The Curious Case of the Fundamental Rights Agency’s Mandate: Legal Shrouding and Democratic Politics

Abstract

The adoption of the latest Multiannual Framework (MAF) for the European Union Agency for Fundamental Rights (FRA) for 2018-2022 has marked the third consecutive time a coalition of actors seeking an expanded mandate for FRA failed to include police and judicial cooperation in criminal matters in the MAF. Although the latter area is a regular part of EU law since the abolition of the pillar structure in 2009, two Opinions issued by the Council Legal Service on request of the Council have effectively blocked the amendment of the MAF. By tracing the political and legal contestation of FRA’s mandate, this article argues that the involvement of the Council Legal Service and the resulting legal obfuscation represents an instance of ‘legal shrouding’ – the practice of enclosing political disagreement in legal contestation in order to shield some actors from political pressure and deliberation. It is submitted that legal shrouding is democratically damaging.

Publication
European Public Law