it is in the case of Roma. To tackle the legacy of discrimination, the EU policy has conceptualized the promotion of the situation of the Roma as an issue of inclusion. The European Parliament has been the most active EU institution pushing Roma inclusion forward. For the last decade, the Parliament has increased its activities with new resolutions and reports, driving for a European Roma Strategy.27 Since 2007, despite reluctance by several Member States and the difficulties associated with reaching a consensus, the European Council has explicitly referred to the Roma on several occasions.28 The Council has recognized the specific situation faced by the Roma across the Union and emphasized the need to exchange good practices,29 to develop an integrated Roma Platform and Common Basic Principles of Roma Inclusion,30 to mainstream Roma issues across different EU policies and to make better use of the Structural Funds for Roma inclusion. Recent years have also witnessed progress in the initiatives by the European Commission aimed at promoting Roma inclusion, including two Communications from

25 C-83/14 (CHEZ; Judgment 15.7.2015). The Advocate General Kokott had already in an earlier case indicated this interpretation but the case was dismissed on procedural grounds; Belov C-394/11. About the importance of this case for the anti-discrimination law see Christoffer McCrudden, “The New Architecture of EU Equality Law after CHEZ: Did the Court of Justice Reconceptualise Direct and Indirect Discrimination?” European Equality Law Review 2016(1) 1: 1–10. 26 See Isabelle Chopin, Catharina Germaine and Judith Tanczos, Roma and the Enforcement of Anti-Discrimination Law, European Commission (European Commission, European Network of Legal Experts in Gender Equality and Non-Discrimination, 2017), http://ec.europa.eu/newsroom/just/item-detail.cfm?item_id=605239. 27 See, among other documents, European Parliament (2010) European Parliament resolution of 9 September 2010 on the situation of Roma and on freedom of movement in the European Union, P7_TA(2010)0312. Available at: www.europarl.europa.eu/sides/getDoc.do? pubRef=-//EP//TEXT+TA+P7-TA-2010-0312+0+DOC+XML+V0//EN. 28 European Council (2007) Presidency Conclusions of the European Council, 14 December 2007. Available at: www.consilium.europa.eu/ueDocs/cms_Data/docs/pressData/en/ec/97669.pdf. 29 European Council (2008) Council Conclusions on Inclusion of the Roma. 2914th General Affairs Council Meeting, Brussels, 8 December 2008, 16862/08 (Press 359). Available at: www.eu-un.europa.eu/articles/en/article_8359_en.htm and http://register.consilium. europa.eu/pdf/en/08/st15/st15976-re01.en08.pdf. 30 Council of the European Union (2009) Council Conclusions on Inclusion of the Roma. 2947th Employment, Social Policy, Health and Consumer Affairs Council Meeting, Luxembourg, 8 June 2009. Available at: www.euromanet.eu/upload/21/69/EU_Council_conclusion s_on_Roma_inclusion_-_June_2009.pdf.

164

José Manuel Fresno and Johanna Niemi

the European Commission in 201031 and 201132 and a Council Recommendation on Effective Roma Integration Measures in 2013.33 The latter Communication, the EU Framework for National Roma Strategies endorsed by the EU Council of Ministers, represented a milestone in the EU’s process of promoting equality for the Roma. Its scenario up to 2020 identifies goals and priorities in the four crucial areas (education, employment, healthcare and housing) and addresses discrimination as a crosscutting issue. It highlights disadvantaged micro-regions and segregated neighbourhoods, incorporates Roma Strategies in the broader framework of the Europe 2020 Strategy consistent with National Reform Programmes, establishes a link between policies and financial instruments, claims sufficient funding from national budgets and establishes an annual monitoring system based on the Roma pilot survey34 by the FRA.35 In 2013, the European Parliament and the European Council also approved new Common Provisions on Structural and Investment Funds,36 which include the integration of marginalized communities, such as the Roma, as an investment priority. Anti-discrimination and, more specifically, de-segregation in the field of housing and education were integrated into the rules and guidelines of the European Regional Development Fund (ERDF), supporting infrastructure, and the European Social Fund (ESF) promoting educational programmes and innovation. These policies take specific note of the Roma population and prohibit programmes that enforce segregation of the Roma.37 The national governments have been engaged in the programmes through the EU Framework for National Roma Integration Strategies (NRIS) up to 2020.38 The framework obliges the Member States to adopt their strategies

31 European Commission (2010) The Social and Economic Integration of the Roma in Europe. Communication from the Commission to the Council, the European Parliament, the European Economic and Social Committee and the Committee of the Regions, COM/2010/ 0133 final, 7 April. Available at: http://eur-lex.europa.eu/LexUriServ/LexUriServ.do?uri= CELEX:52010DC0133:EN:NOT. 32 European Commission (2011) An EU Framework for National Roma Integration Strategies up to 2020, COM(2011) 173 final. 33 Council of the European Union (2013) Council Recommendation on Effective Roma Integration Measures in the Member States, Brussels, 9 and 10 December 2013. Available at: www. consilium.europa.eu/uedocs/cms_data/docs/pressdata/en/lsa/139979.pdf. 34 https://fra.europa.eu/en/project/2013/multi-annual-roma-programme/pilot-survey. 35 http://fra.europa.eu/en/project/2013/multi-annual-roma-programme/member-states. 36 Regulation (EU) No 1303/2013, available at: http://eur-lex.europa.eu/legal-content/ EN/TXT/PDF/?uri=CELEX:32013R1303&from=EN, especially objective 9 “Promoting social inclusion and combating poverty”. 37 Regulation (EU) 1303/2013 Common Provision on [European Investment Funds] refers to relevant EU policy documents on Roma in Annex XI; Regulation (EU) on European Social Funds refers to the integration of Roma in Art 3.1b(ii). See also Guidance for using ESF to tackle educational and spatial segregation for Roma, https://ec.europa.eu/info/files/guid ance-using-esf-tackle-educational-and-spatial-segregation-roma_en. 38 European Council EUCO 23/11, 24 June 2011.

Promoting equality

165

39

for Roma inclusion, which all Member States have done. Reporting on Roma integration measures in all areas has become legally binding for Member States40 in 2013. The Commission has been engaged in monitoring, assessment and annual follow-up of the national strategies.41 The EU has actively followed the use of EU funding through the European Semester process. While most of the funding is not earmarked for the Roma, the Commission’s follow-ups have actively monitored and encouraged the use for that purpose.42 As a consequence of the 2013 ESIF Regulations, in the period 2014–2015 most Member States had increased the allocation of European Structural Funds for Roma inclusion. In 2014–2020, 12 Member States allocated €1.5 billion (i.e., 3.5% of the total allocation for social inclusion) to this priority, explicitly targeting Roma. In addition, 11 Member States allocated a total of €447 million to combating discrimination (including, but not limited to, Roma).43 Finally, the mid-term evaluation of the NRIS combines the inclusion strategies with a call for active anti-discrimination approach under the term antigypsyism.44

FRA and evidence on Roma exclusion While the vulnerable situation of the Roma was generally known, there was actually little reliable quantitative research on the situation of Roma and other minorities in Europe. The unique contribution of FRA has been to do surveys with groups that are difficult to reach, sensitive to discriminatory stigma and

39 Except for Malta, which has no notable Roma population. 40 See Recommendation 2013. 41 Communication from the Commission to the Council, the European Parliament, the European Economic and Social Committee and the Committee of the Regions: National Roma Integration Strategies: a first step in the implementation of the EU Framework COM/2012/ 0226 final; Steps Forward in Implementing National Roma Integration Strategies, COM/ 2013/0454 final; Report on the implementation of the EU Framework for National Roma Integration Strategies, COM(2014) 209, http://ec.europa.eu/justice/discrimination/files/ roma_implement_strategies2014_en.pdf.Report on the Implementation of the EU Framework for National Roma Integration Strategies 2015, COM(2015) 299 final. In addition, the Commission has given country-specific recommendations, http://ec.europa. eu/justice/discrimination/roma-integration/index_en.htm, accessed 29 January 2016. 42 E.g., COM(2012)226 at 2.3. Some national strategies have received significant funding for Roma inclusion. For example, Slovakia has invested € 450 million in the most deprived communities. Also the accession countries have been offered notable funds for Roma inclusion. 43 European Commission (2017) Commission Staff working document, Roma integration indicators scoreboard (2011–2016), accompanying the document Communication to the European Parliament and the Council Midterm Review of the EU Framework for National Roma Integration Strategies, COM/2017/458 final. Available at: http://ec.europa.eu/news room/just/item-detail.cfm?item_id=127519. 44 See also Timofey Agarin, When Stereotype Meets Prejudice. Antiziganism in European Societies, ed. Timofey Agarin (Stuttgart: ibidem, 2014).

166

José Manuel Fresno and Johanna Niemi

who find themselves in vulnerable situations. Information on the Roma has been produced in the EU-MIDIS I and II surveys, targeting several vulnerable groups, and a survey of Roma population in 11 European countries. The focus of these surveys has been housing, education, health, employment and experiences of discrimination.

FRA surveys – revealing the extent of Roma discrimination Surveys are an essential source to obtain data on the success of specific policies and repeated surveys allow the identification of trends. FRA has refined its survey techniques to get data about the situation of the vulnerable groups and their experiences and perceptions across the EU. In recent years, survey results highlighting inequalities and discrimination on ethnic grounds have focussed on minorities,45 Roma46 and persons experiencing racism and social marginalization.47 The first survey on self-perceived discrimination by minorities (EU-MIDIS – European Union minorities and discrimination survey) in 2008 covered all 27 EU Member States.48 The survey revealed some shocking results, such as that every second Roma has experienced discrimination on the basis of ethnicity. Moreover, the majority (82%) of those who are discriminated against do not report their experience of discrimination anywhere – either at the place where it occurred or to a complaint body. In 2011, a Roma pilot survey interviewed Roma and non-Roma living in the same neighbourhoods with a concentration of Roma, in 11 EU Member States. The face-to-face interviews with a randomly selected sample covered a range of topics, such as living conditions, education levels, experiences of migration and discrimination.49 The survey revealed severe gaps in the areas of education (e.g., only 15% of young Roma adults completed uppersecondary general or vocational education), health (e.g., one out of three

45 FRA (2009) EU-MIDIS: European Union Minorities and Discrimination Survey. Available at: http://fra.europa.eu/en/survey/2012/eu-midis-european-union-minorities-and-discrim ination-survey. 46 FRA (2012) Roma Pilot Survey, available at: http://fra.europa.eu/en/survey/2012/romapilot-survey. 47 FRA (2010) Racism and Social Marginalisation Survey, available at: http://fra.europa.eu/ en/survey/2012/racism-and-social-marginalisation-survey. 48 There are methodological difficulties in reaching out to ethnic minorities and immigrants. Therefore the Agency used different data sources in each EU Member State to identify survey samples that covered respondents who are members of a minority and those who are not (i.e., majority) with the aim of being able to demonstrate any differences, inequalities or inequities. FRA (2012) EU-MIDIS Technical Report. Methodology, Sampling and Fieldwork, available at: https://fra.europa.eu/en/survey/2012/eu-midis-european-union-minorities-and-discrimin ation-survey. 49 Bulgaria, Czech Republic, Hungary, Romania, Slovakia, Greece, Poland, Spain, Portugal, Italy and France.

Promoting equality

167

Roma adults had health problems limiting their daily activities), employment (e.g., fewer than one out of three Roma were in paid employment) and housing (e.g., about 45% of the Roma lived in households that lack basic housing amenities). The findings were published in 2012, accompanying the European Commission’s Communication on National Roma Integration Strategies (NRIS), a first step in the implementation of the EU Framework. Since then, reports on the areas of education, poverty and employment, living conditions and the situation of Roma women50 as well as country thematic studies51 have been published. In 2016, the FRA carried out another EU-MIDIS round and collected data from nine member states, Bulgaria, Czech Republic, Greece, Hungary, Poland, Portugal, Romania, Slovakia and Spain. The results show little improvement. It was still the case that 41% of respondents had experienced discrimination. There was some improvement in health and education, while most children are enrolled in primary compulsory education. However, only half of Roma youth continue into secondary education, whereas over 90% of the majority youth do so. It is still very rare for Roma youth to continue their studies in higher education. In other studied areas, housing, employment and poverty, there was no or scant improvement compared with the previous studies and the Roma were far below the general population in all measures.52 The study sample was recruited from areas in which there is a certain concentration of Roma. It is possible that those Roma who are living in or have moved to other areas are more adjusted.53 Thus, it is possible that the overall situation is somewhat better. Notwithstanding, the results are alarming.

The FRA monitoring progress towards equality of Roma in the EU Since 2012, an important part of FRA’s work on Roma has been the development of monitoring measures. This work serves the implementation of the national Roma integration strategies (NRIS). The monitoring tools developed by the FRA include a variety of indicators and mechanisms which allow for the continuous tracking of progress and results. Like indicators developed by the UN Office of the High Commissioner for Human Rights (OHCHR), the FRA monitoring measures distinguish between structural, process related and outcome indicators. Structural indicators reflect formal acceptance of international standards, legislative measures and institutional mechanisms to realize human rights. Process

50 See sidebar at http://fra.europa.eu/en/survey/2012/roma-pilot-survey. 51 See http://fra.europa.eu/en/country-data/2013/country-thematic-studies-situation-roma. 52 See http://fra.europa.eu/en/publication/2016/eumidis-ii-roma-selected-findings, FRA 2018. 53 FRA (2018) A Persisting Concern: Anti-Gypsyism as a Barrier to Roma Inclusion, available at: https://fra.europa.eu/en/publication/2018/roma-inclusion.

168

José Manuel Fresno and Johanna Niemi

indicators capture the implementation of policy instruments, such as programmes and other efforts by a State to put the structural commitments into practice. Processes operationalize the structures and are supposed to yield outcomes. Outcome indicators look at actual results on the ground: to what extent human rights are being enjoyed from the perspective of rights-holders. Outcomes are observed and recorded at the level of the individual and their status. In 2015 the FRA, together with the European Commission, started collecting information on the process indicators from all EU Members States on the four thematic areas of education, employment, health and housing. By establishing this exercise, a continuous monitoring of progress towards equality of Roma in the Member States will be possible. In fact, this information will generate the evidence-base to measure the effective progress of Member States in the implementation of their Roma Strategies. With the aim of improving data collection and monitoring FRA has organized several meetings with the National Statistics Institutes. The Communication on the Midterm Review of the EU Framework for National Roma Integration Strategies reports that 138 measures have been undertaken by the Member States in the area of non-discrimination. These measures either target Roma directly or embark on mainstreaming non-discrimination through legislative initiatives or enforcement of national case law. There is still need for improvement: in many Member States there is no proper follow-up of court rulings and decisions recognizing anti-Roma discrimination.

FRA as a facilitator of local engagement for Roma inclusion Generally, the FRA’s role is to provide the European institutions and Member States with evidence-based advice. However, the situation of the Roma is exceptional. Concern for the persistent discrimination and the inefficiency of the programmes gave reason to engage FRA with local communities to seek for measures that would have real impact. The Local Engagement for Roma Inclusion (LERI)54 project 2013–2016 was a qualitative action research project under FRA’s multi-annual Roma Programme. LERI brought together local authorities and residents, in particular Roma, to find innovative solutions to best advance Roma inclusion and to identify which aspects of these actions work, which do not and why. The aim of the project was to facilitate the engagement of all local stakeholders, including Roma, in joint efforts to enable Roma inclusion. Participatory Action Research methods were used at 21 localities in 11 EU Member States.55 The final report of the study emphasizes the need to include the local Roma population in the

54 See http://fra.europa.eu/en/project/2015/local-engagement-roma-inclusion-leri-multiannual-roma-programme. 55 Bulgaria, Czech Republic, Finland, France, Greece, Hungary, Italy, Romania, Slovakia, Spain and the United Kingdom.

Promoting equality

169

project design. The participation should be inclusive, supporting also women to participate and cover all members of the community, not only the leaders. In addition, it was necessary that the Roma population can experience that the projects yield concrete improvements in the participating community.56

Discussion on the role of FRA Since the founding of the FRA in 2007, a lot of progress has been made promoting the inclusion and non-discrimination of Roma in the EU. The work of the FRA has been a qualitative leap in monitoring the large equality gaps faced by the Roma. FRA, together with NGOs, ECRI and Roma organizations, has made the extent and intensity of Roma discrimination visible and incontestable. FRA’s input has not only been the production of valid information, but also to guarantee credibility of the information and to channel the information to the EU bodies. The research methods on Roma and other vulnerable groups have been improved and shall be further developed. On the one side, this process has been successful: the various EU bodies have taken the discrimination seriously and the EU has drawn the Member States into a constructive partnership in the reform process. Nevertheless, critical challenges remain: among others, fully transposing and enforcing anti-discrimination and anti-racism legislation and safeguards, supporting the development and operation of effective and independent equality bodies, or changing the attitudes of the majority population. The decisive question remains, however, unanswered: has the situation of the Roma people improved at the grassroots level? The most recent FRA research gives evidence of very scant progress in general, however progress is visible mainly in the area of education, in particular the growing participation of Roma children in early childhood education and care points to strong potential for their later development. The midterm review of the European Commission confirms the added value of the EU framework and improvements in the commitment to addressing Roma integration as a priority at European and national levels; it considers that the conditions are in place to make a difference in the lives of Roma, though more time is needed.57 The European Economic and Social Committee (EESC) has expressed a concern that the various programmes may not have had the desired effect. According to the EESC, national implementation has not been effective. The economic crisis has compounded the already atrocious situation of the Roma,

56 FRA (2018) Working with Roma: Participation and Empowerment of Local Communities. Available at: https://fra.europa.eu/en/publication/2018/empowering-roma. 57 European Commission (2017) Communication from the Commission to the European Parliament and the Council: Midterm Review of the EU Framework for National Roma Integration Strategies, COM/286/final. Available at: http://ec.europa.eu/newsroom/just/itemdetail.cfm?item_id=127519.

170

José Manuel Fresno and Johanna Niemi

which has not been overcome with the specific measures. Furthermore, the Roma community, the inclusion of which has been essential in the strategies, is losing trust in the programmes.58 The EESC is asking for a more rights-based approach. A rights-based approach is no panacea. It has taken a long time, a lot of empirical studies and interest group representation before the European courts have recognized discrimination against Roma. There are limitations to what kinds of issues can be adjudicated and the legal processes are lengthy. There is a need for the European integrated strategy to promote the inclusion of Roma through comprehensive policies and structural funds. The development of monitoring tools and indicators has been a considerable effort by the small team of FRA working with Roma issues. Now that the Commission has taken up the monitoring of the national strategies and is pushing for the Member States to provide adequate data, the FRA may assess its role. Over the years, FRA has been rather cautious in its opinions on the improvement of the rights of the Roma. This may be related to the mandate of the FRA as defined in its Multi-annual Frameworks as well as to the general competences of the EU. Now that fundamental rights have found their place as an essential part of the EU law, the FRA could formulate its opinions in a bolder way. We have already seen some such developments in the recent FRA report that makes a connection between anti-gypsyism and the persistent discrimination and unfavourable situation of the Roma in education, employment, housing and health. Furthermore, we need discussions on how to approach difficult subjects, such as multiple discrimination and sensitive issues within the communities such as violence against women and rights of sexual minorities. While inclusion of the disadvantaged communities is necessary for a sustainable development, it is important to ask who represents the communities. Who is heard when the community is included? How are the rights of women,59 the elderly, the Roma youth60 and persons with disabilities recognized? The most recent FRA reports mention these pertinent questions that the EU-level policy makers have not so far seriously considered. In addition to the robust surveys on the situation, FRA should endeavour to do intersectional analysis on differences within the groups. In addition to statistical information, also qualitative data and analysis is needed

58 Opinion of the European Economic and Social Committee on the “Proposal for a Council Recommendation on Effective Roma Integration Measures in the Member States”, COM (2013) 460 final. 59 Gender has been slowly added as a variable in the FRA reports. For intersectional discrimination of Roma women see Kristina Koldinska, “Multidimensional Equality in The Czech and Slovak Republics: The Case of Roma Women”, in European Union Non-Discrimination Law: Comparative Perspectives on Multidimensional Equality Law, eds Dagmar Schiek and Victoria Chege (London: Routledge-Cavendish, 2009), 249–278. 60 FRA (2018) Transition from Education to Employment of Young Roma in Nine EU Member States. Available at: https://fra.europa.eu/en/publication/2018/roma-educationto-employment.

Promoting equality

171

to understand how the structural discrimination works and how it can be encountered. The FRA has already now contributed in putting the Roma inclusion on the European agenda by improving knowledge on the Roma situation. Much is still to be done. The Roma have lived in Europe for at least 500 years; how they are treated is a measure of our humanity.

12 Violence against women Policy impact and FRA’s evidence-based research Roman Wieruszewski and Katarzyna Sękowska-Kozłowska Introduction1 Violence against Women (VAW) belongs to the most heinous and widespread of human rights violations. Literally there is not a single country in the world which is able to claim to be free from that crime. VAW presents an enormous challenge for the international human rights system. For the EU it is a particularly serious problem since its existence violates the most fundamental principles upon which the Union is built. If the EU Fundamental Rights Charter is to be taken seriously, both the EU and its Member States must prove that no efforts are spared to eradicate VAW from social life. So far, however, effects are very disappointing. In that context, the obvious question is why? Why are we not able to put an end to VAW? Of course, to find an answer a thorough and complex analysis of this problem is necessary. The European Union Agency for Fundamental Rights (FRA) has partly undertaken that task. As a result the EU-wide survey on violence against women2 was published by FRA in March 2014. In this chapter we will analyze the impact of the survey, how it is used by other international mechanisms and how it can contribute to the effective combatting of VAW. Since this chapter is written from the perspective of human rights lawyers, not sociologists or statisticians, it focusses on its relevance for the international human rights law implementation machinery, rather than on research methodology. However, it should be kept in mind that the survey on VAW is a classic example of methods applied by legal and social sciences, which is typical of FRA’s approach (see also Chapter 7 of this volume). Research conducted by FRA is based on legal understanding of VAW that is well settled in international law.3 It was designed to serve the needs of policy makers at the

1 The authors would like to thank Joanna Goodey, Head of Freedoms and Justice Department of FRA, and Sami Nevala, Head of Sector Statistics and Surveys of FRA, for their valuable comments and assistance in collecting material for this research. All opinions presented by the authors are made on their own. 2 http://fra.europa.eu/en/publication/2014/violence-against-women-eu-wide-survey-mainresults-report. 3 See the second section below.

Violence against women

173

EU and Member State levels and was proceeded by stakeholder consultations in order to identify their needs and expectations in this area. Therefore, its findings contribute to the development of methods of measuring VAW, as well as being expected to influence the law-making and law-enforcement process related to counteracting VAW on European and country level. The other aspect of our analysis addresses the future. What should FRA do to further contribute to successive fights against VAW?

The flagship: the EU-wide survey on violence against women There is no doubt that the survey is the most ambitious and important undertaking of FRA in relation to VAW. It aims to provide comprehensive data on the extent, nature and consequences of violence experienced by women in all 28 EU countries. Although there have been before various research projects related to VAW in the EU, they used to be limited to selected countries or specific forms of VAW, such as FGM or trafficking in women and girls.4 The need for comparable and gender-sensitive data on the EU countries which would shed light on the dark number of women’s harms, that are not reflected in police and court statistics, has been voiced by many actors, including international organizations, NGOs, researchers and the EU-bodies themselves.5 In order to sketch out particularities of the survey some technical details should be highlighted.6 The survey was based on interviews with 42,000 randomly selected women aged 18 to 74 years in all EU countries. All respondents were personally questioned by trained female interviewers who administered most of the survey, whereas some sensitive questions were asked in selfcompletion paper questionnaires attached at the end of the interview to assess the potential effect of interview mode on the results.7 It is worthy of note that the survey was introduced to respondents as a survey about women’s well-being and safety, with no direct reference to VAW. Questions were based on detailed descriptions of a wide range of acts and behaviours that amount to VAW.8

4 J. Goodey, Violence against women: placing evidence from a European-Union-wide survey in a policy context, Journal of Interpersonal Violence 2017, Vol. 32(12), pp. 1762–1765. 5 Ibid. 6 More at: http://fra.europa.eu/en/publication/2014/violence-against-women-eu-widesurvey-survey-methodology-sample-and-fieldwork. 7 Although it should be noted that methodology used by FRA was contested by some authors, e.g., S. Walby and J. Towers (2017) Measuring violence to end violence: mainstreaming gender, Journal of Gender-Based Violence, Vol. 1(1), pp. 11–31. For other comments on the methodology applied in the survey see, e.g., M. Schröttle and K. Vogt, Women as Victims and Perpetrators of Violence: Empirical Results from National and International Quantitative Violence Research, in: Women and Children as Victims and Offenders: Background, Prevention, Reintegration. Suggestions for Succeeding Generations (Volume 1), eds H. Kury, S. Redo and E. Shea, New York: Springer 2016. 8 More: Survey on women’s well-being and safety in Europe – Questionnaire.

174

Roman Wieruszewski and Katarzyna Sękowska-Kozłowska

Because the EU has not adopted its own definition of VAW, the survey was based on definitions concluded on a regional as well as an international level, including CEDAW General Recommendation No 19 of 19929 and the Istanbul Convention of 2011.10 Therefore, it dealt with forms of VAW identified in Arts 33–40 of the Convention. Due to methodological reasons, some specific forms of VAW such as FGM or forced marriage were excluded.11 The survey gives a picture of psychological violence, stalking, physical violence, sexual violence and sexual harassment experienced outside and inside intimate partnership. In line with the Istanbul Convention, women were questioned about present as well as former partners and other possible perpetrators of both sexes.12 It should be noted that the survey examines – besides women’s lifetime and current experiences – also violence experienced in childhood and its relationship with experiences of violence later on in life. Such an approach corresponds to the Istanbul Convention, which deals extensively with children as a vulnerable group affected by VAW. The survey focusses, however, on direct victimization of respondents. The aspect of indirect victimization of children witnessing VAW is addressed broadly in Istanbul Convention13 and, although covered by the survey to some extent,14 needs to be explored deeply in future. In general, the survey gives a detailed and comprehensive picture of VAW as defined in international law. Moreover, it examines some specific aspects of VAW that are not directly indicated in the Istanbul Convention or other documents. For instance, much attention is given to violence that involves use of the internet, email or mobile phones, i.e., cyberstalking and sexual cyberharassment.15 On the other hand, it seems that some aspects of VAW could be explored more profoundly. Economic violence, which was covered in the survey as a form of psychological partner violence, was limited to two questions only, namely on preventing the respondent from making decisions on family finances or shopping independently and on forbidding her to work outside the home.16 Since economic harm experienced by women inside and outside relationships manifests in many other ways,17 it would be desirable to receive more detailed results in this regard.

9 This recommendation has been updated recently by the CEDAW General Recommendation No 35 on gender based-violence against women of 2017, CEDAW/C/GC/35. 10 Council of Europe Convention on preventing and combating violence against women and domestic violence, CETS. No. 210. 11 Survey, p. 10. 12 For instance, IVAWS, another multi-country research project on VAW, concerned only violence perpetrated by men against women. For more see: H. Johnson, N. Ollus and S. Nevala, Violence Against Women: An International Perspective, New York: Springer 2008. 13 See preamble, Art. 13, Art. 18 para. 3, Art. 26, Art. 46 c., Art. 56 para. 2. 14 This issue was examined to some extent in Section 7.8 of the survey, which deals with adult women’s children’s exposure to violence in the family. 15 Survey, p. 87, pp. 104–106. 16 Survey, p. 72. 17 For instance: taking women’s money, damaging their property, refusing to contribute financially, preventing women from commencing or finishing education, www.researchgate.net/ profile/Olufunmilayo_Fawole/publication/5354240_Economic_Violence_To_Wome

Violence against women

175

The survey received immense international attention, being the biggest launch of FRA’s product in the history of the Agency. Nearly 1,500 media articles in the space of a few days were published after its launching in March 2014. Media statistics show that media in all EU Member States reported on the survey and, on the launch day, all EU media with the widest reach covered the report in their headline news. The FRA Director, Heads of Department, Experts and Spokespersons gave a total of 73 interviews to media from 16 EU Member States and international outlets. Moreover, within the first seven days, FRA’s website registered very high traffic, with around 12,000 publication page views and over 8,000 downloads of the main results report.18 The main findings of the survey were alarming: one in three women in the EU has experienced some form of physical and/or sexual violence since the age of 15. A map presented in the survey report19 showed which EU countries seemed to be the safest places for women to live (i.e., Italy, Spain, Slovenia and Poland – rate of VAW of 10–19%) and the most dangerous ones (i.e., Sweden and Denmark – rate of VAW of 30–39%) in terms of violence by a partner. The same observation can be made in terms of some other forms of VAW like sexual harassment.20 Precisely speaking: this is the way the results of the survey were interpreted by those who were looking only at numbers. For instance, in Poland this data was extensively used in a parliamentary debate aiming to prevent Polish accession to the Istanbul Convention. It was claimed to be evidence that prevention of VAW in Poland is much more effective than in state-parties to the Istanbul Convention.21 However, if evidence from other parts of the survey had also been drawn on – for example, with respect to psychological violence by a partner – then Poland has a rate of 41% of women experiencing psychological violence by a previous partner.22 Certainly the survey results were very nuanced, which was to be easily discovered while examining the results of the survey more deeply. Some possible explanations of differences in results between countries were signalled in the fact-sheet and reported briefly in the report presenting the main results.23 Since VAW is recognized as a form of discrimination against women, the most burning question is: why are rates of VAW highest in countries leading in gender equality such as Sweden? In the

18

19 20 21

22 23

n_and_Girls/links/02bfe51019def5ac27000000/Economic-Violence-To-Women-andGirls.pdf, pp. 2–3. 2nd independent External Evaluation of the European Union Agency for Fundamental Rights. Final report, https://fra.europa.eu/en/news/2018/fra-delivers-high-quality-funda mental-rights-support-find-external-evaluators, p. 154. http://fra.europa.eu/en/publication/2014/violence-against-women-eu-wide-survey-mainresults-report. Survey, p. 99. E.g., http://orka.sejm.gov.pl/Zapisy7.nsf/wgskrnr/SZA-144; http://orka.sejm.gov.pl/ Zapisy7.nsf/wgskrnr/SZA-161; http://orka2.sejm.gov.pl/StenoInter7.nsf/0/03794DE1E C3524EEC1257DE700413168/%24File/86_c_ksiazka_bis.pdf. Survey, p. 74. Survey, pp. 22–26.

176

Roman Wieruszewski and Katarzyna Sękowska-Kozłowska

face of backlash that overshadows Europe, the so-called “Nordic paradox” requires further research and public attention. One of the possible explanations presented in the survey is that women in countries with a high level of gender equality are more aware of VAW and of their rights, which leads to a higher level of disclosure about VAW.24 Another explanation could be that when women gain more equality and start to challenge traditional gender roles – for example, by going out more at night to socialize, by being in work, by not staying in violent or otherwise abusive relationships – then they are more exposed to risk of violence.25 According to E. Gracia and J. Merlo there are multiple factors that should be taken into account in further research: “Nordic paradox posits a challenging research question that should not be ignored” and its better understanding would contribute to prevention of VAW, particularly in the context of intimate-partner violence.26 Certainly, as J. Goodey writes, the survey “did not set out to provide definitive ‘answers’ to the research findings, nor could it claim to do so”.27 There is already a set of papers published which presents a more profound interpretation of the survey findings.28 Besides, data gathered by FRA is accessible for further research.29 It creates a great opportunity for academics and national institutions to develop, interpret and comment on the survey results. Despite the presented concerns, the groundbreaking nature of the survey should be emphasized. For the first time the extent, nature and consequences of VAW across the EU were documented. The survey revealed that VAW is grossly underreported, which means that women’s hurts reported in police databases and court files are just the tip of the iceberg. Moreover, FRA undertook the challenge of designing methodology that allows us to compare data among countries. Each country has its own cultural context that may influence rates of VAW.30 For example, in the case of sexual harassment, the subjective experience of women about which behaviour toward her is wanted or not is to some extent shaped by social and cultural factors.31 However, setting up multi-country data

24 Survey, p. 25. 25 Ibid. 26 E. Gracia and J. Merlo, Intimate partner violence against women and the Nordic paradox, Social Science & Medicine 2016, Vol. 157, pp. 27–30. 27 Goodey, Violence against women …, p. 1772. 28 E.g., S. Nevala, Coercive control and its impact on intimate partner violence through the lens of an EU-wide survey on violence against women, Journal of Interpersonal Violence 2017, Vol. 32(12); R. Latcheva, Sexual harassment in the European Union: a pervasive but still hidden form of gender-based violence, Journal of Interpersonal Violence 2017, Vol. 32(12); D. Reichel, Determinants of intimate partner violence in Europe: the role of socio-economic status, inequality and partner behavior, Journal of Interpersonal Violence 2017, Vol. 32(12); U. Till-Tentschert, The relation between violence experienced in childhood and women’s exposure to violence in later life: evidence from Europe; Journal of Interpersonal Violence 2017, Vol. 32(12). 29 https://discover.ukdataservice.ac.uk/catalogue/?sn=7730&type=Data%20catalogue%E2% 80%94. 30 See, for instance, the comment of G. Tisheva on the survey findings regarding Bulgaria, European Gender Law Equality Review 2014, No 1, pp. 43–45. 31 Survey, p. 97.

Violence against women

177

is a critical step for the development of policy on combatting VAW by the EU.32 Research conducted by FRA and its expertise will be used in further monitoring activities of the EU regarding gender-based violence.33 The survey is also a model for other multi-country research outside the EU.34 Finally, the survey may contribute to research run on a national level. Article 11 of the Istanbul Convention calls its states-parties to conduct regular population-based surveys on VAW. Since this kind of research poses a great challenge for many countries, FRA’s work can serve as guidance in this undertaking, as well as for further development of EU-level data collection initiatives concerning experiences of violence.

FRA and EU policy on violence against women Over the years, the EU has been progressively engaging in combat against specific forms of VAW. These activities have been, however, very fragmented and limited by the EU’s mandate – from a “hard” legal instrument against sexual harassment in a workplace35 to “soft” policy actions against domestic violence. Apart from legal constraints, lack of reliable comparable data on the prevalence of VAW in the EU Member States has been indicated as an obstacle to designing strategy to combat this phenomenon at EU level.36 Undoubtedly, FRA has filled this lacuna with its survey. As Morten Kjærum, former director of FRA, had stated, results of the survey “provide ample support for EU Member States to ratify the Istanbul Convention, and for the EU to explore the possibility of accession to the convention”.37 Accession of the EU to the Istanbul Convention was one of the recommendations formulated by FRA in the survey results report.38 Therefore, the EU’s signing of the Istanbul Convention can be regarded as FRA’s great success. Data provided by FRA was referred to in proposals of the European Commission to sign and conclude the Istanbul Convention,39 as well as in other documents concerning the accession process.40 Decisions of the Council of the EU to sign the Istanbul Convention only with regard to matters related to judicial cooperation in criminal matters and asylum

32 33 34 35 36 37 38 39 40

See the third section of this chapter. See the fifth section of this chapter. See the fourth section of this chapter. Gender Equality Directive, recast. Nogaj, p. 29, www.europarl.europa.eu/meetdocs/2009_2014/documents/femm/dv/eav_ violence-against-women-/eav_violence-against-women-en.pdf. Survey, p. 3. Survey, pp. 167–168. 2016/0062 (NLE), 2016/0063 (NLE). E.g., European Parliament draft interim report on the proposal for a Council decision on the conclusion, by the European Union, of the Council of Europe Convention on preventing and combating violence against women and domestic violence (COM (2016)0109–2016/ 0062(NLE)).

178

Roman Wieruszewski and Katarzyna Sękowska-Kozłowska

and non-refoulement41 bring, however, some uncertainties in respect of the future scope of EU action on implementation of the Istanbul Convention, in particular in areas of EU competence not covered by the Council Decisions’ legal bases, such as sexual harassment in employment, for example.42 In this situation the EU institutions should take advantage of the FRA’s expertise in order to secure the most comprehensive and broad implementation of the Istanbul Convention as possible. Practice confirms that FRA plays an important role in shaping the EU policy against VAW. According to the external evaluation report of the FRA’s work, research findings from the Violence against Women Survey have been frequently used by EU and national-level policy makers and practitioners, and have possibly influenced the development of policies and legislation. The majority of EU Officials (57%) and almost half of the non-EU institutions stakeholders surveyed, such as representatives of national ministries, gender equality commissions and ombudsmen, reported having used scientific surveys undertaken by FRA, including the Violence against Women Survey, often or very often during the past five years. Additionally, all European Commission and European Parliament authorities and the large majority of the non-EU institutions (85%) affirmed that such FRA outputs were useful or very useful for their work between 2013 and 2017. Commission Officials responding to the survey and interviewed in the context of the external evaluation of the FRA stated that the Violence against Women Survey has been very influential in their work and their capacity to promote fundamental rights across the European Union, as it showed in a statistical and quantifiable way the extent of the problem in the EU, pushing European institutions to be more active in eradication of gender-based violence.43 Among others, data provided by FRA serves as justification for actions undertaken by EU bodies such as the campaign against VAW launched by the European Commission in 201744 or its strategic engagement in gender equality for 2016–2019.45 The survey was frequently quoted during debates in the European Parliament46 and in its resolutions.47 Finally, the results of the survey are used in other research commissioned by the EU.48

41 Decisions 2017/865 and 2017/866 of 11 May 2017. 42 www.europarl.europa.eu/RegData/etudes/STUD/2017/596815/IPOL_STU(2017) 596815_EN.pdf, p. 99. 43 2nd independent External Evaluation of the European Union Agency for Fundamental Rights. Final report, https://fra.europa.eu/en/news/2018/fra-delivers-high-quality-funda mental-rights-support-find-external-evaluators, p. 155. 44 http://ec.europa.eu/information_society/newsroom/image/document/2016-48/vaw_fact sheet_40137.pdf. 45 http://ec.europa.eu/anti-trafficking/eu-policy/strategic-engagement-gender-equality2016-2019. 46 E.g., C.A. Baldacchino, E-003595–14; D. Dodds, E-002787–14; G. Franco, E-003078–14. 47 E.g., European Parliament resolution of 09 June 2015 on the EU Strategy for equality between women and men post 2015 (2014/2152(INI)). 48 E.g., E. Carta, H. Frenzel, I. Maillart, T. Weber and N. Wukovits, Study on the Implementation of the Autonomous Framework Agreement on Harassment and Violence at Work, European Union 2016; F. Bettio and E. Ticci, Violence Against Women and Economic

Violence against women

179

Applicability of the FRA’s research within other human rights mechanisms The FRA survey, while aimed at the situation within the EU area, obviously must have an impact also outside that region. VAW is a serious problem and subject of concern for all international human rights mechanisms. In our analysis, we looked at how the survey has been used by other human rights mechanisms.

The UN system The UN has recognized violence against women as a violation of women’s human rights and fundamental freedoms and as an obstacle to the achievement of equality, development and peace. Within the UN system VAW has been dealt with at many levels. It is a subject of concern for the General Assembly, the Commission on the Status of Women, the Human Rights Council and its special procedures, and also for treaty bodies like the Human Rights Committee or the Committee on the Elimination of Discrimination against Women. FRA findings therefore may serve as a valuable source of reliable information being used in relevant procedures. Below we present some documents in which survey has been quoted. The Secretary General of the UN in his reports presented regularly pursuant to General Assembly resolution 67/144 on the intensification of efforts to eliminate all forms of VAW49 used FRA findings and quoted the survey. Also, the Commission on the Status of Women in the report adopted at its fifty ninth session quoted the survey.50 The Human Rights Council is regularly addressing VAW, including its particular forms, such as rape and sexual violence and child abuse, early and forced marriages, violence against women human rights defenders and remedies for women who have been subjected to violence. In all recent documents related to those violations of human rights the Council quotes the survey.51 In the case of treaty bodies the survey can be used as a valuable source of information in the reporting procedures. For example, the Committee against Torture, while considering the report of Italy, used FRA findings presented in the survey.52 In the reporting procedure for the EU before the Committee on the Rights of Persons with Disabilities, the Commission quoted the survey in its responses to the list of issues on the initial report of the European Union.53 The European Disability Forum in its shadow report to the same Committee

49 50 51 52 53

Independence, European Commission 2017; see: M. n https://publications.europa.eu/en/ publication-detail/-/publication/1643f084-92b0-11e7-b92d-01aa75ed71a1/language-en. European Union 2017. See A/69/222, 1 August 2014; A/17/219, 27 July 2016. See E/CN.6/2015/3, para. 119. See, for example, Council resolutions 23/25 and 24/23. CAT/C/ITA/56, para. 69(b). HCRPD/C/EU/Q/1/Add.1, para. 33 and 71.

180

Roman Wieruszewski and Katarzyna Sękowska-Kozłowska

also quoted the survey findings related to the rates of VAW among women with disabilities.54 The survey has been used extensively during the Universal Periodic Review,55 a procedure conducted by the UN Human Rights Council. Also, a number of rapporteurs acting under the special procedures system of the UN are using data provided by the survey. For example, one can mention the report of the Special Rapporteur on the rights to freedom of peaceful assembly and of association, Maina Kiai,56 and the report of the Special Rapporteur on violence against women, its causes and consequences, Rashida Manjoo.57

Council of Europe and OSCE The survey plays an equally meaningful role in the broader regional European context. The European Court of Human Rights has been quoting the survey in some of its judgments, e.g., the case of Bă lș an v Romania58 and the case of Ž. B. v Croatia.59 The newly started process of monitoring by GREVIO implementation of the Istanbul Convention proves that the survey is being referred to by States60 as well as NGOs in their shadow reports.61 Moreover, GREVIO itself has referred to the survey results in its evaluation of States reports.62 The survey is used as a reliable source of information by the Commissioner for Human Rights of the Council of Europe. However, as the Commissioner rightly pointed out, figures provided by the survey should be read with caution, since: “Polish women’s rights NGOs have informed the Commissioner that these figures do not show the real scale of the problem but rather the low level of awareness in Poland as to what constitutes violence against women and domestic violence”.63

54 https://tbinternet.ohchr.org/_layouts/15/treatybodyexternal/Download.aspx?symbol no=INT%2fCRPD%2fICO%2fEUR%2f19818&Lang=en. 55 See A/HRC/WG.6/24/Bel/3; A/HRC/WG.6/24/DNK/3; A/HRC/WG.6/20/Slov/ 3. 56 A/71/385, p. 41. 57 A/HRC/29/27/Add/2, p. 12. 58 Application no. 49645/09, para. 44. 59 Application no. 47666/13, para. 39. 60 See, for example, the report of Austria: https://rm.coe.int/16806ee8b2; the report of Portugal: https://rm.coe.int/portugal-state-report/168074173e. 61 See, for example, the shadow report to GREVIO by the Danish national observatory on violence against women, headed by the Women’s Council in Denmark: www.kvinderaadet.dk/ files/Danish_NGO_report_2017_GREVIO.pdf; Austrian NGO-Shadow Report to GREVIO: www.aoef.at/images/04_news/news_2016/GREVIO-Schattenbericht_2016. pdf. 62 See, for example, GREVIO’s Baseline Evaluation Report on Austria, 2017; GREVIO’s Baseline Evaluation Report on Denmark, 2017. 63 See the report by Nils Muiżnieks, Commissioner for Human Rights of the Council of Europe, following his visit to Poland from 9–12 February 2016, point 143.

Violence against women

181

In the context of the Parliamentary Assembly of the Council of Europe, the survey is used, for example, in reports of the Committee on Equality and NonDiscrimination.64 The Council of Europe in its series of papers related to the Istanbul Convention is regularly using findings published in the survey.65 The same goes for OSCE.66 That organization in its Survey on the Wellbeing and Security of Women that is implemented in seven OSCE participating States in South East and Eastern Europe and in Kosovo is using the questionnaire and methodology of the FRA survey.67 EQUINET (European Network of Equality Bodies) and NGO movement are also using the FRA survey at the various fora.68 The survey has also been replicated in Japan by the Ryukoku University in Kyoto.69 The above overview shows that there is a need for reliable information about VAW not only within the EU area but also outside. It seems that the survey has acquired within the UN system, CoE and OSCE a status as an important and solid source of information.

Challenges and potential future tasks Due to the pioneering nature and the significance of the survey, FRA is today one of the key experts on VAW within the EU. With accession to the Istanbul Convention, the EU’s engagement in collecting data on VAW will gain a new dimension of legal obligation under Article 11 of this treaty. It is therefore clear that advantage should be taken of FRA’s expertise. However, its commitment to VAW is evolving. Research established by FRA is to be continued under the leadership of Eurostat. In 2016, the European Commission proposed to develop an EU-wide gender-based violence survey which will interview both women and men about their experiences of violence.70 FRA, alongside other EU entities and Member States is part of a Task Force set up to design a future survey. This kind of

64 Doc. 13,650, 12 December 2014, “Equality and inclusion for people with disabilities”, Report 1, Committee on Equality and Non-Discrimination, Rapporteur: Ms. Carmen QUINTANILLA, Spain, Group of the European People’s Party; Doc. 13,961 Recent attacks against women in European cities – the need for a comprehensive response, Report, Committee on Equality and Non-Discrimination, Rapporteur: Mr. Jonas GUNNARSSON, Sweden, Socialist Group, 26 January 2016. 65 See: a collection of papers on the Council of Europe Convention on preventing and combating violence against women and domestic violence. 66 Combating violence against women in the OSCE region. A reader on the situation in the region, good practices and the way forward. Vienna, November 2016. 67 See: www.osce.org/projects/survey-on-the-well-being-and-safety-of-women. 68 See WAVE, 20 years of combating violence against women and children. 69 www.japantimes.co.jp/news/2017/08/04/national/social-issues/japanese-women-likelykeep-domestic-abuse-secret-eu-peers-survey/ (accessed 30.11.2017). 70 https://circabc.europa.eu/sd/a/08839959-360e-41bd-bddc-73f62a494012/Minutes% 20TF%20GBV%201516%2002%202017%20-%20draft.pdf.

182

Roman Wieruszewski and Katarzyna Sękowska-Kozłowska

cooperation seems to be a good solution. On one hand, the survey on VAW will be dealt with by the huge machinery of Eurostat with the support of human rights and gender experts from FRA and EIGE. On the other, it gives FRA space and opportunity for follow-up research on the present survey, as well as to address VAW within the frame of other activities. This is, for instance, FRA’s commitment to address VAW in its regular overviews of migrationrelated fundamental rights concerns.71 There is certainly a wide range of topics that could be undertaken by FRA in this area, but it would not be able to address them all due to its limited resources. While looking at the high rate of VAW revealed in the survey, a fundamental question comes to mind: who stands behind it? Who are the “men who hate women”? Since the perspective of victims was presented in the survey, now it is time to discover the other side of the coin and conduct a population-based survey among men. The UN did so with respect to some countries of Asia and the Pacific region.72 The EU could take the lead of carrying out a similar survey in Europe. This kind of research is particularly needed with regard to Article 12 para. 1 of the Istanbul Convention which calls for the eradication of prejudices and stereotypes that result in VAW. A set of data comparable to this presented in the survey on VAW could offer a good point of departure for actions of EU and its Member States designed to implement this obligation. Who are the men living in today’s EU? What is their vision of femininity and masculinity? How do they perceive gender roles in family and society? Which behaviours towards women do they find acceptable? What are their experiences related to VAW from childhood? These questions correspond to a general problem of public perception and knowledge on causes and consequences of VAW, as well as attitudes towards its victims and perpetrators. As E. Gracia and M. Lila noted “the worrisome prevalence of some acceptability, tolerant, victim-blaming, and noninvolvement attitudes regarding violence against women should be appropriately targeted and monitored in future surveys and studies”.73 The specificity and rate of violence experienced by particular groups of women in the EU is another aspect of VAW that requires research. These are women of vulnerability: girls, migrants, Roma, women with disabilities, women belonging to LGBTI community, etc. Since FRA has extensive experience with vulnerable groups, it is well prepared to deal with this kind of intersectional discrimination. For instance, it has already examined violence against LGBT people in the EU in its survey launched in 2013.74 Combined with the survey on

71 http://fra.europa.eu/en/theme/asylum-migration-borders/overviews. 72 Why Do Some Men Use Violence Against Women and How Can We Prevent It? Quantitative Findings from the UN Multi-country Study on Men and Violence in Asia and the Pacific, UNDP, UNFPA, UN Women, UNV 2013, www.partners4prevention.org/node/516. 73 http://ec.europa.eu/justice/gender-equality/files/documents/151125_attitudes_enege_re port_en.pdf, p. 109. 74 https://fra.europa.eu/en/publication/2013/eu-lgbt-survey-european-union-lesbian-gaybisexual-and-transgender-survey-results.

Violence against women

183

VAW, this project offers a good base for further research on violence against lesbians, bisexual or transgender women. Another example is the results on discrimination against and the living conditions of Roma women in 11 EU countries (2014), which are based on data collected concerning 16,319 Roma households.75 This research, however, due to methodological reasons, did not at all address violence against women nor against men. It is therefore advisable that FRA undertakes this issue in future. Similarly, FRA is well prepared to examine cross-cutting issues related to VAW. There is, for instance, the case of sexist hate speech which was addressed by FRA as one of the challenges to women’s rights for EU institutions and Member States.76 One should keep in mind that, apart from collecting data, FRA prepares legal analysis which is being used as an important source of information and inspiration for the EU and its Member States. There is, for instance, a study on measures addressing forced marriages.77 This kind of work is continued in relation to other aspects of VAW. In 2016 FRA joined the Council of Europe in drafting a guide on preventing FGM.78 Since cooperation with the Council of Europe has already produced good results,79 such projects are welcomed, particularly with regard to the EU’s accession to the Istanbul Convention. Also FRA’s further interactions with other EU entities, including EIGE in particular, are welcomed. Apart from ongoing cooperation of FRA and EIGE with Eurostat on a future survey on gender-based violence, other joint actions of these sister agencies seem to be inherent. They should, for instance, join forces in efforts aimed at stimulation of effective implementation of the Victim’s Rights Directive with regard to victims of VAW.

Conclusions FRA, in line with its mandate, plays a very important role in shaping the EU policy against VAW. The survey proved to be a reliable and rich source of important information about various aspects of this tragic phenomenon. FRA should receive well-deserved credit for that undertaking. The biggest challenge and task for FRA is, however, to secure wide distribution of these results. If further discussion on FRA findings is limited to academic journals, data presented in the survey will lose its significance and, as has already happened in the case of Poland, it could be used against rather than in favour of gender equality. Present Director of FRA Michael O’Flaherty on various occasions has pointed out

75 http://fra.europa.eu/en/publication/2014/discrimination-against-and-living-conditionsroma-women-11-eu-member-states. 76 http://fra.europa.eu/en/publication/2017/colloq-womens-rights. 77 http://fra.europa.eu/en/publication/2014/addressing-forced-marriage-eu-legal-provi sions-and-promising-practices. 78 http://fra.europa.eu/en/news/2016/combatting-female-genital-mutilation-and-forcedmarriage. 79 E.g., http://fra.europa.eu/en/publication/2011/handbook-european-non-discrimination-law.

184

Roman Wieruszewski and Katarzyna Sękowska-Kozłowska

that FRA findings must reach not only political leaders or policy makers.80 They should find their way into wide public opinion, media and so-called people on the street. Certainly, FRA should be given all necessary support and assistance in that endeavour. However, FRA certainly is not going to rest on its laurels. A lot more has to be done in many new areas related to VAW. Some suggestions are mentioned above. One should expect that both the EU and its Member States will not spare any efforts in the campaign against VAW.

80 See, for example: episode 11 of POLITICO’s EU Confidential podcast.

13 Borders and migration control FRA’s research at protection black spots Jens Vedsted-Hansen

The FRA mandate on migration and borders The FRA activities on asylum, migration and borders are mutually interconnected and do not lend themselves to clear distinction. Interestingly, this area of activities has been presented in slightly different ways in the various Multiannual Frameworks determining the thematic areas of the Agency’s studies, surveys, analyses and other scientific research. In the first Multi-annual Framework for 2007–2012, the activities on ‘visa and border control’ were distinguished from those concerning ‘asylum, immigration and integration of migrants’;1 the Multi-annual Framework for 2013–2017 merged them into one thematic area ‘immigration and integration of migrants, visa and border control and asylum’.2 In the recently adopted Multi-annual Framework for 2018–2022, the area has been rephrased and the wording simplified: ‘migration, borders, asylum and integration of refugees and migrants’.3 The differing presentation of this thematic research area may appear insignificant, yet it could be seen as illustrating the interconnectedness between borders and migration control on the one hand, and migration, asylum and integration on the other; at the same time, the proposed wording is intended to highlight the importance of integration by explicitly extending it to both migrants and refugees.4 This chapter and the following chapter on asylum reflect a somewhat similar distinction between the two aspects of fundamental rights relating to migration and asylum. While Chapter 14 is discussing the FRA’s research approach and

1 Article 2 (f) and (e) of Council Decision 2008/203/EC of 28 February 2008 implementing Regulation No. 168/2007 as regards the adoption of a Multi-annual Framework for the European Union Agency for Fundamental Rights for 2007–2012, OJ 2008 No. L 63/14. 2 Article 2 (h) of Council Decision No. 252/2013/EU of 11 March 2013 establishing a Multiannual Framework for 2013–2017 for the European Union Agency for Fundamental Rights, OJ 2013 No. L 79/1. 3 Article 2 (e) of Council Decision 2017/2269 of 7 December 2017 establishing a Multi-annual Framework for the European Union Agency for Fundamental Rights for 2018–2022, OJ 2017 No. L 326/1. 4 Cf. Opinion of the Management Board of the FRA on a new Multi-annual Framework (2018–2022), 12 February 2016, p. 24.

186

Jens Vedsted-Hansen

activities on asylum, primarily with a view to the issues affecting asylum seekers who have entered the EU territory and persons having been granted protection in Member States, the following will examine fundamental rights issues arising in the context of border control and the ways in which FRA has been dealing with these issues. In line with the approach taken by FRA, this shall be done by focussing on some of the legal problems, policies and practices that appear most relevant from a fundamental rights perspective. The chapter is therefore not going to discuss detailed technical matters pertaining to the Schengen rules on the crossing of the external or internal borders of Member States. As external border control may indeed affect fundamental rights, the chapter will focus on the fundamental rights aspects of migration control and the exercise of jurisdiction in this context, and in particular the ways in which FRA has carried out research and related activities on these issues. This area of the Agency’s activities provides good and stimulating examples of the various ways in which FRA is working to provide evidence-based assistance, advice and guidance for the institutions, agencies and other bodies of the EU, as well as its Member States when implementing EU law, 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’ in accordance with the objective set out in the Agency’s Founding Regulation.5 Thus, the FRA activities on borders and migration control can be described as combining focus on the outcomes of EU laws and policies, as measured by evidence on the experiences of individual rights holders, with the examination of specific actions taken by the EU and Member States as duty bearers to comply with their fundamental rights commitments: socio-legal research in the form of largescale surveys providing data that complement the results of major European statistical surveys; legal opinions scrutinizing legislative proposals and providing guidance on the development and implementation of rights-related EU legislation; and practical guidance on-the-spot to support practitioners in the field.6 Following an exposé of the most significant FRA studies and reports on external border controls (second section of this chapter), we shall consider some recent research activities dealing more specifically with the fundamental rights of asylum seekers in the context of extraterritorial migration control, including the activities coordinated by the EU Border and Coast Guard Agency Frontex (the third section of this chapter). Finally, the potentials and limits of FRA research in the area of migration control as they follow not only from the Agency’s own mandate, but also in the light of the scope of competences of the EU as such, shall be discussed (in the fourth section of this chapter).

5 Article 2 of Council Regulation (EC) No. 168/2007 of 15 February 2007 establishing a European Union Agency for Fundamental Rights, OJ 2007 No. L 53/1. 6 Cf. FRA, Fundamental Rights Report 2017 (2017), Focus Section ‘Between promise and delivery: 10 years of fundamental rights in the EU’, pp. 24–25.

Borders and migration control

187

Border control and access for third-country nationals to the EU territory FRA has over the years carried out important research and offered significant advice on legal issues arising from external border control at both sea borders,7 land borders8 and in airports.9 Some of these studies have provided valuable insights and documentation in the form of reporting of third-country nationals’ accounts of their personal experience of encounters with the border control authorities of certain Member States. They include rather unique empirical findings of clear relevance to those engaged in EU policy and standard-setting on external border control as well as to Member State authorities in charge of policies and practices in that respect; in addition, the reports offer extensive evidence of interest for the wider academic community working with theoretical issues pertaining to this particular feature of state sovereignty and to the effects of EU harmonization in this regulatory area. The report on fundamental rights issues relating to controls at Europe’s southern external sea borders appears particularly interesting from both a theoretical and a practical perspective.10 Based on data collection in five Member States (Cyprus, Greece, Italy, Malta and Spain) and three third countries (Turkey, Tunisia and Morocco) in 2011, the report and its policy recommendations (termed ‘FRA opinions’) have proven tragically relevant, both operationally and in terms of border control policies, at subsequent instances where search and rescue operations were, could or should have been carried out;11 it is sufficient here to mention the October 2013 Lampedusa migrant shipwreck that triggered Italy’s launching of Operation Mare Nostrum as well as the surge in migrant boat arrivals at the Central Mediterranean route in 2016–2017, in particular since the closure of the Western Balkan route and the implementation of the EU–Turkey arrangement of 18 March 2016. The study on controls at the southern sea borders of Europe provides ample illustration of FRA’s socio-legal approach to real-life fundamental rights challenges. Thus, the fieldwork data consisted of 280 interviews with migrants, national authorities, fishermen and shipmasters as well as local civil society actors involved in rescue and interception, disembarkation, screening, detention and return of migrants arriving by sea; in addition, observation was conducted in particular at points of arrival and accommodation of newly arrived migrants and

7 FRA, Fundamental Rights at Europe’s Southern Sea Borders (2013). 8 FRA, Fundamental Rights at Land Borders: Findings from Selected European Union Border Crossing Points (2014). 9 FRA, Fundamental Rights at Airports: Border Checks at Five International Airports in the European Union (2014). 10 FRA, Fundamental Rights at Europe’s Southern Sea Borders (2013). 11 See, in this respect, Guy S. Goodwin-Gill, ‘Refugees and Migrants at Sea: Duties of Care and Protection in the Mediterranean and the Need for International Action’, in The Mediterranean Papers – Athens, Naples, Istanbul, September 2015, pp. 15–25.

188

Jens Vedsted-Hansen

on board patrol boats.12 This brought to the fore important primary source information about the risks faced by migrants attempting to enter Europe by sea, their treatment on board Member State rescue vessels and in the territory upon arrival, and the identification and screening procedures that took place; the report further includes coast guard staff accounts of their efforts and challenges in rescue operations.13 The occurrence of – sometimes controversial – migration control measures by way of intercepting migrants’ boats in connection with search and rescue operations was also timely dealt with in the report on the external sea borders. In this regard, the study pointed out important legal issues relating to respect for fundamental rights in the context of extraterritorial migration control, in particular the applicability of the principle of non-refoulement and the impact of the rules on disembarkation of rescued persons under international maritime law on the compliance with this fundamental rights principle.14 This phenomenon and the inherent fundamental rights challenges have been followed up in subsequent FRA activities, as discussed below in the third section. It should be noted, however, that not all of the external border control studies are equally rich, especially insofar as their empirical basis is concerned. While the study on the EU’s external sea borders seems to have been met with certain challenges as regards access to primary sources in terms of observation and informants,15 the studies on border checks at land borders and in airports have apparently been subject to rather severe methodological challenges. Thus, the latter study had problems concerning research authorization and access to airport facilities due to delay in one airport (Charles de Gaulle) and refusal of access in another (Heathrow); additional factual barriers to the communication with interview informants were experienced even in airports where access had formally been granted.16 As regards the study on land borders, those carrying out the fieldwork are reported to have been able to rely on good cooperation with border guards at the selected six land border crossings. Nonetheless, the fact that field visits were arranged in advance in order to obtain access to the border crossing facilities is mentioned as a factor that may have led border guards to adapt their behaviour to the researchers’ presence; furthermore, the researchers had difficulties in finding travellers who were willing to be interviewed. The report therefore makes clear that it cannot constitute an exhaustive assessment of the fundamental rights situation at the border crossing points covered.17

FRA, Fundamental Rights at Europe’s Southern Sea Borders (2013), p. 7 and pp. 137–142. Ibid., in particular Chapters 1, 5, 6 and 7. Ibid., Chapter 3; see also Chapter 4 on maritime surveillance systems and fundamental rights. Ibid., p. 142; see also p. 121 on the refusal of access to a patrol boat in one Frontex operation and advance notification of FRA presence in the observation of two other operations. 16 FRA, Fundamental Rights at Airports: Border Checks at Five International Airports in the European Union (2014), pp. 107–108. 17 FRA, Fundamental Rights at Land Borders: Findings from Selected European Union Border Crossing Points (2014), pp. 15–16; as a purely technical error, the methodological Annex 1

12 13 14 15

Borders and migration control

189

Perhaps most importantly, the studies on airport and land borders do not include the same amount of authentic information provided by third-country nationals who have been exposed to the border control and the fundamental rights issues that may have arisen in that context. This is to some extent compensated for by statements in interviews with various border control officials and other Member State sources. In sum, however, these limitations and shortcomings of the empirical basis of the studies on border checks at land borders and airports possibly reduce their potential impact on authorities and policymakers at EU and Member State level, as well as their usefulness as a basis for further academic research. Some of the methodological challenges could be addressed in connection with future revision of the Agency’s Founding Regulation, while other limitations may be more intrinsically linked to the fact that border control is normally taking place in security restricted zones; the latter would not seem to be an irremediable problem, however. The findings of the abovementioned studies were followed up with more practice- or policy-oriented FRA initiatives. Thus, the conclusions from the 2014 Fundamental Rights Conference, rather broadly dealing with ‘Fundamental Rights and Migration to the EU’, specifically highlighted a fundamental-rights-based approach to border surveillance and cooperation with third countries, combatting smuggling and legal ways to enter the EU for persons in need of international protection.18 These conclusions are obviously of special relevance to the migration control measures that were described in the study on fundamental rights at Europe’s southern sea borders. The latter issue was subsequently elaborated upon in a publication usefully presenting a variety of legal entry channels, aiming to remedy the asylum crisis and its inherent risks of exploitation and abuse of forcibly displaced persons, and thereby to operationalize the right to asylum under Article 18 of the EU Charter of Fundamental Rights. The proposed channels were based partly on refugee-related schemes such as resettlement and humanitarian admission, and partly on regular migration schemes such as family reunification that would significantly reduce the risks flowing from the temptation to resort to smugglers’ illegal services.19 A previous comparative study on the fundamental rights of migrants in an irregular situation could be considered as taking a somewhat different approach to the problems encountered by third-country nationals who already find themselves without legal status in the territory of a Member State; focussing on both civil and socio-economic rights under EU law and Council of Europe instruments, this

(pp. 63–64) of this report is a reprint of the Annex on methodology in the report on border checks at airports (cf. pp. 107–108 of the latter). 18 Fundamental Rights Conference 2014, ‘Fundamental Rights and Migration to the EU’, FRA Conference Conclusions, Rome 11 November 2014. 19 FRA, Legal Entry Channels to the EU for Persons in Need of International Protection: A Toolbox, FRA Focus 02/2015 (2015).

190

Jens Vedsted-Hansen

study went well beyond the plight of asylum seekers.20 A policy-oriented follow-up was launched again here by a FRA paper examining the sanctions used to counteract irregular migration, directed at both migrants and those who ‘facilitate’ their irregular entry and stay.21 Recent developments in connection with the European asylum and migration crisis since 2015, as evidenced by reports from international organizations, NGOs and media and in accounts provided by individual asylum seekers, have exacerbated the phenomenon of resorting to restrictive border control measures in certain Member States, including ‘push back’ at land borders to unsafe neighbouring countries and denial of access to the asylum procedure for third-country nationals in search of international protection.22 Against this background, there would seem to be little doubt that there is a need for similar studies to be carried out in the near future by FRA in order to discover and describe the current realities of border control at the external borders of the EU. Although it is explicitly stipulated in the Agency’s Founding Regulation that FRA reports shall not deal with the question of whether a Member State has failed to fulfil an obligation under EU law,23 the general findings of such scientific studies will still provide useful evidence and guidance for the EU institutions and Member States in their efforts to implement EU law; even in the absence of conclusions on any specific Member State’s compliance with EU law standards relating to the Common European Asylum System or the Schengen acquis, such evidence might be of relevance not only to civil society, including academia and the wider public, but certainly also to the Commission which is in charge of enforcing obligations under EU law.

Extraterritorial migration control and the principle of non-refoulement Some of the most significant fundamental rights issues in the context of border control are those arising from Member States’ exercise of jurisdiction beyond their borders, increasingly coordinated and influenced by the EU and not least

20 FRA, Fundamental Rights of Migrants in an Irregular Situation in the European Union (2011). 21 FRA, Criminalisation of Migrants in an Irregular Situation and of Persons Engaging with Them (2014); for a general discussion of this phenomenon, see Guy S. Goodwin-Gill, ‘Regulating “Irregular” Migration: International Obligations and International Responsibilities’, in The Mediterranean Papers – Athens, Naples, Istanbul, September 2015, pp. 3–10. 22 See, for example, European Committee for the Prevention of Torture, Report on visit to Hungary carried out from 21 to 27 October 2015 (CPT/Inf (2016)27), 3 November 2016; Asylum Information Database, AIDA Country Report: Hungary, 2016 Update (Brussels: ECRE, 2017); UNHCR Press Release on the plight of refugees and migrants at Bulgaria borders, Sofia 28 January 2016; AIDA Country Report: Bulgaria, 2016 Update (Brussels: ECRE, 2017); ECtHR, Ilias and Ahmed v Hungary (Appl. No. 47287/15), judgment of 14 March 2017 (referred to the ECtHR Grand Chamber). 23 Article 4(2) of Council Regulation (EC) No. 168/2007 of 15 February 2007 establishing a European Union Agency for Fundamental Rights, OJ 2007 No. L 53/1.

Borders and migration control

191

by the EU Border and Coast Guard Agency Frontex. The ever more widespread practices of extraterritorial migration control are critically decisive for the actual right of access for third-country nationals in search of international protection to the EU territory and to the procedures in Member States for the examination of the need of protection for these applicants. The complexity of the fundamental rights issues connected with borders and border checks is considerably enhanced when the control is shifting location in the sense that migration control is being carried out extraterritorially; the legal problems are often being further complicated due to the fact that control measures are being outsourced to third states or carried out within the framework of cooperative arrangements with non-EU states in the context of ‘integrated management’ of the external borders of the European Union. Some of the fundamental rights issues raised by such controls in their various forms and logistical setups are essentially similar to those created by other kinds of transnational law enforcement, while others are specific to the conduct of extraterritorial migration control. The legal problems connected with the extraterritorial exercise of state authority amounting to jurisdiction have been subject to extensive academic analysis, both in general and with a special focus on migration control measures.24 In addition, the impact of extraterritorial jurisdiction on states’ responsibility for violations of human rights obligations, including those that may occur as part of the specific features of extraterritorial migration control, has been reviewed in cases before international human rights monitoring bodies, especially the European Court of Human Rights and the UN Human Rights Committee. Nonetheless, FRA research has provided, and still can provide, important empirical evidence and normative guidance in addition to the theoretical analyses and judicial reviews just mentioned. This may potentially create significant added value to the effective protection of fundamental rights insofar as transnational law enforcement often tends to dissolve state accountability due to lack of standing, evidence or access to monitoring bodies. Even when these bodies are brought into play and may actually uphold the human rights that were threatened or violated in the first place, this only happens in concrete cases ex post facto, and states’ actions may well have been developed, modified or refined in the meantime, thus already taking heed of the legal dictum of the relevant international human rights body and making its finding outdated or practically

24 See Marko Milanovic, Extraterritorial Application of Human Rights Treaties: Law, Principles, and Policy (Oxford: Oxford University Press, 2011); Thomas Gammeltoft-Hansen, Access to Asylum. International Refugee Law and the Globalisation of Migration Control (Cambridge: Cambridge University Press, 2011), Chapters 3 and 4; Thomas Gammeltoft-Hansen and James C. Hathaway, ‘Non-Refoulement in a World of Cooperative Deterrence’, (2015) 53 Columbia Journal of Transnational Law 2, pp. 235–284; Thomas Gammeltoft-Hansen and Jens Vedsted-Hansen (eds), Human Rights and the Dark Side of Globalisation. Transnational Law Enforcement and Migration Control (Abingdon: Routledge, 2017), Introduction and Chapters 1, 2 and 8–14.

192

Jens Vedsted-Hansen

less relevant once it is being pronounced.25 As an example, the practices of extraterritorial migration control have increasingly involved cooperation with third states which is likely to result in potential migrants being effectively prevented or prohibited from leaving countries of origin or transit in the attempt to enter the EU territory; this ‘pull back’ phenomenon in turn raises new fundamental rights issues in addition to those directly connected with checks of Member States’ borders.26 The challenges arising in connection with extraterritorial migration control were already touched upon by FRA in the study on the southern sea borders of Europe;27 an excerpt from this report was published separately with a view to highlighting the fundamental rights problems arising in the context of Frontex operations.28 As mentioned above in the second section, findings of the abovementioned studies were followed up by FRA initiatives directed towards policy and practice in 2014. The more recent FRA study on the scope of non-refoulement in border management further elaborated on these fundamental rights issues by combining an overview of the relevant legal norms – including what was termed ‘evolving areas of law’ – and more concrete guidance for EU bodies and Member States on the approaches and working methods that appear relevant and necessary in order to minimize the risk of refoulement in external border management, in particular when cooperating with the border control or law enforcement authorities of third countries.29 The guidance on how to reduce the risk in such border management situations, often involving extraterritorial migration control measures with the assistance of third states, includes the conduct of prior assessment and monitoring of the human rights situation in the relevant third country; clarification of responsibilities and procedures in arrangements and operational plans concerning joint operations or patrols; including fundamental rights in training and other capacity-building activities; and precaution in cases of real risk of harm and facilitation of access to international protection at borders.30 This could be seen as an example of quite a ground-breaking initiative by which FRA aims to translate scientific research and the identification of general legal norms, some of which may be in a more or less nascent stage, into

25 Cf. Thomas Gammeltoft-Hansen and Jens Vedsted-Hansen (fn. 24), pp. 9–11. 26 Cf. Nora Markard, ‘The Right to Leave by Sea: Legal Limits on EU Migration Control by Third Countries’ (2016) 27 European Journal of International Law 3, pp. 593–616. 27 FRA, Fundamental Rights at Europe’s Southern Sea Borders (2013), Chapter 3 on interception and non-refoulement; see also Chapter 4 on maritime surveillance systems. 28 FRA, EU Solidarity and Frontex: Fundamental Rights Challenges (2013). 29 FRA, Scope of the Principle of Non-Refoulement in Contemporary Border Management: Evolving Areas of Law (2016); the report includes the document ‘Guidance on how to reduce the risk of refoulement in external border management when working in or together with third countries’, see pp. 7–9. 30 Ibid., pp. 8–9.

Borders and migration control

193

concrete advice for the policymakers and migration control practitioners at EU level and in Member States. While not necessarily uncontroversial, the study on the scope and impact of the principle of non-refoulement in border management has the potential of enhancing the likelihood that fundamental rights, enshrined in Articles 18 and 19 of the EU Charter, for third-country nationals in need of international protection will become effective and real, notwithstanding the complex modalities of extraterritorial migration control as an important and highly problematic feature of transnational law enforcement. As quite a novelty in organizational terms, the legal analysis and the recommendatory guidance relating to the principle of non-refoulement are the result of an exchange between the legal experts within FRA and external academics, not only by way of outsourcing desk research in preparation of the legal analysis, but also by inviting a number of experts with practical, organizational or scientific experience pertaining to the topic of the study to contribute to the conclusions and the recommended practices. This might seem to be a useful way of enhancing the Agency’s exchange with the academic community while at the same time ensuring the practical relevance of its research and advice for policymakers and practitioners.31

Limitations and potentials: FRA mandate and scope of EU competence The Founding Regulation and the Multi-annual Framework Recent developments in EU law and policy concerning borders and migration control illustrate some more general delimitation issues relating to the scope of research and other activities undertaken by FRA. Such questions follow partly from the Agency’s mandate under the Founding Regulation and partly from the delimitation of the scope of regulatory competence of the EU as such. While the Founding Regulation does delimit FRA’s mandate, this delimitation does not seem to be a serious impediment to its research; by referring to fundamental rights issues in the EU and in Member States when implementing EU law, the Regulation essentially enables the Agency to conduct studies on all fundamental rights issues that may arise within the scope of EU law, in line with the scope of application of the EU Charter of Fundamental Rights.32 Perhaps most importantly, the delimitation of the Agency’s mandate laid down in the Founding Regulation should not be confused with the impact of the five-year Multi-annual Framework. The latter has the purpose of delimiting

31 It is worthwhile noting that FRA has indeed involved external experts in the course of other projects, yet on this occasion the organization of the research process allowed for particularly extensive exchanges with the external experts involved. 32 Article 3 of Council Regulation (EC) No. 168/2007 of 15 February 2007 establishing a European Union Agency for Fundamental Rights, OJ 2007 No. L 53/1.

194

Jens Vedsted-Hansen

FRA’s tasks to certain thematic areas, currently including ‘migration, borders, asylum and integration of refugees and migrants’, but not police cooperation and criminal justice.33 This might be argued to limit FRA research activities on certain aspects of extraterritorial migration control as this could potentially be involving transnational police activity and cooperation in criminal matters. However, such migration control measures will usually be inseparable from the exercise of the fundamental rights pertaining to asylum, as laid down in Articles 18 and 19 of the EU Charter, and thus included in the specific thematic area concerning migration, borders and asylum just quoted. Furthermore, the exclusion of police and criminal justice cooperation from the Multi-annual Framework does not prevent FRA from responding to requests from the European Parliament, the Council or the Commission on such matters; this type of activity is not limited by the Multi-annual Framework and can therefore be conducted by FRA as long as the requests fall within the Agency’s general mandate under the Regulation.34

Limits on the scope of EU competence Certain treaty-based limitations on the EU’s regulatory competence seem to be of relevance to external border control measures, not least in the extraterritorial context. Interestingly, the limitations on the scope of EU competence, potentially impacting FRA’s area of activities, may be paralleled by similar limitations on the scope and extent of review by the Court of Justice of the EU of such activities even if they have been initiated and coordinated by the EU and performed by Member States as part of harmonized policies relating to extraterritorial migration control. It seems to be a rather clear tendency in EU migration and asylum governance, well in line with the increased importance of extraterritorial control measures, to rely on international cooperation and external policymaking framed either as part of the Common Foreign and Security Policy or as concerted action by the Member States.35 Although such external policy decisions may operate as de facto determinants for Member State policies and practices at the domestic level on the admissibility of asylum applications and nonadmission of asylum seekers, they may be considered as formally falling outside the ambit of EU law and hence beyond the scope of judicial review by the

33 Article 2 (d) and (e) of Council Decision 2017/2269 of 7 December 2017 establishing a Multi-annual Framework for the European Union Agency for Fundamental Rights for 2018–2022, OJ 2017 No. L 326/1. 34 Cf. Article 5 (3) of Council Regulation (EC) No. 168/2007 of 15 February 2007 establishing a European Union Agency for Fundamental Rights, OJ 2007 No. L 53/1, referring to Article 4 (1) (c) and (d); for an additional discussion of this issue, see Chapter 1 of this book. 35 Cf. Jens Vedsted-Hansen, ‘Current Protection Dilemmas in the European Union’, in Carolus Grütters et al. (eds), Migration on the Move. Essays on the Dynamics of Migration (Leiden: Brill Nijhoff, 2017), pp. 109–112.

Borders and migration control

195

36

CJEU. As a potential consequence, FRA may appear to be prevented from undertaking scientific research, at least in terms of legal analysis, of such policy decisions, notwithstanding their actual impact on access to international protection and possibly other fundamental rights aspects of extraterritorial migration control. In a somewhat similar manner, the fact that certain legal measures relating to migration control are considered to fall outside the scope of EU law because they are exclusively governed by Member States’ national law could also be considered as delimiting the scope of FRA’s mandate to subject such issues to scientific examination.37 Thus, jurisdictional delimitations and limits on the scope of EU regulatory competence may have actual and potential impact on FRA’s activities relating to borders and migration control insofar as the demarcation of EU law vs Member States’ national law has significant implications not only for the scope of CJEU review, but also for the scope of application of the EU Charter of Fundamental Rights. Regardless of the formal status of EU law as a basis for harmonized policies relating to extraterritorial migration control, however, the legal consequences of such policy decisions in terms of access to international protection can often be framed as questions pertaining to the interpretation and application of EU law. Again here, due to the consequences of migration control for access to international protection in Member States, and hence for the actual exercise of fundamental rights under the EU Charter pertaining to asylum, it is conceivable that certain situations or decisions resulting from arrangements with third countries may be addressed in legal terms as questions of interpretation of instruments within the Common European Asylum System. As an example, it can be mentioned that the operation of the EU–Turkey arrangement of 18 March 2016, whether or not this constitutes a legally binding or other formal measure adopted by the EU, in practice results in applying the criteria relating to ‘first country of asylum’ and ‘safe third country’ under the Asylum Procedures Directive in concrete admissibility decisions.38 Such decisions taken by Member State authorities will indisputably be a matter of implementing EU law, thus bringing the Charter of Fundamental Rights into play;39 studies and analysis of these legal issues would therefore be relevant from a fundamental rights perspective and consequently falling within FRA’s mandate.

36 Cf. CJEU Case T-192/16, NF v European Council, Order of the General Court of 28 February 2017 concerning the EU–Turkey arrangement of 18 March 2016; appeals against this and two similar Orders were dismissed by the Court of Justice on 12 September 2018, Cases 208-210/17 P, NF, NG, NM. 37 See, as a recent example, CJEU Case C-638/16 PPU, X and X v État Belge, judgment of 7 March 2017 concerning an application for a visa on humanitarian grounds. 38 Cf. Articles 33, 35 and 38 of Directive 2013/32/EU of the European Parliament and of the Council of 26 June 2013 on common procedures for granting and withdrawing international protection, OJ 2013 No. L 180/249. 39 Cf. Article 51 (1) of the EU Charter of Fundamental Rights.

196

Jens Vedsted-Hansen

Extending the scope of FRA activities? Developments in recent years in FRA’s cooperation with other EU agencies active in the area of migration and asylum point towards a possible extension of the scope of activities undertaken by FRA. These developments can only be briefly discussed here, the focus being on elements of the Agency’s cooperation with Frontex, EASO and other authorities. In its capacity of member of the Frontex Consultative Forum on fundamental rights, FRA has become involved in a variety of activities, some of which can be seen as complementing the FRA studies on border control measures mentioned above in the second section. In particular, the Consultative Forum has certain possibilities to observe joint border control operations coordinated by Frontex; however, members’ access to operations is quite limited and appears to be a mere possibility in that Frontex ‘may’ invite members for such visits and Consultative Forum members ‘can’ visit joint operations, but not by unilateral decision, randomly or at short notice, nor is there a ‘right to such visits’.40 As a consequence of the European asylum and migration crisis, FRA entered into a more operational role by providing fundamental rights expertise to the European Commission, EASO and Frontex, as well as to national authorities in connection with the ‘hotspot’ approach being implemented in Greece and Italy since 2015. This activity has included the posting of FRA staff in some of the ‘hotspot’ centres in 2016 and 2017.41 Such field presence implies clear advantages in terms of providing practical advice and guidance to the authorities which are formally involved in the operation of the centres, and it creates a rather unique opportunity for FRA to access information on realities on the ground and their fundamental rights impact. At the same time, operational involvement seems to entail certain risks of becoming so closely connected to the EU and Member State authorities responsible for general and concrete decisions taken as part of their operation of the ‘hotspots’ that it might be seen as jeopardizing the role of FRA as an independent actor in the field of EU fundamental rights. Whether or not this risk materializes depends largely on the extent to which FRA is able to follow up on such fieldwork by analyzing and disseminating the information gathered; one such study has already been published, on the request of the European Parliament, identifying the fundamental rights challenges in ‘hotspots’ and offering advice on possible measures to mitigate the risk of operational actions not in compliance with the EU Charter.42 The extent and quality of such scientific follow up may ultimately be contingent on the allocation of sufficient resources to this particular and rather novel kind of fundamental rights assistance and advice.

40 Frontex, Annual Report. Frontex Consultative Forum on Fundamental Rights 2013 (2014), p. 13; see also the Second Annual Report 2014 (2015), pp. 29–30 and Third Annual Report 2015 (2016), pp. 19–25. 41 FRA, Fundamental Rights Report 2017 (2017), pp. 20–22 and 125–127. 42 FRA, Opinion on Fundamental Rights in the ‘Hotspots’ set up in Greece and Italy, Opinion No. 5/2016 (2016).

14 Embedded EU research on refugee protection FRA’s work on asylum and irregular migration Rosemary Byrne

Introduction In the ten years since FRA began its work on asylum, the EU refugee regime has descended into crisis. Through the prism of the Agency’s work one can map the fault lines in protection that emerged in EU and national policies. Agency reports also identify an array of innovative practices developed by Member States (MS) and civil society. FRA’s asylum research sheds light on the subtle shifts in the approach of EU and frontline MS regarding how they ‘manage’ migration, as well as on reforms of the Common European Asylum System (CEAS). As the refugee situation evolved in the EU, so too in the unfolding crisis did the nature of FRA’s research and its engagement with regional, national and grassroots actors. Asylum and migration remain the areas where FRA has produced the largest number of research reports and papers. Since 2016, its presence in Greece highlights its behind-the-scenes support for EU actors on the ground. The asylum research profile of the Agency is one layer of a deeper engagement with EU institutional and migration policy actors. FRA’s research engagement with asylum policy arises at a time when the EU is encountering some of its most serious legitimacy challenges, and when the migration crisis has come to symbolize the struggles of European leadership and co-operation. This chapter explores some of the distinguishing features of FRA asylum research within the delicate EU institutional and political ecosystem, with a particular focus on the way in which FRA addresses the rights of protection seekers once they have entered the EU. While much of academic asylum scholarship focusses on the EU legal rights framework up to and including status determination, FRA’s work also engages significantly with the precarious situation of rejected asylum seekers and other irregular migrants, such as those subject to removal or without lawful status to remain within the EU.1 These are arguably amongst the most vulnerable individuals within the jurisdiction of MS.

1 See FRA, Fundamental Rights of Migrants in an Irregular Situation in the European Union (2011).

198

Rosemary Byrne

FRA and other international and regional actors in asylum As an EU Agency, FRA produces research that is directed by questions of EU policy concern. These may be broad, such as work on non-refoulement at borders or secondary movements of asylum seekers within the EU. Much of the research, however, is narrow and technical, such as the work on safeguards with respect to fingerprinting of migrants.2 With over two dozen EU legal instruments that touch on the rights of asylum seekers and irregular migrants, FRA’s focus on the operational level of rights implementation in EU and state practice requires that the Agency renders a complex web of legal provisions accessible to different stakeholders. While its research is independent, official EU and MS migration policy priorities and pre-existing legal categories inevitably shape the nature of the research questions pursued in FRA reports. FRA’s reports are distinct from mainstream academic scholarship, which gravitates towards research questions that aggressively challenge EU policies and their underlying rationales. FRA’s position within the Brussels policy sphere subtly steers the orientation of its research towards accepting the underlying assumptions of EU legislation, and focussing instead on raising rights standards and identifying ‘promising practices’ of MS. FRA research reports, papers and legal opinions are the end product of a process that is derived from choreographed interactions amongst a wide array of EU stakeholders. The main audience of the Agency’s work consists of the relevant EU institutions, primarily the Commission, as well as the European Parliament, in particular the LIBE Committee, other Justice and Home Affairs Agencies, such as Frontex and the European Asylum Support Office (EASO), and MS. Asylum is an area crowded by other international actors, including UNHCR, IOM, UNODC, UNHCHR, and the Committee for the Prevention of Torture, and regional bodies such as the Council of Europe. For FRA’s asylum research to have the most impact, it needs to be tailored strategically to fit within the broader matrix of interventions by migration policy actors in the field. When reviewing FRA research reports, it is important to realize that while they might be read as stand-alone research by external stakeholders, the contours and approach of the reports should be considered within the asylum policy-making matrix within which FRA is attempting to influence both legislative and political processes. The large number of third-country nationals entering the EU, with and without lawful status, triggers an expansive range of rights issues of which only a small proportion can be targeted by the resources of the Agency. Given the scale of the migrant crisis, the small number of research staff within the Agency working on asylum is striking, as the unit has included only 3.5 to 7 persons at different periods, with most of the field work contracted

2 Opinion of the European Union Agency for Fundamental Rights on the impact on fundamental rights of the proposal for a revised Eurodac Regulation (2016).

Embedded EU research on refugee protection

199

out. The key to understanding the objectives and scope of a given report lies in the introduction where the basis for the initiation of the project is usually explained. Much of the Agency’s asylum research responds to formal requests from the Commission and the European Parliament, and is linked to specific policy objectives. Hence one could characterize FRA’s asylum research more as an intersection, rather than a confrontation, with EU and MS refugee policymaking processes.

FRA’s multiple approaches to asylum research in the crisis In order to provide relevant fundamental rights input in the asylum policyformation process in Brussels and national capitals, FRA’s research needs to be versatile enough to capture and respond to the realities on the ground. From 2011 onwards the rise in the number of protection seekers and other migrants arriving at Europe’s shores, and increasingly dying or suffering grave human rights violations in order to do so, created a crisis for frontline receiving states and an unprepared EU. What is distinctive in FRA’s work is not its method, but its focus. FRA asylum research relies upon rather conventional legal and (where qualitative interviews have been used) social science methodology. Many of the contributions to this volume highlight the complexities of producing the evidence-based policy research that lies at the core of FRA’s mandate. Often FRA must rely upon data collected differently, if at all, by different MS. The experience of asylum seekers and irregular migrants is captured according to the vagaries of national data collection across the 28 MS, whether it relates to the outcome of status determination procedures, access to healthcare, family reunification, records of hate crime, gender violence, or any other core issues that impact on the fundamental rights of asylum seekers. The gaps in data are compounded by the fact that irregular migrants that are in the most precarious circumstances often attempt to remain invisible to authorities. In the case of asylum, FRA is not, to date, experimenting with new methodologies or indicators, as it has in other fields. As VedstedHansen observes in Chapter 13, in addition to mainstream legal research methods, FRA has successfully employed socio-legal approaches in some studies to capture the rights reality on the ground. FRA was established in the pre-crisis era, at a time when the field of asylum research was mature and densely populated, and a high quality of legal research on the asylum acquis was being produced. Until very recently, with the 2016 expert roundtable on the evolution of the principle of non-refoulement in European state practice, normative work on asylum, of which a large volume has been produced by refugee law scholars and advocates, was largely eschewed by the Agency.3 Instead FRA’s output primarily targeted fundamental rights issues surrounding border

3 FRA, Scope of the principle of non-refoulement in contemporary border management: evolving areas of law, 29(3) International Journal of Refugee Law (2017).

200

Rosemary Byrne

practices, initially looking at illegal migration and returns. With the human rights crisis that accompanied the surge in arrivals from the Mediterranean and Aegean seas, FRA’s work steadily expanded to include the severe protection problems that were occurring on the southern sea borders, on transit routes within the EU, as well as within MS receiving primary and secondary movements of migrants. Alongside this work has been some examination of the core economic and social rights issues confronting asylum seekers once they enter the EU, such as reception conditions, absence of adequate healthcare, and the conditions of select vulnerable populations, such as LGBTI, women and children. Different objectives have been served in FRA’s asylum research output during the crisis. For instance, as the Commission and MS turned to biometrics as a tool for managing the surge of inward migration with the collection of information on those entering and moving within the EU, FRA launched its biometric project and, upon request, developed related legal opinions on the rights implications of fingerprinting, data collection and interoperability between large IT databases. These were technical issues that bypassed the research agenda of mainstream refugee scholarship. Empowered under the FRA Founding Regulation to provide evidence-based policy advice, the Agency also navigates a more delicate course, needing to counsel on rights issues of immediate and often urgent concern. FRA does not have the capacity to act as a fully fledged human rights monitoring body, a role not envisioned in the Agency’s mandate.

‘Real time’ research As a result of the crisis, FRA has coupled its larger studies with the compilation of ‘real time’ research data. The European Commission requested FRA to collect data about the fundamental rights situation of people arriving in those MS that were particularly affected by large migration movements. The Agency responded with what is now a publicly accessible monthly newsletter that pools information from actors and migrants on the frontline of migrant arrivals in Austria, Bulgaria, Denmark, Finland, France, Germany, Greece, Hungary, Italy, the Netherlands, Poland, Slovakia, Spain and Sweden. Different in kind from the reports of human rights advocacy bodies, these regular overviews usually flag, rather than analyze or attribute responsibility for, the fault lines in the overextended protection regimes in host states. These newsletters constitute FRA data collection that most resembles human rights monitoring reports. Notably, they are published with a disclaimer stating that the field work is done by its contractor network, FRANET, and that ‘[t]he reports contain descriptive data that were based mainly on interviews, and do not include analysis or conclusions. They are made publicly available for information and transparency purposes only, and do not constitute legal advice or legal opinion. The reports do not necessarily reflect the views or official position of the Agency’.4 Initially in 2015

4 See FRA, ‘Disclaimer’ in Regular Overviews Of Migration Related Fundamental Rights Concerns (available at: http://fra.europa.eu/en/theme/asylum-migration-borders/overviews).

Embedded EU research on refugee protection

201

these were weekly reports that brought together a fragmented collection of information from actors in the field, recording the symptoms of what might be serious systemic protection gaps for migrants once they are within the EU. The approach of the Agency changed over time, moving towards more analytical quarterly reports that focus on thematic rights challenges emerging, often rapidly, in receiving states. ‘Real time’ reports are by definition short, and often shallow, but they are red flags that can direct policy attention. They also join more detailed and assertive reporting from civil society on the ground, adding the voice of an inside EU institution and further amplifying the call for policy responses. For instance, the monthly overviews have recorded the presence in some MS of cases of tuberculosis; the absence of preventative mechanisms for violence against women in reception centres and the reluctance of victims to report instances of violence to authorities; and the failure of governments to collect systematic and reliable data, particularly regarding the arrival of asylum seekers with or without family members and in relationship to requests for family reunification.5 ‘Real time’ collection of information from the frontline can focus policy attention on protection gaps that arise in the fast-moving environment characteristic of situations of mass influx. Aside from the monthly newsletters, there are instances where FRA’s substantial research reports have shaded into more assertive human rights monitoring, such as its 2011 report on The Situation of Persons Crossing the Greek Land Border in an Irregular Manner.6 This work is unique among the Agency’s reports in its focus on a specific Member State and in its tone. Declaring the situation at Greek borders as ‘a fundamental rights emergency’, FRA condemned the treatment of all irregular migrants who were being automatically detained, including children, pregnant women and babies in detention centres. In the Evros region, FRA strongly concluded that the centres ‘can only be described as inhumane’. The Agency further exposed the absence of emergency measures by the Greek government.7 FRA was not the only body highlighting the grave rights violations for asylum seekers in Greece. FRA’s ‘emergency’ declaration in this report came out in March of 2011, two months after the European Court of Human Rights judgment M.S. S. v Belgium and Greece, where the Grand Chamber considered the living situation in Greece of the applicant, an Afghan asylum seeker. It found that the ‘degrading’ detention conditions and extreme poverty upon release when ‘combined with the prolonged uncertainty in which he has remained and the total lack of any prospects of his situation improving’ were not compatible with the obligations of Contracting Parties under Article 3 of the ECHR. Informing the Grand Chamber’s condemnation of the Greek conditions at the time were inter alia reports from UNHCR, Amnesty, CPT and the Council of Europe

5 Ibid. 6 FRA, Coping with a Fundamental Rights Emergency: The Situation of Persons Crossing the Greek Land Border in an Irregular Manner (2011). 7 Ibid.

202

Rosemary Byrne

Commissioner for Human Rights.8 After the watershed ruling, FRA’s subsequent report revealed how the Agency exercises its distinct and complementary role as an EU body within the framework of policy actors, highlighting the failings in allocating available EU funds.9 Offering a critical perspective from an EU-based vantage point, the Agency was able to demonstrate how the money allocated within the four financial solidarity mechanisms, the EU Refugee Fund (ERF), the EU External Borders Fund, the EU Return Fund and the EU Fund for the Integration of Third-Country Nationals, had not been fully utilized, diluting their impact on addressing the current fundamental rights gaps.10 One obvious effect of this is to nudge authorities to eradicate bureaucratic and political barriers to the timely allocation of funds to meet the urgent needs on the ground. Another effect is to debunk possible narratives that portray rights violations as exclusively linked to resource deprivation.

Embedded research The most serious protection risks confronting asylum seekers and irregular migrants commonly exist outside of public view, be it inside border, immigration and asylum offices, or in reception and detention facilities. Moreover, among the most vulnerable of asylum seekers and irregular migrants are those that aim to remain off of the radar. In its first report on Severe Labour Exploitation for Workers Moving Within or Into the European Union, FRA focussed on qualitative data provided by officials and non-governmental organizations (NGOs), omitting the voice of victims because of the difficulties of finding a sample group.11 In order to channel the experience of migrants in the asylum crisis, FRA’s relationship to NGOs and staff from international, EU and governmental bodies that are working on the ground is critical for its research. The nature of FRA’s asylum research flows in part from the scope of FRA asylum projects, which are often determined by the nature of the requests from Brussels. Its empirical research frequently centres on a desire to capture the ‘lived experience’ on the ground of the rights holder. Its approach, however, typically appears tailored by its pursuit of policy impact. Guilfoyle cautions against ‘viewing the security state as monolithic from without whereas it is composed of real people performing real jobs, whether as naval or customs officers,

8 EctHR (GC), M.S.S. v Belguim and Greece (App no 30,696/09) judgment of 21 January 2011. 9 Ibid., note 6. 10 Ibid., note 6, pp. 37–38. 11 FRA, Severe Labour Exploitation in the EU: Workers Moving Within or Into the European Union (2015); FRA, Protecting Migrant Workers From Exploitation in the EU: Boosting Workplace Inspections (2018); FRA, Out of Sight: Migrant Women Exploited in Domestic Work (2018).

Embedded EU research on refugee protection

203

12

migration control agents or government lawyers’. This diverse range of officials, and the challenges and motivations that influence how they engage with asylum, ultimately shapes rights-compliant or transgressive practices. In each report, FRA weaves together data and analysis of both promising and compromised MS practices in the Agency’s ‘recommendations’ and ‘opinions’. The reports provide guidance on anything from the adaptations needed to facilities in reception centres in order to protect women from sexual violence, to practical principles for a rightscompliant process for taking fingerprints of uncooperative asylum seekers. In many reports the presentation of evidence of reality on the ground, and the ways in which this is reflected in the scope and strength of the Agency’s conclusions, is mediated by FRA’s objective of speaking to the respective authorities accountable at the relevant level. In this process, its work straddles an awkward divide. On the one side, FRA engages with the inner policy domain of the European Commission and EU institutions and Member States and, critically, with border and asylum officials. On the other side it is engaging with the external world of civil society, highly vulnerable migrants and strained host communities. Figuring out precisely how to address the expectations of these multiple stakeholders, in order to have the desired greatest impact, is an on-going process. Compared with most stakeholders working in the field of asylum, FRA occupies a unique position. Its work has the potential to offer insights coming from its ability to enter into and observe spaces generally closed to other researchers. It enjoys access to officials and areas outside of the public domain, and to financial resources that few scholars enjoy. FRA researchers have been present on Frontex boats, inside detention facilities and have observed border controls in major European airports; this type of access is rare, if not impossible, for the academic community to gain. Yet even for an EU Agency, gaining access still depends on the discretion of MS, EU institutions and agencies. This dependence can affect research methodologies, as when the terms of access granted change within the course of a project.13 Where access to facilities and personnel are required, the selection of MS to include in a study in the first place will be determined by the willingness of select MS to grant access, which entails the potential exposure to criticism of their respective asylum laws and practices. This sensitivity attaches to most of the areas under FRA’s

12 Douglas Guilfoyle, “Jurisdiction at sea: migrant interdiction and the transnational security state”, in Thomas Gammeltoft-Hansen & Jens Vedsted Hansen (eds) Human Rights and the Dark Side of Globalization (Abingdon: Routledge, 2017), p. 117. 13 See FRA, Fundamental Rights at Airports: Border Checks at Five International Airports in the European Union, Annex 1, (2014) p.107 (different levels of access granted to FRA researchers by authorities required adapted methodology. Access was declined by Heathrow airport and subsequent authorization for Manchester airport excluded interviews with thirdcountry nationals and access to the temporary detention centre, preventing the report from addressing passenger opinions for the airport. Likewise, at Fiumicino airport in Rome, researchers were prevented from observing checks after landing/at the gate and including interviews with persons found with false documents or stopped without documents who might be held overnight).

204

Rosemary Byrne

mandate, but it might apply to a greater degree with respect to the rights of asylum seekers, as inward migration to the EU of refugees and irregular migrants remains one of the most politically charged policy arenas in MS. In this wider context, one presumes that an EU research agency would exercise a strategic sensitivity in the focus and the tone of reports, and this might explain the subdued language in some FRA report conclusions. FRA reports identify asylum rights standards, yet while they note potential violations in state practice they generally avoid stigmatizing specific states. A constructive approach is generally taken by the Agency, recommending ‘alternative’ and ‘promising practices’.

Irregular migrant research FRA’s asylum and migration research provides a strong reminder to the EU and MS that alongside sovereign rights to control borders and remove individuals unlawfully present within the EU, the rights conferred by the Fundamental Rights Charter apply to all individuals regardless of their legal status. In 2015 FRA produced an infographic on ‘Dealing with Migration and Refugee Flows’ that outlines the Agency’s work in the field. Notably, the graphic shows the path of the asylum seeker up to and until refugee status determination and identifies the research reports of the Agency addressing the various state actions and obligations that arise from border entry, fingerprinting, biometrics, criminalization of irregular migrants, guardianship for child trafficking victims and alternatives to detention.14 It then includes the trajectory of issues that affect those asylum seekers granted refugee, humanitarian or other legal statuses. The graphic critically includes the other trajectory of rejected asylum seekers and irregular migrants who might not even have presented themselves to national asylum systems, or who, for a range of motivations, choose to go, or are driven, underground. In 2016, the European Agency for Law Enforcement Cooperation (EUROPOL) estimated that within the past two years 10,000 unaccompanied minors had gone missing in Europe.15 FRA’s focus on the serious rights violations that confront irregular migrants, regardless of their legal status, illustrates the efforts of the Agency to capture the realities on the ground and the precarious situation of those who fall outside most domestic legal protections. In its reports Fundamental Rights of Migrants in Irregular Situation (2011) or its updated summary on Healthcare Entitlements of Irregular Migrants in EU 28 (2015) the Agency brings to light the dynamics that lead to severe and potentially life-threatening violations related to the denial of access to healthcare. In an

14 EU FRA, ‘Dealing with Migration and Refugee Flows’ (Infographic) available at: https://fra. europa.eu/sites/default/files/fra_uploads/fra-2015-asylum-infographic_0.pdf. 15 BBC News, ‘Why are 10,000 migrant children missing in Europe’ (12 October 2016).

Embedded EU research on refugee protection

205

economic cost analysis of the implications of restricting access to healthcare, FRA reviewed MS policies towards asylum seekers and irregular migrants.

Conclusion FRA’s asylum research operates from a shifting baseline of objectives, responding to the varied policy agendas of the Agency’s multiple audiences. In the course of the migration crisis, FRA’s approach to asylum has evolved to include the provision of ‘real time’ research, alongside research that is strategically embedded within the matrix of international, regional and national actors engaged with migration protection issues in the crisis. It has ensured that the rights of irregular migrants are not overlooked. As in other thematic areas, the research undertaken by the Agency is confined by its mandate under the Agency’s founding regulation.16 The five year Multi-Annual Framework (MAF) includes thematic areas relating to ‘immigration and integration of migrants, visa and border control and asylum’.17 Asylum falls at the end of this list of areas typically associated with restrictivism and sovereign rights. FRA’s work demonstrates, however, that asylum rights are not an inconvenient afterthought. The legal status of migrants and their specific vulnerabilities may change in the course of their stay in Europe, but the need for policies to provide safeguards against rights violations remains constant.

16 Council Regulation (EC) No. 168/2007 of 15 February 2007 establishing a European Union Agency for Fundamental Rights, OJ 2007 No. L 53/1. 17 Article 2 (e) and (h) of Council Decision No. 252/2013/EU of 11 March 2013 establishing a Multi-annual Framework for 2013–2017 for the European Union Agency for Fundamental Rights, OJ 2013 No. L 79/.

Part III

Overcoming constraints

15 FRA’s response to the current human rights challenges Manfred Nowak and Anna Müller-Funk

The human rights environment ten years ago The EU Fundamental Rights Agency (FRA) was established through Council Regulation (EC) No 168/2007 of 15 February and opened its doors in March 2007 in Vienna as the successor organization of the European Monitoring Centre on Racism and Xenophobia (EUMC). Its creation was a long overdue step towards a stronger commitment to and coherence of EU policy with regard to human and fundamental rights, as was already stipulated in 1998 in the Human Rights Agenda for the European Union for the Year 2000. The agency was founded in a time of comparatively high levels of trust in the European Union: in the 2007 Eurobarometer, 48 per cent of respondents stated that they tend to trust the European Union, while 36 per cent tended not to trust it.1 There was a general spirit of optimism towards the enlargement of the Union (2004: Estonia, Latvia, Lithuania, Malta, Poland, Slovakia, Slovenia, Czech Republic, Hungary and Cyprus; 2007: Bulgaria and Romania) as a strong symbol of a united Europe that rectified the divide of the Cold War period. The new Member States implemented the EU acquis, often in an exemplary manner, with progressive non-discriminatory policies and an emphasis on democracy and the rule of law. The introduction of the Euro, as the common currency of the EU, was generally seen positively at the time and reinforced the perception of a united Europe as a strong and equal counterpart to the world powers. At the time it seemed as if the promise of the EU, namely to re-unite Europe after the Cold War and to transform Europe into a region of unity, prosperity and democracy underpinned by the rule of law and human rights, would be kept. Today, more than ten years later, this promise, at least in parts, seems to have lost its credibility. Compared with the levels of trust towards the EU in 2007, the numbers are now reversed: over 50 per cent (55) of respondents to the

1 European Commission, Standard Eurobarometer 2007, p. 98, available at: http://ec.europa. eu/commfrontoffice/publicopinion/index.cfm/Survey/getSurveyDetail/instruments/ STANDARD/surveyKy/664.

210

Manfred Nowak and Anna Müller-Funk

2016 Eurobarometer stated that they tend not to trust the EU, while only 33 per cent of respondents still have a tendency to trust it.2 This is surely linked to the events occurring both in and around the EU in the past decade: the economic and financial crisis and the Union’s response to it, the failure of the Arab Spring that initially promised democratization of the Arab region, and the 2015 crisis of EU refugee policy, just to name a few. In short, the environment in which the Agency operates has changed significantly in the past ten years and with it the scope of the Agency’s activities.

The world in turmoil? Today we are witnessing the most serious global human rights crisis since the end of World War II. The fall of the Iron Curtain in 1989, which led to the end of the Cold War, opened a historic window of opportunity, promising a new world order based on peace, global justice, democracy and human rights. It appears, however, that only the architects of a neoliberal economic world order – based on the deregulation of global economic and financial markets and the privatization even of core state functions – were able to exploit the collapse of Communism in Europe. This had far-reaching negative effects on the enjoyment of human rights, leading to failed states, armed conflicts, globally organized crime and various economic, financial, food, water, climate and other inter-related crises. Furthermore, it resulted in a sharp increase in economic inequality across the world, as well as in the power of transnational corporations, global financial markets and other non-state actors. This contributed to the undermining of the social and democratic fabric of our societies. The rapid globalization driven by neoliberal market forces created a feeling of insecurity, which pushed, and continues to push, many people into the arms of religious, nationalist or populist leaders. Ethnic and religious tensions, radicalization and extremism, armed conflicts, terrorism and organized crime are the root causes of mass refugee movements and the reason why there are more refugees and displaced persons today than in any other year since World War II. Yet, the refugee and migration movements from the global South to the rich countries in the global North fuel the fears, the feeling of insecurity, radicalization, populism and authoritarianism even further.3 The 2017 Global Peace Index (GPI) of the Australian Institute for Economics and Peace (IEP) illustrates that Europe became, due to terrorist attacks, the arrival of an increasing number of refugees, alongside the EU asylum policy crisis and a declining perception of security among Europeans, less peaceful,

2 European Commission, Standard Eurobarometer 2016, p. 85, available at: http://ec.europa. eu/commfrontoffice/publicopinion/index.cfm/ResultDoc/download/DocumentKy/ 77320. 3 See M. Nowak, Menschenrechte. Eine Antwort auf die wachsende ökonomische Ungleichheit, Wien, Edition Konturen, 2015.

FRA’s response to the current human rights challenges

211

4

reaffirming developments that had already emerged in the 2016 GPI. The founder of this think-tank explains this development as follows: People are looking for alternative narratives and political parties, as the public trust in their governments decline, due to a rise of inequality as well as the perception of corruption. This has an increasingly negative effect on peace [in Europe] particularly in France, Italy and Spain.5 The European Union is deeply entrenched in these global crises: on the one hand as a driving force of building and solidifying the global neoliberal architecture, and on the other as a victim of the long-term consequences of these crises. The European Communities was established in the 1950s as a European peace project. By integrating national economies and creating a common market across Europe, the European Communities played a crucial role in preventing another war between European nations and fostering peace, security, prosperity and human rights in Europe and beyond. This took place at a time when economic growth was strongly linked to the idea of the social welfare state, where relatively high levels of taxation, political control of the economy and the redistribution of wealth prevented a rise in economic inequality. However, whilst economic integration was leading to political integration and the founding of the European Union with the Maastricht Treaty of 1992, European nations, spearheaded by the European Union, were already fully endorsing neoliberal architecture, led by the US, the UK and international financial institutions, based on the 1989 ‘Washington Consensus’. Article 2 of the Treaty of the European Union proclaims that the Union is based on common European values: human dignity, freedom, democracy, equality, the rule of law, human rights, pluralism, non-discrimination, tolerance, justice and solidarity. Nevertheless, the neoliberal economic policies of the Union undermined these core values and led to a level of economic inequality similar to the level of inequality in Europe just before the outbreak of World War I.6 If the European Union is unable to drastically change its economic policies and embrace its founding values of solidarity, justice, equality and human rights, the consequences are likely to be disastrous. During a referendum driven by right-wing populists, the British voted to leave the EU, paving the way for Brexit. Other right-wing politicians in France, Germany, the Netherlands, Austria and other Member States are openly advocating a similar position towards the Union. In Hungary and Poland, authoritarian leaders have already assumed power and are openly undermining the

4 http://visionofhumanity.org/reports/. 5 www.welt.de/politik/ausland/article165116093/Populismus-gefaehrdet-den-Frieden-inEuropa.html. 6 See T. Piketty, Capital in the Twenty-First Century, Cambridge, MA: Harvard University Press, 2014.

212

Manfred Nowak and Anna Müller-Funk

European values of democracy, the rule of law, human rights and solidarity. This was particularly apparent during the crisis of the ‘common’ European asylum policy in 2015: in particular the Eastern European countries refused to commit to European solidarity in the reception and accommodation of refugees. Furthermore, authoritarian leaders at the external borders of the European Union, most notably in Turkey and the Russian Federation, made significant effort to stir up hatred among the peoples of Europe, as well as to split up the European Union. For the first time since the end of World War II, armed conflicts within the territory of the European Union are no longer inconceivable. There are now armed conflicts close to the borders of the Union, such as in Eastern Ukraine, leading to further radicalization and extremism in Europe. Within the European Union, the constant questioning of democracy, human rights and the rule of law by far-right-wing parties poses an imminent threat to the social contract within European democracies. Finally, the global environment in the southern European neighbourhood has changed dramatically. When the ‘Arab Spring’ started in Tunisia in December 2010 – inspired by the ‘Prague Spring’ of 1968 – and led to the overthrow of long-time dictators in Tunisia and Egypt, many Europeans hoped that the spirit of democracy and human rights would spread throughout the Middle Eastern and North African regions. When the Libyan dictator Muammar Gaddafi threatened to launch a military attack on peaceful demonstrators in Benghazi in early 2011, the UN Security Council even applied the third pillar of the doctrine of the ‘Responsibility to Protect’ (R2P) and authorized collective military force. French and British military forces were among the first to carry out this intervention under a UN Security Council mandate in order to protect the Libyan people from their oppressor. However, when the Syrian opposition began to rise against the long-term dictatorship of the Assad family, the Russian Federation made it immediately clear that it would not tolerate R2P action in Syria. This was the beginning of the end of the ‘Arab Spring’. Six years later, Syria is still engaged in an extremely bloody civil war with the direct or indirect involvement of all major political powers, and which has led to the displacement of half of the Syrian population including more than five million Syrian refugees. Rather than leading to positive political change in the region, the Arab uprisings resulted in various armed conflicts, a new phase of global terrorism, failed states, repression and an explosive situation in the entire Middle East and North Africa (MENA) region, in which the European Neighbourhood Policy had once promised to spread democracy, human rights and the rule of law.

So far, so bad? While the increased influence of transnational corporations, global financial markets as well as global terrorist and organized crime networks poses an imminent threat to human rights and democracy, another group of non-state actors constitutes a silver lining in this otherwise rather dark picture; namely, civil society. Whilst the erosion of human rights and democracy, together with the rise of

FRA’s response to the current human rights challenges

213

a new authoritarianism, can be observed across Europe, so can a significant growth in civil society and its political importance. When the system of the Cold War started to unravel, with many of the opposition movements that brought down the Soviet Union being inspired by the EU’s core values, the world witnessed a decade of democratization and optimism regarding human rights. In fact, the early 1990s saw enormous growth in civil society advocating for human rights, not just in Europe but around the world. Thus, international human rights NGOs had new partners, at the local, the national, as well as the regional level. This meant that NGOs were able to share resources, cooperate on a global scale and push for inclusion in the global human rights agenda.7 This materialized particularly during the Vienna World Conference on Human Rights in 1993, where NGOs were actively involved through an international human rights forum, hundreds of parallel events and through participation in the drafting of the Vienna Declaration and Programme of Action.8 This was the result of a long period of lobbying by various civil society organizations, particularly women’s rights groups.9 It was also partly to the merit of the international human rights NGOs that the conference finally reached a significant compromise between Western and other states, namely that ‘all human rights are of equal value, universal, indivisible, interdependent and interrelated’.10 This means that both generations of human rights, civil and political ones on the one hand and economic, social and cultural rights on the other, were put on equal terms. Furthermore, the international community made commitments to strengthen the United Nations (UN) human rights system by establishing the Office of the UN High Commissioner for Human Rights as a new actor with the main responsibility to ensure the implementation of the ambitious goals enlisted in the Vienna Declaration and Programme of Action. For civil society, the inclusion in international human rights forums provided an arena to form alliances, develop joint strategies and facilitate mutual learning and exchange of methods of human rights advocacy. Indirectly, the global conferences, such as Rio de Janeiro (1992), Vienna (1993), Copenhagen (1995) and Beijing (1995), contributed to the development of a new human rights advocacy.11 Now, rapid economic globalization and the rise of neoliberal policies is confronting human rights groups with new challenges: first, how should human rights standards be applied to the impacts of economic globalization;

7 P.J. Nelson and E. Dorsey, New Rights Advocacy, Changing Strategies of Development and Human Rights NGOs, Washington, Georgetown University Press, 2008, pp. 48–50. 8 See M. Nowak, World Conference on Human Rights, The Contribution of NGOs, Reports and Documents (Hrsg.), Wien, Manz Verlag, 1994. 9 C. Bunch, ‘Legacy of Vienna: Feminism and Human Rights’, in: J. Kozma, A. MüllerFunk and M. Nowak (eds), Vienna+20. Advancing the Protection of Human Rights, Wien, Neuer Wissenschaftlicher Verlag/intersentia, 2014, p. 55f. 10 OHCHR, Vienna Declaration and Programme of Action VDPA, 1993, part I, para 5. 11 P.J. Nelson and E. Dorsey, New Rights Advocacy, Changing Strategies of Development and Human Rights NGOs, Washington, Georgetown University Press, 2008, p. 31.

214

Manfred Nowak and Anna Müller-Funk

and, second, how should these standards be applied to transnational corporations, global financial markets and similar non-state actors. There are also many grassroots and new social movements opposing corporate globalization, which criticise human rights as being ‘not relevant to the 1.2 billion people living in abject poverty, heightened inequality and social marginalisation’.12 This led to a new understanding of human rights advocacy among international human rights NGOs, namely to include economic, social and cultural (ESC) rights in their agenda, exemplified by Amnesty International’s decision in 2001 to give greater priority to the promotion of ESC rights. Similarly, in the early 2000s, Human Rights Watch shifted its agenda towards a more inclusive approach to ESC rights, for example in their work on HIV/AIDS. This in turn led to a significant rise in the number of new social movements that linked issues of basic needs to human rights standards.13 In recent years it can furthermore be noted that, increasingly, non-governmental actors that in the past did not employ human rights language started to incorporate human rights claims into their advocacy work, most recently Greenpeace with their campaign ‘Netpeace’. The campaign demands the protection of fundamental and human rights in the virtual public space, as well as effective regulation of the digital public arena. Interestingly, Greenpeace only very recently began to include human rights language and documents in their lobbying work.14 Equally noteworthy is the Occupy Wall Street Movement that started in 2011, which remains the biggest civil society movement in North America, demanding stronger control over the banking and finance sector as well as a reduction in the gap between the poor and the rich. Thus, while human rights are under attack on several fronts, civil society across the world is increasingly using human rights language and claims as the basis of their activities and are working in a more professional and connected manner to defend fundamental and human rights. In addition to the increasing focus on human rights among civil society, also in the field of development cooperation, the development and application of the ‘human-rightsbased approach’ to development evolved, which meant that human rights became an important factor also for governmental development cooperation efforts.

FRA at the heart of a crisis-ridden Europe? What does this mean for FRA? First and foremost, that there is a continuing need for a proactive agency in charge of fundamental and human rights, maybe more than ever. Particularly its function as the EU’s human rights think-tank, as

12 P.J. Nelson and E. Dorsey, New Rights Advocacy, Changing Strategies of Development and Human Rights NGOs, Washington, Georgetown University Press, 2008, p. 52. 13 P.J. Nelson and E. Dorsey, New Rights Advocacy, Changing Strategies of Development and Human Rights NGOs, Washington, Georgetown University Press, 2008, p. 195. 14 Greenpeace, Netpeace Demands, available at: www.netpeace.eu/forderungen/.

FRA’s response to the current human rights challenges

215

stipulated in the Founding Regulation of the Agency: to ‘provide the relevant institutions, bodies, offices and agencies of the Union as well as its Member States when implementing Union’s 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’.15 This provision of relevant EU actors with fundamental and human rights expertise has been achieved by FRA to a staggering level; the sheer number and the high quality of the reports of the Agency speak for themselves. The relevance of FRA’s work, namely providing evidence-based, comparable data from across the EU, is crucial for the work of civil society. In particular, considering the vast number of online information outlets, as well as the speed at which they share and spread information of questionable reliability, the importance of FRA is clear. The robust information that is produced by the Agency is important for civil society organizations as a reference point and as a basis for effective advocacy work, particularly for smaller organizations that do not have the resources to conduct in-house research. But the work of the FRA is equally relevant for other European actors and institutions, such as the European Parliament, which already makes great use of the Agency’s expertise. Particularly by providing high-quality, reliable and comparable data, thereby creating a common understanding of human rights issues within the EU, the FRA has moreover contributed to greater coherence between EU institutions with regards to the Union’s human and fundamental rights policy. This is also reflected in the findings of the external evaluation of the FRA: evaluation findings point towards a clearly favourable assessment in terms of the FRA’s ability to contribute to a greater shared understanding of fundamental rights issues in the framework of Union law among policy/decisionmakers and stakeholders in the EU and Member States.16 However, there is significant potential to further this role of the Agency; its ability to contribute even more in this regard being mostly limited by its restricted mandate and its Multi-annual Framework (MAF). Because the FRA was set up as a ‘first-pillar’ agency, meaning that the scope of its work was originally limited to the former Community Law. The entry into force of the Lisbon Treaty abolished the pillar structure and provided the EU with a single legal personality, responsible for all competences. While the abolishment of the pillar structure of the FRA has, in theory, extended the agency’s mandate to cover police and judicial cooperation in criminal matters, in practise FRA cannot work in these fields of its own volition. This is due to the MAF, which defines FRA’s scope of work, acting as a de-facto second regulation. As the MAF is adopted by the Council

15 European Commission, Council Regulation (EC) No 168/2007 of 15 February 2007, art 2. 16 External evaluation of the FRA, 2012, p. 76, available at http://fra.europa.eu/sites/default/ files/fra-external_evaluation-final-report.pdf.

216

Manfred Nowak and Anna Müller-Funk

of the European Union, rather than by the Management Board (MB) of the agency, this too raises questions of independence. The Paris Principles set out minimum standards for national human rights institutions stipulating that: ‘national institution[s] shall freely consider any questions falling within [their] competence [ … ] without referral to a higher authority’.17 The Founding Regulation of the FRA makes direct references to the Paris Principles18 and the Commission called them ‘a source of inspiration when establishing the Agency’19 and stipulated that ‘[t]he Agency shall fulfil its tasks in complete independence’.20 Yet the FRA is not able to issue opinions on legislative matters as well as in the aforementioned area of police and judicial cooperation in criminal matters on its own initiative. This limited independence of FRA also limits its potential and impact, as it cannot choose to concern itself with any topic it deems relevant to fundamental rights. Another important step towards a more proactive and coherent EU human rights policy would be to foresee a more structured, or even obligatory involvement of the agency in all legal plans and drafts of the Union that are relevant to the promotion and protection of fundamental and human rights, in order to secure conformity with fundamental rights standards and human rights obligations. Such involvement could include expert opinions on legislative proposals or human rights impact assessments. This has been repeatedly recommended by a variety of scholars and experts in the past years,21 by the external evaluation as well as by the MB on the basis of that evaluation.22 Such an involvement of the Agency would help to ensure that EU policy is reviewed with regards to its impact on human and fundamental rights. A further potential of the FRA is its longstanding experience and expertise in cooperating with a wide range of civil society actors. Already upon its establishment, FRA achieved what most other EU institutions are still working towards: a continuous and proactive cooperation with civil society, with relatively low entry barriers. This cooperation is a central element of the institutional setup of the agency, laid out in the founding regulation of the FRA: ‘Recognising the important role of civil society in the protection of fundamental rights, the Agency should

17 UN High Commissioner of Human Rights, Principles relating to the Status of National Institutions (The Paris Principles), 1993 Article 3 para a, available at: www.ohchr.org/EN/Profes sionalInterest/Pages/StatusOfNationalInstitutions.aspx [accessed 2 November 2017]. 18 European Commission, Council Regulation (EC) No 168/2007 of 15 February 2007, Introductory Statement. 19 European Commission, Fundamental Rights Agency public consultation document, 2004, p. 4, available at: http://ec.europa.eu/justice/news/consulting_public/0011/communica tion_com2004_693_en.pdf. 20 European Commission, Council Regulation (EC) No 168/2007 of 15 February 2007, art 16, para 1. 21 See inter alia: Armin von Bogdandy and Jochen von Bernstorff, Die Europäische Agentur für Grundrechte in der europäischen Menschenrechtsarchitektur und ihre Fortentwicklung durch den Vertrag von Lissabon, Zeitschrift Europarecht (EuR) – Nomos, 2010/2, pp. 114–164. 22 FRA Management Board recommendations, available at: http://fra.europa.eu/sites/ default/files/fra-management-board-recommendations-external-evaluation_0.pdf.

FRA’s response to the current human rights challenges

217

promote dialogue with civil society and work closely with non-governmental organisations and with institutions of civil society active in the field of fundamental rights’.23 Over the past ten years, the FRA has made considerable effort to include a diverse range of European civil society actors in their work. For example, FRA includes (legal) experts from across the EU in their work via the RAXEN (Racism and Xenophobia Expert Network) and FRALEX (Fundamental Rights and Legal Experts) networks, to ensure that relevant expertise from the different EU Member States is included in the work of the Agency. An example of such a cooperation is that with the Austrian Ludwig Boltzmann Institute of Human Rights (BIM), which has worked with and for the Agency since its establishment: BIM has, for example, carried out national studies on homophobia and discrimination based on sexual orientation, trafficking of children as well as on national human rights institutions, and has completed three quarterly bulletins and a report on the situation in the Agency’s thematic focus areas in Austria. This inclusion of the expertise of national and local actors in the work of the FRA not only means that the diverse perspectives and experiences of the EU are included in the agency’s reports and studies but also makes the FRA’s work more robust and has led to the development of innovative trans- and multidisciplinary research methodologies. The Agency also provides a space for cooperation and information exchange with and among civil society organizations active in the field of fundamental rights at the national, grassroots, European or international level. Originally this took place within the Fundamental Rights Platform, which brought together a diverse range of civil society organizations in order to include their perspective and expertise in the work of the agency. In 2016, the cooperation with civil society was reformed and became the Fundamental Rights Forum (FRF),24 giving civil society cooperation a new and more effective structure. Every year, FRA staff, policy makers, academics, practitioners and other human rights experts gather to discuss current human rights challenges and possible solutions for these; the results of these gatherings being then included in the planning and work of FRA. This exemplary cooperation with civil society acts as a response to criticism directed at EU institutions, which suggests that the EU does not take the perspectives and realities of its citizens sufficiently into account. The demand for an increase in democratically legitimized policies through the inclusion of civil society organizations was inter alia put forward by a group of prominent European intellectuals in 2012 in an open manifesto calling for a ‘bottom-up Europe’, declaring the necessity of a ‘participatory civic culture approximating the level of EU integration’.25

23 European Commission, Council Regulation (EC) No 168/2007 of 15 February 2007, art. 10. 24 The first FRF took place in June 2016 in Vienna. For further information on the FRF, please visit: http://fundamentalrightsforum.eu/. 25 M. Thiel, ‘European Civil Society and the EU Fundamental Rights Agency: Creating Legitimacy through Civil Society?’, Journal of European Integration, 36:5, 435–451, p. 448.

218

Manfred Nowak and Anna Müller-Funk

When Markus Thiel stipulates that ‘The FRA’s creation of an integrated civil society platform represents an institutional innovation that has the potential to diminish the EU’s legitimacy deficits by transforming the development of EU human rights policy through inserting CSOs as semi-independent agents of change’, he summarizes FRA’s potential as a best-practice model for EU institutions;26 in particular, as civil society is probably the most important agent for positive change in the Union at the moment, concerning the promotion and protection of fundamental and human rights. Thus, the FRA might act as a catalyst for a more inclusive approach towards civil society organizations in the human rights architecture of the EU. This understanding further complements the new Sustainable Development Goals, such as Primary Goal Target 17.17 to ‘Encourage and promote effective public, public-private and civil society partnerships, building on the experience and resourcing strategies of partnerships’.27 In the field of human and fundamental rights, FRA has the competence and ability to bring these different actors in the EU together, to provide space for exchange and cooperation and to produce evidence-based information to support the work of civil society and to create awareness of the importance of fundamental and human rights among EU citizens, policy makers and institutions at large. Strengthening the mandate of the FRA and a better inclusion of the Agency in legislative procedures, along with the continuation of the valuable work of the FRA including its proactive cooperation with civil society and other relevant actors, would help to further increase the impact of the agency’s work. Furthermore it could work as a catalyst for a better inclusion of civil society in the overall human rights architecture of the EU, thereby increasing the legitimacy of the Union, in order to effectively respond to current and future human rights challenges.

26 M. Thiel, European Civil Society and Human Rights Advocacy, Philadelphia, University of Pennsylvania Press, 2017. 27 United Nations Development Programme, Sustainable Development Goals, Agenda 2030, Sustainable Development Goals, Primary Goal Target 17.17, available at: www.undp.org/ content/undp/en/home/sustainable-development-goals.html.

16 Upholding the rule of law in the EU What role for FRA? Laurent Pech and Joelle Grogan1

The rule of law as a foundational and common value In a celebrated judgment known as Les Verts, the European Court of Justice referred to what was then known as the European Community as a ‘Community based on the rule of law’.2 This first judicial reference was followed by multiple references made to the rule of law in the EU’s founding treaties.3 These references, largely symbolic at first, became more meaningful following a series of successive treaty amendments that made clear that the rule of law, as a constitutional principle of EU law, has both an internal and external dimension. In its internal dimension, Article 2 of the Treaty on European Union (TEU) presents the rule of law both as a foundational value of the EU and one which is common to the EU and its Member States. In another noteworthy change made in the 1990s, the TEU was amended to include a new provision whose aim was to empower the EU to adopt sanctions in a situation of a serious and persistent breach of the same values laid down in Article 2 TEU. This provision was subsequently amended to also provide for the additional option of preventively censuring a Member State in a situation where these values are under a serious threat of being breached.4

1 This chapter is based on research carried out as part of the RECONNECT project, which has received funding from the European Union’s Horizon 2020 Research & Innovation programme under Grant Agreement no. 770142. 2 Case 294/83 Les Verts v Parliament [1986] ECR 1339, para. 23. 3 For further analysis, see L. Pech, ‘A Union Founded on the Rule of Law: Meaning and Reality of the Rule of Law as a Constitutional Principle of EU Law’ (2010) 6 European Constitutional Law Review 359. 4 Article 7(1) TEU, the preventive arm of this provision was activated for the first time ever against Poland by the European Commission in December 2017: see D. Kochenov, L. Pech and K. Lane Scheppele, ‘The European Commission’s Activation of Article 7: Better Late than Never?’, EU Law Analysis, 23 December 2017: http://eulawanalysis.blogspot.co.uk/2017/ 12/the-european-commissions-activation-of.html. In September 2018, the European Parliament activated the same provision, this time against Hungary: see S. Carrera and P. Bárd, ‘The European Parliament Vote on Article 7 TEU against the Hungarian government. Too late, too little, too political?’, CEPS commentary, 14 September 2018: www.ceps.eu/publications/euro pean-parliament-vote-article-7-teu-against-hungarian-government-too-late-too-little.

220

Laurent Pech and Joelle Grogan

Finally, in its external dimension, the rule of law is presented both as a transversal foreign policy objective and an eligibility condition for any country wishing to join the EU.5 While the European Treaties do not offer a definition – not an unusual trait when compared to national constitutions that explicitly refer to the rule of law6 – the European Commission offered the view in 2014 that this principle entails at the very least compliance with the following six core principles:7 1 2 3 4 5 6

legality, which implies a transparent, accountable, democratic and pluralistic process for enacting laws; legal certainty; prohibition of arbitrariness of the executive powers; independent and impartial courts; effective judicial review including respect for fundamental rights; equality before the law.

This list closely reflects the six elements previously identified by the Council of Europe’s Venice Commission.8 And while the European Commission did accept that ‘the precise content of the principles and standards stemming from the rule of law may vary at national level’,9 it also emphasized, rightly in our view, that the six elements previously listed stem from the constitutional traditions common to most European legal systems. We would also agree with the Commission’s view that the rule of law must be understood as a ‘constitutional principle with both formal and substantive components’ and one which is also ‘intrinsically linked to respect for democracy and for fundamental rights’.10 Similarly, the Commission was correct to stress that one should not doubt ‘the usefulness of addressing the rule of law as a practical legal concept’ which must be considered ‘a fundamental and common European standard to guide and constrain the exercise of democratic power’.11

5 See, respectively, Article 21 TFEU and Article 49 TEU. For further analysis, see L. Pech ‘The EU as a Global “Rule of Law Promoter”: The Consistency and Effectiveness Challenges’ (2016) 14(1) Europe-Asia Journal 7. 6 See L. Pech, ‘The Rule of Law as a Constitutional Principle of the EU’, NYU Jean Monnet Working Papers no. 04/09: https://jeanmonnetprogram.org/paper/the-rule-of-law-asa-constitutional-principle-of-the-european-union/. 7 European Commission Communication, A New EU Framework to Strengthen the Rule of Law, COM(2014) 158 Final, 11 March 2014, p. 4. 8 Report on the Rule of Law, Study No 512/2009, 4 April 2011, para 41 et seq. See also Venice Commission, Rule of Law Checklist, Adopted by the Venice Commission at its 106th plenary session (11–12 March 2016), Council of Europe, May 2016. 9 European Commission, A new EU Framework, op. cit., p. 4. The Commission’s definition and approach closely follow the findings of L. Pech in ‘The Rule of Law as a Constitutional Principle of the EU’, op. cit. 10 Ibid. 11 Venice Commission, Report on the Rule of Law, op. cit., para 69.

Upholding the rule of law in the EU

221

This contribution will not further engage in definitional issues to focus instead on the extent to which the EU Fundamental Rights Agency (hereinafter: FRA) is involved in the task of guaranteeing respect for the rule of law. In light of the new and growing challenge faced by the EU in this area, which one may call ‘rule of law backsliding’,12 our main submission is that the FRA’s mandate should be revised in order to enable it to play a more meaningful role on this front. In addition, a larger involvement of the FRA in the Commission’s Rule of Law Framework and a formal role in the context of the Council’s Annual Rule of Law Dialogue must be organized. This contribution will also briefly address the all-encompassing mechanism proposed by the European Parliament in 2016 and discuss possible additional changes, not requiring Treaty change, as far as the FRA is concerned.

The rule of law in the FRA’s mandate According to the Regulation that established the FRA,13 its primary objective is to provide the EU institutions, bodies, offices and agencies and its Member States, when implementing EU law, with assistance and expertise relating to fundamental rights.14 To do this, the FRA has been empowered to perform the following main tasks: collecting and analyzing information and data; providing assistance and expertise; and communicating and raising rights awareness. This led to the FRA being initially described as an ‘information agency’ whose primary tasks lie therefore in the provision of information and communication as well as network management all in respect of fundamental rights matters.15 This label may however seem increasingly outdated considering in particular the conferring of more operational tasks on the Agency.16 Be that as it may, the competences of the FRA were and continue to remain limited. It has no legislative or regulatory powers or quasi-judicial powers,

12 L. Pech and K. Lane Scheppele, ‘Illiberalism Within: Rule of Law Backsliding in the EU’ (2017) 19 Cambridge Yearbook of European Legal Studies 3. 13 Council Regulation (EC) No 168/2007 of 15 February 2007 establishing a European Union Agency for Fundamental Rights, OJ L 53/1 [2007]. 14 For the FRA’s genesis and an introduction to its mandate, see G. Toggenburg, ‘The role of the new EU Fundamental Rights Agency: Debating the “sex of Angels” or improving Europe’s Human Rights Performance?’, (2008) 33 European Law Review 385; ‘Fundamental Rights and the European Union: How does and how should the EU Agency for Fundamental Rights relate to the EU Charter of Fundamental Rights?’, EUI Working Paper LAW 2013/ 13: http://cadmus.eui.eu/handle/1814/28658. 15 A. Von Bogdandy and J. Von Bernstorff, ‘The EU Fundamental Rights Agency within the European and International Human Rights Architecture: The Legal Framework and Some Unsettled Issues in a New Field of Administrative Law’ (2009) 46 Common Market Law Review 1035, p. 1059. 16 G.N. Toggenburg, ‘The European Union Fundamental Rights Agency’, in G. Oberleitner (ed.), International Human Rights Institutions, Tribunals and Courts (New York: Springer, 2018), p. 443.

222

Laurent Pech and Joelle Grogan

meaning, for instance, that it cannot examine individual complaints and impose sanctions as a follow-up to the findings the FRA may make. And while the FRA may carry out its tasks at the request of EU institutions or on its own initiative, in the latter case its ability to act on its own initiative is furthermore limited as it can only do so in accordance with the five-year Multi-annual Framework. These frameworks set out the thematic areas in which the FRA operates and reflect core, current challenges for fundamental rights protection in the EU, for instance, racism and xenophobia, integration and social inclusion of Roma, and access to efficient and independent justice. While this latter area is a principle generally recognized as a core element of the rule of law, one must stress the total absence of any explicit reference to the ‘rule of law’ in any Multi-annual Framework since 2007. This is perhaps unsurprising considering that Regulation 168/2007 only refers once to the rule of law and does so only in recital 1, which furthermore merely refers to what is now Article 2 TEU. More surprisingly, despite growing and serious concerns for rule of law compliance at Member State level, and the potential significance of FRA contributions to addressing these concerns herein argued,17 the 2018–2022 Multi-annual Framework adopted by the Council on 7 December 2017 does not contain any explicit reference to the rule of law.18 This has not however prevented the FRA from producing reports on issues which constitute core elements of the rule of law as previously defined.19 The FRA must, after all, take into account the EU Charter,20 which provides for a number of fundamental rights under the heading ‘Justice’. More pertinently to this contribution, the FRA has consistently signalled a willingness to provide assistance to EU institutions in the context of rule of law challenges, and to engage with debates concerning the means by which rule of law issues must be addressed. For example, the Fourth Annual FRA Symposium, which took place in Vienna in 2013, focussed on the promotion of the rule of law in the EU.21 While highlighting the connection between the rule of law and protection of individual rights, the symposium report underlined its aim to contribute to the then ongoing discussions relating to the Copenhagen criteria. Morten Kjærum, then FRA director, signalled the FRA’s availability and institutional expertise which could be utilized in the process of consolidation of available data and

17 Infra the fourth section of this chapter. 18 Council Decision (EU) 2017/2269 establishing a Multi-annual Framework for the EUFRA for 2018–2022 [2017] OJ L 326/1. 19 See, e.g., FRA-ECtHR Handbook on European law relating to access to justice, June 2016: http://fra.europa.eu/en/publication/2016/handbook-european-law-relating-accessjustice. 20 See recital 9 of Regulation 168/2007. This regulation having been adopted before the entry into force of the Lisbon Treaty, which gave legally binding force to the EU Charter, would however benefit from a revision if only to reflect this fundamental legal change. 21 FRA Symposium: Promoting the rule of law in the EU, 7 June 2013: http://fra.europa.eu/ en/event/2013/fra-symposium-promoting-rule-law-eu.

Upholding the rule of law in the EU

223

analysis ‘to create a sort of “one-stop-shop” for measuring the rule of law’ as well as the possible assessment of rule of law indicators.22 Linked to this, the FRA’s 2013 Annual Report directly commented upon the Commission’s Rule of Law Framework (then just adopted), suggesting the broadening of the scope of the Framework to other Article 2 TEU values (including fundamental rights), the subjection of the EU to monitoring for rule of law compliance, and the involvement of other EU institutions.23 Underlying these suggestions is the correct assumption that proactive protection of fundamental rights is a means to prevent rule of law crises.24 This conclusion is echoed in the 2016 FRA Opinion on the development of an integrated tool of objective fundamental rights indicators, wherein the FRA argued for the overarching nature of human rights for Article 2 TEU values.25 The Opinion then compellingly outlined the possibility of utilizing existing information and data for the population of indicators to measure compliance with shared EU values. Underlining the synergies between Article 2 TEU values and the scope of the FRA institutional expertise in data collection and analysis, the FRA has consistently signalled willingness to assist EU institutions in monitoring compliance with these values. Despite such clear and positive signals, the FRA’s mandate has not been expanded. The severe limits on the FRA’s mandate imposed by Regulation 168/2007 can and have been criticized. The absence of a strong investigatory or legislative scrutiny role has been, for instance, a long-time concern, with the UK House of Lords, in 2006, arguing that the FRA should be ‘more than just a “postbox” for collecting and sorting data’.26 The Lords further recommended the extension of both the geographical scope of the FRA’s investigatory powers, and the provision of powers to actively seek information from EU Institutions and Member States necessary to achieve the tasks it has been set.27 While the Lords recognized that systemic assessment of EU legislative proposals would be too onerous for the FRA’s limited size and resources, it nevertheless recommended a mechanism for referral to the FRA of any draft proposals which raise human rights concerns.28 Pertinently, the House of Lords supported an Article

22 Welcome speech at FRA symposium on promoting the rule of law, 7 June 2013: http://fra. europa.eu/en/speech/2013/opening-speech-morten-kjaerum-fra-symposium-promotingrule-law-eu. 23 FRA, Fundamental rights: challenges and achievements in 2013 – Annual report 2013, June 2014: http://fra.europa.eu/en/publication/2014/fundamental-rights-challengesand-achievements-2013-annual-report-2013. 24 G. Toggenburg and J. Grimheden, ‘Upholding Shared Values in the EU: What Role for the EU Agency for Fundamental Rights’ (2016) 54(5) JCMS 1093, 1098. 25 FRA Opinion No 2/2016, 8 April 2016: http://fra.europa.eu/en/opinion/2016/fra-opin ion-eu-shared-values-tool. 26 UK House of Lords, EU Committee, Human Rights Protection in Europe: the Fundamental Rights Agency, 29th Report of Session 2005–06, HL Paper 155, para. 45. 27 Ibid., para. 70. 28 Ibid., para. 73.

224

Laurent Pech and Joelle Grogan

7 TEU remit for the FRA, though it accepted Member State opposition to any expansion of powers for the FRA in this area. This opposition from a number of countries, not least the UK, having been for a long time strongly opposed to the creation of a specialized EU agency for fear that it may overlap with, and possible undermine, the activities of the Council of Europe, explains why the recommendations made by the House of Lords never materialized. The European Commission’s support for a bigger role for the FRA has been similarly lukewarm. This appears to explain why, despite a flurry of new rule of law initiatives, neither the Commission nor the Member States appear to have seriously sought to give any formal and significant role to the FRA or to significantly involve it in practice when the rule of law mechanisms adopted in 2014 were implemented.

The marginal involvement of the FRA in the EU’s rule of law mechanisms Considering the limits imposed on the FRA by Regulation 168/2007, it is perhaps unsurprising that the FRA has only been marginally referred to and involved in the new mechanisms adopted in 2014 by both the Commission and the Council. Known as the Rule of Law Framework, the Commission’s mechanism aims to ‘address and resolve a situation where there is a systemic threat to the rule of law’ in a Member State ‘before the conditions for activating the mechanisms foreseen in Article 7 TEU would be met’.29 As will be explained below, this instrument only provides for a potential and marginal involvement of the FRA if and when activated. Regrettably, the national governments of the EU Member States, rather than fully supporting the Commission’s efforts, decided instead to establish a new annual rule of law ‘dialogue among all Member States within the Council’.30 While the involvement of FRA was not explicitly foreseen, a consensus appears to have since emerged amongst national governments for an increased role for the FRA on this front. The continuing deterioration of the situation in both Hungary and Poland is, however, yet to lead to concrete changes, with the European Commission seemingly more inclined to rely on the Council of Europe’s Venice Commission for assessment purposes and the Council seemingly unable to move beyond nice words.

The Commission’s rule of law framework The adoption of the Rule of Law Framework reflected the Commission’s diagnosis that the main instruments available to it such as Article 7 TEU and the enforcement procedure laid down in Articles 258–260 TFEU were not adequate

29 European Commission, A New EU Framework to Strengthen the Rule of Law, COM(2014) 158 final. 30 Council of the EU, press release no. 16936/14, 3362nd Council meeting, General Affairs, 16 December 2014, pp. 20–21.

Upholding the rule of law in the EU

225

to deal with the increasing number of ‘rule of law crises’ of a systemic nature identified by the former President and Vice President of the European Commission.31 While we do not entirely share the Commission’s conservative diagnosis when it comes to the alleged limits of the instruments available to it, the Commission was right to consider the nature of the rule of law threat which began materializing in the early 2010s as unprecedented. In a nutshell, starting in Hungary following the victory of Viktor Orbán’s party in the parliamentary elections of April 2010, the EU has seen the development and spreading of rule of law backsliding, that is, a ‘process through which elected public authorities deliberately implement governmental blueprints which aim to systematically weaken, annihilate or capture internal checks on power with the view of dismantling the liberal democratic state and entrenching the long-term rule of the dominant party’.32 To address this unprecedented and existential challenge, the Commission adopted a new instrument taking the form of an early warning tool whose primary purpose is to enable the Commission to enter into a structured dialogue with the Member State concerned to prevent the escalation of systemic threats to the rule of law. As predicted at the time of the Framework’s adoption33 and as demonstrated by the failed attempt to prevent a deterioration of the situation in Poland,34 the Commission’s belief in the self-correcting virtues of a discursive approach was naïve and the Framework was bound to fail in a situation where a ruling party aims to systematically dismantle all checks and balances and play for time while doing so. As far as the FRA is concerned, the Commission’s Framework at least positively acknowledged the benefits of basing its preliminary assessment of the situation in any EU country ‘on the indications received from available sources and recognized institutions, including notably the bodies of the Council of Europe and the European Union Agency for Fundamental Rights’.35 The possible involvement of judicial networks such as the Network of the Presidents of the

31 For further analysis, see D. Kochenov and L. Pech, ‘Monitoring and Enforcement of the Rule of Law in the EU: Rhetoric and Reality’ (2015) 11(3) European Constitutional Law Review 512. 32 Pech and Lane Scheppele, ‘Illiberalism Within’, op. cit., pp. 10–11. 33 Kochenov and Pech, ‘Monitoring and Enforcement of the Rule of Law in the EU’, op. cit., p. 532: The Commission’s Framework ‘is based on the presumption that a discursive approach … is bound to produce positive results. The validity of this presumption is questionable. Indeed, once we move towards really problematic cases, i.e., the countries where the ruling élite has made a conscious choice not to comply with EU values, then a totally different picture emerges. If such a conscious choice has been made, socialisation in the framework of a new pre-Article 7 TEU procedure is unlikely to bring about any meaningful change and an end to any systemic attempt to breach EU values in the relevant member state’. 34 A failure which was predictable and indeed predicted by D. Kochenov and L. Pech, ‘Better Late than Never: On the European Commission’s Rule of Law Framework and Its First Activation’ (2016) 54(5) Journal of Common Market Studies 1062. 35 European Commission, A new EU Framework, op. cit., p. 7.

226

Laurent Pech and Joelle Grogan

Supreme Judicial Courts of the EU was also positively stressed.36 The rule of law probe of Poland under the Framework has however shown the Commission’s preference to rely on the Council of Europe’s Venice Commission rather than the FRA. This was not entirely unexpected as the 2014 Communication already stressed that the Commission would ‘as a rule’ seek to coordinate its analysis with the Council of Europe and/or its Venice Commission ‘in all cases where the matter is also under their consideration and analysis’.37 In the Polish case, relying on the expertise of an experienced non-EU body with a well-established reputation in rule of law matters has proved helpful, not only in terms of assessing compliance of Poland’s ruling party’s ‘reforms’ with European standards, but also in terms of reinforcing the weight of the Commission’s negative findings and counter-criticism in a situation where the Commission’s legitimacy, authority and impartiality are defiantly challenged as they repeatedly have been by the Polish government.38 While it has been good to see the European Commission and the Venice Commission rely on one another’s analysis and demand the implementation of each other’s recommendations,39 this is not to say that the ongoing procedure against Poland would not have benefited from the FRA’s assistance and expertise. Looking beyond the case of Poland, it would be positive in our view to systematically involve the FRA at the assessment stage of the Rule of Law Framework. Similarly, a more systematic and meaningful role for the FRA in the context of the Council’s Annual Rule of Law dialogue, whose main features are described below, should be organized. One may however note that the Commission still does not appear anxious to involve the FRA in its rule of law mechanisms. In April 2019, with the aim of reflecting on lessons learned since 2014, the Commission began consultations on the means by which it could strengthen the rule of law in Europe. Following this consultation exercise, the Commission published ‘a blueprint for action’ in July 2019, the main outcome of which is the commitment to put together

36 Ibid., p. 9. 37 Ibid. 38 One should however note that the Polish government ended up challenging the Venice Commission’s impartiality when it became clear that its legal assessment would reinforce the European Commission’s findings. See, e.g., European Commission’s Article 7 reasoned proposal, op. cit., recital 32: ‘The Polish Government decided not to participate in the sitting of the Venice Commission on 14 October 2016 as it considered that the opinion of the Venice Commission was one-sided’. 39 See, e.g., European Commission Recommendation regarding the rule of law in Poland, C (2017) 9050 final, 20 December 2017, para. 48: ‘The Commission also encourages the Polish authorities to implement the opinions of the Venice Commission on the law on the National Council for the Judiciary, the law on the Ordinary Courts Organisation and the law on the Supreme Court as well as to seek the views of the Venice Commission on any new legislative proposal aiming to reform the justice system in Poland’.

Upholding the rule of law in the EU

227

a new Rule of Law Review Cycle (RoLRC) so as to enhance the EU’s ‘rule of law toolbox’.40 FRA is mentioned as one of the many bodies on which the RoLRC could draw to gather information. However, no direct involvement of FRA is contemplated within the framework of the yet to be set up RoLRC. With respect to the proposed new mechanism to suspend EU funding in situations of ‘generalised deficiencies as regards the rule of law’, the Commission, for instance, envisages ‘the use of external expertise from the Council of Europe’ but no explicit mention is made of the FRA.41

The Council’s annual rule of law dialogue In December 2014, the Council of the EU and the national governments meeting within the Council committed ‘themselves to establishing a dialogue among all Member States within the Council to promote and safeguard the rule of law in the framework of the Treaties’.42 This dialogue is supposed to be based ‘on the principles of objectivity, non-discrimination and equal treatment of all Member States’ and be ‘conducted on a non-partisan and evidence-based approach’, which is obviously preferable to a debate conducted on a subjective, partisan and evidence-free approach. This initiative may be understood as an answer to the Commission’s Rule of Law Framework and, initially at least, as an attempt to pre-empt the activation of a mechanism which was criticized inter alia by the UK government on the ground that it may enable the EU to look into issues beyond the areas governed by EU law.43 Be that as it may, no role was initially foreseen for the FRA. Instead, this dialogue was supposed to be exclusively prepared by the Permanent Representatives Committee (COREPER), following an undefined ‘inclusive approach’.44 The first dialogue was organized by the Luxembourg presidency and took place on 17 November 2015. Its main point of focus was the rule of law in the age of digitalization. The second dialogue took place in May 2016 under the Netherlands presidency and focussed on migrants’ integration and EU fundamental values. The first two editions of the Council’s dialogue led some to (justifiable) regret

40 European Commission Communication, Strengthening the Rule of Law Within the Union: A Blueprint for Action, COM/2019/343 final. 41 European Commission proposal for a regulation on the protection of the Union’s budget in case of generalised deficiencies as regards the rule of law in the Member States, COM(2018) 324 final, 2 May 2018, p. 3. 42 Council of the EU, press release no. 16936/14, op. cit., p. 20. 43 See, e.g., UK Government, Review of the Balance of Competences between the UK and the EU – EU Enlargement (December 2014), para. 2.116: ‘the Government does not accept the need for a new EU rule of law framework applying to all Member States. There are already mechanisms in place to protect EU common values and a further EU mechanism would risk undermining the clear roles for the Council and the European Council in this area’. 44 Council of the EU, press release no. 16936/14, op. cit., p. 21.

228

Laurent Pech and Joelle Grogan

concerning ‘the Council’s lamentable inaction in the face of this profound crisis of the EU’s values’.45 Seemingly aware of the toothless if not pathetic nature of the Council’s new instrument, the Slovak Presidency circulated in September 2016 a questionnaire to evaluate the ‘experience acquired on the basis of the dialogue’.46 The Member States’ replies reveal a broad consensus regarding a possible increasing role for the FRA with the following countries explicitly in favour of a more ambitious dialogue with a stronger involvement of the FRA: Austria, Belgium, Finland, Ireland, Croatia, Italy, Luxembourg, Netherlands, Slovenia and Sweden. A number of countries (the Czech Republic, Cyprus, Estonia, France, Greece, Latvia, Lithuania and Spain), which expressed their opposition to the idea of turning the dialogue into a more structured periodical review process, also favoured the involvement of the FRA. Out of all the submissions, Austria’s is arguably the one offering the most food for thought (possibly due to its familiarity with the work of FRA which is based in Vienna), with its recommendation to ‘strongly involve’ the FRA in the dialogue’s preparatory phase: The FRA could be tasked by the Council to analyse existing information material and distil from it the most frequently addressed topics including recommendations thereon and prepare a summary and/or issues paper on it. This summary could be used by the Council as a basis for further discussions. In a next stage the FREMP, as the competent Council working group on an expert level, could discuss the FRA summary/issues paper and prepare a report to be forwarded to the Council.47 Finland’s submission proposing the reorganization of the dialogue is also worth noting (see Figure 16.1, p. 229) as it similarly offers another potentially promising path for reform. Unsurprisingly, Orbán’s Hungary and Kaczyński’s Poland indicated their opposition to any ‘upgrading’ of the Council’s dialogue. For the Hungarian government, the current dialogue ‘can only be effective and keep its balanced character if no evaluation by other EU bodies or actors follow the exchange of views and experiences’.48 As regards the Polish government, its key concern was not to allow for any discussion ‘directed against an individual Member State’, meaning itself of course….49 In line with its previous stance on this issue, the UK also expressed its

45 P. Oliver and J. Stefanelli, ‘Strengthening the Rule of Law in the EU: The Council’s Inaction’ (2016) 54(5) Journal of Common Market Studies 1075. 46 Presidency questionnaire (document 12205/16) as well as the replies to this questionnaire (document 13230/1/16 REV 1) were made public following a successful request for access to documents submitted to the Council by one of the present authors (reference Ref. 16/ 2401-ld/ns). 47 Council of the EU, compilation of replies to the Presidency questionnaire, document 13230/1/16 REV 1, p. 66. 48 Ibid., p. 55. 49 Ibid., p. 71.

Upholding the rule of law in the EU

Poss. seminars related to the rule of law by COM, FRA

229

Poss. thematic discussions in GAC/discussions in other Council configurations, incl. reporting to GAC

September GAC discussions* Presidency preparation (incl. poss. seminars/working group)

COM justice Scorboard, Annual report on the application of the charter, FRA annual report

Figure 16.1 Finland’s submission proposing the reorganization of the annual Rule of Law Dialogue. Source: Council of the EU, Compilation of Replies to the Presidency Questionnaire, document 13230/1/16 REV 1, p. 91.

opposition on the ground that ‘replacing or supplementing the existing exchange with a review element would duplicate the process that already takes place in the Council of Europe, and thus is unlikely to add additional value’.50 As the saying goes, nothing new under the sun. National governments have since continued to discuss topics having no obvious direct connection with the rule of law: media pluralism was, for instance, the topic of the third annual dialogue which took place in October 2017.51 Once again no statement, measure or action was adopted against the governments which have been busy undermining media freedom and attacking journalists at home while paying lip service to media pluralism in Brussels.52 The fourth edition of the dialogue similarly did not result in any measure. The topic of this edition was at last more relevant to the rule of law by focussing on the issue of trust in public institutions (the link between trust and the rule of law was not however explicitly explained).53 It is

50 Ibid., p. 96. 51 Council of the EU, Presidency conclusions after the annual rule of law dialogue on the topic ‘Media pluralism and the rule of law in the digital age’, 13609/17. 52 See, e.g., European Parliament, Committee on Culture and Education, Opinion on the situation in Hungary, 17 May 2018, 2017/2131(INL), para. 9: ‘is outraged by the fact that the media council has failed to guarantee even the minimum level of balance in the media’, or para. 17: ‘is concerned that the Hungarian government, after Hungary’s last independent regional newspapers were taken over by oligarchs close to the government, has recently further extended its control over the media, with media concentration in Hungary reaching an unprecedented and grotesque level’. 53 Outcome of the Council meeting, 3648th Council meeting General Affairs Brussels, document 14098/18, 12 November 2018.

230

Laurent Pech and Joelle Grogan

however not a little disconcerting to see national governments ‘dialoguing’ on the role of the media and civil society in fostering this trust at a time where independent media and civil society are being decimated in at least one EU country where the government is also busy propagating conspiracy theories but, rather than adopting any statement at the very least condemning these developments, we were told that ‘conclusions’ would be drawn up and forwarded ‘to the relevant Council bodies for further consideration’.54 This is not without recalling what Georges Clémenceau once said: ‘If you want to bury a problem, set up a committee’ and one may be forgiven for thinking that this is exactly how one would proceed if the aim was to foster mistrust in EU institutions. To end, however, on a more positive note, it was good to see the dialogue kicked off by the FRA’s Director, Michael O’Flaherty.55 This appears to be an emerging practice which should be encouraged. It is also to be hoped that national governments will seriously reflect on the proposal tabled by the Belgian government whereby the Council’s rule of law dialogue should be transformed into a peer review mechanism modelled on the UN’s Universal Periodic Review.56

A new role for the FRA Having correctly noted that the failure to meet the standards required of candidate countries ‘has little consequence in practice’57 for current EU countries, the European Parliament recommended in October 2016 the adoption of a new EU pact on democracy, the rule of law and fundamental rights. A brief overview of the suggested involvement of the FRA in this context will be offered below, after which a number of additional suggestions will be made. As noted above, the European Commission has, however, suggested instead to put together a new RoLRC, which should be understood as an implicit rejection of the European Parliament’s proposed mechanism. To give a single example, in its Blueprint for Action adopted in July 2019, the Commission explicitly rejected one of the key features of the Parliament’s proposed mechanism, that is the idea ‘to have a panel of independent experts set up outside the Commission or EU institutions, with the goal of providing expert and objective assessments on rule of law challenges’.58

54 Ibid., p. 5. 55 FRA Director’s remarks to the GAC Rule of Law Dialogue, 12 November 2018: http://fra. europa.eu/en/speech/2018/fra-directors-remarks-general-affairs-council-rule-law-dialogue. 56 C. Michel, Speech at the European Parliament, Debate on the Future of Europe, 4 May 2018: www.premier.be/en/debate-future-europe. 57 European Parliament resolution of 25 October 2016 on the establishment of an EU mechanism on democracy, the rule of law and fundamental rights (2015/2254(INL)), Recital R. 58 European Commission Communication, Strengthening the Rule of Law Within the Union: A Blueprint for Action, COM/2019/343 final, p. 12).

Upholding the rule of law in the EU

231

The European Parliament’s proposed new mechanism Prior to the adoption of a resolution calling for an Union Pact for democracy, the rule of law and fundamental rights, the European Parliament had recommended in its Resolution of 10 June 2015 on the situation in Hungary that the Commission should begin carrying out an impartial, yearly assessment on the situation of fundamental rights, democracy and the rule of law in all Member States … involving an evaluation by the EU Agency for Fundamental Rights, together with appropriate binding and corrective mechanisms, in order to fill existing gaps and to allow for an automatic and gradual response to breaches of the rule of law and fundamental rights at Member State level.59 In December 2015, the European Parliament reiterated this call in yet another Resolution regarding the situation in Hungary.60 This finally led the Parliament to call for the establishment, ‘until a possible Treaty change’, of a new mechanism in the form of an interinstitutional agreement in order to more effectively monitor EU countries’ continuing adherence to the values laid down in Article 2 TEU post accession.61 This is to be done via a new permanent monitoring mechanism to which all EU Member States would be subject as a matter of principle and which would also involve all relevant stakeholders. As far as the FRA is concerned, the European Parliament’s resolution directly provides for its involvement when it comes to identifying potential breaches of Article 2 TEU. In other words, the proposed new annual report on democracy, the rule of law and fundamental rights (European DRF Report), which is supposed to include country-specific recommendations, would incorporate ‘the reporting done by the FRA, the Council of Europe, and other relevant authorities in the field’.62 This would be accompanied by an annual interparliamentary debate to be conducted on the basis of the European DRF Report, and which would also involve civil society, the FRA and the Council of Europe.63 The involvement of the FRA in the actual drafting of the ‘European DRF Report’ is not however foreseen. Instead, the European Parliament called for

59 European Parliament resolution of 10 June 2015 on the situation in Hungary, (2015/2700 (RSP)), para. 12. 60 European Parliament resolution of 16 December 2015 on the situation in Hungary (2015/ 2935(RSP)). 61 European Parliament resolution of 25 October 2016, op. cit., para. 1. 62 Article 2 of the draft institutional agreement included as an annex in the European Parliament resolution of 25 October 2016. See also Article 6: ‘The European DRF Report shall be drawn up using a variety of sources and the existing tools for assessment, reporting and monitoring of Member States’ activities, including: … the FRA, in particular the EFRIS instrument; …’. 63 Article 10, draft institutional agreement, ibid.

232

Laurent Pech and Joelle Grogan

the setting up of a new expert panel entitled ‘DRF Expert Panel’,64 which would be responsible for drafting the DRF report, primarily to prevent the argument that political factors may play a role in the assessment of EU countries’ records and increase ownership of the ensuing assessments which could then no longer be described as ‘Brussels made’. In situations where evidence supports the conclusion that there are breaches of core elements of Article 2 values, the Commission would start a dialogue with that Member State. However, in situations where there are sufficient grounds for invoking Article 7(1) or (2), the Parliament’s resolution then calls for the European Parliament, the Council and the Commission to promptly discuss the matter and for each institution to adopt and publish their reasoned decisions on whether the activation of Article 7(1) or (2) is warranted. Rather disappointingly, the Commission has expressed its opposition to the Parliament’s proposal as it doubts ‘the need and the feasibility’ of the suggested annual report to be prepared by a committee of experts as well as ‘the need for, feasibility and added value of an inter-institutional agreement on this matter’.65 Accordingly, the Commission has instead suggested making ‘the best possible use … of existing instruments, while avoiding duplication’.66 The Commission did however welcome ‘the underlying idea of the resolution to make the variety of existing data and reports more accessible and visible’67 and explicitly referred in this context to the work done by the Council of Europe and its Venice Commission, the FRA and NGOs. With respect to the FRA, the Commission explicitly acknowledged that it ‘has a role to play by making easily accessible a clear overview of existing information and reports relating to Member States or particular themes, as reflected in the Agency’s programming document for 2017–2019’.68 It remains to be seen to what extent if any the Commission’s positive assessment of the FRA will result in any concrete actions to support an increased role for it, in particular in the rule of law area.

Possible additional reform avenues A number of legislative and non-legislative avenues deserve to be explored. To begin with, it is submitted that respect for the rule of law should be explicitly included among the thematic areas mentioned in the FRA’s Multi-annual

64 The proposal to involve a new expert body is reminiscent of the proposal to set up a ‘Systemic Deficiency Committee’ which was made by A. von Bogdandy et al., ‘Protecting EU Values’ in A. Jakab and D. Kochenov (eds), The Enforcement of EU Law and Values (Oxford: Oxford University Press, 2017), p. 228 et seq. 65 European Commission, Follow up to the European Parliament resolution with recommendations to the Commission on the establishment of an EU mechanism on democracy, the rule of law and fundamental rights, SP(2017)16, adopted by the Commission on 17 January 2017. 66 Ibid. 67 Ibid. 68 Ibid.

Upholding the rule of law in the EU

233

Framework. The current reference to ‘judicial cooperation, except in criminal matters’ is both too narrow and incompatible with the changes made by the Lisbon Treaty regarding what used to be known as the ‘Third Pillar’.69 Its absence from the list of thematic areas for the period 2018–2022 beggars belief considering the Commission’s own reference to the FRA in its 2014 Rule of Law Framework and the broad consensus among EU national governments, as noted above, regarding a larger role for the FRA in the context of the Council’s annual rule of law dialogue in a broader context of rule of law backsliding, an existential danger for the EU which has been regularly highlighted by the European Parliament since the ‘Tavares report’ of 2013.70 The FRA should also be provided with ‘the power to seek specific information from EU institutions and Member States and to probe them should they delay in providing it’.71 Related to this, the FRA should be entrusted with a general legislative scrutiny role, which would not require the Agency to carry out ‘a systemic assessment of the human rights implications of every legislative proposal’ but allow it ‘to carry out legislative scrutiny as it sees fit’ and deliver (nonbinding) opinions on draft EU legislation on its own initiative.72 We realize that this would require expanding the Agency’s mandate and amending its founding regulation, but an expanded role with adequate resources for the FRA would help bridge the gap between the EU institutions’ strong rhetoric and the more limited reality of their policies and actions when it comes to upholding compliance with the values laid down in Article 2 TEU. And while amending the FRA’s founding regulation would be advisable, an interinstitutional agreement may suffice to establish a new practice whereby EU institutions ought to, as a matter of principle, request FRA for an opinion whenever serious fundamental rights concerns arise.73 We also support the adoption of the EU DRF pact, which was put forward by Dutch ALDE MEP Sophie In ’t Veld,74 and in particular the idea of a new

69 See European Commission proposal for a Council decision amending Decision (2008/203/ EC) of 28 February 2008 implementing Regulation (EC) No 168/2007, COM(2010) 708 final, section 1.2: ‘The legally binding nature of the Charter of Fundamental Rights and the suppression of the so-called “pillars” make a stronger case of the addition of [judicial cooperation in criminal matters and police cooperation] to the activities of the Agency’. 70 European Parliament, Resolution of 3 July 2013 on the situation of fundamental rights: standards and practices in Hungary, A7-0229/2013. 71 House of Lords, Human rights protection in Europe, op. cit., para. 70. 72 Ibid., para. 73. The Management Board of the FRA has recently reiterated its support for such a change: FRA, MB Decision 2017/05, Recommendations regarding changes in the Agency, its working practices and the scope of its mission, recommendation no 7, pp. 14–17. 73 See in this respect FRA Opinion 1 ‘Involving independent external expert advice at EU level’ in FRA, Challenges and Opportunities for the Implementation of the Charter of Fundamental Rights, Opinion 4/2018, 24 September 2018, p. 14 et seq. 74 Report with recommendations to the Commission on the establishment of an EU mechanism on democracy, the rule of law and fundamental rights (2015/2254(INL)), LIBE Committee, Rapporteur: Sophie In ’t Veld, A8-0283/2016, 10 October 2016.

234

Laurent Pech and Joelle Grogan

interparliamentary rights dialogue.75 This interparliamentary dialogue could rely on data already gathered and analyzed by institutions such as CEPEJ and FRA in order to develop ‘country fiches’ which would then be used as starting points for this dialogue.76 This task could be facilitated by the use of a new database known as EFRIS (European Fundamental Rights Information System) which aims to provide information gathered by different actors on the situation of fundamental rights on a country-by-country or right-specific basis and a pilot of which is to be launched in 2019.77 This would however also require a revision of the FRA’s mandate or, at the very least, an inter-institutional consensus as it currently does not have the competence to collect data outside the scope of EU matters.78 Be that as it may, it would be rather peculiar for the FRA not to be able to do so at a time where Article 7 – which can cover issues falling outside the scope of EU Law – has been activated twice. Indeed, what if, for instance, the Commission were to require the FRA to gather information to help it decide whether to activate Article 7 or not? Within this framework at least the FRA should be able to act outside the scope of EU law. More radically, we would suggest to no longer use the notion of ‘scope of/implementation of’ EU law in order to define the remit of the Agency. The notion of ‘scope of/implementation of’ EU law was indeed devised by the Court of Justice to decide on a case-by-case basis when national measures can be subject to EU review on fundamental rights grounds.79 It is too complex and non-static a standard to be used to define the data-gathering and monitoring remit of an EU agency. Last but not least, and connected to our previous point, we would recommend to explicitly confer on the FRA an Article 7 TEU remit. This provision, as noted by the Commission itself in a 2003 Communication ‘is not confined to areas covered by Union law’.80 It is worth stressing in this respect that the Commission foresaw in 2005 the possibility of having the FRA making its

75 This idea was first put forward by I. Butler, ‘How the European Parliament can protect the EU’s fundamental values: An interparliamentary rights dialogue’, Liberties.eu, 15 January 2016: www.liberties.eu/en/news/european-parliament-protect-eu-values/6831. 76 Ibid., pp. 12–15. 77 Hearing of the LIBE Committee of 10 December 2015, Presentation by Gabriel Toggenburg. More details available in J. Grimheden, M. O’Flaherty and G.N. Toggenburg, ‘The multiplicity of international human rights information: seeing the forest for the trees in the EU’ (2019, Neuer Wissenschaftlicher Verlag). 78 Ibid. See also M. Kjærum, FRA Director, Farewell speech to the European Parliamentary Committee on Civil Liberties, Justice and Home Affairs (LIBE), Brussels, 5 March 2015: http://fra.europa.eu/en/speech/2015/fra-director-speaks-fundamental-rights-achieve ments-and-challenges-european-parliaments; ‘Fundamental Values and the Rule of Law’, Address to the European Affairs Committee hearing at the Danish Parliament, Copenhagen, 12 March 2015: http://fra.europa.eu/en/speech/2015/fundamental-values-and-rule-law. 79 See, e.g., X. Groussot, L. Pech and G.T. Pertursson, ‘The Reach of EU Fundamental Rights on Member State Action after Lisbon’ in S. de Vries, U. Bernitz and S. Weatherhill (eds), The Protection of Fundamental Rights in the EU after Lisbon (Hart, 2013), p. 97. 80 Communication on Article 7 of the Treaty on European Union. Respect for and promotion of the values on which the Union is founded, COM(2003) 606 final, section 1.1.

Upholding the rule of law in the EU

235

technical expertise available to the Council in an Article 7 TEU situation.81 While Regulation 168/2007 ultimately did not grant any explicit Article 7 remit to the FRA, it is worth noting that the Council, in a Declaration on Proceedings under Article 7, did however expressly state that it considers that neither the Treaties nor the Regulation establishing the [FRA] precludes the possibility for the Council to seek the assistance of the future [FRA] when deciding to obtain from independent persons a report on the situation in a Member State within the meaning of Article 7 TEU when the Council decides that the conditions of Article 7 TEU are met.82 Neither the Commission nor the Council have however requested the involvement of the FRA in the ongoing Article 7 proceedings against Poland or Hungary. This is regrettable. Having agreed a Multi-annual Framework which does not ask the FRA to focus on respect for the rule of law, it would have been odd, however, to ask for FRA’s involvement in a procedure which is primarily justified by the existence of a clear risk of a serious breach of the rule of law by Poland, and justified in part by several serious rule of law concerns in the case of Hungary, made all the more pressing by the ongoing attempt to create a ‘parallel’ system of administrative courts in this country.83 It is in any event time to provide the FRA with an Article 7 remit as well as to enable it to monitor all relevant issues regardless of whether they may fall within or outside of the scope of EU law. The FRA should also be provided with the resources to strengthen its expertise on rule of law issues. If anything, the regular consolidation and analysis of data from Member States could help negate accusations by Member States of any possible unfair or inconsistent application of Article 2 standards in any Article 7 process. More generally, the regular provision of data and analysis by the FRA could enhance the operational effectiveness of the EU in monitoring fundamental values, while also helping to prevent the perception and/or materialization of double standards.84

Concluding remarks As recalled by the European Commission in its Article 7 reasoned proposal regarding the situation in Poland,

81 House of Lords, op. cit., paras 74–76. 82 Council of the EU, Proposal for a Council Regulation establishing a European Union Agency for Fundamental Rights, document no 6166/07, 12 February 2007. 83 Hungarian Helsinki Committee, Blurring the Boundaries. New Laws on Administratve Courts Undermine Judicial Independence, 9 December 2018. 84 G. Toggenburg and J. Grimheden, ‘Upholding Shared Values in the EU: What Role for the EU Agency for Fundamental Rights?’ (2016) 54(5) JCMS 1093. For an arguable example of double standards, see L. Pech and K. Lane Scheppele, ‘Why Poland and not Hungary?’, Verfassungblog, 8 March 2018: https://verfassungsblog.de/why-poland-and-not-hungary/.

236

Laurent Pech and Joelle Grogan respect for the rule of law is not only a prerequisite for the protection of all the fundamental values listed in Article 2 TEU […] it is also a prerequisite for upholding all rights and obligations deriving from the Treaties and for establishing mutual trust of citizens, businesses and national authorities in the legal systems of all other Member States.85

If so, it is difficult to understand why the FRA is yet to be clearly mandated to monitor compliance with the rule of law within the EU and help detect the emergence of systemic threats or breaches in this area. When the FRA was first established, rule of law backsliding was not the pressing issue it has become today. As noted by Commissioner Jourová, in a speech given at an event celebrating the ten-year anniversary of the establishment of the FRA, ‘the rule of law, the freedom of the press, the independence of the judiciary are at risk again’,86 and this risk is acute. However, it is also evident that far more is to be gained in benefiting from the FRA’s expertise and support than is worth risking by continued reticence and disregard for the challenges here outlined.

85 European Commission, Proposal for a Council Decision on the determination of a clear risk of a serious breach by the Republic of Poland of the rule of law, 2017/0360 (APP), recital 11. 86 10 years of the EU Fundamental Rights Agency: a call to action in defence of fundamental rights, democracy and the rule of law, Vienna, 28 February 2017, Speech/17/403.

17 Concluding reflections on human rights law and evidence-based policy Rosemary Byrne and Han Entzinger

Embedded within the EU, FRA has pioneered a distinctive genre of evidencebased policy research in the human rights field. The Agency represents a new type of ‘boundary organization’ that links producers of human rights knowledge with users in EU and national governance institutions. What has the European Union’s Fundamental Rights Agency achieved since it was established in 2007? What is the Agency’s added value in the dense, complex institutional landscape in which it operates? Is FRA adequately equipped to face the profound upheaval in human rights currently taking place in Europe? Or are changes needed for it to play a constructive role in this challenging human rights environment? These and many related questions are explored in the preceding chapters. Contributors to this volume recall how the creation of the Agency intersected with other significant processes in Europe. In the decades before FRA was established, the evolution from a ‘common market’ towards a deeper political union rested upon the presumption of a community of values. The fundamental rights EU citizens enjoy are amongst the most important of these. It was perhaps inevitable that, despite comparable bodies existing elsewhere, an EU agency with a particular rights-based mandate would be created. Since FRA’s establishment, the political landscape in Europe and in the wider world has changed. Nowak and Müller-Funk describe in Chapter 15 how, in the past decade, Europe has been consumed with crises that touch on fundamental rights either directly— such as the migrant crisis—or indirectly—as with the effects of the financial crisis and austerity. The wider dynamics that the authors explore make the Agency’s experience relevant to those looking beyond human rights to issues of governance, policy and research. Although a pioneering institution, FRA’s work builds upon developments that were well underway in other realms of human rights and policy. Its role in providing technical advice continues the trend that began in the 1950s of using ‘expert’ advice to promote human rights protection. Wouters and Ovádek point out in Chapter 6 that while FRA’s distinctive creation as an ‘information agency’ emphasizing fundamental rights is ‘somewhat awkward’, it is symptomatic of the ‘agencification’ of EU governance. Likewise, when Kjærum, FRA’s first Director, identifies in Chapter 2 how FRA strategically tapped into transnational expert and advocacy networks, he is essentially describing how the

238

Rosemary Byrne and Han Entzinger

Agency adopted the operational tactics of the wider human rights movement. Even FRA’s mandate reflects the vogue of ‘evidence-based policy research’ in government and political circles. In spite of this, the Agency’s evolution, as Byrne observes in Chapter 5, has run parallel to a declining faith in scientific expertise and the loss of traction in public opinion of the human rights narrative. These are among the many external influences on the Agency’s approach to human rights law and evidence-based policy that authors to this volume have discussed. From the diversity of their insights on FRA’s engagement with human rights law and evidence-based policy, five themes emerge that we discuss below. These are: FRA’s mandate, institutional embeddedness, technocratic approach, research agenda, and regionalism and diversity.

FRA’s mandate The first theme relates to FRA’s mandate, which has shaped the Agency’s approach to producing evidence-based policy advice. The historical struggle over the mandate’s scope and the tensions over its focus illustrate the political sensitivity of policy research on fundamental rights, whether conducted within or outside governing institutions. In Chapter 1, De Schutter recounts the ‘fear’ and ‘inertia’ that accompanied the long debate preceding FRA’s establishment in 2007 – which continues in the present – about what the Agency should and should not be doing. The drafting of the Agency’s mandate reveals that, even when setting up an agency firmly anchored within governing institutions, as FRA is within the EU, ambivalence remains about institutionalizing a human rights agenda within governing structures. Tensions over state sovereignty still loom large. The contributions in Part I of the volume reflect the implications of different political and institutional contexts for establishing an institution tasked with producing research to advise on human rights policy. Pre-existing EU institutional terrain shaped FRA’s mandated functions and, as Termacic describes in Chapter 3, brokered turf struggles once the Agency was created. Early strain between FRA and the Council of Europe offers an example of how competing competencies between two institutions with overlapping jurisdictions can evolve into complementary co-operation. Kjærum shows in Chapter 2 how this was facilitated by defining concrete areas for co-operation and a structure for representation in the architecture of FRA’s Management Board. The main issue that has overshadowed the Agency since its establishment is the ongoing debate about whether it should concern itself primarily with producing research and collecting human-rights-related data to ‘advise’, or whether it should serve as a more robust interventionist institution that ‘monitors’ EU and Member States’ compliance with human rights obligations. Should the Agency be cast as an ‘information agency’, a ‘think tank’ or a ‘watchdog’? The Council of the EU clearly limited FRA’s mandate to the former, while the Council of Europe sought to ensure that the Agency would only engage in ‘advisory monitoring’. If it allowed ‘normative monitoring’, namely evaluating compliance with human rights standards, this would intrude on the Council’s role. De Schutter describes

Concluding reflections

239

this dynamic in Chapter 1. While a minority of Members of the European Parliament prefer the latter interpretation, the European Parliament itself now notably points to FRA as a body that ‘plays a major role in monitoring fundamental rights in the EU’.1 In March 2019, the Parliament adopted a resolution on implementing the Fundamental Rights Charter. Here it called for a change in FRA’s mandate so that it includes ‘the competence to deliver non-binding opinions on draft EU legislation on its own initiative, and to promote systematic consultations with the Agency by Commission, Council and Parliament’.2 Confusion over FRA’s mission reflects how the dividing line between ‘observing’ and ‘monitoring’ what is happening on the ground might be finer than the Council, Commission and Member States believed when the Agency was established. Pech and Grogan note in Chapter 16 the concern of some in 2006 House of Lords debates in the United Kingdom that FRA might become ‘no more than a “postbox” for collecting and sorting data’. The Agency’s experience certainly suggests an inherent ambiguity about the parameters of evidence-based advising in human rights policy. De Schutter comments in Chapter 1 that, while FRA allows for formulating and publishing conclusions and opinions on specific thematic topics, it was ‘clear from the start that the Agency could not fully abstain from at least naming in its thematic reports or annual reports specific Member States when describing the situation of fundamental rights in the EU’. Examples bearing out this artificial distinction include FRA’s work on process indicators regarding the Roma (Fresno and Niemi in Chapter 11) or FRA reports related to borders and treatment of migrants (Vedsted-Hansen in Chapter 13). Human rights research commonly operates under legal or political constraints. Yet FRA’s history shows how research can be tailored to navigate the imposed boundaries of mandates, offering a case study in the adaptive nature of human rights evidence. The general wording in FRA’s Founding Regulation about the process and purpose of evidence-based human rights policy research sometimes empowers. An example of this is when FRA reported in 2011 on the emergency with irregular migrants at the Greek land border. Wording in the Founding Regulation also constrains. An example here is FRA’s relative silence as the fundamental rights situation has deteriorated in Poland and Hungary. While legal and political reasons can explain the relative silence, contrary to what is often assumed, nowhere does FRA’s Founding Regulation explicitly exclude the Agency from commenting on the fundamental rights situation in single EU Member States. The Agency’s focus relates to violations of EU law. FRA

1 European Parliament, ‘The Protection of the Fundamental Rights in the EU’ (Factsheets on the European Union), available at: www.europarl.europa.eu/factsheets/en/sheet/146/theprotection-of-fundamental-rights-in-the-eu (last accessed 29 January 2019). 2 See: www.europarl.europa.eu/sides/getDoc.do?pubRef=-//EP//TEXT+TA+P8-TA-20190079+0+DOC+XML+V0//EN&language=EN.

240

Rosemary Byrne and Han Entzinger

has actually commented on this, albeit in limited fashion, on a number of occasions.3 Entzinger and Quinn observe in Chapter 7 that the ‘marriage’ of law and social sciences allows for more probing forms of research. This combination can reveal ‘hidden facts’, the consequences on the ground of legislation, and ideological and cultural baggage that can impede the quest for objective solutions. In Chapter 4, Saastamoinen notes that large-scale FRA surveys enabled policymakers to ‘quantify [a] problem’ to be addressed, and made the situation of different vulnerable groups ‘visible and concrete’. Fresno and Niemi further suggest in Chapter 11 that FRA work on the Roma has filled a critical void in research, highlighting pragmatically for EU policy makers and Member States the absence of significant progress since 2008. Empirical research has offered the Agency an effective mechanism to operate within its mandate and maintain the imperative of advancing human rights protection – while being unable to ignore scrutinizing specific state practices. ‘Monitoring’ is a core component of human rights protection, yet it remains a trigger word for many Member States. FRA does not present itself as a human rights ‘monitoring body’ and, as many authors in this book have lamented, its recommendations to EU institutions and Member States can be very cautious. Tulkens concedes in Chapter 10 that ‘institutional constraints can sometimes explain the relatively (too) soft opinions and recommendations’ of the Agency. She pleads passionately for FRA ‘to be more audacious and to act as a “watchdog” for the protection of human rights’. Regardless of FRA’s mandate, the expectations of external human rights stakeholders are likely to align with those in independent human rights institutions. Nowak and Müller-Funk in Chapter 15 and Pech and Grogan describe in Chapter 16 that debate over the Agency’s role has hardly subsided since its early years. The authors argue strongly in both chapters for forceful public action beyond mere recognition when individual rights are threatened. They suggest that, since the EU is premised on the rule of law and fundamental rights, its future may be at stake when unfolding events challenge these values and the EU is not more assertive in defending them. Since the Agency entered its second decade, it appears to be adopting a more dynamic institutional identity, one similar to a national human rights institution.4 With the Paris Principles embedded in the Preamble of its Founding Regulation, De Schutter in Chapter 1 and Kjærum in Chapter 2 note that FRA is returning to initial calls for it to be more independent and to adopt the powers of a national human rights institution. The Agency has adeptly attempted to move beyond the research functions of its original mandate and to situate itself as analogous to

3 See, inter alia: FRA (2013) Racism, Discrimination, Intolerance and Extremism. Learning from Experiences in Greece and Hungary. Available at: https://fra.europa.eu/en/publication/2013/ racism-discrimination-intolerance-and-extremism-learning-experiences-greece-and. 4 Also see: Jan Wouters and Katrien Meuwissen (Eds) (2013) National Human Rights Institutions in Europe: Comparative, European and International Perspectives, Antwerp: Intersentia.

Concluding reflections

241

these national bodies whose powers are often extensive, and whose policy and legislative interventions are pro-active and far reaching. The Agency has consistently been extremely mindful of its mandate and of the constraints on its powers within the EU legal and political landscape. But there has also been a willingness to push where there is ‘give’ in the boundaries of evidencebased human rights policy advising. This ‘give’ can be found in research production and in the institutional role FRA plays both behind the scenes and on the public stage. Kjærum describes in Chapter 2 that in the early days of the Agency there was an awareness that this ‘opening up of something new’ requires innovation to work around and within its imposed legal and political limitations. If FRA were to undertake a more visible and confrontational role towards the EU and Member States, political considerations will likely assume a much greater role, with all the attendant risks to its independence and credibility. Alternatively, systematic and detailed research on EU and Member State human rights practices would lessen the demand for more assertive forms of human rights advocacy and protection. This approach depends upon the capacity to channel evidence to committed actors vested with political responsibility, and that are able and willing to act strategically. The reality is that evidence-based research in human rights policy is often selectively relied on or overlooked for a myriad of reasons. In political science, it is difficult to measure ‘impact’ in legislative processes across different levels of governance, as the record of FRA well illustrates. The Agency’s experience should encourage closer examination of how factors like individual agency amongst policy makers, institutional competencies and struggles, historical moments, political context, public attention and the need for expertise interact to advance human rights protection in different policy arenas. The Agency produces an evidence base for influencing human rights policy, and it offers a window into the opaque policy-making process of EU and Member States.

Institutional embeddedness The second theme relates to the unprecedented institutional embeddedness of FRA. Its creation within the EU matrix of agencies facilitates a perception of FRA, which Andrew Williams reflects, as one of the EU’s ‘parasitical’ bodies.5 FRA is part of the EU and reports primarily to the main EU institutions: namely, the Commission, the Council and the Parliament. The metaphor Williams uses is somewhat misleading. Wouters and Ovádek explain in Chapter 6 how FRA differs in various ways from almost all the other 40-odd EU agencies: despite being embedded in the EU, FRA is relatively independent. As the integrity of its research was a priority from the outset, members of its Management Board must be independent persons,6 even though

5 Andrew Williams (2015) ‘Human Rights in the European Union’, in Damian Chalmers and Anthony Arnull (Eds), Oxford Handbook of European Union Law, Oxford: Oxford University Press, p. 250. 6 FRA Founding Regulation Art. 12.1.

242

Rosemary Byrne and Han Entzinger

Member States appoint them. But Member States play no direct role in appointing members of FRA’s Scientific Committee. The independent Scientific Committee composed of senior specialists from diverse fields oversees the quality of the Agency’s work. FRA reveals that the metrics shaping our perception of a successful body producing evidence for human rights policymakers differ between independent and embedded human rights research institutions. For stakeholders in academia and civil society, independence is likely to be a top criterion for perceived legitimacy. For those within EU governance, the focus is more likely to be on policy impact. For example, in analyzing the Agency’s work on hatred, xenophobia and racism, Tulkens argues in Chapter 10 that impact can be very difficult to measure. Explaining the Commission’s view in Chapter 4, Saastamoinen calls FRA an ‘in house’ think tank. She says the Agency’s capacity to achieve ‘mutual trust’ is a benchmark for evidence-based advising. Another is the Agency’s ability to ‘reduce [the] risk’ of litigation that could flow from noncompliance with the Fundamental Rights Charter. FRA’s expertise is a relatively untapped resource that the Commission and other EU institutions could draw on more frequently. In recent years, the number of requests for FRA to outline legal opinions on draft EU law has grown, most notably from the European Parliament. FRA offers a counter case against stringent independence in EU policymaking. No one contests the value of an independent Management Board that allows the Agency to advance its rights agenda unfettered by state interference. But the key decision-makers in the EU are Member States, and there would be a cost to not having them represented at the highest level on the institution’s board. To shape policy and inter-institutional consensus effectively, the highest levels of Member State governments must be aware of FRA’s work. Though the Agency engages directly with Member States at various levels of governance, including the ministerial level, its formal links are through National Liaison Officers. This is a mid-level exchange, with no engagement with or ownership of FRA’s governance decisions. Through the prism of inter-institutional consensus, FRA colleagues point to other EU Agencies such as Eurofound (the EU Agency for the Improvement of Living and Working Conditions) that has a Governing Board of governments, employers and trade unions. This governance model supports consensus and raises awareness amongst key senior policy actors. It also forces a reconfiguration of the familiar adversarial relationship between government authority and actors gathering human rights evidence. Notwithstanding its relative independence, FRA produces ‘embedded research’. Much of the tension surrounding the Agency’s work flows from the fact that human rights research, by definition, aims to protect individuals from state practices and omissions. As an embedded research body, FRA is funded and answerable to powers that rights advocates seek to constrain and often condemn. Contributors to this volume consistently queried whether FRA is sufficiently forceful in its criticisms or appropriately focussed in its scrutiny of EU and Member States’ human rights practices. Given that human rights researchers and advocates alike commonly

Concluding reflections

243

assume an oppositional stance towards public authorities, the Agency’s position is uneasy. In the human rights field, institutional and intellectual independence are often seen in adversarial engagement with state practice and policy.7 The preceding chapters adopt a more deferential approach to human rights policy advising, presenting an alternative framing of rights research in the context of FRA. The overarching understanding of advocacy in this embedded context rests on striking a strategic equilibrium between achieving policy impact, meeting the often conflicting expectations of stakeholders (ranging from the Commission to civil society), while maintaining institutional credibility. In Chapter 16, Pech and Grogan reflect on FRA’s marginal role in the unfolding rule of law crises in Hungary and Poland, when the Commission turned to the Venice Commission rather than to its own Agency. An external body logically brings greater legitimacy to the Commission’s position on the rule of law within wayward Member States than an ‘in-house’ Agency; a nonEU body would enjoy a stronger perception of independence and objectivity. Policy-related research is rarely entirely divorced from political and strategic considerations. FRA is similar to other international organizations in that their members’ political directives determine and limit their information gathering. Le Blanc and Coicaud observe that this is not different to how ‘other criteria … influence [the process] for private firms, civil society organizations, governments, academia, and other types of institutions’.8 Nonetheless it is the Agency’s fundamental rights mandate that makes its embedded character potentially more compromising. Yet embedded within the EU, FRA benefits from unique access to policy-makers. But the obstacles to rights reform both within power structures and on the ground also prevent the implementation of effective rights reforms. Like other embedded EU agencies, FRA’s fundamental rights mandate creates distinctive channels for external access to the research process that are less prominent in other EU institutions. In addition to the Scientific Committee, FRA’s Founding Regulation requires the Agency ‘to co-operate with civil society’. This includes setting up a Fundamental Rights Platform to make suggestions for FRA’s research agenda and to give feedback on FRA’s work.9 Few, if any, EU bodies have this level of structured engagement with civil society. Yet with 28 Member States and a long list of rights within its remit, what can realistically be expected in terms of reaching a fully representative cross section of civil society is very limited, despite the possibilities that social media offer. Major international organizations with research divisions, such as the World Bank, maintain significant standing within academia, something FRA is yet to

7 See, e.g., Rosemary Byrne, ‘Refugee Advocacy Scholarship’, Canadian Journal of Human Rights (forthcoming 2019). 8 David Le Blanc and Jean-Marc Coicaud (2016) ‘Information Gathering, Analysis and Dissemination’, in Jacob Katz Cogan, Ian Hurd, and Ian Johnstone (Eds), Oxford Handbook of International Organizations, Oxford: Oxford University Press, p. 665. 9 FRA Founding Regulation Art. 10.

244

Rosemary Byrne and Han Entzinger

enjoy. In Chapter 7, Entzinger and Quinn observe that a number of FRA studies with new data, approaches and insights have not been sufficiently recognized in human rights or social science scholarship. Compared with most university research centres, FRA’s annual budget of over 20 million euros is significant. A substantial part of this is spent on large-scale surveys among specific vulnerable communities in all Member States, such as immigrants, LGBT persons, Roma and other minorities, children, or people with a disability. These surveys have generated important results, in particular because of their comparative insights across Member States. Nevertheless, while growing, the number of references to FRA work in major academic journals is still modest; FRA publications trickle through to civil society more effectively than to the academic world. This situation is regrettable, although changing as the Agency’s work becomes more established. As with all research, better engagement with external scientific expertise and networks usually enhances the quality of output. Recently, FRA has become more actively involved in professional organizations such as the Association of Human Rights Institutes. A greater presence and influence in leading research networks remains a challenge in light of overstretched staff and resources. With FRA’s decision to place its databases in the public domain, its evidence is now more accessible to universities and other external researchers. Closer involvement by the academic community with the Agency’s work and integration of FRA studies and surveys into academic discourse should further increase awareness of the Agency’s work in broader regional, national and grassroots policy debates. Beyond supporting the Agency’s work and amplifying its impact, academia could become more pivotal as FRA evolves. Embedded research may fall short in exposing the scale or urgency of human rights violations, or the fundamental incoherence of broader EU policies, as seen with austerity measures and migration into the EU. In these situations, academia should speak louder and more often about FRA’s silence or understatements. Human rights scholarship from the academy should affirm and, when necessary, critique the significant research underway in Vienna. A vigilant academy is a counterweight to embeddedness.

FRA’s technocratic approach The third theme concerns FRA’s predominantly technocratic approach to human rights research. The Agency promotes human rights by providing specialist ‘technical expertise’ to, amongst other things, help navigate political tensions. In line with the vogue from the 1950s towards scientific solutions for public policy challenges, the United Nations Advisory Service on Human Rights looked to ‘solving human rights with technocracy’.10 Roland Burke describes how the ‘preference for the expert’ became an integral part of human rights from the late 1980s.

10 Roland Burke (2017) ‘Disseminating Discord and Discovering the World: UN Advisory Services on Human Rights and the Illusory Faith in Specialist Knowledge’, The International Journal of Human Rights, 21:5, 589–610.

Concluding reflections

245

Technical assistance was ‘reconfigured and modernized’ through focussing on ‘capacity building’, ‘mainstreaming’, an ‘integrated human rights approach’, and creating national human rights institutions.11 Human rights research has been part of this trend. An EU rights research body likely was welcomed with caution, given the considerable fundamental rights expertise already existing within EU institutions. Wouters and Ovádek reflect in Chapter 6 that the Commission would likely not ‘defer considerably to the relevant agency on account of lack of expertise’. Entzinger and Quinn note in Chapter 7 that largely normative legal approaches long dominated human rights research, and that the ‘fusion’ of legal and social science research in the FRA represents a next stage in the evolution of technocratic approaches to human rights promotion. In Chapter 9, Entzinger analyzes how this shift has become visible in the EU’s approach to combating discrimination and to promoting social inclusion. Tulkens suggests in Chapter 10 that greater intersectional research, in line with this trend in international human rights law, would further advance FRA research contributions. Wouters and Ovádek also observe that the Commission’s dependence on FRA expertise may be limited when the Agency produces undesired ‘competing expertise’ or when political disagreement among EU institutions requires an ‘investment in political capital’. Many contributors observed the interplay between the Agency’s embeddedness within the EU and its technocratic approach to research. When describing ‘real time’ FRA research on asylum in Chapter 14, Byrne notes how access was required from Member States to zones typically closed to researchers and civil society organizations. FRA rarely engages in harsh public critique of EU or Member State practices. Its research questions are commonly tailored to influence policy processes and practice on the ground, with constructive criticisms formulated as ‘opinions’ and recommendations seeking incremental rather than foundational reforms. The tradeoff for policy influence for the technocratic researcher is less visibility for FRA’s more influential work. When FRA work has aroused widespread public interest, it has notably impacted EU policy-making and also at national levels. The best example is FRA’s Violence Against Women report. Wieruszewski and SękowskaKozłowska comment in Chapter 12 that it was published at a moment when the general public and political actors were open to engaging with its findings. A key success metric for the Agency’s technocratic approach is the extent to which its specialist expertise is sought by EU institutions. For the Agency, this has occurred increasingly, with requests coming mainly from the Parliament, but also from the Council and the Commission. According to Wouters and Ovádek in Chapter 6, requests are typically for comments on draft legislation about fundamental rights. Wouters and Ovádek also identify ‘softer opportunities’, where the Agency engages formally and informally with different official EU fora, typical of technocratic approaches to evidence-based policy making.12

11 Ibid., 592–593. 12 Peter Scholten, Han Entzinger and Rinus Penninx (2015) ‘Research-Policy Dialogues on Migrant Integration in Europe. A Conceptual Framework and Key Questions’, in Peter

246

Rosemary Byrne and Han Entzinger

As for virtually all human rights promotion bodies, outreach to the policy community is essential to realizing the objectives of rights research. In Chapter 2, Kjærum describes FRA engagement with Europe-wide human rights networks across all sectors. The impact of this outreach is hard to measure. Civil society remains a core stakeholder for the Agency, and a wide range of anonymous actors enjoys its data and resources. The best example of this is the five Handbooks that FRA produced with the Council of Europe.13 One way to assess the impact of these publications is the high number of downloads. Nowak and Müller-Funk posit in Chapter 15 that, with the creation of a civil society platform, FRA has the potential to ‘act as a catalyst for a more inclusive approach towards civil society organizations in the human rights architecture of the EU’. Technocracy reaches inside and outside institutional governance.

The research agenda The fourth theme focusses on the critical question of who sets the Agency’s research agenda. The formal answer is clearly the Agency’s Management Board. FRA’s Director proposes longer-term Programming Documents and the Annual Work Programmes to the Board after consulting with a large number of stakeholders, including FRA’s Scientific Committee. FRA’s Multi-Annual Framework, which needs approval of the EU Council, usually after lengthy consultations, lays down the parameters of the Agency’s work. EU institutions can also request FRA to carry out a specific ad-hoc project not expressly linked to the MultiAnnual Framework. There is also room for FRA discretionary decisions, often in consultation with the Commission. Saastamoinen cautions in Chapter 4 that FRA ‘should critically accompany, but not undermine the work of EU institutions, leading to better decisions and results’. Decision making about the Work Programmes is complicated and not transparent. Even more problematic, its lengthy process easily causes rigidity. Yet the Agency can also be agile, as seen, for example, in its response to the ‘migration crisis’ in 2015. FRA started publishing a weekly, later monthly, now quarterly, newsletter about the situation of newly arrived migrants in a number of Member States. It sent staff members to the field to witness conditions first hand and to advise other EU bodies working in Greek and Italian ‘hotspots’. Nowak and Müller-Funk describe in Chapter 15 the intricacies of this Agency shift to a more practical form of providing advice. Some observers applaud this move as a tangible contribution to ensuring human rights are respected under stressful circumstances. Others see it as a form of advocacy that pushes the limits of FRA’s mandate and risks the Agency’s real and perceived independence.

Scholten et al. (Eds) Integrating Immigrants in Europe: Research-Policy Dialogues; Cham: Springer, pp. 4–5. 13 These Handbooks deal with data protection law, anti-discrimination law, access to justice, guardianship for children and with laws relating to asylum, borders and immigration.

Concluding reflections

247

The experience of FRA highlights a shortcoming of embedded evidencebased rights advising: the inability to position when anticipating forthcoming threats to fundamental rights. The long, complex decision-making processes in establishing FRA’s research agenda can mean that new developments and trends may not make it onto the agenda, or only very belatedly. This makes it difficult for FRA to be at the forefront of new developments in rights ramifications, such as genome research and the use of big data and algorithms. In areas such as artificial intelligence, hate crime or violence against women, FRA has been able to be more visible. The extent to which FRA engages with ‘frontier’ policies is largely at the behest of the Commission and other EU institutions; there is a limit to elasticity in the governing process, bureaucratic structures and budget lines. A lesson from the early experience of FRA is the need for flexibility in agenda setting in order to tackle proactively rising threats to rights. FRA’s Strategic Plan 2018–2022 reflects this desire, particularly in the Agency’s third priority area. This refers to providing real-time assistance and expertise to support EU and Member States rights-compliant policy responses, an activity that has taken on more prominence in recent years than in FRA’s early days.14

Regionalism and diversity The fifth and final theme concerns the relationship between the Agency and regionalism in human rights in a diverse Europe. FRA now covers 28 Member States in its activities. Differences in culture and traditions lead to differences in how human rights are implemented, experienced and enforced. Angela Me discusses in Chapter 8 specific methodological challenges to the Agency’s work that this variation poses. Challenges in terminology and translation also arise, many of which are not specific to FRA, but generic to all comparative research. A recent FRA report based on the latest EU-MIDIS survey is subtitled Being Black in the EU.15 This choice of subtitle was only made after lengthy internal discussions and consultation with relevant NGOs. In English, the word ‘black’ is commonly used to designate persons of African descent, the subject of this report. In many other European languages, using the equivalent of the word ‘black’ is considered inappropriate in this context. FRA’s EU-wide surveys have to be carried in 22 different languages, and their results must be reported consistently. This requires nuanced translation, especially when specific terms have different meanings across cultures. Me acknowledges in Chapter 8 that most Member States don’t have much statistical data or research on fundamental rights and their implementation and, if they exist at all, they are not necessarily comparable. For almost all of its activities,

14 FRA (2018) ‘FRA Strategy 2018–2022’. See: https://fra.europa.eu/en/news/2018/fivepriorities-guide-fras-work. 15 FRA (2018) ‘Second European Union Minorities and Discrimination Survey: Being Black in the EU’. See: https://fra.europa.eu/en/publication/2018/eumidis-ii-being-black.

248

Rosemary Byrne and Han Entzinger

the Agency needs up-to-date information on legislation, jurisprudence and policies in all Member States, and it is often not possible to collect all this from FRA’s base in Vienna. The Agency has therefore set up partnerships with at least one research centre in every Member State, forming a network called FRANET. For information for its reports and its advisory activities, FRA often has to rely on FRANET information without being able to verify details. This is not to say that FRANET data does not meet required FRA standards. It says rather that Europe’s cultural heterogeneity means different individuals and groups can interpret seemingly similar phenomena or experiences quite differently. In Chapter 9, Entzinger discusses how this can arise, particularly when formulating policies that aim to reconcile equality and diversity. Ideas on how to implement these fundamental values in policy-making differ significantly within Member States, but even more so between Member States. This is an additional challenge for developing fundamental rights policies on a regional rather than on a national basis. Likewise, many FRA publications include references to ‘promising practices’ at a national or local level in a specific Member State. Leaving aside why a specific practice might be considered ‘promising’, a practice that may be promising in one local context may prove less successful in another location due to differing political and cultural circumstances. It is certainly an asset that much FRA work is interdisciplinary. The Agency’s primary role is advising how individual citizens experience implemented human rights. Vedsted-Jensen refers to this in Chapter 13 as ‘FRA’s socio-legal approach to real-life fundamental rights challenges’. Social sciences can help explore and explain often culturally determined differences in implementation and experiences at the individual or group level. Entzinger and Quinn comment in Chapter 7 that this is precisely why the ‘marriage’ between law and the social sciences, one of FRA’s main characteristics, is ‘a potentially happy one’. Byrne notes in Chapter 5 that the diversity of standards, practices and experiences across 28 Member States creates a challenge for communicating the Agency’s work. The Agency has to counter the inclination of governments, the media and the public to reduce research findings to a ranking exercise of better or worse state offenders. While this may call for greater comparative analysis of the root causes of violations across jurisdictions, it is unclear how the Agency sees its role in these matters. Should it provide possible explanations for differences it may find, or should it simply register these and leave their interpretation to the reader? For example, in Chapter 12, Wieruszewski and Sękowska-Kozłowska note that the often-cited Violence against Women report found that, generally speaking, women experience and also report more violence in northern Member States than in the southern ones. Many observers find this counter-intuitive, since, inter alia, the former have more elaborate gender equality policies than the latter. Many possible explanations have been raised, some of which FRA flagged in its own reporting. These include cultural differences in interpreting the concept of ‘violence’, different levels of awareness of ‘violence’ amongst victims, or factors such as the role of alcohol consumption. In the report itself, the

Concluding reflections

249 16

Agency listed possible explanations without adding detailed analysis. If FRA were to further explain differences in outcomes in the field of fundamental rights it is hard to see how the Agency could avoid becoming mired in complex, contentious and inevitably political considerations.17 The diversity of Member States within the EU contributes to a pervasive caution in FRA's research. But its silence on difficult questions makes it likely that less informed and more rights adverse voices could shape and distort public debates.

Conclusion This volume offers only a partial snapshot of the work of FRA. The Agency’s contributions to research methods and its output are impressive against the backdrop of legal, political, institutional and resource constraints that have accompanied its evolution. The establishment of an ‘in house’ EU institution dedicated to providing evidence for human rights policy is a historic innovation. But this innovation also comes with the need to look anew at human rights policy research and the embedded institution that produced it. What do contributors to this volume suggest about adapting evidence-based advising for human rights policy? First, we need to widen our lens. Being a historic innovation does not require the Agency to transform the rights landscape in the EU. A human rights agency created within a contemporary regional or global governance regime can only be understood as one of many official and nonstate actors. FRA’s contribution lies in how it operates within an organic system of dynamic, overlapping institutions, networks and rights stakeholders. Second, we need to acknowledge that human rights research can be conducted with different degrees of independence, compelling an assessment of its potential as well as of its limitations. For an embedded, evidence-based human rights policy body, the paradigm of empirical research as an adversarial, sometimes shaming, model of monitoring needs to be replaced by one that accommodates political realities at the EU, Member State and grassroots levels. This emerging model of FRA’s work sees strategic use for combining legal and social science research approaches with technocratic proposals. Such an approach shows the capacity of research methods to transcend politics. By ‘concretizing’ complex phenomena for officials, it can access and influence different points of the policy process.

16 FRA (2014) ‘Violence against Women: An EU-Wide Survey. Main Results’, pp. 22–26. See: https://fra.europa.eu/en/publication/2014/violence-against-women-eu-wide-surveymain-results-report. 17 In a special issue of the Journal of Interpersonal Violence, Vol. 32(12), published in June 2017, several FRA staff members gave more detailed explanations for some of the differences found.

250

Rosemary Byrne and Han Entzinger

Third, notwithstanding debates about expanding FRA’s mandate, we need to recognize its existing breadth. In addition to working across 28 Member States and with a long list of fundamental rights, the Agency is forced to impact a policy arena that is increasingly ‘crisis’ driven. This adds great pressure for research to ask the right questions at the right time and to provide policyrelevant answers. FRA continues to respond to this pressure for diversification by providing quickly delivered and accessible outputs. Despite its striking policy successes, due to size and limited resources it is difficult for it to be a central voice in critical debates on all significant rights. Lastly, we need to ask whether FRA could diminish this impact deficit if there were more substantial and interactive relationships between the Agency and the human rights academic community. For this to happen, academics need to engage more fully with the Agency’s work. Proximity to the issues on the Agency’s agenda can bring scholars closer to ‘real time’ policy concerns and debates in Brussels. More importantly, when the Agency, for whatever reasons, produces policy advice that avoids central issues or analysis that might lead to political discomfort, academic voices and research should fill the void. Such dialogue needs to extend beyond the small group of scholars that FRA solicits for advice, to the wider profession. Academics are not simply a conduit for amplifying the Agency’s more interesting work. Through non-embedded scholarship, they can position themselves to inform, complement and critique the research of an embedded institution. FRA and European human rights activists and scholars share the mutual goal of deepening and advancing human rights protection in the EU. FRA’s first decade provided a pilot project in embedded human rights research and its methodologies. In its second decade, there is no doubt that the Agency will continue to influence policy within and outside the institutions of the EU. The Agency’s integration into civil society and academic networks should be prioritized to amplify the reach and impact of its research. At this critical juncture in history, the need for evidence to inform public debates and policy in Europe could not be more acute.

Index

Page locators in bold refer to tables.

academia 10, 33, 74, 78, 113–114, 120, 122, 125, 190, 242–244 access to justice 38, 48, 51, 52, 85, 130, 155–157, 160, 222, 246 acculturation 140–141 Ad Hoc Committee of Experts on Roma and Traveller Issues (CAHROM) 52 Adaptive Cluster Sampling (ACS) 121 advisors of political groups 99 Advisory Committee on the Framework Convention for the Protection of National Minorities 52 advisory monitoring 21 Agenda for the Rights of the Child 50 agenda-setting 4–5, 87 airports 188–189 Amsterdam Treaty 15–16, 161 analyzing data 120–121 Annual Colloquium on Fundamental Rights 64–65 annual Rule of Law dialogue 226, 227–230 anti-discrimination 6, 29, 52, 131, 147, 162–165, 169 anti-racism 169 anti-Semitism: awareness-raising 150–151; Holocaust remembrance 71–72; protection of victims 154–155; role of FRA 65; Rule of Law 38–39 anti-terrorism 62–63 application of Union law 23 Apprehension of Migrants in an Irregular Situation – Fundamental Rights Considerations 37–38 Arab Spring 212 Article 4(1)(d) of the Founding Regulation 95–96

Article 5 of the Founding Regulation 87 assimilationist models of cultural diversity 138–139 asylum: borders and migration 190, 193–194; EASO 92–94, 93, 94, 100, 196; equality/inclusion 135–136; interinstitutional competition 114; and irregular immigration 9; refugee protection 197–205; VAW 177–178 Australia 74, 210–211 Austria 16, 30, 36, 211–212, 213, 217, 218, 228, 229 authoritarianism 212–213 awareness-raising 22, 65, 69, 149–153 Balazs v Hungary 145–146 Bayev and Others v Russia 146 Beijing conference 1995 213 Being Trans in the European Union report 151–152 Belgium 150–151 best-practice models 218 bias, victims of crime 155 biometric projects 200 Blom, T. 100 bodies of the Agency 32–36 borders and migration control 185–196; EU competence 193–196; extraterritorial migration control 190–193; mandate 185–186, 193–196; non-refoulement 188, 190–193; third-country nationals 187–190, 192–193 bottom-up approaches 111, 217 Brandeis brief 107–108 Brexit 3, 66, 78, 90, 211–212 Budapest Convention 144

252

Index

budget 62, 66, 91–94, 125–127, 226–227, 244, 247 Bulgaria 127, 143–150, 158–167, 176, 190, 200 bureaucratic 4, 83–84, 88, 101, 202, 247 CAHROM (Ad Hoc Committee of Experts on Roma and Traveller Issues) 52 Carraro, V. 100 CDDH (Council of Europe’s Steering Committee for Human Rights) 51–52 CEDAW (Committee on the Elimination of Discrimination against Women) 152–153, 174 CERD (Convention on the Elimination of All Forms of Racial Discrimination) 148–149 Charles de Gaulle airport 188 Charter on Fundamental Rights 15–17, 28, 59, 77, 79, 131, 138, 140, 162–163, 172, 191, 194–195, 204, 239, 242 children 50, 135–136, 174 Citizenship Programme 59 civil rights of migrants 189–190 civil society 9, 33–35, 70–80, 120–121, 124, 149, 159, 187, 190, 197, 201, 203, 212–215, 230–231, 242–246; changing technology 76; European crisis 216–217; inter-institutional competition 113–114; political role/mandate 89–90 CJEU (Court of Justice of the European Union) 51, 162–163, 191, 194–195 Clémenceau, M. 230 Cold War 210, 212–213 collecting data 120–121 collection and analysis of data, mandate definition 21 Commission see European Commission Commission on Law Enforcement and Administration of Justice 153 Common Provisions on Structural and Investment Funds 164 communicators: across-Europe 72; changing technology 75–77; communicators 69–81; embedded institutions 72–73; established human rights narrative 71–72; evidence-based research 73–75; as human rights communicators 79–80; polarized audiences 77–78 Communism 210 competence of the EU on borders and migration 193–196

competition, inter-institutional 113–114 complementarity 6, 24, 30, 45–54 Computer-Assisted Telephone Interviews (CATI) 126 conceptualism 106–107 Conference on Human Rights 1993 213 Consultative Forum, Frontex 196 contract agents (CAs) 92 contractor networks 200–201 control measures see borders and migration control cooperation 48–53; borders and migration 191–192; institutional 48–49; inter-disciplinary 114–115; joint projects 51–53; political role/mandate 85–86, 88–90; VAW 177–178 Copenhagen conference 1995 213 COREPER (Permanent Representatives Committee) 227 COSAC group 41 The Cost of Exclusion from Health Care – The Case of Migrants in an Irregular Situation report 136 Council see European Council Council of Europe Human Rights Commissioner 40 Council of the European Union Working Party on Fundamental Rights, Citizens and Free Movement of Persons (FREMP) 98–99, 154–155, 228 Council of Europe’s Ad Hoc Committee of Experts on Roma and Traveller Issues (CAHROM) 52 Council of Europe’s Steering Committee for Human Rights (CDDH) 51–52 Court of Human Rights (ECtHR) see European Court of Human Rights Court of Justice of the European Union (CJEU) 51, 162–163, 194–195 Crickley, A. 33 crime 85–86; cyberstalking 144, 174; hate/ racism/xenophobia 8, 143–157; political role/mandate 85–86, 88–90; VAW 177–178; victims of 143–157 criminal justice system: awareness-raising 149–150; incentives for action 153 Croatia 180, 228 cross-country research 122–123 culture: cultural baggage 111–113; equality/inclusion 138–141; fundamental rights 18 cyberstalking 144, 174

Index Cyprus 72, 187, 209, 228 Czech Republic 167, 209, 228 Daphne Programmes 64 data analysis and collection 7, 120–121, 200 data visualization 78 Davis, T. 25 Davos, Switzerland 36 ‘Dealing with Migration and Refugee Flows’ 204 Delphi methods 124 democratizing research 76–77 Denmark 42, 76, 112, 175, 200 detention centres 135–136, 201 differentialist models of cultural diversity 138–139 disabilities see persons with disabilities Disability Forum 179–180 discrimination: added value of FRA 63–64, 65; equality/inclusion 136–137; hatred/ racism/xenophobia 143–157; innovative nature 60–61; joint projects 51–52; rapprochement of disciplines 112–113; Roma populations 158–171 diversity, cultural 138–139 domestic violence 49, 64–65, 144, 174, 177, 180–181 Drezner, D. 78 DRF Report 231–232 Durkheim, E. 109 EASO (European Asylum Support Office) 92–94, 93, 94, 100, 196 ECHR see European Convention on Human Rights economic globalization 213–214 economic violence 174 ECRE (European Consultation on Refugees and Exiles) 80 ECRI (European Commission Against Racism and Intolerance) 52, 144–145, 159 ECtHR see European Court of Human Rights education 22, 31, 37, 50–51, 71–72, 80, 108, 120, 131, 133, 137, 149, 156, 159, 161, 164–170, 174 EESC (European Economic and Social Committee) 169–170 EFRIS (European Fundamental Rights Information System) 54, 233–234 Egypt 212

253

email harassment and violence 174 embedded institutions 72–73, 241–244, 249 embedded research 4, 197–205, 241–244 EMCDDA (European Monitoring Centre for Drugs and Drug Addiction) 128–129 employment 37, 63, 120, 133–134, 137, 148, 152, 159, 162–170, 178 Employment Directive (EU) 63, 148, 152–153, 162–163 ENNHR (European Network of National Human Rights Institutions) 53 Ensuring Justice for Hate Crime Victims: Professional Perspective 155 EP see European Parliament equality: employment 63, 148, 152–153; hatred/racism/xenophobia 143–157; role of FRA 63–64; Roma populations 158–171; and social inclusion 8, 131–142; VAW 181 Equality and Citizenship Programme 59 ERDF see European Regional Development Fund ERF (EU Refugee Fund) 201–202 ESC (economic, social and cultural) rights 214 Estonia 85, 209, 228 ethnic backgrounds 140–141 ethnic minorities: data collection and analysis 120–121; incentives for action against hate 153–154; innovative nature 60–61; role of FRA 60–61; see also Roma populations EU Monitoring Centre on Racism and Xenophobia (EUMC): agency and mandate 29, 30–31; equality and inclusion 134–135; genesis of FRA 13–19; mistrust 45; past challenges 209; political role 82; political role/mandate 85–86 eu-Lisa 92–94, 93, 94 EU-MIDIS see European Union Minorities and Discrimination Survey Eurofound 128–129 Eurojust 92–94, 93, 94 European Agency for Law Enforcement Cooperation (EUROPOL) 92–94, 93, 94, 204 European Asylum Support Office (EASO) 92–94, 93, 94, 100, 196 European Commission 6–7; added value of FRA 61–66; awareness-raising 151–152; borders and migration 196; combating

254

Index

hatred 144–145; EUCM 14–15; international processes on Roma Rights 163–165; Joint Report on Social Inclusion 132–133; opportunities 94–95, 97–98, 99–100; political role/mandate of FRA 86, 89–90; resources 91, 92; Rule of Law 39, 224–227, 234–235; selected cooperation samples 50; VAW 178; Venice Commission 32–33, 40–41, 50–51, 225–226, 232 European Commission Against Racism and Intolerance (ECRI) 52, 144–145, 159 European Committee for the Prevention of Torture and Inhuman or Degrading Punishment 46 European Consultation on Refugees and Exiles (ECRE) 80 European Convention on Human Rights (ECHR) 55, 77, 146, 160–161, 201 European Council 6; agency and mandate of FRA 30; annual Rule of Law dialogue 226, 227–230; awareness-raising 151–152; combating hatred 144–146; equality/inclusion 132–134; interinstitutional competition 113–114; Joint Report on Social Inclusion 132–133; political role/mandate 86; protection of human rights 43–56; Roma populations 160–161, 164; Rule of Law 225–226; VAW 177–178; victims of crime 147–148; working on substance 37 European Court of Human Rights (ECtHR) 51, 143–152, 161, 190, 202, 222 European Disability Forum 179–180 European Economic and Social Committee (EESC) 169–170 European Fundamental Rights Information System (EFRIS) 54, 233–234 European Institute for Gender Equality (EIGE) 31, 93–94, 182–183 European Monitoring Centre for Drugs and Drug Addiction (EMCDDA) 128–129 European Network of Equality Bodies (EQUINET) 53, 151, 181 European Network of National Human Rights Institutions (ENNHR) 53 European Parliament (EP) 37, 50, 51, 86, 89–90; definition of FRA’s mandate 19–20; Rule of Law 39, 231–232; victims of crime 147–148, 154–155

European Programme for Human Rights Education for Legal Professionals (HELP) 50, 51 European Regional Development Fund (ERDF) 164 European Union (EU) 13–14, 28, 128–130; access to justice 156–157; added value of FRA 63–64; agencies 41–42; Agenda for the Rights of the Child 50; awareness-raising 151–153; bodies of FRA 34; borders and migration 187–190, 193–196; changing technology 76–77; Charter on Fundamental Rights 15–17, 28, 77–78, 147, 162, 193–195, 204; CJEU 51, 162–163, 194–195; combating hatred 147–148; competence on borders and migration 193–196; cooperation 48; Council of Ministers 163–164; cross-communication 72; embedded institutions 73; equality and inclusion 134; equality/inclusion 140; #EUToo movement 79–80; External Borders Fund 201–202; FREMP 98–99, 154–155, 228; hidden facts 110–111; innovative nature 59–60; inter-disciplinary marriage 114–115; inter-institutional competition 113–114; international processes on Roma Rights 161–165; joint projects 51; mandate definition of FRA 19–20; narrative 71–72; Network of Independent Experts on Fundamental Rights 19–20; Persons with Disabilities 65; political role 82; population surveys 118–120; Refugee Fund 201–202; refugee protection 198–199, 201–202; resources 91, 92, 94; Return Fund 201–202; Roma populations 159, 161–165; Rule of Law 39–41, 219–236; security and co-op 148–149; Third-Country Nationals 62, 201–202; Treaty of 2009 161–162; VAW 172–178 European Union Minorities and Discrimination Survey (EU-MIDIS) 115–116; added value of FRA 63; criminal victimization/discrimination 153–154; equality and inclusion 134–135; innovative nature 60–61; joint projects 52; mandate of FRA 31; population surveys 118–119; rapprochement of disciplines 112–113; Roma exclusion 165–167

Index EUROPOL (European Agency for Law Enforcement Cooperation) 92–94, 93, 94, 204 #EUToo 79–80 EU–Turkey Agreement 195 evaluation of compliance, mandate definition 21 exiles see refugees experiences: added value of FRA 65; criminal victimization/discrimination 153–154; ‘law turning outwards’ philosophy 107–108; population surveys 119–120; rapprochement of disciplines 110; refugee protection 202–203 experts: borders and migration 196; communicators 80; EU bodies 59–60; FRALEX 217; HLEGs 97–98; institutional cooperation 48–49; opportunities 97; political role 83; quality of research 124; RAXEN 217 Explanatory Report to the Istanbul Convention 49–50 expression of human degeneration 35 External Borders Fund 201–202 extraterritorial migration control 190–193 factory-workers 107–108 family value groups 35 female genital mutilation (FGM) 173 financial markets 213–214 fingerprinting 200 Finland, Rule of Law 19, 200, 228, 229 flexibility clauses 87 forums 44–45, 179–180, 196, 217 Founding Regulation 28–42; Article 4(1)(d) 95–96; Article 5 87; borders and migration 193–194; European crisis 216 FRACO (Opinions Committee) 32 FRALEX (Fundamental Rights and Legal Experts) 217 frameworks: combating hatred 144–149; Decision on Racism and Xenophobia 155; Employment Directive 162–163; FRA quality 124–126; National Roma Strategies 37, 163–164; Rule of Law 224; see also Multi-annual Frameworks France 112, 139, 158, 200, 228; antisemitism 150–151; military intervention in Libya 212; right-wing politics 211–212; victimization surveys 153 FRANET contractor networks 200–201 Frank, J. 106

255

Free Movement of Persons (FREMP) 98–99, 154–155, 228 Frontex 92–94, 93, 100, 186, 190–192, 196, 198, 203 Fund for the Integration of Third-Country Nationals 201–202 Fundamental Rights Forum (FRF) 36, 79, 217 Fundamental Rights and Legal Experts (FRALEX) 217 Fundamental Rights of Migrants in Irregular Situation reports (2011) 204–205 Gaddafi, M. 212 gender: Equality Directive 147–148; expression and identity 60–61, 147–148; see also Violence Against Women genesis of FRA 6, 13–27 genital mutilation 139–140, 173 Germany 19, 36, 48, 150–151, 200, 211–212 global financial markets 213–214 Global Peace Index (GPI) 210–211 Goodey, J. 155, 176 Goods and Services Directive 148 Gracia, E. 182 Greece: asylum hotspots 114; borders and asylum 201–202; migration hotspots 44, 61, 114, 196; migration/refugee crisis 2015 100, 136; Rule of Law 40–41 Greenpeace 214 GREVIO 180 GR-EXT (Ministers’ Rapporteur Group on External Relations) 48–49 “Guaranteeing Justice and the Protection of All Children” 50 Guidelines on Child-Friendly Justice (Council of Europe) 50 hate crime 6, 46, 52, 61, 65, 133, 143–144, 148–150, 154–159, 199, 247; agency and mandate 31–34; population surveys 119–120; role of FRA 65 hate speech 145, 148–149 hatred/racism/xenophobia 8, 143–157 headscarves 139–140 health care 70, 115, 131, 133, 136–137, 156 Healthcare Entitlements of Irregular Migrants in EU 28 reports (2015) 204–205 Heathrow airport 188

256

Index

Heckmann, F. 140–141 HELP (Human Rights Education for Legal Professionals) 50, 51 hidden facts 109–110 High Level Expert Groups (HLEGs) 97–98 Hofmann, R. 48–49 Holmes, O.W. 107–108 Holocaust remembrance 71–72 homophobia 51–52, 151 hotspots, refugee crisis 2015 44, 53, 61, 66, 68, 73, 95, 100, 114, 196, 246 housing 36–37, 120, 133, 137, 159–170 Human Rights Agency 1, 9, 13–18, 14–19, 21, 24, 249 Human Rights Committee 191 Human Rights Education for Legal Professionals (HELP) 50, 51 Human Rights of the Parliamentary Assembly 44–45, 50–51, 54–55 Hungary 38, 77, 200, 209, 239; interinstitutional competition 113; Jewish people 39, 150–151; right-wing politics 211–212; Roma 158, 167; Rule of Law 9, 38–41, 40–41, 113–114, 224–225, 228–229, 231–235, 235, 243 hybrid approaches 128–129 ICCPR (International Covenant on Civil and Political Rights) 148 identificational integration 140–141 ideological and cultural baggage 111–113 IEP (Institute for Economics and Peace) 210–211 immigration: added value of FRA 65–66; borders/control 8–9, 185–196; crisis 2015 136, 137; data collection and analysis 120–121; equality and inclusion 134–135; equality/inclusion 137–138; incentives for action against hate 153–154; innovative nature 60–61; polarized audiences 78; rapprochement of disciplines 110; refugee protection 19–2057; World War II 210–211 incentives for action against hate 153–155 inclusion 131–142; cultural dimension 138–141; FRA’s work on 134–136; fundamental rights 131–134; gap between ideals and policy 136–138; local engagement/Roma 168–169; quality of research 124 independent actors 87 independent expert bodies 19–20, 59–60 indirect victimization 174

infographics 204 “in-house” agency data collection 59–60 inhuman or degrading punishment 46 innovative nature of FRA 58–61 Institute for Economics and Peace (IEP) 210–211 institutional cooperation 48–49 institutional participation 140–141 Integration Methods, international processes on Roma Rights 163–164 Integration of Third-Country Nationals 201–202 interactive integration 140–141 inter-institutional competition 113–114 International Covenant on Civil and Political Rights (ICCPR) 148 international processes on Roma rights 160–165 internet 60, 75, 144, 151, 174 intersectional(ity) 152–153, 170, 182 intolerance 48, 52, 143–150, 159–160 In ’t Veld, S. 233–234 Ireland 228 irregular migration 136, 197–205; bodies of agency 34; data collection and analysis 120–121 Istanbul Convention 144, 174, 175; added value of FRA 64–65; FRA/EU policy 177–178; selected cooperation samples 49–50 ISTAT surveys 119, 126 IT databases 200 Italy 187, 200, 211, 228; asylum hotspots 114; discrimination against Jewish people 150–151; discrimination against Muslims 112–113; migration crisis 2015 136; migration hotspots 44, 61, 95, 114, 136, 196; VAW 119, 126, 175, 179 James, W. 107 Japan 181 Jewish people: added value of FRA’s work 65; awareness-raising 150–151; bodies of agency 34; Holocaust remembrance 71–72; population surveys 119–120; rapprochement of disciplines 110; Respondent Driven Sampling 121; Rule of Law 38–39; working on substance 38 JHA see Justice and Home Affairs joined-up approach to human rights 34–35 Joint Report on Social Inclusion 132–133 journalist(s) 41, 74, 76, 80, 149, 229

Index

257

judicial networks 85–86, 88–90, 177–178, 225–226 Juncker, J.-C. 24 Jurisprudence 105–109, 248 Justice and Home Affairs (JHA): agency and mandate 31–32; resources 91–92, 93; see also Committee on Civil Liberties, Justice and Home Affairs JUSTROM 160

Lithuania 209, 228 lived-experiences: added value of FRA 65; innovative nature 60–61; refugee protection 202–203; see also experiences living conditions 37, 110, 152, 166–167, 183 Local Engagement for Roma Inclusion (LERI) project 168–169 Luxembourg 24, 227, 228

Katzenbach Commission 153 Kelemen, D. 82–83 Kjærum, M. 177–178 Kosovo 181

Maastricht Treaty 211 McNamara, K. 44–45 MAFs see Multi-Annual Frameworks Majone, G. 83 Making Hate Crime Visible in the European Union: Acknowledging Victims’ Rights report 154 Malta 187, 209 Management Board (of FRA) 5, 25, 30–36, 185, 216, 233, 238, 241, 242, 246; institutional cooperation 46–58; interinstitutional competition 113; mistrust 46; political role/mandate 85, 89–90; quality of research 123 mandate 3–4, 29–32; borders and migration 185–186, 193–196; changing technology 75; definition 19–25; EUCM 15; mistrust 44–45; political role 82, 83–91; Rule of Law 221–224, 233–234 M.C. and A.L. v Romania 146 Member States 129–130; access to justice 156–157; added value of FRA 63; agency and mandate 29; awareness-raising/ crime 150–152; bodies of agency 33; borders and migration 186–190, 195; embedded institutions 73; equality/ inclusion 133–134, 135, 137–138; EUCM 14–19; joint projects 51–52; LERI 168–169; mandate definition 19–20, 23–24; mistrust 46–47; opportunities 99–100; polarized audiences 77–78; political role/mandate 88–91; population surveys 118–120; quality of research 122–123, 124, 125; rapprochement of disciplines 110, 113; right-wing politics 211–212; Roma populations 162, 164–169; Rule of Law 39–40, 219, 228–229; selected cooperation samples 50–51; VAW 175, 177–178; victims of crime 150–152, 154–155 men, equality with women 133 MENA (Middle East and North Africa) 212

lacking of statistical standards 120–121 land borders and migration 188–189 large-scale research 117–120, 153–154 Latvia 150–151, 209, 228 law: enforcement 62–63, 149–150, 153; turning outwards philosophy 106–109; see also legislation lawyers 2, 5, 31, 108–115, 131, 172, 202 leadership 100, 129, 181, 197 legal experts, FRALEX 217 legal opinions (by FRA) 70, 186, 198, 200, 242 legal professionals 50, 51 Legal Realists, school of 107–109 legislation 105–116; combating hatred 144–149; enhancing effectiveness 110–111; political role/mandate 86–87; rapprochement 108–114 LERI (EP Local Engagement for Roma Inclusion project) 168–169 LGBT 114–115; access to justice 156; added value of FRA 63–64; agency and mandate 29–30; awareness-raising 151–152; bodies of agency 34, 35; changing technology 75; data collection and analysis 120–121; innovative nature 60–61; joint projects 51–52; polarized audiences 78; population surveys 119–120; rapprochement of disciplines 110; VAW 182–183 LIBE (Committee on Civil Liberties, Justice and Home Affairs) 16–17, 19–20, 95–97, 99 Libya 212 Lila, M. 182 eu-Lisa 92–94, 93, 94 Lisbon European Council 133–134 Lisbon Treaty 138, 162, 232–233

258

Index

MEPs 35-36, 99, 233–234 methodology: quality 117, 126–127; see also surveys #MeToo movement 79–80 Middle East and North Africa (MENA) 212 Ministers’ Rapporteur Group on External Relations (GR-EXT) 48–49 minorities: agency and mandate 31–32; data collection and analysis 120–121; equality/inclusion 136–138, 139; incentives for action against hate 153–154; innovative nature 60–61; joint projects 51–52; Muslims 34, 110, 112–113; see also European Union Minorities and Discrimination Survey; LGBT; Roma populations Minow, M. 106 mistrust of the EU 28, 38, 44–47, 230 Morocco 187 Multi-annual Frameworks (MAFs): borders and migration 185, 193–194; European crisis 215–216; mandate definition 20; mistrust 46; opportunities 97–98; political role/mandate of FRA 84–85, 88–90; quality of research 124 multi-country VAW surveys 125–126 multiculturalism 138–139 Munich, Germany 36 Muslim(s) 34, 110, 112, 113, 140, 148 narrative 71–72 National Human Rights Institutions (NHRIs) 33; agency and mandate 30; mandate definition 21–22; political role 83, 85–86, 90–91 national parliaments 22, 33, 41, 79 National Roma Integration Strategies (NRIS) 164–165, 167 Netherlands 112–113, 211–212, 227–228 Netpeace 214 Network of Independent Experts on Fundamental Rights 19–20 A New World Order (Slaughter) 34 newsletters 200–201, 246 NHRIs see National Human Rights Institutions Nice Charter 2000 162 Nice Summit of 2000 16–17 Nice Treaty 15–16 non-discrimination 13, 29, 58, 63, 132, 137–138, 146–147, 161, 168–169, 181, 211, 227

non-governmental organizations (NGOs): access to justice 156; bodies of agency 35; embedded institutions 72–73; ESC rights 214; human rights communicators 80; refugee protection 202; Roma populations 159; Rule of Law 232; VAW 180; Vienna World Conference on Human Rights 1993 213; working on substance 37 non-mandates 28–42 non-refoulement: asylum research 199–200; borders and migration 188, 190–193; VAW 177–178 “Nordic paradox” of Violence Against Women 175–176 normative monitoring 21 North Macedonia 56, 158 NRIS (National Roma Integration Strategies) 164–165, 167 Occupy Wall Street Movement of 2011 214 Office of the High Commissioner on Human Rights (OHCHR) 120, 129, 167 Office of the UN High Commissioner for Human Rights 213 O’Flaherty, M. 230 OHCHR (Office of the High Commissioner on Human Rights) 120, 129, 167 open civic data 76–77 Open Method of Coordination (OMC) 133–134 Open Society Foundations 159 operational politics 84 Opinions Committee (FRACO) 32 oppression of women 139–140 Orbán, V. 77–78 Organization for Security and Co-Operation in Europe (OSCE) 30, 40, 148 outcome indicators 129 outsourced migration control measures 191 Paris Principles 21–22 parking of ideological and cultural baggage 111–113 Parliamentary Assembly of the Council of Europe (PACE) 22–24, 44–45, 50–51, 54–56, 181 Participatory Action Research methods 124, 168–169 participatory civic culture 217

Index persons with disabilities: awareness-raising 152; equality/inclusion 137–138; policy impact 65; quality of research 124; VAW 179–180 philosophy of law 106–109 “Plans to set up a Fundamental Rights Agency of the European Union” report 44 Poland 167, 200, 209; right-wing politics 211–212; Rule of Law 40, 113–114, 224–229, 228–229, 235, 239, 243; VAW 112–113, 175, 180, 183 polarized audiences 77–78 police and judicial cooperation 85–86, 88–90 policy-making 61, 73, 97, 110, 119, 132, 134, 162, 194, 198–199, 241–245, 248 political role: mandate 82, 83–91; opportunities 82, 94–100; resources 82, 91–94 polygamy 139–140 population surveys 118–120 populism/populist 9, 78, 80, 141, 210–211 Portugal 112–113, 166–167, 180 Pound, R. 107 poverty 36–37, 44, 116, 132–136, 135–136, 159, 167, 201, 214 Prague Spring 212 Prevention of Torture and Inhuman or Degrading Punishment 46 primary victimization 155 process indicators 129 Professionally Speaking: Challenge to Achieving Equality for LGBT People 156 psychiatry 107–108 psychological partner violence 174 qualitative research 117, 118, 168–169 quality: methodology 117, 126–127; research 117, 121–126; research/ methodology 117–130 quantifying arguments 60–61 quantitative research 117, 118 R2P (Responsibility to Protect) 212 Racial Equality Directive 148, 152–153, 162–163 racism 8, 15, 35, 48, 58, 134, 143–159, 166, 217, 222, 242 rape see Violence Against Women Rapporteur in the Committee of Legal Affairs 44

259

rapprochement of disciplines 108–114 RAXEN (Racism and Xenophobia Expert Network) 217 ‘real time’ asylum research 200–202 referendum 42, 211–212 reform, Rule of Law 232–235 refugees: crisis 2015 100, 136, 137; ECRE 80; ERF 201–202; protection 44, 197–205; World War II 210–211 Regional Development Fund (ERDF) 164 regionalism in human rights 5, 10, 238, 247 religious beliefs: bodies of agency 34; data collection and analysis 120–121; equality/inclusion 140–141; oppression of women 139–140 research 7, 69–81, 103–205; agenda 4–5, 246–247; borders and migration control 185–196; communicators 73–75; data analysis and collection 7, 120–121, 200; democratizing 76–77; embedded 4, 241–244; equality and inclusion 131–142; law/social sciences 105–118; methodology 117–130; promoting equality 158–171; quality 117, 121–126; refugee protection 197–205; VAW 172–184 resources, political role 82, 91–94 Respondent Driven Sampling 121 Responsibility to Protect (R2P) 212 Return Fund 201–202 revenue of JHA agencies 91–92, 93 Rights, Equality and Citizenship Programme 59 right-wing politics 211–212 Rio de Janeiro conference 1992 213 Ritberger, B. 91 RoLRC (Rule of Law Review Cycle) 226–227, 230 Roma populations 8, 52, 114–115; added value of FRA 63; data collection and analysis 121; equality/inclusion 135, 137–138; international processes 160–165; joint projects 52; Pilot survey 2011 60–61; polarized audiences 78; population surveys 119–120; promoting equality 158–171; quality of research 124; rapprochement of disciplines 110; VAW 182–183; working on substance 37, 38 Romania 37, 112–113, 146, 158, 167, 209 ROMED 160

260

Index

Russian Federation 210, 212–213 Ryukoku University, Kyoto 181 scholarships 200 school of Legal Realists 107–109 Scientific Committee (of FRA) 5, 32–33, 49, 113, 242–243, 246; quality of research 123, 124, 125; Rule of Law 40–41 scientific research 69, 71, 75, 78, 112, 185, 192, 192–193, 195 sea borders and migration 187–188, 199–200 Second World War 38–39, 210–212 secondary victimization 155 securitization 142 Security Council 212 security-oriented policies, added value of FRA 62–63 selected cooperation samples 49–51 self-identification 33, 135 Serbia 158 Severe Labour Exploitation of Workers Moving Within or Into the European Union report 136, 202 sexual assault: cyberharassment 174; see also Violence Against Women sexual orientation: agency and mandate of FRA 31–32; innovative nature 60–61; victims of crime 147–148; see also LGBT Shapiro, M. 83 The Situation of Persons Crossing the Greek Land Border in an Irregular Manner 201–202 Slaughter, A.-M. 34–35 Slovakia 150, 167, 200 Slovenia 175, 209, 228 small-scale research 117–118 social inclusion see inclusion social sciences 2, 3, 7, 13, 73–74, 105–116, 153, 172, 240, 248; rapprochement 108–114 socio-economic rights of migrants 189–190 socio-legal research 186 Sociological Jurisprudence 107–109 ‘soft’ opinions 98–99 Spain 38, 158, 166–168, 175, 187, 200, 211, 228 Special Representative on Migration and Refugees 44 staff availability 91, 92, 94 stakeholders: changing technology 75; human rights communicators 79;

inter-institutional competition 113–114; LERI 168–169; quality of research 122–123, 124; refugee protection 203–204; VAW 178 stalking 144, 174 Statistical Commission (UN) 120 Steering Committee for Human Rights (CDDH) 51–52 Strasbourg 6, 43, 51, 53 structural indicators 129 structural integration 140–141 Supreme Judicial Courts 225–226 surveys 128–129; added value of FRA 63, 64–65; awareness-raising 150–151; changing technology 75; criminal victimization/discrimination 153–154; population 118–120; quality of research 125–126; Roma exclusion 166–167; Roma Pilot 2011 60–61; telephone 126; types of FRA research 117–120; VAW 125–126, 173–177; web-based 75, 121; see also European Union Minorities and Discrimination Survey Sustainable Development Goals 130, 218 Sweden 112, 150–151, 175, 200, 228 technocratic approaches 4, 10, 73, 79, 83–84, 238–249 technology 3, 7, 71, 75–77, 81, 116 TEDx-style talks 79 Telephone Interviews (CATI) 126 terrorism 75, 94, 210, 212 TEU see Treaty of the European Union TFEU see Treaty on the Functioning of the European Union Thiel, M. 218 think tanks 13–27, 74, 78 ‘Third Pillar’ (Lisbon Treaty) 138, 162, 232–233 third state cooperation 191–192 third-country nationals 62, 96, 111, 136; borders and migration 187–190, 192–193; refugee protection 201–202 ‘thought leaders’ 79 three-C analytical reports 40–41 Together in the EU report 134 torture 46, 130, 179–180, 198 trafficking of women 173 transgovernmental systems 34 transnational corporations 213–214 transphobic crime 151–152 treaty bodies: of 2009 161–162; Amsterdam 15–16, 161; Lisbon 138,

Index 162, 232–233; Maastricht 211; Nice 15–16; Rule of Law 39, 219–220, 232–235; VAW 179–180 Treaty of the European Union (TEU) 57, 58, 89; Rule of Law 219, 224–225, 231, 234–235 Treaty on the Functioning of the European Union (TFEU) 58, 63–64, 87, 89; international processes on Roma Rights 161–162; Rule of Law 224–225; victims of crime 147 Tunisia 187, 212 Turkey 9, 158, 160, 187, 195, 212 Ukraine 212 UNICEF 128–129 United Kingdom 139, 158, 223, 224, 227–229, 239; Brexit 3, 66, 78, 90; discrimination against Jewish people 150–151; evidence-based policy 74; military intervention in Libya 212; neoliberal architecture 211; populism 211–212; victimization surveys 153 United Nations (UN): CERD 148–149; General Assembly 148; Human Rights Committee 191; Human Rights Council 180; innovative nature 59; military intervention in Libya 212; Office of the UN High Commissioner for Human Rights 213; OHCHR 120, 129, 167; Persons with Disabilities 65; quality of research 121–122; Rule of Law 230; Security Council 212; Statistical Commission 120; Universal Periodic Review 230; VAW 179–180 United States: Cold War 210, 212–213; evidence-based policy 74; hatred/ racism/xenophobia 153; ‘law turning outwards’ philosophy 106–109; neoliberal architecture 211; polarized audiences 78 Universal Declaration on Human Rights 77 Universal Periodic Review 230 universities 35, 244 us and them approaches 33

261

Van der Linden, R. 44 Venice Commission 32–33, 40–41, 50–51, 225–226, 232 vertical government networks 34 victimization 147–148; awareness-raising 149–153; hatred/racism/xenophobia 143–157; incentives for action 153; Rights Directive 147–148, 155; VAW survey 174 Vienna 1, 14, 18, 34–38, 43, 53, 82, 209, 213, 228, 248 Violence Against Women (VAW) 8, 114–115; added value of FRA 64–65; agency and mandate 31–32; awarenessraising 152; campaign against 178; challenges/future tasks 181–184; Convention on Preventing and Combating 144; EU-wide surveys 173–177; FRA/EU policy 177–178; #MeToo movement 79–80; multicountry surveys 125–126; OSCE 180–181; population surveys 118–119; rapprochement of disciplines 112–113; research applicability 179–181; Respondent Driven Sampling 121; safest places 175 ‘visibility factors’ 110 visualization 78 vlogs 79 Warsaw Declaration and Action Plan 44–45 Warsaw Summit 24–25 Washington Consensus 211 web surveys 75, 121 welfare state 109, 139, 211 women: equality with men 133; oppression of 139–140; working conditions in factories 107–108; see also Violence Against Women Wonka, A. 91 worker exploitation 136, 202 working conditions in factories 107–108 Working Party on Fundamental Rights, Citizens and Free Movement of Persons (FREMP) 98–99, 154–155, 228 World Bank 159 xenophobia 8, 35, 48, 58, 96, 134, 143–157, 217, 222, 242