Agency For Fundamental Rights Research Articles

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?

This paper looks at the mandate of the European Union Agency for Fundamental Rights (FRA), established in 2007, from the perspective of the Charter of Fundamental Rights of the European Union, which entered into force in 2009. It explores the relationship between FRA and the Charter by looking at the agency’s institutional practice, its founding regulation and its Multiannual Framework, on which the Council of the European Union agrees every five years. The Florence-based European University Institute (EUI) proposed some 15 years ago an European Union (EU) human rights agenda for the new millennium. Many of the agenda’s policy proposals have materialised ever since, including the establishment of a ‘European Human Rights Monitoring Agency’. The Charter was not part of this set of proposals. However, this prominent bill of rights and the new Agency in Vienna are obviously closely related to each other. The author concludes that the agency, despite certain limitations in its mandate, is a ‘full-Charter-body’ which could unfold its potential better following a revision of its founding regulation. Such a revision should reflect that the EU Charter for Fundamental Rights has entered into force in the meantime. The author identifies two additional key elements for the need of revision: FRA’s mandate should include the possibility for the agency to deliver opinions on proposed EU legislation on its own motion, and the agency should autonomously adopt its multiannual priorities.

Tunisian Migrant Journeys: Human Rights Concerns for Tunisians Arriving by Sea

In part due to its location on the North African coast, in conjunction with its history of being a former French protectorate, Tunisia has become an important country of emigration to the European Union. In particular, maritime arrivals have become a concern for European states, for both humanitarian and security reasons. The experiences of Tunisian irregular migrants arriving to the EU by sea, who are then detained and returned, highlights the multitude of human rights issues that arise across their journey as they interact with the various stakeholders involved—Tunisian and Libyan smugglers, EU and Tunisian authorities and NGOs, amongst others. The situation for these migrants at sea and during rescue and interception operations can most directly involve such issues as the right to life, access to food and water, access to emergency healthcare and access to information. The next stages of detention and return (either immediately or when later identified on EU territory) can most directly involve human rights issues related to the identification and referral mechanisms for groups at risk, access to information and legal remedy, the right of “non-refoulement” and prohibition of torture, inhuman and degrading treatment and punishment. By examining Tunisian migrant experiences along the entirety of their trajectory, one can see the specific human rights issues that arise at each stage for maritime arrivals—from departure to return. The article will examine these human rights concerns in the context of the Tunisian migrant journey, focusing on the four identified stages of the situation at sea, rescue or interception, detention and return. The article will present results from qualitative in-depth interviews conducted for the EU Fundamental Rights Agency in 2011 with 15 Tunisian migrants who had arrived by sea to Italy between 2005 and 2011 and were returned to Tunisia between 2008 and 2011, complemented by interviews with two Tunisian fishermen and an anonymous Tunisian non-governmental stakeholder.

Roma and Irish Traveller housing and health – a public health concern

Roma and Irish Traveller communities have endured centuries of persecution and enforced assimilation, whilst remaining under-represented within dominant sedentarist discourses. This has contributed to their suspicion and mistrust of mainstream societies. They have maintained a distinct identity characterised by their Romani or Celtic languages, communal solidarity, close extended family bonds, and cultural traditions surrounding health, morality and social codes. The lives of such groups are grounded in multifaceted poverty stemming from health disparity, inadequate housing provision, and low educational attainment within an inter-generational cycle of social exclusion. This paper discusses health disparities as interlinked with housing situations. It is grounded in the authors’ respective Irish and UK contributions to an EU-wide comparative housing report, ‘Housing Conditions of Roma and Travellers in the European Union’, and associated research materials (commissioned by the European Union Agency for Fundamental Rights (FRA) in 2009). An inclusive and consultative approach is of paramount importance for these groups to address housing and health care provision, grounded within a culturally sensitive assessment of ethnic, individual, and familial needs.

The Fundamental Rights Agency of the European Union: A New Panopticism

The Fundamental Rights Agency of the European Union (FRA) is the European Union's newest, and only, human rights institution. The FRA represents a new way of speaking about rights in the European Union, using ‘governance’ language. It was not conceived as a traditional human rights monitoring body and the monitoring mission was actively abandoned in favour of an advisory one. This article examines how the FRA's governance-related role actually reveals a type of monitoring best understood as ‘surveillance’ in a critical, Foucauldian sense. In exercising surveillance tactics, the FRA represents a model of panopticism which allows it to carry out a new form of government. This is an interesting observation not only because of the implications it has for a European Union that is striving to move away from government towards governance, but also because it challenges the assumption of the FRA as a ‘beacon on fundamental rights’ and a model of apolitical progress.

The intricacies of independence

In the European Union, compliance with data protection requirements is overseen by public authorities (ie data protection authorities or DPAs), who ‘shall act with complete independence in exercising the functions entrusted to them’. Given the growing number of countries around the world that have adopted data protection legislation based on the EU model, the requirement of having an independent data protection authority has spread to other regions as well. This requirement has recently been reinforced by the judgment of the European Court of Justice (ECJ) in the case Commission v Germany, where the Court found that the DPAs of the German federal states (Lander) were structured so as to be subject to governmental oversight, and that Germany had thus failed to properly implement Article 28(1) of the EU Data Protection Directive. These developments lead to reflection on the concept of ‘independence’. As the ECJ found, the basis for requiring independence is that it helps ensure the effectiveness and reliability of supervision by allowing the authorities to carry out their tasks free from external influence. The experience in Europe shows the need for such regulatory independence, given that governments sometimes have sought to influence the work of the data protection authorities (one such example is the resignation en masse of the entire Greek Data Protection Commission in 2007 for alleged political interference). However, the issue of independence is more complex than it may seem at first glance. While independence is indeed an indispensable requirement for the work of DPAs, complete and total independence is never possible, or even desirable, on the part of any public authority. Principles of accountability and transparency require that a supervisory authority be answerable for its actions (eg through the possibility of judicial review), and that it be subject to controls in order to ensure its integrity. There are also different types of independence. The ECJ decision concentrates on legal independence, that is how the DPAs are set up and structured so as to be free of undue governmental influence. However, just as important is independence in terms of financial and personnel resources. Indeed, many European data protection commissioners complain that they have insufficient resources to do their jobs properly (a view supported by a recent study of the European Agency for Fundamental Rights). Indeed, one European DPA even had to shut down its operations for several months toward the end of 2010 because it had completely run out of funds. Some European governments have used structural independence as a ‘poisoned chalice’, freeing their DPAs from being part of government ministries but also making it clear that from that point the DPA is required to provide for its own budget. It is therefore welcome that the European Commission has taken a broad view of the concept of independence of the DPAs in its current review of the EU data protection framework. Independence may also be viewed differently in different legal cultures. For instance, one non-EU DPA has stated privately that in its country, being part of a government ministry gives it more ‘clout’ and results in it being taken more seriously than if it were set up as a free-standing, independent regulatory authority. It may therefore be necessary to consider the complete legal and political structure of a country before determining whether its data protection regulator is independent.

Data on discrimination in EU countries: statistics, research and the drive for comparability

This paper focuses on data collection and research methods on ethnic/racial discrimination, and more particularly on the question of ‘ethnic statistics’. Taking the case of the European Union's Agency for Fundamental Rights (FRA), an international body whose tasks include providing European overviews of data on discrimination, the paper addresses the problem of the comparability of discrimination data. Drawing upon the experience of the FRA, the paper describes how the problem of comparability is addressed by working at three levels: the first is to produce reports mapping available data, highlighting gaps, and explaining when and why data are not comparable. The second is to initiate primary research – such as the EU-MIDIS survey of migrants and minorities – specifically designed to produce comparable data. The third level is to contribute to political and policy discussion to help raise awareness of the need for convergence in data collection practices between EU member states.

Government(ality) by Experts: Human Rights as Governance

The suggestion that the general economy of power in our societies is becoming a domain of security was made by Michel Foucault in the late 1970s. This paper takes inspiration from Foucault’s work to interpret human rights as technologies of governmentality, which make possible the safe and secure society. I examine, by way of illustration, the site of the European Union and its use of new modes of governance to regulate rights discourse—in particular via the emergence of a new Fundamental Rights Agency. ‘Governance’ in the EU is constructed in an apolitical way, as a departure from traditional legal and juridical methods of governing. I argue, however, that the features of governance represent technologies of government(ality), a new form of both being governed through rights and of governing rights. The governance feature that this article is most interested in is experts. The article aims to show, first and foremost, how rights operate as technologies of governmentality via a new relation to expertise. Second, it considers the significant implications that this reading of rights has for rights as a regulatory and normalising discourse. Finally, it highlights how the overlap between rights and governance discourses can be problematic because (as the EU model illustrates) governance conceals the power relations of governmentality, allowing, for instance, the unproblematic representation of the EU as an international human rights actor.

Governing (Through) Rights: Statistics as Technologies of Governmentality

An increasing amount of attention is being given to the use of human rights measurement indicators in monitoring ‘progress’ in rights and there is consequently a growing focus on statistics and information. This article concentrates on the use of statistics in rights discourse, with reference to the new human rights institution for the European Union: the Fundamental Rights Agency. The article has two main objectives: first, to show that statistics operate as technologies of governmentality — by explaining that statistics both govern rights and govern through rights. Second, the article discusses the implications that this has for rights discourse — rights become a discourse of governmentality, that is a normalizing and regulating discourse. In doing so, the article stresses the importance of critique and questioning new socio-legal methodologies, which involve the collection and dissemination of information and data (statistics), in rights discourse.

Reflections on the Establishment of a Framework to Promote, Protect and Monitor Implementation of the UN Convention on the Rights of Persons with Disabilities (Article 33(2) CRPD) by the European Union

Article 33(2) CRPD requires States Parties to establish a “framework” which will “promote, protect and monitor implementation” of the Convention. States Parties may designate one or more existing institutions, or establish a new mechanism to carry out these tasks. Whatever approach is adopted, the “framework” must include one or more independent mechanisms which comply with the Paris Principles (Principles relating to the status and functioning of national institutions for protection and promotion of human rights). This obligation also binds the European Union (EU), which has now concluded the Convention. At present there does not exist one EU body or institution which has a mandate that would allow it to carry out the full range of tasks associated with “promoting, protecting and monitoring” implementation of the Convention. However, there exist a number of bodies which may be capable of carrying out elements of these tasks. The purpose of this paper is to reflect on the role which specific EU institutions could play in the implementation and monitoring framework. The following key institutions are examined: the European Union Agency for Fundamental Rights; the European Ombudsman; and the Court of Justice of the European Union. For each institution, it is reflected on what role, if any, they could play in each of the three core tasks of promoting, protecting and monitoring implementation, and the extent to which the institution in question complies with the Paris Principles. In addition, the potential role of a number of other EU institutions, including the European Parliament, is also considered.

Assessing EU Policy on Irregular Immigration Under the Stockholm Programme

The relationship between EU policy and the rights of undocumented migrants remains in tension. The status and treatment granted to undocumented migrants continues to be ‘invisible’ in EU policy strategies and responses. This is so despite the wide recognition and evidence of the vulnerability and insecurities these persons face in their access to fundamental rights. The ‘policy gap’ between current European policy-making under the third multiannual programme on the Union’s Area of Freedom, Security and Justice – the Stockholm Programme – and the results emerging from social science research funded by EU institutions has been assessed and evidenced elsewhere. This collection of papers aims at moving the debate forward by substantiating these findings with the experiences and knowledge of a selected group of EU umbrella (civil society) organisations and practitioners representing key institutions in Europe on fundamental human rights. The papers include three contributions arising from the conference “Undocumented Migrants and the Stockholm Programme: Assuring Access to Rights?” held in Brussels on 9 March 2010. The conference was organised by CEPS, the European Trade Union Confederation, the Platform for International Cooperation on Undocumented Migrants and EUROCITIES. The discussion is expanded by two further contributions, by representatives of the European Union Agency for Fundamental Rights and Council of Europe’s Department of the European Social Charter. This collection concludes with a concrete set of policy recommendations and a four-point plan to reduce ‘irregularity’ in Europe.

EU Fundamental Rights Agency: 'Thematic Study on Assessment of Data Protection Measures and Relevant Institutions' - Country Report on the United Kingdom

This is a Country Report (one of 27, on each of the EU Member States), prepared as the basis for a comparative analysis of the crucial role [of the EU data protection authorities] with respect to the fundamental right of data protection, and encompasses a critical assessment of the effectiveness, functioning and independence of the UK data protection authority, the Information Commissioner's Office (ICO).NB: The overall comparative report is available from the EU Fundamental Rights Agency (FRA), which commissioned the study. The present country report was originally released on the website of the Human Rights Law Centre of the University of Nottingham, which was asked to carry out the UK study and which in turn asked the author to do so,

Portraying Normative Legitimacy: The EU in Need of Institutional Safeguards for Human Rights

This article explores the politics of European security policies from a human rights perspective. It argues that internal and external security policies are chiefly related through their joint and intertwined impact on the perceived legitimacy of the EU's normative demands on third countries. Building on a theoretical exploration of the normative power Europe concept, its applicability in practice is analysed by looking at three key developments: the EU's response to the allegation of some of its member states supporting extraordinary renditions by the USA; the recent establishment of the EU's Fundamental Rights Agency; and the partial suspension of a Partnership and Cooperation Agreement in response to the excessive and indiscriminate use of force by Uzbek security forces in Andijan in 2005. In all three cases the EU's actions lack consistency and are guided chiefly by political considerations of its member states rather than by a principled approach. It is concluded that the EU's objective to export human rights and democratic values through the Common Foreign and Security Policy and the external dimension of the Area of Freedom, Security and Justice – that is to exercise normative power on justice and home security affairs – is hampered by a failure to develop institutional structures that ensure consistent and transparent monitoring and promotion of human rights.

Institutionalizing Intersectionality in the European Union?

European Union (EU) policies are a good case to explore with regard to the extent to which intersectionality has been institutionalized, given that the EU has broadened its equality agenda from the 1997 Amsterdam Treaty onwards and can be expected to impact on the trajectories of institutionalization in member states. Situated in an analysis of the EU legal framework and machinery on gender and anti-discrimination, this article explores the interface between European institutions and civil society in relation to the treatment of intersectionality by analysing alliances and competition between groups representing different inequalities and the positioning of institutions in the debate. It also investigates whether the EU's current institutionalization may encompass positive developments in the treatment of previously neglected inequalities and thus promote more inclusive equality policies, or may create barriers between and exclude different inequalities. The article concludes that the EU legal framework is merely juxtaposing inequalities rather than intersecting them, and is not giving equal importance to the different inequalities. Debates on the creation of recent institutions, such as the European Institute for Gender Equality and the Fundamental Rights Agency, show that tensions exist between different positions and groups. Dynamics of interaction within European civil society reveal evidence of both contestations and alliances.

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

With the establishment of the Fundamental Rights Agency, an important development might come full circle. The European administration by the Commission and the Council in the 1970s and 1980s entailed a process of constitutionalization of the European Communities, in particular through fundamental rights protection. Now the developed constitutional law of the Union might usher a new field of administrative law if the potential of the Fundamental Rights Agency is realized. The increasing influence of specific human or fundamental rights institutions in numerous States is calling into question an understanding of fundamental rights protection that is mainly focused on judicial review. Under the approach taken here, administrative rights promotion is conceived of as a significant instrument supplementing legal protection by the courts and therefore an important field of administrative activity: European administrative law scholarship should move accordingly into this field. To contribute to this end, the relevant developments in the Union are recapitulated in order then to present the Agency’s activities and tasks as a specialized agency for the promotion of fundamental rights where numerous unsettled issues lurk, in particular in light of the UN model of specialized independent institutions promoting human rights. Thereafter, the Agency’s possible impact on the constitution of Europe is analysed, while the last part of the article recalls the main findings and discuss the prospect of human and fundamental rights promotion as a new area of administrative law.

Networks of European National Human Rights Institutions

AbstractThis article concerns the networks of European national human rights institutions (NHRIs). It examines how the sharing of best practices takes place through networks and how NHRIs achieve cooperation at both the international and regional levels. The article also analyses NHRI cooperation within three organisations: the United Nations, the Council of Europe and the EU. While cooperation at the international level facilitates their accreditation according to their compliance with the Paris Principles and enables them to participate in the sessions of the Human Rights Council, cooperation at the European level allows them to exchange information on issues of common concern and strengthens their relationship with regional bodies. In Europe, NHRIs cooperate with the Commissioner for Human Rights of the Council of Europe and might also do so with the recently established Fundamental Rights Agency of the EU.

Discrimination and good practice activities in education: trends and developments in the 27 EU Member States

The European Union Agency for Fundamental Rights collects, through its network of observation points, information on discrimination and good practice in the areas of legislation, employment, housing, racist violence, and education. Data on education includes information on: access to education for vulnerable groups, discriminatory practices, racist incidents, educational attainment, preventive initiatives and good practice against discrimination and exclusion. In this paper, I will provide an overview of major trends and developments in the past six years as regards discrimination and good practice in education in the 27 EU Member States. I will refer to the influence that data availability has on policies and debates on discrimination in education. In addition, I will address the impact the EU enlargement process and the debates on diversity and multiculturalism have had on education policies in the European Union. Finally, my paper will point to good practice initiatives in the Member States aimed at countering discrimination and improving the situation of migrants and minorities.

The fundamental rights agency: Towards an active Fundamental Rights policy of the Union

Discussing the relationship between the EU Network of Independent Expertson Fundamental Rights and the forthcoming Fundamental Rights Agency, the Working Document of 25 March 2004 on the proposal for a Council Regulation on the European Monitoring Centre on Racism and Xenophobia (Recast version) prepared with the European Parliament’s Committee on Citizens’ Freedomsand Rights, Justice and Home Affairs (rapp. J. Swiebel) concluded: “Itisimpor tanttostr esstha t theanal ytical, evaluative and advisory functions of the Experts’ Network continue to befulfilled in an independent way. This should not prevent close links between the Human Rights Agency and the Experts’ Network being established.” This paper is an up dated version of the presentations given by the authors at the ERA conference “European Fundamental Rights Agency”, 12–13 June in Trier. The paper was finalised just before consensus was reached by the JHA Council at its Brussels meeting of 4 and 5 December 2006 that not with standing the “pending… examination of the Eur opean Parliament’sopinion” the Agency should beest a blished and functioning as from early 2007 on (Council press release 15801/06, 2768th Council meeting, p. 10).