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CRIDHO-WP-2018-3-EU-FRA-Future-ODS.pdf
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Article 2 of the Treaty on the Europen Union lists the values on which the Union is built -- including democracy, the rule of law and fundamental rights. Given the rise of "illiberal democracies" in Europe, should the ability of the EU to ensure compliance with the values on which it is built be enhanced? If so, how could such a monitoring function be organized? Against this background, this paper takes stock of the achievements of the Fundamental Rights Agency since it was established ten years ago, and asks whether its mandate should be expanded to give an explicit monitoring role. The paper first recalls the context in which the Member States decided to establish the Fundamental Rights Agency (2), and why, at the time, it was decided not to give it such a monitoring role (3). Indeed, although there are two distinct mechanisms through which the EU ensures compliance with fundamental rights (a legal mechanism, under the ultimate supervision of the Court of Justice of the European Union, and a political mechanism, in which the European Council or the Council of the EU have the final say), the Agency is involved in neither: it is a think tank, a pole of expertise, but not the Fundamental Rights Ombudsinstitution some had dreamed of (4). In order to explore whether the mandate of the Agency could be expanded to allow it to fulfil a monitoring function, the paper discusses the proposal put forward by the European Parliament in 2016, to create a new mechanism to monitor compliance with the values of Article 2 EU, based on an interinstitutional agreement between the European Parliament, the Commission and the Council of the EU (5). Finally, it presents an alternative proposal, which would consist for the European Parliament to request from the Fundamental Rights Agency that it submit a regular report on the situation of fundamental rights in the EU, allowing the institutions to assess whether in certain Member States, the threats to rights contributing to democracy and the rule of law are such that there is a risk that the values of the Union shall be breached -- but leaving it to those institutions to make the final assessment (6). The final section provides a brief conclusion (7).
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De Schutter, O. (2018). The EU Fundamental Rights Agency: Its Past and Possible Future (CRIDHO Workig Paper 2018-3).