18.

The EU human rights regime: development,

actors, policy framework and effectiveness
Gabriel N. Toggenburg1

1. THE EU’S NATURE AND EVOLUTION

1.1 Introduction

The European Union (EU) is neither a State, nor an international organisation. Its supranational
nature puts it somewhere in between. The evolution of the EU’s legal mandate and political
ambition provided the Union with considerable authority to protect and promote fundamental
rights at home and abroad. This led to the question, whether the initial economic Community
had become a ‘human rights organisation’.2
Typically, what is referred to as a human rights organisation is a highly specialised entity
established with the very purpose to protect and promote human rights.3 States, to the contrary,
are entities under public law that are entrusted with an extremely wide spectrum of public
functions with the protection and human rights just being one of them albeit a very important
and horizontal one. They are typically not referred to a human rights organisations as such.
And in this sense the EU is very similar to a State.
The EU is pursuing a very broad range of policies, some of key relevance to human rights,
many others much less. In some instances it is protecting human rights, in others it is putting
them at risk. Like a State – but so far in a more hesitant and piecemeal manner – the EU has
started submitting itself to external human rights obligations by acceding to human rights con-
ventions. The EU acceded to the UN Convention on the Rights of Persons with Disabilities4
and intends to accede to the Istanbul Convention on preventing and combating violence
against women and domestic violence.5 Most importantly, it is in the process of (re)negotiating

1
The author works at the European Union Agency for Fundamental Rights. This chapter is however
written in a strictly private capacity and the views expressed cannot be attributed to the agency.
2
See e.g., Philip Alston and Joseph Halevi Horowit Weiler, ‘An ever-closer union in need of
a human rights policy,’ in Philip Alston (ed), The EU and Human Rights (Oxford University Press 1999);
Armin von Bogdandy, ‘The European Union as a human rights organisation? Human rights and the core
of the European Union’ (2000) 37 Common Market Law Review 1307; Allan Rosas, ‘Is the EU a human
rights organisation?’ CLEER Working Paper 2011/1.
3
This is the case for an international organisation such as the Council of Europe or national struc-
tures such as an NHRI (National Human Rights Organisation) or an Equality Body.
4
See Council Decision 2010/48/EC of 26 November 2009 concerning the conclusion, by the
European Community, of the United Nations Convention on the Rights of Persons with Disabilities’
[2010] OJ L23/35. The CRPD entered into force for the EU on 23 December 2010.
5
On 11 May 2017, the Council of the EU adopted two decisions in order to pave the way for the EU
to become a party of the Convention. However, beginning of April 2022 six EU Member States have not
yet ratified the Convention (BG, CZ, HU, LV, LT, SK). The EU may make the adoption of the decision
concluding that convention contingent on the prior establishment of a ‘common accord’ amongst the

409
410 Research handbook on the politics of human rights law

its accession to the European Convention on the Protection of Human Rights and Fundamental
Freedoms (ECHR) of the Council of Europe.6
Internally, the EU has established a solid network of legal commitments that convey the
picture of an organisation that is very much human rights oriented. According to the EU
Treaty, the Union:

● is ‘founded on’ the respect for human rights (Art. 2 TEU);

● observes fundamental rights, as guaranteed by the ECHR and as they result from the con-
stitutional traditions common to the Member States, both constituting general principles
under EU law (Art. 6 Para 3 TEU);
● observes, respects and promotes the application of its own human rights catalogue – the
Charter of Fundamental Rights of the European Union (Art. 6 Para 1 TEU);
● upholds and promotes in its relations with the wider world ‘the protection of human rights,
in particular the rights of the child’ (Art. 3 Para 5 TEU) and the ‘universality and indivisi-
bility of human rights and fundamental freedoms’ (Art. 21 Para 1 TEU).

This chapter will in the following look at the relevance of fundamental rights at the beginning
of the integration process (section 1.2) and over the further development of the European
Union (section 1.3). In a second part it gives an overview of the relevant actors within the EU
institutional structure before presenting, in a third part, the EU tools available to protect and
promote fundamental rights. It does so by referring especially to upcoming developments in
order not to repeat what is already well known. The fourth part offers two case studies (on
non-discrimination and asylum/migration) in order to assess, whether the EU’s fundamental
rights commitment proves to be efficient in practice. A last part concludes the chapter which
is throughout focused on the EU’s internal sphere, thereby not dealing with foreign relations.7

1.2 Was the EU Ever ‘founded’ on Human Rights?

The fact that the EU treaty and the EU’s political establishment claim that the EU process
is ‘founded upon’ human rights was criticised as a myth.8 Whereas, yes, it is true that fun-
damental rights were clearly absent from the text of the treaty establishing the European
Community, they were, however, not absent from the context of its genesis. In fact, at the very
beginning of the process of European integration, namely in the negotiations for two treaties

Member State as long as such a common accord does not become a formal additional step. See Court of
Justice of the European Union, Opinion 1/19, (6 October 2021).
6
The EU is according to Art. 6(2) TEU obliged to accede to the ECHR. In 2014, an opinion of the
CJEU found however that an accession on the basis of the agreement back then negotiated would violate
the EU treaties, especially the autonomy of EU law. At the time of writing negotiations are ongoing to
amend the draft accession agreement in the light of this opinion (CJEU, Opinion 2/13 (18 December
2014).
7
This chapter consequently speaks of fundamental rights as the EU uses the term ‘fundamental
rights‘ while ‘human rights‘ is only used in its external relations.
8
See on this Stijn Smismans, ‘Fundamental rights as political myth of the EU: can the myth
survive? in Sionaidh Douglas-Scott (ed), EU Law and Human Rights (Edward Elgar Publishing 2017)
13–34.
The EU human rights regime: development, actors, policy framework and effectiveness 411

that never entered into force9 – the European Defence Community (EDC) and the European
Political Community (EPC) – human rights did play a prominent role.10 Three elements show
that what was envisaged over 60 years ago, goes even beyond of what we have now with the
‘Lisbonised’ European Union11:
Firstly, the draft treaty meant to establish the EPC put ‘the protection of human rights and
fundamental freedoms in Member States’ as the first of the five rather generically phrased
aims of the European Community (Art. 2). The competences of the Community were phrased
in an equally open manner given that Article 55 simply stated that the ‘Community may make
proposals to the Member States with the object of attaining the general aims defined in Article
2’. This is very different in the modern EU where EU primary law provides limited legislative
competencies in the area of human rights and notoriously underlines that EU policy making
and fundamental rights obligations under EU law are limited to areas where the EU holds
competences.12
Secondly, the draft EPC treaty envisaged that the ECHR would be the authoritative human
rights source for the European Political Community thereby solidly locking both tracks of
European integration – European Community and Council of Europe – into each other. This
stands in contrast with the current EU’s rather cautious pick up of international human rights
law by the Court of Justice of the European Union (CJEU) and the habitual emphasis on the
autonomy of EU law.13 While the coordination between the Strasbourg Court (Council of
Europe system) and the Luxembourg Court (European Union system) is nowadays still relying
on inter-judicial practice, Article 45 of the draft treaty on the European Political Community
laid down a legal mechanism in that regard: according to that provision, the EU Court would
renounce judgment concerning any interpretation of the ECHR till any ‘question of principle’
was settled by the ‘judicial organs’ of the ECHR.
Thirdly, the drafters of the EPC treaty envisaged the Community to monitor the human
rights performance of the Member States to a degree that would raise eyebrows in today’s
political reality. The Community was meant to be to take over government where national
authorities ‘seriously violated’ fundamental rights. In such an event the ‘measures taken by the
Community Government’ would be submitted for approval by the ‘Community Parliament’.14
Moreover, the drafters envisaged that individuals would have the right to take action before

9
The European Political Union would have brought together the already existing European
Community for Coal and Steel and the planned European Defence Community. Given that the latter
failed in 1954 in the French Parliament (the far right opposed the loss of sovereignty, the far left the
militarisation of the Community) also the project of a Political Union came to a halt.
10
Grainne de Burca, ‘The road not taken: the European Union as a global human rights actor’ (2021)
105(4) The American Journal of International Law 649.
11
The Treaty of Lisbon is considered as a watershed in the development of the EU as a human rights
actor given the introduction of the EU’s Charter of Fundamental Rights.
12
See Art. 5, Consolidated Version of the Treaty on European Union [2008] OJ C115/13. and Art.
51, Charter of Fundamental Rights of the European Union [2012] OJ 2012/C 326/02. See however also
Art. 352, TFEU Consolidated Version of the Treaty on European Union [2008] OJ C115/13 providing
for a bit of flexibility (the Fundamental Rights Agency was established on this legal basis).
13
See in this context the emblematic opinion of the CJEU with regard to the EU’s accession to the
ECHR, Court of Justice of the European Union, Opinion 2/13 (18 December 2014).
14
See Resolutions adopted by the Study Committee for the European Constitution (Brussels,
November 1952), 1st resolution, para. 7. Note that the final Art. 104 Para 1 of the draft treaty required
the Member States to request such an assistance. However Art. 104 Para 2 states:
412 Research handbook on the politics of human rights law

the Court of Justice in case of conflict between the new Treaty and acts of the Community
or its Member States.15 The EU’s constitutional reality, 60 years later, still does not offer any
enforcement mechanism that would come even close to these early proposals.

1.3 The EU’s Career Path Towards Becoming a Key Human Rights Actor

After the failure of these early proposals, the process of European integration chose a pro-
nouncedly economic orientation by creating the European Economic Community. Out of the
nine tasks entrusted to the new Economic Community only one was directly linked to the
individual, namely the creation of a European Social Fund ‘to increase employment opportu-
nities of workers and contribute to improving their standard of living’.16 Few provisions were
clearly fundamental rights relevant like for instance Article 119 of the treaty establishing the
European Economic Community (TEC) that already back in 1957 called for equal pay without
discrimination based on gender.
However, the treaty silence on human rights was increasingly compensated by an active,
some might even say activist, approach of the CJEU who from the 60s onwards recognised
fundamental rights to be part and parcel of EU law.17 In the 70s, this silent legal development
was given a political voice. In 1973, the European Council – thus the highest political level
composed of Heads of States and governments – issued a declaration on European identity.
The document testifies that the then nine countries wished to defend ‘the principles of rep-
resentative democracy, of the rule of law, of social justice — which is the ultimate goal of
economic progress — and of respect for human rights’.18

The European Executive Council, with the unanimous concurrence of the Council of National
Ministers, shall lay down the conditions under which the Community shall be empowered to
intervene on its own initiative. The relevant provisions shall take the form of a bill to be submitted
to Parliament for approval within one year from the date of the coming into being of the Peoples’
Chamber. They shall be enacted as legislation of the Community.
See Draft Treaty embodying the Statute of the European Community (10 March 1953), Art. 104.
15
Resolutions adopted by the Study Committee for the European Constitution (Brussels, November
1952), 4th resolution on the Community Judicial Power. See also Draft Treaty embodying the Statute
of the European Community (10 March 1953), Art. 45 para 2y. The idea of such a ‘Grundrechtsklage’
recently re-emerged in the form of the project ‘Jeder Mensch initiated by Ferdinand von Schierach, see
the petition at Jeder Mensch, ‘The 6 European fundamental rights’ (Jeder Mensch, 2021) https://www
.jeder-mensch.eu/informationen/ accessed 4 January 2023.
16
Art. 3 lit. TEC.
17
See e.g., the judgments in Case 29/69, Stauder [1969] ECR 419, Case 11/70, IHG [1970] ECR
1125, and Case 4/73, Nold [1974] ECR 491. See Bruno de Witte, ‘The Past and Future Role of the
European Court of Justice in the Protection of Human Rights’, in Philip Alston (ed), The EU and Human
Rights (OUP 1999) 859–897.
18
Document on The European Identity published by the Nine Foreign Ministers on 14 December
1973, in Copenhagen’ (1973) 12 Bulletin of the European Communities 118. See also Joint Declaration
by the European Parliament, the Council and the Commission /* Concerning the Protection of
Fundamental Rights and the European Convention for The Protection of Human Rights and Fundamental
Freedoms */OJC 103/0001.
The EU human rights regime: development, actors, policy framework and effectiveness 413

The new commitment to fundamental rights at the level of the EU, found increasing reflec-
tion in EU Primary law, that is in the wording of the EU treaties which bind the EU and the
Member States alike. The three main steps in that regard were19:
● the Maastricht treaty signed in 1991 established the concept of EU citizenship rights20 as
well as a horizontal clause obliging the Union to respect fundamental ‘as guaranteed by the
ECHR and as they result from the constitutional traditions common to the Member States’,
as general principles of Community law;21
● the Amsterdam treaty signed in 1997 established the formula that the EU ‘is founded on
the principles of liberty, democracy, respect for human rights and fundamental freedoms,
and the rule of law, principles which are common to the Member States’ – a provision that
is the forerunner of the current Article 2 TEU.22 Moreover the Amsterdam also introduced
what is now Article 7 TEU thereby making very clear that EU human rights are not only
directed to the outside world but have equally an internal dimension.23 In addition the treaty
of Amsterdam laid the ground for one of the most prominent human rights policies of the
Union: a new competence base was inserted in the TEC allowing the European Community
to legislate against discrimination based on sex, racial or ethnic origin, religion or belief,
disability, age or sexual orientation (Art. 13 TEC – what nowadays is Art. 19 TFEU);
● Finally, the Lisbon treaty signed in 2007 provided for the European Union Charter of
Fundamental Rights to become legally binding (after the Charter was solemnly proclaimed
as a political document in Nice already back in December 2000).24 Moreover, the treaty
established an obligation of the EU to accede to the ECHR thereby replacing the old polit-

19
Note that the European Single Act signed in 1986 already mentioned human rights in its preamble.
However, from the paragraph that followed one understands that this determination was mainly directed
towards third countries and as a ‘contribution to the preservation of international peace and security’. See
Single European Act of 29 June 1987[1987] OJ L169/1.
20
The new treaty also stressed that the new EU-policy areas of asylum, immigration, combatting
crimes, judicial cooperation in civil and criminal matters and the fight against terrorism ‘shall be dealt
with in compliance with the [ECHR] and the Convention relating to the Status of Refugees of 28 July
1951 and having regard to the protection afforded by Member States to persons persecuted on political
grounds’. See Consolidated Versions of the Treaty on European Union and the Treaty on the Functioning
of the European Union of 26 October 2012 [2012] OJ C 326/13, Art. K.2.
21
Treaty on European Union (n 19), Art. F.1.
22
Treaty of Amsterdam 97/C 340/01 of 10 November 1997 amending the treaty on European Union,
the treaties establishing the European Communities and certain related acts [1997] OJ C 340/ 1, Art. 1
para 9 (changes to F.1.)
23
Where a Member States is found to seriously and persistently breach one of the values mentioned,
the EU can determine that such a breach takes place and eventually even impose sanctions against that
State. The two procedures in the then Art. 6 TEU (determination procedure and sanctioning procedure)
were four years later complemented by the treaty of Nice: a third procedure in Art. 6 (1) TEU allows the
EU to determine the mere ‘risk‘ of a breach of the shared values. This was the legal result of the political
drama surrounding the ‘Austrian crisis’ of the year 2000. See for the details Gabriel N Toggenburg, ‘La
crisi austriaca: delicati equilibrismi sospesi tra molte dimensioni’ (2001) II Diritto pubblico comparato
ed europeo 735.
24
On the process of the drafting of the Charter see Niall Coghian and Mark Steiert (eds), The Charter
of Fundamental Rights of the European Union: The Travaux Préparatoires and Selected Documents
(European University Institute 2020). On the implementation of the Charter 20 years thereafter see
Gabriel N Toggenburg, ‘The implementation of the Charter at national level,’ in Steve Peers (ed), The
EU Charter of Fundamental Rights. A Commentary (2nd edition, Hart Publishing 2021).
414 Research handbook on the politics of human rights law

ical and academic debate, whether the EU should either establish its own human rights
catalogue or accede to the ECHR with a legal obligation to do both.

Entrenching fundamental rights so prominently in EU primary law resulted in a situation were

any piece of EU secondary law (such as EU legislation) can be declared null and void when in
contrast with the EU Charter of fundamental rights. It also provided the basis for EU actors to
develop bolder EU policies in the area of fundamental rights.

2. THE EU’S ACTORS RELEVANT FOR FUNDAMENTAL

RIGHTS

2.1 The European Commission

Due to the so-called ‘monopoly of initiative’ close to all EU action takes its origin in the
European Commission.25 Thus the European Commission plays a central role in designing
what could be considered the EU’s ‘fundamental rights policies’.
Within the European Commission’s structure, the fundamental rights related tasks are
dispersed across various Commissioners and their Directorate Generals (so called DGs). Key
DGs are the DG dealing with justice which is likely to host key fundamental rights policy
files such as data protection, civil law, criminal law, data protection, consumer protection,
children rights or victims’ rights. Other key fundamental rights areas such as employment,
social security, disability issues, anti-discrimination, gender equality or the inclusion of Roma
people, etc. are likely to fall in the ambit of the DG dealing with employment and social affairs.
A third key DG key for fundamental rights is the one dealing with migration, asylum, border
control, visas, etc. In the current von der Leyen Commission this DG also deals with home
affairs and thus the key areas of security, terrorism, police cooperation, human trafficking,
cybercrime, etc. In addition, other key aspects of fundamental rights are touched upon by all
the other DGs that do not have any traditional human rights experience (and thus expertise)
which necessitates that fundamental rights are mainstreamed throughout the whole machinery
of the European Commission – a challenging task.26
Turning from the Commission’s role in the context of EU law and policy making to its
role as the EU’s watchdog of the EU Treaties, it is important to recall that most of EU law is
implemented by national authorities and not by the European Commission itself. According to
Article 17 (1) TEU it is the Commission’s task to ensure the application of EU law, including
the EU Charter of Fundamental Rights, which the EU Member States have to respect when
acting within the scope of EU law.27 Prominent in this function are the so-called infringement
procedures under Article 258 TFEU. Increasingly such infringement procedures also deal with
fundamental rights and rule of law issues in Member States. The Commission is rather selec-
tive when bringing Member States before the court with the positive side effect that it wins

25
See Art. 17 (2) TEU.
26
See e.g., the ‘tool 29’ on fundamental rights in European Commission, European Commission,
‘Better regulation toolbox’ (European Commission, 2021) 242–248.
27
See Art. 51 of the Charter.
The EU human rights regime: development, actors, policy framework and effectiveness 415

nine out of ten proceedings. This has historically added much to the authority of the European
Commission.28
A rather recent and flexible way of providing visibility to certain policy files is the desig-
nation of ‘coordinators’ in the European Commission. The first example was the coordinator
for the Rights of the Child who was announced in the 2006 EU strategy on the rights of the
child.29 In 2015 two coordinators were nominated – a coordinator on combating anti-Semitism
and fostering Jewish life30 and a Coordinator on combating anti-Muslim hatred.31 In September
2020, the Commission appointed the first Coordinator for victims’ rights tasked with ensuring
consistency and effectiveness of actions in relation to the victims’ rights policy.32 In 2021 the
first Coordinator for Anti-Racism was appointed as announced in the new EU Antiracism
Action Plan.33 Such internal appointments in the European Commission structure combine the
advantages of flexibility and visibility while on the other side not offering any political respon-
sibility (the job holders are civil servants working under the authority of a Commissioner). The
situation is slightly different with the EU Anti-Trafficking Coordinator (ATC) – a position
created in 2011. The ATC draws her mandate directly from a piece of binding EU legislation,
namely the EU Anti-trafficking directive. The directive obliges Member States to facilitate the
tasks of the anti-trafficking coordinator.34

2.2 The European Parliament

In the European Parliament most fundamental rights relevant files are dealt with in the
Committee on Civil Liberties, Justice and Home Affairs (LIBE). With the increase of relevant
legislative EU competences, the LIBE Committee became one of the biggest, busiest and

28
See however for the critique section 4.3.
29
See Communication from the Commission COM(2006) 367 final of 4 July 2006 towards an
EU Strategy on the Rights of the Child [2006] {SEC(2006) 888}. The first coordinator was Margaret
Tuite (1/11/2011–31/08/2018) followed by Anna Zito (01/04/2008–30/09/2011), Patrick Trousson
(01/10/2007–31/01/2008) and Valeria Setti (since September 2018).
30
The Coordinator on combating anti-Semitism and fostering Jewish life is tasked to work closely
with Jewish communities and organisations, organise roundtables and contribute to the development of
the European Commission’s overarching strategy to prevent and combat racism, intolerance and discrim-
ination. The first and current coordinator is Katharina von Schnurbein.
31
The Coordinator on combating anti-Muslim hatred is tasked to ensure a robust and holistic
response across the Commission services in the fight against anti-Muslim hatred and to function as main
point of contact for organisations in the EU working against racism and anti-Muslim hatred. The first and
current coordinator is Tommaso Chiamparino.
32
Concretely, the Coordinator is responsible for the functioning of the EU`s Victims’ Rights
Platform and deals with the implementation of the EU Strategy on victims’ rights (2020-2025). She
coordinates the victims’ rights related actions of other EU level stakeholders, especially where relevant
for the application of the EU Victims’ Rights Directive. The first and current coordinator is Katarzyna
Janicka-Pawlowska.
33
The first and current coordinator is Michaela Moua.
34
In particular, Member States shall transmit to the ATC the relevant information such as trends in
trafficking in human beings, results of anti-trafficking actions, statistics gathered in cooperation with rel-
evant civil society organizations etc. See Arts 19 and 20 of the Directive 2011/36/EU of 5 April 2011 on
preventing and combating trafficking in human beings and protecting its victims, and replacing Council
Framework Decision 2002/629/JHA [2011] OJ L101/1. The first office-holder was Myria Vassiliadou
(2011–2020). The current ATC is Diane Schmitt.
416 Research handbook on the politics of human rights law

most powerful of the 20 permanent Committees of the European Parliament. It is mandated

to deal with fundamental rights, including the protection of minorities, all forms of discrim-
ination (except for those based on sex or those occurring at the workplace and in the labour
market),35 transparency and data protection; the area of freedom, security and justice; free
movement, asylum and migration; border management; police and judicial cooperation in
criminal matters; the rule of law related Article 7 procedure; relevant EU agencies such as
the European Monitoring Centre for Drugs and Drug Addiction, the European Union Agency
for Fundamental Rights, Europol, Frontex, Eurojust, Cepol, the European Public Prosecutor’s
Office and others.36
Next to LIBE other Committees are key such as the Committee on employment and
social affairs (EMPL), the Committee on women’s rights and gender equality (FEMM), the
Committee on culture and education (CULT), the Committee on the internal market and con-
sumer protection (IMCO) or the Committee on constitutional affairs (AFCO).37 At the same
time rule number 39 of the Parliaments rules of procedure allow since 2009 that a legislative
file is referred to the LIBE Committee where it is considered that a legislative proposal does
not comply with EU fundamental rights. In practice this procedure is however hardly used.
Next to co-designing EU-policies in their working Committees, the Parliament controls
the executive for instance by sending written questions to the European Commission.38 To
a certain degree the Parliament also exercises a monitoring role vis-à-vis the national level
as the creation in June 2018 of the LIBE Democracy, Rule of Law and Fundamental Rights
Monitoring Group (DRFMG) shows. Created in reaction to the murders of the Maltese blogger
and journalist Daphne Caruana Galizia, and the Slovakian journalist Jan Kuciak and his
fiancée, its declared task is to ‘monitor the situation as regards rule of law and fight against
corruption within the EU and address specific situations, in particular Malta and Slovakia’.39
The group also makes suggestions for proposals for resolutions and reports and dealt with the
reactions by Member States to the COVID-19 pandemic.
Important to note is also the Parliaments Petitions Committee (PETI). The right to petition
is enshrined both in the EU Treaties and the EU Charter of fundamental rights.40 European
citizens and residents may address the PETI Committee on a matter which comes within the
EU’s fields of activity and which affects him or her directly.41 The Parliament may even under-

35
The latter two forms are dealt with in the Committee on Women’s rights and gender equality and
the Committee on Employment and social affairs.
36
See Art. XVIII of Annex VI, Rules of Procedure of the European Parliament (8th parliamentary
term — July 2014) (EP RoP).
37
The AFCO Committee is dealing for instance with the EU’s accession to the ECHR.
38
See Article 17 (8) TEU.
39
The group is constituted of two standing Member per political group. Members of other
Committees can be invited to specific meetings. See on the Working Document of 10 July 2020 on
Democracy, Rule of Law and Fundamental Rights Monitoring Group (DRFMG) Report (LIBE/9/02808)
Report.
40
Art. 24 (2) TFEU and Art. 44 of the Charter.
41
In 2019 the European Parliament received 1.357 petitions. The majority of them were closed
within a year after being received. One-third of them was inadmissible. Close to half of them were sent
to the European Commission for an opinion. The top three areas of concern identified by citizens were:
environment (over 12 per cent of the petitions), fundamental rights (9.2 per cent) and justice (8.9 per
cent).
The EU human rights regime: development, actors, policy framework and effectiveness 417

take fact-finding missions when investigating petitions, establishing facts or seeking solutions.
After each visit, a mission report is drafted by the official members of the delegation.42
Finally, it is worthwhile to mention the so-called ‘Intergroups’ given that close to half of
the current 24 Intergroups focus on a fundamental rights related theme.43 Intergroups have the
‘purpose of holding informal exchanges of views on specific issues across different political
groups, drawing on members of different parliamentary committees, and of promoting contact
between Members and civil society’.44 Thereby Intergroups can play an important role in cre-
ating political momentum for certain fundamental rights-related topics within the EP.
Finally, the Parliament established in 1987 the position of the European Parliament
Coordinator on Children’s Rights with the initial core mandate to mediate in cases of children
who are victims of cross-border parental child abduction. In 2018 the title was changed to
Coordinator on Children’s rights to signal the expanded mandate of the office. Job holders are
politicians, namely members of the European Parliament with the current Coordinator being
even a Vice-President of the Parliament.45

2.3 The Council of the European Union

The Council of the European Union is together with the European Parliament, the EU’s
co-legislator and thus of key relevance for the development of EU fundamental rights policies.
It brings together the 27 Member States at the level of ministers. Whereas the directly elected
European Parliament represents the interest of the people and the independent European
Commission has to represent and promote the interest of the overall Union, the Council
represents the interest of 27 Member States. Obviously these 27 interests do not necessarily
converge, which makes decision making a relevant topic in the Council. In most areas of
interest (e.g., data protection) decision are taken by (simple or qualified) majority but in
some areas (prominently in the case of antidiscrimination) unanimity is still necessary.46 The
Council meets in ten different formations depending on the policy area discussed. What was
said for the Commission and the Parliament also applies here – there is no one and single
‘fundamental rights Council’. Rather a handful of Council formations are of major importance
for fundamental rights such as the configuration for justice and home affairs (JHA Council),47

42
On petitions see rules 215–218 of the EP RoP (n 36).
43
See the Intergroups for: Anti-racism and diversity; Children’s rights; Demographic challenges,
family-work balance and youth transition; Disability; Fighting against poverty; Freedom of religion and
religious tolerance; LGTBI; Social economy; Trade Unions; Traditional minorities, national communi-
ties and languages.
44
See Rule 35 of the EP RoP (n 36).
45
The first office-holder under this name was Elisabeth Morin-Chartier, Ewa Kopacz holder is since
July 2019 the current office-holder.
46
The procedures are laid down in the respective ‘competence base’ in the EU treaties. For anti-
discrimination see Art. 19 (1) TFEU: ‘…the Council, acting unanimously in accordance with a special
legislative procedure and after obtaining the consent of 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’.
47
The JHA Council is composed up of Justice And Home Affairs Ministers from all the EU
Member States with Justice Ministers dealing with judicial cooperation in both civil and criminal law
and fundamental rights and Home Affairs Ministers dealing with migration, border management and
police cooperation, among other matters. The JHA Council meets at least four times a year and the EU
418 Research handbook on the politics of human rights law

the figuration for employment, social policy, health and consumer affairs (EPSCO Council) or
the configuration for General Affairs (GAC Council).
The Council meetings are chaired by the country holding the EU Presidency for six months.
Besides ministerial meetings there are countless of meetings of the relevant civil servants of
the 27 Member States. They meet regularly in hundreds of permanent Working Groups many
of which are of utmost importance for fundamental rights.48 Of special interest is the Working
Party on Fundamental Rights, Citizens Rights and Free Movement of Persons (FREMP). It
comes closest to a horizontal fundamental rights Working Party of the Council without being
such. Whereas it deals with fundamental rights issues of horizontal relevance such as the
accession of the EU to the ECHR or the reports of the FRA, there is no procedure as we just
saw for the European Parliament that would allow to move a legislative file to the FREMP
Working Party where special fundamental rights concern arise.49 It appears that so far such
a mechanism would be perceived as being beyond the mandate of FREMP and/or overburden-
ing the Working Party. However, all the Council formations and their preparatory bodies have
to conform in their work to the Charter which is why guidelines were developed to provide
guidance in this regard.50

2.4 The Court of Justice of the European Union

The CJEU is next to the independent European Commission and the directly elected European
Parliament another prominent expression of the EU’s supranational character: Member States
are bound by the case law of the CJEU and there are no opt-outs to the jurisdiction of the CJEU
(unless such exceptions were negotiated into primary law when EU treaties were amended).
The Court is the EU’s constitutional court in so far as it is tasked to ‘ensure that in the interpre-
tation and application of the Treaties the law is observed’ (Art. 19(1) TEU). It rules on actions
brought by the Commission (or a Member State) and it gives preliminary rulings, at the request
of courts or tribunals of the Member States, on the interpretation of Union law or the validity
of acts adopted by the EU institutions.

Presidency tends to call for additional informal meetings (to which for instance also the Director of the
FRA is invited).
48
Relevant Working Parties for the JHA Council include the Asylum Working Party (AWG); the
Coordinating Committee in the area of police and judicial cooperation in criminal matters (CATS);
the Law Enforcement Working Party (LEWP); the Strategic Committee on Immigration, Frontiers and
Asylum (SCIFA); the Visa Working Party; the Working Party for Schengen Matters; the Working Party
on Civil Law Matters (JUSTCIV); the Working Party on Cooperation in Criminal Matters (COPEN);
the Working Party on Frontiers; the Working Party on Fundamental Rights, Citizens Rights and Free
Movement of Persons (FREMP); the Working Party on Information Exchange and Data Protection
(DAPIX); Working Party on Integration, Migration and Expulsion; the Working Party on Substantive
Criminal Law (DROIPEN); the Working Party on Terrorism (TWP).
49
Note however that the Council ‘encourages the regular presentation of information points on
ongoing legislative files with a potentially significant impact on fundamental rights in the FREMP
working party’. See Council document 6795/21 of 8 March 2021 on conclusions on strengthening the
application of the Charter of Fundamental Rights in the European Union [2021] JAI 233/1, para 10.
50
Outcome of Proceedings 5377/15 of 20 January 2015 Guidelines of the Council of the European
Union on methodological steps to be taken to check fundamental rights compatibility at the Council
preparatory bodies [2015] FREMP 6.
The EU human rights regime: development, actors, policy framework and effectiveness 419

Already by the 60s the CJEU had started its case law on EU fundamental rights. By estab-
lishing that ‘respect for fundamental rights forms an integral part of the general principles of
law protected by the court of justice’ the CJEU put itself and the EU on the map of human
rights.51 By its ‘invention’ of fundamental rights entitlements that are grounded neither in
international nor national law but directly in EU law, the Court provided persons living on the
EU territory with a new third protective layer of rights. The legal source used for this purpose
was that of ‘general principles of law’ that allowed the Court to fill gaps in EU primary law.
In fact, the EU treaties were never legislation-like fully encompassing traités lois but rather
traités cadre providing a rough framework only. As has been often underlined,52 one of the key
motivations for the Court to create EU fundamental rights was to protect the – equally CJEU
born – principles of supremacy and direct effect of EU law. Were the CJEU not to send the
signal that the CJEU itself would guarantee that EU legislation conforms with (EU) fundamen-
tal rights, national Constitutional Courts would have followed the first attempts made back
then by the Constitutional Courts in Germany (the so called ‘Solange’ saga) and Italy raising
legal barriers against EU law by checking EU legislation against national fundamental rights.
The role of the CJEU for the EU’s fundamental rights system can hardly be overrated and
continues to be of utmost importance as its case law in areas such as data protection, asylum
and immigration as well judicial cooperation in criminal matters shows. Also in the rule of
law debate, the case law of the CJEU proved to be key to avoid that the principle of the rule
of law is politicised or submitted to the forces of eroding relativisation. The Court recently
emphasised the link between the key aspects of the rule of law such as judicial independence
and fundamental rights thereby also enlarging the legal relevance of the Charter beyond areas
where Member States are implementing EU law.53

2.5 The European Union Agency for Fundamental Rights

Since 2008 the EU has been equipped with a fundamental rights body tasked to advise the EU
institutions and bodies as well as the Members States (when and where acting within the scope
of EU law) on fundamental rights.54 It carries out its key tasks of data collection, evidence
based advice, research and networking in ‘complete independence’.55 In a way the ‘FRA is

51
See e.g., Case C-11/70 Internationale Handelsgesellschaft [1970] ECR 01125.
52
See e.g., Bruno de Witte, ‘The Past and Future Role of the European Court of Justice in the
Protection of Human Rights,’ in Philip Alston (ed), The EU and Human Rights (OUP 1999) 859.
53
This is at least the case for the context of Art. 19 TEU (the obligation of the Member States to
‘provide remedies sufficient to ensure effective legal protection in the fields covered by Union law’)
where the standards of Art. 47 of the Charter have to observed even if Member States are not ‘implement-
ing Union law‘ in the sense of Art. 51 of the Charter. See Case C-64/16 Associação Sindical dos Juízes
Portugueses [2018] ECR II 117.
54
Art. 2, Council Regulation (EC) No 168/2007 of 15 February 2007 establishing a European
Union Agency for Fundamental Rights [2007] OJ L 53/1. See for details Gabriel N. Toggenburg, ‘The
European Union Fundamental Rights Agency,’ in Gerd Oberleitner (ed), International Human Rights
Institutions, Tribunals, and Courts (Springer 2018) 443–460. Note that the mandate of the agency was
recently slightly changed so as to render explicit that it covers also the areas of the former third pillar
while excluding those of the former second pillar. See Council Regulation (EU) 2022/555 of 5 April
2022 amending Regulation (EC) No 168/2007 establishing a European Union Agency for Fundamental
Rights [2022] OJ L108/1.
55
Art. 16 (1) Council regulation (EC) No 168/2007.
420 Research handbook on the politics of human rights law

to the EU what the NHRIs are to the Member States: it is a Human Rights Institution for the
EU.’56 In fact, the agency’s founding regulation refers to ‘the principles relating to the status
and functioning of national institutions for the protection and promotion of human rights (the
Paris Principles)’. But the FRA’s mandate is not fully in compliance with the Paris Principles
given that it is excluded from issuing on its own motion opinions with regard to legislative
proposals discussed at EU level. There is a need for the European Parliament, the European
Commission or the Council of the EU to request for such an opinion in order that the FRA can
deliver views on for instance a Commission legislative proposal that has serious implications
for fundamental rights.
The agency disposes over an annual budget of currently 21 million EUR and a staff of a bit
over 100. It belongs thus to the smaller of the over 40 EU agencies and comparing its increase
of budget and staff over the recent years with that of other EU agencies active in the area of
Justice and Home Affairs like for instance FRONTEX and others one is tempted to conclude
that FRA does not stand for a political priority.57 Nevertheless on substance the work of FRA
was evaluated very positively.58

2.6 The European Ombudsperson

The European Ombudsman is elected by the European Parliament. Whereas it is legally

speaking not an EU institution it has – in contrast to EU agencies59 such as the FRA – treaty
status resulting in a sort of ‘constitutional guarantee’ of its existence. According to Article 228
TFEU, the Ombudsman is empowered to receive complaints from any citizen of the Union
or any natural or legal person residing or having its registered office in a Member State. The
complaints may concern instances of maladministration in the activities of the Union (with the
exception of the CJEU acting in its judicial role).
Where the Ombudsman establishes an instance of maladministration, he or she refers the
matter to the institution, body, office or agency concerned, which has a period of three months
in which to inform the Ombudsman of its views. The Ombudsman shall then forward a report
to the European Parliament and the institution, body, office or agency concerned. The person
lodging the complaint is informed of the outcome of such inquiries. It deals with issues of
transparency, accountability, culture of service, lobbying, access to documents, citizen’s
participation in EU’s policy making. All this is closely related to fundamental rights given
that the Charter establishes in its Article 41 a right to good administration. Moreover, the
Ombudsman regularly deals with equality, non-discrimination and the right to be heard.60 The

56
European Union Agency for Fundamental Rights, ‘Bringing rights to life: The fundamental rights
landscape of the European Union’ (FRA 2012) 27.
57
For a rich sample of academic assessments of the FRA see the contributions in Rosemary
Byrne and Han Entzinger (eds), Human Rights Law and Evidence-Based Policy. The Impact of the EU
Fundamental Rights Agency (Routledge 2019).
58
See Optimity, ‘2nd independent External Evaluation of the EU Agency for Fundamental Rights’
(Optimity, 2017) https://fra.europa.eu/sites/default/files/fra_uploads/2nd-fra-external-evaluation-october
-2017_en.pdf accessed 4 January 2023.
59
An EU agency is no EU institution in the sense of Art. 13 (1) TEU.
60
In 2019 the Ombudsman registered 2,171 complaints. For 40 per cent of these she could provide
advice, for another 40 per cent no advice could be given and in 20 per cent of the complaints an inquiry
was opened. European Ombdsman, ‘Annual Report 2019’ (Report, European Ombudsman 2020).
The EU human rights regime: development, actors, policy framework and effectiveness 421

majority of complaints reaching the Ombudsman are directed against the EU Commission.
Maladministration at national level cannot be addressed by the Ombudsman.

2.7 The European Data Protection Supervisor and other actors

EU primary law puts special emphasis on everyone’s right to data protection.61 The treaty even
obliges the EU legislator to adopt rules protecting individuals with regard to the processing of
personal data. The compliance with these rules shall be subject to the control of independent
authorities.62 At the national level national data protection authorities watch over the data
protection rules while at the EU level this is done by the European Data Protection Supervisor
(EDPS).
EU institutions may consult the EDPS via their Data Protection Officers (DPOs). In some
cases these consultations are mandatory. Where an individual thinks her or his rights have been
infringed by an EU institution processing personal information, they can lodge a complaint
with the EDPS to investigate it. The EDPS also provides an independent secretariat to the
European Data Protection Board which is an independent body that promotes the cooperation
between the national Data Protection Authorities and contributes to the consistent application
of EU data protection rules for instance by issuing opinions.63
Other relevant actors include the European Institute for Gender Equality, an EU agency
based in Wilnius. Finally, all other EU actors may also explicitly engage with fundamental
rights. Interesting is for example the Ad hoc group on Fundamental Rights and the Rule of
Law which was established in 2018 within the European Economic and Social Committee.64

3. THE EU’S TOOL BOX FOR FUNDAMENTAL RIGHTS

POLICIES

3.1 No Overall EU Policy Framework (yet)

Unlike the EU’s external policies where the EU disposes since 2012 over a strategic frame-
work and an action plan on human rights,65 for the EU’s internal policies there is no such
overall policy framework in place that would guide whatever the EU does within its territory
and vis-à-vis its Member States.

61
Art.16 (1) TFEU and Art. 8 of the Charter.
62
Art. 16 (2) TFEU.
63
Art. 64 of the Regulation (EU) 2016/679 of 27 April 2016 on the Protection of natural persons with
regard to the processing of personal data and on the free movement of such data, and repealing Directive
95/46/EC (General Data Protection Regulation) [2016] OJ L119/1.
64
See basic information available here European Economic and Social Committee, ‘Ad hoc group on
Fundamental Rights and the Rule of Law’ (EESC, 2021) https://www.eesc.europa.eu/en/sections-other
-bodies/other/ad-hoc-group-fundamental-rights-and-rule-law accessed 4 January 2023.
65
To implement the EU Strategic Framework of 2012, the EU has adopted two EU Action Plans
(2012–2014 and 2015–2019). For the current action plan see Council document 12848/20 of 18
November 2020 on EU Action Plan on Human Rights and Democracy 2020-2024 [2020] JAI 976.
See for a recent example how human rights are mainstreamed into foreign policies: Council document
6324/21 of 22 February 2021on Council conclusions on a human-rights-based post-COVID-19 recovery
[2021] COHOM 31.
422 Research handbook on the politics of human rights law

However, the European Commission has, since 2010, published an annual report on the
implementation of the Charter within the EU.66 The Council started to annually assess this
report in Council Conclusions stating in 2013 that this exercise ‘could gradually lead to
a Union internal strategy on fundamental rights, possibly through an action plan on a mid-term
basis, regarding the respect and promotion of the Charter’.67 Whereas this step has so far not
been taken, we recently witnessed an unprecedented avalanche of EU strategies and action
plans aimed at protecting and promoting fundamental rights in specific policy fields.
2019 and 2020 saw the adoption of three horizontal instruments reflecting the three key EU
values of fundamental rights;68 rule of law69 and democracy.70 In addition to these strategies,
the EU has adopted a set of around ten thematic strategies or action plans dealing with certain
vulnerable groups such as children,71 Roma,72 LGTBIQ persons,73 persons with disabilities74
or specific policy areas such as gender,75 anti-racism,76 integration and inclusion77 or victims’
rights.78 Under each of these strategies the EU envisages sets of legal norms and policy tools
to be adopted at subnational, national or EU levels. These new policy frameworks contain
a variety of elements showing that the EU disposes over a rich toolbox that can be used for the
protection and promotion of fundamental rights.

66
The European Commission announced that from the tenth edition onwards (2021) the reports will
have a slightly different format and be focused on an annual theme. The past reports are available online
here: European Commission, ‘Annual reports on the application of the Charter: Annual reports on the
application of the EU Charter of Fundamental Rights’ (European Commission, 2021) https://ec.europa
.eu/ info/ aid -development -cooperation -fundamental -rights/ your -rights -eu/ eu -charter -fundamental
-rights/application-charter/annual-reports-application-charter_en accessed 4 January 2023.
67
Council document (EU) 10116/14 of 21 May 2013 on Conclusions on the Commission 2013 report
on the application of the EU Charter of Fundamental Rights and the consistency between internal and
external aspects of human rights’ protection and promotion in the European Union [2014] JAI 239, para
24.
68
European Commission document COM (2020)711 final of 2 December 2020 on a Strategy to
strengthen the application of the Charter of Fundamental Rights in the EU [2020]; see also European
Commission document COM (2021)102 final of 4 March 2021 on the European Pillar of Social Rights
Action Plan [2021].
69
European Commission document COM (2019) 343 final of 17 July 2019 on Strengthening the rule
of law within the Union A blueprint for action [2019].
70
European Commission document COM(2020) 790 final 3 December 2020 on the European
Democracy Action Plan [2020].
71
European Commission document COM(2021) 142 final of 24 March 2021 on an EU strategy on
the rights of the child [2021].
72
European Commission document COM(2020) 620 final of 7 October 2020 on A Union of
Equality: EU Roma strategic framework for equality, inclusion and participation [2020].
73
European Commission document COM(2020) 698 final of 7 October 2020 on Union of Equality:
LGBTIQ Equality Strategy 2020–2025 [2020].
74
European Commission document COM(2021)101 final of 3 March 2021 on European Disability
Rights Strategy [2020].
75
European Commission document COM (2020) 152 final of 5 March 2020 on A Union of Equality:
Gender Equality Strategy 2020–2025 [2020].
76
European Commission document COM (2020) 565 final of 18 September2020 on A Union of
equality: EU anti-racism action plan 2020–2025 [2020].
77
European Commission document COM(2020) 758 final of 24 November 2020 on an Action plan
on Integration and Inclusion 2021–2027 [2020].
78
European Commission document COM (2020) 258 final of 24 June 2020 on a EU Strategy on
victims’ rights (2020–2025) [2020].
The EU human rights regime: development, actors, policy framework and effectiveness 423

Simplifying one could distinguish between five types of legal and/or political intervention
at EU level. Where the EU has sufficient legal competences it can harmonise areas of law
(hard law) thereby establishing a level playing field across the EU territory. Secondly, it can
influence and streamline the national context by issuing soft law measures such as recommen-
dations. It can, thirdly, set in place new mechanisms that lead to increased levels of exchange
and coordination both vertically (between the States and the European Commission) as well as
horizontally between the States. Fourthly, the EU can provide financial stimuli and fund rele-
vant projects at national level. Moreover, the EU is linking EU funding with strict conditional-
ity. Last but not least, the EU can collect relevant data or engage in communication activities
promoting a more fundamental rights compliant reality. In the following sections these five
types of interventions will be briefly presented while pinpointing to upcoming EU activities.

3.2 The EU as a Fundamental Rights Legislator

International organisations provide a forum where States can agree on international

Conventions which are then ratified and transposed into national law. The EU is quite different
in that context. The EU -treaties (EU primary law) have established political EU institutions
that themselves produce hard law via EU legislation (EU secondary law). While not having
a general human rights competence as such, the EU is equipped with strong legislative com-
petences in fields that are of key relevance for human rights. This competences basis includes
for instance Article 16 TFEU allowing the EU legislator to develop harmonised and legally
binding standards in the area of data protection. Article 19 TFEU allows the EU legislator to
do the same in the area of non-discrimination. Article 21 TFEU provides the legal basis for
the EU to rule on the conditions of the right to move and reside freely across the EU. And
Article 79 TFEU serves as legal basis for EU legislation on the conditions of entry and resi-
dence; family reunification; the rights of third-country nationals residing legally; the removal
and repatriation of persons; or combating human trafficking. Finally, the EU legislator may
establish EU rules on the rights of individuals in criminal procedures and the rights of victims
of crime (Art. 82 TFEU).
In all these areas the EU has exercised strong influence on the national legal systems by
adopting countless pieces of EU legislation. Unlike international law, EU law overrides
national law, including national provisions of constitutional rank. Next to this ‘supremacy’,
EU law can also have direct effects so that individuals can directly invoke EU law provisions
before national courts. This supranational character of EU law distinguishes EU law from
classical international law.
Space does not allow the provision of an overview of the wide spectrum of EU fundamental
rights legislation.79 But EU legislation in the area of fundamental rights is set to continue. The
Democracy Action Plan announces EU legislation on political advertising, a revision of regu-
lation 1141/2014 on statute and funding of European political parties and political foundations
and an EU directive on Strategic Lawsuit Against Public Participation (SLAPP) to protect
journalist against malign judicial proceedings.
The recent Gender Equality Strategy announces EU legislation extending the current EU
crimes (Art. 83(1) TFEU) to cover forms of gender-based violence. It also announces binding

79
See for instance for the rights of the child: European Commission (2021), EU aquis and policy
documents on the rights of the child, Annex to the EU Strategy on the Rights of the Child.
424 Research handbook on the politics of human rights law

measures on pay transparency and the adoption of the 2012 proposal for a Directive on
improving the gender balance on corporate boards (40 per cent of non-executive members).
The recent EU antiracism action plan announces future EU legislation on the role and inde-
pendence of equality bodies. The LGTBIQ strategy calls for the revision of the Employment
Directive and announces EU legislation that will extend the list of EU crimes (Art. 83 TFEU)
to cover hate crime and speech. The Action Plan on Integration and Inclusion proposes
a European Child Guarantee to fight poverty and social exclusion among the EU’s most
disadvantaged children, including children with a migrant background. The Victims Strategy
refer to the option for the EU to adopt legislation on minimum standards on victims’ physical
protection. Finally, the European Commission announced for 2022 a proposal for a European
Media Freedom Act building on the revised Audiovisual Media Services Directive.

3.3 The EU as a Provider of Soft Law Recommendations

Where the EU lacks a legal mandate or the political will to adopt legally binding legislation,
it can influence Member States by adopting soft law recommendations. Most often such are
adopted by the European Commission. The Recommendation on Roma equality, inclusion
and participation provides an example of an instrument adopted by the Council of the EU:
in February 2021 all the Ministers of all EU Member States agreed what specific measures
Member States need to take in order to achieve the relevant EU objectives in the area of Roma
integration.80
While, legally speaking, recommendations are not binding, they can have, politically
speaking, bite. This is especially the case if they are linked to an overall policy and monitoring
framework as is for instance the case for the European Semester where the ‘country-specific
recommendations’ provide tailored advice to individual Member States. While they focus on
how to boost jobs, growth and investment, they also address some fundamental rights issues
such as for instance social protection, efficiency of the judiciary or child poverty. In the area
of the rule of law, the European Commission’s annual rule of law report81 will as of 2022 have
country-specific recommendations for all EU-Member States.
The EU is also issuing theme-focused recommendations thereby developing soft law in
certain areas. The European Pillar of Social Rights establishing 20 key principles essential
for fair and well-functioning labour markets and welfare systems is a prominent example in
that regard.82 The Gender Equality Strategy announces a recommendation on the prevention
of harmful practices in the area of gender-based violence and the LGTBIQ strategy announces
a recommendation on the prevention of harmful practices against women and girls. It also
proposes to revise the 2009 guidelines on free movement so to reflect the diversity of families
facilitating thereby free movement. The EU antiracism action plan envisages that the existing

80
Information and Notices 2021/C 93/01 of 12 March 2021 on Council Recommendation of 12
March 2021 on Roma equality, inclusion and participation [2021] OJ C93/1.
81
The annual report comes along with a dedicated dialogue with all Member States who are called
upon to designate ‘national contact points’ for this dialogue and the ongoing exchange of information
between the States and the Commission. The Commission expects the European Parliament and the
Council to organise annual follow-up discussions based on its report. The first rule of law report was
published in September 2020.
82
European Commission document C(2017) 2600 final of 26 April 2017 on the European Pillar of
Social Rights [2017].
The EU human rights regime: development, actors, policy framework and effectiveness 425

Working Group on hate crime recording develops key guiding principles how to encourage
victims to report hate crimes.
The Democracy Action Plan announces EU guidance on transparency of media ownership
and guidance for strengthening the existing Code of Practice on Disinformation.

3.4 The EU as a Provider of Mechanisms of Exchange and Coordination

The complex EU institutional machinery puts a group of close to 30 States in a very dense net
of cooperation at all layers of government, ranging from the Ministers dealing with the big
picture down to the civil servants working on the details. This – in an unheard of international
comparison– cooperation, exchange and coordination is also used in the area of fundamental
rights to allow for mutual learning and the exchange of promising practices. The following
examples of upcoming EU activities serve to make this more palpable.
The EU Charter strategy invites the Member States to nominate ‘Charter focal points’ in
their administration so to ease coordination and cooperation in the context of the application
of the EU Charter of fundamental rights. National parliaments are invited to enter with
the European Parliament in a new interparliamentary cooperation on the application of the
Charter. Member States are invited to share their practices regarding the application of the
Charter on the European e-Justice Portal, a Commission webtool.
The LGTBIQ Strategy announces the establishment of a new working group on hate-crime
training and capacity-building for law enforcement. Thereby the EU will provide closer coop-
eration between CEPOL, Member States and civil society.
The Gender Equality Strategy announces the launch of a new network on the prevention
of gender-based violence and domestic violence. The Victims Strategy announces a Victims’
Rights Platform and the Antiracism Action the establishment of a regular consultation and
dialogue.
The Action plan on Integration and Inclusion refers to the option to develop a joint (EU
and Member State) ‘scoreboard’ of integration policies in order to support comparison across
countries and the identification of areas where progress is needed and exchange of good prac-
tices. To ensure full transparency on the implementation of the action plans, the Commission
announced an interactive online platform to monitor progress and allow for contributions from
a wider range of partners.
The Democracy action plan announces a new operational network building on the European
Cooperation Network on Elections, the setting up of an expert group on SLAPPs, the creation
of a Media Ownership Monitor as well as the establishment of a permanent framework for the
monitoring of the code of practice on disinformation. The EU will also present a compendium
of e-voting practices.

3.5 The EU Providing Financial and Practical Support

The EU has many decades of experience in funding human rights relevant projects in third
countries. Providing funding schemes from projects of fundamental rights relevance within
EU Member States is a much younger phenomenon. The EU funds available for fundamental
rights relation action have recently been doubled. The new ‘Citizens, Equality, Rights &
Values’ (CERV) programme offers 1.55 billion for the next seven-year period thereby pre-
senting the biggest-ever EU fund in this area (292 million are available alone in 2021–22).
426 Research handbook on the politics of human rights law

The programme aims at providing funding opportunities to civil society organisations active
at local, regional, national and transnational level engaged in upholding EU values and rights
across and focuses on four pillars: 1. the protection and promotion of Union values; 2. The
promotion of rights, non-discrimination and equality; 3. citizens’ engagement and participa-
tion; the prevention of and fight against gender-based violence and violence against children.83
Seen that the overall EU budget for the years 2021–2027 is over a thousand billion, it is not
only relevant, whether the EU earmarks funds for the promotion of fundamental rights but also
whether it makes sure that the rest of the EU budget is not spent in a manner that is contrary
to fundamental rights. Against, this background the fundamental rights conditionality in EU
budgeting was substantially strengthened. All EU funding under seven of the big EU funds
has to undergo throughout the programme and project cycle checks to ensure that it is in line
with the EU Charter of fundamental rights and the UN Convention on the Rights of Persons
with Disabilities (CRPD) to which the EU is itself a party.84 Practice will show how effi-
ciently this new conditionality can be implemented by the so called ‘Managing Authorities’
at national level. Another novelty is the ‘general regime of conditionality for the protection of
the Union budget’ which will allow the EU to take measures – such as the suspension of EU
funds – where a Member State breaches the principles of the rule of law in a way that affects
or seriously risks affecting ‘the sound financial management of the Union budget or the pro-
tection of the financial interests of the Union in a sufficiently direct way’.85 The mechanism
was first triggered in April 2022 against Hungary because of suspected corruption and public
procurement issues.

3.6 The EU Providing Data and Visibility

Where the EU has the relevant capacities it can assist Member States with the collection of
data and analysis. In the area of fundamental rights this happens especially through the agen-
cies FRA and EIGE but also through studies and data generated within the EU institutions.
This will also continue in the future; the various new EU strategies refer to these options. The
Gender Equality Strategy envisages an EU-wide survey on violence against women as well

83
The new CERV programme builds on the two predecessor programmes ‘Rights, Equality,
Citizenship‘ and ‘Europe for citizens’ which together supported the total number of 2,887 projects bring-
ing together 15,777 organisations over the course of seven years. See for more information European
Commission document C(2021) 2583 final of 19 April 2021 implementing decision on the financing
of the Citizens, Equality, Rights and Values Programme and the adoption of the multiannual work pro-
gramme for 2021–2022 [2021].
84
See Regulation (EU) 2021/1060 of 24 June 2021 laying down common provisions on the European
Regional Development Fund, the European Social Fund Plus, the Cohesion Fund, the Just Transition
Fund and the European Maritime, Fisheries and Aquaculture Fund and financial rules for those and for
the Asylum, Migration and Integration Fund, the Internal Security Fund and the Instrument for Financial
Support for Border Management and Visa Policy [2021] OJ L231/159, Art. 9(1), Art. 73(1) and Annex
III.
85
See Regulation 2020/2092 of 16 December 2020 on a general regime of conditionality for the pro-
tection of the Union budget [2020] OJ L433 I/1. Hungary and Poland tried to bring the regulation to fall
but the CJEU found these actions for annulment unfounded. See Case C-156/21 Hungary v Parliament
[2022] and Council, and Case C-157/21 Poland v Parliament and Council [2022]. The mechanism was
first triggered in April 2022 against Hungary because of suspected corruption and public procurement
issues.
The EU human rights regime: development, actors, policy framework and effectiveness 427

as an EU-wide communication campaign combatting gender stereotypes. The anti-racism

action plan announces that the statistical office of the EU will run in the regular EU-Labour
Force Survey (EU-LFS) a special module on the labour market situation of migrants including
aspects of discrimination. The revised strategic Roma framework envisages that FRA will
carry out a regular Roma survey every four years and the action plan on integration and inclu-
sion announces the launch of a new Eurobarometer on integration as well as regular reports
analysing progress and highlighting areas of common challenges and policy developments in
the Member States.
The EU can throw light on certain fundamental rights issues also by convening summits or
through other tools increasing the visibility of an issue. For instance, the anti-racism action
plan announces that the European Commission will organise, in cooperation with the UEFA
Foundation, football festivals targeting young migrants in host cities of the next European
football championship and finance projects to raise awareness on facts and figures and main
trends of integration and migration for journalists and journalism schools. And the integration
action plan announces an integration award for schools, local communities, artistic and cul-
tural organisations, and sports and youth clubs to recognise their contribution to integration
and inclusion.

4. THE EU’S EFFECTIVENESS AND IT’S DEPENDENCE ON

NATIONAL ACTORS

4.1 Test Case Anti-discrimination: Incomplete Legislation and Implementation

Deficit

A look in the current EU treaties testifies to the prominence of equality which is according to
Article 2 TEU a founding value of the EU. Whatever EU actors do, they have to ‘observe the
principle of the equality of its citizens’ (Art. 9 TEU) and to ‘aim to eliminate inequalities, and
to promote equality, between men and women’ (Art. 8 TFEU).86 More generally ‘in defining
and implementing its policies and activities, the Union shall aim to combat discrimination
based on sex, racial or ethnic origin, religion or belief, disability, age or sexual orientation’.
Finally, the EU treaties provide in Article 19 TFEU a specific legislative competence allowing
the EU to harmonise antidiscrimination law across the 27 Member States.
The references to gender equality and equal pay in the treaty were soon given life by adopt-
ing EU legislation in that regard. Various directives protect women from unfair treatment in
employment, in social protection, access to goods and services and education.87 Later, in 2000,

86
See also Art. 153 (1) lit. i) and Art. 157 (4) TFEU. See also the text of the Declaration on Art. 8
TFEU attached to the EU Treaties testifying that the Head of States and government agree that:
in its general efforts to eliminate inequalities between women and men, the Union will aim in its
different policies to combat all kinds of domestic violence. The Member States should take all nec-
essary measures to prevent and punish these criminal acts and to support and protect the victims.
87
See e.g., Council Directive 2004/113/EC of 13 December 2004 implementing the principle of
equal treatment between men and women in the access to and supply of goods and services [2004] OJ
L373/37, Council Directive 2006/54/EC of 5 July 2006 on the implementation of the principle of equal
opportunities and equal treatment of men and women in matters of employment and occupation (recast)
[2006] OJ L204/23, and Council Directive 2010/41/EU of 7 July 2010 on the application of the principle
428 Research handbook on the politics of human rights law

the EU adopted the Racial Equality Directive88 which prohibits discrimination based on eth-
nicity in these areas. In the same year the Employment Directive89 was adopted which protects
in one single area – that of employment – against many different forms of discrimination,
namely, discrimination based on religion, age, disability and sexual orientation. The CJEU
case law has complemented this legislative success and further refined the legal standards as
provided by this modern corpus of EU legislation.90
Back in 2008 the European Commission proposed to extend EU legislation in a way that
discrimination based on the four protected grounds would be forbidden not only in employ-
ment but also other areas of life. However, the legislative process for the adoption of this
‘Equal treatment directive’ came to a halt. It will be soon 15 years since the proposed Equal
treatment directive was blocked in the Council leaving the current situation of EU legislation
hanging in an artificial ‘hierarchy’ of protected grounds of discrimination. EU law does not
provide protection against discrimination based on religion, age, disability or sexual orienta-
tion outside employment. However, evidence suggests that in these areas a protection need
exists.91 The concerns of those Member States that still oppose the directive relate to the legal
certainty of the proposed directive and the possible implications of the directive, including the
financial costs.92
But problems remain also where EU legislation was adopted. FRA’s large-scale surveys
carried out amongst ethnic minorities, Muslims, Jews or LGTBIQ persons show little progress
over the last years. The figures remain rather alarming for the situation falling under the
Racial Equality Directive as well as for the situation covered by the Employment Directive.
Moreover, the European Commission underlines also other concerns such as victims’ fear of
retaliation, low and diverging levels of compensation, shortage of data and evidence and little
awareness of rights and of support mechanisms including by equality bodies. These shortcom-
ings all contribute to the under-reporting of cases of discrimination. The enforcement of rights
laid down in EU legislation is thus a problem.
Also, with regard to the ‘bodies for the promotion of equal treatment’ (equality bodies) to be
established under EU legislation,93 the situation is ambivalent. Member States are obliged to
meet the minimum requirements set out by the EU Directives, but they have a wide margin of

of equal treatment between men and women engaged in an activity in a self-employed capacity and
repealing Council Directive 86/613/EEC [2010] OJ L180/1.
88
Council Directive 2000/43/EC of 29 June 2000 implementing the principle of equal treatment
between persons irrespective of racial or ethnic origin [2000] OJ L180/22.
89
Council Directive 2000/78/EC of 27 November 2000 establishing a general framework for equal
treatment in employment and occupation [2000] OJ L303/16.
90
For instance, the Court accepted the notion of discrimination by association: submitting the mother
of a disabled child to a disadvantage based on the disability of her child and the needs of care coming
with that disability is to be considered discrimination even if it is not the mother herself who has the
disability. See Case C-303/06 Coleman v. Attridge Law and Steve Law [2008] ECR I - 5615.
91
See e.g., the evidence presented in European Union Agency for Fundamental Human Rights,
Equality in the EU 20 years on from the initial implementation of the equality directives’ (Report, FRA
2021), Opinion 1/21.
92
See Council document 9567/1/19REV 1 of 27 May 2019 Progress report on the Proposal for
a Council Directive on implementing the principle of equal treatment between persons irrespective of
religion or belief, disability, age or sexual orientation [2019] JAI 564.
93
Art. Directive2000/43/EC, Art. 12 Directive 2004/113/EC, Art. 20 of Directive 2006/54/EC, Art.
11 of Directive 2010/41/EU.
The EU human rights regime: development, actors, policy framework and effectiveness 429

discretion when designing the structure and functioning of their equality bodies. This has led
to a great diversity in the mandate, functions, structures, independence and resources allocated
to equality bodies with a considerable number of them remaining below the potential of such
a body. For this reason the Commission recommended common standards for equality bodies
in 2018. However, in its 2021 implementation report the European Commission expressed the
concern that many of these recommendations remained ignored at national level.94

4.2 Test Case Immigration: Lack of Solidarity and Implementation Deficit

Already in 1999, with the entry into force of the treaty of Amsterdam, the migration-related
policy fields were moved from the intergovernmental method of governance (former ‘third
pillar’) to the Community method (former ‘first pillar’). This provided, in principle, the basis
for efficient law and policy making. The Community method allows for qualified majority
voting, rather than unanimity requirement in the Council. It provides a monopoly of the initi-
ative for the European Commission and full jurisdiction for the CJEU.95
Article 79 TFEU envisages that the EU develops ‘a common immigration policy aimed
at ensuring, at all stages, the efficient management of migration flows, fair treatment of
third-country nationals residing legally in Member States, and the prevention of, and enhanced
measures to combat, illegal immigration and trafficking in human beings’. Article 67(2) TFEU
clarifies that such an obligation applies not only to those who are ‘legally resident’ but third
countries in general, irrespective of their migratory status.
For the area of asylum the European Council agreed in 1999 in its Tampere conclusions to
establish a proper Common European Asylum System. Ten years later the Treaty of Lisbon
entered into force integrating this objective in treaty law while underlining in Article 78 TFEU
that this set of EU policies must offer an ‘appropriate’ status, ensure ‘compliance with the
principle of non-refoulement’ and remain ‘in accordance with the Geneva Convention of 28
July 1951 and the Protocol of 31 January 1967 relating to the status of refugees, and other
relevant treaties’.
Based on this treaty mandate, the EU legislator was prolific. Over 50 EU regulations and
directives are in force. Similarly active was the CJEU. Since 2006, it has adjudicated over 185
cases in the relevant fields. Without doubt the amount of EU legislation adopted in the last 20
years testifies that the EU layer of governance has become the place to go when it comes to
dealing with issues of immigration and asylum in Europe. In the context of irregular migra-
tion the EU legislator successfully agreed on EU-wide standards when returning irregular

94
European Commission document COM(2021) 139 final of 19 March 2021 on the application of
Council Directive 2000/43/EC implementing the principle of equal treatment between persons irrespec-
tive of racial or ethnic origin (‘the Racial Equality Directive’) and of Council Directive 2000/78/EC
establishing a general framework for equal treatment in employment and occupation (‘the Employment
Equality Directive’) [2021].
95
However this shift came along with transitional periods and it was only with the Lisbon Treaty
that this process was completed resulting for instance in the CJHEU gaining full jurisdiction and thereby
a major role in influencing EU asylum law.
430 Research handbook on the politics of human rights law

migrants,96 reacting to their employment97 or prohibiting and criminalising the facilitation

of their unauthorised entry98 and the trafficking of persons.99 EU legislation is even richer in
the area of asylum where EU law determines the key questions of asylum law such as the
Member State responsible for the asylum procedure,100 the reception conditions,101 the asylum
procedures,102 the qualification for protection103 or temporary protection.104 Given the rapidly
growing body of EU legislation in the areas of immigration and asylum, national law was
increasingly harmonised by ‘Brussels’. Without doubt the EU legislative proposals put either
fundamental rights at their centre or – when starting to become far more restrictive with the
third wave of the establishment of the Common European Asylum System – provided at least
for fundamental rights exceptions and other fundamental rights provisions.
This rather positive picture changes however if we turn the page from the law in the books to
the situation in real life. Instead of many other shortcomings it suffices to recall the scandalous
situation in the ‘hotspots’ on the Greek islands. Since 2015 tens of thousands of persons are
detained in these ‘Reception and Identification Centres’ co-financed by the EU. From reports
by countless governmental and non-governmental organisations it has become very clear that
the conditions in the hotspots are entirely unacceptable in a EU that proclaims to be based on
fundamental rights: risk for life and integrity, overcrowding, lack of hygiene, sexual violence,
misuse of children are a day to day reality for third-country nationals living on certain islands
where EU citizens traditionally enjoy their sunny holidays. What is worse: the situation did
not and does not change but became systemic and thus risks portraying an indifference of the
EU and its Member States towards the rights of persons living in the EU. In 2016, FRA for-
mulated 21 recommendations to address the fundamental rights shortcomings identified in the

96
Return Directive 2008/115/EC of 24 December 2008 on common standards and procedures in
Member States for returning illegally staying third-country nationals [2008] OJ L348/98.
97
Employers Sanctions Directive 2009/52/EC of 30 June 2009 providing for minimum standards
on sanctions and measures against employers of illegally staying third-country nationals [2009] OJ
L168/24.
98
Facilitation Directive 2002/90/EC of 5 December 2002 defining the facilitation of unauthorised
entry, transit and residence [2002] OJ L328/17.
99
Trafficking Directive 2011/36/EU of 15 April 2011 on preventing and combating trafficking in
human beings and protecting its victims, and replacing Council Framework Decision 2002/629/JHA
[2011] OJ L101/1.
100
Dublin Regulation (EU) No. 604/2013 of 29 June 2013 establishing the criteria and mechanisms
for determining the Member State responsible for examining an application for international protection
lodged in one of the Member States by a third-country national or a stateless person (recast) [2013] OJ
L180/31.
101
Reception Conditions Directive 2013/33/EU of 29 June 2013 laying down standards for the recep-
tion of applicants for international protection [2013] OJ L180/96.
102
Directive 2013/32/EU of 29 June 2013 on common procedures for granting and withdrawing
international protection (recast) [2013] OJ L180/60.
103
Qualification Directive 2011/95/EU of 20 December 2011 on standards for the qualification of
third-country nationals or stateless persons as beneficiaries of international protection, for a uniform
status for refugees or for persons eligible for subsidiary protection, and for the content of the protection
granted (recast) [2011] OJ L337/9.
104
Temporary protection directive 2001/55/EC of 7 August 2001 on minimum standards for giving
temporary protection in the event of a mass influx of displaced persons and on measures promoting
a balance of efforts between Member States in receiving such persons and bearing the consequences
thereof [2001] OJ L212/12.
The EU human rights regime: development, actors, policy framework and effectiveness 431

implementation of the hotspot approach in Greece and Italy.105 In 2019 the agency came back
to the issue: but, out of 21 recommendations only three had been addressed in the meantime.106
Also beyond the hotspots, the relative success of the Common European Asylum System
on paper does not meet the expectation in practice. It appears widely recognised that there is
a substantial implementation deficit at national level.107 In real life the levels of harmonisation
of reception conditions and protection offered are limited, which leads to a phenomenon that
should not exist in the logic of the Common European Asylum System: movements of asylum
seekers across the EU (so called ‘secondary movements’). The lack of implementation of EU
legislation comes with a number of fundamental rights risks ranging over the full migration
spectrum from illegal push backs at the borders to insufficient reception conditions.108 The
second major shortcoming is political rather than legal in nature: not even when confronted
with large numbers of refugees in 2015 were the Member States able to develop sufficient
levels of solidarity that would have allowed the EU to develop efficient mechanisms of fair
and burden sharing. All in all the EU-system (as built by the EU and its Member States) did not
succeed in showing a resilient fundamental rights profile in the area of asylum and migration
when confronted with the (well-announced) ‘migration crisis’ of the year 2015.109 The quick
EU reaction in providing temporary protection to all refugees in the context of the recent
Ukraine-crisis is a positive example.110 It is unfortunately counterbalanced by other elements
such as for instance forms of increasing violence at European borders with which the EU will
be associated – whether it is co-responsible or not.111

4.3 What Can be Concluded: The Costs of Interdependence

The EU is as good as the Member States want it to be. It operates on the basis of the EU treaties
and the masters of these treaties are the Member States. Where there is no treaty-base for the
EU to legislate, it will not legislate. Where it can adopt legislation only by unanimity, as in the

105
European Union Agency for Fundamental Rights, ‘Opinion of the European Union Agency for
Fundamental Rights on the fundamental rights in the “hotspots” set up in Greece and Italy’ (Report, FRA
2016).
106
European Union Agency for Fundamental Rights, Update of the 2016 Opinion of the European
Union Agency for Fundamental Rights on fundamental rights in the “hotspots” set up in Greece and Italy,
February 2019’ (Report, FRA 2019).
107
See e.g., Philippe De Bruycker, Marie De Somer, Jean-Louis De Brouwer (eds), From Tampere 20
to Tampere 2.0: Towards a New European Consensus on Migration (European Policy Centre 2019).
108
See for a recent look at issues across the EU: European Union Agency for Fundamental Rights,
‘Migration: Key fundamental rights concerns – Quarterly Bulletin (covering the situation at the end of
end of 2020)’ (Report, FRA 2021).
109
See e.g., Mykolas Romeris, ‘EU in the face of migrant crisis: Reasons for ineffective human rights
protection’ (2016) 2 International Comparative Jurisprudence 93.
110
See Council Implementing Decision (EU) 2022/382 of 4 March 2022 establishing the existence of
a mass influx of displaced persons from Ukraine within the meaning of Article 5 of Directive 2001/55/
EC, and having the effect of introducing temporary protection [2022] OJ L 71/1.
111
The UNHCR has recorded almost 540 reported incidents of ‘informal returns’ of asylum seekers
only in Greece since the beginning of 2020. See UNHCR warns of increasing violence and human rights
violations at European borders, UNHCR, ‘News Comment: UNHCR warns of increasing violence and
human rights violations at European borders’ (UNHCR, 21 February 2022) https://www.unhcr.org/news/
press/ 2022/ 2/ 62137a284/ news -comment -unhcr -warns -increasing -violence -human -rights -violations
-european.html accessed on 22 February 2022.
432 Research handbook on the politics of human rights law

case of anti-discrimination, it will be very difficult for the EU to move forward. And where
there is no strong commitment by the Member States to implement EU law in daily practice
and at local and regional levels, EU law and policies risk being undermined.
In an interconnected system as the EU is, buy-in by the Member States is needed ‘upstream’
when adopting EU legislation and ‘downstream’ when implementing the latter. Given that
EU law is implemented by national authorities, this second aspect is key. And both examples
presented suggest that the EU suffers from an implementation and execution deficit. Even
the tool designed to combat non-implementation – the infringement procedures according
to Article 258 TFEU – has its limitations. Wherever a Member State has failed to fulfil an
obligation under the Treaties, the Commission can launch an infringement proceeding. While
the Commission is obliged to ensure the application of EU law, it has a certain margin of dis-
cretion whether or not to go down this avenue. Typically the European Commission will focus
on the ‘easy’ forms of non-implementation. Given the difficulty for the European Commission
to follow the factual developments in all the 27 Member States, including at local level, most
infringement proceedings focus on violations that are visible already in the law of the Member
States (for instance adopting legislation that is not in line with an EU Directive) rather than on
violations entrenched in an administrative practice or resulting from a complex combination of
problematic developments which – if seen in isolation – remain below the threshold of a clear
violation of EU law. Most probably, to cover more widely all fundamental rights violations,
the European Commission would need to have available large-scale data regularly collected
across all EU Member States.112
In addition, it appears that the European Commission does not want to put its traditionally
impressive success rate in winning infringement procedures at risk by launching many proce-
dures in uncharted waters such as the rule of law.113 Moreover, it was observed that over time
the amount of infringement procedures brought before the CJEU has significantly decreased
– a trend that could be explained with the successful elimination of the disagreement between
the Commission and the Member States or the lack of resources.114 An additional explanation
would be that the European Commission has developed a more agenda-setting and thus
political profile moving the institution away from the notion of an independent technical body
focused on its function as watchdog of the EU treaties.
But, obviously, it is not only the EU who can do more. The EU and the States have to
mutually ‘assist each other in carrying out tasks which flow from the Treaties’ and the Member
States are called upon under the EU treaty to ‘take any appropriate measure, general or particu-
lar, to ensure fulfilment of the obligations arising out of the Treaties or resulting from the acts

112
Olivier de Schutter, ‘Infringement procedures as a tool for the enforcement of fundamental rights
in the European Union’ (Report, Open Society European Policy Institute 2019).
113
See Daniel Hegedüs, ‘What role for EU institutions in confronting Europe’s democracy and rule
of law crisis?’ (Policy Paper, German Marshall Fund of the United States 2019). See also already Agnes
Batory, ‘Defying the Commission: Creative compliance and respect for the rule of law in the EU’ (2016)
94(3) Public Administration 685. See also recently Laurent Pech, Patryk Wachowiec, Dariusz Mazur,
‘Poland’s rule of law breakdown: A five-year assessment of EU’s (in)action’ (2021) 13 Hague J Rule
Law 1.
114
The cases referred to the CJEU have decreased from 212 in 2007 to 31 in 2016. See Gerda
Falkner, ‘A causal loop? The Commission’s new enforcement approach in the context of non-compliance
with EU law even after CJEU judgments’ (2018) 40(6) Journal of European Integration 769, DOI:
10.1080/07036337.2018.1500565.
The EU human rights regime: development, actors, policy framework and effectiveness 433

of the institutions of the Union’.115 Arguably, loyalty is a non-legal pre-condition for sincere
cooperation that is difficult to enforce with legal means. The rule of law crisis becoming sys-
temic in Hungary and Poland shows the difficulties in enforcing general value commitments.
While the new rule of law framework of the EU is an important contribution to strengthen the
rule of law culture within the EU, it is as a dialogue-based tool not likely to have a decisive
effect on deviant Member States who are not just negligent in the context of the rule of law
but who rather took a clear political decision to systemically depart from the rule of law under-
standing as is shared by the rest of the EU.116 In that sense the EU suffers from an enhanced
Böckenförde-dilemma. If already the national liberal State ‘lives by prerequisites which it
cannot guarantee itself’,117 this is even more so the case for a supranational organisation that
needs to rely on the political loyalty and administrative machinery of its component States.

5. OVERALL CONCLUSION: WITNESSING A POSITIVE AND

NEGATIVE TWIN-PEAK

Over the last decades the EU has made impressive progress in the area of fundamental rights.
This progress can be exemplified along four dimensions.
Firstly, fundamental rights were prominently enshrined in the treaties and the EU Charter
of fundamental rights. Anchoring fundamental rights in EU primary law not only dramatically
increased the visibility of the EU’s commitment to these rights but also helped to guarantee
that EU legislation not in conformity with these basic entitlements is declared null and void.
Given that the Charter forms an impressive new bill of rights combining civic and political as
well as socio-economic rights in one single legally binding document strengthened the EU’s
profile as a human rights actor.118
Secondly, the EU started legislating in the field of fundamental rights in key areas such
as equality and data protection and soon developed a strong legislative profile in highly
fundamental rights sensitive fields such criminal law or asylum and immigration. Without
doubt views diverge whether the impressive amount of EU legislation is sufficiently protect-
ing fundamental rights. However, this is the expression of the fact that the EU has become
a full-fledged political system in which the appropriate balance between different political
objectives is negotiated between political actors – the Member States in the Council of the
EU, the European Commission and the European Parliament. Regarding the needed degree
of fundamental rights protection, the views of (and within) these key actors are likely to

115
See Art. 4 (3) TEU.
116
Dimitry Kochenov, ‘Elephants in the room: The European Commission’s 2019 Communication on
the Rule of Law’ (2019) 11 Hague Journal on the Rule of Law 423. Some even speak of a ‘“meaningless
political ping-pong” with the rogue Member State in “dialogue” with various EU institutions … which
only strengthens the populists at the national level’. See Kim Lane Scheppele, Dimitry Vladimirovich
Kochenov and Barbara Grabowska-Moroz, ‘EU values are law, after all: Enforcing EU values through
systemic infringement actions by the European Commission and the Member States of the European
Union’ (2020) 39(1) Yearbook of European Law 3, 119.
117
Ernst-Wofgang Böckenförde, Staat, Gesellschaft, Freiheit (Frankf Suhrkamp Verlag 1976).
118
See e.g., Gabriel N. Toggenburg, ‘The Charter of Fundamental Rights: An illusionary giant?
Seven brief points on the relevance of a still new EU instrument,’ in A. Crescenzi, R. Forastiero, G.
Palmisano (eds), Asylum and the EU Charter of Fundamental Rights (Editoriale scientifica 2018) 13–22.
434 Research handbook on the politics of human rights law

diverge, much as happens at national level. The Court has accompanied this process by further
strengthening its fundamental rights profile, for instance by declaring EU legislation void that
is not in conformity with EU fundamental rights or by developing a rich case law in the area of
asylum and migration or, more recently, by handing down well targeted key judgments in the
context of judicial independence and the rule of law.
Thirdly, the EU has increased the visibility of fundamental rights also by providing insti-
tutional space to fundamental rights. Various actors in the EU system deal with fundamental
rights and give increased attention to fundamental rights. 2008 saw even the creation of an EU
body specifically tasked to deal with these legal entitlements – the European Union Agency
for fundamental rights.
Fourthly, fundamental rights moved from a rather hidden legal obligation under the case law
of the EU Court to a set of increasingly visible policy files that are dealt with in the EU polit-
ical institutions. While still not equipped with an overall strategic framework for fundamental
rights within the EU, the EU adopted in 2020 three strategies ‘on constitutional essentials’, 119
namely, democracy, fundamental rights and the rule of law. In addition, around ten sectoral
policy documents were recently adopted with the ambition to provide EU guidance in thematic
areas such as disability, integration, anti-Semitism, disability, gender, racism, children’s
rights, victims’ rights, etc.
This trend is not something that could be described as a trend leading away from the histor-
ical drivers and motivations of the European integration process. Rather, as we argued, we are
witnessing a trend leading back to the very origins of the process.
This leads us back to the where we started: is the European a human rights organisation?
As said upfront, the EU is neither a State, nor an international organisation. This comes, from
a fundamental rights perspective, with benefits and costs.
On the positive side, the similarity with a State entails that the EU’s fundamental rights
toolbox goes far beyond the binary ‘ratification’ or ‘non-ratification’ dichotomy we know
from classical international human rights law. The EU disposes over an impressive spectrum
of possible policy interventions ranging from proper hard law equipped with direct effect and
supremacy to innovative forms of new governance, mechanisms of coordination, exchange
of practices, monitoring, reporting obligations, imposition of national action plans, financial
programmes, transnational data collection and analysis to name just a few.
On the negative side the EU’s similarity with an international organisation puts boundaries
on its promises. Its constitutional destiny is strictly tied to the political and legal realities of
its Member States. Any treaty change requires unanimity. Unanimity in the Council is even
required in a key area of secondary law making – non discrimination. The interdependence is
even more dramatic downstream, in the implementation phase, where the Union has over large
parts to rely on the Member States’ political will and on their implementation machineries. If
already (liberal) States suffer from the dilemma that they build on prerequisites they cannot
themselves guarantee, then this impotence is far more present for the EU.
These limitations have in recent years moved to the forefront. We witness stalemate in
a policy area like equality. We see stalemate concerning the development of a proper European
Asylum system. And we see implementation deficits in areas where legislation was suc-

119
Borrowed from Dora Kostakopolou, ‘A timely invitation to values realignment: The Commission’s
three ‘manuals on constitutional essentials’ (European Law Blog, 23 December 2020) https://
europeanlawblog.eu/author/kostakopoulou-dora/ accessed 4 January 2023.
The EU human rights regime: development, actors, policy framework and effectiveness 435

cessful. Finally, even worse, we witness backsliding in the area of the rule of law in various
Member States without that the EU would so far have proven capable to put a halt to these
developments.
In conclusion, we are confronted with a situation that is paradoxically Janus headed: both
the achievements and the challenges for the EU as a human rights actor are peaking at the
very same moment. Never has the EU invested and achieved more in terms of fundamental
rights policies. But, at the same time, never has its reputation and ambition as a human rights
actor been more at risk. Various current challenges such as the protracted rule of law crisis
and the shocking acceptance of the situation on the EU hotspots and the European borders are
a warning sign: a continued implementation fatigue is a major reputational threat and could
put not only the efficiency but also the credibility of the EU`s indeed remarkable fundamental
rights commitment and achievements at risk.

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The EU human rights regime: development, actors, policy framework and effectiveness 437

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438 Research handbook on the politics of human rights law

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Directive 2000/43/EC implementing the principle of equal treatment between persons irrespective of
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The EU human rights regime: development, actors, policy framework and effectiveness 439

Regulation (EU) 2021/1060 of 24 June 2021 laying down common provisions on the European Regional
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