EU and Member State competences in human rights

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Lewis, Tamara
Portaru (Raducanu), Adina
Schoen, Ricki
Murphy, Karen
McIntyre, TJ
Finlay, Graham
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This report is submitted in connection with Work Package 8 of the FP7 FRAME (Fostering Human Rights Among European Policies) project. The report falls within Cluster Two, tasked to look at the actors in the European Union’s Multi-Level, Multi-Actor Human Rights Engagement. Work Package 8, ‘Coherence Among EU Institutions and Member States’, examines the principles, competences, actions and interactions of EU institutions and the Member States that characterise human rights policies and that lead to coherence or incoherence in the EU and Member States’ promotion of human rights. Having examined the potential for ‘horizontal’ coherence and incoherence in the Work Package’s first report, 8.1, ‘Report on coherence of human rights policymaking in EU Institutions and other EU agencies and bodies’, this report examines ‘vertical’ coherence and incoherence, produced by the interaction between the EU and its institutions and the Member States. The specific task for the report, as described in the proposal for FP7 FRAME, is to examine the competences and responsibilities of the EU and its Member States and the implications of EU fundamental principles including the principle of sincere cooperation. In this report, we focus on the key statements of EU actors with regard to vertical coherence and consider their implementation in policies in a number of fields, including multilateral and bilateral action. These include policies governed by the competences conferred on EU institutions and Member States, including those where the EU has ‘exclusive’ competence, like trade, and their interaction with policy areas with shared competence, like development. In contrast to these areas where competences are supposed to be clear, we also examine policies with more ‘intergovernmental’ characteristics, such as the CSDP and CFSP. In accordance with the understanding of competence developed for 8.1, this study begins with the premise that coherence and incoherence are visible in three aspects of policy environments – organisational structures, policy regimes and interests - of the EU and its Member States. In terms of structures, we first engage in an account of the principles governing policy-making in the European Union (III.A) before conducting a mapping of the competences of the EU and its Member States (III.B). We then examine discursive aspects of policy regimes, by describing the pronouncements on vertical coherence regarding human rights of different EU institutions, illustrating their coherent or incoherent approaches and implementation with particular examples.(III.C) In this survey, we find a wide variety of approaches to the promotion of human rights and fundamental freedoms and a limited engagement with the principles that are supposed to govern relations between the EU and its Member States. Crucial principles, like ‘proportionality’ and ‘sincere cooperation’ are often not referenced and, where they are, are found to be only beginning to be applied in a coherent manner. There is the real possibility that, as these principles evolve, particularly in the jurisprudence of the Court of Justice of the European Union, further incoherence may appear, particularly between the principles of ‘proportionality’ and ‘sincere cooperation’.