[*PG35]EU INCONSISTENCIES REGARDING HUMAN RIGHTS TREATMENT: CAN THE EU REQUIRE CZECH ACTION AS A CRITERION FOR ACCESSION?
In January 1996, the Czech Republic took a significant step toward European integration when it submitted its formal request for membership in the European Union (EU).1 Although the Czech Republic had already established an association with the EU through its Europe Agreement, full membership will require the Czech Republic to participate in the formation and implementation of EU laws.2 The Czech government, in its application, recognized the importance of EU membership and cited the many economic and political benefits full membership will bring.3 The integration process, however, raises several issues regarding the preparation and readiness of the Czech Republic for membership.4 This Note focuses on the EU recommendation that the Czech Republic increase its efforts to combat discrimination against the Roma and take further steps to integrate the Roma into Czech society.5
[*PG36] While the EU’s effort to urge the Czech Republic, through the integration process, to provide greater protection for its Roma population is commendable, the EU does not have the power to directly impose human rights requirements on Member States.6 Although the EU has grown from a coalition for economic cooperation to an entity whose scope has begun to include political and social issues, the EU has yet to adopt a treaty provision that would authorize EU institutions to enact human rights legislation.7 Therefore, under the current constitutive treaties of the EU and opinions of the European Court of Justice (ECJ), the EU, in its accession negotiations with the Czech Republic, currently recommends action that is inconsistent with requirements it can directly impose on Member States.8 If the EU continues to focus on the treatment of the Roma in the Czech Republic as a criteria for membership, the EU should also take steps to authorize EU institutions to require Member States to comply with similar guidelines regarding human rights protection.
The purpose of this Note is to explore the development of EU human rights protection in light of EU recommendations for the Czech Republic’s accession to the EU. This Note also proposes suggestions for EU action in order to align its recommendations for acceding states with requirements it can also impose on Member States.
Part I of this Note examines the development of EU human rights law. This part also discusses substantive changes in the area of human rights contained in the recently ratified Treaty of Amsterdam. Part II focuses on the Czech Republic’s relations with the EU as it has sought to achieve full membership. This part also outlines the current status of the Roma in the Czech Republic and compares Czech constitutional protections with EU recommendations on Roma integration. [*PG37]Part III analyzes the inconsistencies of current Member State practice and EU law with the requirements under the Czech Republic’s Accession Partnership. Part IV provides suggestions for further EU action in the area of human rights. This Note concludes that EU expansion into non-economic areas requires a stronger effort to introduce human rights protections directly into EU treaties, namely through the adoption of a treaty amendment that would authorize EU institutions to monitor Member State treatment of human rights and enact human rights legislation.
The constitutive treaties of the EU—the Treaty Establishing the European Coal and Steel Community (ECSC Treaty), the Treaty Establishing the European Atomic Energy Community (Euratom Treaty), and the Treaty Establishing the European Community (EC Treaty)—focused mainly on economic cooperation.9 The Council of Europe concluded the European Convention on Human Rights and Fundamental Freedoms (ECHR) during this time, but the EU constitutive treaties addressed neither the provisions in the ECHR nor the principles promulgated thereunder.10
Although individual EU institutions have made human rights declarations and resolutions,11 the Preamble to the Single European [*PG38]Act contained the first reference to human rights in an EU treaty.12 Because the declarations and resolutions adopted by the individual institutions of the EU did not arise from specific treaty provisions, those institutional actions did not bind the Member States.13 Therefore, the EU had not yet explicitly empowered itself to monitor human rights or require Member States to adhere to specific guidelines regarding human rights.14
The Treaty on European Union (TEU) contains several articles that refer specifically to human rights.15 Article 6(2) of the TEU provides that:
[t]he Union shall respect fundamental rights as guaranteed by the European Convention for the Protection of Human Rights and Fundamental Freedoms signed in Rome on 4 November 1950 and as they result from the constitutional traditions common to the Member States, as general principles of Community law.16
Although the TEU refers explicitly to the ECHR, Article 46 of the TEU prohibits the ECJ from applying Article 6(2) as a substantive basis for adjudication.17 Because TEU Article 46 enumerates the powers [*PG39]conferred on the ECJ,18 the absence of authorization to enforce Article 6(2) prevents the ECJ from reviewing ECHR compliance.19
Therefore, while the TEU requires that the Union respect fundamental rights, it does not provide a mechanism to enforce those rights.20 Although the ECJ has not yet been granted the express powers to employ the provisions of the ECHR, the ECJ has used the ECHR to guide its understanding of fundamental human rights protected by the EU treaties in several cases.21
The Council of Europe completed the ECHR in 1950 and implemented it in 1953.22 Since its completion, each of the current Member States has signed the ECHR.23 The Czech Republic acceded to the ECHR in 1993.24 Although each Member State is individually a party to the ECHR, the EU is not a party to it.25 Furthermore, the ECJ ruled that the EU could not accede to the ECHR unless an EU treaty provision enabled it to do so.26 The newly ratified Treaty of Amsterdam permits the ECJ to enforce provisions of the ECHR against EU institutions, but only to the extent that the institutional action falls within the scope of the EU treaties.27
[*PG40] The ECHR establishes a Commission of Human Rights, a Court of Human Rights (ECtHR), and a Committee of Ministers of the Council of Europe (Committee of Ministers).28 The Commission of Human Rights serves as an advisor and mediator with regard to enforcing the ECHR provisions.29 The ECtHR’s jurisdiction is limited to determining whether a party to the ECHR has committed an abuse of an ECHR provision.30 The Ministers of Foreign Affairs of each of the parties to the ECHR comprise the Committee of Ministers.31 The Committee of Ministers decides whether a party has violated the ECHR only if the alleged violation is not referred to the ECtHR within three months.32 Therefore, each of the three bodies created by the ECHR plays a role in implementing ECHR provisions and overseeing compliance.33
The provision of the ECHR most relevant to this Note is the right of freedom from discrimination “on any ground such as sex, race, colour, language, religion, political or other opinion, national or social origin, association with a national minority, property, birth or other status.”34
Although the ECJ has not specifically addressed racial discrimination,35 the ECJ has established the outlines of other EU human rights protections.36 Case 29/69, Stauder v. City of Ulm, Sozialamt contained the ECJ’s first reference to human rights.37 In Stauder, a German citizen challenged the German text of a Commission Decision allowing the sale of surplus butter at a reduced price.38 Stauder, the German [*PG41]citizen challenging the German text of the Decision, contended that the German requirements under the Decision violated his right of privacy.39 Although the ECJ determined that the Decision did not violate Stauder’s human rights, the ECJ did state that it would protect “fundamental human rights enshrined in the general principles of [EU] law.”40
In Case 11/70 Internationale Handelsgesellschaft v. Einfuhr und Vorratsstelle Getreide, the ECJ stated again that it would protect fundamental rights as general principles of EU law.41 In this case, the ECJ specifically recognized Member State constitutional traditions as evidence of those general principles.42 The ECJ, however, did not recognize international treaties as guidelines for fundamental rights until Case 4/73 Nold v. Commission.43 As the ECHR is an international treaty, the Nold decision marked the beginning of ECHR incorporation into EU law.44
Most recently, the ECJ expanded its protection of human rights to include Member State actions regarding EU legislation.45 In Case C-5/88 Wachauf v. Federal Republic of Germany, the ECJ held that Germany’s implementation of EU legislation must conform to general principles of fundamental rights.46 Wachauf marked the first time the ECJ required Member States to conform to general principles of human rights when implementing EU law.47 Furthermore, in Case C-260/89 Elliniki Radiophonia Tileorassi v. Dimotiki Etairia Plirofosissis, the ECJ expanded the scope of Wachauf to include Member State action that falls within the scope of EU law although not evolving directly from EU legislation.48
[*PG42] Although the ECJ has expanded its scope of human rights protection since Stauder, the Court has also established limits.49 In Joined Cases 60 and 61/84, Cinéthèque v. Fédération National des Cinémas Français, the ECJ ruled that it would not examine the protection of human rights if the Member State action fell within the jurisdiction of the national legislatures.50 In Cinéthèque, a French law prohibited the release of certain videocasettes.51 By limiting the ECJ’s supervision of human rights to those areas that fall within the powers of EU institutions, the ECJ has both addressed some of the concerns of Member States regarding EU protection of human rights and refrained from expanding the scope of EU influence into areas not addressed by the EU treaties.52
In June 1997, the Amsterdam European Council produced a draft of the Treaty of Amsterdam.53 On October 2, 1997, representatives of the 15 Member States executed it.54 Member States were to ratify the Treaty of Amsterdam by the end of 1998.55 The Treaty came into force on May 1, 1999.56
Most notably, the Treaty of Amsterdam amends Article 6(1) of the TEU to provide that the “Union is founded on . . . respect for human rights and fundamental freedoms.”57 The Treaty of Amsterdam also provides a means by which the Council, Commission, Member States, and Parliament may address “a serious and persistent [*PG43]breach by a Member State” of human rights.58 Therefore, the Treaty of Amsterdam permits limited action taken directly by EU institutions and Member States to protect human rights.59
Part III of the Treaty of Amsterdam expands ECJ jurisdiction to include review of actions of institutions with regard to fundamental rights protections “insofar as the Court has jurisdiction under the Treaties establishing the European Communities and under this Treaty.”60 Curiously, however, the ECJ’s jurisdiction has not been expanded to review Member State actions within this sphere.61 Because the Treaty of Amsterdam has only recently been ratified, it is unclear how the ECJ will interpret this expansion of its jurisdiction.
In September 1988, the EU (then the European Community) established diplomatic relations with the Czechoslovak Republic.62 By December 1991, Czechoslovakia entered into a Europe Agreement with the EU.63 Although the Czech Republic and the EU negotiated a new agreement upon the “Velvet Divorce” of Czechoslovakia, the Europe Agreements have provided a continuous basis upon which the Czech Republic has interacted with the EU.64
The Europe Agreement contains the following five goals: setting a framework for political dialogue; promoting expansion of trade and economic relations; providing a basis for EU financial and technical [*PG44]assistance to the Czech Republic; building a framework for Czech integration; and fostering cultural cooperation.65 The Europe Agreement only contains two references to human rights.66 Specifically, Article 6 of the Europe Agreement includes respect for human rights as a part of the Europe Agreement.67 The bulk of the Europe Agreement, however, focuses only on the five goals listed above.68
In January 1996, the Czech Republic submitted its formal application for membership in the EU.69 At the Amsterdam Summit in June 1997, the EU set its timetable for expansion.70 In July 1997, Jacques Santer, President of the European Commission, announced “Agenda 2000,” the European Commission’s statement on its goals for the coming millennium.71 At the same time, the European Commission presented its opinion on the Czech Republic’s application for membership (Commission Opinion on Application).72 The Commission Opinion on Application referred to the Copenhagen European Council’s requirements for membership.73 The Copenhagen European Council requires, inter alia, that applicants for EU membership guarantee human rights and respect for minorities.74
[*PG45] By December 1997, the EU made a binding decision to begin membership talks with the Czech Republic in early 1998 and to use an Accession Partnership as the pre-accession strategizing tool.75 In March 1998, the Council Decision 98/267/EC set forth the “principles, priorities, intermediate objectives and conditions” for Czech accession.76
In response to the requirements of the Accession Partnership, the Czech Republic formulated its National Programme for the Preparation of the Czech Republic for Membership in the European Union (National Programme).77 The National Programme contains EU recommendations for improvement in areas vital to accession, a timeline for achieving those goals, proposed action by the Czech Republic, estimated costs of implementation, and assistance required from the EU.78 Although the National Programme serves as a guide for action by the Czech Republic in order to prepare for full membership in the EU, the National Programme does not bind the Czech Republic.79 In addition, as the accession process continues, both the Czech Republic and the EU may find that unforeseen issues and complications will arise.80
Specifically, the Accession Partnership calls for “further work on the integration of the Roma.”81 Although the Accession Partnership does not provide explicit guidelines for integration of the Roma, the Annex to the Accession Partnership suggests that some of the problems stem from the discriminatory application of the Czech Citizenship Law.82 Furthermore, the Commission Opinion on Application [*PG46]cites access to jobs and housing as possible areas for improvement.83 The Commission Opinion on Application notes that the Czech Republic has already made efforts to provide Czech language training to the Roma, but the EU has suggested that the Czech Republic make even stronger efforts to provide educational resources for the Roma.84
In the Czech Republic, the Charter of Fundamental Rights and Freedoms provides protection for human rights (Charter).85 The Charter, inter alia, includes an anti-discrimination provision that protects minorities.86 The Constitutional Act that authorized the creation of the Charter, however, was passed when the Czech Republic was part of Czechoslovakia.87 Although the Czech Republic created a new constitution upon the split of Czechoslovakia, the new constitution does not include the text of the Charter; instead, the Czech Constitution explicitly recognizes the Charter as an “integral component of the constitutional system.”88 It is unclear, however, to what extent the Charter is legally similar to constitutional provisions.89
[*PG47] In addition to the Charter, the Czech Constitution explicitly provides that “[r]atified and promulgated international treaties on human rights and fundamental freedoms, whereby the Czech Republic is obligated, shall be directly binding and shall have precedence over the law.”90 The Constitutional Court has the power to hear cases arising from violations of international treaties that the Czech Republic has ratified.91 In this respect, it is important to recognize that the Czech Republic has ratified the ECHR.92 Therefore, violations of the ECHR are recognized as violations of constitutional significance and may be brought before the Czech Constitutional Court.93
The Roma, originally from Northern India, came to Europe in the fourteenth century.94 They were enslaved in Romania from the 1350s to 1856.95 Throughout the period of Roma presence in Europe, they have been subject to expulsion, state-mandated killings, and hostility.96 Roma women have also been raped and unwillingly sterilized.97 Although the Roma did enjoy a modest degree of protection from the equalizing ideology of the communist state, once communism collapsed, anti-Roma feelings resurfaced.98
The Roma account for between two to three percent of the Czech population.99 Many people in the Czech Republic do not consider the Roma to be “Czechs.”100 Although some Roma speak Czech and were born in the Czech Republic, many Czechs still consider them outsiders.101 Furthermore, the majority of the Czech population, according to public opinion polls, hold negative images and stereo[*PG48]types of the Roma.102 This public sentiment, coupled with widespread discrimination, results in lower life expectancies and lower living standards for the Roma.103
Although the Czech Charter protects the rights of minorities, the Roma population continues to face unemployment, violence, and illiteracy.104 As compared to the other ethnic groups in the Czech Republic, the Roma face a disproportionately higher rate of unemployment.105 Following the collapse of state-mandated employment for the Roma, the Roma have faced considerable barriers to finding employment.106 Public sector positions are openly denied to the Roma.107 In addition, many employers’ job advertisements explicitly state that Roma will not be hired.108 Even after finding jobs, the Roma are the first to be laid off, or they are soon unemployed because the jobs are seasonal.109
In addition, violence against the Roma is widespread.110 For example, skinhead attacks on the Roma are prevalent.111 In addition to waging violent attacks on the Roma, skinheads also distribute hate pamphlets and racist music.112 In the Czech Republic, more Roma have been killed as a result of hate crimes than the combined Roma victims in Bulgaria, Romania, and Slovakia.113
Finally, as fluency in the Czech language is a requirement for citizenship in the Czech Republic, illiteracy within the Roma population has created increased barriers for integration.114 Although the Czech [*PG49]Republic has opened some pre-schools to help Roma children learn Czech, the Roma are placed in segregated schools.115 Roma children are forbidden from taking academic subjects and must therefore take classes in vocational fields.116 This segregation further harms the Roma by preventing them from taking jobs that require an academic background.117
In its National Programme, the Czech Republic responded to EU recommendations regarding integration of the Roma.118 Within the National Programme, the Czech government contended that it does not apply its Citizenship Law discriminatorily against the Roma.119 The Czech government has provided no further formal response to encourage integration of the Roma.
Although the Czech National Programme contained no specific plans to do so, the Czech Republic has taken some steps to protect the Roma.120 The Czech Republic has begun to issue harsher sentences for racially motivated crimes.121 On October 8, 1998, a court in the Czech Republic sentenced three men accused of murdering a Roma to prison terms of seven-and-one-half to eight-and-one-half years.122 Originally, the men were issued much shorter sentences.123
The EU provides funding for Roma programs mostly through the Phare and Tacis Democracy Programme.124 Other funding schemes for Roma programs include the Phare Lien Programme and the Civil Society Development Programme.125 This funding has been used to support Roma educational centers and informational bulletins.126
Currently, the EU treaties contain no provisions that authorize EU institutions to act directly in the sphere of human rights.127 Therefore, the EU cannot require Member State action that focuses solely on human rights.128 Although the ECJ has required Member States and EU institutions to conform to human rights standards, those requirements were only imposed when the Member State action or EU legislation fell within the scope of the EU treaties.129 Because of the treaty limitations, EU action in the sphere of human rights has been severely curtailed.130
Although the EU may set forth the standards and conditions for accession, the EU, in its accession negotiations, has specifically chosen to address the Czech Republic’s treatment of the Roma.131 These human rights protections are severely needed, but the EU has carved out an area of influence that it does not have over its current Member States.132
Human rights violations, mostly unchecked by the EU, still occur in Member States.133 The United Kingdom’s notorious record before the ECHR is an example of the abuses that go unprotected by both Member State and EU laws.134 For example, Northern Ireland’s political situation has exacerbated several human rights issues.135 If the EU cannot patrol human rights violations within its own boundaries, how can it enforce human rights standards in other countries?
The Czech Republic currently provides some human rights protections to its own citizens.136 Most notably, the Czech Republic has acceded to the ECHR—the European treaty that the ECJ has slowly incorporated into its jurisprudence.137 These protections are similar [*PG51]to those implemented by the Member States.138 Although the EU has declared that the Czech Republic must address the Roma situation, it has not established the guidelines for doing so.139 Outside of the ECHR and Charter provisions, further efforts by the Czech Republic may require legislative action. The EU may not impose a requirement of this nature on any Member State.140
Finally, the Treaty of Amsterdam seeks to take a cautious step toward increased protection of human rights in the EU.141 Although the Treaty of Amsterdam moves in a direction toward greater human rights monitoring, the Treaty of Amsterdam fails to authorize EU institutions to pass human rights legislation.142 With current ECJ rulings and the Treaty of Amsterdam provisions, human rights still remain on the periphery.143
The question thus remains: What further steps will the EU take to protect human rights? The EU has already incorporated ECHR provisions into its jurisprudence, and the Treaty of Amsterdam now authorizes EU action against Member States for serious human rights violations.144 With the EU’s current position on Czech accession, will the EU take bolder strides into the area of human rights?
To better protect human rights, the EU could adopt a treaty amendment authorizing EU institutions to monitor human rights and enact human rights legislation.145 A treaty provision of this nature would allow EU institutions to direct Member States to deal with human rights issues in a manner similar to the EU’s recommendation to the Czech Republic regarding Roma integration.146 A treaty amendment would also establish human rights as an area in which the EU [*PG52]could adopt legislation that would harmonize Member State laws.147 Because of the ECHR’s status within the EU and the retention of different Member State laws regarding human rights protections, human rights are treated inconsistently among the Member States.148 The EU could remove such inconsistencies if it adopts a human rights focused treaty amendment.149
This approach, however, raises several issues. First, the EU must define the parameters of its human rights protection.150 As the ECJ has done, the EU could look to Member State constitutions and the ECHR for guidance.151 Second, such a treaty amendment might meet great resistance from Member States.152 Because treaty amendments must be ratified by each Member State, such a provision could easily fail.153
The EU could also adopt a treaty amendment that would enable it to accede to the ECHR, thereby making ECHR provisions directly applicable to the EU institutions and the Member States.154 Because the ECJ has already suggested that general principles of EU law are informed by ECHR provisions, and EU treaties explicitly mention the ECHR, accession would only require further recognition of ECHR principles within the EU framework.155 Accession to the ECHR, however, raises several structural impediments.156
[*PG53] First, the ECHR is only open to members of the Council of Europe.157 Because the EU is not a state, the EU cannot become a member of the Council of Europe.158 Second, the ECJ has already noted that the EU could not accede to the ECHR absent a treaty amendment authorizing EU action in the sphere of human rights.159
Despite the problems raised above, the EU should adopt a treaty amendment authorizing human rights monitoring and legislation.160 Using the Czech Republic as an example, it is obvious that there are situations that require further human rights protection.161 The EU’s stance toward Roma integration presents an example of how the EU can use its influence to demand greater human rights protection.162 The problem, however, is that as soon as the Czech Republic achieves full EU membership, the EU may no longer demand further protection absent a finding that the Czech Republic has seriously and persistently breached human rights.163 In order to further monitor human rights and ensure that EU citizens receive consistent protection across the several Member States, the EU must authorize institutional action in the sphere of human rights.164
The ECJ has already begun to require Member States to respect human rights as defined by Member State constitutions and the ECHR.165 Clearly, the EU should be able to develop guidelines for human rights protections that Member States will accept because each Member State has already signed and ratified the ECHR.166 Providing human rights protections directly in the EU treaties will also allay fears from Member States that power has been taken away from [*PG54]Member State courts without the EU’s assurance that the usurped power will not be used to violate human rights.167 Finally, EU authorization in this area will finalize the increasing inclusion of human rights protections in EU treaties and enhance the deeper unification envisioned by President Jacques Santer’s “Agenda 2000.”168
The EU could enforce compliance with a treaty amendment authorizing human rights monitoring and legislation in several ways. First, as some EU treaty provisions allow Member State citizens to bring actions against those who violate treaty provisions, the EU could create a treaty provision that expressly grants clearly defined rights to such an extent that the treaty provision would have direct effect.169 Creating a treaty provision that has direct effect would therefore require that Member State courts protect the rights of individuals created by the treaty provision.170 Next, the Commission could play an active role in ensuring Member State compliance by bringing enforcement actions pursuant to Article 226 of the EC Treaty.171 Finally, the EU institutions could use their Article 249 powers to issue regulations, directives, or decisions that require Member States to enact human rights protection.172 Utilizing these measures would require Member States to conform to such legislative acts, thereby securing uniformity with respect to human rights.173 By using the several measures listed above, the EU, Member States, and EU citizens could each participate in the enforcement of human rights without imposing [*PG55]substantially different enforcement schemes than those that are already granted by the EU treaties.174
The Czech Republic currently stands poised to take the final step toward full integration into the EU. EU concerns about the Czech Republic’s treatment of its Roma, however, present a barrier to accession. Although encouraging protection of minorities is a laudable effort by the EU, the EU has yet to adopt a treaty amendment that would authorize it to take similar actions toward its own Member States. With current inconsistencies in Member States’ treatment of human rights, the EU must consider how far it is willing to go to encourage a deeper harmonization of Member State laws. As EU recommendations to the Czech Republic serve as examples of increased EU action in the sphere of human rights, the EU should take the next step and authorize EU institutions to monitor and legislate directly in this area.