# C_2016269EN.01000101.xml

| 23.7.2016 | EN | Official Journal of the European Union | C 269/1 |
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23.7.2016

EN

Official Journal of the European Union

C 269/1

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COMMISSION NOTICE

Guidance on ensuring the respect for the Charter of Fundamental Rights of the European Union when implementing the European Structural and Investment Funds (‘ESI Funds’)

(2016/C 269/01)

Table of Contents

Table of Contents

| 1. | Introduction | 1 |
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1.

| 2. | The content and legal status of the Charter of Fundamental Rights | 2 |
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2.

| 2.1. | The content of the Charter | 2 |
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2.1.

| 2.2. | Legal status and applicability of the Charter | 3 |
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2.2.

| 2.2.1. | Legal status of the Charter | 3 |
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2.2.1.

| 2.2.2. | Applicability of the Charter | 3 |
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2.2.2.

| 3. | Implementation of ESIF and the Charter | 3 |
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3.

| 3.1. | Establishing the ESI Funds intervention strategy and drawing up the programming documents (preparation of strategic policy frameworks, Partnership Agreements, programs etc.) | 4 |
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3.1.

| 3.2. | Setting up the management, monitoring and control systems | 5 |
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3.2.

| 3.3. | Implementing programmes and carrying out concrete actions outlined in a project description for works carried out when implementing ESI funds | 5 |
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3.3.

| 3.4. | Applicability of the Charter in the context of Cohesion policy: why is Charter relevant for the state authorities managing ESI Funds? | 6 |
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3.4.

| 4. | How to assess compliance with the Charter — Fundamental rights checklist | 6 |
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4.

Annexes

Annexes

| — | Annex I — Examples of implementation of EU law by Member States in the context of ESI Funds |
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| — | Annex II — Fundamental rights in the EU beyond the Charter |
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| — | Annex III — Key questions |
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1.   INTRODUCTION

INTRODUCTION

The Charter of Fundamental Rights of the European Union (the Charter) became legally binding on the EU with the entry into force of the Treaty of Lisbon, in December 2009 and now has the same legal value as the EU Treaties. Respect for fundamental rights enshrined in the Charter is thus a legal obligation for the EU institutions, bodies, agencies and offices in all their actions, and for EU Member States when they are implementing EU law.

The purpose of this guide is to provide an explanation to Member-States of the importance of ensuring respect of the Charter of Fundamental Rights when implementing ESI funds and to provide a practical tool, the ‘Fundamental Rights check-list’, to help Member States screen ESIF implementing measures against the Charter.

The guide contains explanations on the content, legal status and applicability of the Charter in general as well as within the framework of the ESI Funds. It also explains its enforcement in the context of ESIF and the possible consequences of noncompliance with the Charter. This Guidance also contains recommendations to the relevant actors how to carry out the assessment of compliance of the actions with the Charter and identifies actions in the context of ESI Funds that are considered to be actions of implementation of EU law.

2.   THE CONTENT AND LEGAL STATUS OF THE CHARTER OF FUNDAMENTAL RIGHTS

THE CONTENT AND LEGAL STATUS OF THE CHARTER OF FUNDAMENTAL RIGHTS

2.1.   The content of the Charter

The content of the Charter

The Charter contains rights and principles in relation to six themes: Dignity, Freedoms, Equality, Solidarity, Citizens' Rights, and Justice as summarized in the table below.

| Title I ‘Dignity’ (Articles 1-5):






  — | human dignity, the right to life, the right to the integrity of the person, prohibition of torture and inhuman or degrading treatment or punishment, prohibition of slavery and forced labour; |
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Title I ‘Dignity’ (Articles 1-5):

‘Dignity’

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human dignity, the right to life, the right to the integrity of the person, prohibition of torture and inhuman or degrading treatment or punishment, prohibition of slavery and forced labour;

Title II ‘Freedoms’ (Articles 6-19):

‘Freedoms’

| — | the right to liberty and security, respect for private and family life, protection of personal data, the right to marry and found a family, freedom of thought, conscience and religion, freedom of expression and information, freedom of assembly and association, freedom of the arts and sciences, the right to education, freedom to choose an occupation and the right to engage in work, freedom to conduct a business, the right to property, the right to asylum, protection in the event of removal, expulsion or extradition; |
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the right to liberty and security, respect for private and family life, protection of personal data, the right to marry and found a family, freedom of thought, conscience and religion, freedom of expression and information, freedom of assembly and association, freedom of the arts and sciences, the right to education, freedom to choose an occupation and the right to engage in work, freedom to conduct a business, the right to property, the right to asylum, protection in the event of removal, expulsion or extradition;

Title III ‘Equality’ (Articles 20-26):

‘Equality’

| — | equality before the law, non-discrimination, cultural, religious and linguistic diversity, equality between men and women, the rights of the child, the rights of the elderly, integration of persons with disabilities; |
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equality before the law, non-discrimination, cultural, religious and linguistic diversity, equality between men and women, the rights of the child, the rights of the elderly, integration of persons with disabilities;

Title IV ‘Solidarity’ (Articles 27-38):

‘Solidarity’

| — | workers' right to information and consultation within the undertaking, the right of collective bargaining and action, the right of access to placement services, protection in the event of unjustified dismissal, fair and just working conditions, prohibition of child labour and protection of young people at work, family and professional life, social security and social assistance, health care, access to services of general economic interest, environmental protection, consumer protection; |
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workers' right to information and consultation within the undertaking, the right of collective bargaining and action, the right of access to placement services, protection in the event of unjustified dismissal, fair and just working conditions, prohibition of child labour and protection of young people at work, family and professional life, social security and social assistance, health care, access to services of general economic interest, environmental protection, consumer protection;

Title V ‘Citizens’ rights' (Articles 39-46):

‘Citizens’ rights'

| — | the right to vote and stand as a candidate at elections to the European Parliament and at municipal elections, the right to good administration, the right of access to documents, the right to refer to the European Ombudsman, the right to petition, freedom of movement and residence, diplomatic and consular protection; |
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the right to vote and stand as a candidate at elections to the European Parliament and at municipal elections, the right to good administration, the right of access to documents, the right to refer to the European Ombudsman, the right to petition, freedom of movement and residence, diplomatic and consular protection;

Title VI ‘Justice’ (Articles 47-50):

‘Justice’

| — | the right to an effective remedy and a fair trial, presumption of innocence and the right of defence, principles of legality and proportionality of criminal offences and penalties, the right not to be tried or punished twice in criminal proceedings for the same criminal offence; |
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the right to an effective remedy and a fair trial, presumption of innocence and the right of defence, principles of legality and proportionality of criminal offences and penalties, the right not to be tried or punished twice in criminal proceedings for the same criminal offence;

The text of the Charter can be found under this link:

http://eur-lex.europa.eu/legal-content/EN/TXT/?uri=CELEX:12012P/TXT.

The Explanations relating to the Charter of Fundamental Rights provide guidance on the meaning of the provisions of the Charter and can be found under this link:

http://eur-lex.europa.eu/legal-content/EN/TXT/?uri=uriserv:OJ.C_.2007.303.01.0017.01.ENG

In order to contribute to a greater awareness about fundamental rights, Fundamental Rights Agency (FRA) has developed a user friendly online tool Charterpedia, which compiles international, EU and national constitutional law in the area of fundamental rights linked to the topics, chapters and Articles of the Charter (1).

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2.2.   Legal status and applicability of the Charter

Legal status and applicability of the Charter

2.2.1.   Legal status of the Charter

Legal status of the Charter

The Lisbon Treaty accorded the Charter the same legal value as the EU Treaties. It is legally binding and respect for fundamental rights enshrined in the Charter is a legal requirement.

According to Article 51(1) of the Charter, its provisions are addressed to the EU institutions, bodies, offices and agencies, subject to the principle of subsidiarity, and to Member States when they are implementing EU law. Accordingly, they must respect the rights and observe the principles enshrined in the Charter and promote their application in accordance with their respective powers when adopting and implementing rules. Article 6(1) of the Treaty on European Union and Article 51(2) of the Charter specify that the provisions of the Charter may not extend in any way the competences of the Union as defined in the Treaties.

The requirement to respect rights defined in the Charter is only binding on Member States when they act within the scope of EU law. As regards Member States, the Charter applies to all ‘emanations of State’. It thus applies to central authorities, as well as to regional, local and other public authorities when implementing EU law.

In the context of the implementation of the ESI Funds, all the Member States' actions undertaken for the implementation of the applicable regulations fall within the scope of EU law. The Charter might apply to ESIF beneficiaries, whatever their legal form, which have been made responsible, pursuant to a measure adopted by a Member State, for providing a public service under the control of the State and which have for that purpose special powers beyond those which result from the normal rules applicable in relations between individuals.

Whereas the respect for fundamental rights enshrined in the Charter is a legal requirement, there is no legal obligation under the Charter to take active measures of promotion of the rights enshrined in the Charter, but Member States are encouraged to adopt these measures of if they wish so.

2.2.2.   Applicability of the Charter

Applicability of the Charter

According to its Article 51(1), the Charter is addressed to Member States only when they are implementing EU law.

In line with the Court of Justice's settled case-law interpreting these provisions, the concept of ‘Member States implementing Union law’ does not mean that Member States are automatically implementing Union law when they hand out support under the ESIF Funds, regardless what is the ‘national measure’ or ‘national legislation’ behind the act attacked by a complainant or applicant.

In order to determine whether a national measure involves the implementation of EU law, it is according to the Court of Justice ‘necessary to determine, inter alia:

| — | whether that national legislation is intended to implement a provision of EU law; |
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whether that national legislation is intended to implement a provision of EU law;

| — | the nature of the legislation at issue |
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the nature of the legislation at issue

| — | whether the national legislation pursues objectives other than those covered by EU law, even if it is capable of indirectly affecting EU law; |
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whether the national legislation pursues objectives other than those covered by EU law, even if it is capable of indirectly affecting EU law;

| — | whether there are specific rules of EU law on the matter or rules which are capable of affecting it.’ |
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whether there are specific rules of EU law on the matter or rules which are capable of affecting it.’

The above reasoning would apply mutatis mutandis to any national measure implementing EU law, legislative or not.

The Court has further confirmed that, in cohesion policy as in other areas, the concept of ‘implementing Union law’ requires a certain degree of connection above and beyond the matters covered being closely related or one of those matters having an indirect impact on the other.

The consequences of this case law is that it will be necessary to examine whether or not in a practical case a national measure is intended to implement a provision of Union law.

Implementation of EU law in the context of implementation of ESIF is explained in section 3 below and Annex I.

3.   IMPLEMENTATION OF ESIF AND THE CHARTER

IMPLEMENTATION OF ESIF AND THE CHARTER

In the context of the implementation of cohesion policy the provisions of the Charter of fundamental rights apply under the conditions indicated below.

The principle of non-discrimination has been reinforced in Regulation (EU) No 1303/2013 of the European Parliament and of the Council (2) (Hereinafter ‘the CPR’) through the introduction of an ex ante check of the existence of the arrangements to ensure its respect.

2

ex ante

According to Article 7 of Regulation (EU) No 1303/2013, Member States and the Commission have to ensure the respect of the principles of equality between men and women and non-discrimination throughout the preparation and implementation of programmes.

Regarding the principle of non-discrimination on the basis of disability and the principle of integration of persons with disabilities, it should be noted that the EU is a party to the UNCRPD (3). The legal consequences of ratification of the UNCRPD by the Union for the management of ESI funds are described below in Annex II.

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Article 4(2) of Regulation (EU) No 1303/2013 requires the Commission and the Member States to ensure that support of the ESI Funds is consistent with relevant policies and horizontal principles as referred to, inter alia, in Article 7 of the Regulation (EU) No 1303/2013 and priorities of the Union.

The legal framework applicable to cohesion policy has been furthermore reinforced to ensure that Member States have a system in place for handling complaints, including complaints alleging a violation of the Charter of Fundamental Rights.

In the context of ESI Funds, EU law provision triggering the application of the Charter can be found in the following EU regulations and directives:

In the context of ESI Funds, EU law provision triggering the application of the Charter can be found in the following EU regulations and directives:

| 1. | The CPR; |
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1.

The CPR;

| 2. | Fund-specific Regulations; |
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2.

Fund-specific Regulations;

| 3. | Commission delegated and implementing regulations adopted on the basis of the CPR or the Fund specific Regulations; |
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3.

Commission delegated and implementing regulations adopted on the basis of the CPR or the Fund specific Regulations;

| 4. | Other EU regulations and directives, which are applicable to Member States' actions implementing the ESI Funds. It would go beyond the purpose of this guidance to identify the national measures of implementation of all other EU regulations and directives, applicable to Member States' actions when implementing ESI Funds. However, national authorities have the obligations to respect the Charter in this context as well. |
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4.

Other EU regulations and directives, which are applicable to Member States' actions implementing the ESI Funds. It would go beyond the purpose of this guidance to identify the national measures of implementation of all other EU regulations and directives, applicable to Member States' actions when implementing ESI Funds. However, national authorities have the obligations to respect the Charter in this context as well.

In the area of the ESI Funds Member States are implementing EU law when establishing the ESI Funds intervention strategy and drawing up the programming documents (1), when setting up the management, monitoring and control system (2), when implementing programmes (3) under the set of regulations mentioned above under point 1 to 3. Therefore in the following phases Member States should ensure compliance with the Charter
   (4):

In the area of the ESI Funds Member States are implementing EU law when establishing the ESI Funds intervention strategy and drawing up the programming documents (1), when setting up the management, monitoring and control system (2), when implementing programmes (3) under the set of regulations mentioned above under point 1 to 3. Therefore in the following phases Member States should ensure compliance with the Charter

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3.1.   Establishing the ESI Funds intervention strategy and drawing up the programming documents (preparation of strategic policy frameworks, Partnership Agreements, programs etc.)

Establishing the ESI Funds intervention strategy and drawing up the programming documents (preparation of strategic policy frameworks, Partnership Agreements, programs etc.)

Member States are considered to act in the scope of EU law when adopting acts or drawing up documents resulting from an obligation included in the CPR, or any of its delegated or implementing acts. This includes, by way of example, the drawing up of the Partnership Agreement or operational programmes (OPs).

When Member States draw up such documents, they need to ensure, with the help of the ‘Fundamental Rights Check-list’ that the content of the document is in compliance with the provisions of the Charter. The content of the document should respect the rights protected by the Charter and observe the principles therein.

In this context, the most relevant rights and principles are equality before the law, non-discrimination, equality between women and men, integration of persons with disabilities, the right to property, and environmental protection.

3.2.   Setting up the management, monitoring and control systems

Setting up the management, monitoring and control systems

Member States are considered to act in the scope of EU law when they set up structures and procedures required under the CPR for the management, monitoring and control of the ESI funds or if not explicitly required, when they put in place such structures for the sake of implementing the CPR, fund specific rules or their delegated or implementing acts. This covers the designation of the authorities and intermediate bodies, the working arrangements between them, the set-up of the monitoring committee and the adoption of manuals of procedures.

When doing so, Member States authorities should ensure that the rights and principles of the Charter are respected. In this context, the most relevant provisions are in particular Articles 7, 8 and 41 and 47 of the Charter.

Article 47 recognises the right to an effective remedy and to a fair trial, including the right to be heard. Article 7 is about the respect for private and family life. Article 8 concerns the protection of personal data while Article 41 concerns the obligation of the administration to give reasons for its decisions.

Article 47 recognises the right to an effective remedy and to a fair trial, including the right to be heard. Article 7 is about the respect for private and family life. Article 8 concerns the protection of personal data while Article 41 concerns the obligation of the administration to give reasons for its decisions.

The right to an effective remedy and to a fair trial (due process) needs to be ensured throughout all procedures which are put in place to give effect to the provisions of the CPR, fund specific rules or its delegated or implementing acts.

For example, subject of the CJEU Case C-562/12 Liivimaa Lihaveis MTÜ v Eesti-Läti programmi 2007-2013, Seirekomitee has been the following set-up under the Estonia-Latvia cross-border cooperation programme: The Seirekomitee, a body composed by representatives of both Member States, took the final decisions on the qualitative assessment of project applications under that programme. That committee had also adopted a programme manual, which stipulated that its decisions could not be subject to appeal before a national court. Although the adoption of a programme manual was neither explicitly referred to in the applicable legislation for the programming period 2007-2013 nor in any EU implementing provisions, the CJEU concluded that the manual had clearly been adopted with the intention to implement EU legislation and that it was binding on any person wishing to obtain aid under the said programme. Therefore the Charter, including its Article 47, was held to be applicable in this case. The CJEU held that excluding in a programme manual the judicial review before a national court of a grant refusal decision is not compliant with Article 47.

Concerning the organization of the partnership, the most relevant Charter's rights and principle include: non-discrimination, linguistic diversity, equality between women and men, integration of persons with disabilities, while in relation to formulation of rules of membership for example, it would be necessary to pay attention particularly to rights and principles of non-discrimination, linguistic diversity, equality between women and men.

As regards the functions and obligations of the monitoring committee within the framework of setting up of the management, monitoring and control system, the most relevant Charter's rights and principle would include protection of personal data, non-discrimination, linguistic diversity, equality between women and men, integration of persons with disabilities, equality before the law and the right to an effective remedy and to a fair trial.

3.3.   Implementing programmes and carrying out concrete actions outlined in a project description for works carried out when implementing ESI funds

Implementing programmes and carrying out concrete actions outlined in a project description for works carried out when implementing ESI funds

The implementation of the programmes requires actions to be taken by the managing authority or intermediate bodies (5). Such actions, like for example, launching calls for proposals, selecting operations, signing of grant agreements, follow up of the implementation, checking payment claims from beneficiaries, carrying out on the spot verifications, supervising the work of intermediate bodies, sending payment claims, preparing and submitting reports are actions of implementation of EU law.

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Certifying authorities' responsibilities under Article 126 CPR also imply taking measures of implementation of EU law. Audit authorities as well when are drawing up an audit strategy, carrying out audit, drafting audit opinion and control reports

Furthermore, as explained in Chapter 2.2, Legal status of the Charter, the Charter might apply to certain beneficiaries, when the conditions mentioned in the Chapter 2.2 are fulfilled (Member State adopts a measure which makes these beneficiaries, whatever their legal form is, responsible for providing a public service under the control of the State. For that specific purpose they have special powers beyond those which result from the normal rules applicable in relations between individuals) (6).

Chapter 2.2, Legal status of the Charter,

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When carrying out their tasks national authorities should ensure that the rights and principles of the Charter are respected and in this context, the most relevant Charter's rights and principles are the right to an effective remedy and to a fair trial, to the protection of personal data, to equality before the law and equality between women and men, to non-discrimination and the rights of the child, the integration of persons with disabilities and a high level of environmental protection, linguistic diversity, safe working conditions, freedom of expression and information, freedom of assembly and association, right to education, freedom to conduct a business, right to property, protection in the event of removal, expulsion or extradition, respect for private and family life.

3.4.   Applicability of the Charter in the context of Cohesion policy: why is Charter relevant for the state authorities managing ESI Funds?

Applicability of the Charter in the context of Cohesion policy: why is Charter relevant for the state authorities managing ESI Funds?

A breach of a fundamental right enshrined in the Charter is subject to judicial review by the courts of the Member States and by the Court of Justice of European Union (CJEU).

Provisions of EU law and national law based on EU law must be interpreted in coherence with Charter obligations, so as to give effect to the rights guaranteed under it. Where a national court has doubts as to the applicability of the Charter or the correct interpretation of its provisions, it can — and, in the case of a national court of last instance, must — refer to the CJEU for a preliminary ruling. The CJEU's answer enables the national court to decide the case. National courts regularly use this procedure. It helps the development of Charter-related case law and strengthens the role of national courts in upholding it.

The Commission, as the guardian of the Treaties, has the power to try to put an end to a violation of the Charter. It can open infringement proceedings against Member States for non-compliance with the Charter.

As the Charter applies to Member States only when they are implementing Union law, the Commission cannot launch an infringement procedure for non-compliance of a national law with the Charter if that national law in question does not implement EU law. Where the Charter does not apply, fundamental rights continue to be guaranteed at national level under the constitutions or constitutional traditions of Member States and international conventions they have ratified, the respect of which is guaranteed by national courts.

In addition, in the context of ESI Funds, Article 6 of Regulation (EU) No 1303/2013 requires operations supported by ESIF to comply with applicable Union law and the national law relating to its application. If a Member State does not respect the Charter properly when taking actions or measures of implementation of EU law, this could constitute an irregularity by an economic operator (Article 2(36) of the CPR). The Commission will therefore, where appropriate, make use of the means it has at its disposal to ensure that EU Funds are used in compliance with the Charter, in those cases where it is applicable, including interruptions of payment deadlines, suspensions of payments and financial corrections as well as infringement proceedings under Article 258 TFEU.

The duty of national authorities to ensure the respect and the protection of fundamental rights is particularly relevant with regards to the complaints that the Member States can receive concerning a possible violation of the Charter. Related to the question of monitoring of application and implementation of the Charter in the Member States is the obligation for Member States arising from Article 74(3) of the CPR, to have in place effective arrangements for the examination of complaints concerning the ESI Funds submitted by legal or natural persons. Complaints concerning the ESI Funds can also be addressed directly to the Commission.

4.   HOW TO ASSESS COMPLIANCE WITH THE CHARTER — FUNDAMENTAL RIGHTS CHECKLIST

HOW TO ASSESS COMPLIANCE WITH THE CHARTER — FUNDAMENTAL RIGHTS CHECKLIST

National authorities responsible for the implementation of the ESI Funds are invited to carefully assess whether the actions and measures (planned or already adopted by them) do fall within the scope of EU law and to check if they may have any impact on the fundamental rights enshrined in the Charter.

As a practical tool to help them carrying out this assessment, the following checklist is proposed without being of compulsory use.

I.   CHECK — if the foreseen national action or measure is the measure of implementation of EU law and therefore falls within the scope of the application of the Charter

CHECK — if the foreseen national action or measure is the measure of implementation of EU law and therefore falls within the scope of the application of the Charter

NB: this check is not necessary for actions and documents identified in this guidance as implementing EU law.

| a) | Check if there is an obligation in EU law other than the Charter applicable to the national action or measure. |
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a)

Check if there is an obligation in EU law other than the Charter applicable to the national action or measure.

| b) | If there is such an obligation in EU law, check if the national action or measure is intended to implement it. |
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b)

If there is such an obligation in EU law, check if the national action or measure is intended to implement it.

II.   CHECK — if there is a possible breach of the fundamental rights

CHECK — if there is a possible breach of the fundamental rights

| 1. | What fundamental rights are affected? (Screening the foreseen action or measure against the fundamental rights in the Charter as well as ‘key impact questions’ in annex III provides a first indication as to which fundamental rights will be concerned) |
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1.

What fundamental rights are affected? (Screening the foreseen action or measure against the fundamental rights in the Charter as well as ‘key impact questions’ in annex III provides a first indication as to which fundamental rights will be concerned)

Screening the foreseen action or measure against the fundamental rights in the Charter as well as ‘key impact questions’ in annex III provides a first indication as to which fundamental rights will be concerned

| 2. | Are the rights in question absolute rights? (Examples being, the ban on torture and the prohibition of slavery or servitude). |
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2.

Are the rights in question absolute rights? (Examples being, the ban on torture and the prohibition of slavery or servitude).

(Examples being, the ban on torture and the prohibition of slavery or servitude).

If it is concluded that the examined action or measure limits an absolute right, it should be discarded already at this stage since absolute rights may not be limited and a further analysis under points 3-6 is not needed.

If it is concluded that the examined action or measure limits an absolute right, it should be discarded already at this stage since absolute rights may not be limited and a further analysis under points 3-6 is not needed.

| 3. | What is the impact of the foreseen action or measure under consideration on fundamental rights? This step aims at identifying, for all different stakeholders concerned any positive impacts (promotion of fundamental rights) or negative impacts (limitation of fundamental rights)? |
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3.

What is the impact of the foreseen action or measure under consideration on fundamental rights? This step aims at identifying, for all different stakeholders concerned any positive impacts (promotion of fundamental rights) or negative impacts (limitation of fundamental rights)?

This step aims at identifying, for all different stakeholders concerned any positive impacts (promotion of fundamental rights) or negative impacts (limitation of fundamental rights)?

| 4. | Do the foreseen action or measure have both a beneficial and a negative impact, depending on the fundamental rights concerned (for example, a negative impact on freedom of expression and beneficial one on intellectual property) |
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4.

Do the foreseen action or measure have both a beneficial and a negative impact, depending on the fundamental rights concerned (for example, a negative impact on freedom of expression and beneficial one on intellectual property)

for example, a negative impact on freedom of expression and beneficial one on intellectual property

Should the analysis reveal that the foreseen action or measure would have no material impact on fundamental rights or only positive impacts on fundamental rights there is no need for further analysis under points 5 and 6. If you identify negative impacts, consider the following;

Should the analysis reveal that the foreseen action or measure would have no material impact on fundamental rights or only positive impacts on fundamental rights there is no need for further analysis under points 5 and 6. If you identify negative impacts, consider the following;

| 5. | Would the limitation of/negative impact on fundamental rights be provided for by law, in a clear and predictable manner? |
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5.

Would the limitation of/negative impact on fundamental rights be provided for by law, in a clear and predictable manner?

| 6. | Would any such limitation/negative impact:






  — | Genuinely meet an objective of general interest of the Union or to protect the rights and freedoms of others (This step should identify which objective of general interest or to protect the rights and freedoms of others)? |
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6.

Would any such limitation/negative impact:

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Genuinely meet an objective of general interest of the Union or to protect the rights and freedoms of others (This step should identify which objective of general interest or to protect the rights and freedoms of others)?

(This step should identify which objective of general interest or to protect the rights and freedoms of others)?

| — | Be necessary to achieve the desired aim? (This step should examine if the measure is appropriate and effective for attaining the objective pursued without going beyond what is necessary to achieve it? Why is no equally effective but less intrusive measure available?); |
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Be necessary to achieve the desired aim? (This step should examine if the measure is appropriate and effective for attaining the objective pursued without going beyond what is necessary to achieve it? Why is no equally effective but less intrusive measure available?);

(This step should examine if the measure is appropriate and effective for attaining the objective pursued without going beyond what is necessary to achieve it? Why is no equally effective but less intrusive measure available?);

| — | Be proportionate to the desired aim? |
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Be proportionate to the desired aim?

| — | Preserve the essence of the fundamental rights concerned? |
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Preserve the essence of the fundamental rights concerned?

If all these questions can be answered in the affirmative, then the limitation of the affected fundamental right can be considered to be legitimate.

To illustrate the use of this checklist, see below a concrete example of how it is used based on the facts of case C-401/11 Blanka Soukupová v Ministerstvo zemědělství and the assessment of the Court of Justice in its judgment of 11 April 2013.

The Member State in question had set up an early retirement support scheme for farmers co-financed from the European Agricultural Guidance and Guarantee Fund (EAGGF). The notion of ‘retirement age’ to be able to take part in the scheme was defined in national law. National legislation determined a retirement age which varied depending on the sex of the applicant and, for women, on the number of children raised.

When applying the checklist to this case at hand, the following questions need to be analysed:

| 1. | What fundamental rights are affected?

  The early retirement support scheme affects the principle of equal treatment and non-discrimination enshrined in Articles 20, 21(1) and 23 of the Charter. |
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1.

What fundamental rights are affected?

The early retirement support scheme affects the principle of equal treatment and non-discrimination enshrined in Articles 20, 21(1) and 23 of the Charter.

The early retirement support scheme affects the principle of equal treatment and non-discrimination enshrined in Articles 20, 21(1) and 23 of the Charter.

| 2. | Are the rights in question absolute rights?

  No, the rights enshrined in Articles 20, 21(1) and 23 of the Charter are not absolute rights. |
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2.

Are the rights in question absolute rights?

No, the rights enshrined in Articles 20, 21(1) and 23 of the Charter are not absolute rights.

No, the rights enshrined in Articles 20, 21(1) and 23 of the Charter are not absolute rights.

| 3. | What is the impact of the foreseen action or measure under consideration on fundamental rights? This step aims at identifying, for all different stakeholders concerned any positive impacts (promotion of fundamental rights) or negative impacts (limitation of fundamental rights)?

  Due to the fact that the ‘normal retirement age’ is determined differently depending on the gender of the applicant for support for early retirement from farming and, in the case of female applicants, on the number of children raised by the applicant, the early retirement support scheme impacts negatively on the principle of equal treatment between men and women and puts female farmers at a particular disadvantage vis-à-vis male farmers. |
| --- | --- |

3.

What is the impact of the foreseen action or measure under consideration on fundamental rights? This step aims at identifying, for all different stakeholders concerned any positive impacts (promotion of fundamental rights) or negative impacts (limitation of fundamental rights)?

Due to the fact that the ‘normal retirement age’ is determined differently depending on the gender of the applicant for support for early retirement from farming and, in the case of female applicants, on the number of children raised by the applicant, the early retirement support scheme impacts negatively on the principle of equal treatment between men and women and puts female farmers at a particular disadvantage vis-à-vis male farmers.

Due to the fact that the ‘normal retirement age’ is determined differently depending on the gender of the applicant for support for early retirement from farming and, in the case of female applicants, on the number of children raised by the applicant, the early retirement support scheme impacts negatively on the principle of equal treatment between men and women and puts female farmers at a particular disadvantage vis-à-vis male farmers.

| 4. | Do the foreseen action or measure have both a beneficial and a negative impact, depending on the fundamental rights concerned?

  The foreseen action has solely a negative impact on the right concerned, notably for women who have raised more children. Women who have raised more children objectively enjoy a shorter period in which to submit an application for registration under the support scheme for early retirement than that granted to men or women who have raised fewer children. |
| --- | --- |

4.

Do the foreseen action or measure have both a beneficial and a negative impact, depending on the fundamental rights concerned?

The foreseen action has solely a negative impact on the right concerned, notably for women who have raised more children. Women who have raised more children objectively enjoy a shorter period in which to submit an application for registration under the support scheme for early retirement than that granted to men or women who have raised fewer children.

The foreseen action has solely a negative impact on the right concerned, notably for women who have raised more children. Women who have raised more children objectively enjoy a shorter period in which to submit an application for registration under the support scheme for early retirement than that granted to men or women who have raised fewer children.

| 5. | Would the limitation of/negative impact on fundamental rights be provided for by law, in a clear and predictable manner?

  Yes, the notion of ‘normal retirement age’ was defined in national law. |
| --- | --- |

5.

Would the limitation of/negative impact on fundamental rights be provided for by law, in a clear and predictable manner?

Yes, the notion of ‘normal retirement age’ was defined in national law.

Yes, the notion of ‘normal retirement age’ was defined in national law.

| 6. | Would any such limitation/negative impact:






  — | Genuinely meet an objective of general interest of the Union or protecting the rights and freedoms of others

  No, the difference in treatment does not meet an objective of general interest of the Union or to protect the rights and freedoms of others. |
| --- | --- | --- |

6.

Would any such limitation/negative impact:

—

Genuinely meet an objective of general interest of the Union or protecting the rights and freedoms of others

No, the difference in treatment does not meet an objective of general interest of the Union or to protect the rights and freedoms of others.

No, the difference in treatment does not meet an objective of general interest of the Union

to protect the rights and freedoms of others.

| — | Be necessary to achieve the desired aim? (This step should examine if the measure is appropriate and effective for attaining the objective pursued without going beyond what is necessary to achieve it? Why is no equally effective but less intrusive measure available?);

  No, the measure is not necessary to achieve the desired aim, which is to encourage such farmers, regardless of their sex and of the number of children they have raised, to stop farming early and definitively, with a view to better ensuring the viability of agricultural holdings. Those farmers, both men and women, are entitled to claim such support, if they have definitively stopped all commercial farming activity after having practised farming for the 10 years preceding that cessation and were not less than 55 years old but not yet of normal retirement age at the time of the cessation. The desired aim could also have been reached by not making a distinction on the basis of gender or the number of children raised. |
| --- | --- |

—

Be necessary to achieve the desired aim? (This step should examine if the measure is appropriate and effective for attaining the objective pursued without going beyond what is necessary to achieve it? Why is no equally effective but less intrusive measure available?);

No, the measure is not necessary to achieve the desired aim, which is to encourage such farmers, regardless of their sex and of the number of children they have raised, to stop farming early and definitively, with a view to better ensuring the viability of agricultural holdings. Those farmers, both men and women, are entitled to claim such support, if they have definitively stopped all commercial farming activity after having practised farming for the 10 years preceding that cessation and were not less than 55 years old but not yet of normal retirement age at the time of the cessation. The desired aim could also have been reached by not making a distinction on the basis of gender or the number of children raised.

No, the measure is not necessary to achieve the desired aim, which is to encourage such farmers, regardless of their sex and of the number of children they have raised, to stop farming early and definitively, with a view to better ensuring the viability of agricultural holdings. Those farmers, both men and women, are entitled to claim such support, if they have definitively stopped all commercial farming activity after having practised farming for the 10 years preceding that cessation and were not less than 55 years old but not yet of normal retirement age at the time of the cessation. The desired aim could also have been reached by not making a distinction on the basis of gender or the number of children raised.

As these questions cannot be answered in the affirmative, the limitation of the affected fundamental right (equal treatment) cannot be considered to be legitimate, and thus amounts to a violation of Articles 20, 21(1) and 23 of the Charter.

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(1)  https://infoportal.fra.europa.eu/InfoPortal/infobaseFrontEndCountryHome.do?btnCountryLinkHome_1

1

(2)  Regulation (EU) No 1303/2013 of the European Parliament and of the Council of 17 December 2013 laying down common provisions on the European Regional Development Fund, the European Social Fund, the Cohesion Fund, the European Agricultural Fund for Rural Development and the European Maritime and Fisheries Fund and laying down general provisions on the European Regional Development Fund, the European Social Fund, the Cohesion Fund and the European Maritime and Fisheries Fund and repealing Council Regulation (EC) No 1083/2006 (OJ L 347, 20.12.2013, p. 320).

2

(3)  Convention on the Rights of Persons with Disabilities (adopted by the General Assembly by its resolution 61/106 of 13 December 2006. It came into force on 3 May 2008 upon its 20th ratification) - https://www.un.org/development/desa/disabilities/conference-of-states-parties-to-the-convention-on-the-rights-of-persons-with-disabilities-2.html

3

(4)  The examples of Member States' actions that are considered to be implementation of EU law are given in the context of the legal framework for the programming period 2014-2020. However since 2009 the provisions of the Charter must be applied, inter alia, in the context of implementation of ESIF under the conditions reminded in this guidance document.

4

(5)  For example Local Action Groups (LAGs) referred to in Articles 34(1) and 125 CPR acting as intermediate bodies.

5

(6)  The check list provided in Chapter 4 of this Guidance can be used to assess whether a certain action of these beneficiaries represent action of implementation of EU law.

6

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ANNEX I

Examples of implementation of EU law by Member States in the context of ESI Funds

In Chapter 3 of this Guidance, the three phases of implementation of ESI Funds requiring compliance with the Charter were identified.

The list of the most relevant CPR provisions requiring actions and documents by a national (central, regional, or local level) authority/body is provided below. Examples of the Charter right or principle that could be relevant in the specific case as well as examples of possible fundamental rights' related issues are also indicated.

Where Member States draft documents and adopt acts implementing EU law (whatever form they may take: decision, letter, manual, law, etc.), this must be done with due regard to their obligations to respect all the rights enshrined in the Charter.

For instance, the right not to be discriminated, the right to property, data protection as well as the right to an effective remedy and to a fair trial (due process) need to be ensured throughout all procedures which are put in place to give effect to the provisions of the CPR, or its delegated or implementing acts.

1.   Establishing the ESI Funds intervention strategy and drawing up the programming documents

Concerning the preparation of the ESI Funds intervention strategy and programming documents, the CPR provides for certain actions of Member States that are national measures of implementation of EU law and require compliance with the Charter. Member State actions:

| — | preparation and modification of Partnership Agreement — Member States should ensure the respect of the Charter in this process leading to the submission of the document to the Commission as well as in the document itself; |
| --- | --- |

—

preparation and modification of Partnership Agreement — Member States should ensure the respect of the Charter in this process leading to the submission of the document to the Commission as well as in the document itself;

| — | preparation and modification of programmes (Article 26(2) and 30 of the CPR, Articles 4(4), 7, 8, 19(1) and Annex XI of the CPR; ERDF, ESF, CF: 96(2), 96(4)(a), 96(7), 96(10) of the CPR; ERDF: Article 8(7) and (12) of Regulation (EU) No 1299/2013 of the European Parliament and of the Council (1); EAFRD: Articles 10 and 11 of Regulation (EU) No 1305/2013 of the European Parliament and of the Council (2); EMFF: Articles 17, 18 and 20 of Regulation (EU) No 508/2014 of the European Parliament and of the Council (3) and Commission Implementing Regulation (EU) No 771/2014 (4) and Delegated Regulation (EU) No 1046/2014 (5); |
| --- | --- |

—

preparation and modification of programmes (Article 26(2) and 30 of the CPR, Articles 4(4), 7, 8, 19(1) and Annex XI of the CPR; ERDF, ESF, CF: 96(2), 96(4)(a), 96(7), 96(10) of the CPR; ERDF: Article 8(7) and (12) of Regulation (EU) No 1299/2013 of the European Parliament and of the Council (1); EAFRD: Articles 10 and 11 of Regulation (EU) No 1305/2013 of the European Parliament and of the Council (2); EMFF: Articles 17, 18 and 20 of Regulation (EU) No 508/2014 of the European Parliament and of the Council (3) and Commission Implementing Regulation (EU) No 771/2014 (4) and Delegated Regulation (EU) No 1046/2014 (5);

| — | Programmes; |
| --- | --- |

—

Programmes;

The following rights/principles of the Charter could be of particular importance: equality before the law, non-discrimination, equality between women and men, integration of persons with disabilities, the right to property, and environmental protection.

2.   Setting up the management, monitoring and control systems

Member States or authorities designated by them are advised to pay particular attention to compliance with the Charter when setting up the management, monitoring and control system. The following non-exhaustive list of actions and documents is required by the Regulations:

I.   
  Member States:
  relevant actions are: setting up of a management and control systems for programmes, organisation of a partnership and formulating the rules of membership of the monitoring committee.

| A) | Setting up management and control systems for programmes (Article 74(2) of the CPR), Articles 7, 72, 74(2) of the CPR, ERDF, ESF, CF, EMFF: 123 of the CPR, EAFRD: Articles 65 and 66 of Regulation (EU) No 1305/2013 and relevant provisions of Regulation (EU) No 1306/2013 of the European Parliament and of the Council (6); EMFF: Articles 97 and 99 of Regulation (EU) No 508/2014 and Commission Delegated Regulation (EU) No 1014/2014 (7).
  Documents linked to the setting up of management and control systems for the programmes:






  — | documents containing the rules setting up management and control systems |
| --- | --- | --- |

A)

Setting up management and control systems for programmes (Article 74(2) of the CPR), Articles 7, 72, 74(2) of the CPR, ERDF, ESF, CF, EMFF: 123 of the CPR, EAFRD: Articles 65 and 66 of Regulation (EU) No 1305/2013 and relevant provisions of Regulation (EU) No 1306/2013 of the European Parliament and of the Council (6); EMFF: Articles 97 and 99 of Regulation (EU) No 508/2014 and Commission Delegated Regulation (EU) No 1014/2014 (7).

Documents linked to the setting up of management and control systems for the programmes:

—

documents containing the rules setting up management and control systems

| — | documents concerning procedures for ensuring effective and proportionate anti-fraud measures (Article 125(4)(c) of the CPR) |
| --- | --- |

—

documents concerning procedures for ensuring effective and proportionate anti-fraud measures (Article 125(4)(c) of the CPR)

| — | documents concerning procedures to support the work of the monitoring committee |
| --- | --- |

—

documents concerning procedures to support the work of the monitoring committee

| — | documents concerning procedures for a system to collect, record and store in computerised form data on each operation necessary for monitoring, evaluation, financial management, verification and audit, including, where applicable, data on individual participants and a breakdown of data on indicators by gender when required |
| --- | --- |

—

documents concerning procedures for a system to collect, record and store in computerised form data on each operation necessary for monitoring, evaluation, financial management, verification and audit, including, where applicable, data on individual participants and a breakdown of data on indicators by gender when required

| — | documents concerning procedures for the supervision of the functions formally delegated by the managing authority under Article 123(6) and (7) of the CPR |
| --- | --- |

—

documents concerning procedures for the supervision of the functions formally delegated by the managing authority under Article 123(6) and (7) of the CPR

| — | documents concerning procedures for appraising, selecting and approving operations and for ensuring their compliance, for the entire implementation period, with applicable rules (Article 125(3) of the CPR), including instructions and guidance ensuring the contribution of operations to achieving the specific objectives and results of the relevant priorities in accordance with the provisions of Article 125(3)(a)(i) of the CPR and procedures to ensure that operations are not selected where they have been physically completed or fully implemented before the application for funding by the beneficiary (including the procedures used by the intermediate bodies where the appraisal, selection and approval of operations have been delegated) |
| --- | --- |

—

documents concerning procedures for appraising, selecting and approving operations and for ensuring their compliance, for the entire implementation period, with applicable rules (Article 125(3) of the CPR), including instructions and guidance ensuring the contribution of operations to achieving the specific objectives and results of the relevant priorities in accordance with the provisions of Article 125(3)(a)(i) of the CPR and procedures to ensure that operations are not selected where they have been physically completed or fully implemented before the application for funding by the beneficiary (including the procedures used by the intermediate bodies where the appraisal, selection and approval of operations have been delegated)

| — | documents concerning procedures to ensure the provision to the beneficiary of a document setting out the conditions for support for each operation, including procedures to ensure that beneficiaries maintain either a separate accounting system or an adequate accounting code for all transactions relating to an operation |
| --- | --- |

—

documents concerning procedures to ensure the provision to the beneficiary of a document setting out the conditions for support for each operation, including procedures to ensure that beneficiaries maintain either a separate accounting system or an adequate accounting code for all transactions relating to an operation

| — | documents concerning procedures for the verifications of operations (in line with requirements under Article 125(4) to (7) of the CPR), including for ensuring the compliance of operations with the Union policies (such as those related to partnership and multi-level governance, promotion of equality between men and women, non-discrimination, accessibility for persons with disabilities, sustainable development, public procurement, State aid and environment rules), and identification of the authorities or bodies carrying out such verifications |
| --- | --- |

—

documents concerning procedures for the verifications of operations (in line with requirements under Article 125(4) to (7) of the CPR), including for ensuring the compliance of operations with the Union policies (such as those related to partnership and multi-level governance, promotion of equality between men and women, non-discrimination, accessibility for persons with disabilities, sustainable development, public procurement, State aid and environment rules), and identification of the authorities or bodies carrying out such verifications

| — | documents concerning the procedures by which applications for reimbursement are received from beneficiaries, verified, and validated, and by which payments to beneficiaries are authorised, executed and accounted for, in line with obligations set out in Article 122(3) of the CPR as from 2016 (including the procedures used by the intermediate bodies where processing of applications for reimbursement has been delegated), in view of respecting the deadline of 90 days for payments to beneficiaries under Article 132 of the CPR |
| --- | --- |

—

documents concerning the procedures by which applications for reimbursement are received from beneficiaries, verified, and validated, and by which payments to beneficiaries are authorised, executed and accounted for, in line with obligations set out in Article 122(3) of the CPR as from 2016 (including the procedures used by the intermediate bodies where processing of applications for reimbursement has been delegated), in view of respecting the deadline of 90 days for payments to beneficiaries under Article 132 of the CPR

| — | documents concerning procedures to draw up and submit to the Commission annual and final implementation reports (Article 125(2)(b) of the CPR), including the procedures for collecting and reporting reliable data on performance indicators (Article 125(2)(a) of the CPR) |
| --- | --- |

—

documents concerning procedures to draw up and submit to the Commission annual and final implementation reports (Article 125(2)(b) of the CPR), including the procedures for collecting and reporting reliable data on performance indicators (Article 125(2)(a) of the CPR)

| — | documents concerning procedures for drawing up the management declaration (Article 125(4)(e) of the CPR) |
| --- | --- |

—

documents concerning procedures for drawing up the management declaration (Article 125(4)(e) of the CPR)

| — | documents concerning procedures for drawing up the annual summary of the final audit reports and of controls carried out, including an analysis of the nature and extent of errors and weaknesses identified in systems, as well as corrective action taken or planned (Article 125(4)(e) of the CPR) |
| --- | --- |

—

documents concerning procedures for drawing up the annual summary of the final audit reports and of controls carried out, including an analysis of the nature and extent of errors and weaknesses identified in systems, as well as corrective action taken or planned (Article 125(4)(e) of the CPR)

| — | documents concerning procedures concerning the communication to staff of the above procedures, as well as an indication of training organised/foreseen and any guidance issued (date and reference) |
| --- | --- |

—

documents concerning procedures concerning the communication to staff of the above procedures, as well as an indication of training organised/foreseen and any guidance issued (date and reference)

| — | documents concerning procedures used by the intermediate bodies to carry out delegated tasks, and of the procedures of the certifying authority to supervise the effectiveness of the tasks delegated to the intermediate bodies |
| --- | --- |

—

documents concerning procedures used by the intermediate bodies to carry out delegated tasks, and of the procedures of the certifying authority to supervise the effectiveness of the tasks delegated to the intermediate bodies

| — | documents concerning procedure on reporting and correction of irregularities (including fraud) and their follow-up and recording of amounts withdrawn and recovered, amounts to be recovered, irrecoverable amounts and amounts related to operations suspended by a legal proceeding or by an administrative appeal having suspensory effect |
| --- | --- |

—

documents concerning procedure on reporting and correction of irregularities (including fraud) and their follow-up and recording of amounts withdrawn and recovered, amounts to be recovered, irrecoverable amounts and amounts related to operations suspended by a legal proceeding or by an administrative appeal having suspensory effect

| — | documents concerning procedure to comply with the obligation to notify irregularities to the Commission in accordance with Article 122(2) of the CPR |
| --- | --- |

—

documents concerning procedure to comply with the obligation to notify irregularities to the Commission in accordance with Article 122(2) of the CPR

| — | documents concerning procedures for drawing up and submitting payment applications |
| --- | --- |

—

documents concerning procedures for drawing up and submitting payment applications

| — | documents concerning arrangements in place for the certifying authority to access any information on operations, necessary for the purpose of drawing up and submitting payment applications, including the results of management verifications (in line with Article 125 of the CPR) and all relevant audits |
| --- | --- |

—

documents concerning arrangements in place for the certifying authority to access any information on operations, necessary for the purpose of drawing up and submitting payment applications, including the results of management verifications (in line with Article 125 of the CPR) and all relevant audits

| — | documents concerning procedure by which payment applications are drawn up and submitted to the Commission, including procedure to ensure sending of the final application for interim payment by 31 July following the end of the previous accounting year |
| --- | --- |

—

documents concerning procedure by which payment applications are drawn up and submitted to the Commission, including procedure to ensure sending of the final application for interim payment by 31 July following the end of the previous accounting year

| — | documents concerning the accounting system used as a basis for certification of expenditure accounts to the Commission (Article 126(d) of the CPR) |
| --- | --- |

—

documents concerning the accounting system used as a basis for certification of expenditure accounts to the Commission (Article 126(d) of the CPR)

| — | documents concerning procedures in place for drawing up the accounts referred to in Article 59(5) of Regulation (EU, Euratom) No 966/2012 of the European Parliament and of the Council (8) (Article 126(b) of the CPR) |
| --- | --- |

—

documents concerning procedures in place for drawing up the accounts referred to in Article 59(5) of Regulation (EU, Euratom) No 966/2012 of the European Parliament and of the Council (8) (Article 126(b) of the CPR)

| — | documents concerning arrangements for certifying the completeness, accuracy and veracity of the accounts and that the expenditure entered in the accounts complies with applicable law (Article 126(c) of the CPR) taking into account the results of all verifications and audits |
| --- | --- |

—

documents concerning arrangements for certifying the completeness, accuracy and veracity of the accounts and that the expenditure entered in the accounts complies with applicable law (Article 126(c) of the CPR) taking into account the results of all verifications and audits

| — | documents concerning the system for ensuring prompt recovery of public assistance, including Union assistance |
| --- | --- |

—

documents concerning the system for ensuring prompt recovery of public assistance, including Union assistance

| — | documents concerning procedures for ensuring an adequate audit trail by maintaining accounting records in computerised form, including amounts recovered, amounts to be recovered, amounts withdrawn from a payment application, amounts irrecoverable and amounts related to operations suspended by a legal proceeding or by an administrative appeal having suspensory effect, for each operation, including the recoveries resulting from the application of Article 71 of the CPR on durability of operations |
| --- | --- |

—

documents concerning procedures for ensuring an adequate audit trail by maintaining accounting records in computerised form, including amounts recovered, amounts to be recovered, amounts withdrawn from a payment application, amounts irrecoverable and amounts related to operations suspended by a legal proceeding or by an administrative appeal having suspensory effect, for each operation, including the recoveries resulting from the application of Article 71 of the CPR on durability of operations

| — | documents concerning arrangements for deducting amounts recovered or amounts to be withdrawn from expenditure to be declared |
| --- | --- |

—

documents concerning arrangements for deducting amounts recovered or amounts to be withdrawn from expenditure to be declared

| — | documents concerning the information systems including a flowchart (central or common network system or decentralised system with links between the systems) |
| --- | --- |

—

documents concerning the information systems including a flowchart (central or common network system or decentralised system with links between the systems)

| — | documents concerning procedures to verify that IT systems security is ensured |
| --- | --- |

—

documents concerning procedures to verify that IT systems security is ensured

| — | national eligibility rules for operational programmes and rural development programmes |
| --- | --- |

—

national eligibility rules for operational programmes and rural development programmes

| — | adoption of rules on eligibility of expenditure for cooperation programmes |
| --- | --- |

—

adoption of rules on eligibility of expenditure for cooperation programmes

When Member States establish the ESI Funds intervention strategy and draw up the programming documents they must respect the rights protected by the Charter and observe the principles therein. In this context, the most relevant provisions are Article 47 of the charter which recognises the right to an effective remedy and to a fair trial, including the right to be heard, Article 7 on the respect for private and family life and Article 8 on the protection of personal data.

| B) | Organisation of a partnership (Article 5(1) and (2) of the CPR), Articles 5, 7, 15(1)(c) and (d) of the CPR, Articles 2, 3, 4 of Commission Delegated Regulation (EU) No 240/2014 (9)


  Relevant documents for the organization of a partnership: documents concerning arrangements for the partnership in the Partnership Agreement and other documents concerning the organisation of partnership
  Relevant Charter's rights/principles include:
  non-discrimination, linguistic diversity, equality between women and men, integration of persons with disabilities |
| --- | --- |

B)

Organisation of a partnership (Article 5(1) and (2) of the CPR), Articles 5, 7, 15(1)(c) and (d) of the CPR, Articles 2, 3, 4 of Commission Delegated Regulation (EU) No 240/2014 (9)

Relevant documents for the organization of a partnership: documents concerning arrangements for the partnership in the Partnership Agreement and other documents concerning the organisation of partnership

non-discrimination, linguistic diversity, equality between women and men, integration of persons with disabilities

| C) | Formulating the rules of membership of the monitoring committee as well as rules of procedures of the monitoring committee (Article 10(1) of Commission Delegated Regulation (EU) No 240/2014), Articles 7, 47(1) to (3) (10), 48(1) of the CPR.

  Relevant documents: documents concerning rules on membership of the monitoring committee and rules of procedures of the monitoring committee

  Relevant Charter's rights/principles include: non-discrimination, equality between women and men, linguistic diversity |
| --- | --- |

C)

Formulating the rules of membership of the monitoring committee as well as rules of procedures of the monitoring committee (Article 10(1) of Commission Delegated Regulation (EU) No 240/2014), Articles 7, 47(1) to (3) (10), 48(1) of the CPR.

Relevant documents: documents concerning rules on membership of the monitoring committee and rules of procedures of the monitoring committee

Relevant Charter's rights/principles include: non-discrimination, equality between women and men, linguistic diversity

II.   
  Monitoring committee

| — | Examination and approval of the communication strategy for the operational programme and any amendment of the strategy, the criteria for selection of operations (Article 110(2 (a) and)(d) CPR, EAFRD: Article 74(a) of Regulation (EU) No 1305/2013.)


  Relevant Charter's rights/principles include: protection of personal data, non-discrimination, linguistic diversity, equality between women and men, integration of persons with disabilities |
| --- | --- |

—

Examination and approval of the communication strategy for the operational programme and any amendment of the strategy, the criteria for selection of operations (Article 110(2 (a) and)(d) CPR, EAFRD: Article 74(a) of Regulation (EU) No 1305/2013.)

Relevant Charter's rights/principles include: protection of personal data, non-discrimination, linguistic diversity, equality between women and men, integration of persons with disabilities

| — | Establishing additional eligibility rules of expenditure under ETC programmes (Article 18(2) of ETC Regulation)


  Relevant documents: document establishing additional eligibility rules of expenditure under ETC programmes

  Relevant Charter's rights/principles include: non-discrimination, equality between women and men, linguistic diversity, integration of persons with disabilities, equality before the law, right to an effective remedy and to a fair trial |
| --- | --- |

—

Establishing additional eligibility rules of expenditure under ETC programmes (Article 18(2) of ETC Regulation)

Relevant documents: document establishing additional eligibility rules of expenditure under ETC programmes

Relevant Charter's rights/principles include: non-discrimination, equality between women and men, linguistic diversity, integration of persons with disabilities, equality before the law, right to an effective remedy and to a fair trial

3.   Implementation of the programmes

In the implementation of programmes, hereunder is a list of examples of actions and documents stemming from CPR, where Member States or authorities designated by them should pay particular attention to compliance with the Charter.

I.   
  Managing authority/intermediate body

Relevant action: drawing up and, once approved by the Monitoring committee, applying appropriate selection procedures and criteria, including preparation of calls for proposal (125(3)(a) of the CPR, Articles 4(4), 7, 8, 34, 36(3), 47(1) of the CPR), ERDF, ESF, CF, EMFF: 125(3)(a) of the CPR and Commission Delegated Regulations (EU) 2015/288 (11) and (EU) 2015/852 (12), EAFRD: Article 49 of Regulation (EU) No 1305/2013, Article 113 of Regulation (EU) No 508/2014, Article 12 ETC Regulation (13), Article 19(1), second subparagraph, Treaty of the European Union

Relevant documents for this action:

| — | documents concerning the selection procedure |
| --- | --- |

—

documents concerning the selection procedure

| — | documents concerning selection criteria |
| --- | --- |

—

documents concerning selection criteria

Relevant Charter's rights/principles include: protection of personal data, linguistic diversity, equality before the law, non-discrimination, equality between women and men, integration of persons with disabilities, environmental protection, right to an effective remedy and to a fair trial and safe working conditions.

Relevant action: implementation of programmes, providing cumulative data on operations selected for funding, Articles 4(4) and (5), 7, 8, 74, of Regulation (EU) No 1305/2013, ERDF, ESF, CF, EMFF: 122, 123 of the CPR, Article 21 ETC Regulation, EAFRD: Articles 65 and 66 of Regulation (EU) No 1305/2013 and relevant provisions of Regulation (EU) No 1306/2013, EMFF Article 97 Regulation (EU) No 508/2014 and Commission Implementing Regulations (EU) No 1242/2014 (14) and (EU) No 1243/2014 (15).

Relevant documents for this action:

| — | documents setting out the conditions for support for each operation including the specific requirements concerning the products or services to be delivered under the operation, the financing plan, and the time-limit for execution (Article 125(3)(c) of the CPR) |
| --- | --- |

—

documents setting out the conditions for support for each operation including the specific requirements concerning the products or services to be delivered under the operation, the financing plan, and the time-limit for execution (Article 125(3)(c) of the CPR)

| — | notifications of selected major projects (Article 102(1), first subparagraph, of the CPR, Article 1 and Annex I to Commission Implementing Regulation (EU) No 1011/2014 (16)) |
| --- | --- |

—

notifications of selected major projects (Article 102(1), first subparagraph, of the CPR, Article 1 and Annex I to Commission Implementing Regulation (EU) No 1011/2014 (16))

Relevant Charter's rights/principles include: protection of personal data, Freedom of expression and information, Freedom of assembly and association, Right to education, Freedom to conduct a business, Right to property, Protection in the event of removal, expulsion or extradition, Equality before the law, Non-discrimination, Equality between women and men, Integration of persons with disabilities, Environmental protection, Right to an effective remedy and to a fair trial

Relevant action: informing potential beneficiaries about funding opportunities (Article 115(1)(c) of the CPR): Articles 7, ERDF, ESF, CF: 115(1)(c) of the CPR, EAFRD: Article 66(1)(i) of Regulation (EU) No 1305/2013 (17)

Relevant Charter's rights/principles include: equality before the law, Non-discrimination

Relevant action: maintaining and providing the access to the list of operations accessible through the single website or website portal (Article 115(2) of the CPR): ERDF, ESF, CF: Article 115(2) of the CPR (18); EMFF Annex V to Regulation (EC) No 508/2014 and Commission Implementing Regulation (EU) No 763/2014 (19).

Relevant documents for this action: information on a website or website portal

Relevant Charter's rights/principles include: respect for private and family life, Protection of personal data

II.   
  Monitoring committee

Relevant action: selection of operations (Article 12(1) of Regulation (EU) No 1299/2013): Articles 4(4), 7, 8, 29(4), 47(1) of the CPR, ERDF, EAFRD: Article 49 of Regulation (EU) No 1305/2013, Article 19(1), second subparagraph, Treaty of the European Union

Relevant Charter's rights/principles include: equality before the law, Non-discrimination, Equality between women and men, Integration of persons with disabilities, Environmental protection, Right to an effective remedy and to a fair trial

Relevant action: examination and approval of the annual implementation report

Relevant Charter's rights/principles include: protection of personal data

III.   
  Certifying authority

Relevant actions: drawing up, certifying and submitting payment applications, drawing up the accounts, certifying the completeness, accuracy and veracity of the accounts and that the expenditure entered in the accounts complies with applicable law and has been incurred in respect of operations selected for funding in accordance with the criteria applicable to the operational programme and complying with applicable law, ensuring that there is a system which records and stores in computerised form, accounting records for each operation (and other functions from Article 126 of the CPR

Relevant Charter's rights/principles include: protection of personal data

IV.   
  Audit authority

Relevant action: carrying out of audits (Article 127(1) and (2) of the CPR)

Relevant documents: audit strategy (Article 127(4) of the CPR an audit opinion in accordance with the second subparagraph of Article 59(5) of the Financial Regulation, a control report (Article 127(5)(a) and (b) of the CPR)

Relevant Charter's rights/principles include: protection of personal data, respect for private and family life, non-discrimination

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(1)  OJ L 347, 20.12.2013, p. 259.

(2)  OJ L 347, 20.12.2013, p. 487.

(3)  OJ L 149, 20.5.2014, p. 1.

(4)  OJ L 209, 16.7.2014, p. 20.

(5)  OJ L 291, 7.10.2014, p. 1.

(6)  OJ L 347, 20.12.2013, p. 549.

(7)  OJ L 283, 27.9.2014, p. 11.

(8)  OJ L 298, 26.10.2012, p. 1.

(9)  OJ L 74, 14.3.2014, p. 1.

(10)  For ETC programmes.

(11)  OJ L 51, 24.2.2015, p. 1.

(12)  OJ L 135, 2.6.2015, p. 13.

(13)  Under Article 12(1) ETC Regulation operations under ETC programmes are selected by the Monitoring committee or where relevant, the steering committee.

(14)  OJ L 334, 21.11.2014, p. 11.

(15)  OJ L 334, 21.11.2014, p. 39.

(16)  OJ L 286, 30.9.2014, p. 1.

(17)  Under Art 23.(2) ETC Regulation, this is a task of the joint secretariat.

(18)  See footnote 17.

(19)  OJ L 209, 16.7.2014, p. 1.

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ANNEX II

Fundamental rights in the EU beyond the Charter

The Charter is consistent with the European Convention on Human Rights adopted in the framework of the Council of Europe. When the Charter contains rights that stem from this Convention, their meaning and scope are the same (Article 52(3) Charter) (1).

Regarding the integration of persons with disabilities (Article 26 Charter), EU ratified the UN Convention on the Rights of Persons with Disabilities (UNCRPD) in December 2010. Hence the UNCRPD forms an ‘integral part of the European Union legal order’ (2). Furthermore, international agreements concluded by the European Union have primacy over instruments of secondary law. Thus, the latter must be interpreted in a manner that is consistent with the UN CRPD (3). As both the EU and its Member States are separate contracting parties, and each has competence in the fields covered by the UN CRPD, the convention is a ‘mixed’ agreement in the context of the EU. All UN CRPD provisions falling within EU competence are binding on the EU institutions. In addition, EU law obliges Member States to implement the convention to the extent that its provisions fall within EU competence. Implementation of the Convention in areas not under EU competence rests exclusively with the Member States. Despite their different competences, the Union and its Member States are subject to a duty of sincere cooperation when fulfilling the obligations set out in such ‘mixed’ agreements. In its declaration upon ratification, the EU provided the UN with a list of Union acts which ‘illustrate the extent of the area of competence of the Community in accordance with the Treaty establishing the European Community. (...)’ Council Regulation (EC) No 1083/2006 of 11 July 2006 laying down general provisions on the European Regional Development Fund, the European Social Fund and the Cohesion Fund and repealing Regulation (EC) No 1260/1999 (4) is explicitly mentioned in the declaration. In order to assist Member States in respecting their obligations under the UNCRPD, the European Commission services have developed two Guidance documents (5) and a Toolbox on De-institutionalisation (6).

Regarding the prohibition of discrimination on any ground such as race, colour, and ethnic or social origin (Article 21 Charter), the Commission has issued a guidance document on desegregation in housing and education for marginalised communities (7).

Regarding environmental protection and procedural fundamental rights, the UNECE Convention on Access to Information, Public Participation in Decision-Making and Access to Justice in Environmental Matters (the Aarhus Convention) was signed by the Community and subsequently approved by Council Decision 2005/370/EC (8). Therefore, the provisions of that convention form an integral part of the legal order of the European Union (9). Moreover, they take precedence over EU secondary law and thus the latter must be interpreted in a manner that is consistent with the Aarhus Convention (10).

In addition, Article 7 TEU can be triggered in case of risk of a serious breach by a Member State of the values of the Union referred to in Article 2, which include respect for human rights and equality before the law. The procedure can result in suspension of certain rights deriving from the application of the Treaties to the Member State in question.

Finally, it should be borne in mind that the general principles of EU law established in the CJEU jurisprudence are an additional fundamental rights source in primary EU law. Pursuant to Art 6 TEU and the CJEU case law, they have a continuing relevance for the protection of fundamental rights in the EU’s legal system alongside the Charter.

The general principles apply, alongside the Charter, whenever the Member States act within the scope of EU law. For instance, Article 41 of the Charter containing the right to good administration is not addressed to the Member States, but only to the Union. However, in those cases where the Member States act within the scope of Union law, the general principle of good administration might still apply.

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(1)  The Press Service of the European Court of Human Rights has compiled factsheets by theme on the Court’s case-law and pending cases. These factsheets are very useful in case of doubts on interpretations of certain fundamental rights. They are accessible here:

http://www.echr.coe.int/Pages/home.aspx?p=press/factsheets&c=#n1347890855564_pointer

See in particular, the recent factsheet on environment and the ECHR with an overview of issues related, among others, to nuisance (smells, noise and polluting fumes) which in certain cases amounted to a violation of Article 8 ECHR on the right to respect for private and family life, which is enshrined in Article 7 of the Charter (the wording of Article 8 ECHR and of Article 7 of the Charter are similar):

http://www.echr.coe.int/Documents/FS_Environment_ENG.pdf

(2)  See for example: CJEU, Joined Cases C-335/11 and C-337/11 HK Danmark, Judgement of 11 April 2013, para 30.

(3)  See for example: CJEU, Joined Cases C-335/11 and C-337/11 HK Danmark, Judgement of 11 April 2013, para 29.

(4)  OJ L 210, 31.7.2006, p. 25.

(5)  Common European Guidelines on the Transition from Institutional to Community Based Care, http://www.deinstitutionalisationguide.eu/wp-content/uploads/2016/04/Toolkit-07-17-2014-update-WEB.pdf; and Thematic guidance note on Transition from Institutional to Community-based Care (Deinstitutionalisation), http://ec.europa.eu/regional_policy/sources/docgener/informat/2014/guidance_deinstitutionalistion.pdf

(6)  Toolkit on the Use of European Union Funds for the Transition from Institutional to Community Based Care, http://www.deinstitutionalisationguide.eu/wp-content/uploads/2016/04/GUIDELINES-Final-English.pdf

(7)  http://ec.europa.eu/regional_policy/sources/docgener/informat/2014/thematic_guidance_fiche_segregation_en.pdf

(8)  OJ L 124, 17.5.2005, p. 1.

(9)  Case C-240/09 Lesoochranárske zoskupenie [2011] ECR I-01255, para 30.

(10)  See footnote 3.

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ANNEX III

Key questions

The questions below (1) give general guidance on what concrete issues could be considered when checking compliance with Fundamental Rights of the actions and documents mentioned in Annex I.

| Fundamental rights Impacts | Key questions |
| --- | --- |
| General | — | What fundamental rights are affected? |

Fundamental rights Impacts

Key questions

General

—

What fundamental rights are affected?

| — | Are the rights in question absolute rights (which may not be subject to limitations, examples being human dignity and the ban on torture)? |
| --- | --- |

—

Are the rights in question absolute rights (which may not be subject to limitations, examples being human dignity and the ban on torture)?

| — | Does the action (2) have both a beneficial and a negative impact, depending on the fundamental rights concerned (for example, a negative impact on freedom of expression and beneficial one on intellectual property)? |
| --- | --- |

—

Does the action (2) have both a beneficial and a negative impact, depending on the fundamental rights concerned (for example, a negative impact on freedom of expression and beneficial one on intellectual property)?

Dignity

| — | Does the action affect human dignity, the right to life or to the integrity of the person? |
| --- | --- |

—

Does the action affect human dignity, the right to life or to the integrity of the person?

| — | Does the action raise (bio) ethical issues (cloning, use of human body or its parts for financial gain, genetic research/testing, use of genetic information)? |
| --- | --- |

—

Does the action raise (bio) ethical issues (cloning, use of human body or its parts for financial gain, genetic research/testing, use of genetic information)?

| — | Would it entail risks in terms of torture and inhuman or degrading treatment or punishment? |
| --- | --- |

—

Would it entail risks in terms of torture and inhuman or degrading treatment or punishment?

| — | Would it have an impact in terms of forced labour or trafficking in human beings? |
| --- | --- |

—

Would it have an impact in terms of forced labour or trafficking in human beings?

Individuals, private and family life, freedom of conscience and expression

| — | Does it affect the right to liberty of individuals? |
| --- | --- |

—

Does it affect the right to liberty of individuals?

| — | Does the action affect the right to private life privacy (including their home and communications)? |
| --- | --- |

—

Does the action affect the right to private life privacy (including their home and communications)?

| — | Does it affect an individual’s right to move freely within the EU? |
| --- | --- |

—

Does it affect an individual’s right to move freely within the EU?

| — | Does it affect the right to marry and to found a family or the legal, economic or social protection of the family? |
| --- | --- |

—

Does it affect the right to marry and to found a family or the legal, economic or social protection of the family?

| — | Does the action affect freedom of thought, conscience and religion? |
| --- | --- |

—

Does the action affect freedom of thought, conscience and religion?

| — | Does it affect freedom of expression and information? |
| --- | --- |

—

Does it affect freedom of expression and information?

| — | Does it affect freedom of assembly and of association? |
| --- | --- |

—

Does it affect freedom of assembly and of association?

| — | Does it affect the freedom of the arts and science? |
| --- | --- |

—

Does it affect the freedom of the arts and science?

Personal data

| — | Does the action involve the processing of personal data? |
| --- | --- |

—

Does the action involve the processing of personal data?

| — | Who processes personal data and for which purpose? |
| --- | --- |

—

Who processes personal data and for which purpose?

| — | Are the individual’s right to access, rectification and objection guaranteed? |
| --- | --- |

—

Are the individual’s right to access, rectification and objection guaranteed?

| — | Was the data processing activity notified to the competent authority? |
| --- | --- |

—

Was the data processing activity notified to the competent authority?

| — | Do the data processing/transfer chains imply also international transfers and if so are there any specific safeguards in place in case of international transfers? |
| --- | --- |

—

Do the data processing/transfer chains imply also international transfers and if so are there any specific safeguards in place in case of international transfers?

| — | Is the security of the data processing activities provided for from a technical and organisational point of view? |
| --- | --- |

—

Is the security of the data processing activities provided for from a technical and organisational point of view?

| — | Are any safeguards which render the interference into the right of data protection proportionate and necessary provided for? |
| --- | --- |

—

Are any safeguards which render the interference into the right of data protection proportionate and necessary provided for?

| — | Are appropriate/specific review and oversight mechanisms in place? |
| --- | --- |

—

Are appropriate/specific review and oversight mechanisms in place?

Asylum and protection of removal, expulsion or extradition

| — | Does the action affect the right of asylum and does it guarantee the prohibition against collective expulsion or extraditions to states of individuals where they risk being subject to death penalty, torture or degrading treatment. |
| --- | --- |

—

Does the action affect the right of asylum and does it guarantee the prohibition against collective expulsion or extraditions to states of individuals where they risk being subject to death penalty, torture or degrading treatment.

Property rights and the right to conduct a business.

| — | Are property rights affected (land, movable property, tangible/intangible assets)? Is acquisition, sale or use of property rights limited? |
| --- | --- |

—

Are property rights affected (land, movable property, tangible/intangible assets)? Is acquisition, sale or use of property rights limited?

| — | If yes, will there be a complete loss of property? If so what are the justifications and compensation mechanisms? |
| --- | --- |

—

If yes, will there be a complete loss of property? If so what are the justifications and compensation mechanisms?

| — | Does the action affect the freedom to conduct a business or impose additional requirements increasing the transaction costs for the economic operators concerned? |
| --- | --- |

—

Does the action affect the freedom to conduct a business or impose additional requirements increasing the transaction costs for the economic operators concerned?

Gender equality, equality treatment and opportunities, non-discrimination, and rights of persons with disabilities

| — | Does the action safeguard the principle of equality before the law and would it affect directly or indirectly the principle of non-discrimination, equal treatment, gender equality and equal opportunities for all? |
| --- | --- |

—

Does the action safeguard the principle of equality before the law and would it affect directly or indirectly the principle of non-discrimination, equal treatment, gender equality and equal opportunities for all?

| — | Does the action have (directly or indirectly) a different impact on women and men? |
| --- | --- |

—

Does the action have (directly or indirectly) a different impact on women and men?

| — | How does the action promote equality between women and men? |
| --- | --- |

—

How does the action promote equality between women and men?

| — | How does the action entail any different treatment of groups or individuals directly on grounds of sex, racial or ethnic origin, religion or belief, disability, age, and sexual orientation? Or could it lead to indirect discrimination? |
| --- | --- |

—

How does the action entail any different treatment of groups or individuals directly on grounds of sex, racial or ethnic origin, religion or belief, disability, age, and sexual orientation? Or could it lead to indirect discrimination?

| — | Does the action ensure respect for the rights of people with disabilities in conformity with the UN Convention on the rights of persons with disabilities? How? (see http://eur-lex.europa.eu/legal-content/EN/TXT/?uri=CELEX:32010D0048) |
| --- | --- |

—

Does the action ensure respect for the rights of people with disabilities in conformity with the UN Convention on the rights of persons with disabilities? How? (see http://eur-lex.europa.eu/legal-content/EN/TXT/?uri=CELEX:32010D0048)

Rights of the child

| — | Does it strengthen or restrict the rights of the child (or group)? What is the justification for a possible restriction? |
| --- | --- |

—

Does it strengthen or restrict the rights of the child (or group)? What is the justification for a possible restriction?

| — | Does the action take into account the principle of the best interests of the child? |
| --- | --- |

—

Does the action take into account the principle of the best interests of the child?

| — | Does the action help to promote the protection of the rights of the child? In doing so, does it also take into account the rights and principles of the UN CRC? If so, which articles may be concerned? |
| --- | --- |

—

Does the action help to promote the protection of the rights of the child? In doing so, does it also take into account the rights and principles of the UN CRC? If so, which articles may be concerned?

| — | How are the guiding principles of the UN CRC promoted in the action? |
| --- | --- |

—

How are the guiding principles of the UN CRC promoted in the action?

| — | Does the action impede any of the guiding principles of the UNCRC? |
| --- | --- |

—

Does the action impede any of the guiding principles of the UNCRC?

| — | What steps have been taken to improve or compensate for any adverse effects of the action? |
| --- | --- |

—

What steps have been taken to improve or compensate for any adverse effects of the action?

| — | Has the child’s right to be heard on all matters that affect him/her been respected? |
| --- | --- |

—

Has the child’s right to be heard on all matters that affect him/her been respected?

| — | Does the action contribute to the promotion of child-friendly justice systems adapted to the needs, age and maturity of a child? |
| --- | --- |

—

Does the action contribute to the promotion of child-friendly justice systems adapted to the needs, age and maturity of a child?

Good administration/Effective remedy/Justice

| — | Will the administrative procedures in place become more burdensome? |
| --- | --- |

—

Will the administrative procedures in place become more burdensome?

| — | Will they guarantee the right to be heard, the right of access to the file with due regards to professional and business secrecy as well as the obligation of the administration to give reasons for its decisions? |
| --- | --- |

—

Will they guarantee the right to be heard, the right of access to the file with due regards to professional and business secrecy as well as the obligation of the administration to give reasons for its decisions?

| — | Is the individual’s access to justice affected? |
| --- | --- |

—

Is the individual’s access to justice affected?

| — | In case that the action affects rights and freedoms guaranteed by the law of the Union, does it foresee the right to an effective remedy before a tribunal? |
| --- | --- |

—

In case that the action affects rights and freedoms guaranteed by the law of the Union, does it foresee the right to an effective remedy before a tribunal?

| — | If the action concerns criminal law or envisages criminal law sanctions have safeguards been provided ensuring the Presumption of innocence and right of defence, the principles of legality and proportionality of criminal offences and penalties, as well as the right not to be tried or punished twice in criminal proceedings for the same criminal offence? |
| --- | --- |

—

If the action concerns criminal law or envisages criminal law sanctions have safeguards been provided ensuring the Presumption of innocence and right of defence, the principles of legality and proportionality of criminal offences and penalties, as well as the right not to be tried or punished twice in criminal proceedings for the same criminal offence?

Solidarity and worker’s rights

| — | Does the action respect worker’s rights such as: worker’s rights to information and consultation within the undertaking; the right of collective bargaining and action; the right of access to placement services; protection in the event of unjustified dismissal; fair and just working conditions; the prohibition of child labour and protection f young people at work, and the entitlement to social security benefits and social services? |
| --- | --- |

—

Does the action respect worker’s rights such as: worker’s rights to information and consultation within the undertaking; the right of collective bargaining and action; the right of access to placement services; protection in the event of unjustified dismissal; fair and just working conditions; the prohibition of child labour and protection f young people at work, and the entitlement to social security benefits and social services?

Environmental Protection

| — | Does the action contribute to a high level of environmental protection and the improvement of the quality of the environment in accordance with the principle of sustainable development? |
| --- | --- |

—

Does the action contribute to a high level of environmental protection and the improvement of the quality of the environment in accordance with the principle of sustainable development?

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(1)  These questions were developed and also used by the Commission for the purpose of the screening of impact assessment in the context of the better regulation package.

(2)  Actions implementing programmes and carrying out concrete actions outlined in a project description for works carried out when implementing ESI funds (action).

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