The European Union Agency for Fundamental Rights (EFRA) was finally established after receiving approval from the Council of Justice in February this year.

The EFRA carries on from the work undertaken by the European Monitoring Centre on Racism and Xenophobia and began work on 1 March 2007.
 
The primary function of the EFRA will be to provide expert advice and opinion to EU Institutions and Member States in relation to matters of fundamental rights, through the gathering and analysis of information. 

The EFRA does not adjudicate on specific cases, instead it will assist the other Institutions in their consideration of individual cases by utilising the wealth of data it is to harvest. In particular, the EFRA is intended to work in harmony with the existing powers of the European Court of Human Rights and the Council of Europe.

The creation of the EFRA should be regarded as significant in many respects, as fundamental rights are of broad ranging benefit to all within the member states. While the concept of setting up such an agency has been around since 1999, there was surprise when the European Council charged the Commission with setting up the EFRA in 2003, as previous discussions lacked political will to implement the agency, preferring to draw on other organisations for support.

However, the birth of this new agency has not been without controversy. One of the reasons that political will in establishing EFRA was initially lacking was that the creation of the EFRA highlights a number of tensions within the EU.

This includes the interaction between individual Member States' fundamental rights mechanisms and the allocation of power and responsibility between the EU Institutions and those of the Member States. For example, emotive policy areas such as policing, asylum and immigration will be outwith the EFRA's remit. Part of the reason for the EFRA's limited remit in relation to individual cases is the result of these structural weaknesses being taken into account by the Commission in its proposals for the EFRA.
 
Whilst the creation of the EFRA will not have an immediate effect on private individuals in terms of creating new rights or obligations, it serves as a further indication of the EU commitment to good practice in line with upholding the key EU values.

The close scrutiny of Community Law will automatically filter through to national measures, which in turn can have an impact on all citizens and residents of a Member State, including whole industry sectors that are regulated by the State. 

The presence of a watchdog whose responsibility is to monitor developments in fundamental rights within the Community will doubtless improve governance in the UK at a governmental level.

This can ultimately have knock on effects for individual companies and persons within the UK, albeit that these are unlikely to be felt for some time.

Kelly Harris is a public law specialist with commercial law firm Shepherd and Wedderburn
0131 473 5382

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