Ways forward: strengthening NHRIS in the EU framework

• Pages: 77-98

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With the diverse landscape of NHRIs covered in Chapter1 and challenges to

their effectiveness in Chapter2, this third chapter deals with more concrete

opportunities for NHRIs to have more impact in the EU, on the 2030 Agenda

for Sustainable Development and through new and reinforced powers.

.. POTENTIAL AT EU LEVEL

3.1.1. Rule of law and other values in the EU treaties

There are signif‌icant roles for NHRIs in the context of the rule of law in the

EU– not least in terms of monitoring. They “may contribute crucially to

f‌lag[ging] human rights issues during emergency times and assist citizens

affected by emergency measures. They may therefore effectively complement

parliamentary and judicial control.”

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That national institutions play asignif‌icant

role in the context of ensuring the rule of law, particularly in the EU, is also

recognised in avariety of documents and statements. For instance, the

Finnish EU Presidency in 2019 stressed that “[NHRIs], Equality Bodies, Ombuds

institutions, professional and other networks, civil society, academia, citizens

and media also play acrucial role. They should be more closely involved in

order to create aUnion of values for all”.2 The role of NHRIs and equality

bodies was also explicitly recognised by the Council of the EU: “They play

acrucial role in the protection and promotion of fundamental rights and in

ensuring compliance with the Charter”.

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Given their role and relevance for rule

of law-related challenges, NHRIs need to ensure that they engage with the

human rights aspects of the rule of law– which are many and extensive–to

be effective promoters and protectors of human rights, even in sensitive areas

such as the rule of law. In fact, an independent, well-funded and effective

NHRI can be an indicator in itself of the state of the respect for the rule of

law and human rights in agiven country.

For instance, NHRIs could contribute to “Article7 procedures” that seek to

determine if “there is aclear risk of aserious breach by [Member States]

of the values referred to in Article2” (Article7, Treaty on European Union).

NHRIs could also be consulted in the fact-f‌inding missions conducted by the

European Economic and Social Committee’s Group on Fundamental Rights

and the Rule of Law. There are also anumber of infringement proceedings

initiated by the European Commission against Member States, which have

strong elements of the rule of law and fundamental rights, in which NHRIs

could be asked to provide input, for instance by the European Commission.

The European Commission has strengthened its rule of law mechanism, with

a“Rule of law review cycle” and an annual rule of law report. In relation to

the latter, reference is made to “enhanced monitoring” still to be developed,

“including in cooperation with national authorities”.4 Here there is also aclear

role for NHRIs, and the European Commission has requested ENNHRI and the

NHRIs to contribute.

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They could also have an important role in the follow-up

to the annual rule of law report by triggering agenuine discussion at national

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WAYS FORWARD: STRENGTHENING

NHRIS IN THE EU FRAMEWORK

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level, including in national parliaments. Moreover, they could contribute to

raising awareness of the importance of the rule of law among citizens.

The European Parliament proposed in 2016 the establishment of an “EU

mechanism on democracy, the rule of law and fundamental rights”6 and

has since reiterated the need for such an overall mechanism.7 It recently

reappointed arule of law working group under the Committee on Civil Liberties,

Justice and Home Affairs to continue its work under the broader title of

“democracy, rule of law and fundamental rights monitoring group”.8

In its new strategic agenda for the EU 2019–2024, the European Council

stresses that “[t]he rule of law and human rights, with its crucial role in all our

democracies, is akey guarantor that these values are well protected; it must

be fully respected by all Member States and the EU.” The strategic agenda

also commits the EU’s institutions to “work in accordance with the spirit and

the letter of the Treaties [by] respect[ing] the principles of democracy, rule

of law, transparency and equality between citizens and between Member

States. Good governance also depends on the rigorous implementation and

enforcement of agreed policies and rules, which must be closely monitored.”.9

3.1.1. EU law and the EU Charter of Fundamental Rights

Closely connected to the EU’s values is the EU Charter of Fundamental Rights.

In fact, “Human rights as recognised in the Charter cover most of the values

of Article2 of the Treaty on European Union,

including rule of law and democracy.”.

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Binding

and part of the EU’s primary law, the EU Charter

of Fundamental Rights’ f‌ield of application is–

in contrast to other instruments such as the

European Convention on Human Rights– limited,

as it is only binding for the Member States when

they are acting within the scope of EU law.

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Given that asignif‌icant part of national law and

policy making is directly or indirectly inf‌luenced

by EU law, asignif‌icant part of national norms

have to conform with the Charter, as they would

otherwise run the risk of being declared null and

void or incorrectly applied in agiven case.

Building capacity on the EU Charter of Fundamental Rights

To raise awareness of the Charter at national level, FRA has developed various tools, and in

cooperation with NHRIs and equality bodies, organised EU Charter capacity building targeted at

civil servants and civil society. * Since 2017, it has also held training sessions, in partnership with

ENNHRI and Equinet.**

* See FRA, Resource material on the EU Charter of Fundamental Rights.

** FRA (2018), FRA training for NHRI staff on EU’s Fundamental Rights Charter, 2018; FRA (2020), FRA-Equinet Joint

Workshop on the EU Charter of Fundamental Rights.