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Joseph H.H. Weiler & Sybilla C. Fries
The question of Community competences in the field of human rights came back into sharp focus with the publication of the Proposal for a Council Regulation (EC) on the development and consolidation of democracy and the rule of law and respect for human rights and fundamental freedoms, submitted by the Commission on 24 July 1997.1 It was followed, in October of that same year, by an Opinion of the Legal Service of the Council on this proposal, a restricted document which, however, was widely leaked and circulated.2 The exchange is by now obsolete. First, the Commission and Council reached a cozy, don't ask don't tell, compromise reflected in an amended set of Commission proposals.3 The Commission would get the sizeable funds it required to spread the good word of human rights; so long as the Commission formally accepted a legal regime which would expunge any official reference to a Community human rights policy relating to any activity in and by the Member States, the Council would not ask how exactly the Commission was spending the money and turn a blind eye even to funding instances which egregiously contravened that very policy.
The apple cart was famously overturned by the subsequent decision of the Court outlawing expenditures without firm legislative authorization.4 It should be emphasized, however, that this decision, contrary to the impression given in its immediate wake, eschewed the principal issue of competences. What exercised the plaintiffs and the Court were the respective institutional competences of Commission and Council. The case was based on the implicit assumption that, had only the Council given its legislative approval, all contested expenditures would be intra vires. Also implicit in the decision was the notion that, were the contested expenditures truly to fall in the "non significant" pilot and exploratory category, they would be equally legitimate. The practical effect of the decision was not to limit the competences of the Community, but to limit somewhat the autonomy of the Commission and to strengthen that of the Council. The expenditures in that case concerned action, which were, arguably, firmly within the socio-economic aspects of the Single Market. They did not concern specifically the more controversial dimensions of human rights expenditures by the Commission.
Until recent years the debate about Community human rights competences
mostly turned on the reach of the judicial writ of the European Court of
Justice especially to certain classes of Member State acts5 and to that trusty perennial
accession to the ECHR, which has been with us at least since 1978. With the
publication of the 1997 and 1998 Commission proposals, the discussion shifts
firmly from Court to political institutions.
On its face this seems
to be a simple morality tale. The Commission, champion of human rights,
proposes and the Council (Legal Service) seeks to place niggardly restrictions
and constraints. The burden of the Council position turns on the following
legal propositions. The Council first repeats the Court's affirmation in
Opinion 2/946
that:
No treaty provision confers on the Community institutions any general power to enact rules on human rights or to conclude international conventions in this field.
Following what it believes is the burden of Opinion 2/94 the Council comes to the conclusion that Article 308 (ex Article 235) also could not be used either to enact rules on human rights.
As regards the use of Article 179 (ex Article 130w) which refers to the objectives set out in Article 177 (ex Article 130u), the Council, purporting to follow the decision of the Court in Portugal v. Council7, argues that Article 179 cannot be a legal basis for measures the main object and purpose of which is democratization and human rights rather than co-operation development.8
The Council (Legal Service) then concludes that Articles 179 and 308 may only be used to support human rights and democratization measures which are part of, and ancillary to, general co-operation development instruments. It also would allow, following existing practice,9 the use of Article 308 as a basis for human rights and democratization measures in instruments of co-operation in relation to countries which are not, strictly speaking, developing countries, citing such famous programs as Phare, Tacis, and Meda, provided that, where necessary, the enabling regulations are suitably amended.
Even then not all measures envisaged by the Commission proposal were to be allowed. According to the Council any measure outside a specific co-operation program could only be based on Article 13 (ex Article J.3 TEU), which does not require a Commission proposal.10 This, of course, would split the operation and transfer some of the power away from the Commission services promoting the proposed regulation. The Council Legal Service even went so far as to suggest the whole proposal could be put under Article 13. Of course, this would only apply to external human rights action for, as noted, the Council is emphatic that:
in any case, no measure in this area could be directed towards actions promoting the observance of human rights and democratic principles by and in the Member States.
We believe that, as this legal tale unfolds, there are no clear saints and villains. All Institutions seem to be playing a corporatist game, intent on promoting and preserving their own prerogatives under the guise of concern for human rights. They all seem to be giving a new meaning to the term `chutzpah' by preaching to others what they do not practice themselves - following faithfully the officers' maxim: don't do what I do, do what I tell you to do. In this they seem to be taking their cue from the Community as a whole, which is extremely apt at preaching democracy to others when it, itself, continues to suffer from serious democratic deficiencies and insists that all newcomers adhere to the ECHR when it, itself, refuses to do the same.
The Court has - laudably - found no difficulty over the years to assert a comprehensive basis for a judicial protection of human rights covering the entire field of Community law, including, where appropriate, Member State acts. However the proposed accession to the ECHR would, in the Court's eyes, in a passage in Opinion 2/94 noted for its opaqueness and cryptic nature as well as its self-serving nature:
entail a substantial change in the present Community system for the protection of human rights in that it would entail the entry of the Community into a distinct international institutional system as well as integration of all the provisions of the Convention into the Community legal order.
Such a modification of the system for the protection of human rights in the Community, with equally fundamental institutional implications for the Community and for the Member States, would be of constitutional significance and would therefore be such as to go beyond the scope of Article 308. It could be brought about only by way of Treaty amendment.
Of course, given the political reality and voting requirements of Treaty amendment, this decision meant the end to accession.11
We are left to wonder why accession to the Convention would be of constitutional significance greater than, say, membership in the new WTO with its new dispute resolution procedures, or of adherence by Member States most of which did not require a constitutional amendment to join the ECHR. Likewise, the alleged need to integrate all the provisions of the Convention which seems to trouble the Court, seems to us a colossal red herring. After all, some form of mixed agreement could be explored if the Court's concern stemmed from a fear that the Community would not be in a position to fulfill all provisions of the ECHR and, in any event, how could this be a concern without seeing the negotiated accession instruments? Clearly some provisions of the ECHR would have to be modified to permit EC membership.
The suspicion is, therefore, despite strenuous denials by certain members of the Court, that it was the "institutional implications" that caused most trouble and that principal among these was the institutional implication which would submit the Court of Justice, like its constitutional brethren in the Member States, to scrutiny by the Strasbourg Court. There is, indeed, no small measure of chutzpah in a Court which has endless creative resources when it comes to interpretations which consolidate the legal order over which it presides, but discovers the virtues of hermeneutic prudence when its own position may be over-shadowed, or where the vaunted European order itself may be seen to be subjected to a higher law judicially enforced by others.
Be that as it may, we will argue contrary to the Council Legal Service, that it is possible to read Opinion 2/94 as permitting a Community human rights policy, provided that certain conditions are maintained.
The position of the Council, as reflected in the opinion of its Legal Service, has no less chutzpah than the Court. This is evident when you consider that the same Council (and the same Legal Service) which, in relation to a human rights policy, gravely state that:
the observance and promotion of human rights as such are not included among the Community's actions or tasks as specifically listed in article 2 and 3 of the EC Treaty.
had just approved a common position, and subsequently a directive, on tobacco advertising - a measure masquerading as harmonizing obstacles to free movement in the internal market, but in fact conceived and conspicuously explained in its earlier life as having a principal public health objective (and thus requiring as its principal legal basis Article 152 (ex Article 129) which inconveniently precludes legislation).12 It is curious to note the shifting sensibility to an objective analysis of object and purpose of legislation as a condition for establishing legal basis.
Nonetheless, we do not disagree with the Council analysis of the limits of Article 177 (ex Article 130u) - we just marvel at the elasticity with which it uses the underlying methodology depending on the outcome it desires. We do by contrast strongly disagree with their overall conclusion that there is no legal basis for a Community human rights policy which would affect human rights within and by the Member States. We shall argue that, so long as such a policy is in the field of Community law, what is sauce for the judicial goose is also sauce for the legislative gander.
Finally the Commission. It is not our purpose or task in this paper to analyze or critique the Commission proposal. And giving money to worthy NGOs (`partners') is always a good thing - though the proposal would allow handouts to all manner of public bodies, including governments and `private sector operators.' The Commission proposal in many respects is, however, a disappointing and ugly document which, at its worst, mocks the very values which it purports to promote. Pragmatically, most, if not all, of what the Commission proposed to support financially in the proposal had already been funded in the past years under various budgets items, most of which are to be found in chapter B-7 (External Actions)13. Several of these budget items did not have any Council regulation as a legal basis. Instead Article 11 (ex Article J.1 TEU) and Article 177 are quoted alongside Council and Parliament resolutions on human rights and democracy.14 In truth, the Commission proposal was not a new beginning but an attempt to consolidate the hodge-podge of the past into a "basic regulation" in the sense of Chap. IV, Point 3 (c), of the 1982 Joint Declaration on various measures to improve the budgetary procedure15 so as to provide continuity instead of a year-to-year decision and greater flexibility as regards amounts, since without a basic regulation budget items, according to the Joint Declaration, cannot go beyond a "significant" amount,16 as well, of course, of freeing their hands even further concerning who will enjoy Commission largesse.
In its 1995 memorandum on human rights policy,17 the Commission had stated that, for the various financial instruments promoting respect for human rights to be used to best advantage:
they must be flexible to ensure their compatibility with the specific objectives pursued and guarantee in particular the availability of financial resources at a minimum of notice in case of urgent operations, and be adjustable to the specific requirements of human rights issues;
they must complement each other (technical assistance, development cooperation funds, specific "human rights" headings, etc.) so as to avoid duplication and ensure continuity of the desired impact;
amounts must be made available as an incentive and granted in respect of progress achieved by way of reward, particularly in such areas as institutional reform, establishing the rule of law and democratization;
there must be transparency of information relating to the various sources of funding and their use."18
The Commission may be right about all of this. But in this field, too, the Commission has relied on its constitutional right to expend insignificant sums of money on pilot projects and exploratory action designed to enable it to exercise its proposal role in the legislative procedure.19 Even a cursory examination of Commission activity in this field raises doubts whether many of its activities would truly fall within the definition of `insignificant', `pilot', or `exploratory' and did not fall into a scheme against which the Court warned about namely "... to circumvent application of the principle that a basic act must first be adopted".20 And even as regards those items which did come under the legal definition of Commission authorized autonomous action or were authorized in some manner by the Council, we would respectfully submit that many could not be considered as coming within the field of application of Community law, however widely defined.21
The document borrows canonical language
of developing and consolidating democracy and the rule of law, and to that of respecting human rights and fundamental freedoms.
In the legal order, respect for the jurisdictional limits of the Community is an important dimension of the rule of law and of democracy. A Community and Union which transgress such limits not only breach an important constitutional principle but also contribute to a continuous aggregation of power in the centre compromising an important aspect of democracy.
It is difficult to read the proposal as drafted, with its loose language, such as Article 2(d), which would apparently allow unrestricted support to operations:
supporting local, national, regional or international institutions involved in the protection or promotion of human rights
as if the Commission really believes that the Community and Union truly have no limits on such activities or that, because of the important aims, others will be shamed into not contesting the proposals.
This may well have been the case in the past. Under title B7-7040 ("subsidies for certain activities of organizations pursuing human rights objectives"), you find funding for operations both inside and outside the Community.22 Thus, the European Human Rights Foundation, a NGO that was founded 1980 on the Commission's initiative,23 through its European Human Rights Fund hands out subsidies from this budget line (which is 7 million ECU total) to support other NGOs, 55 per cent of which are western European, with 15 per cent of activities targeted in western Europe.24
The words "rule of law" appear again and again, but nowhere will you find material restrictions limiting such support to those fields where the Community may act appropriately. Respect for constitutional divisions of powers in the federal structures that have been set up in many of the countries to which this instrument is aimed would be part of the rule of law that one tried to instill and encourage. What an exquisite irony that it is done by an instrument which shows no sensitivity to that very issue.
The same is true with another word which appears, again and again, in the Commission proposal: democracy. But are the democratic controls which the Commission proposes for itself in this field adequate?
An Advisory Committee of Member State nominated mandarins? An annual report to the European Parliament with a summary of activities but no continuous parliamentary oversight? The notoriously non-transparent and undifferentiated (all-or-nothing) controls through the budgetary procedure? The conspicuous absence of transparency as regards financial order of magnitude envisaged?
There are two other elements which cannot but strike the reader of this proposal: the almost exclusive reliance on financial handouts to others as the method of vindicating the objectives of the proposal and, more egregiously, the total absence of any notion that the Community and Union themselves (and their institutions) might have room for improving the situation of their own human rights record, other than through support of other bodies which typically deal with Member State abuses and not with the Community as such.
Some of the NGOs - especially those operating in third countries - can sigh with relief, since the legal opinion of the Council provides the way through skilful amendment and word-smithery here and there to make the necessary pay-outs. But one cannot but lament this document as a poor substitute for a fully-fledged human rights policy, which the Commission could have and should have presented. Such a policy - Leading by Example - has now been proposed.25 Maybe the invitation of Article 13 (ex Article 6a TEC) will provide an incentive for the Commission and Council to take that proposal seriously - to lead by example.
What we propose to do is to explain our contention that a legal basis for a comprehensive human rights policy of the Community does exist on the basis of the current Treaty and jurisprudence.
1 [1997] OJ C282/14, COM(97) 357 final - 97/0191(SYN).
2 Brussels, 16 Oct. 1997; 11402/97 LIMITE; JUR 347; DEVGEN 72; COHOM 2; PESC 184.
3 Commission proposals of 1 July 1998, DEVGEN 43 and 44. See `Working Document on the Proposal for a Council regulation (EC) on the Development and Consolidation of Democracy and the Rule of Law and Respect for Human Rights and Fundamental Freedoms': rapporteur, Mr Galeote Quecedo, COM(97)357, 12 Feb. 1998.
4 Case C-106/96, United Kingdom v. Commission, judgment of 12 May 1998.
5 See, e.g. D.Binder `The European Court of Justice and the Protection of Fundamental Rights in the European Community: New Developments and Future Possibilities in Expanding Fundamental Rights Review to Member State Action', 4/95 Harvard Jean Monnet Working Paper Series, available at: http://www.law.harvard.edu/Programs/JeanMonnet/ and sources cited therein.
6 Opinion 2/94 [1996] ECR I-1759.
7 Case C-268/94, Portuguese Republic v. EU Council [1996] ECR I-6207.
8 We accept that this is a plausible reading of Portugal v. Council by the Legal Service. What may be questioned is the decision of the Court to read Art. 130u(2) (now Art. 177(2)) as necessarily an ancillary provision to a more generic co-operation development policy and not allow an autonomous Community measure or Community Agreement (ex Art. 130y (now Art. 181)) to be directed entirely at democracy, rule of law and human rights. Why, one may ask, would the provisions of Art. 130u(1) (now Art. 177(1)) alone appropriately describe a co-operation development measure but Art. 130u(2) not? Art. 130u(1) provides: `Community policy in the sphere of development cooperation... shall foster: the sustainable economic and social development of the developing countries, and more particularly the most disadvantaged among them; the smooth and gradual integration of the developing countries into the world economy; the campaign against poverty in the developing countries.' Art. 130u(2) provides: `Community policy in this area shall contribute to the general objective of developing and consolidating democracy and the rule of law, and to that of respecting human rights and fundamental freedoms.' Why Art. 130u(1) should be privileged over Art. 130u(2) is not altogether clear.
9 See the excellent A.Rosas & B.Brandtner,'Human Rights and the External Relations of the European Community, 1998 EJIL (forthcoming) for chapter and verse.
10 See Art. 18 (ex Art. J. 8 (3)). Compared to the Commission's right to initiative in the EC Treaty this not only means that the Council can act without a proposal, but also that, if there is one, the voting requirements of Art. 250(1) (ex Art. 189a (1)) do not apply.
11 Accession has been opposed by various Member States, mostly the UK, but also by other countries such as Portugal, Ireland, and France at different times. Still, this opposition was always carefully couched as stemming from a constitutional concern regarding competences - a position which could have been undermined had the Court opened the way at least to exploring Accession without amending the Treaties.
12 See Common Position of the Council of 12 Feb. in respect of Amended Proposal for a Council Directive on the Approximation of Member States' Laws, Regulations and Administrative Provisions on Advertising for Tobacco Products: COM (92) 196 final - SYN 194 (submitted by the Commission pursuant to Article 149(3) (now repealed) of the EEC Treaty on 30 Apr. 1991) [1991] OJ C167/3. Even in the European Parliament which has been very sympathetic to the social objectives of the proposed legislation the measure barely passed the scrutiny of the Legal Affairs Committee. The vote was 15-13: Europe, 1 Feb. 1992, at 10. In plenary session the measure was passed by 150-123-12 as regards the final resolution. 158-141-8 as regards the Commission proposal as amended by the Parliament. The question of competence and legal basis was one of the central planks of the opposition to the measure.
13 Thus, e.g., in subchap. B7-7, under the heading `European Initiative for Democracy and the Protection of Human Rights', which was introduced in 1994, the Community, under various titles, supports NGOs in democratization and human rights activities throughout the world, funds rehabilitation centers for torture victims and organizations offering help to victims of human rights abuses, spends money on the the Hague and Rwanda war tribunals, and offers subsidies to certain activities of organizations pursuing human rights objectives. Not in chap. B7 of the budget, would be fundings to NGOs which work on the establishment of an international criminal court (Article 2 (2) of the proposal) which are to be found in Part A 304 1 (administrative appropriations/Community subsidies) or support for migrants (B3-4110 in B3 Training, youth, culture, audiovisual media, information, and other social operations).
14 Council Resolution of 28 Nov. 1991 on human rights and democracy in the developing countries and follow-up Resolution of 18 Nov. 1992; EP Resolution of 14 May 1992 on a European Initiative for Democracy; EP Resolution of 13 July 1993 on human rights, democracy, and development.
15 [1982] OJ C 194/1.
16 Needless to say, it is highly contested what a "significant" amount would be. The Council locates it somewhere between 2 and 5 million ECU. See S.Strasser, The Finances of Europe (1997), 139ff. On the other hand: `wo kein Kläger, da kein Richter'. Although many of the abovementioned items offer `significantly' more money than that, the Council does not seem to want to take the other institutions to Court for spending money on such good causes as human rights.
17 'The European Union and the external dimension of human rights policy: from Rome to Maastricht and beyond': Communication from the Commission to the Council and the European Parliament, COM (95) 567 final.
18 Bull. EU Suppl. 1995. See also the homepage of DG IA at http://www.europa.eu.int.
19 Case 106/96, U.K. v. Commission [1998] ECR I-2729, para. 29.
20 Ibid., para. 36.
21 See some of the examples in note 24 infra.
22 See description of this budget item in "Digest of Community Resources Available for Financing the Activities of NGOs and Other Governmental and/or Decentralized Bodies Representing Civil Society in the Fields of Development Co-operation and Humanitarian Aid', VIII/207/97EN, at 78 (document is on the homepage of DG IA, see note 18 supra).
23 EHRF claims to be independent from the EU. On the other hand it moved to Brussels in 1991 to be closer to the Commission. It works very closely with the Commission, carries out various research projects on human rights issues relevant to EU policy and help the Commission manage Phare and TACIS.
24 See e.g.
European Human Rights Foundation, `The First Fifteen Years', Report 1995, at
16ff:
-seed grants: to Britain and Ireland Human
Rights Project or to Prisoners Legal Services Foundation;
-reports and studies on sectarianism in Northern Ireland,
gypsies in Europe, child labor in Portugal, bans on political activity in
Scotland, procedures of inquest in the UK;
-general
grants to `Article 19' (UK), to British Institute on Human Rights, the
Committee of Concerned Forensic Scientists (Denmark), Index on Censorship (UK),
the International Lesbian and Gay Association (Belgium), JUSTICE (UK), Parity
Foundation (Netherlands);
-legal aid and legal
services to costs of the ECHR Cabales case (discriminatory immigration
laws in the UK), costs of ECHR Wilden case (Swedish child care),
specialized legal service for women in the UK, legal aid for prisoners in
England and Wales, legal advice for prisoners in the UK, advice center on
European and international human rights laws in the UK, legal proceedings in
Greece to obtain recognition of the right to conscientious objection. See
generally Case C-106/96, United Kingdom v. Commission, judgment
of 12 May 1998.
25 See Academy of European Law, Leading by Example: A Human Rights Agenda for the European Union for the Year 2000 - Agenda of the Comité des Sages and Final Project Report (1998), available at http://www.iue.it/AEL/.