The first essential element in building a new EU human rights policy is to establish that such a policy lies within the constitutional competence of the Community and that it would not violate important principles such as that of subsidiarity.
The need for a comprehensive human rights policy seems so compelling that it will be very difficult for an outside observer to understand why such a policy has not already been adopted. There are many reasons. Principal among them is the issue of competences. Yet the proposal for a significantly expanded human rights policy would be either naive or fraudulent if the Community and Union lacked the legal competences to enact it.
The Treaty did not, and still does not, even after the measures introduced in Amsterdam, list human rights among its objectives. Opposition to a human rights policy, to accession to the European Convention on Human Rights, to the drafting of a Community `Bill of Rights', and to a range of other policy proposals which have failed to gain acceptance over the years can all be explained in large measure by a concern that the Community lacks any significant constitutional competence to deal with all but a very circumscribed range of human rights matters. Underlying this concern is a fear that allowing the Community to move beyond a policy of not violating human rights would lead it to encroach on areas which are outside its jurisdiction and should be reserved to the Member States. Those who hold this view would argue that the potential reach of human rights policies is almost unlimited. And it is true that human rights do directly affect all activities of public authorities and, depending on their definition, also touch upon many areas of social activities of individuals. The fear is that empowering the Community in the field of human rights would be an invitation to a wholesale destruction of the jurisdictional boundaries between the Community and its Member States. It would be ironic if a proposed new policy, whilst motivated by the desire to vindicate fully the values represented by human rights, trampled over the equally important democratic and constitutional principles of limited governance and attributed powers.
The issue of competences is of particular importance in this context, not only because of the extent to which it has underpinned the resistance to an EU human rights policy on the part of some states but perhaps more importantly because it has been the preferred excuse invoked by those who do not want such a policy for very different reasons. Those reasons range from a simplistic belief that the Union can and should confine itself to a narrow range of economic aspects of integration to a more general sense that human rights just get in the road of efforts to build a strong and wealthy new Europe. Whatever the motivation, it is essential to put the issue of competences into perspective so that the debate over the real issues can move ahead.
Earlier debates about a human rights policy for the Community seemed to oscillate between two, equally untenable, poles. There were those, including in some contexts the Commission, who seemed to believe that the commitment to ensure respect for human rights gave the Community a plenary jurisdiction in this area. Certainly, many suggestions by non-governmental groups have tended to reflect such an assumption and to dismiss arguments to the contrary as being driven by anachronistic concerns to protect state sovereignty. The opposite extreme would suggest that human rights are matters which are almost by definition reserved exclusively for action by the Member States. In this vein, the Council, whilst acknowledging a certain competence in the field of international cooperation and development, has consistently held that a general Community human rights policy, especially one impinging on action by and in the Member States, was outside the legislative jurisdiction of the Community.
In fact, both of these extreme positions are wrong. Neither the Community nor the Union have a plenary human rights jurisdiction in the way that Member States have. However, it is clear that, within carefully delineated boundaries, the Community and the Union do enjoy the necessary jurisdiction to enact a comprehensive and meaningful policy.
It is instructive, by way of analogy, to consider some of the areas in which the Community has assumed exclusive competences, such as major aspects of the Common Commercial Policy, of the Common Agricultural Policy (which often implicate rights to property) or of the Single Market concerning the free movement of labour. It seems self-evident that in those areas it is only the Community which could reasonably be considered to be the custodian of human rights - in the same way that the Member States are custodians of human rights in the vast areas of state jurisdiction, like criminal law, which are largely outside Community jurisdiction.
It is true that Europe has evolved what is probably the most sophisticated system of judicial protection of human rights, involving both the domestic constitutional orders of the Member States and the European Convention system. Each of these has its unique characteristics that must be preserved and allowed to play its rightful role. But there are also aspects of European Community activity which are not subject to effective human rights control at these levels. Given the consistent expansion of Community responsibilities, it becomes all the more imperative that they be accompanied by necessary measures, at the Community level, to ensure the protection of human rights.
But human rights principles, which impinge upon such a wide and vitally important array of policies at all levels, cannot simplistically and definitively be slotted into a single pigeon hole. Instead, they must be considered to cut across all levels of national and transnational governance and regulation and each level must be enabled to play its appropriate part. This includes, on the one hand, the United Nations and the Council of Europe with their array of human rights treaties and other instruments and, on the other hand, NGOs, other groups and individuals, and of course everything that comes in between.
A useful analogy in the context of Community law is the issue of privacy and data protection. This is a classic cross-cutting issue with multiple dimensions which do not fall easily within either the exclusive competence of the Community or that of the Member States. That ambiguity, however, did not prevent the Amsterdam Treaty from providing that all Community institutions would be bound by the relevant privacy principles; nor did it stop it from setting up `an independent supervisory body' to monitor compliance.41
The Community should aim to create what might be termed a `Common Human Rights Area', in which interlocking and overlapping levels of protection interact synergistically with each other.
It sometimes seems to be thought that the reasoning used by the European Court of Justice in its Opinion 2/94 on Community accession to the European Convention on Human Rights42 not only prevents such accession in the absence of a specific Treaty amendment, but also makes it virtually impossible to develop a general human rights policy unless it too were specifically authorized by a Treaty amendment. In our view, however, a Treaty amendment is not required in order to provide a legal basis, or legal bases, for the human rights policy we envisage. Such a policy would be perfectly consistent with the jurisprudence of the Court, including its Opinion 2/94. At no point in that Opinion did the Court suggest that the protection of human rights was not an objective of the Community, nor did it say that the Community lacked competence to legislate in the field of human rights. Because of the centrality of this issue, it seems necessary to devote particular and detailed attention to it.43
In its jurisprudence, the Court has articulated three critical constitutional principles which inform this field. The first affirms that `... respect for human rights is a condition of the lawfulness of Community acts'. The second affirms that it is the positive duty of the institutions `... to ensure the observance of fundamental rights'. In other words, they are obligated not simply to refrain from violating them, but to ensure that they are observed within the respective constitutional roles played by each institution. Finally, the human rights jurisdiction of the Community extends only `...in the field of Community law'.44
A Community Human Rights Policy must, therefore, not extend beyond the field of Community law. That boundary, like many other legal boundaries, is not always razor sharp. There are likely to be some hard cases. But that does mean that the vast areas of Member State action which fall outside the reach of Community law will be beyond the writ of a Community human rights policy. By contrast, all those areas which are regulated by the Community or come within the reach of Community law can and should also be subject to its human rights policy.
Especially since the entry into force of the Single European Act, the question of the legal basis for Community legislation has become critical, given the different political consequences of varying legal bases in terms of voting procedures and the role accorded to the European Parliament. What legal basis, then, could and should be used by the political institutions when exercising their duty to ensure the observance of fundamental rights in the field of Community law?
There are several potential legal bases, although attention is given below to only the most salient.
The first is that governing action in a specific field. For example, the Community `legislative branch' (the Commission, the Council and the Parliament) could, and in our view should, attach to any legislation it passes a `human rights clause' dealing with matters such as transparency, the availability of information to interested parties, the possibilities open to those affected to launch an appeal, the availability of legal aid and the like. This would be consistent with the commitment in Article 1 of the EU Treaty to take decisions `as openly as possible' and of new Article 255 of the EC Treaty providing for enhanced public access to Community documents. There are few areas of Community activity which cannot, negatively and positively, affect the fundamental rights of individuals and groups. In this way, the Community would consistently and routinely be affirming that it considers its legislative action to conform with its human rights undertakings and would make it possible for those who believe otherwise to take appropriate action.
In some fields, unchallenged Community competences which underpin legislation also coincide with a classic fundamental right - such as the right to freedom of movement, access to employment and Article 141 TEC establishing the principle that men and women have the right to receive equal pay for equal work and for work of equal value. In other fields, the importance of fundamental rights is specifically mentioned - such as in relation to the provisions dealing with Cooperation and Development.45 Similarly, under Article 13 TEC as introduced by the Amsterdam Treaty, `the Council, acting unanimously on a proposal from the Commission and after consulting the European Parliament, may take appropriate action to combat discrimination based on sex, racial or ethnic origin, religion or belief, disability, age or sexual orientation'. Indeed, such measures were taken even prior to the enactment of that Article, on the basis of existing non-discrimination provisions, such as in the case of the Broadcasting Directive. Article 13 is especially significant since the right to non-discrimination and the duties that flow from that right are at the core of a great number of other human rights and thus provide a broad foundation upon which to build a human rights policy.
An appropriately broad human rights policy cannot, however, be constructed entirely on the basis of individual provisions of this type. As is the case in a great many areas of Community activity, certain measures would have to cut across several fields, in the sense that they have implications for a broad range of horizontal and institutional matters. In relation to these, a prudent usage of Article 308 would be permissible.
Because this provision was a central focus of Opinion 2/94 of the European Court of Justice it is necessary in this context to explore whether our conclusion is compatible with the view expressed by the Court. In its Opinion the Court noted that:
No Treaty provision confers on the Community institutions any general power to enact rules on human rights ....46
This then led the Court to ask whether, in the absence of such express or implied powers, Article 308 could provide the necessary legal basis. It defined the function of the Article thus:
Article 235 [new Article 308] is designed to fill the gap where no specific provisions of the Treaty confer on the Community institutions express or implied powers to act, if such powers appear none the less to be necessary to enable the Community to carry out its functions with a view to attaining one of the objectives laid down by the Treaty.47
In considering whether that Article could then be used as a basis upon which to proceed with Community accession to the European Convention on Human Rights, the Court concluded in the following terms:
That provision, being an integral part of an institutional system based on the principle of conferred powers, cannot serve as a basis for widening the scope of Community powers beyond the general framework created by the provisions of the Treaty as a whole and, in particular, by those that define the tasks and the activities of the Community. On any view, Article 235 [new Article 308] cannot be used as a basis for the adoption of provisions whose effect would, in substance, be to amend the Treaty without following the procedure which it provides for that purpose.48
What then are the implications of this reasoning for the proposal that the Community should adopt a human rights policy which relies, by no means exclusively but at least in part, on Article 308? In our view it is clear that such a policy would be in conformity with the Court's reasoning provided that it:
In other words, a Community human rights policy which respects the current institutional balance and which scrupulously remains within the field of Community law could be based, in part, on Article 308 TEC. The approach suggested in this article meets these criteria.
Finally, a word about the important principle of subsidiarity, which requires that decisions should always be taken at the level closest to the citizen at which they can be taken effectively, thus creating a presumption in favour of action at the level of the Member States except where exclusive Community competence has already been granted.49
It seems sometimes to be assumed that the application of this principle requires that responsibility for matters dealing with human rights should remain at the national level. But this is a false assumption which actually undermines the objectives of the principle. Subsidiarity is not a one-way street.50 Consistent with the principle, Community-level action is warranted if the objective in question cannot be adequately achieved by Member State action alone and if the scale or effects of the proposed measures favour Community action. Clearly where the measures in question are taken by the Community within the field of Community law it makes no sense to argue that individual Member States are best placed to ensure not only that those measures do not violate human rights but that they do whatever they can to promote respect for them. Moreover, the guidelines contained in the Protocol on subsidiarity attached to the Amsterdam Treaty correctly emphasize that Community action might be necessitated by various factors, including the transnational dimensions of an issue and the existence of treaty obligations.
Thus a Community human rights policy is not only consistent with the principle of subsidiarity, but is in some measure a necessity required by that principle.
40 See generally Weiler and Fries, `The Competences of the EU in Human Rights', in Alston, supra note 10.
41 Article 286 TEC.
42  ECR I-1759.
43 For an excellent analysis of the Opinion see Gaja, `Opinion 2/94', 33 Common Market Law Review (1996) 973.
44 For an analysis of this jurisprudence see Weiler, `Fundamental Rights and Fundamental Boundaries: On Standards and Values in the Protection of Human Rights', in Neuwahl and Rosas, supra note 8, at 51.
45 Article 177 TEC.
46  ECR I;1759, recital 27.
47 Ibid, recital 29.
48 Ibid, recital 30.
49 De Búrca, `The Principle of Subsidiarity and the Court of Justice as an Institutional Actor', 36 Journal of Common Market Studies (1998) 1; and van Kersbergen and Verbeek, `The Politics of Subsidiarity in the European Union', 32 Journal of Common Market Studies (1994) 215.
50 See Strozzi, `Le Principe de subsidiarité dans la perspective de l'intégration européenne: une énigme et beaucoup d'attentes', 30 Revue trimestrielle de droit européen (1994) 373.
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