For a union of ever more citizens’ rights

by Niccolo Milanese

Over recent years there has been increased discussion of the problem of European Union member countries backsliding when it comes to fundamental rights.

Article 2 of the treaty on European Union says that

‘the Union is founded on the values of respect for human dignity, freedom, democracy, equality, the rule of law and respect for human rights, including the rights of persons belonging to minorities. These values are common to the Member States in a society in which pluralism, non-discrimination, tolerance, justice, solidarity and equality between men and women prevail.’

The meaning of these values has been more explicitly listed in the Charter of Fundamental Rights of the European Union, which was introduced with the Lisbon Treaty and applies to all EU citizens.

Countries seeking to join the European Union need to show that they fulfil the ‘Copenhagen criteria’, which are supposed to ensure that the values of the European Union in the treaties are respected in that country. The case of Italy when it comes to media freedom, and more recently Hungary when it comes to constitutional reform, the independence of the judiciary, rights of minorities and media freedom, have posed what has come to be called the ‘Copenhagen dilemma’, whereby the European Union is very strict about criteria of democracy and fundamental rights for candidate countries, but for its own members has no effective monitoring or sanctioning tools. The one tool that the EU does have in the Treaties is the so called ‘Article 7 procedure’ which leads to the suspension of the voting rights of the ‘offending’ country in the European Council. This ‘nuclear option’ has never been implemented, and many regard the procedure as too vague, too politically charged and too drastic. There is an increasing demand for a clearer, independent procedure, and more options for sanctions. This demand has come from the European Parliament, but also from Germany, the Netherlands, Denmark and Finland.

Maintaining fundamental rights throughout Europe is clearly in the interest of all Europeans, and a country which starts to backslide on them is problematic not only for the people living in that country, but for the whole European Union democratic architecture which relies on democracy at every level: ultimately, a non-democratic country having a voice (and a veto) at the European Council very clearly poses a problem for all the other countries involved. Article 7 of the European Treaties, whilst not effective as a safeguard, has a strong constitutional logic behind it. It is worth noticing already that the respect of fundamental rights – as they are understood by the European Union – is intimately connected with the respect of democracy.

One proposal to address the Copenhagen dilemma which has been particularly discussed in the context of the Tavares report on the situation in Hungary, and has been advocated by Princeton professor Jan-Werner Mueller, is the creation of a Copenhagen Committeewhich would monitor fundamental rights in European countries and give an ‘early warning’ signal where there is cause for concern. This proposal has the advantage of calling for a committee with one specific task and therefore addressing very directly the identified problem, and could potentially be instituted quickly. It is worthy of support for both of those reasons. It has the disadvantages of creating a further European institution where it is not clear that this is necessary, and in so do potentially instituting a particular view of EU fundamental rights which one might find objectionable : namely a view of them which is not political in a specific sense. This is the aspect I want to discuss further.

The European Union already has an Agency for Fundamental Rights, with its headquarters in Vienna. This Agency has the mandate to ‘provide the relevant institutions and authorities of the [European] Community and its Member States when implementing Community law with information, assistance and expertise on fundamental rights in order to support them when they take measures or formulate courses of action within their respective spheres of competence to fully respect fundamental rights.’(Article 7, Regulation establishing the European Union Agency of Fundamental Rights). The Agency therefore has the objective of providing expertise and sharing information, and not of monitoring or ‘sounding the alarm’. Advocates of the Copenhagen Committee argue that the political will does not currently exist to change the mandate of the Fundamental Rights Agency to have this monitoring role, and so propose a new institution (which could potentially be merged with the Fundamental Rights Agency at a later date). Whether there is the political will to create a new institution with effective monitoring powers is of course a highly pertinent question.

The presupposition of creating the Fundamental Rights Agency in the first place was that ensuring the respect of fundamental rights is not straightforward, and therefore that mutual learning between member states, as well as external advice, is beneficial to states which are trying to promote fundamental rights. Promoting fundamental rights is something we could hope European states will get better and better at, based on experience. Legal mechanisms exist for people who have suffered the loss of their fundamental rights in Europe to redress this, but the ideal, so to speak, is of a society in which no one’s fundamental rights are contravened.

An important question is whether understandings of fundamental rights themselves (and not just the strategies used to promote them) develop over time. The history of the development of human rights from the French Revolution onwards clearly suggests they do. The values of the European Union as articulated in article 2 of the treaty are clearly open to different interpretations. What constitutes a society in which ‘justice prevails’ is a timeless question which arguably will not have a definitive answer, just answers which are (we can hope) better and better. Notice that this does not imply that anyinterpretation of a just society is acceptable: rather that there may be several legitimate interpretations, and that there is some possibility for learning from history – including experiences in other countries and parts of the world – in improving these interpretations. Furthermore, dividing the understanding of abstract fundamental rights from the political policies, arrangements and strategies to enable, promote and protect them is a dubious distinction.

One important way that the understanding of fundamental rights develops and fundamental rights are extended, it seems to me, is via civic activism. Examples from the feminist movement to LGBT rights campaigns, to campaigns for the rights of children, to the right to access internet, or access education, all have dramatically changed ideas of what rights people have, and ultimately of what constitutes a fair, just and equal society. Furthermore, these civic initiatives are profoundly political in the sense that they claimnew rights, often for new political subjects. The future for Europe should be that through increased political integration people in Europe enjoy a richer and richer set of rights. Fundamental rights are not timelessly set but constantly evolving through political struggle and processes of political learning. The fundamental rights agency of the European Union could precisely facilitate this political learning, which we could also characterise as a demanding sense of democracy working. The Copenhagen criteria are themselves set to ensure that a country is open for this kind of political process: that democracy functions both ‘internally’ (through democratic debate amongst its citizens) and ‘externally’ (in learning from and engaging with other countries).

The danger of theoretically separating a Copenhagen Committee from the Fundamental Rights Agency is then of at least giving the impression that the European Union is a static members club with an unchanging set of rules (which are monitored and guaranteed by the Copenhagen Committee), rather than a joint journey or process in which citizens’ rights evolve and improve, notably at the initiative of citizens themselves through political engagement. By focussing too much on the dangers of backsliding, we could neglect to advocate for more possibilities for advancement. What is more, empowering citizens to advance their own rights throughout Europe might actually be the best way of preventing backsliding provoked by reactionary and protectionist tendencies. This could best be advocated by talking both about a Copenhagen Committee or something similar to monitor regression and the future role of the fundamental rights agency to promote advancement.