The double standard vis-à-vis Member States
The attitude of the EU towards its Member States has often been accused of being much more permissive than the approach developed in evaluating the “new” acceding countries on issues related to the protection of human rights.
Some have denounced the schizophrenia afflicting the EU in its internal and external policies; 17 others have spoken about a “bifurcation” in the EU’s approach to human rights.18 As argued by Andrew Williams: The scope of human rights so scrutinised in the accession criteria extends some way beyond that which falls within the European Union’s internal concerns.19
The application of a double standard - one for Member States, the other for candidate countries - undermines the overall credibility of the EU as a human rights actor, ultimately jeopardizing its external legitimacy. This distinction affects the assessment/enforcement of human rights, within and outside the EU. If we take into consideration the enlargement policy there is a full set of procedures developed by the EU institutions in order to ascertain the actual compliance with accession standards by candidate countries through the Commission’s regular reports.
Failure to achieve the expected results may entail the suspension of the accession procedure until the country in question has taken the appropriate steps to remedy the situation. This was the case with Bulgaria and Romania, which acceded only in 2007 although originally expected to join in 2004. However, there is yet another level of conditionality applying to accession. On the one hand, there are conditions, such as the Copenhagen criteria, that must be satisfied in order to start negotiating the accession agreement. On the other hand, there are requirements that follow the conclusion of agreements, heralding the presentation of a candidature (this is the case with potential Member States) or representing an integral part of the pre-accession strategy. These agreements, known as “association agreements,” “Europe agreements” or “stabilisation agreements”, depending on the countries involved, 20 establish another system for sanctioning the nonfulfilment of certain conditions concerning the respect of democratic principles, human rights and the rule of law.
According to the general rules of international law,21 these conditions are to be considered essential, allowing one of the contracting parties to suspend or terminate the relevant treaty when the other party fails to comply with them.
The mechanism laid down to sanction the behaviour of Member States appears to be far less complex. The first attempt to introduce a monitoring procedure within the EU borders can be found in the Amsterdam Treaty, subsequently amended by the Nice Treaty. Reference is to Art. 7 TEU, stating that the Council, on a reasoned proposal by one third of the Member States, by the European Parliament or by the Commission, after obtaining the assent of the European Parliament, may determine that there is a clear risk of a serious breach by a MemberState of the principles mentioned in Art. 6 (1) EU, and address appropriate recommendations to that State.
Moreover, the Council, acting unanimously on a proposal by one third of the Member States or by the Commission and after obtaining the assent of the European Parliament, may determine the existence of a serious and persistent breach by a MemberState of the principles mentioned in Art. 6 (1) EU and decide to suspend certain of the rights deriving from the application of the Treaty to the Member State in question, including the voting rights of the representative of the government of that Member State in the Council.22
This procedure has never been implemented so far and contains an important shortcoming: the rights of the accused MemberState are not fully protected for it has no right to reply to the Council’s findings. Moreover, the gravity of the violation required de facto limits the use of the provision in question.23
In this respect, the potential of the CFR is remarkable. Firstly, it introduces a comprehensive system of human rights standard for Member States, whereas the control guaranteed so far by Art. 7, in conjunction with Art. 6 (1) TEU, may not cover some basic rights, such as minority rights, taken into great consideration during the accession strategy and then suddenly forgotten once membership is achieved.
Secondly, it can be very useful in helping the institutions set the appropriate threshold of a violation.
For instance, according to Art. 52 CFR, if the allegedly violated right corresponds to a right guaranteed by the ECHR; it will have to be interpreted in accordance with the meaning and scope it is granted under the latter convention. The CFR must ensure the same protection as the ECHR. If the Council were confronted with a serious and persistent (alleged) breach, its task would be easier, since it could refer to the case law of the ECtHR concerning that right.
Thirdly, the respect for the rule of law could be enhanced. The judicial review of the Court of Justice of the European Union (hereafter ECJ or EUCJ) does not cover the political decision adopted by the Council pursuant to Art. 7 TEU, but it does extend to the violation of the procedure provided for therein allowing for the annulment of the decision imposing sanctions on the responsible MemberState.
On the contrary, according to Art. 51. CFR, both aspects (procedural and substantial) fall within the scope of application of the Charter and are subject to the jurisdiction of the EUCJ.24
17. P. Alston and J.H.H. Weiler, ‘An European Union human rights policy’ in P. Alston (ed.), The European Union, and human rights (Oxford University Press, 1999).
18. A. Williams, EU human rights policies. A study in irony (Oxford University Press, 2004).
19. A. Williams, ‘Enlargement of the Union and human rights conditionality: A policy of distinction?’ (2000) 25 European Law Review 601 and A. Williams, EU Human Rights Policies. A Study in Irony (OxfordUniversity Press, 2004).
20. The European Community has entered into association agreements with a number of countries (for example, with the Mediterranean countries – within the Euro-Mediterranean Partnership – and with countries involved in the European Neighbourhood Policy of South Caucasus and Turkey). These agreements were not conceived as pre-accession instruments, but some of them were progressively re-oriented so to fall within the accession strategy. See E. Lannon, K. Inglis, and T. Haenebalke, ‘Themany faces of EU conditionality in Pan-Euro-Mediterranean relations’ in M. Marescau and E. Lennon (eds.), The EU’s enlargement and Mediterranean strategies. A comparative analysis (Basingstoke, 2001) at 110. In line with this new trend, the 90s association agreements concluded with the countries of Central and Eastern Europe (namely, Bulgaria, the Czech Republic, Estonia, Latvia, Lithuania, Hungary, Romania, Slovakia, Slovenia and Poland) were named Europe Agreements and the relations with the Western Balkan countries (namely, Macedonia and Croatia) Stabilisation and Association Agreements. This process has not directly concerned the Association Agreement with Turkey (see Council Decision 64/732/EEC of 23 December 1963 on the conclusion of the Agreement establishing an Association between the European Economic Community and Turkey  OJ L 217/1) that has not been amended despite the strategic importance of fundamental rights protection.
21. Namely, Arts. 60-62 of the Vienna Convention on the Law of Treaties (1969).
22. H. Schmitt von Sydow, ‘Liberté, démocratie, droits fondamentaux et etat de droit. analyse de l’art. 7 du Traité UE’, (2001) 2 Revue du Droit de l’Union Européenne 285; A. Verhoeven, ‘How democratic need European Union members be? Some thoughts after Amsterdam’, (1998) 1 European Law Review 217; A. von Bogdandy, ‘The European Union as a human rights organisation? Human rights and the core of the European Union’, (2007) 4 Common Market Law Review 1307.
23. B. De Witte and G. Toggenburg, ‘Human rights and membership of the European Union’, in S. Peers and A. Ward (Eds), The European Union Charter of Fundamental Rights (Oxford University Press, 2004) at 73.
24. Unfortunately, this does not mean that the right for individuals to access the Court will be enhanced. The Treaty of Lisbon, in fact, has only brought minor changes to the wording of Art. 230 TEU. Cf. Art. 263 of the Treaty on the Functioning of the European Union. On this particular issue see in this volume the contribution by G. Sanna, “Chapter 9.”