38th meeting of the Management Board of the European Union Agency for Fundamental Rights

17 December 2021, Vienna/Online

Dear Madam Chair,

Dear members of the Management Board,

Dear Director, dear Colleagues and friends,

Once again we are forced to meet online. Happily, some of us had the opportunity for a brief encounter in Vienna on the occasion of the Fundamental Rights Forum in October, which apart from being very useful, was also very enjoyable. As always, it is a great pleasure to be addressing you at the FRA Management Board.

When I took the floor before you last year, I said that the past twelve months had not gone smoothly. What should I say at the end of 2021? The Rule of Law is being challenged at the very heart of Europe, the values which Europe stands for are being challenged and sometimes ignored by Governments which contributed themselves to their development, people are drowning around the fortress Europe has become, people are harassed and attacked because of who they are, the pandemic is not yet behind us. The list of the worrying developments that have unfolded in 2021 can be long, but this is not a reason to stand by the road and watch helplessly. On the contrary, this is the very reason our two institutions were created and we shall work closely to address these challenges effectively.

The Fundamental Rights Forum has been an extraordinary opportunity to hear the voice of those who fight for human rights and do not give up. Let me congratulate you, Michael, together with your colleagues, for having put together such an impressive event. We have very grateful that you gave such a large space to the Council of Europe with our participation in Vienna and in the Strasbourg hub. Apart from the Secretary General taking part in a high-level panel on the future of Europe, the Human Rights Commissioner and myself participating in the closing session, we also had 7 greatly attended events in the Strasbourg hub, which dealt with issues such as social rights, hate speech, LGBTIs, data protection, artificial intelligence and the role of youth in fighting corruption.

Although it was impossible to follow all 140 sessions, there was a tangible feeling of togetherness even if we were not all physically in the same place. The Forum was the opportunity to witness again the old Council of Europe motto live: all different, all equal. In our disparities, solidarity is essential, and this solidarity has to go beyond borders, because human rights do not stop at borders. The Forum was also a true moment of intergenerational solidarity, with testimonies from Holocaust survivors and those of the younger generation, who have the responsibility to build a new world in which everybody has their own place. Ageing and loosing hair does not mean losing rights. But also, ageing does not mean forgetting about the world we will leave behind us. The Forum was a good reminder of that.

So, once again, Michael, thank you and congratulations.

Coming to our institutional cooperation, I should underline that in June, FRA welcomed for the first time in its premises the Secretary General of the Council of Europe. On this occasion, Marija Pejčinović Burić and Michael O’Flaherty took stock of the excellent cooperation between the Council of Europe and FRA and finalised the agreement between the Organisation and the Agency on EFRIS.

After the summer, in September, it was the turn of the FRA Director to come to Strasbourg to address the Group of Rapporteurs on External Relations of our Committee of Ministers. This was also the occasion for the Council of Europe Independent Person, Philippe Boillat, to report for the first time a year after his election by the Committee of Ministers. He also underlined the excellent cooperation between the Council of Europe and FRA, within the limits of our respective mandates. Philippe emphasised FRA’s excellence in data collection and its relevance for the work of the Council of Europe monitoring mechanisms. This is even more relevant after the revision of FRA’s Founding Regulation.

To finish on our institutional cooperation, let me say that the fact that Philippe Boillat was elected Chair of AREDIT is yet another evidence of the way we develop and nurture our synergies and complementarities.

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In the next few minutes, let me highlight some concrete examples of our cooperation:

The cooperation in the field of migration and refugees helped to streamline our respective work and contributed to increase our synergies. It resulted in the development of an important joint guidance, “European standards on legal remedies, complaints mechanisms and effective investigations at borders” published on 9 July, in another effort to join forces in the protection of human rights at European borders. This publication was an important complementary follow-up to the previous joint note published in March 2020 on the “Fundamental rights of refugees, asylum applicants and migrants at the European borders”.  Both documents are relevant for the ongoing FRA’s work on providing guidance on (establishing) national independent mechanisms to monitor the compliance with fundamental rights at EU external borders. I am very grateful to FRA for having invited the CPT, the Office of the Commissioner for Human Rights and the Office of the SRSG on Migration and Refugees to contribute to this important exercise. We look forward to seeing the outcome. Human Rights in the European Union borders seem to be the field where fundamental rights are mostly under stress.

Longstanding co-operation with FRA also exists on the rights of the child, both as regards to the CDENF in which FRA is an observer, and in joint activities, notably on Child friendly justice. Fruitful co-operation with FRA is also ongoing on the second edition of the FRA Handbook on European law relating to the rights of the child. The revision of the first edition has taken place following a number of legislative changes as well as important case law relevant to the rights of the child since 2015. It is expected that the next Council of Europe Strategy for the Rights of the Child (2022-2027) will be examined by the Committee of Ministers at the beginning of 2022. We expect that challenges to the adoption by the CM will mainly relate to the references to LGBTI children, gender and EU instruments in the text itself; for the latter one CoE delegation is systematically underlining the lack of relevance of EU instruments in CoE documents. This has been resisted by many delegations, both EU and non-EU member states.

We are grateful to FRA for having initiated in 2018 the preparation of a “Handbook on European law relating to cybercrime and fundamental rights” in cooperation with the Cybercrime Programme Office of the Council of Europe in Bucharest. This Handbook will be a practical tool for future capacity building activities. Following the adoption of the 2nd Additional Protocol to the Budapest Convention on Cybercrime on 17 November by the Committee of Ministers (it is to be opened for signature in May 2022) work on the Handbook can continue. The handbook will of course take into account developments concerning the European Union’s proposed E-evidence Regulation.

Data protection is also certainly an area where cooperation is fruitful. One of our joint “success story”, the Handbook on European Data Protection Law is still considered THE reference amongst professionals and stakeholders (the 2018 version now exists in 21 languages among which 2 translations done under Council of Europe co-operation projects (Georgian and Ukrainian) and one Arabic version underway).

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Let me turn a few moments to the major developments and challenges in the Council of Europe in the last year.

Some of the challenges we face stem from the member states themselves.

This year was the first time that a Council of Europe member state denounced a Convention to which it was a Party. The painful irony is that it concerns Turkey, which left the Istanbul Convention. This ground-breaking treaty aims at combatting violence against women. It provides standards, a monitoring mechanism and international co-operation that no country alone can replicate. Our objective is to expand the membership circle of the Convention. This has been the case recently in the case of Lichtenstein and Moldova.

In Poland, as you know, the Constitutional Tribunal held that the ECHR was incompatible with the Constitution of Poland on certain aspects relating to Article 6 paragraph 1 f the Convention. The finding of incompatibility of the ECHR with a State Party’s Constitution is unprecedented and appears to call into question the authority of the Convention system and, most importantly, the capacity of the High Contracting Party concerned to implement the rights and freedoms enshrined in Article 6 para 1 of the ECHR, as interpreted by the European Court of Human Rights. The Secretary General of the Council of Europe requested the Polish authorities, pursuant to Article 52 of the ECHR, to clarify the manner in which Polish law ensures the effective implementation of Articles 6 and 32 of the Convention. 

Steps have been undertaken so that the European Social Charter – recently ratified by Germany and Spain –becomes more effective. Indeed, the Secretary General has made proposals to improve and simplify its system. We hope that this will encourage governments to take on additional commitments. And this in turn is important given the longer-term economic implications of the pandemic. Safeguarding housing, education and so on is crucial to prevent a health crisis becoming a democratic crisis too. The planned focus chapter of the 2022 FRA annual report will be very timely from that perspective.

On 2 December, the CAHAI adopted a document listing the various elements which could be part of a legal framework of the Council of Europe on Artificial Intelligence, based on the Organisation’s standards on human rights, democracy, and the rule of law. The elements concern both legally binding and non-binding instruments of a transversal character. Possible negotiations of new instrument(s) will begin next year under the auspices of the Committee on Artificial Intelligence (CAI).

Another theme I want to mention is the environment. We are living through a paradigm shift through which a healthy environment is about to become a basic human right. This is not new for the Council of Europe. As you know, the European Court of Human Rights and the European Committee of Social Rights have both developed a substantive protection of the right to a healthy environment based on the provisions of these two treaties. However, the question of a new provision guaranteeing, as such, the right to a healthy, clean, safe and sustainable environment will be considered in 2022. In addition, the Council of Europe will engage in upgrading the Convention on the protection of the environment through criminal law, and will seek to strengthen corporate environmental responsibility through increased government regulation. So, work is under way.

A last word on a unique and irreplaceable player in actively promoting human rights, civil society and Human Rights Institutions. The Committee of Ministers adopted in March 2021 a new Recommendation on the development and strengthening of effective, pluralist and independent national human rights institutions. This text, developed in close cooperation with representatives of civil society, aims at ensuring that NHRIs are established and governed, in the 47 member States, in accordance with the minimum standards of the Paris principles, in particular as regards their terms of reference and competence to promote and protect all human rights for everyone and their autonomy from government.  We are already actively looking at its dissemination and implementation in cooperation with our partners, notably the ENNHRI. This recommendation comes completing a “trilogy”, which includes also a recommendation on the need to strengthen the protection and promotion of civil society space in Europe of 2018 and one on the development of the Ombudsman institution of 2019. The Venice Principles on the Institution of Ombudsman from 2019 complete the Organisation’s normative framework in this respect.

As you can see, our endeavours are huge and challenging, and this is the reason why we value so much our partnership with FRA, because it is by working in concert that we ensure greater progress. It is for this very reason that FRA’s participation in our intergovernmental committees is so much valued.

Thank you very much for your attention.