Tag Archive: EU Charter of Fundamental Rights

The European Union’s Fight for LGBT Rights in Partner Countries

On October 2, 2013, Nick Westcott, the European Union’s most senior official in charge with relations in Africa, proclaimed the European Union should stop lecturing Africa about gay rights.  Westcott believes the European Union needs to be understanding of Africa’s cultural differences.  When asked to elaborate on cultural issues at a debate in Brussels about European Union foreign policy, Westcott stated “We can lecture about lesbian, gays and bisexuals until the cows come home. And it will have a wholly counterproductive effect on our usefulness in Africa. We need to focus on fundamental values.”

Protecting the rights of the LGBT community is a fundamental value of the European Union.  Westcott’s stance on how to handle gay rights in Africa is contrary to the European Union’s overall foreign policy on the rights of gays and lesbians in partner countries.  Article 21 of the the European Union’s Charter of Fundamental Rights prohibits discrimination based on sexual orientation.The principle of equal treatment is a fundamental value for the European Union, which is going to great lengths to combat homophobia and discrimination based on sexual orientation.

In July 2012, the European Parliament released a resolution to help combat violence against lesbian women and the rights of the LGBT community in Africa.  In July 2013, the European Parliament submitted another resolution condemning a law passed by Nigeria that criminalizes not only same-sex marriage, but those who fail to denounce them. Even more than that, the law made it illegal to show a public display of affection to someone of the same sex.

The European Union’s fight for LGBT rights also extends to other parts of the world.  The European Union recently condemned Serbia’s ban  of a gay pride parade for the third consecutive year.  They have also condemned the Ukraine for its new laws banning propaganda of homosexuality, and threatened the Ukraine’s ties to the European Union because of it.  It appears Westcott’s opinion on how to handle LGBT rights in Africa is not the majority view of the European Union.

Gender Jousting in the EU Institutions

Article 21 of the EU Charter of Fundamental Rights, which is legally binding on all Member States under Article 6 of the TEU states that “[A]ny discrimination on the basis of sex…shall be prohibited.”  Recently, European Union institutions have had an opportunity to demonstrate their thoughts regarding the limits of Article 21 through the discussion of legislation proposed by the European Commission that would require gender quotas for all boards of publicly held companies in the European Union.  Viviane Reding, European Commission Vice President and Commissioner for Justice and Fundamental Rights initially proposed legislation that would require 40% of all publicly listed boards to be made up of women by 2020.

This goal of Reding’s proposal is to address the implied problem with regard to gender diversity in decision-making positions in the EU.  Currently in the EU, women make up only 12% of the boards of publicly traded companies even though 60% of university graduates are women. The implication that arises from these statistics is that gender discrimination is taking place in companies that promote significantly more men to top positions than women, in spite of the large body of women who are qualified.  Such gender discrimination is prohibited under Article 6 of the TEU, and under Reding’s rationale gender quotas would serve to level the playing field for women to gain access to decision- making positions.

While one may be tempted to think that support for this legislation would be divided down gender lines, there has not necessarily been such gender stratification regarding support for this bill.  For instance, Jose Manuel Barrosso, the head of the European Commission, made the decision to postpone a vote on the legislation that, if he had not postponed the vote until November, would have effectively doomed the passage of the bill.  Reding stated that she had support of the main finance commissioners themselves, including Barrosso, Joaquin Almunia, Laszlo Andor, Michel Barnier, Andris Piebalgs, Olli Rehn and Antonio Tajani, who all backed “an ambitious directive.”

On the opposing side, a number of female commissioners opposed the bill. Additionally, Luxembourg MEP Astrid Lulling explained that she was opposed because she thought candidates should be judged based on competency, not gender. She said that many countries, particularly in the Nordic region, had had problems with the quota system.  She cited instances of abuse, circumvention of national gender quota laws, and the fact that in decades past, many women did not study subjects such as economics, business administration or mathematics, which explains why there are fewer women in high-level business positions today.

An equally noteworthy debate was present in the European Parliament’s vote on the European Central Bank’s board nominee, Yves Mensch.  The European Parliament voted against Mensch’s nomination 325 to 300, on the grounds that that a woman should hold a post on what is currently an all-male board.  The European Parliament does not have the power to block Mensch from being appointed, but his rejection by the only EU institution that is elected by popular vote sends a strong message of disapproval to the European Council, the body that is ultimately in charge of filling the post.  Both the European Central Bank nomination rejection and the Commission’s gender quota bill indicate that there is a clear concern in European institutions for women to be part of decision-making bodies in Europe.  The question remains, however, as to how to best achieve this goal.

The EU, Google, and Personal Data Protections

The European Union (EU) has expressed concerns over Google’s privacy policies. Google is a global technology company focused on online products and services, notably internet search and email services, advertising, and software technologies. On October 16, 2012, the data collection authorities for all 27 EU Member States signed a letter that was sent to Google addressing the EU’s privacy concerns. In short, the EU’s concern is that Google may be collecting too much information on users and keeping the information stored on its system for too long. The EU letter claims that Google has not “endorse[d] the key data protection principles of purpose limitation, data quality, data minimisation, proportionality and right to object.” The increased worry over Google’s policies was sparked by Google’s new privacy policy which allows the company to combine data collected from its internet-related services such as YouTube and Gmail. This data collection enables Google to improve its advertising efforts by targeting users based on specific interests and browsing history.

In order to better understand the quarrel between Google and the EU, it is important to discuss briefly EU law regarding data collection. Article 7 of the EU Charter of Fundamental Rights guarantees the right to respect for one’s private and family life, home, and communications. More specifically, Article 8 provides explicit protection of the right to the protection of personal data. Article 8 specifically includes the “right of access to data which has been collected concerning him or her, and the right to have it rectified.” The right to data protection is also enshrined in Article 16(1) of the Treaty on the Functioning of the European Union (TFEU). In 1995, the EU adopted the Data Protection Directive (95/46/EC).  The Data Protection Directive’s Article 29 created the “Working party on the Protection of Individuals with regard to the Processing of Personal Data.” The Article 29 Working Party has broad powers over data protection in the EU. Data protections were reinforced by the E-Privacy Directive (2002/58/EC). In January 2012, the Commission proposed a comprehensive reform of the EU legal framework on the protection of personal data. The 2012 proposals seek to enhance users’ control of their data and account for changes in technology.  In February 2012, Viviane Reding, the EU justice commissioner, stressed that European authorities need to ensure that Google’s new privacy policy complies with EU law.

The EU’s latest row with Google raises an interesting test regarding the future of European data protection. Specifically, the EU regulators want Google to (1) clarify its privacy policies; (2) get express permission from individual users to use and collect their data; (3) make it easier for users to opt out of certain requirements; and (4) publish how it uses and processes personal data. Google has four months to comply. If Google does not sufficiently comply with the EU’s requests, the EU regulators will consider disciplinary measures such as fines. Google has not responded at this time. However, Peter Fleischer, Google’s global privacy counsel, said, “Our new privacy policy demonstrates our long-standing commitment to protecting our users’ information and creating great products. We are confident that our privacy notices respect European law.”

Google has certainly faced its fair share of privacy complaints in EU countries in the past. In 2010, EU regulators demanded that Google warn people before taking pictures for Google’s Street View service. Furthermore, the EU demanded that Google shorten the amount of time the pictures were kept on the company’s system. In 2011, Spanish data protection authorities demanded that Google remove links to online news articles which infringed on the privacy of Spanish citizens.

At the end of the day, the latest dispute between Google and the EU underscores the difficulty in harmonizing EU data protection laws and maintaining the health of the global internet-based economy. On one hand, Google wants highly targeted advertising because advertising is the chief revenue source for the company. On the other hand, European countries want to ensure that EU users’ data is protected and that Google complies with EU law. The outcome of this row will likely have long-term implications for many other companies such as Facebook which rely on Europe’s significant market of 500 million citizens.

The EU and Serbia’s Gay Pride Parade Ban

The European Union (EU) has strongly criticized Serbia’s decision to cancel a gay pride parade in Belgrade scheduled for October 6, 2012. The Serbian government’s decision was also criticized by the United Nations (UN) and Amnesty International. The Serbian government cancelled the parade because of complaints from the Serbian Orthodox Church and threats from far-right political groups. A day before the gay pride parade ban was announced, a Serbian Orthodox Church leader referred to the event as a “parade of shame.” Serbian Prime Minister Ivica Dacic explained, “Based on all security estimates and recommendations, the interior ministry made the decision that it is necessary to ban all gatherings announced for October 6th, including the pride march, for the sake of citizens’ safety.” The cancellation of the parade marks the second straight year that the event has been cancelled; last year’s parade was cancelled because of similar threats of violence. Nonetheless, Serbian homosexual activists have vowed to continue fighting for homosexual rights.

In 2009, Serbia applied for EU membership. In March 2012, Serbia acquired EU candidacy and accession talks have been ongoing. However, Serbia’s decision to ban the gay pride parade has raised concerns among senior EU leaders and international human rights groups about whether Serbia is committed to “so-called European values.” Human Rights Watch notes that the European Commission has confirmed that homosexual rights are an important component of the criteria required for EU membership. As such, Human Rights Watch argues that that the EU should consider the treatment of homosexuals when evaluating Serbia’s admission to the EU. Furthermore, the gay parade ban likely reinforces growing concerns in recent months that Serbia will “abandon its European path and return to the nationalism of the past.” The current Serbian government consists of nationalists and Socialists that were formerly led by Slobodan Milosevic.

The Serbian government’s decision to ban the gay pride parade may violate several articles found in the EU Charter of Fundamental Rights. First, the ban may violate Article 11’s explicit protection of the right to freedom of expression. The right to freedom of expression specifically includes the “freedom to hold opinions and to receive and impart information and ideas without interference by public authority and regardless of frontiers.” Second, the ban may violate Article 12’s explicit protection for the right to freedom of peaceful assembly and to freedom of association at all levels. A Human Rights Watch official argued that the Serbian government’s security risks argument should be rejected. The official noted, “Pointing to security risks without any visible effort to come up with a reasonable plan to make the Belgrade Pride Parade happen is succumbing to threats of violence. Basic human rights are being thrown overboard.” Finally, the gay pride parade ban may violate Article 21, a provision that expressly prohibits any discrimination on the grounds of sexual orientation. Birgitta Ohlsson, Sweden’s European affairs minister, described the ban as “deeply troubling” and stressed that “[t]he rights of minorities, freedom of speech and freedom of assembly should be guaranteed in countries that are members of the European Union or applying to join.”

The EU and Boardroom Gender Quotas

The EU plans to issue a proposal next month that would require European companies to appoint women to 40 percent of seats on supervisory boards by 2020. The proposal was made by Viviane Reding, the European Union justice commissioner. The law would apply to all listed companies with more than 250 employees and annual sales of more than 50 million euros ($63 million). Companies that fail to comply with the quotas will be subject to sanctions including fines and could be excluded from state aid and contracts. In 2011, Reding gave European companies a final opportunity to improve their records of gender imbalance in top management positions but there has been only marginal improvement.

In brief, the EU proposal aims to combat the significant gender imbalance that is still seen in many boardrooms across the EU. Specifically, the European Commission issued a report that demonstrated that just 13.7 percent of board seats in the EU belong to women. Furthermore, the report showed that there was only a 1.9 percentage point increase between October 2010 and January 2012. The report also noted that varying rates of improvement have led to highly divergent results within the EU. The legislation requires the approval from the EU’s 27 governments and the European Parliament to take effect.

The gender quota proposal has faced fierce criticism, mainly from conservative politicians and some major technology and manufacturing companies. France, the Netherlands, Italy and Spain have already introduced national quotas. However, Sweden and the United Kingdom are generally opposed to the proposal. For example, Marina Yannakoudakis, a Conservative member of the European Parliament who represents London, argues that the measure is “bad for genuine equality.” Yannakoudakis argues, “Imposing strict quotas, which are both arbitrary and artificial, cuts across the freedom of businesses to make their own decisions and the freedom of women to succeed on merit.”

It will be interesting to see how the EU faces challenges that the plan violates Article 16 of the EU Charter of Fundamental Rights which provides the freedom to conduct a business. However, one unnamed EU official notes that “companies would retain the freedom to choose among the best qualified executive directors to run day-to-day aspects of a business.” Another argument that opponents may consider is that the gender quota plan violates Article 21, a provision that explicitly prohibits any discrimination on the grounds of sex. However, this possible challenge will likely be rejected because Article 23 provides that “the principle of equality shall not prevent the maintenance or adoption of measures providing for specific advantages in favour of the under-represented sex.”

Supporters of the EU measure contend that now is the time to act and that self-regulation has not addressed the gender imbalance. Supporters argue that mandatory quotas are the only way to effectively address the systematic problem of women being underrepresented in management positions. Certain factors support the use of quotas, including: (1) women now have higher graduation rates than men in Europe but their professional careers continue to fall behind those of men; (2) women represent a growing underused pool of qualified workers, thus are an untapped potential for a poor economy; and (3) studies suggest a strong link between gender balance and professional performance. Indeed, supporters often cite Norway as a model of success for the advancement of women in business since the country instituted gender quotas several years ago. Before the Norwegian gender quota was put into effect, women occupied only 7 percent of seats on supervisory boards. Women in Norway now make up 42 percent of the board seats.

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