Juncker’s Vision of Fundamental Rights in Europe

August 31, 2014

There is no doubt that President Jean-Claude Juncker’s election on 15 July 2014 as President of the European Commission is a milestone in the evolution of the EU and that it might set the stage for a federalist turn in EU governance. Although he has denied his federalist attitude a number of times and has claimed that he does not believe that Europe can be constructed in opposition to the nation-state, his election is destined to affect, among other things, the EU’s entire approach to fundamental rights.

This is, in fact, the first time since the Lisbon Treaty entered into force that the European Parliament, having taken into account the proposal presented by the European Council, has elected the President of the Commission. In the past (and according to the previous EU constitutional framework), it was solely the European Council (i.e. the Member States) that retained the power to appoint the President of the Commission.

This shift in decision-making power is certainly due to the new institutional framework resulting from the Lisbon Treaty. In effect, the European Parliament has strengthened its role as co-legislator and increased its political legitimacy, while the Commission has found greater democratic legitimacy as a governing body of the EU.

It is in the light of this revamped institutional structure — designed to produce a more effective legislative cycle — that Juncker, counting on the support of both the European Council and a majority of the European Parliament, is ready to start his five-year mandate with a powerful and innovative agenda. It will address the need to reinforce the EU as a community by accomplishing greater freedom of movement while strengthening the Euro-zone.

But what implications might this decisively more pro-active and empowered role for Commission President have on the area of fundamental rights?

In his 14-page Agenda dated 15 July, Juncker is very cautious when speaking of fundamental rights, stating:

“I intend to make use of the prerogatives of the Commission to uphold, within our field of competence, our shared values, the rule of law and fundamental rights, while taking due account of the diversity of constitutional and cultural traditions of the 28 Member States”.  

According to these very words, Juncker’s address faithfully follows the EU’s renewed approach to fundamental rights, which was triggered when the EU Charter of Fundamental Rights became legally binding. At the same time, Juncker has stated his intention to seriously consider — according to the principle of subsidiarity — the plurality of constitutional and cultural traditions of the EU Member States.

But despite these statements, the new President has announced that he is going “to entrust a Commissioner with specific responsibility for the Charter of Fundamental Rights and the Rule of Law”. Such a proposal is clearly in consonance with the EU’s broad strategy for the effective implementation of the Charter of Fundamental Rights adopted by the European Commission in 2010 (COM(2010) 573 final, 19 October 2010). It is also in line with the EU’s commitment to fighting discrimination.  “Discrimination,” as Juncker has affirmed in his Agenda, must have no place in our Union, whether on the basis of nationality, sex, racial or ethnic origin, religion or belief, disability, age or sexual orientation, or with regard to people belonging to a minority”.

Until now EU law has prohibited discrimination based on sexual orientation, age, disability and religion only in the areas of employment and labour law (cf. The Racial Equality Directive,2000/43/EC, and the Employment Equality Directive, 2000/78/EC). But since 2008, the Commission has been pushing a proposal for a new directive, Proposal for a Council Directive on implementing the principle of equal treatment between persons irrespective of religion or belief, disability, age or sexual orientation (COM(2008) 426 final, 2 July 2008), which would impose a controversial idea of ‘equal treatment’ in other areas including education, social protection, healthcare, and access to goods and services including housing.

This proposal is still being debated in the European Council and to date there are no signs of finding a unanimous agreement between all 28 Member States (see EDW’s analysis of the proposed directive, LINK).  In this regard, President Juncker has stated: “I will therefore maintain the proposal for a directive in this field and seek to convince national governments to give up their current resistance in the Council”.

Shouldn’t we, however, consider the reasons why national governments have expressed resistance to this proposal? Growing voices in several EU Member States disagree with the EU’s approach on non-discrimination, because they fear it would lead to inflexible overregulation and greater social control of enterprises and citizens on a large scale. They are concerned about a growing disrespect for the subsidiarity principle and that, if implemented, the EU’s fundamental rights agenda would result in an even more far-reaching curtailing of each state’s legislative power in the area of non-discrimination.

But according to Art. 51.1, the EU Charter of Fundamental Rights follows a subsidiarity logic:

“The provisions of this Charter are addressed to the institutions and bodies of the Union with due regard for the principle of subsidiarity and to the Member States only when they are implementing Union law. They shall therefore respect the rights, observe the principles and promote the application thereof in accordance with their respective powers”.

We can also find a similar logic in Art. 5 of the Treaty of the European Union:

“Under the principle of subsidiarity, in areas which do not fall within its exclusive competence, the Union shall act only if and in so far as the objectives of the proposed action cannot be sufficiently achieved by the Member States, either at central level or at regional and local level, but can rather, by reason of the scale or effects of the proposed action, be better achieved at Union level”.

In other words, according to these texts, Member States should be allowed to pursue their own ways to protect and respect human rights, as long as they are capable of doing so.

President Juncker has more than once expressed support for respecting the constitutional and cultural traditions of each of the EU’s 28 Member States. He has reaffirmed his belief in the importance of working jointly with them to find different solutions to a number of problems that have arisen at the national level.

Nevertheless, he has also stated his intention of “convincing [Member States] to give up their … resistance” in the Council and achieving the adoption of the proposed equal treatment directive. This may reveal much more than he realizes as it reflects an attitude that is more oriented toward centralising the Commission’s power in the area of fundamental rights than toward respecting subsidiarity.

A process that is designed to achieve a harmonized fundamental rights landscape in the EU by weakening or eroding the subsidiarity principle could profoundly undermine the confidence of Member States in the EU fundamental rights agenda. Therefore, the European Commission should remember the subsidiarity logic that is enshrined in the EU Charter of Fundamental Rights.

We will have to wait and see how President Juncker and his team of 28 Commissioners will implement his agenda. And we will have to see if subsidiarity is respected or if, instead, a politics of centralization and European empowerment takes shape. For the moment, we can only observe that Juncker can count on the support of the Parliament and of the qualified majority of the Council that nominated him. Nevertheless, the Council still has to make a unanimous vote in implementing new legislation in a number of areas including discrimination.

At a time in which the identification of citizens and political groups with the EU is eroding, Juncker would be well-advised to respect the principle of subsidiarity in the area of fundamental rights — and to remain faithful to the Lisbon Treaty in order not to contribute to this process.