The European Union External Action, Administrative Function and Human Rights Protection under the Lens of the EU Ombudsman and a Recent Strategic Initiative

Freedom, Security & Justice: European Legal Studies Rivista giuridica di classe A 2022, n. 3 DIRETTORE Angela Di Stasi Ordinario di Diritto Internazionale e di Diritto dell’Unione europea, Università di Salerno Titolare della Cattedra Jean Monnet 2017-2020 (Commissione europea) "Judicial Protection of Fundamental Rights in the European Area of Freedom, Security and Justice" COMITATO SCIENTIFICO Sergio Maria Carbone, Professore Emerito, Università di Genova Roberta Clerici, Ordinario f.r. di Diritto Internazionale privato, Università di Milano Nigel Lowe, Professor Emeritus, University of Cardiff Paolo Mengozzi, Professore Emerito, Università "Alma Mater Studiorum" di Bologna - già Avvocato generale presso la Corte di giustizia dell’UE Massimo Panebianco, Professore Emerito, Università di Salerno Guido Raimondi, già Presidente della Corte EDU - Presidente di Sezione della Corte di Cassazione Silvana Sciarra, Professore Emerito, Università di Firenze - Presidente della Corte Costituzionale Giuseppe Tesauro, Professore f.r. di Diritto dell'UE, Università di Napoli "Federico II" - Presidente Emerito della Corte Costituzionale Antonio Tizzano, Professore Emerito, Università di Roma “La Sapienza” - Vice Presidente Emerito della Corte di giustizia dell’UE Ennio Triggiani, Professore Emerito, Università di Bari Ugo Villani, Professore Emerito, Università di Bari COMITATO EDITORIALE Maria Caterina Baruffi, Ordinario di Diritto Internazionale, Università di Verona Giandonato Caggiano, Ordinario f.r. di Diritto dell’Unione europea, Università Roma Tre Alfonso-Luis Calvo Caravaca, Catedrático de Derecho Internacional Privado, Universidad Carlos III de Madrid Pablo Antonio Fernández-Sánchez, Catedrático de Derecho Internacional, Universidad de Sevilla Inge Govaere, Director of the European Legal Studies Department, College of Europe, Bruges Paola Mori, Ordinario di Diritto dell'Unione europea, Università "Magna Graecia" di Catanzaro Lina Panella, Ordinario di Diritto Internazionale, Università di Messina Nicoletta Parisi, Ordinario f.r. di Diritto Internazionale, Università di Catania - già Componente ANAC Lucia Serena Rossi, Ordinario di Diritto dell'UE, Università "Alma Mater Studiorum" di Bologna - Giudice della Corte di giustizia dell’UE COMITATO DEI REFEREES Bruno Barel, Associato f.r. di Diritto dell’Unione europea, Università di Padova Marco Benvenuti, Ordinario di Istituzioni di Diritto pubblico, Università di Roma "La Sapienza" Raffaele Cadin, Associato di Diritto Internazionale, Università di Roma “La Sapienza” Ruggiero Cafari Panico, Ordinario f.r. di Diritto dell’Unione europea, Università di Milano Ida Caracciolo, Ordinario di Diritto Internazionale, Università della Campania - Giudice dell’ITLOS Federico Casolari, Associato di Diritto dell’Unione europea, Università “Alma Mater Studiorum” di Bologna Luisa Cassetti, Ordinario di Istituzioni di Diritto Pubblico, Università di Perugia Giovanni Cellamare, Ordinario di Diritto Internazionale, Università di Bari Giuseppe D’Angelo, Ordinario di Diritto ecclesiastico e canonico, Università di Salerno Marcello Di Filippo, Ordinario di Diritto Internazionale, Università di Pisa Rosario Espinosa Calabuig, Catedrática de Derecho Internacional Privado, Universitat de València Ana C. Gallego Hernández, Profesora Ayudante de Derecho Internacional Público y Relaciones Internacionales, Universidad de Sevilla Pietro Gargiulo, Ordinario di Diritto Internazionale, Università di Teramo Giancarlo Guarino, Ordinario f.r. di Diritto Internazionale, Università di Napoli “Federico II” Elspeth Guild, Associate Senior Research Fellow, CEPS Victor Luis Gutiérrez Castillo, Profesor de Derecho Internacional Público, Universidad de Jaén Ivan Ingravallo, Associato di Diritto Internazionale, Università di Bari Paola Ivaldi, Ordinario di Diritto Internazionale, Università di Genova Luigi Kalb, Ordinario di Procedura Penale, Università di Salerno Luisa Marin, Marie Curie Fellow, EUI e Ricercatore di Diritto dell’UE, Università dell’Insubria Simone Marinai, Associato di Diritto dell’Unione europea, Università di Pisa Fabrizio Marongiu Buonaiuti, Ordinario di Diritto Internazionale, Università di Macerata Daniela Marrani, Ricercatore di Diritto Internazionale, Università di Salerno Rostane Medhi, Professeur de Droit Public, Université d’Aix-Marseille Stefano Montaldo, Associato di Diritto dell’Unione europea, Università di Torino Violeta Moreno-Lax, Senior Lecturer in Law, Queen Mary University of London Claudia Morviducci, Professore Senior di Diritto dell’Unione europea, Università Roma Tre Michele Nino, Associato di Diritto Internazionale, Università di Salerno Criseide Novi, Associato di Diritto Internazionale, Università di Foggia Anna Oriolo, Associato di Diritto Internazionale, Università di Salerno Leonardo Pasquali, Associato di Diritto dell'Unione europea, Università di Pisa Piero Pennetta, Ordinario f.r. di Diritto Internazionale, Università di Salerno Emanuela Pistoia, Ordinario di Diritto dell’Unione europea, Università di Teramo Concetta Maria Pontecorvo, Ordinario di Diritto Internazionale, Università di Napoli “Federico II” Pietro Pustorino, Ordinario di Diritto Internazionale, Università LUISS di Roma Santiago Ripol Carulla, Catedrático de Derecho internacional público, Universitat Pompeu Fabra Barcelona Gianpaolo Maria Ruotolo, Ordinario di Diritto Internazionale, Università di Foggia Teresa Russo, Associato di Diritto dell'Unione europea, Università di Salerno Alessandra A. Souza Silveira, Diretora do Centro de Estudos em Direito da UE, Universidad do Minho Ángel Tinoco Pastrana, Profesor de Derecho Procesal, Universidad de Sevilla Chiara Enrica Tuo, Ordinario di Diritto dell’Unione europea, Università di Genova Talitha Vassalli di Dachenhausen, Ordinario f.r. di Diritto Internazionale, Università di Napoli “Federico II” Alessandra Zanobetti, Ordinario di Diritto Internazionale, Università “Alma Mater Studiorum” di Bologna COMITATO DI REDAZIONE Francesco Buonomenna, Associato di Diritto dell’Unione europea, Università di Salerno Angela Festa, Ricercatore di Diritto dell’Unione europea, Università della Campania “Luigi Vanvitelli” Caterina Fratea, Associato di Diritto dell’Unione europea, Università di Verona Anna Iermano, Ricercatore di Diritto Internazionale, Università di Salerno Angela Martone, Dottore di ricerca in Diritto dell’Unione europea, Università di Salerno Michele Messina, Associato di Diritto dell’Unione europea, Università di Messina Rossana Palladino (Coordinatore), Ricercatore di Diritto dell’Unione europea, Università di Salerno Revisione linguistica degli abstracts a cura di Francesco Campofreda, Dottore di ricerca in Diritto Internazionale, Università di Salerno Rivista quadrimestrale on line “Freedom, Security & Justice: European Legal Studies” www.fsjeurostudies.eu Editoriale Scientifica, Via San Biagio dei Librai, 39 - Napoli CODICE ISSN 2532-2079 - Registrazione presso il Tribunale di Nocera Inferiore n° 3 del 3 marzo 2017 Indice-Sommario 2022, n. 3 Editoriale Novae e veteres “frontiere” della cittadinanza europea Angela Di Stasi p. 1 Saggi e Articoli In tema di immunità dello Stato dalla giurisdizione: il complesso bilanciamento tra tutela dei diritti della persona e prerogative della Santa Sede Silvia Cantoni The European Union External Action, Administrative Function and Human Rights Protection under the Lens of the EU Ombudsman and a Recent Strategic Initiative Francesca Martines Libertà di espressione e tutela della dignità delle giornaliste: il contrasto all’online sexist hate speech nello spazio digitale europeo Claudia Morini La normalizzazione della sorveglianza di massa nella prassi giurisprudenziale delle Corti di Strasburgo e Lussemburgo: verso il cambio di paradigma del rapporto privacy v. security Michele Nino Il diritto del minore alla libertà di religione: la recente giurisprudenza della Corte europea dei diritti dell’uomo e il rilievo della Convenzione sui diritti dal fanciullo Giuseppina Pizzolante International Sanctions of the European Union in Search of Effectiveness and Accountability Alfredo Rizzo Commenti e Note La risposta della Commissione europea al “deterioramento” del diritto di asilo in Grecia: riflessioni sull’attenuato attivismo dell’Istituzione “guardiana dei Trattati” Marcella Cometti La migrazione legale per motivi di lavoro a due anni dalla presentazione del “Nuovo Patto sulla migrazione e l’asilo”: una riforma (in)compiuta? Francesca Di Gianni p. 16 p. 39 p. 67 p. 105 p. 134 p. 158 p. 175 p. 211 Questioni giuridiche e problemi di tutela dei diritti fondamentali nella risposta dell’Unione europea alle pratiche di strumentalizzazione dei flussi migratori Mirko Forti Environmental Solidarity in the Area of Freedom, Security and Justice. Towards the Judicial Protection of (Intergenerational) Environmental Rights in the EU Emanuele Vannata p. 245 p. 266 Freedom, Security & Justice: European Legal Studies ISSN 2532-2079 2022, n. 3, pp. 39-66 DOI:10.26321/F.MARTINES.03.2022.03 www.fsjeurostudies.eu THE EUROPEAN UNION EXTERNAL ACTION, ADMINISTRATIVE FUNCTION AND HUMAN RIGHTS PROTECTION UNDER THE LENS OF THE EU OMBUDSMAN AND A RECENT STRATEGIC INITIATIVE Francesca Martines  SUMMARY: 1. Introduction. – 2. European Ombudsman’s strategic inquiries and initiatives: an overview. – 3. European Ombudsman’s scrutiny of the EU administrative function in external relations and human rights: a selection of cases on migration, asylum and international agreements. – 4. The European Ombudsman’s strategic initiative on human rights and international trade agreements. – 4.1. Human rights clauses and other human rights tools in EU international trade agreements. – 4.2. The European Ombudsman’s questions regarding the preparatory stage of human rights clauses. – 4.3. The European Ombudsman’s questions regarding the monitoring and implementation stages of human rights clauses. – 5. Concluding Observations. 1. Introduction On the 9th of July 2021 the European Ombudsman (hereafter EO), Emily O’Reilly, opened a strategic initiative on “how the European Commission ensures respect for human rights in the context of international trade agreements” (SI/5/2021/VS) 1 . In her letter to the Commission, the EO asked how this Institution ensures respect for human rights in its international trade policy and how it manages the so-called human rights clauses (HRC) 2 . The strategic initiative was closed with a Note on the 15th of July 2022. As will be further discussed, the questions addressed to the Commission concern the preparatory stage (how it decides to include a human rights clause in an international trade agreement and how it defines the specific content of the provision) and the implementation stage (how the Commission ensures the execution of the clause). Double blind peer reviewed article.  Associate Professor in European Union Law, University of Pisa. E-mail: francesca.mar[email protected]. 1 Strategic iniziative SI/5/2021/VS. https://www.ombudsman.europa.eu/it/case/en/59519. All documents and cases cited in this article are available on the Ombudsman website. 2 Further questions were asked in preparation for a follow-up meeting attended by representatives from various DGs of the European Commission (DG TRADE, DG INTPA, DG EMPL, and DG JUST), and by representatives from the European External Action Service. After the meeting, the EO website reported a summary of the discussion. The European Union External Action under the lens of the EU Ombudsman 40 www.fsjeurostudies.eu The EO’s strategic inquiry provides an opportunity to question the increasingly active role of the EO in monitoring the behavior of EU institutions and bodies in their external activities. The EO ascertains the procedural correctness, integrity, and fairness of the EU administrative functions and verifies through which procedures and instruments the European Union contributes to the protection of human rights in its external policies 3 . Activities such as impact assessment, definition of negotiating guidelines, monitoring, preparation and implementation of projects, influence the way in which external policy objectives are attained 4 .When carrying out these activities, EU institutions and bodies are bound to follow obligations provided for in EU law (including international obligations 5 ), to respect the rule of law, principles of good administration (article 41 of the Charter) and human rights. This article will discuss, in general terms, the functions and mandate of the EO (paragraph 2) and how, in some selected cases, she 6 has interpreted her role (paragraph 3). The context and scope of the EO’s inquiry, the questions raised by the EO, and the answers provided by the Commission will then be debated (paragraph 4). Some conclusions will finally be drawn (paragraph 5). 2. European Ombudsman’s strategic inquiries and initiatives: an overview The EO mandate is defined in article 228, paragraph 1, TFEU. This provision establishes that the EO is “empowered to receive complaints from any citizen of the Union or any natural or legal person residing or having its registered office in a Member State concerning instances of maladministration in the activities of the Union institutions, bodies, offices or agencies, with the exception of the Court of Justice of the European Union acting in its judicial role. He or she shall examine such complaints and report 3 M. CREMONA, P. LAINO, Is There an Accountability Gap in EU External Relations? Some Initial Conclusions, in European Papers, 2017, Vol. 2, No. 2, pp. 699-708. The Authors noted that “External action is in fact a rich field in the application of administrative law”. I. VIANELLO, Acknowledging the Impact of Administrative Power in the EU External Action, in European Papers, Vol. 2, 2017, No 2, pp. 597-616; M. INGLESE, EU Agencies External Activities and the European Ombudsman, in H. C.H. HOFMANN, E. VOS, M. CHAMON, The External Dimension of EU Agencies and Bodies Law and Policy, Edward Elgar, Cheltenham, Northampton, 2019, pp. 164-181. C. HARLOW, R. RAWLINGS, Process and Procedure in EU Administration, Oxford: Hart Publishing, 2014, p. 1. 4 I. VIANELLO, EU External Action and the Administrative Rule of Law. A Long-Overdue Encounter, PHD Thesis, EUI, Florence, 2016: “Preparatory and rule-making instruments arguably belong to some of the most influential areas of administrative activity…Preparatory acts inform final decisions and indicate which topic shall be put on the policy agenda”, p. 76. In the Guidelines on the analysis of human rights impacts in impact assessments for trade-related policy initiatives the Commission specified: “impact assessments and evaluations are policy tools which provide a structured approach to gathering and analysing evidence that will be used to support policy making”. 5 Case 530/98/JMA on the handling of a project funded by the European Development Fund, case opened 2.7.1998. 6 The EO in charge at the time of writing is Emily O’Reilly. She was first elected in July 2013, and she was re-elected in December 2014 and again in December 2019. Previously, the position of European Ombudsman was held by N. Diamandouros (2003-2010) and J. Soderman (1995-2003). Francesca Martines 41 on them” 7 . Maladministration is not defined in the Treaty, but it has been broadly interpreted 8 . Significantly, the European Ombudsman, since 1995, has linked maladministration, inter alia, to a lack of respect for fundamental rights. The entry into force of the European Charter of Fundamental Rights along with the Lisbon Treaty has unquestionably reinforced the EO role as the Charter recognizes the fundamental right to good administration (article 41) and qualifies the recourse to the EO as a fundamental right (article 43). The Charter also strengthens the EO’s broad interpretation of maladministration to cover human rights. The present Ombudsman, Emily O’Reilly has interpreted the EO’s role extensively, as she intends the EO’s task as contributing to reinforcing transparency, human rights, accountability, the ethical behaviour of the EU administration. To carry out this mission, she appointed an own-initiative investigation coordinator and established a dedicated Unit on systemic inquiries 9 . Article 228, second paragraph of the TFEU empowers the EO to conduct inquiries based on a complaint 10 or on her own initiative. The Ombudsman’s independent power of investigation (own-initiative inquiry) is not further clarified in the Treaty. Article 3, paragraph 1 of the Ombudsman Statute 11 reproduces (almost literally) the wording of the Treaty. Article 3, paragraph 3 specifies the conditions under which the Ombudsman can conduct own-initiative inquiries 12 . This happens “whenever he or she finds grounds, and 7 This means that after the entry into force of the Lisbon Treaty the mandate of the EO extends to the activities of the European Council and agencies and offices. See Annual Report of the EO 2005, p. 38. See also R. MASTROIANNI, New perspectives for the European Ombudsman opened by the Lisbon Treaty, in C.H. H. HOFMANN; J. ZILLER (eds.), Accountability in the EU, Edward Elgar Publishing, 2017, p. 178-197. The abolition of pillars by the Lisbon treaty extended the EO mandate to actions undertaken in the former second pillar. 8 As pointed out by Soderman, the then Ombudsman, in his first Report (1995): “the experience of national ombudsmen shows that it is better not to attempt a rigid definition of what may constitute maladministration. Indeed, the open-ended nature of the term is one of the things that distinguishes the role of the Ombudsman from that of a judge.” See the European Code of Good Administrative Behaviour where it is specified that “maladministration is broader than illegality”. The Ombudsman proposed the following definition of maladministration in his 1997 Report: “Maladministration occurs where a public authority fails to act in accordance with a rule or principle that is binding upon it”. See also the Speech by the European Ombudsman, in office at the time, N. DIAMANDOUROS, 17.9. 2007, Sofia, available at ombudsman.europa.eu. See A. AVTONOMOV, Activities of the European Ombudsman under the Charter of Fundamental Rights: Promoting Good Administration through Human Rights Compliance, in Laws 2021, available at https://doi.org/10.3390/laws10030051. See R. MASTROIANNI, op. cit., p. 189. 9 She clarified how she sees the role of the EO in several documents See, for example, European Ombudsman Strategy Towards 2019, of 17.11.2014, and European Ombudsman Strategy Towards 2024 of 7.12.2020. 10 The EO shall first evaluate the admissibility of the complaint according to the rules contained in the Statute. If the complaint is not admissible the EO may decide to start an investigation motu proprio. See case OI/11/2010/AN on the refusal of the EU Delegation to Sierra Leone (the ‘Delegation’) to reimburse the travel expenses of an expert involved in Europe Aid project, decision of 17.1.2013. 11 Regulation 2021/ 1163 of the European Parliament of 24 June 2021 laying down the regulations and general conditions governing the performance of the Ombudsman’s duties (Statute of the European Ombudsman) and repealing Decision 94/262/ECSC, EC, Euratom, O.J. L 253, 16.7.2021, p. 1. 12 The Commission agreed with the European Parliament proposals, “as long as the Ombudsman acts within the limits of its mandate, i.e. maladministration”. See Commission Communication COM (2019) 533 final of 6.5.19, on a draft Regulation of the European Parliament laying down the regulations and general conditions governing the performance of the Ombudsman's duties (Statute of the European Ombudsman and repealing Decision 94/262/ECSC, EC, Euratom, p. 9. The European Union External Action under the lens of the EU Ombudsman 42 www.fsjeurostudies.eu in particular in repeated, systemic or particularly serious instances of maladministration, in order to address those instances as an issue of public interest”. The inquiries are functional to a proactive intervention of the EO, who “may also make proposals and initiatives to promote administrative best practices within Union institutions, bodies, offices and agencies”. Thus, the task of the EO is not only to address cases of maladministration but also to suggest how a critical structural situation can be redressed 13 . The first hypothesis mentioned in article 3, paragraph 3 of the Ombudsman Statute, corresponds to a consolidated practice that allows the EO to start inquiries when she/he receives complaints on the same issue 14 . Repeated cases of maladministration can be indicative of a deep and widespread problem that requires investigation. When carrying out inquiries the EO can launch consultations 15 , has the power to investigate and has access to the files of the institutions. As an illustration, one can mention inquiries on transparency in the preparatory bodies of the Council 16 , in trialogues 17 , in the Council during the COVID-19 crisis; the EO also started an inquiry into the functioning of the European citizens’ initiative (ECI) procedure 18 . A separate category of the EO’s own-initiatives consists of strategic initiatives 19 , which are also defined with reference to their objective: Strategic initiatives aim at “sharing suggestions with the institutions on important topics, to draw attention to matters of public interest or to find out more about a particular issue before deciding whether it is necessary to open an inquiry” 20 . The Ombudsman “pursues important topics to encourage the EU administration to be as open, accountable, ethical and responsive to 13 For example: “The purpose of this inquiry is to see to it that the Commission does all in its power to ensure that EU funds do not finance actions which violate fundamental rights”. OI/8/2014/AN regarding the extent of the compliance of the European Commission EU cohesion policy with the fundamental rights enshrined in the Charter of Fundamental Rights, decision of 5.5.2015. For the ex-post control on the ways the institutions involved responded to proposals made in EO’s inquiries, see Putting it Right! How the Institutions Responded to the Ombudsman, reports annually published in the EO website. 14 For example, the significant number of individual complaints alleging maladministration in the use of age limits for recruitment justified the European Ombudsman's inquiry 626/97/BB, decision of 4.11.1998. 15 The EO can also carry out targeted consultations. The Commission in the above cited Communication on the Ombudsman Statute, suggested the drawing up of specific criteria for cases where public consultations are expected and for what purpose, see COM (2019) 533, op. cit., p. 8. 16 Strategic initiative on transparency of Council preparatory bodies in the negotiation of EU legislative acts. Case OI/2/2017/TE, decision of 15.5.2018; strategic initiative on the transparency of the three preparatory bodies that are involved in preparing Eurogroup meetings OI/1/2019/MIG, decision of 3.12.2019. 17 Case OI/8/2015/JAS on the transparency of trilogues, decision of 2.7.2016 containing specific proposals. For a more recent case on a complaint regarding access to trilogue see case 360/2021/TE on the Council of the EU’s refusal to provide full public access to documents related to trilogue negotiations on motor vehicle emissions, decision of 20.10.2021. 18 The Ombudsman opened the own-initiative inquiry after receiving a number of complaints from citizens who had tried to launch ECIs. OI/9/2013/TN on the European Citizens Initiative. The aim was to encourage and to support efforts to improve the procedure. On 15 July 2014, the Ombudsman sent the results of its inquiry, together with the contributions received in reply to its consultation, to the Commission, which later issued guidelines to ameliorate the ECI. 19 These are classified as proactive work, see for example, the EO Annual Report 2020. 20 See European Union Ombudsman Report, Putting it Right? How the EU institutions responded to the EO in 2019, p. 13. Francesca Martines 43 citizens as possible, without necessarily launching an inquiry” 21 . A strategic initiative is conceived as a less “intrusive action than an inquiry and allows the EO to collect information, to form a clearer picture of the situation also with a view to a possible future inquiry. Strategic initiatives respond to public interest, especially in cases where private individuals cannot make a complaint, that is when no alternative tools exist in the EU legal order to consider the issue. They might have a “anticipatory” function 22 , as in the strategic initiative requiring the proactive publication of key negotiating documents in the context of Brexit negotiations 23 . A similar function is performed by the strategic initiative in the context of the upcoming revision of EU legislation related to tobacco products (SI/1/2021/KR 24 ). It is also possible that strategic initiatives accomplish a guiding function when the EO comes up with recommendations 25 . These activities have been contested because they would not be linked to complaints addressed to the EO and they would conflict with the principle of conferral 26 . The present author does not consider strategic initiatives and inquiries incompatible with the rationale of the EO’s task of contributing to the strengthening of good administration in the EU, as long as they concern “administrative activity”. For example, the Council opposed the above-mentioned EO trilogue inquiry as not falling within the mandate of the EO as “the organization of the legislative process cannot be considered an administrative activity” 27 . Indeed, the inquiry did not concern the organisation of the legislative process but the issue of access to documents and thus it fully fitted within the EO’s competencies. Through strategic initiatives the EO controls “the administration in general, to enhance its accountability and to help improve its quality” 28 . Thus, as long as the EO does not get 21 European Ombudsman, Own initiative inquiries, Thematic Paper, 9.10.2017, available at https://www.ombudsman.europa.eu/en/thematic-paper/en/84478. According to the Annual Report 2020, op. cit., “In addition to the Ombudsman’s core work on complaints, the Ombudsman also conducts wider strategic inquiries and initiatives into systemic issues with EU institutions”, p. 27. 22 In her speech of 30.5.2012, The Role of the European Ombudsman in the Protection and Promotion of Human rights, the EO specified that “Proactivity means (a) taking action to anticipate the needs of citizens and other stakeholders, (b) putting in place policies and procedures capable of channelling behaviour in appropriate ways and (c) preventing problems from arising”. 23 SI/1/2017/KR, decision of 11.2.2019, where the EO asked the European Commission “to ensure transparency during the upcoming Brexit negotiations”. 24 SI/1/2021/KR, case closed the 12.7.2021. 25 The strategic initiative on multilingualism closed with a set of ‘practical recommendations’, to guide the EU administration on the use of official EU languages when communicating with the public. SI/98/2018/DDJ. Strategic initiative SI/7/2021D delivered a short guide for the EU administration on policies and practices to give effect to the right of public access to documents. See also the initiative on ECI, OI/9/2013/TN, op. cit. 26 T. STEIN, “A Supervisory Agency of Its Own Making?: The Questionable Political Agenda of the Current European Ombudsman, VerfBlog, 2019/9/01, https://verfassungsblog.de/a-supervisory-agency-of-its-ownmaking/, According to the author Strategic initiatives with no real link to complaints look like a political agenda. 27 https://www.politico.eu/article/emma-oreilly-ombudsman-eu-juncker-transparency/. 28 A. PETERS, The European Ombudsman and the European Constitution, in Common Market Law Review, 2005, 42, 3, pp. 697-743. The European Union External Action under the lens of the EU Ombudsman 50 www.fsjeurostudies.eu conditionality (restrictive measures) which can take the form of human rights clauses contained in EU agreements. The EO’s Human rights clause inquiry examined in this paper concerns the second perspective as the EO requires the Commission to explain how it manages human rights clauses included in EU agreements in the preparatory and enforcement phases. Although the EO’s strategic initiative discussed in this paper mainly concerns human rights clauses, some of the questions addressed to the Commission also relate to Trade and Sustainable Development (TSD) chapters in free trade agreements concluded by the EU since 2009 (FTA with South Korea). In its answer, the Commission also refers to the GSP mechanism of conditionality 59 . The “essential element clause” – usually contained in the first part of an agreement, devoted to general principles – defines respect for non-trade values such as HR, democracy, the rule of law 60 , as an essential element of the agreement 61 . Taken by itself this provision can be referred to as a legal basis for discussing issues related to non-trade values between the contracting parties. The Commission has defined the essential element clause as a “platform for discussion” with its partners. Indeed, the incorporation of an HRC in an agreement concluded by a third State with the EU makes it impossible for the Contracting Parties to claim that human rights, democratic principles, and the rule of law, are domestic issues and thus fall within the exclusive jurisdiction of the State. For the Commission the inclusion of an HRC into an agreement “is not a way of imposing EU standards on third countries but promoting compliance with international conventions and agreements on matters such as human rights”. This means that no new standards are added but that an HRC is a tool to further compliance of international obligations that already bind the EU and its partner(s). The essential element clause is complemented by a nonexecution clause establishing the right of one of the Parties to take “appropriate 59 See also Regulation (EU) No 978/2012 of the European Parliament and of the Council of 25 October 2012 applying a scheme of generalised tariff preferences and repealing Council Regulation (EC) No 732/2008, OJ L 303, 31.10.2012, p. 1. 60 For an example of negotiating directives including an HRC see Council of Ministers (2018) Negotiating Directives for a Partnership Agreement between the European Union and Its Member States on the One Part, and with Countries of the African, Caribbean and Pacific Group of States, on the Other Part, 8094/18, 21 June. Available at: https://data.consilium.europa.eu/doc/document/ST-8094-2018-ADD1/en/pdf. See also Recommendation for a Council Decision to authorise the Commission to open negotiations on behalf of the European Union for the amendment of the Fisheries Partnership Agreement and conclusion of a Protocol with the Kingdom of Morocco, COM (2018) 151 final. 61 The underlying premise is to enter into a relationship with States that share the EU’s fundamental values. The clause seems to assume that at the time of concluding the agreement no serious violation occurs. In January 1995 the European Parliament called for the suspension of the Partnership Agreement with Russia because of human rights violations committed by the Russian government in Chechnya, making direct references to the human rights clause. In 1997 the EU Parliament consented to the treaty because of the continuing cease-fire in Chechnya. HRC seems thus only concerned with the behaviour of the parties to the agreement after its entry into force. See the Opinion of AG Whetelet delivered on 13 September 2016 in case 104/16, Council v. Front Populaire pour la libération de la Saguia-el-Hamra et du Rio de oro (Front Polisario), ECLI:EU:C:2016:677: “In my view, neither the Council nor the Commission nor any of the interveners put forward a convincing reason why, given these requirements, the EU institutions are not required, before the conclusion of an international agreement, to examine the human rights situation in the other party to the agreement and the impact which the conclusion of the agreement at issue could have there in this regard”, para. 262. Francesca Martines 51 measures”, meaning that it can terminate fully or partially suspend the agreement (unilaterally) if it considers that the other Party has committed a serious breach of an essential element 62 . These measures are adopted after consultation with the other party, except in cases of extreme urgency, that is in case of very serious breaches of non-trade values. The combination of the two provisions allows the EU (or the other Contracting Party) to suspend the agreement or declare its termination according to the rules of the Vienna Convention on the law of Treaties (article 60). Some of the questions addressed by the EO to the Commission related to Trade and Sustainable Development (TSD) chapters in free trade agreements concluded by the EU since 2009 (FTA with South Korea). Trade and Sustainable Development (TDS) chapters are a distinctive feature of the EU’s more recent Free Trade agreements 63 . The rationale of those provisions is that trade is a driver for sustainable development, which, according to the UN approach, includes labour rights and environmental protection. Under TDS provisions, Contracting Parties are required to apply international labour and environmental standards by ratifying some ILO conventions and Multilateral Environmental Agreements (MEAs). Parties shall also abstain from lowering the environmental and labour legislation requirements to encourage international investment and are compelled to progressively increase the level of protection. TDS chapters represent a promotional model 64 as they establish cooperation and dialogue between the parties and civil society. Dispute settlement is provided for, which can eventually lead to a Panel report (as it happened with South Korea) but the winning Party cannot (yet) impose sanctions 65 . 62 L. BARTELS, A Model Human Rights Clause for the EU's International Trade Agreements, (February 1, 2014). German Institute for Human Rights, 2014, Available at SSRN: https://ssrn.com/abstract=2405852. 63 European Economic and Social Committee, Trade and sustainable development chapters in EU Free Trade Agreements available on the website of the EESC. For the different interpretations of the aims pursued by the TSD chapters see J. HARRISON M. BARBU, L. CAMPLING, F. EBERT, Labour Standards Provisions in EU Free Trade Agreements: Reflections on the European Commission’s Reform Agenda, in World Trade Review, 8(4), 2019, pp. 635-657. The application of these provisions can positively affect the lives of workers in partners countries; improve the conditions of workers in internationally traded goods and services. Such a reading is supported by the fact that all TSD chapters contain an obligation to monitor the impact of the trade agreement itself on sustainable development. 64 M. MOORE, C. SCHERRER, Conditional or Promotional Trade Agreements - Is Enforcement Possible? How International Labour Standards Can Be Enforced through US and EU Social Chapters, Core Labour Standards Plus, Friedrich Ebert Stiftung, 2017, www.academia.eu. 65 See infra on the new approach of the Commission towards TDS. The dispute settlement process established with reference to provisions in TDS Chapters can be nonetheless effective. After the Panel conclusions in the dispute with South Korea, this country ratified three out of four fundamental International Labour Organization (ILO) conventions P. MAZZOTTI, Sustainable Development Chapters in the European Union’s Free Trade Agreements: Reconsidering the Debate on Sanctions, European Law institute papers 2021, https://www.europeanlawinstitute.eu. Some consider TDS implementation one of the weakest elements of these chapters. J. HARRISON ET AL., Governing Labour Standards through FTAs, in Journal of Common Market Studies, 2019 Volume 57. Number 2. pp. 260-277; K. HRADILOVÁ, O. SVOBODA, Sustainable Development Chapters in the EU Free Trade Agreements: Searching for Effectiveness, in Journal of World Trade 2018, p. 10191042; they argue that TSD chapter enforcement should be strengthened through civil society participation, cooperation between the Parties and monitoring. See also G. MARIN DURÀN, Sustainable development chapters in EU free trade agreements: Emerging compliance The European Union External Action under the lens of the EU Ombudsman 52 www.fsjeurostudies.eu 4.2. The European Ombudsman’s questions regarding the preparatory stage of human rights clauses The EO questions to the Commission on the preparatory stage of human rights clauses focus on the principles and criteria to determine whether to include a human rights clause in an international agreement and on the content of the clause. The decision to incorporate an HRC in all EU international agreements does not seem to raise any specific issue in the stage of pre-negotiation. In fact, HRCs are a wellestablished component of the EU external relations policy. According to several Commission communications dating back to 1995 66 , HRCs have to be included in all EU agreements. However, an examination of the practice tells us another story. First, EU sectoral agreements do not usually contain an HRC. The reason is that HRCs are considered “political clauses” and, as such, they do not seem “appropriate” for sectoral agreements, according to a non-published document reporting the Commission’s position 67 . One can understand the reasons of such exclusion, since an HRC often meets the opposition of the EU partners. The EU insists on the incorporation of the clause when an extensive relationship is being negotiated. The omission of an HRC in a sectoral agreement can be compensated by the so-called passerelle clause which links the sectoral (especially trade) agreement to the framework cooperation agreement concluded with the same partner and which contains an HRC (the essential element and the non-execution provisions), thus making it possible for the parties to adopt “appropriate measures” under the sectoral/trade agreement 68 as a consequence of serious violations of the values indicated in the essential element provision included in the Cooperation/association agreement. The inclusion of the “passerelle clause” in sectoral agreements is a compromise solution that is, however, not always available, as there are self-standing sectoral agreements. Unfortunately, the EO did not ask the Commission to clarify if it intends to apply a more consistent approach as regards the formulation of the passerelle clauses, as some agreements, such as the Framework Cooperation agreement with Korea, issues, in Common Market Law Review, 2020, n. 4, p. 1031-1066, who criticizes a sanctions-based solution to improve enforcement of TSD chapters. 66 Commission Communication, Inclusion of respect for democratic principles and human rights in agreements between the Community and third countries, COM (95) 216 final, 23.5.1995. Council of the European Union, Conclusions on human rights clauses in Community agreements with non-member countries of 29 May 1995, Bulletin of the European Communities, 5/1995, 9, point 1.2.3. See also the European Parliament Resolution on the Communication from the Commission on the inclusion of respect for democratic principles and human rights in agreements between the Community and third countries (COM (95)0216 - C4-0197/95), OJ C 320, 28.10.1996, p. 261. 67 This unpublished document is mentioned by L. BARTELS, BENOIT-ROHMER ET AL, Human Rights Mainstreaming in the EU’s External Relations, European Parliament Study, EXPO/B/DROI/2008/66, September 2009. 68 See the agreement with Iraq OJ L 204 del 2012. See on the effectiveness of the linking clause, the EO inquiry on the lack of an IA for the Vietnam trade cooperation agreement, cited above. Francesca Martines 53 are rather vague on the relationship between the trade agreement and the framework cooperation agreement 69 . It is worth mentioning that an HRC is not included in Investment agreements. This situation has risen concern on the part of non-intergovernmental organisations 70 . Recently, thirty-five civil society organizations issued a Joint Appeal 71 on the Inclusion of Enforceable Human Rights clauses in the Eu-China Comprehensive Agreement on Investment 72 . However, the inclusion of an HRC does not seem an appropriate tool for human rights protection in the framework of those agreements, because the suspension of an investment agreement as a form of sanction for HR violation by the State of investment might be detrimental for the investors of the Contracting Party which suspends the agreement 73 . Human rights (or other values such as health, protection of the environment, etc.) can be affected by investors’ activities. Thus, a reference to human rights, environmental protection, labour rights, rights of indigenous people, health, etc. can be included in investment treaties 74 to establish that investments shall be consistent with those values. Investors do not have positive obligations – in the absence of a provision contained in the state-investor treaty – to respect human rights of the host State population 75 and this is why the European Parliament has called for the inclusion of a corporate social responsibility clause in international agreements concluded by the EO 76 . The above69 L. BARTELS, The European Parliament’s Role in Relation to Human Rights in Trade and Investment Agreements, Expo/B/Droi/2012-09 February 2014, Pe 433.751. 70 https://ec.europa.eu/commission/presscorner/detail/es/ip_20_2542. The 2013 impact assessment envisaged the inclusion of an HRC (see Final IA on EU-China trade and investment relations, authorizing the opening of negotiations on an investment agreement between the European Union and the People's Republic of China, SWD(2013) 185 p. 48. The EU-China Agreement on geographical indication in force since March 1, 2021, does not contain a reference to human rights or an HRC. See European Parliament non-legislative resolution of 11 November 2020 on the draft Council decision on the conclusion of the agreement between the European Union and the Government of the People’s Republic of China on cooperation on, and protection of, geographical indications (08359/2020 – C9-0298/2020 – 2020/0089M(NLE)). 71 The text is available in the FIDH website https://www.fidh.org/en/international-advocacy/europeanunion/joint-appeal-on-the-inclusion-of-enforceable-human-rights-clauses-in, 15.01.2021. 72 The agreement in principle was finalized in December 2020. The Agreement ratification was suspended due to Chinese sanctions against members of the EU Parliament. The Agreement in principle contains a reference to the Universal declaration of human rights in the preamble. L. COTULA, EU–China Comprehensive Agreement on Investment: An Appraisal of its Sustainable Development Section, in Business and Human Rights Journal, 2021, 6(2), pp. 360-367. 73 Investment protection agreements might address human rights issues by including a Corporate Social responsibility clause, as the one contained in the Comprehensive Economic and Trade Agreement (CETA) negotiated between the EU and Canada. 74 F. G. SANTACROCE, The Applicability of Human Rights Law in International Investment Disputes”, ICSID Review, Foreign Investment Law Journal, 2, 34, 1, 2019, p. 136-155. B. CHOUDHURY, Human Rights Provisions in International Investment Treaties and Investor-State Contracts, in S. SCHILL ET AL., eds., Investment Protection, Human Rights, and International Arbitration, Edward Elgar July 4, 2020, available at https://ssrn.com/abstract=3643407 or http://dx.doi.org/10.2139/ssrn.3643407. 75 Urbaser SA and Consorcio de Aguas Bilbao Bizkaia, Bilbao Biskaia Ur Partzuergoa v. República Argentina (ICSID Case NoARB/07/26), Award of 8 December 2016, para. 1209. 76 States’ parties can undertake the obligation to encourage and promote CSR schemes, thus affecting private companies’ behaviour. Provisions in free trade and investment agreements are not addressed to private companies but CRS obligations recognize the effect that private companies’ behaviour can have on The European Union External Action under the lens of the EU Ombudsman 54 www.fsjeurostudies.eu mentioned Joint Appeal on the Inclusion of Enforceable Human Rights clauses in the EuChina Comprehensive Agreement on Investment also required the inclusion in a TDS chapter of a provision reaffirming the obligations of State parties to protect human rights, as set out in international law. This chapter should include the regulation of companies and the provision of effective access to remedies and tribunals when they violate human rights, cause detriment to or contribute to harming them. From a different perspective, investment treaties might also be problematic for human rights because they might limit the regulatory space of the host State. From this angle, a possible solution could be modelled on the CETA (EU and Canada free trade agreement 77 ) which exempts the parties from investment treaty obligations if they intend to protect health, environment or human rights. The issue of the inclusion of an HRC can also be considered in relation to Readmission agreements (RA) concluded by the EU with a third State (a question not addressed by the EO). Readmission agreements do not provide for such clauses, and concern for human rights violations in RA materializes in a non-affection clause 78 contained in the preamble 79 or in a dedicated provision 80 . Among EU informal readmission agreements, only the Joint Way Forward with Afghanistan contains a nonaffection clause. The inclusion of the non-affection clause seems a solution of compromise which accommodates the interest of the EU and its member States to ensure a return of illegal migrants from the territory of the EU to their country of origin, the effectiveness of readmission procedures and the protection of human rights. The inclusion of an HRC and a suspension clause in an RA is highly problematic. First the aim of the HRC is to allow the European Union to react to serious violations of human rights or of other non-trade values committed by the other Party and it is not an appropriate tool to labour and environmental standards. See ILO Research Paper 13. J. WALESON, Corporate Social Responsibility in EU Comprehensive Free Trade Agreements: Towards Sustainable Trade and Investments, in Legal Issues of Economic Integration, 42, 2, 2015, pp. 143-174. See also F. ROMANIN JACUR, Corporate Social Responsibility in Recent Bilateral and Regional Free Trade Agreements: an Early Assessment, in European Foreign Affairs Review, 23, 4, 2018, pp. 465-483. 77 See the “EU-Canada Comprehensive Economic and Trade Agreement (CETA)” page of the official website of the European Commission, available at: https://policy.trade.ec.europa.eu/eu-trade-relationshipscountry-and-region/countries-and-regions/canada/eu-canada-agreement_en. 78 See for example article 18 of the Readmission agreement between the EU and Belarus: “This Agreement shall be without prejudice to the rights, obligations and responsibilities of the Union, its Member States and Belarus arising from international law including from international conventions to which they are party, in particular from the international instruments listed in Article 2, and from: international conventions determining the State responsible for examining applications for asylum lodged; international conventions on extradition and transit; and multilateral international conventions and agreements on the readmission of foreign nationals”. OJ L 181, 9.6.2020, p. 3. 79 The RA with Russia refers to the Universal declaration on Human Rights, to the UN civil and political rights covenant, to the Refugees’ Status Convention, to the Convention against torture, OJ L 129 17.5.2007, p. 40; the RA with Pakistan makes a general reference to rights and obligations of the Parties under international law. See OJ L 287/52, 4.11.2010 p. 52. A list of readmission agreements is reported on the EU Website, https://home-affairs.ec.europa.eu/policies/migration-and-asylum/irregular-migration-andreturn/return-and-readmission_en. 80 RA with Cape Verde, article 17, OJ L 282, 24.10.2013, p. 15; RA with Turkey article 18, OJ L 134, 7.5.2014, p. 3. RA with Azerbaijan, article 18, OJ L 128, 30.4.2014, p. 17. Francesca Martines 55 react to violations of human rights of returnees by the country of origin or of readmission. But at the same time, the non-affection clause does not appear an adequate solution either, especially if the EU partner has not ratified the key international human rights conventions for the protection of returnees or the Refugees Convention (as in the case of Pakistan). In this case, for example, the person readmitted in this country risks indirect refoulement 81 . In synthesis, what one can infer from the answer of the Commission, which is substantially descriptive of the current practice, is a confirmation that the Commission intends to propose the inclusion of HRC in all trade and political framework agreements, while excluding mere sectoral agreements and to continue the usage of the passerelle clause. In any case, the definition of HRC as a qualifying feature of the EU external (and trade) policy and the insistence of the European Parliament that all agreements should include an HRC confirms that the issue is far from settled 82 . As for the substantive content, although HRCs have a similar structure, there is no standard HRC even if the reference to the UN General Assembly Universal Declaration of Human Rights, to democracy and the rule of law is common to most HRC. Some HRC mention other instruments such as the UN Charter the Helsinki Final Act of 1975 of the Conference on Security and Cooperation in Europe and the Charter of Paris for a New Europe of 1990; to market economy (agreements with former Soviet states). A reference to territorial integrity is found in the Association agreement with Ukraine 83 . The 2009 Common Approach provides for the inclusion of a reference to non-proliferation of WMD and counterterrorism, the International Criminal Court and small arms and light weapons. These, however, are not qualified as an “essential element” which refers only to HR, the rule of law, non-proliferation. This is a relevant difference since only the violation of essential elements can trigger “appropriate measures”. In the perspective of the evolution of the content of the Clause, the Commission states that it will propose the inclusion of “respect for the Paris Agreement on Climate Change 84 81 C. MOLINARI, The EU Readmission Policy to the Test of Subsidiarity and Institutional Balance: Framing the Exercise of a Peculiar Shared Competence, in European Papers, Vol. 7, 2022, No 1, pp. 151-170. 82 EP is a strong supporter of the inclusion of HRC in all agreements, especially in trade and cooperation agreements. This position has been reiterated in the Annual report on human rights and democracy in the world and the European Union’s policy on the matter – annual report 2021 (para 42) (PE696.496v02-00) (September 2021). See also Human rights and democracy in the world and the EU’s policy on the matter – annual report 2019, para 39. 83 The final part of the HRC (article 2 of the Association Agreement) specifies: “Promotion of respect for the principles of sovereignty and territorial integrity, inviolability of borders and independence, as well as countering the proliferation of weapons of mass destruction, related materials and their means of delivery also constitute essential elements of this Agreement. OJ L 161 of 29.5.2014, p. 3. See N. GHAZARYAN, A New Generation of Human Rights Clauses? The Case of Association Agreements in the Eastern Neighbourhood, in European Law Review, 2015, n. 3, pp. 391-410. 84 The commitment to ratify and enforce the Paris Agreement on Climate Change represents an innovation. On the necessity to reinforce the nexus between trade agreements and the Climate change Paris agreement see Council of the European Union, Strengthening coherence between EU free trade agreements and the Paris Agreement on climate change - Information from the French, Spanish and Luxembourg delegations, doc. 7016/19, 1 March 2019 considering the inclusion of commitments on fighting climate change in the HRC. See the Commission Communication Trade Policy Review – an Open, Sustainable and Assertive The European Union External Action under the lens of the EU Ombudsman 56 www.fsjeurostudies.eu as an essential element in all future agreements concluded by the EU” 85 as provided for in the EU-UK Trade and Cooperation Agreement 86 . At the end of the day, as the Commission specifies in the answer given to the EO, “the final wording (of the clause) is a product of negotiation between two partners” but the Commission tries to adapt the HRC to the different situations of the EU Partner. 4.3. The European Ombudsman’s questions regarding the monitoring and implementation stages of human rights clauses The implementation of human rights clauses and other human rights obligations requires the definition of benchmarks (a) 87 , a process of monitoring (b), and the application of enforcement mechanisms (c). a) Benchmarks. Benchmarks 88 can refer to specific targets, and timeline indicators; for example, if the goal of the provision (the conditionality mechanism in the GSP system 89 ) is the Trade Policy, Brussels, 18 February 2021 COM(2021) 66 final. In recent agreements, the issue has been regulated in a provision ad hoc, which does not create real obligations and does not take the form of the HRC. See for example article 12.6 of the FTA between the EU and Singapore: “The Parties affirm their commitment to reaching the ultimate objective of the UN Framework Convention on Climate Change (hereinafter referred to as ‘UNFCCC’), and to effectively implementing the UNFCCC, its Kyoto Protocol, and the Paris Agreement of 12 December 2015 in a manner consistent with the principles and provisions of the UNFCCC. They commit to work together to strengthen the multilateral, rules-based regime under the UNFCCC building on the UNFCCC's agreed decisions, and to support efforts to develop a post-2020 international climate change agreement under the UNFCCC applicable to all parties”. 85 See COM (2021) 66 final p. 14, op. cit. 86 This is the first agreement concluded by the EU to include the commitment to fight against Climate change as an essential element. The EU-UK trade and cooperation agreement follows a more complex structure as far as the essential element clause is concerned. Title II: “Basis of the cooperation” contains provisions on shared “values”: democracy and the rule of law (article 763); Fight against climate change (article 764) Countering proliferation of weapons of mass destruction (article 765) Small arms and light weapons and other conventional weapons (766); The most serious crimes of concern to the international community (article 767) Counter-terrorism (768); Personal data protection (769); Global cooperation on issues of shared economic, environmental and social interest (article 770); article 771 named essential element clause specifies that “Article 763(1), Article 764(1) and Article 765(1) constitute essential elements of the partnership established by this Agreement and any supplementing agreement.”. article 772 (Fulfilment of obligations described as essential elements) is the clause that provides for the termination or suspension of the agreement or any supplementing agreement in whole or in part, in case of “a serious and substantial failure by the other Party to fulfil any of the obligations that are described as essential elements”. 87 M. VIVONA, I. MEIER, V APOSTOLOVSKI, M. MÖSTL, K. STARL, EU practices on measuring human rights, in European Yearbook on Human Rights, 2015, pp. 307-316. 88 For the notion of benchmark, see A. MIHR, Human Rights Benchmarks for EU's External Policy Publications Office of the European Union, EXPO/B/DROI/2011/15, PE 457.059, 2011. 89 One can note that the Commission’s proposal for the new GSP broadens the conventions that beneficiary countries must ratify in order to benefit from GSP+. These are: The Convention on the Rights of People with Disabilities; the Optional Protocol to the Convention on the Rights of the Child on the Involvement in Armed Conflict; the ILO Convention on Labour Inspection No. 81; the ILO Convention on Tripartite Consultations No. 144; and the United Nations Convention against Transnational Organised Crime. See Commisison Communication, Proposal for a regulation of the European Parliament and the Council on Francesca Martines 57 ratification of some conventions by a State, the benchmark is the number of ratifications within a certain period of time. But in HRC benchmarks are not defined, since the clause usually refers to general concepts, with some exceptions as in the Strategic Partnership Agreement with Canada, 90 and in the Cotonou agreement with reference to the rule of law 91 . One cannot expect the HRC to contain a clear definition of measurable standards and criteria, if one considers that the HRC (the essential element provision) is a legal basis for discussion, cooperation and dialogue with EU partners on the basis of a long-term relationship. Besides, well-defined benchmarks would make the negotiations with EU partners even more complicated. The absence of benchmarks does not seem to be one of the causes of the poor enforcement of the HRC as the non-execution provision is triggered only in cases of serious violations of the principles referred to in the essential element part of the clause when there are no doubts that those values have been violated. This has been confirmed by the Commission in its answer to the EO’s specific question on how “a decrease in the level of human rights protection is measured and what circumstances would trigger the application of the ‘non-execution’ clause”. An interesting question made by the EO refers to the use by the Commission of the Charter of Fundamental Rights when verifying compliance in the context of trade agreements. The question seems misplaced: the Charter does not provide a parameter for compliance applicable to third States but only to EU Institutions (and in some cases to Member States) and bodies. For example, the Charter in 2009 became binding, and, as a consequence, a new Frontex regulation 92 was adopted, which instituted mechanisms and instruments to promote and monitor compliance with Frontex’s obligations to respect fundamental rights. The above-mentioned first EO own-initiative inquiry on Frontex was in fact motivated by the widespread interest by civil society in how this Agency carried out its tasks in accordance with its obligations under the Charter. applying a generalised scheme of tariff preferences and repealing Regulation (EU) No 978/2012 of the European Parliament and of the Council, COM (2021) 579 final, 22.9.2021. 90 OJ L 3.12.2016 L 329, p. 45. Article 2. 4 specifies: “The Parties recognise the importance of the rule of law for the protection of human rights and for the effective functioning of governance institutions in a democratic state. This includes the existence of an independent justice system, equality before the law, the right to a fair trial and individuals' access to effective legal redress”. Article 28 of the same agreement specifies that: “a particularly serious and substantial violation of the obligations described in Articles 2(1) and 3(2) may be addressed as a case of special urgency”. 91 Article 9.2 of the Partnership agreement between the members of the African Caribbean and Pacific (ACP) Group of States and the EC and its Member States signed in Cotonou on 23 June 2000, OJ (2000) L 317/3 which defines the rule of law with reference to an effective and accessible means of legal redress, an independent legal system guaranteeing equality before the law and an executive that is fully subject to the law. See L. PECH, Promoting the Rule of Law Abroad: On the EU’s Limited Contribution to the Shaping of an International Understanding of the Rule of Law, in D. KOCHENOV, F. AMTENBRINK (eds), The European Union’s Shaping of the International Legal Order, CUP, 2013, pp. 108-129. The Cotonou agreement was due to expire in February 2020, but its application has been extended until June 2023 unless the new Partnership agreement enters into force before that date. 92 Regulation (EU) No 1168/2011 of the European Parliament and of the Council of 25 October 2011 amending Council Regulation (EC) No 2007/2004 establishing a European Agency for the Management of Operational Cooperation at the External Borders of the Member States of the European Union, in OJ L 304, 22.11.2011, p. 1. The European Union External Action under the lens of the EU Ombudsman 58 www.fsjeurostudies.eu b) Monitoring. Monitoring 93 , that is the action of fact-finding, gathering information on human rights situations, verifying and analysing such information 94 . Different tools may be used to carry out monitoring which implies scrutiny of the other State’s behaviour, ranging from examination of State reports, communication by private parties, fact-finding missions 95 . The notion of monitoring is interpreted rather extensively by the EU. The Commission’s answer to the EO refers to various channels of information: letters, meetings, submissions, reports of international HR monitoring bodies, also including “exchanges of information, dialogue and visits and involves various stakeholders, including civil society”. Civil society plays an increased role – at least in principle – in the dialogue/monitoring process 96 , although its monitoring function may be limited by several factors, not least the often poor organisational capacity to monitor the implementation of the agreement 97 . The EU applies the procedures set out in the agreements containing the HRC, but it also uses external monitoring mechanisms established by international human conventions or by international organisations, such as ILO 98 . In the framework of GSP 93 J. ZERK, R. BEACOCK, op. cit. 94 UN Training Manual on Human Rights, monitoring “is a broad term describing the active collection, verification and immediate use of information to address human rights problems. Human rights monitoring includes gathering information about incidents, observing events (elections, trials, demonstrations, etc.), visiting sites such as places of detention and refugee camps, discussions with Government authorities to obtain information and to pursue remedies and other immediate follow-ups”. United Nations, Geneva, 2001, p. 9. 95 The European Union Agency for Fundamental Rights website presents an overview of the different monitoring mechanisms with a human rights remit under the auspices of the United Nations, the Organisation for Security and Co-operation in Europe, the Council of Europe and the EU, see https://fra.europa.eu/en/content/monitoring-mechanisms. For the monitoring mechanism in the EU see P. ALSTON, O. DE SCHUTTER (eds.) Monitoring Fundamental Rights in the EU, Oxford, Portland, 2005. 96 For an analysis of civil society participation in European Union (EU) trade policy L. DRIEGHE, J. ORBIE, D. POTJOMKINA, J. SHAHIN, Participation of Civil Society in EU Trade Policy Making: How Inclusive is Inclusion? in New Political Economy, 2021, available at https://doi.org/10.1080/13563467.2021.1879763. 97 Conclusion of the EU-Vietnam Free Trade Agreement (Resolution), 12 February 2020, European Parliament non-legislative resolution of 12 February 2020 on the draft Council decision on the conclusion of the Free Trade Agreement between the European Union and the Socialist Republic of Viet Nam (06050/2019 – C9-0023/2019 –2018/0356M(NLE): (para 37) “involvement of independent civil society and social partners in monitoring the implementation of the agreement is crucial, and calls for the preparation and swift establishment of DAGs following the entry into force of the agreement, as well as for a broad and balanced representation of independent, free and diverse civil society organisations within those groups, including independent Vietnamese organisations from the labour and environmental sectors as well as human rights defenders; supports the efforts of civil society organisations in Vietnam to develop proposals in this regard, and will support capacity-building efforts”. 98 GSP Plus scheme combines the scrutiny of international bodies and of EU institutions. Article 19(6) of the GSP Regulation requires that the Commission take account of ‘all relevant information’ in determining whether GSP beneficiary countries duly comply with their human rights obligations, including information provided by civil society. Besides the dialogue that takes place within bilateral meetings (with the Commission, EU delegations; EEAS) which might include monitoring visits, dialogue is based on scorecards, working documents highlighting shortcomings in the implementation. Scorecards are not accessible to the public. Francesca Martines 59 the Commission has the power to investigate whether the beneficiary State complies with its obligations including human rights. The Commission enjoys a discretionary power whether to initiate such an investigation 99 . The matter has also been referred to the Ombudsman by four Trade Unions organisations 100 on the alleged violation of labour rights by Bangladesh and the refusal by the Commission to initiate an investigation using the power it has under GSP 101 . The claimants argued that the Commission’s failure to investigate and the lack of a transparent and objective process for deciding whether to scrutinize Bangladesh’s behavior, constituted maladministration. The most interesting part of the EO’s assessment (who concluded for a decision of no maladministration in this case) was to establish whether the Commission “has provided adequate explanations for its actions and the procedures it has in place”. In fact, the Commission’s discretionary power in this circumstance does not exempt the Institution from giving a convincing explanation for its decision 102 . In general terms, the implementation of human rights tools requires full respect of the limits posed by European law including administrative principles. The monitoring process is functional to the phase of enforcement and a component of this process but, especially when the use or threat of coercion as a response to wrongful conduct is weak, monitoring might acquire an autonomous value as a form of pressure towards the other Contracting State which is requested to collaborate with an investigation and to provide the documentation required (the extent of such cooperation depends on the international obligations undertaken by the State being monitored) 103 . In other terms, even if the non-execution clause is not triggered, monitoring has an independent value in the field of human rights to improve States’ compliance. Monitoring, scrutiny, and supervision by international institutions, but also by private parties, ONG, civil society organisations, trade unions, etc. are an integral part of the soft approach favoured by the Commission which prefers to suggest changes 104 rather than impose them. It is also clear that mere monitoring without the possibility of triggering a 99 Article 19 of the regulation in force provides for the following steps: after a 6-month monitoring and evaluation period where third parties are heard (orally and in writing by the Commission) the Commission submits a report to the beneficiary country which it can reply to. If the Commission confirms that serious violations occurred, it adopts a delegated act withdrawing the preferences in whole or in part. 100 The organisations filing the complaint were the International Trade Union Confederation (ITUC), the Clean Clothes Campaign (CCC), and the HEC-NYU EU Public Interest Clinic. 101 Cases 1056/2018/JN and 1369/2019/JN on the European Commission’s actions regarding the respect for fundamental labour rights in Bangladesh in the context of the EU’s Generalized Scheme of Preferences. The Commission’s main argument was that “The partial or full withdrawal of trade preferences should be a measure of last resort, also because the countries concerned are the least developed countries.” The EO inquiry was closed the 24.03.2020. 102 Cases 1056/2018/JN and 1369/2019/JN on the European Commission’s actions regarding the respect for fundamental labour rights in Bangladesh in the context of the EU’s Generalised Scheme of Preferences. Decision adopted the 24.03.2020. 103 For monitoring without enforcement in another context see C. LACATUS, U. SEDELMEIER, Does monitoring without enforcement make a difference? The European Union and anti-corruption policies in Bulgaria and Romania after accession, in Journal of European Public Policy, 2020, n. 8, pp. 1236-1255. 104 On the function of monitoring see D.L. DONOHO, Human rights enforcement in the 21st Century, in Georgia Journal of International and Comparative Law, 35, 1, 2006, pp. 3-52. The European Union External Action under the lens of the EU Ombudsman 66 www.fsjeurostudies.eu of civil society which correctly requires that in external actions and international relations the EU institutions and bodies act in full respect of principles governing good administration. In synthesis, the EO initiative on human rights in EU trade policy is part of the effort of the EO to reinforce good administration and the defence of human rights in third countries in line with the Lisbon Treaty obligations. ABSTRACT: This paper examines the increasingly active role of the European Ombudsman in ascertaining by what procedures and instruments the European Union contributes to the protection of human rights in its external action. After an overview of the European Ombudsman’s competencies and activities concerning the administrative function of EU institutions, this article discusses the context and scope of a recent European Ombudsman’s strategic initiative on the incorporation of human rights clauses – and other human rights tools – in EU international trade agreements KEYWORDS: European Ombudsman – administrative function – human rights clauses – monitoring – enforcement.