The European Parliament and the EU Charter of Fundamental Rights
A Possible New Partner of the EP: The Agency for Fundamental Rights
Since it became operative at the beginning of 2008, the European Union Agency for Fundamental Rights - building upon the existing European Monitoring Centre on Racism and Xenophobia - provides the institutions of the European Union (and its Member States when implementing Community law), with information, assistance and expertise on fundamental rights within their respective spheres of competence in order to fully guarantee the observance of fundamental rights.
The agreement between the institutions on the definition of the structure of the new body was not easy to attain. According to the original proposal of the Commission, during the negotiations for the creation of the new Agency the Parliament insisted on the need to extend its competencies to the former Third Pillar matters. This point was contested by the Council and the negotiations proved harder than originally planned.
Although the EP was only entitled to issue a non-binding opinion, the Commission proposed to proceed with trilogues in order to reach an agreement. The Council accepted and at the end of 2006 the matter was finally settled.
The difficulties which have characterised the creation of the Agency show the distrust of the Council and call for an intervention of the EP, which could highly benefit from a close cooperation with the new body.
This would enable it to play a more active part in the monitoring and promotion of fundamentals rights within the EU institutional framework. Pursuant to the Council Regulation establishing a European Union Agency for Fundamental Rights,61 the EP will be involved in the activities of the Agency, including the adoption of the Multiannual Framework, and in the selection of the candidates for the post of Director of the Agency.
Furthermore, it should not be forgotten that pursuant to Art. 4 (2) of the establishing regulation, the Agency may formulate conclusions and opinions and elaborate reports concerning proposals from the Commission or positions taken by the institutions in the course of the legislative procedure, but only upon request by the respective institution. The original Commission’s proposal excluded any participation of the Agency from stating on EU legislative procedure.62 This limitation was initially foreseen to prevent the institutions from involving the Agency in the legislative process for political reasons and consequently delaying the procedure.63
Fortunately, pressures by the EP during the legislative procedure led to the current formulation of the provision64 making the Agency a possible important ally of the EP when fundamental rights issues arise. This is particularly true in light of the new Art. 36 of the Rules of Procedure by which the Institution shows its willingness to carry out a stringent control over the respect of fundamental rights during the law making process, to begin with legislative proposals.
Despite the absence of any formal link between the EP and the Agency - as is the case with the European Ombudsman - the two can work together to guarantee full observance of the EU fundamental rights standard. The Strasbourg Assembly endorsed this position when it strongly advocated the possibility to ask for the Agency’s expertise. It should not be forgotten, in fact, that amongst the main tasks of the latter there is the formulation and publication of opinions on specific topics and of an annual report on issues related to fundamental rights falling within the scope of application of the establishing regulation.
61.Council Regulation (EC) No 168/2007 of 15 February 2007 establishing a European
Union Agency for Fundamental Rights  OJ L 53/1.
62. Art. 4(2) of the original proposal of the European Commission, COM/2005/0280 final - CNS 2005/0124: “The conclusions, opinions and reports formulated by the Agency when carrying out the tasks mentioned in paragraph 1 shall not concern questions of the legality of proposals from the Commission under Article 250 of the Treaty, positions taken by the institutions in the course of legislative procedures. . .”.
63.G. N. Toggenburg, ‘The role of the new EU Fundamental Rights Agency: Debating the “sex of angels” or improving Europe’s human rights performance?’ (2008) 3 European Law Review 384.
64. Report of the European Parliament of 26 September 2006 on the proposal for a Council regulation establishing a European Union Agency for Fundamental Rights, A6-0306/2006.