Confusion persists over Charter of Fundamental Rights
By Nathalie Vandystadt | Monday 16 April 2012
In two recent cases of calls to denounce foreigners – through websites, for the Dutch extreme right and the Flemish extremists – the European Commission repeated that there was nothing it could do. This is merely a glimpse of the problem of citizens’ “incomprehension” or “confusion,” which the Commission mentions in a report, published on 16 April, on the application of the EU Charter of Fundamental Rights.
One thing is certain: the EU executive is struggling to make it understood that the charter – which has become binding since the Lisbon Treaty – only applies in cases where EU law exists. Titles such as ‘European Commission makes fundamental rights a reality for citizens’ – the title of its press release – only add to the confusion. As a result, 55% of the letters sent by citizens in 2011 to complain about discrimination “concerned themes that did not pertain to Union competence”. According to the report, most complaints concern legal problems (access to justice, victims’ rights), citizens’ rights (freedom of movement and residence, right to vote, etc), equality (integration of disabled persons, Roma situation, anti-racism fight), freedoms (right of asylum, right of expression, right of information), etc. Of 45% of letters that were considered for the report, only 13% received specific follow-up. “The public is generally under the impression that the charter gives the Commission the right to intervene when it suspects that there has been an infringement of fundamental rights in the EU. This is not the case,” says the Commission. It refers citizens to national courts when it cannot act.
However, it is tricky for citizens to distinguish between what exists in EU legislation and what pertains to national law. Thus, while there is a Council Framework Decision 2008/913/JHA on combating certain forms and expressions of racism and xenophobia, the Commission has no power to control its implementation. The text – adopted in 2008 – makes racist and xenophobic crimes punishable by means of criminal law. But, when it comes to concrete application, it depends on the good will of the individual countries. Out of the 27 member states, five have not yet released their legislative drafts (Belgium, Estonia, Greece, Spain and Poland). Similarly, the EU bans discrimination based on ethnic origins and racist discrimination (2000/43/EC), as well as discrimination in employment based on religion, disability, age or sexual orientation. However, “on the field, it is always difficult to prove discrimination and to launch into heavy and costly legal proceedings,” says Georgina Siklossy, the spokesperson of the European Network Against Racism (ENAR), an NGO. “It is true that human rights are mainly of member state competence, but it should not prevent the Commission from being more proactive and exploring new legal paths,” says Elena Crespi from Amnesty International. Crespi finds the Commission’s attitude “restrictive and anxious,” leaving many human rights issues in limbo. Crespi regrets the fact that the Commission tackles technical subjects, as in the case of the Hungarian laws found to be discriminatory – the independence of the Hungarian data protection authority, judges, prosecutors and notaries’ retirement age, the independence of the Central Bank – when it can propose a “nuclear weapon,” ie the use of Article 7 of the Lisbon Treaty (never used), which can suspend a member state’s right to vote in the Council if it is likely to seriously violate the EU’s values.
In its defence, the Commission cites the member states’ strong reluctance. Thus Germany has been blocking, since 2008, a draft legislation banning discrimination in social protection, education and access to accommodation.
Commissioner Viviane Reding, who is responsible for this dossier, prefers, for example, to focus on gender equality – not ruling out the option of proposing mandatory quotas of women on the board of big companies. n
The reports are available at
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