Legal analysis of the existing EU and other international frameworks on children's rights
| Author | Guio, A-C.; Marlier, E.; Frazer, H. |
| Pages | 87-116 |
Feasibility Study for a Child Guarantee (FSCG) Final Report
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6. Legal analysis of the existing EU and other international
frameworks on children’s rights128
6.1 Introduction
This chapter sets out t he children’s rights principles and provisions that can and should
inform an EU CG. Its focus is on EU and related international hu man rights law
(including primary treaty provisi ons, EU-level legislation, and case law), which are more
or less universally applicable across the Member States that would benefit from the CG.
The analysis does not cover the extensive, variable, and distinctive provisions available for
the protection of children’s rights at national or sub-national level.
Section 6.2 begins with an analysis of relevant children’s rights instruments upon which an
EU CG could rest. The analysis in Section 6.3 is directed towards the five key social rights
considered in the FSCG: access to free healthcare, access to free education, access to free
childcare, access to decent housing, and access to adequate nu trition. The European and
international law relevant to these specifi ed rights is discussed and, where applicable,
reference is made to instruments that relate specifically to the four target groups (TGs)
under scrutiny in the FSCG.
6.2 International and European children’s rights law
There exists a broad landscape of children’s rights upon which an EU CG coul d rest, and it
is therefore important here to illustrate the relationship(s) between the bodies and
organisations relevant to advancing children’s rights across the EU. The EU’s regulating
treaty, the Treaty on European Union (TEU),129 draws on both the European Convention on
social exclusion and discrimination, and shall promote social justice and protection, equality
between women and men, solidarity between generations and protection of the rights
of the child’ (emphasis added). Arti cle 6(1) of the TEU further states t hat: ‘The Union
recognises the rights, freedoms and principles set out in the Charter of Fundamental Rights
of the European Union’, and the charter itself contains specific reference to the rights of
the child.130 Such provisions reinforce the fact that EU action in relation to children –
including the proposed CG – should be entirely consistent with international human rights
and children’s rights guidance. The analysis in this section, therefore, sets out the legal
provisions underpinning children’s rights t hrough key pieces of EU and other international
legal frameworks promoting and protecting children’s rights. Reference is made to relevant
provisions of the UNCRC and its associated general comments, EU treaties, legislation, and
‘soft law’ (quasi-legal instruments without legally binding force), together with the Council
of Europe (CoE) conventions.
Moreover, in analysing the law relating to the five key social righ ts considered here, there
is an abundance of guidance found within the treaties of the EU, the CoE, and the UN that
sets minimum standards concerning children’s social and economic rights. The treaties
128 We would like to warmly thank Grigorios Tsioukas (EU Agency for Fundamental Rights [FRA]) for very useful
comments and suggestions on a previous draft; Aoife Nolan for invaluable clarification of the international
framework on economic, social and cultural rights; Niamh Grahame and Nuala Mole (AIRE Centre) and Karolina
Babicka (International Commission of Jurists [ICJ]) for references to relevant case law mentioned in the text;
and Steven Allen (Co-Executive Director at Validity) for the examples described in Annex 6.2. AIRE (Advice on
Individual Rights in Europe) Centre is an NGO which works to ensure that all people enjoy their rights under
European Law. ICJ is an NGO defending human rights and the rule of law worldwide. Validity is an international
NGO which uses the law to secure equality, inclusion, and justice for people with mental disabilities worldwide.
129 European Communities (1992).
130 See in particular Article 24 discussed further below.
Feasibility Study for a Child Guarantee (FSCG) Final Report
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form part of the gen eral accountability measures, and their analysis is also necessary to
illustrate how they can jointly underpin an EU CG.
6.2.1 Children’s rights and EU competence
Children’s rights have evolved at EU level over the last two decades, from piecemeal
provisions in just a few substantive areas (primarily free m ovement, cross-border family
law and consumer rights) to a more comprehensive, explicit, and ambitious plan of action.
Prior to that, EU activity was largely confined to modest measures regarded as instrumental
to the achievement of broader EU objectives, due to limited competenc ies and to the
political sensitivity associated with engaging in issues that have historically fallen within
the exclusive domai n of domestic legal and policy actors. Indeed, up until 2009, the TEU
imposed onl y a general obligation on the EU to ‘respect fundamental rights in whatever
action it takes in accordance with its competences.’131 The only explicit reference to
children was found in the context of the EU’s commitment to combating crime, particularly
‘trafficking in persons and offences against children’.132 Thi s all changed with th e
introduction of the Treaty of Lisbon, which was si gned on 17 December 2007 and came
into force on 1 December 2009.1 33 This instrument amended both the TEU and the T reaty
Establishing the European Community, renaming the latter the Treaty on the Functioning
of the European Union (TFEU).134
The Treaty of Lisbon introduced a number of structural, procedural, institutional, and
constitutional amendments to the EU , which significantl y enhance the capacity of the EU
institutions, the Member States, and children’s rights advocates to protect a nd promote
children’s rights at this level. As part of t his overhaul, the ‘protection of the rights of the
child’ was introduced as a general stated objective of the EU and as a feature of the EU’s
external relations.135 The expansion of the EU’s social and rights-based a genda has led to
the development of laws, policies and jurisprudence that have a direct impact on children’s
lives.
But the nature and scope of EU action in the field of children’s rights can only be fully
appreciated in light of a clear understanding of the division of competencies between the
EU and its Member States. This is determined by the principles of subsidiarity and
proportionality.136 Article 5(3) of the TEU sets out three preconditions that determine the
division of competencies between the EU and the Member States i n accordance with the
principle of subsidiarity: (a) the area concerned does not fall within the Union’s exclusive
competence; (b) the objectives of the proposed action cannot be sufficiently achieved by
the Member States; and (c) action can, therefore, by reason of its scale or effects, be
implemented more successfully by the Union.
The principle of subsidiarity applies only to areas i n which competence is shared betw een
the Union and the Member States, which are set out in Article 4 of the TFEU.137 Specifically,
the EU shares competence with the Member States in relation to aspects of, inter alia: the
internal market; social policy; economic, social, and territorial cohesion; environment;
consumer protection; transport freedom; security and justice; and common safety in public
health matters.
131 Former Article 6(1) of the TEU.
132 Through the former intergovernmental forum of Pillar 3 (former Article 29 of the TEU).
133 Official Journal of the European Union (OJ) C 306 of 17 December 2007.
134 EU (2008). The Treaty on European Union retains its title.
135 Articles 3(3) and 3(5) of the TEU.
136 Article 5(3) of the TEU and Protocol (No 2) on the application of the principles of subsidiarity and
proportionality.
137 Part One, Title I of the TFEU divides the competencies of the Union into three categories: exclusive, shared,
and supporting.
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