Explanatory Memorandum to COM(2020)225 - Amendment of Regulation (EC) No 168/2007 establishing a EU Agency for Fundamental Rights - Main contents

Please note

This page contains a limited version of this dossier in the EU Monitor.

dossier	COM(2020)225 - Amendment of Regulation (EC) No 168/2007 establishing a EU Agency for Fundamental Rights.
source	COM(2020)225
date	05-06-2020

1. CONTEXT OF THE PROPOSAL

• Reasons for and objectives of the proposal

Pursuant to Article 2 of Council Regulation (EC) No 168/2007 establishing a European Union Agency for Fundamental Rights ¹ (“the founding Regulation”), the objective of the Agency is “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 competencies to fully respect fundamental rights”.

Every five years, the European Union Agency for Fundamental Rights (“the Agency”) commissions an independent external evaluation of its achievements (in line with Article 30(3) and i of the founding Regulation). The first external evaluation of the Agency took place in 2012 ² , and did not lead to any amendment to the founding Regulation. The second external evaluation ³ took place in 2017. The Commission services analysed the recommendations made to the Commission by the external evaluator and by the Management Board of the Agency (Staff Working Document of 26 July 2019 ⁴ ).

In light of the findings of the external evaluation and of the analysis of the Commission services, this proposal aims to introduce some targeted technical amendments in the founding Regulation of the Agency.

The purpose of the amendments proposed is twofold:
-provision that an extraordinary Management Board meeting can be convened also at the request of the Commission.

1. The purpose of the amendments proposed is twofold:

–to align certain provisions of the Agency’s founding Regulation with the Common Approach annexed to the Joint Statement of the European Parliament, the Council of the EU and the European Commission on decentralised agencies of 19 July 2012 (hereinafter 'the Common Approach’) ⁵ , in order to enhance the efficiency, relevance and governance of the Agency;

–to clarify that, since the entry into force of the Lisbon Treaty, the scope of the Agency’s activities covers the competences of the Union and therefore includes the thematic areas of police cooperation and judicial cooperation in criminal matters.

Whilst this is a direct legal consequence of the entry into force of the Lisbon Treaty, which replaced the Community by the Union, there is a merit in spelling it out in the founding Regulation in order to fully reflect the Agency’s relevance for assisting the Union institutions, bodies, offices and agencies and the Member States on issues relating to fundamental rights.

The proposal is not an initiative within the Regulatory Fitness Programme (REFIT).

• Consistency with existing policy provisions in the policy area

The Agency was established under Council Regulation (EC) No 168/2007. The Agency’s objective is “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 competencies to fully respect fundamental rights” (Article 2 of the founding Regulation).

Under the proposal, the mandate of the Agency remains intact. Thirteen years after the adoption of the founding Regulation, however, some technical amendments are warranted to align it with the requirements of the Common Approach, for improved governance, efficiency and performance of the Agency, and to clarify that, since the entry into force of the Lisbon Treaty, in December 2009, the Agency’s remit is Union law.

• Consistency with other Union policies

All Union policies are required to respect fundamental rights, as enshrined in the Charter of Fundamental Rights of the European Union (‘EU Charter of Fundamental Rights). By enabling the Agency to provide in a more efficient way expertise and assistance in the area of fundamental rights to EU institutions and bodies, the proposed amendments to the Agency’s founding Regulation will improve the quality of other Union policies.

2. LEGAL BASIS, SUBSIDIARITY AND PROPORTIONALITY

• Legal basis

The legal basis for the proposed Regulation is Article 352 of the Treaty on the Functioning of the European Union (TFEU). It is a general objective of the European Union to ensure that its own action fully respects fundamental rights, as enshrined in the EU Charter of Fundamental Rights. The enhanced efficiency, relevance and governance that the Agency will gain with the technical amendments proposed will further that objective, without there being specific powers provided for in the Treaty to that end.

• Subsidiarity

This proposal addresses certain aspects relating to the internal functioning of the Agency and the way in which it operates within the EU institutional framework. Therefore, the objectives of this proposal cannot be achieved by action at national level.

• Proportionality

The principle of proportionality is fully respected in so far as the amendments proposed concern only those parts of the founding Regulation where clarification or modifications are necessary to improve the Agency’s efficiency, relevance and governance.

• Choice of the instrument

A Regulation of the Council is the only suitable instrument to amend the existing Regulation (EC) No 168/2007 of the Council.

3. RESULTS OF EX-POST EVALUATIONS, STAKEHOLDER CONSULTATIONS AND IMPACT ASSESSMENTS

• Ex-post evaluations

The second external evaluation of the Agency, cited above, concluded that the Agency should continue to do what it does and that its current mandate is relevant and corresponds to stakeholders’ needs. The external evaluator reported that a large majority of stakeholders acclaims the Agency’s EU added value, considers that the quality of the Agency’s outputs is undisputable and that the Agency’s effectiveness and impact at EU level are visible. The external evaluator concluded, however, that some targeted technical amendments of the founding Regulation are warranted to improve the governance, efficiency and performance of the Agency: i) first, it should be made clear that since the entry into force of the Treaty of Lisbon, in December 2009, the Agency is to act within the competences of the Union; ii) second, the Agency’s founding Regulation should be aligned with the Common Approach on decentralised agencies for efficiency gains and better governance.

• Stakeholder consultations

The second external evaluation of the Agency was based on a wide-ranging consultation of stakeholders, including Member States’ authorities, EU and international institutions, civil society organisations, academia and international organisations.

• Collection and use of expertise

The initiative follows the external evaluation of the Agency in 2017 and a Staff Working Document of the Commission services analysing the recommendations made to the Commission by the external evaluator and by the Agency’s Management Board (SWD(2019)313). The Staff Working Document was also based on consultations with the Agency’s stakeholders and on the experiences of the Commission’s representatives in the Agency’s Management Board.

• Impact assessment

The proposed amendments of the Agency’s founding Regulation are of technical nature. They will not create any impact for citizens, businesses, Member States or budgets of public authorities. The impact of the initiative will be limited to the Agency itself. An impact assessment was therefore not needed.

• Regulatory fitness and simplification

Not applicable. The proposal is not linked to REFIT.

• Fundamental rights

The Agency provides data and expertise on the fundamental rights situation in the Member States. It informs the work of EU institutions and Member States in the area of fundamental rights. By improving its governance, efficiency and performance, the proposal will allow the Agency to better carry out its statutory mission.

4. BUDGETARY IMPLICATIONS

The proposal has no budgetary implications, as the Agency will not receive additional tasks and its mandate remains intact.

5. OTHER ELEMENTS

• Implementation plans and monitoring, evaluation and reporting arrangements

In accordance with the Common Approach on decentralised agencies, the proposal includes a provision on the evaluation of the Agency by the Commission.

• Explanatory documents (for directives)

Not applicable.

• Detailed explanation of the specific provisions of the proposal

The proposal contains two articles. The first article specifies the proposed amendments of the Agency’s founding Regulation, while the second article is related to the entry into force of the proposed amending Regulation.

The amendment to Article 3 (Scope) simply reflects the consequence of the entry into force of the Lisbon Treaty for the scope of the Agency’s activities, which became “Union law” instead of “Community law”, and therefore encompasses the area of police cooperation and judicial cooperation in criminal matters (the former so-called “third pillar” of the European Union).

All the other amendments proposed are to align the founding Regulation with the Common Approach and with the Framework Financial Regulation, in order to enhance the efficiency, relevance and governance of the Agency.

All the amendments are therefore of a technical nature and do not alter the mandate of the Agency, nor do they attribute it any additional competences.

In Articles 4, 5, 8, 9, 10, 12 and 15, reference to “Annual Work Programme” in the founding Regulation no longer corresponds to the reality, and should therefore be replaced with references to the “multiannual programming document” (that is, a programming document containing both multi-annual and annual components) that the Agency draws up every year in accordance with the Financial Framework Regulation. Aside from this clerical modification, the following table gives an overview of the amendments proposed to the founding Regulation.

Article	Subject	Changes
1	Subject matter	No change
2	Objective	No change
3	Scope	Replacement of the word “Community” with the word “Union”.
4	Tasks	No change
5	Areas of activities	Deletion of the provisions of the Article that refer to the Multiannual Framework.
5a	The multiannual work programme	Concentration in this new Article of provisions previously spread in various Articles
6	Working methods	No change
7	Relations with relevant Community bodies, offices and agencies	No change
8	Cooperation with organisations at Member State and international level	No change
9	Cooperation with the Council of Europe	No change
10	Cooperation with civil society; Fundamental Rights Platform	No change
11	Bodies of the Agency	No change
12	Management Board	The amendments proposed relate to the: -additional administrative and budgetary skills required from its members; -possibility to reappoint a former member or alternate member for non-consecutive terms; -replacement of a member before the expiry of his/her term completes the 5-year term of his/her predecessor; -specification that a two-third majority is required for the election of the Management Board Chair and Vice-chair and that the other two members of the Executive Board are elected by the majority of the Management Board members (in both cases, the member appointed by the Council of Europe has no right to vote); -provision that the Management Board: is conferred appointing authority powers - which, by decision, shall be delegated to the Director, who, in turn, is authorised to sub-delegate those powers - and that the Board can suspend such delegations where exceptional circumstances so require; adopts a security strategy (including rules on handling EU classified information); adopts rules on the management and prevention of conflict of interests; adopts a communication strategy; -provision that the majority required for decision-making on ordinary matters is the majority of the Management Board members; 2. -provision that an extraordinary Management Board meeting can be convened also at the request of the Commission.
13	Executive Board	Amendments to: -clarify that the Executive Board’s task to supervise the preparatory work for the decisions to be adopted by the Management Board entails scrutinising budgetary and human resources matters; -attribute the tasks of adopting the anti-fraud strategy prepared by the Director; ensuring adequate follow-up to audit and investigations of the European Anti-Fraud Office (OLAF) and of the European Public Prosecutor Office (EPPO); assisting the Director in the implementation of the decisions of the Management Board; -provide that, where necessary, in case of urgency, the Executive Board may take provisional decisions on behalf of the Management Board; -indicate that it can be convened at the request of one of its members ; -clarify that decisions are adopted by majority of the present members and that the Council of Europe representative has voting rights on items related to the decisions on which s/he has a right to vote in the Management Board, in accordance with Article 12(8).
14	Scientific Committee	Amendment to enable the Management Board to draw from the reserve list in case a member needs to be replaced before the end of the Scientific Committee’s mandate.
15	Director	The amendments proposed are to provide that: -the Director’s term can be extended by five years (instead of three) and that the procedure should be initiated in the course of the twelve (instead of nine) months preceding the end of his/her term; -the Director is responsible: for implementing the decisions adopted by the Management Board, the preparation of an action plan to follow up on the conclusions of retrospective evaluations, an anti-fraud strategy, and an action plan to follow up on audits reports and OLAF investigations; -the majority required for the dismissal of the Agency’s Director in the event of misconduct, unsatisfactory performance recurring or serious irregularities is a two-third majority of the Management Board’s members.
16	Independence and public interests	No change
17	Transparency and access to documents	No change
18	Data protection	No change
19	Review by the Ombudsman	No change
20	Drawing up of the budget	No change
21	Implementation of the budget	No change
22	Combating fraud	No change
23	Legal status and location	No change
24	Staff	Deletion of the paragraph providing that the Agency exercises “appointing authority powers” (replaced by the provision that these are exercised by the Management Board who, by decision, delegates them to the Director).
25	Language arrangements	No change
26	Privileges and immunities	No change
27	Jurisdiction of the Court of Justice	No change
28	Participation and scope in respect of candidate countries and countries with which a Stabilisation and Association Agreement has been concluded	No change
29	Transitional arrangements	No change
30	Evaluations	Amendments to specify that the evaluation of the Agency will be commissioned by the Commission, every five years starting from the entry into force of this amending Regulation; and that on the occasion of every second evaluation the results achieved by the Agency will be assessed with regard to its objectives, mandate and tasks, including an assessment of whether the continuation of the Agency is still justified with regard to these objectives, mandate and tasks.
31	Review	Deleted (consequence of the amendments to Article 30)
32	Commencement of the Agency’s operation	No change
33	Repeal	No change
34	Entry into force and application	No change

Please note

Contents

1.

The purpose of the amendments proposed is twofold:

2.

-provision that an extraordinary Management Board meeting can be convened also at the request of the Commission.