- Proposal for a Council Regulation establishing a European Union Agency for Fundamental Rights - Proposal for a Council Decision empowering the European Union Agency for Fundamental Rights to pursue its activities in areas referred to in Title VI of the Treaty of the European Union - Montesquieu Instituut

 

COUNCIL OFBrussels, 10 November 2006

THE EUROPEAN UNIONPUBLIC

15033/06

LIMITE

DOCUMENT PARTIALLY ACCESSIBLE TO THE PUBLIC

JAI 578 CATS 165 COHOM 162 COEST 311

NOTE from :

Presidency

to : Coreper

Subject : Proposal for a Council Regulation establishing a European Union Agency for

Fundamental Rights

Proposal for a Council Decision empowering the European Union Agency for

Fundamental Rights to pursue its activities in areas referred to in Title VI of the Treaty of the European Union

I. INTRODUCTION

The Ad hoc Working Party on Fundamental Rights and Citizenship met sixteen times during the

Austrian Presidency to discuss the proposals. The compromise proposal of the Austrian Presidency

with regard to a consolidated text and the Preamble of the Regulation is set out in document

10755/06 JAI 321 CATS 128 COHOM 114 COEST 187.

The European Council of June 2006 took note of the progress achieved on the setting up of the

European Union Agency for Fundamental Rights and called for the necessary steps to be taken as

soon as possible, so that the Agency is up and running as from 1 January 2007.

From July to October 2006 the Presidency has held a series of informal bilateral consultations

aimed at solving the outstanding questions. In the course of those discussions it has emerged that

the principal outstanding question is the extension of the competence of the Agency to the issues

covered by Title VI TEU. It is the understanding of the Presidency that finding a compromise

solution to this question is an essential precondition for reaching an overall agreement on the

establishment of the Agency.

The Presidency presented the results of its bilateral consultations in Coreper on 27 September 2006

and in the JHA Council on 6 October 2006. The Presidency proposed to look for a compromise that

would enable the extension of the Agency's tasks to Title VI but in a more limited form than that

originally proposed by the Commission. The majority of delegations that took the floor in the JHA

Council on 6 October 2006 gave their support to the approach of the Presidency. Stressing the

importance of giving the Agency certain tasks under Title VI, these delegations urged the

Presidency to continue to seek a solution to the question concerning Title VI. A number of

delegations emphasised that empowering the Agency to act under Title VI constituted in their view

An informal Trialogue meeting focusing on the question of the extension of the Agency's remit in

respect of issues governed by Title VI TEU was held between the Presidency, the Commission and

the European Parliament on 3 October 2006. Another Trialogue meeting is scheduled to take place

in Strasbourg on 15 November 2006.

At its meetings of 9 and 24 October 2006, the Ad hoc Working Party on Fundamental Rights and

Citizenship examined the text of Article 29 (transitory arrangements) of the proposed Council

Regulation (see document 14401/06 JAI 530 CATS 158 COHOM 156 COEST 279 FIN 502).

In the present document, the Presidency submits to COREPER all questions that, in the view of the

Presidency, remain outstanding, with a view to adopting a general approach on the text. These

questions are set out in point II.

The text of the proposal for a Council Regulation, based on document 10755/06 JAI 321 CATS 128

COHOM 114 COEST 187, is set out in Annex I. Compromise proposals by the Presidency are

indicated in italics.

A compromise proposal by the Presidency for the text of a Council Decision giving the European

Union Agency for Fundamental Rights certain tasks in areas referred to in Title VI of the Treaty on

European Union is set out in Annex II.

The European Parliament has not delivered its opinion yet.

The draft is subject to reservations (see below point III).

In the compromise proposal by the Austrian Presidency, it was suggested to delete Article 3(2) in its

entirety and to transfer its content, including the reference to the Charter, to the Preamble.

In the context of the discussions concerning the Charter it has emerged that the majority of the

delegations would prefer to make reference to the Charter in the text of the Regulation. However,

they have indicated that they might accept a solution where reference was made to the Charter only

in the Preamble, as a part of a wider compromise package on the establishment of the Agency. In

this context, they have stressed the importance of extending the Agency's mandate to questions

covered by Title VI of the TEU.

On the basis of the informal consultations conducted by the Presidency, and in the light of the

present state of the discussions concerning the Agency's remit under Title VI, it seems likely that

the Agency's powers under Title VI will be limited considerably as compared to the Commission's

original proposal. It is the understanding of the Presidency that the solution to be found to the

question concerning Title VI ought to be taken into consideration when possible compromise

solutions to the question of the Charter are explored.

In the view of the Presidency, the operative part of the Regulation will need to contain a definition

of the fundamental rights that the Agency refers to when fulfilling its mandate. For this purpose, the

Presidency proposes a new wording for Article 3(2). The wish of the majority of the delegations to

underline the importance of the Charter has been taken account of by omitting the reference to the

explanations of the Charter from paragraphs 2 and 9 of the Preamble.

The Committee is invited to examine this compromise solution.

As regards the so-called potential candidate countries (i.e. Western Balkan countries), and in

follow-up to the COREPER meeting on 8 June 2006, a compromise solution seemed to emerge with

regard to the proposal set out in Annex I (Articles 3(3) and 27). The proposal is the same as the one

set out in document 10289/06 JAI 300 CATS 121 COHOM 104 COEST 177 + COR 1, prepared by

the Austrian Presidency for the General Affairs and External Relations Council of 12 June 2006.

The proposed wording provides for a possibility for the potential candidate countries to participate

in the work of the Agency as observers. The proposal does not foresee an automatic extension of the

Agency's scope to the potential candidate countries but merely states an option. As is well-known,

no Stabilisation and Association Agreement with a potential candidate country is currently in force,

and according to estimates of the Commission, it will still take a considerable number of years until

such agreements will be in place. Even after the entry into force of a relevant agreement, a decision

of the respective Association Council on the participation in the Agency's work will be required for

the extension of the Agency's activities to the country in question. As the Agency could deal with

fundamental rights issues in this country only to the extent necessary for its gradual alignment to

Community Law, the scope of the Agency's activities in this country would be more limited than in

relation to the Community and its Member States.

The Committee is invited to agree on the proposal as set out in Articles 3(3) and 27 of the proposed

Regulation.

While agreement on the general characteristics of the compromise has been reached, the text of the

declaration has not yet been discussed. The Presidency thus proposes the following wording for the

declaration:

"The Council and the Commission consider that neither the Treaties nor the Regulation

establishing the European Union Agency for Fundamental Rights preclude the possibility for

the Council to seek the assistance of the future European Union Agency for Fundamental

Rights when deciding to obtain from independent persons a report on the situation in a

Member State within the meaning of Article 7 TEU if it considers that the European Union

Agency for Fundamental Rights offers the necessary guarantees of independence."

The Committee is invited to examine the proposal for the text of the declaration in order to agree to

this compromise solution.

Procedure for the Appointment of the Director of the Agency

During the Austrian Presidency it was discussed whether the appointment procedure of the Director

of the Agency should follow the horizontal principles currently examined by the Working Party on

the Staff Regulations or whether a specific appointment procedure should be opted for. In the light

of the exceptional character of this Agency, agreement was reached in COREPER on 8 June 2006

on the application of a particular appointment procedure. It was agreed that a declaration by the

Council, the Commission and the European Parliament would be included in the minutes of the

Council stating that the procedure laid down by Article 13 of the Regulation is only applied in the

This exceptional nature of the Agency for Fundamental Rights justifies that the solutions

generally followed in the nomination of directors for agencies are not, in their entirety,

followed in the nomination of the director for the Agency for Fundamental Rights, and that, in

the case of this Agency, a more prominent role is given to the Parliament and to the Council

under Article 13 of the Regulation.

This solution cannot in any way be regarded as constituting a precedent which could be

referred to when nominating the director of any other agency, nor for the extension of his or

her mandate."

The Committee is invited to examine the proposal for the text of the declaration in order to agree to

this compromise solution.

Competence of the Agency regarding issues governed by the Title VI TEU

In the view of the Presidency, finding an overall compromise of the establishment of the Agency

presumes that a solution is found whereby the Agency can exercise certain functions under Title VI

as of its establishment. The Presidency considers that there are currently two alternative ways for

fulfilling this objective.

First, the scope of application of the Council Decision empowering the Agency to act in areas

referred to in Title VI TEU could be narrowed down so as to take account of the specific nature of

Council Decision giving the Agency certain tasks in areas referred to in Title VI TEU (Option 1)

As the first option, the Presidency proposes a Council Decision, based on Articles 30, 31 and

34(2)(c) of the TEU, whereby the Agency would be given certain tasks in the areas covered by Title

VI of the TEU. In this option, however, the Agency's powers would be delimited in three principal

ways compared to the original proposal from the Commission.

First, the Agency's powers under Title VI would be limited to Union institutions only. While

recognising the different functions of the Council of Europe bodies and the future Agency, such a

limitation could be justified since, based on the case law of the European Court of Human Rights,

the main lacuna in fundamental rights protection with respect to the European Union concerns the

measures taken by the Union institutions.

Secondly, the right of the Agency to respond to requests made by the European Parliament, the

Council or the Commission could be further circumscribed under Title VI. The Presidency proposes

that right to be limited to the thematic areas determined in the decision itself or by the Multi-annual

Framework.

Thirdly, the powers of the Agency's action would be confined more closely and more explicitly to

measures taken in the areas of police cooperation and judicial cooperation in criminal matters. In

the current proposal, a closer link has been created between the activities of the Agency and the

tasks and powers of the Union institutions under Title VI.

In addition, a limitation of the temporal validity of the Council Decision should be foreseen so as to

A combination of a review clause and a possibility for informal consultation (Option 2)

Alternatively, since the Agency will gather a broad spectrum of expertise in fundamental rights

questions, the Union institutions and the Member States could, as appropriate and on a voluntary

basis, avail of this expertise also within the areas of police and judicial cooperation in criminal

matters. Such a possibility would be acknowledged in a specific declaration to be adopted by the

Council and would exist as of the entry into force of the Council Regulation establishing the

Agency. The declaration to be adopted by the Council would not require a legal basis.

In addition, there would be a review ("rendez-vous") clause whereby the Council would agree to

reconsider, before 31 December 2009, the possibilities to empower the Agency to pursue its

activities in the areas of covered by Title VI. Such reconsideration would be separate from the

wider review process concerning the Agency's tasks under Articles 30 and 31 of the Regulation.

More specifically, this option would consist of the following elements:

First, Article 28 of the Regulation could be deleted and replaced by a new recital as follows:

"Nothing in this Regulation should be interpreted to prejudice the question of whether the

remit of the Agency should be extended to cover the areas of police cooperation and judicial

cooperation in criminal matters;"

Secondly, the following declarations would be inserted in the minutes of the Council:

"The Council

Bearing in mind that, when fulfilling its mandate under Regulation (EC) 2006/XXX, the

European Union Agency for Fundamental Rights will acquire general expertise on

fundamental rights,

Considers that the Union institutions, when acting in the legislative process, may benefit, as

appropriate and on a voluntary basis, from such expertise also within the areas of police and

judicial cooperation in criminal matters, and

Considers that this general expertise may also be of use to the Member States that wish to

avail themselves thereof when implementing legislative acts of the Union in that area."

The Committee is invited to examine this option with a view to reaching a compromise solution.

III. RESERVATIONS

The draft Regulation is subject to following reservations:

Parliamentary scrutiny reservations by CZ, IT, SE, and PL.

General scrutiny reservations by DELETED.

HU lodged a parliamentary scrutiny reservation on Article 5.

ANNEX I

Proposal for a

COUNCIL REGULATION

establishing a European Union Agency for Fundamental Rights

THE COUNCIL OF THE EUROPEAN UNION,

Having regard to the Treaty establishing the European Community, and in particular Article 308

thereof,

Having regard to the proposal from the Commission1,

Having regard to the opinion of the European Parliament2,

Having regard to the opinion of the European Economic and Social Committee3,

Having regard to the opinion of the Committee of the Regions4,

Whereas:

(1) The European Union is founded on the principles of liberty, democracy, respect for human

rights and fundamental freedoms, and the rule of law, which are common values to the

Member States.

(2)1 The Charter of Fundamental Rights of the European Union 2and the accompanying

explanations, bearing in mind its status, reflects the rights as they result, in particular, from

the constitutional traditions and international obligations common to the Member States, the

Treaty on European Union, the Community Treaties, the European Convention for the

Protection of Human Rights and Fundamental Freedoms3, the social charters adopted by the

Community and by the Council of Europe and the case law of the Court of Justice of the

European Communities and of the European Court of Human Rights.

(3) The Community and its Member States must respect Fundamental Rights when

implementing Community law.

(4) Greater knowledge of and broader awareness of Fundamental Rights issues in the Union are

conducive to ensuring full respect of Fundamental Rights. It would contribute to this

objective to establish a Community agency whose tasks would be to provide information

and data on Fundamental Rights matters. Moreover, developing effective institutions for the

protection and promotion of human rights is a common value of the international and

European societies, as expressed by Recommendation No R (97) 14 of the Committee of

Ministers of the Council of Europe of 30 September 1997.

(5) The Representatives of the Member States, meeting within the European Council on

13 December 2003, agreed to build upon the existing European Monitoring Centre on

Racism and Xenophobia established by Council Regulation (EC) No 1035/97 of 2 June

19974 and to extend its mandate to make it a Human Rights Agency. They also decided on

that occasion that the seat of the Agency should remain in Vienna.

(7) A European Union Agency for Fundamental Rights should accordingly be established,

building upon the existing European Monitoring Centre on Racism and Xenophobia, to

provide the relevant institutions and authorities of the 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.

(8) It is recognised that the Agency should act only within the scope of application of

Community law.1

(9) The Agency should refer in its work to Fundamental Rights within the meaning of Article

6(2) of the Treaty on European Union, including the European Convention on Human

Rights and Fundamental Freedoms, and as reflected in particular in the Charter of

Fundamental Rights, and the accompanying explanations bearing in mind its status.2 The

close connection to the Charter should be reflected in the name of the Agency.

(10) As the Agency is to be built upon the existing European Monitoring Centre on Racism and

Xenophobia, the work of the Agency should continue to cover the phenomena of racism,

xenophobia and anti-Semitism, the protection of rights of persons belonging to3 minorities,

as well as gender equality, as essential elements for the protection of Fundamental Rights.

(11) The thematic areas of activity of the Agency should be laid down in the Multi-annual

Framework, thus defining the limits of the work of the Agency. Due to the political

(12) The Agency should collect objective, reliable and comparable information on the

development of the situation of Fundamental Rights, analyse this information in terms of

causes of disrespect, consequences and effects and examine examples of good practice in

dealing with these matters.

(13) The Agency should have the right to formulate opinions to the Union institutions and to the

Member States when implementing Community law, either on its own initiative or at the

request of the European Parliament, the Council or the Commission, without interference

with the legislative and judicial procedures established in the Treaty. Nevertheless, the

institutions should be able to request opinions on their legislative proposals or positions

taken in the course of legislative procedures as far as their compatibility with Fundamental

Rights are concerned.

(14) The Agency should present an annual report on Fundamental Rights issues covered by the

areas of the Agency's activity, also highlighting examples of good practice. Furthermore, the

Agency should produce thematic reports on topics of particular importance to the Union's

policies.

(15) The Agency should take measures to raise the awareness of the general public about their

Fundamental Rights, and about possibilities and different mechanisms for enforcing them in

general, without, however, dealing itself with individual complaints.

(16) The Agency should work as closely as possible with all relevant Union institutions as well

(18) The Agency should collaborate closely with the Council of Europe. Such cooperation should

guarantee that any overlap between the activities of the Agency and those of the Council of

Europe is avoided, in particular by elaborating mechanisms to ensure complementarity and

added value, such as the conclusion of a bilateral cooperation agreement and the

participation of an independent person appointed by the Council of Europe in the

management structures of the Agency with appropriately defined voting rights.

(19) Recognising the important role of civil society in the protection of Fundamental Rights, the

Agency should promote dialogue with civil society and work closely with non-governmental

organisations and with institutions of civil society active in the field of Fundamental Rights.

It should set up a cooperation network called the "Fundamental Rights Platform" with a

view to creating a structured and fruitful dialogue and close cooperation with all relevant

stakeholders.

(20) Given the particular functions of the Agency, each Member State should appoint one

independent expert to the Management Board. Having regard to the principles relating to the

status and functioning of national institutions for the protection and promotion of human

rights (so called Paris Principles,) the composition of that Board should ensure the Agency's

independence from both the Community institutions and the Member State's governments,

and assemble the broadest possible expertise in the field of Fundamental Rights;

(21) In order to ensure the high scientific quality of the work of the Agency, the Agency should

avail itself of a Scientific Committee in order to guide its work by means of scientific

(23) Considering the significant role played by the European Parliament in the defence,

mainstreaming and promotion of Fundamental Rights, it should be involved in activities of

the Agency, including the adoption of the Multi-annual Framework for the Agency and

given the exceptional nature and task of the Agency, the selection of the candidates

proposed for the post of the Director of the Agency without setting a precedent for other

Agencies.1

(24) The Agency should apply the relevant Community legislation concerning public access to

documents as set out in Regulation (EC) No 1049/2001 of 30 May 2001 of the European

Parliament and of the Council,2 the protection of individuals with regard to the processing of

personal data as set out in Regulation (EC) No 45/2001 of 18 December 2000 of the

European Parliament and of the Council,3 and concerning languages, as set out in Regulation

No 1 of 15 April 19584 and in Council Regulation (EC) No 2965/94 of 28 November 1994.5

(25) Commission Regulation (EC, Euratom) No 2343/2002 of 19 November 20026 on the

framework Financial Regulation for the bodies referred to in Article 185 of Council

Regulation (EC, Euratom) No 1605/2002 on the Financial Regulation applicable to the

general budget of the European Communities7 should apply to the Agency, as well as

Regulation (EC) No 1073/1999 of 25 May 1999 of the European Parliament and the

Council8 concerning investigations conducted by the European Antifraud Office (OLAF).

(26) The Staff Regulations of Officials of the European Communities, the Conditions of

Employment of Other Servants of the European Communities and the rules adopted jointly

by the European Community institutions for the purpose of applying these Staff Regulations

(27) The Agency should have legal personality and succeed the European Monitoring Centre on

Racism and Xenophobia as regards all legal obligations, financial commitments or liabilities

carried out by the Centre or agreements made by the Centre as well as the employment

contracts with the staff of the Centre.1 [...].

[(28) The Agency should be open to the participation of candidate countries. Furthermore, the

countries with which a Stabilisation and Association agreement has been concluded should

be allowed to participate in the Agency, since this will enable the Union to support their

efforts towards European integration2 by facilitating a gradual alignment of their legislation

with Community law as well as the transfer of know-how and good practice, particularly in

those areas of the acquis that will serve as a central reference point for the reform process in

the Western Balkans.]3.

(29) The Agency should initiate the necessary evaluations of its activities in due time, on the

basis of which the Agency's scope, tasks and working methods could be reviewed.

(30) Since the objectives of the action to be taken, namely the provision of comparable and

reliable information and data at European level in order to assist the Union institutions and

the Member States in respecting Fundamental Rights, cannot be sufficiently achieved by the

Member States and can therefore, by reason of the scale and impact of the proposed action,

be better achieved at Community level, the Community may adopt measures, in accordance

with the principle of subsidiarity set out in Article 5 of the Treaty. In accordance with the

principle of proportionality as set out in that Article, this Regulation does not go beyond

(31) The contribution made by the Agency to ensuring full respect of Fundamental Rights in the

framework of Community law is likely to help achieve the Community's objectives.1 With

regard to the adoption of this Regulation, the Treaty does not provide for powers other than

those set out in Article 308.

(32) [The Council should have the possibility of adopting a Decision pursuant to Title VI of the

Treaty on European Union to empower the Agency to pursue its activities, also with respect

to areas covered by that Title.].

(33) As Council Regulation (EC) No 1035/97 would have to be substantially amended for the

establishment of the Agency, it should be repealed in the interests of clarity.

HAS ADOPTED THIS REGULATION.

CHAPTER 1

SUBJECT MATTER, OBJECTIVE, SCOPE, TASKS AND AREAS OF ACTIVITY

Article 1

Subject matter

Article 2

Objective

The objective of the Agency shall be to provide the relevant institutions, bodies, offices and

agencies of the Community and its Member States when implementing Community law with

assistance and expertise relating to 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 3

Scope

• 1. 

  The Agency shall carry out its tasks for the purpose of meeting the objective set in Article 2

within the competencies of the Community as laid down in the Treaty establishing the European

Community.

• 2. 

  The Agency shall refer in carrying out its tasks to fundamental rights as guaranteed by

international human rights treaties, in particular the European Convention for the Protection of

Human Rights and Fundamental Freedoms signed in Rome on 4 November 1950 and its Protocols,

and as they result from the constitutional traditions common to the Member States as general

principles of Community law.

31 The Agency shall deal with fundamental rights issues in the European Union and in its

Article 4

Tasks1

• 1. 

  To meet the objective set in Article 2 and within its competences laid down in Article 3, the

Agency shall:

(a) collect, record, analyse and disseminate relevant, objective, reliable and comparable

information and data, including results from research and monitoring communicated to

it by Member States, Union institutions as well as bodies, offices and agencies of the

Community and the Union, research centres, national bodies, non-governmental

organisations, third countries and international organisations and in particular by the

competent bodies of the Council of Europe;

(b) develop methods and standards to improve the comparability, objectivity and reliability

of data at European level, in cooperation with the Commission and the Member States;

(c) carry out, cooperate with or encourage scientific research and surveys, preparatory

studies and feasibility studies, also, where appropriate and compatible with its priorities

and its annual work programme, at the request of the European Parliament, the Council

or the Commission.

(d) formulate and publish conclusions and opinions on specific thematic topics, for the

(e)1 [...]

(f) publish an annual report on fundamental rights issues covered by the areas of the

Agency's activity, also highlighting examples of good practice;

(g) publish thematic reports based on its analysis, research and surveys;

(h) publish an annual report on its activities; and

(i) develop a communication strategy and promote dialogue with civil society, in order to

raise public awareness of fundamental rights and actively inform about its work.

• 2. 

  The conclusions, opinions and reports referred to in paragraph 1 may concern proposals from

the Commission under Article 250 of the Treaty or positions taken by the institutions in the

course of legislative procedures only where a request by the respective institution has been

made in accordance with Article 4(1)(d). They shall not deal with the legality of acts within

the meaning of Article 230 or with the question whether a Member State has failed to fulfil an

obligation under the Treaty within the meaning of Article 226 of the Treaty.

Article 52

Areas of activity

• 2. 

  The Framework shall:

(a) cover five years;

(b) determine the thematic areas of the Agency's activity, which must include the fight against

-

racism, xenophobia and related intolerance;

(c) be in line with the Union priorities, taking due account of the orientations resulting from

the European Parliaments resolutions and Council conclusions in the field of fundamental

rights;

(d) have due regard to the Agency's financial and human resources; and

(e) include provisions with a view to ensuring complementarity with the remit of other

Community and Union bodies, offices and agencies, as well as with the Council of Europe

and other international organisations active in the field of fundamental rights.

• 3. 

  The Agency shall carry out its tasks within the thematic areas determined by the Multi-annual

Framework. This shall be without prejudice to the responses of the Agency to requests from

the European Parliament, the Council or the Commission under Articles 4 (1) c) and d) [...]

outside these thematic areas, provided its financial and human resources so permit.

• 4. 

  The Agency shall carry out its tasks in the light of its Annual Work Programme and with due

regard to the available financial and human resources.

(a) set up and co-ordinate information networks as well as use existing networks;

(b) organize meetings of external experts and,

(c) whenever necessary, set-up ad hoc working Parties.

• 2. 

  In pursuing its activities, the Agency shall, in order to achieve complementarity and guarantee

the best possible use of resources, take account, where appropriate, of information collected

and of activities undertaken, in particular by

(a) Union institutions as well as bodies, offices and agencies of the Community and the

-

Union, and by bodies, offices and agencies of the Member States;

(b) the Council of Europe, by referring to the findings and activities of the Council of

Europe's monitoring and control mechanisms, as well as of the Council of Europe

Commissioner for Human Rights; and

(c) the Organisation of Security and Co-operation in Europe (OSCE), the United Nations and

other international organisations.

• 3. 

  The Agency may enter into contractual relations, in particular subcontracting arrangements,

with other organisations, in order to accomplish any tasks which it may entrust to them. The

Article 8

Cooperation with organisations at Member State and international level

• 1. 

  In order to ensure close co-operation with Member States, each Member State shall nominate

a government official as a National Liaison Officer, who shall be the main1 contact point for

the Agency in the Member State. The National Liaison Officers may, inter alia, submit

opinions on the draft Annual Work Programme to the Director prior to its submission to the

Management Board. The Agency shall communicate to the National Liaison Officers all

documents drawn up in accordance with Article 4(1)(a), (b), (c), (d), (e), (f), (g), (h) and (i).

• 2. 

  To help it carry out its tasks, the Agency shall cooperate with
• - 

  governmental organisations and public bodies competent in the field of fundamental

rights in the Member States, including national human rights institutions;

• - 

  the Organisation for Security and Co-operation in Europe (OSCE), especially the Office

for Democratic Institutions and Human Rights (ODIHR) the United Nations2 and other

international organisations.

• 3. 

  The administrative arrangements for the cooperation provided for by paragraph 2 shall

comply with Community law and shall be adopted by the Management Board on the basis of

the draft submitted by the Director after the Commission has delivered an opinion. Where the

Commission expresses its disagreement with these arrangements, the Management Board

Article 9

Cooperation with the Council of Europe

In order to ensure complementarity and added value, the Agency shall coordinate its activities with

those of the Council of Europe, particularly with regard to the Annual Work Programme pursuant to

Article 11(6)(a) and to cooperation with civil society in accordance with Article 9a. To this end, the

Community shall, in accordance with the procedure provided for in Article 300 of the Treaty, enter

into an agreement with the Council of Europe for the purpose of establishing close cooperation

between the latter and the Agency. This agreement shall include the appointment of an independent

person by the Council of Europe, to sit on the Agency's Management Board and on its Executive

Board, in accordance with Articles 11 and 12.

Article 9a

Cooperation with Civil Society; Fundamental Rights Platform

• 1. 

  The Agency shall closely cooperate with non-governmental organisations and with

institutions of civil society, active in the field of fundamental rights including in combating

racism and xenophobia at national, European or international level. To that end, the Agency

shall establish a cooperation network1 (Fundamental Rights Platform), composed of non-

governmental organisations dealing with human rights, trade unions and employer's

organisations, relevant social and professional organisations, churches, religious,

philosophical and non-confessional organisations, universities and other qualified experts of

European and international bodies and organisations.

• 4. 

  The Agency shall call upon the Platform in particular, to:

(a) make suggestions to the Management Board on the Annual Work Programme to be

adopted under Article 11(6)(a);

(b) give feedback and suggest follow up to the Management Board on the annual report

provided for in Article 4(1)(f ) and

(c) communicate outcomes and recommendations of conferences, seminars and meetings

relevant to the work of the Agency to the Director and the Scientific Committee.

• 5. 

  The Platform shall be coordinated under the authority of the Director.

CHAPTER 3

ORGANISATION

Article 10

Bodies of the Agency

The Agency shall comprise:

(a) a Management Board;

(b) an Executive Board;

(c) a Scientific Committee; and

(d) a Director.

(a) one independent person appointed by each Member State, having high level

responsibilities in an independent national human rights institution or other public or

private sector organisation;1

(b) one independent person appointed by the Council of Europe; and

(c) two representatives of the Commission.

• 2. 

  Each member of the Management Board may be represented by an alternate member meeting

the above requirements and appointed by the same procedure. The list of the members and

alternate members of the Board shall be made public and shall be updated by the Agency on

its web site.

• 3. 

  The term of office of the members and alternate members of the Management Board shall be

five years. It shall not be renewable.

• 4. 

  Apart from normal replacement or death, the term of office of the member or the alternate

member shall end only when he or she resigns. However, where a member or an alternate

member no longer meets the criteria of independence, he or she shall forthwith inform the

Commission and the Director of the Agency. The party concerned shall appoint a new

member or a new alternate member for the remaining term of office. The party concerned

shall also appoint a new member or a new alternate member for the remaining term of office,

if the Management Board has established, based on a proposal of one third of its members or

of the Commission, that the respective member or alternate member no longer meets the

• 6. 

  The Management Board shall ensure that the Agency performs the tasks entrusted to it. It

shall be the Agency's planning and monitoring body. In particular, it shall:

(a) adopt the Agency's Annual Work Programme in accordance with the Multi-annual

Framework, on the basis of a draft submitted by the Agency's Director after the

Commission and the Scientific Committee have delivered an opinion. It shall be in

accordance with the available financial and human resources and shall take into account

the research and statistical work of the Community. The Annual Work Programme shall

be transmitted to the European Parliament, the Council and the Commission;

(b) adopt the annual reports referred to in Article 4(1)(f) and (h), comparing in the latter

one, in particular, the results achieved with the objectives of the annual work

programme; without prejudice to Article 12a(5), the Scientific Committee shall be

consulted before adoption of the report referred to in Article 4(1)(f); the reports shall be

transmitted not later than 15 June to the European Parliament, the Council, the

Commission, the Court of Auditors, the European Economic and Social Committee and

the Committee of the Regions;

(c) appoint and, if necessary, dismiss the Agency's Director;

(d) adopt the Agency's annual draft and final budgets;

(g) adopt the Agency's rules of procedure on the basis of a draft submitted by the Director

after the Commission , the Scientific Committee and the person mentioned in (1)(b)1

have delivered an opinion;

(h) adopt the financial rules applicable to the Agency on the basis of a draft submitted by

the Director after the Commission has delivered an opinion, in accordance with Article

20(11);

(i) adopt the necessary measures to implement the Staff Regulations of Officials of the

European Communities and the Conditions of Employment of Other Servants of the

European Communities, in accordance with Article 23(3);

(j) adopt the arrangements on transparency and access to documents in accordance with

Article 16(2);

(k) appoint and revoke the members of the Scientific Committee in accordance with

Article 12a(1) and (3) ; and

(l) establish that a member or an alternate member of the Management Board no longer

meets the criteria of independence, in accordance with paragraph 4.

• 7. 

  The Management Board may delegate its responsibilities except for matters referred to in
• 8. 

  Decisions by the Management Board shall be taken by a simple majority of the votes cast,

except as regards the decisions referred to in paragraph 5 as well as in the points (a), (b), (c),

(d), (e), (g), (k) and (l) of paragraph 6, where a two-thirds majority1 of all members shall be

required. Each member of the Management Board, or, in his or her absence, his or her

alternate shall have one vote. The Chairperson shall have the casting vote. The person

appointed by the Council of Europe may vote2 on decisions referred to in points (a), (b), [...]3

and (k) of paragraph 6.

9.

The Chairperson shall convene the Board twice a year, without prejudice to extraordinary

meetings. The Chairperson shall convene extraordinary meetings on his or her own initiative

or at the request of at least one third of the members of the Management Board.

• 10. 

  The Chairperson or Vice-Chairperson of the Scientific Committee and the Director of the

European Institute for Gender Equality may attend meetings of the Management Board as

observers. The Directors of other relevant Community agencies and Union bodies as well as

of other international institutions mentioned in Articles 8 and 9 may also attend as observers

when invited by the Executive Board.

Article 12

Executive Board

• 1. 

  The Management Board shall be assisted by an Executive Board. The Executive Board shall

be made up of the Chairperson and the Vice-Chairperson of the Management Board, two

other members of the Management Board elected by the Management Board in accordance

• 2. 

  The Executive Board shall be convened by the Chairperson whenever necessary to prepare the

decisions of the Management Board and to assist and advise the Director. It shall adopt its

decisions by simple majority.

3.

The Director shall take part in the meetings of the Executive Board, without voting rights.

Article 12a

Scientific Committee

• 1. 

  The Scientific Committee shall be composed of eleven independent persons, highly qualified

in the field of fundamental rights. The Management Board shall appoint the members

following a transparent call for applications and selection procedure after having consulted

the competent committee of the European Parliament. The Management Board shall ensure

even geographical representation. The members of the Management Board shall not be

members of the Scientific Committee. The rules of procedure referred to in Article 11(6) (g)

shall lay down the detailed conditions governing the appointment of the Scientific Committee.

• 2. 

  The term of office of the members of the Scientific Committee shall be five years. It shall not

be renewable.

• 3. 

  The members of the Scientific Committee shall be independent. They may be replaced only at

their own request, or in the event of their being permanently prevented from fulfilling their

duties. However, where a member no longer meets the criteria of independence, he or she

shall forthwith inform the Commission and the Director of the Agency. Alternatively the

• 5. 

  The Scientific Committee shall be the guarantor of the scientific quality of the Agency's

work, guiding the work to that effect. For that purpose, the Director shall involve the

Scientific Committee as early as appropriate in the preparations of all documents drawn up in

accordance with Article 4(1) (a), (b), (c), (d), [...], (f), (g), and (i).

• 6. 

  The Scientific Committee shall pronounce itself by two thirds majority. It shall be convened

by its Chairperson four times per year. If necessary, the Chairperson shall launch a written

procedure or shall convene extraordinary meetings on his or her own initiative or at the

request of at least four members of the Scientific Committee.

Article 13

Director

• 1. 

  The Agency shall be headed by a Director appointed by the Management Board in accordance

with a co-operation ("concertation") procedure provided for in paragraph 2.

The Director shall be appointed on the basis of his or her personal merit, experience in the

field of fundamental rights and administrative and management skills.

• 2. 

  This cooperation procedure shall be as follows1:

(a) On the basis of a list drawn up by the Commission after a call for candidates and a

transparent selection procedure, applicants will be asked before an appointment is made to

address the Council and the competent European Parliament Committee and to reply to

questions.

• 3. 

  The Director's term of office shall be five years.

In the course of nine months preceding the end of this period, the Commission shall undertake

an evaluation. In the evaluation, the Commission shall assess in particular:

• - 

  the performance of the Director;
• - 

  the Agency's duties and requirements in the coming years.

The Management Board, acting on a proposal from the Commission, taking account of the

evaluation report, and only in those cases where it can be justified by the duties and the

requirements of the Agency, may extend the term of office of the Director once for not more

than three years.

The Management Board shall inform the European Parliament and the Council about its

intention to extend the Director's mandate. Within a delay of one month before the

Management Board formally takes its decision to extend this mandate, the Director may be

asked to make a declaration before the competent committee of the Parliament and answer

questions from its members.

If the term of office is not extended, the Director shall remain in office until the appointment

of his/her successor.

• 4. 

  The Director shall be responsible for:

(d) matters of day-to-day administration;

(e) implementation of the Agency's budget, in accordance with Article 20;

(f) implementation of effective monitoring and evaluation procedures relating to the

performance of the Agency against its objectives according to professionally recognised

standards. The Director shall report annually to the Management Board on the results of

the monitoring system;

(g) cooperation with National Liaison Officers; and

(h) cooperation with Civil Society, including coordination of the Fundamental Rights

Platform in accordance with Article 9a.

• 5. 

  The Director shall perform his/her tasks independently. He or she shall be accountable for the

management of his/her activities to the Management Board and shall participate in its

meetings without voting rights.

• 6. 

  The Director may be called upon at any time by the European Parliament or by the Council to

attend a hearing on any matter linked to the Agency's activities.

7.

The Director may be dismissed by the Management Board before his or her term has expired,

on the basis of a proposal of a third of its members or of the Commission.

• 2. 

  The members and alternate members of the Management Board, the members of the Scientific

Committee and the Director shall undertake to act in the public interest. For this purpose, they

shall make a statement of interests indicating either the absence of any interests which might

be considered prejudicial to their independence or any direct or indirect interests which might

be considered prejudicial to their independence. The statement shall be made in writing when

taking the office and shall be revised in case changes occur with regard to the interests. It

shall be published by the Agency on its website.

Article 16

Transparency and access to documents

• 1. 

  The Agency shall develop good administrative practices in order to ensure the highest

possible level of transparency concerning its activities.

Regulation (EC) No 1049/2001 of the European Parliament and of the Council shall apply to

the documents held by the Agency.

• 2. 

  The Management Board shall, within six months of the commencement of the Agency's

operation adopt specific rules for the practical implementation of paragraph 1.

These shall include inter alia rules for:

• - 

  the openness of meetings;

Article 17

Data protection

Regulation (EC) No 45/2001 of the European Parliament and of the Council shall apply to the

Agency.

Article 18

Review by the Ombudsman

The operations of the Agency are subject to the supervision of the Ombudsman in accordance with

the provisions of Article 195 of the Treaty.

Chapter 5

FINANCIAL PROVISIONS

Article 19

Drawing up of the budget

• 1. 

  Estimates of all the revenue and expenditure of the Agency shall be prepared for each

financial year, corresponding to the calendar year, and shall be shown in the budget of the

Agency.

• 2. 

  The revenue and expenditure shown in the budget of the Agency shall be in balance.
• 4. 

  The expenditure of the Agency shall include staff remuneration, administrative and

infrastructure costs and operating expenses.

• 5. 

  Each year the Management Board, on the basis of a draft drawn up by the Director, shall

produce an estimate of revenue and expenditure for the Agency for the following financial

year. This estimate, which shall include a draft establishment plan, shall be transmitted by the

Management Board to the Commission by 31 March at the latest.

• 6. 

  The estimate shall be transmitted by the Commission to the European Parliament and the

Council (hereinafter the "budgetary authority") together with the preliminary draft budget of

the European Union.

• 7. 

  On the basis of the estimate, the Commission shall enter in the preliminary draft general

budget of the European Union the estimates it considers necessary for the establishment plan

and the amount of the subsidy to be charged to the general budget, which it shall place before

the budgetary authority in accordance with Article 272 of the Treaty.

• 8. 

  The budgetary authority shall authorise the appropriations for the subsidy to the Agency. The

budgetary authority shall adopt the Agency's establishment plan.

• 9. 

  The Agency's budget shall be adopted by the Management Board. It shall become final

following the adoption of the general budget of the European Union. Where appropriate, it

Article 20

Implementation of the budget

• 1. 

  The Director shall implement the Agency's budget.
• 2. 

  By 1 March at the latest following each financial year, the Agency's accounting officer shall

communicate the provisional accounts to the Commission's accounting officer, together with a

report on the budgetary and financial management for that financial year.

The Commission's accounting officer shall consolidate the provisional accounts of the

institutions and decentralised bodies in accordance with Article 128 of Council Regulation

(EC, Euratom) No 1605/2002 ("the Financial Regulation").

• 3. 

  No later than 31 March following each financial year, the Commission's accounting officer

shall transmit the Agency's provisional accounts to the Court of Auditors, together with a

report on the budgetary and financial management for that financial year. The report on the

budgetary and financial management for that financial year shall also be transmitted to the

European Parliament and the Council.

• 4. 

  On receipt of the Court of Auditors' observations on the Agency's provisional accounts,

pursuant to Article 129 of the Financial Regulation, the Director shall draw up the Agency's

final accounts under his own responsibility and forward them to the Management Board for

• 8. 

  The Director shall send the Court of Auditors a reply to its observations no later than

30 September. He/she shall also send this reply to the Management Board.

• 9. 

  The Director shall submit to the European Parliament, at the latter's request, any information

required for the smooth application of the discharge procedure for the financial year in

question, as laid down in Article 146(3) of the Financial Regulation.

• 10. 

  The European Parliament, on a recommendation from the Council acting by a qualified

majority, shall, before 30 April of year N + 2, give a discharge to the Director in respect of the

implementation of the budget for year N.

• 11. 

  The financial rules applicable to the Agency shall be adopted by the Management Board after

the Commission has been consulted. They may not depart from Commission Regulation (EC,

Euratom) No 2343/2002 of 19 November 2002, unless specifically required for the Agency's

operation and with the Commission's prior consent.

Article 21

Combating fraud

• 1. 

  In order to combat fraud, corruption and other unlawful activities, the provisions of

Regulation (EC) No 1073/1999 of the European Parliament and of the Council shall apply

without restrictions to the Agency.

Chapter 6

GENERAL PROVISIONS

Article 22

Legal status and location

• 1. 

  The Agency shall have legal personality.
• 2. 

  In each of the Member States, the Agency shall enjoy the most extensive legal capacity

accorded to legal persons under their laws. In particular it may acquire and dispose of

movable and immovable property and may be a party to legal proceedings.

• 3. 

  The Agency shall be represented by its Director.
• 4. 

  The Agency shall legally succeed the European Monitoring Centre on Racism and

Xenophobia. It shall assume all legal rights and obligations, financial commitments or

liabilities of the Centre. Employment contracts concluded by the Centre before the adoption

of this Regulation shall be honoured.

• 5. 

  The seat of the Agency shall be Vienna.1

Article 23

• 2. 

  In respect of its staff, the Agency shall exercise the powers conferred on the appointing

authority by the Staff Regulations of Officials of the European Communities and on the

authority entitled to conclude contracts by the Conditions of Employment of Other Servants

of the European Communities.

• 3. 

  The Management Board shall, in agreement with the Commission, adopt the necessary

implementing measures, in accordance with arrangements provided for in Article 110 of the

Staff Regulations of Officials of the European Communities and the Conditions of

Employment of Other Servants of the European Communities.

• 4. 

  The Management Board may adopt provisions to allow national experts from Member States

to be employed on secondment at the Agency.

Article 24

Language arrangements

• 1. 

  The provisions of Regulation No 1 of 15 April 1958 shall apply to the Agency.
• 2. 

  The translation services required for the functioning of the Agency shall be provided by the

Translation Centre for the Bodies of the European Union.1

Article 25

Privileges and immunities

The Protocol on the Privileges and Immunities of the European Communities shall apply to the

Agency.1

Article 26

Jurisdiction of the Court of Justice

• 1. 

  The contractual liability of the Agency shall be governed by the law applicable to the contract

in question.

The Court of Justice shall have jurisdiction pursuant to an arbitration clause contained in a

contract concluded by the Agency.

• 2. 

  In the case of non-contractual liability, the Agency shall, in accordance with the general

principles common to the laws of the Member States, make good any damage caused by the

Agency or its servants in the performance of their duties.

The Court of Justice shall have jurisdiction in disputes relating to compensation for any such

damage.

• 3. 

  The Court of Justice shall have jurisdiction in actions brought against the Agency under the

conditions provided for in Article 230 or 232 of the Treaty.

Article 272

Participation of candidate countries and countries with which a Stabilisation and Association

• 2. 

  The participation and the respective modalities shall be determined by a decision of the

relevant Association Council, taking into account the specific status of each country. The

decision shall indicate in particular the nature, extent and manner in which these countries

will participate in the Agency's work, within the framework set in Articles 4 and 5, including

provisions relating to participation in the initiatives undertaken by the Agency, to the financial

contribution and to staff. The decision shall be in line with this Regulation and with the Staff

Regulations of Officials of the European Communities and the Conditions of Employment of

Other Servants of the European Communities. The decision shall provide that the

participating country may appoint an independent person fulfilling the qualifications for

persons referred to in Article 11(1)(a) as observer to the Management Board without right to

vote.

Article 281

Activities under Title VI of the Treaty on European Union

This Regulation shall be without prejudice to the possibility for the Council, acting in accordance

with Title VI of the Treaty on European Union, to empower the Agency to pursue its activities

under this Regulation also with respect to the areas covered by Title VI of the Treaty on the

European Union.

CHAPTER 7

• 2. 

  With regard to the appointment of the Management Board:

(a) The Commission shall take the necessary measures without delay after the entry into force

of this Regulation to ensure that a Management Board to be established in accordance

with Article 11 shall start its work in due course.

(b) Within four1 months from the entry into force of this Regulation, the Member States shall

notify the Commission of the names of the persons whom they have appointed as member

and alternate member of the Management Board, in accordance with Article 11(1) and (2).

After expiry of this period, the Commission shall convene the Management Board,

provided that at least 17 members have been appointed. In such a case and by derogation

from Article 11(8), the decisions of the Management Board shall be taken by a two thirds

majority of the votes of the appointed members. Once 23 members of the Management

Board have been appointed, Article 11(8) shall apply.

(c) In the first meeting of the Management Board, after all appointments have been

completed, the Commission shall choose by lot 15 members of the Management Board,

whose duties are to end, by way of derogation from Article 11(4), upon expiry of the first

three years of their term of office.

• 3. 

  The parties concerned shall start the procedure for appointing a Director of the Agency as

provided for in Article 13(1) without delay after the entry into force of this Regulation.

• - 

  issue an opinion on a proposal from the Commission concerning the text of the call for

candidates for the post of the Director in accordance with Article 13(1) in order to start the

selection procedure;

• - 

  appoint, acting on a proposal from the Commission, an interim Director or extend the

current term of the Director of the Centre for the shortest possible period, pending the

appointment procedure referred to in paragraph 3; and

• - 

  adopt the Agency's budget for year 2007 in accordance with Article 19(9) and a draft budget

for year 2008 in accordance with Article 19(5).1

• - 

  adopt the annual report on the Centre's own activities for 2006, in accordance with Article

11(6) (b).

Article 30

Evaluations

• 1. 

  The Agency shall regularly carry out ex-ante and ex-post evaluations of its activities when

these necessitate significant expenditure. The Director shall notify the Management Board of

the results of these evaluations.

• 2. 

  The Agency shall forward annually to the budgetary authority any information relevant to the
• - 

  assess the possible need to modify the Agency's tasks, scope areas of activity or

structure

• - 

  include an analysis of the synergy effects and the financial implications of any

modification of the tasks; and

• - 

  take into account the views of the stakeholders at both Community and national levels;

and

• 4. 

  The Management Board, in agreement with the Commission, shall determine the timing and

scope of the following external evaluations, which shall be carried out periodically.

Article 31

Review

• 1. 

  The Management Board shall examine the conclusions of the evaluation referred to in Article

31(3) and (4) and issue to the Commission such recommendations as may be necessary

regarding changes in the Agency, its working practices and the scope of its mission. The

Commission shall transmit the evaluation report and the recommendations to the European

Parliament, the Council, the Economic and Social Committee and the Committee of the

Regions and make them public.

• 2. 

  After having assessed the evaluation report and the recommendations, the Commission may

submit any proposals for amendments to this Regulation which it considers necessary.

• 2. 

  References to the repealed Regulation shall be construed as references to this Regulation.1

Article 34

Entry into force and application

This Regulation shall enter into force on the twentieth day following that of its publication in the

Official Journal of the European Union.

This Regulation shall be binding in its entirety and directly applicable in all Member States.

Done at Brussels,

For the Council

The President

______________

ANNEX II

Proposal for a

COUNCIL DECISION

giving the European Union Agency for Fundamental Rights certain tasks in areas referred to in Title

VI of the Treaty on European Union

THE COUNCIL OF THE EUROPEAN UNION,

Having regard to the Treaty on European Union, and in particular Articles 30, 31 and 34(2)(c)

thereof,

Having regard to the proposal from the Commission1,

Having regard to the opinion of the European Parliament2,

Whereas:

(1) [...]3

HAS DECIDED AS FOLLOWS:

Article 1

In conformity with Article 28 of Council Regulation (EC) No 2006/[...], the European Agency for

Fundamental Rights shall have the tasks enumerated in Article 2 of this decision under Title VI of

Article 2

The Agency shall provide the Union institutions, bodies, offices and agencies with assistance and

expertise relating to fundamental rights in order to support them to fully respect fundamental rights

when they take measures or formulate courses of action under the following provisions of the

Treaty on European Union:

• - 

  Article 30
• - 

  Article 31
• - 

  Article 32

Article 3

The Council shall, acting on a proposal from the Commission and after consulting the European

Parliament adopt a Decision containing a Multi-annual Framework for the Agency in relation to

thematic areas subject to Title VI of the Treaty. When preparing its proposal, the Commission shall

consult the Management Board.

Paragraphs 2 and 4 of Article 5 of Regulation (EC) No. 2006/[...] shall apply mutatis mutandis to

the Multi-annual Framework adopted in accordance with paragraph 1.

Article 4

Subject to Article 2, the conclusions and opinions on specific thematic topics formulated by the

Agency under Title VI at the request of the European Parliament, the Council or the Commission

shall be confined to the thematic areas determined by the Multi-annual Framework.

Article 6

Without prejudice to Articles 2 to 5 of this decision, Articles 3, 4 and 6 to 32 of Regulation (EC) No

2006/[...] shall apply by analogy in the context of the Agency's activities under this Decision.

References to Community law in these provisions of Regulation (EC) No 2006/[...] shall be

understood as referring to Union law in the area of Title VI of the Treaty. References to relevant

Community bodies, agencies and offices shall be understood as referring also to Union relevant

bodies established in or on the basis of Title VI.

Article 7

This decision shall cease to apply in the event and to the extent that action in areas referred to in

Title VI should come within the scope of Regulation (EC) No 2006/[...] as a result of a decision

adopted pursuant to Article 42 of the Treaty on European Union or of an amendment to the Treaties

pursuant to Article 48 of that Treaty.

Article 8

This Decision shall take effect on the twentieth day following that of its publication in the Official

Journal of the European Union.

Done at Brussels,

For the Council