EU public consultation on the creation of a Fundamental Rights Agency

damien

Got this from the USI LGBT website:

The EU has a consultation process that is likely to affect lgbqt people.

It is about expanding the role of the EU Monitoring Centre on Racism and Xenophobia to include other grounds in addition to racism, including sexual orientation, and to make an EU huamn rights body:

Commission launches a public consultation on the creation of a Fundamental Rights Agency (28.10.2004)

The Commission has adopted a consultation document on the establishment of an EU Fundamental Rights Agency. This consultation follows the decision taken by the European Council in December 2003 to extend the mandate of the European Union Monitoring Centre on Racism and Xenophobia, based in Vienna, to become a Fundamental Rights Agency. The consultation addresses all non-governmental organisations protecting human rights and all persons involved in the development of protecting fundamental rights in the EU. The Commission would like to receive all contributions by 17 December 2004. A proposal for a regulation to establish a Fundamental Rights Agency of the European Union will be presented by the Commission in the course of 2005. See the following website of DG Justice and Home Affairs for more information: http://europa.eu.int/comm/justice_home/news/consulting_public/fundamental_rights_agency/index_en.htm

The Commission has published a list of questions (see below) to act as guidelines for comments. The contributors do not need to answer all these questions directly. Neither need they comment on all points presented by the Commission in its Communication.

The Commission would like to receive all contributions by 17 December 2004. They should be sent to the following address:

JAI-charte@cec.eu.int

The European Commission will present a proposal for a regulation to establish a Fundamental Rights Agency of the European Union in 2005.

(1) How can the remit of the Agency be defined in order to ensure both added-value for the EU institutions and Member States and its efficient operation?

(2) In which areas should the Agency operate? Should these areas be defined in relation to the Charter of Fundamental Rights of the Union and if so how (by article or by chapter?). Should certain priorities be established? If so how? How can we ensure that the current remit of the EUMC (racism and xenophobia) is maintained and built on?

(3) How can the geographic coverage of the Agency be best defined, bearing in mind the need to avoid overlap with existing organisations and the need to ensure that the Agency operates in the most efficient manner possible?

(4) Which tasks should the Agency be given? How can the Agency gather objective, reliable and comparable data at European level? How can cooperation with Member States and civil society to obtain this information be best assured? How should the Agency present its conclusions and recommendations? How should the work of the Agency be disseminated?

(5) How can a meaningful and efficient dialogue between the Agency and civil
society be established?

(6) How can close cooperation with other stakeholders be assured, notably with the Council of Europe? How can the agency capitalise on the wealth of experience of the national bodies for the protection and promotion of fundamental rights and other similar national agencies? Following the creation of the Agency, howcan the added value of the Network of Independen Experts be assured?

(7) Which structures should be put in place to ensure that the Agency operates in an independent and efficient manner? Who should be represented on the Management Board of the Agency? Should a scientific advisory committee be established?

damien

Deadline approaches. Get writing.

Yoda

Thanks for pointing this out, Damien.

Yoda

Note that the Charter of Fundamantal Rights of the Union mentioned in the consultation paper is here.

These rights are divided into six sections:

*Dignity
*Freedoms
*Equality
*Solidarity
*Citizens' rights
*Justice

They are based, in particular, on the fundamental rights and freedoms recognised by the European Convention on Human Rights, the constitutional traditions of the EU Member States, the Council of Europe's Social Charter, the Community Charter of Fundamental Social Rights of Workers and other international conventions to which the European Union or its Member States are parties.

Note two provisions in particular:

Chapter II "Freedoms", Article 9 "Right to marry and right to found a family"
The right to marry and the right to found a family shall be guaranteed in accordance with the national laws governing the exercise of these rights.

and

Chapter III "Equality", Article 21 "Non-discrimination"
1. Any discrimination based on any ground such as sex, race, colour, ethnic or social origin, genetic features, language, religion or belief, political or any other opinion, membership of a national minority, property, birth, disability, age or sexual orientation shall be prohibited.
2. Within the scope of application of the Treaty establishing the European Community and of the Treaty on European Union, and without prejudice to the special provisions of those Treaties, any discrimination on grounds of nationality shall be prohibited.

In my view Article 21 should have precedence over the "national laws" referred to in Article 9, as those laws may be discriminatory. As they are here in Ireland.

Yoda

Here is a draft of the response I intend to send. THE RESPONSES ARE DUE FRIDAY NEXT 17 DECEMBER. If anyone has comments I would be interested to read them. PLEASE CONSIDER WRITING YOUR OWN RESPONSE TO THIS IMPORTANT CALL FOR PUBLIC CONSULTATION.

(1) How can the remit of the Agency be defined in order to ensure both added-value for the EU institutions and Member States and its efficient operation?

The remit of the Fundamental Rights Agency should be defined as widely as possible, to protect all European citizens from racist and xenophobic attack. National or ethnic origin, sex or sexual orientation, language preference, and religious affiliation should all be areas in which a person's right to be and to do must be protected.

(2) In which areas should the Agency operate?

In the areas of discrimination based on any ground such as sex, race, colour, ethnic or social origin, genetic features, language, religion or belief, political or any other opinion, membership of a national minority, property, birth, disability, age or sexual orientation.

I would like to point out that sexual orientation is *usually* placed last in these lists, but discrimination on the basis of sexual orientation is systematic throughout the European Union (whether officially or not), and this is an area which needs to be addressed.

If you take the text of many such articles in print these days, such as "A marriage between a man and another man undermines marriage in society" and alter it only slightly "A marriage between a black man and a white woman undermines marriage in society" it is easy to see how discrimination on the basis of sexual orientation is still strongly visible in European society where other forms of discrimination are considered bad taste and inappropriate. It is commonplace, unfortunately, to find blatantly discriminatory articles on the topic of same-sex marriage published in newspapers throughout Europe at the present time.

Should these areas be defined in relation to the Charter of Fundamental Rights of the Union and if so how (by article or by chapter?).

Each of these is discussed in Article 21 of Chapter III of the Charter. The areas should be defined as explicitly as possible, but reference to Article or Chapter should be made as appropriate.

Should certain priorities be established? If so how? How can we ensure that the current remit of the EUMC (racism and xenophobia) is maintained and built on?

I think that priorities should be established. As noted above, sexual orientation is usually left to the end of "equality lists", and yet discrimination on the basis of sexual orientation remains the most common form of discrimination in Europe, because many large and powerful groups believe that it is right to discriminate against people because of their sexual orientation, because the Bible tells them to, or for other reasons. The most pernicious discrimination against people on the basis of their sexual orientation is not access to housing or employment, but it is the refusal throughout most of the European Union to recognize the family life of same-sex couples, by refusing to allow the rights which marriage or civil union convey to heterosexual couples.

(3) How can the geographic coverage of the Agency be best defined, bearing in mind the need to avoid overlap with existing organisations and the need to ensure that the Agency operates in the most efficient manner possible?

The Agency should have Europe-wide jurisdiction.

(4) Which tasks should the Agency be given? How can the Agency gather objective, reliable and comparable data at European level? How can cooperation with Member States and civil society to obtain this information be best assured? How should the Agency present its conclusions and recommendations? How should the work of the Agency be disseminated?

There may be many tasks given to the Agency. With regard to discrimination on the basis of sexual orientation, I would like to see a review of the practices in the Member States with regard to Article 9 of Chapter II, and Article 21 of Chapter III. The latter prohibits discrimination on the basis of sexual orientation, but the former only grants the right to marry and found a family (which does not necessarily mean to breed children of the body) in accordance with the national laws governing the exercise of these rights.

In Ireland last year the Minister for Social and Family Affairs, Mary Coughlan, stated publicly that "Ireland was not ready for gay marriage". (Of course, if Ireland were not ready, its homosexual citizens would not be asking for it.) Ms Coughlan subsequently published a bill, enacted in law as the Civil Registration Act 2004, which for the first time stated specifically in Irish law that there is an impediment to a marriage "if both parties are of the same sex" (Section 2.-(2)(e)).

It seems clear that this national law governing the exercise of the right to marry is nevertheless a specific instance of discrimination on the basis of sexual orientation.

The Agency should be empowered to examine such legislation and report breaches of Article 21 by the member states of the European Union.

(5) How can a meaningful and efficient dialogue between the Agency and civil society be established?

The Agency should have a large advertising budget and airtime for television advertising should be purchased in areas where support of non-discriminatory ideas is needed.

(6) How can close cooperation with other stakeholders be assured, notably with the Council of Europe? How can the agency capitalise on the wealth of experience of the national bodies for the protection and promotion of fundamental rights and other similar national agencies? Following the creation of the Agency, how can the added value of the Network of Independent Experts be assured?

I honestly don't know. I don't have much experience of the agencies which exist to protect and promote fundamental rights. In Ireland our Equality Authority is seen to be important and powerful, yet its recommendations on same-sex marriage and partnership legislation is largely ignored by government. A Network of Independent Experts is as good as its experts are; it would be interesting to learn how such experts were to be chosen. One must assume that they would necessarily be intelligent, educated liberals to function proactively in or with or on behalf of the Agency.

(7) Which structures should be put in place to ensure that the Agency operates in an independent and efficient manner?

I don't know; this sort of organizational structuring is outside the scope of my expertise.

Who should be represented on the Management Board of the Agency?

Representatives who belong to each of the minorities, perhaps.

Should a scientific advisory committee be established?

Yes, certainly.

Yours sincerely,