# EUR-Lex - 52012DC0169 - EN

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# 52012DC0169

**REPORT FROM THE COMMISSION TO THE EUROPEAN PARLIAMENT, THE COUNCIL, THE EUROPEAN ECONOMIC AND SOCIAL COMMITTEE AND THE COMMITTEE OF THE REGIONS 2011 Report on the Application of the EU Charter of Fundamental Rights /* COM/2012/0169 final */**

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REPORT FROM THE COMMISSION TO THE
EUROPEAN PARLIAMENT, THE COUNCIL, THE EUROPEAN ECONOMIC AND SOCIAL COMMITTEE
AND THE COMMITTEE OF THE REGIONS

2011 Report on the Application of the EU
Charter of Fundamental Rights

1.           Introduction

Two years
after the entry into force of the Lisbon Treaty, the Charter of Fundamental
Rights of the European Union[1] (the 'Charter') has become a point of reference commonly
used in the development of EU policies.

This momentum has been triggered by the
Lisbon Treaty. After its entry into force, the Commission adopted a Strategy on
the effective implementation of the Charter ('Charter Strategy')[2] setting an objective that the EU sets a good example as regards the
respect of fundamental rights when the Union legislates. The Commission further
committed to preparing annual reports to better informing citizens on the
application of the Charter and to measuring progress in its implementation. Both
the Charter Strategy and the first Annual report on the application of the
Charter have triggered discussions in the European Parliament, in the Council
as well as in the Committee of Regions and in the European Economic and Social
Committee.

The Charter is of great interest not only to
EU institutions but also to the general public: according to a recent Eurobarometer
survey[3] two-thirds of respondents across the EU are interested in learning
more about their rights as enshrined by the Charter (66%), where to go if they
feel that these rights have been violated (65%) and when the Charter applies
and when it does not (60%).

This report aims to address this wish to be
better informed about the Charter. It reviews progress in ensuring the
effective implementation of the Charter and highlights important developments
in 2011. The annexed document (I) provides detailed information on the
application of the Charter by all EU institutions and Member States and
illustrates concrete problems faced by individuals. Progress in the
implementation of the Strategy for equality between women and men (2010-2015)
is presented in a separate annex (II).

2.           Promoting the effective implementation
of the Charter

Building on the findings of the 2010
Report, the Commission has taken a number of concrete steps to promote the effective
implementation of the Charter.

2.1.        Fostering the fundamental
rights culture in the EU

The Charter Strategy and the 2010 Report
generated debates in all EU institutions on how to make the Charter effective
for citizens and on how to ensure
its respect throughout the legislative process. This momentum
initiated by the Commission has already delivered first concrete results.

The Commission has reinforced the
assessment of the impact on fundamental rights when it prepares legislative
proposals. Prior to adopting proposals for new legislation, the Commission
carries out impact assessments. The new Guidance on Fundamental Rights in
Impact Assessment[4]
clarifies through concrete examples how fundamental rights aspects should be
taken into account by Commission services. The Commission established an
interservice group on the implementation of the Charter to share knowledge and
experience among all its departments.

The approach taken by the Commission in
drawing up legislation on the use of security scanners[5] for
detecting unsafe objects carried by passenger at EU airports is a concrete
example of the positive effect of this policy. The preparatory phases leading
to the adoption of this legislation took into account the impact of different
policy options on fundamental rights so as to ensure that this legislation
complies with the Charter. Member States and airports wishing to deploy security
scanners must comply with minimum conditions set by the EU's new rules to
safeguard fundamental rights. Most importantly, passengers will be entitled to
opt out from the security scanner procedure and to be checked by alternative
screening methods. Passengers must be informed of the possibility to opt out,
of the scanner technology used and of the conditions associated with its use.
In addition, detailed conditions are laid down to ensure that the right to the
protection of personal data and private life is respected, for instance, the
obligation that security scanners shall not store, retain, copy, print or
retrieve images. As far as health considerations are concerned, only scanners
that do not use ionising radiation are allowed as a method for screening
persons.

The Commission evaluation report[6] on the EU rules on Data
Retention[7] is another example of its reinforced
assessment of the impact on fundamental rights. The Commission outlined the impact
of these rules on economic operators and consumers as well as its implications
on the protection of fundamental rights and freedoms, in particular the
protection of personal data. The report concluded that, on the one hand, data
retention is a valuable tool for law enforcement purposes. On the other hand,
the report identified areas that need to be improved following the
uneven transposition of the Directive on data retention by Member States. In
particular, the Commission should ensure more harmonisation in
specific areas, such as: the measures ensuring the respect for fundamental
rights and freedoms, including the data retention periods, the purpose
limitations, as well as the necessary safeguards to access retained data and
protect personal data.

As explained in the Charter Strategy, the
Commission not only guarantees that its proposals are compatible with the
Charter, it also ensures that the Charter is respected when Member States
implement EU law. According to Article 51 of the Charter, its provisions apply
to Member States only when they are implementing EU law. It does not apply in
situations where EU law is not involved.

Following the Commission's intervention on
the Hungarian media law, using the full extent of its legal powers to enforce
the acquis, the Hungarian government agreed to amend its national media law so
that it complies with substantive EU law. A number of concerns have been
expressed relating to other provisions of the media law which are not covered
by EU legislation. In such situations, fundamental rights continue to be
guaranteed at national level according to the national constitutional systems.
It should be noted in that respect that this was illustrated by the Hungarian Constitutional
Court ruling on 19 December that declared that certain provisions of the
Hungarian media law unconstitutionally limited freedom of the written press[8].

The Commission also paid particular
attention, in 2011, to the developments related to the new Hungarian
Constitution and its implementation, to the extent that it raises EU
law issues. In the June plenary session of the European Parliament, the
Commission underlined that the Constitution of every Member State should
reflect and comply with the European values of freedom, democracy, equality, the
rule of law, human dignity and the respect of human rights, including the
rights of persons belonging to minorities, without discrimination, as laid down
in Article 2 of the Treaty. In December, the Commission expressed its concerns regarding
potential violations of EU law by certain provisions of the draft legislation[9]. The Hungarian authorities
adopted the legislation in question without taking into account the
Commission's legal concerns. As a result, the Commission, as guardian of the
Treaties, decided to take action against a number of new provisions in
Hungarian legislation, namely on the independence of the data protection
authority and on the discriminatory impact of the mandatory retirement age for
judges, prosecutors and notaries. The Commission also sent an administrative
letter requesting further information on certain
aspects of the new legislation which could affect the independence of the
judiciary[10].

The European Parliament played a key
role in promoting the rights and freedoms enshrined in the Charter. The
European Parliament paid particular attention to the situation in Hungary in
respect of media freedom and pluralism[11]
as well as in relation to the new Hungarian
Constitution and its implementation[12]. On 16 February 2012, it adopted a resolution[13] calling
on the Hungarian government to comply with the recommendations, objections and
demands of the European Commission, the Council of Europe and the Venice
Commission and calling on the European Commission, the guardian of the
Treaties, to monitor closely the possible amendments and the implementation of
the said laws and their compliance with the letter and spirit of the European
treaties.

When acting as co-legislator, it stressed
the fundamental rights dimension of new proposals for EU law. For example, the
European Parliament approved the Commission's proposal
to amend the Qualification Directive which will enhance the rights
granted to refugees and beneficiaries of subsidiary protection in the EU
(Articles 18 and 19 of the Charter) and ensured the extension of social rights
for migrant workers in the recently adopted Single Permit Directive[14].

The Council made significant efforts
to follow-up the Charter Strategy, in particular in respect of its role as
co-legislator. The Council recognised that it had a key role in ensuring the
effective implementation of the Charter and committed to ensuring that Member
States proposing amendments to Commission legislative initiatives, or tabling
own legislative initiatives, assess their impact on
fundamental rights[15]. The Council reiterated that it is the responsibility of each
institution to assess the impact of its proposals and amendments. In this
respect, it committed, in line with the Inter-institutional agreement on better
lawmaking[16],
to assess the impact of its substantive amendments on fundamental rights. This
commitment is an encouraging change in Council practices which until now did
not foresee any particular proceeding to ensure compliance with the Charter. To
this end, following the example of the Commission, the Council established Guidelines[17] to identify and deal
with fundamental rights issues arising in the discussion on proposals before
the Council's preparatory bodies. Finally, the Council outlined its actions for
the application of the Charter[18].

The impact of the Charter on the judiciary,
both at national and at EU level, is already visible. The Court of Justice
of the European Union has increasingly referred to the Charter in its
decisions: the number of decisions quoting the Charter in
its reasoning rose by more than 50% as compared to 2010,
from 27 to 42. National courts when addressing questions to the Court of
Justice (preliminary rulings) have also increasingly
referred to the Charter: in 2011, such references rose
by 50% as compared to 2010, from 18 to 27. Interesting questions have been referred
to the Court of Justice by national courts, for instance on the impact of the
right to an effective remedy and to a fair trial in expulsion proceedings
against EU citizens that rely on security sensitive information that the public
authorities do not want to reveal in a public hearing.[19] Another question touches on
the important issue of the relationship between national fundamental rights and
EU fundamental rights in a case concerning the application of the European
Arrest Warrant[20].

The Court of Justice issued a number of
landmark rulings that include a reference to the Charter. For example, in the Test-Achats
case, the Court invalidated a derogation in EU gender equality
legislation that enables insurers to differentiate between men and women in
individuals' premiums and benefits[21].
The derogation was found incompatible with the objective of unisex pricing
contained in that legislation, and therefore with the Charter. Following the
Court ruling, the Commission issued guidelines on the application of EU
law on gender equality to insurance[22].

At the end of 2011, the Court issued a
landmark ruling on the implementation of the Dublin Regulation on determining
the Member State responsible for the assessment of asylum application in the EU[23]. The Court stressed that
Member States are under the obligation to respect the Charter when they
establish the responsibility for examining an asylum application. Member States
must not transfer an asylum seeker to another Member State if it is such that they
cannot be unaware of systemic deficiencies in the asylum procedure and
reception conditions amounting to substantial grounds for believing that person
would face a real risk of being subjected to inhuman or degrading treatment. Annex I to this report presents a number of other important rulings such
as the judgments clarifying the relationship - in an online environment -
between the protection of intellectual property rights and other fundamental
rights, such as the freedom to conduct business and the protection of personal
data[24],
or referring to human dignity as regards the issue of the patentability of
human embryos created through therapeutic cloning[25], or analysing the principle of non-discrimination on
grounds of age in light of the right to negotiate and conclude collective
agreements[26].

2.2.        Promoting equality between
women and men in the EU

Following the Commission's Strategy for
equality between women and men (2010-2015)[27],
the Council adopted a European Pact for gender equality[28]. Establishing a firm link to
the Europe 2020 process, the Pact reaffirms the EU's commitments to closing
gender gaps in employment, education and social protection, ensuring equal pay
for equal work, promoting the equal participation of women in decision-making
and combating all forms of violence against women. It repeats the importance of
integrating a gender perspective into all policies including external actions
of the EU. It also underlines reconciliation of work and family life as
a precondition for equal participation in the labour market: developing
childcare services and fathers’ take-up of parental leave have a positive
bearing on the labour supply for main carers, who usually are women[29].

In line with the commitments taken in its
Strategy for equality between women and men to promote equality in decision
making and in order to redress the gender imbalance in positions of leadership
in private companies, the Commission called on all EU publicly listed companies
to sign the 'Women on the Board Pledge for Europe' and to develop their
own means to get more women into top jobs[30].
The goal is to reach the target of 30% female board members in the major
European publicly listed companies by 2015 and 40% by 2020.

The Commission adopted the legislative
proposals for the next EU Multiannual Financial Framework (2014-2020)[31]. The Rights and Citizenship
programme[32]
will promote and protect the rights of persons including the principles of
non-discrimination and equality between women and men. In addition, the new EU
Programme for Social Change and Innovation[33],
established to support employment and social policies across the EU, will
specifically target gender issues.

In the framework of the Europe 2020
Strategy, the Commission has issued recommendations to Member States
on the gender pay gap, on childcare and on fiscal disincentives for second
earners to strengthen women's position in the labour market and to meet the
objectives of raising the employment rate of women and men aged 20-64 to 75% by
2020. Member States where fiscal treatment is more advantageous either for
couples with very different earnings or for single income couples are not
efficient from an economic point of view. They reinforce the household model
where one person works full-time (traditionally the man) and the other
part-time (traditionally the woman), leading to an underutilisation of human
capital investments, in particular of women. Removing financial disincentives
in tax and benefit systems and developing childcare and care for the elderly
would increase the labour participation of women throughout their life-cycle
and guarantees their economic independence.

2.3.        Helping citizens exercise
their rights

The Commission is convinced that informing
citizens about when the Charter applies and where to go to when their rights
are violated requires further effort. A recent Eurobarometer survey[34] revealed that although general awareness of the Charter is on the rise (64% in 2012 as compared to 48% in 2007), few
citizens knew what the Charter actually was (11%) and when it applied (14%). The
greatest confusion lay around whether the Charter applied to all actions of
Member States, including matters of national competence. The Charter does
not apply in all of these matters, but more than half of the respondents - 55%
- thought that it applied. In addition, almost one quarter (24%) of respondents
said that it was false that the Charter applied to Member States only when they
implement EU law, further highlighting this confusion.

The survey also reveals that national
courts are the first place respondents would turn to if their Charter rights
were violated (21%) closely followed by Ombudsmen/independent bodies (20%), EU
institutions (19%) and the local police (19%). This shows that EU institutions
are perceived by many citizens as having the same redress function as a
national court or a national human rights body.

Data collected by the Commission sheds
further light on the frequent misunderstanding of citizens as regard the role
of EU institutions in the area of fundamental rights. In 2011, citizens'
letters to the Commission on fundamental rights in 55% of the cases concerned issues
outside the remit of EU competences. The Charter does not give a general power
to the EU to intervene in all cases of violations of fundamental rights by
national authorities. The Charter applies to Member States only when they
implement EU law. Member States have extensive national
rules on fundamental rights, the respect of which is guaranteed by national
courts[35].

The Commission recalls that EU institutions
and bodies (in particular the European Ombudsman) and Member States' national,
regional and local authorities have a shared responsibility to better inform
citizens on the Charter and on where to turn to obtain redress when they
consider their rights violated. The Commission, in
cooperation with Member States, published new Fundamental Rights pages on the European
e-Justice Portal[36].
The portal provides information on where to complain when citizens consider
that they have been subject to a violation of their fundamental rights. It
provides information on national courts, and on bodies handling complaints on
fundamental rights, such as the national Ombudspersons, National Human Rights
Institutions and Equality bodies.

The Commission is determined to help citizens
exercise their rights through a multilevel cooperation with all actors
involved at EU and at national level. A closer dialogue is necessary among
the many different institutions in Member States which, in addition to the key
role of the judiciary in defending fundamental rights, are called upon to address
complaints from citizens who consider that their fundamental rights have been
violated. On 6 October 2011 the Commission, for the first time, brought
together equality bodies, ombudsman institutions, children's ombudsman
institutions, European and national human rights institutions in a seminar
organised jointly with the European Parliament Committee on Petitions. The
seminar focussed on how such authorities handle complaints on fundamental
rights in practice. This multilevel dialogue will continue with a view to sharing
experience in implementing the Charter and on common challenges faced by these
authorities in relation to their competence, independence and effectiveness. It will in particular examine how to encourage each body to
establish citizen-friendly "admissibility check lists"
enabling the complainant to determine whether their case can likely to be dealt
with by the body concerned. Such systems have already proved to be very
beneficial in the case of the European Ombudsman which set up an
interactive guide on its website in all the 23 official
EU languages to help citizens quickly identify the most appropriate body to turn
to when they have complaint about maladministration. 80%
of 22.000 enquiries received in 2011 could be responded to through this interactive
guide. Cooperation with the EU Agency for Fundamental
Rights (FRA) in establishing citizen-friendly
"admissibility check lists" is important as the
FRA has planned to set up user-friendly tools guiding citizens when they want
to submit a complaint concerning a violation of their fundamental rights.

3.           Most important developments in 2011

The Commission has pursued a vigorous
policy of ensuring the effective implementation of the Charter in a wide
variety of areas covered by EU law. The annex to this Report presents many
examples of the application of the Charter involving the rights covered by the
six titles of the Charter (Dignity, Freedoms, Equality, Solidarity, Citizens'
rights and Justice), including important steps to prepare the proposal for new
EU rules on data protection to be presented in 2012.

Beyond the scope of this report, the
promotion of human rights in third countries is also a priority of the EU. This
was reaffirmed by the Commission and the High Representative of the Union for Foreign Affairs and Security Policy in a joint Communication on "Human rights and
democracy at the heart of the EU external action", adopted on 12 December 2011[37]
as well as in two Communications on the EU's development policy[38]. The
protection of human rights is also one of the key priorities for the EU
enlargement process, and will be further strengthened during the accession negotiations.

EU Member States are bound by the Charter
when they implement EU law. However, there is not yet enough information on the
efforts made to ensure the effective implementation of the Charter. The
Commission will seek in its forthcoming annual reports on the application of
the Charter to document progress in that respect.

3.1.        A new momentum in the
enforcement of citizens' right to free movement

Intra-EU mobility of persons is a key
factor for economic growth in a Europe with a declining population and a
significant imbalance between supply and demand on the labour market in
different parts of the EU. At the same time, the free movement of students,
tourists, workers and their families between Member States is a key European
achievement, and a practical expression of mutual respect, openness and
tolerance as core European Union values. For these reasons, the Commission
pursued a rigorous enforcement policy with a view to achieving the full
and correct transposition and application of EU free movement rules[39] across the European Union. As
a result of this policy, the majority of Member States amended their
legislation or announced their intention to do so. The Commission continued to
work with the remaining countries to tackle outstanding issues including by
launching infringement proceedings where needed.

At the same
time, the Commission took a firm stance to ensure that the principle of non-discrimination
and other safeguards anchored in EU rules on free movement for the benefit of
all EU citizens are fully respected by Member States. In this respect, the
Commission expressed its concerns regarding the plans on labour migration
announced by the Dutch government and pursues its dialogue with relevant Member
State authorities with a view to ensuring full compliance with EU law of any
measure that may be put in place.

In March 2011,
the French Constitutional Council took a decision concerning the issue of the
evictions of unlawful group settlements[40].
This issue was not addressed by the Commission intervention in the summer 2010[41] as such evictions do not
concern the expulsion of EU citizens from a Member State and therefore do not concern
the right to free movement. The Court declared unconstitutional certain legal provisions
enabling authorities to enforce evictions on an urgent basis at any time of the
year, without taking into account the personal or family circumstances of the
individuals. This decision confirms that where EU law does not come into play,
fundamental rights continued to be enforced at national level, in particular,
through the courts.

In May 2011, the
Commission engaged in an intensive dialogue with the Danish government on its
plans to introduce strengthened intra-EU border control measures. In
October 2011, the Danish government announced that it would not go ahead with
the plans and that customs controls would be implemented in line with EU rules
on free movement and the Schengen acquis.

The Commission
also contacted the Danish authorities regarding amendments to the Danish
Aliens' Act that entered into force in July 2011. These aim at introducing
stricter rules on the expulsion of aliens, including EU citizens, and
raise serious concerns about their compatibility with the Free Movement
Directive. The Commission will not hesitate to make use of the powers conferred
to it by the Treaty should the Danish reply be deemed unsatisfactory.

3.2.        Promoting the rights of
the child

The Commission
adopted the EU Agenda for the Rights of the Child in February 2011[42].
The EU Agenda aims to put in practice the rights of the child enshrined in the Charter and the UN
Convention on the Rights of the Child through a comprehensive programme of
actions for the period from 2011-2014. The EU Agenda identified 11 concrete actions which will contribute to the effective
implementation and protection of the rights of the child. In the context of this comprehensive approach to children's rights, the
Commission has prioritized efforts to ensure that the
justice system is better adapted to children and more child-friendly. The
Commission also fixed priorities for the protection of children when they are
vulnerable and to safeguard the rights of the child in the EU's external
action. The Commission further launched a single online entry point for
children called the Kid's Corner[43]
containing child-friendly texts, games and quizzes informing children about
their rights, as part of this programme of actions.

The EU adopted new rules on combating
the sexual abuse and sexual exploitation of children and child pornography[44] to make it easier to fight crimes against children by acting on
different fronts. The new rules criminalise a wide
range of situations of sexual abuse and exploitation, covering new phenomena
helped by the Internet, such as child grooming, webcam abuse and web viewing of
child abuse material.

The Commission
continued to provide support for the establishment and operation of the tools
designed to help missing or abducted children, namely the 116 000 hotlines
for missing children and child alert systems. Concerted efforts by some Member
States[45]
are necessary to have the hotline operational and widely known throughout the
EU. The Commission will pursue its efforts to make this a reality.

The entry into
force in Russia of the Hague Convention on the Civil Aspects of
International Child Abduction[46]
and the steps taken by Japan in view of its accession to the Convention are
significant developments contributing to the protection of children in the EU
in cases of abduction. The Commission submitted proposals to ensure consistency
in the application of the Convention between the EU and the third States which
have acceded to it in recent years[47].

3.3.        Reinforcing victims'
rights and procedural rights

The Commission proposed a new set of
instruments to guarantee that victims are treated with respect and dignity,
receive protection and support for their physical integrity and their property,
and have access to justice and compensation. The proposed new rules[48] pay due attention to victims
with special needs, such as children. In addition, the Commission worked to
protect victims of violence (such as domestic violence) from further harm
inflicted on them by the offender when they travel within the EU[49]. The new rules also ensure
that the right of defence is not harmed. The Directive on preventing and
combating trafficking in human beings provides for a comprehensive range of
rights for victims in criminal proceedings, including as regards victims
assistances and supports as well as for child victims of trafficking[50].

Major progress has been achieved towards
the adoption of the Commission proposals to strengthen suspects' procedural
rights. The European Parliament and the Council adopted a new set of rules
ensuring that the suspects of a criminal offence are informed about their rights
in a language that they understand. Anyone arrested will have to be informed
about their rights by a document called a Letter of Rights. The Commission also
submitted a proposal for new rules securing amongst others access to a lawyer
from the first stage of police questioning and throughout criminal proceedings[51]. The Commission launched a public
consultation on detention issues in the EU, to explore the possibility of establishing
similar standards of protection across the EU[52].

3.4.        Fight against xenophobic
and racist hate speech

The European
Parliament expressed its concern about the occurrence of xenophobic and
racist hate speech and crimes in EU Member States on a number of occasions. According
to the 2011 Annual Report of the EU Agency for Fundamental Rights, "10 of the 12 Member States, which publish sufficient criminal
justice data on racist crime to be able to undertake an analysis of trends,
experienced an upward trend in recorded racist crime"[53] during the period 2000-2009.

In reply to
European Parliament concerns, the Commission reiterated its firm rejection
of all forms and manifestations of xenophobia and racism. It recalled that
public authorities must unequivocally condemn and actively fight against such behaviour.
Any statement linking criminality with a certain nationality stigmatises that
nationality and fuels xenophobia, and is therefore incompatible with the
principles of human dignity, equality and respect for fundamental rights on which
the EU is founded.

The Commission is determined to ensure the
conformity of national laws with EU law prohibiting racist and xenophobic
hate speech and crime[54].
By the end of the year, 22 Member States had communicated to the Commission their
national laws intended to penalise racist and xenophobic hate speech. The
Commission did not receive any notifications of implementing measures from
Belgium, Estonia, Greece, Spain and Poland. The Commission will assess notifications
in 2012 in order to verify the compliance of national laws with EU law. It will
work towards complementing this with a regular dialogue among Member States on monitoring
organised propagation of racism and hate speech, for instance through racist
websites, in order to strengthen the basis for joint analysis and reporting on
such phenomena, in particular when they include a cross-border dimension.

Discrimination based on racial or ethnic
origin is prohibited in EU law and the Commission
is committed to ensuring that Member States comply with it. Proceedings against
four Member States for non-compliance with these legal requirements were
closed, as they brought their national laws into conformity. The Commission
will pursue its efforts with three Member States for which proceedings are
pending[55].

The Commission reaffirmed the need for a positive
attitude towards diversity and for equal treatment in the "European Agenda
for the Integration of Third-Country Nationals"[56]. Efforts to fight against
discrimination and to give migrants instruments to become acquainted with the
fundamental values of the EU and its Member States should be strengthened.

The EU made a major step forward in promoting
the social and economic integration of Roma with the Commission's
communication on the "EU framework for national Roma integration
strategies up to 2020"[57]. This EU Framework calls upon Member States to prepare or revise
their national Roma integration strategies in the light of the EU goals defined
in the framework, and to present them to the Commission by end of December
2011. The EU Framework was also endorsed by the European Council[58] and welcomed by the European Parliament.

The EU gave financial support to civil
society actions and national policies to combat discrimination, promote
equality and improve redress as regards racist speech and crime[59]. The Commission also supports
the work of the EU Agency for Fundamental Rights in collecting data on
the situation of fundamental rights, racism and discrimination in the Member
States. The Agency published several studies and handbooks addressing for
instance the role of Holocaust memorial sites in human rights education, the
situation of Anti-semitism in the EU, European non-discrimination law, multiple-
discrimination and the protection of minorities in the EU.

3.5.        Contributing to EU
competitiveness

The Charter
served as a compass when shaping EU initiatives to promote growth. A number of EU measures have been assessed in the light of the right
to an effective remedy before a tribunal (Article 47 of the Charter). This
right is important for all citizens but also for the
enforcement of EU economic law that contributes to growth. It ensures that enterprises can effectively uphold the rights granted
in EU legislation and it provides a safeguard against the risk of unlawful
action, and arbitrariness of authorities having supervisory powers. The
Commission assessed a number of EU measures in the light of the right to an
effective remedy before a tribunal. These measures included the proposed
legislation related to markets in financial
instruments, market abuse, transparency in financial markets, statutory audits,
professional qualifications and consumer alternative dispute resolution.

In 2011, the
right to an effective remedy was the most quoted
right in the decisions of the Court of Justice of the EU referring to the
Charter and it was mentioned in a third of all these decisions. The right to an effective remedy requires an independent, impartial
and fully functioning judiciary.

The freedom
to conduct a business (Article 16 of the Charter) is of particular
relevance for EU competitiveness and the Commission duly took account of it in
the preparation of new legislation on the market for financial instruments,
insurance mediation, credit ratings agencies and on recording equipment for
road transport (tachographs). Freedom to conduct a business was also a key
consideration in the preparation of the Common European Sales Law proposal aimed
at removing obstacles resulting from divergences between national contract laws[60]. The Court of Justice
recognized the importance of the freedom to conduct a business in its landmark
rulings in the Scarlet[61] and Sabam cases[62]. The Court declared that obliging an internet service or hosting provider to
install a filtering system in order to prevent an infringement of intellectual
property rights would infringe the freedom of the provider to conduct its
business, as well as its customers' rights to the protection of their personal
data and to receive or impart information. These rulings underline the
importance of taking into account all the fundamental rights involved by
a given measure and to ensure its compliance with all these rights.

In several
initiatives, the Commission paid particular attention to the right to property (Article
17 of the Charter) which provides that intellectual property shall be
protected. The Commission presented a Communication on 'A Single Market for
Intellectual Property Rights'[63],
where it announced a number of initiatives, including a possible review of EU
legislation on the enforcement of intellectual property rights in particular in
the light of piracy over the internet. The Commission announced that such a
review will require conducting an impact assessment, not only on the right to
property, but also on the rights to private life, the protection of personal
data, freedom of expression and information and the right to an effective
remedy. As explained in the Charter Strategy, highlighting potential
fundamental rights aspects upstream of the preparation of proposals encourage
contributions that will feed into the impact assessment of the review.

3.6.        Key steps for the EU
accession to the European Convention on Human Rights

The Commission took concrete steps to
comply with the requirement enshrined in the Lisbon
Treaty that the EU accedes to the European Convention on Human Rights. The
Commission conducted technical negotiations on accession with experts from
Member States of the Council of Europe as the current parties to the
Convention. A draft accession agreement, elaborated in June 2011, is currently
under scrutiny within the Council.

4.           Conclusions

In 2011, the EU took further concrete steps
for the effective implementation of the Charter. These efforts served to help
citizens enjoy their fundamental rights when EU law comes into play.

In particular, in times of economic crisis,
a legally stable environment based on the rule of law and the respect of
fundamental rights is the best guarantee for citizens' trust and the confidence
of partners and investors. The Commission is convinced that all EU
institutions, Member States and stakeholders must continue to work together to
put the Charter into practice.

[1]               Charter of Fundamental Rights of the European Union,
OJ C 83, 30.3.2010, p. 389–403.

[2]               Commission Communication: Strategy for the effective
implementation of the Charter of Fundamental Rights by the European Union, COM(2010)
573 final, available at:

http://ec.europa.eu/justice/news/intro/doc/com_2010_573_en.pdf

[3]               Flash Eurobarometer 340: "The Charter of
Fundamental Rights of the European Union".

[4]               Operational Guidance on taking account of fundamental
rights in Commission Impact Assessments, SEC(2011) 567 final, 6.5.2011,
available at:

http://ec.europa.eu/justice/fundamental-rights/files/operational-guidance_en.pdf

[5]               Commission Regulation 1141/2011 supplementing the
common basic standards on civil aviation security as regards the use of
security scanners at EU airports, OJ L293, 11.11.2011, p. 22-23. Commission
Implementing Regulation N° 1147/2011 implementing the common basic standards on
civil aviation security as regards the use of security scanners at EU airports,
OJ L294, 12.11.2011, p. 7-11.

[6]               Report from the Commission: Evaluation report on the
Data Retention Directive (Directive 2006/24/EC), COM(2011) 225 final, available
at:

http://ec.europa.eu/commission_2010-2014/malmstrom/archive/20110418_data_retention_evaluation_en.pdf

[7]               Data Retention Directive (2006/24/EC) requires Member
States to oblige providers of publically available electronic communications
services or of public communications networks to retain traffic and location
data for a period of six months to two years for the purpose of the
investigation, detection and prosecution of serious crime.

[8]               Vice-President Kroes has expressed her concerns both
in letters to the Hungarian authorities and in a bilateral meeting with the
responsible Minister of Justice. Ruling of the Hungarian Constitutional Court,
19 December 2011, 1746/B/2010, available at: www.mkab.hu/admin/data/file/1146_1746_10.pdf

[9]               Vice-President Reding sent a letter to the Hungarian
Minister of Justice on 12 December. Vice-President Kroes and Vice-President Rehn
also sent letters on media pluralism and on the
independence of the Hungarian Central Bank respectively.

[10]             Press release of 17 January 2012 (IP 12/24), available
at:

http://europa.eu/rapid/pressReleasesAction.do?reference=IP/12/24&format=HTML&aged=0&language=EN&guiLanguage=fr

[11]             European Parliament resolution of 10 March 2011 on
media law in Hungary, available at:
http://www.europarl.europa.eu/sides/getDoc.do?pubRef=-//EP//TEXT+TA+P7-TA-2011-0094+0+DOC+XML+V0//EN

[12]             Resolution of 5 July 2011 on the Revised Hungarian
Constitution, available at : http://www.europarl.europa.eu/sides/getDoc.do?pubRef=-//EP//TEXT+TA+P7-TA-2011-
0315+0+DOC+XML+V0//EN

[13]             Resolution of 16 February 2012 on the recent political
developments in Hungary, available at:
http://www.europarl.europa.eu/sides/getDoc.do?pubRef=-%2f%2fEP%2f%2fTEXT%2bTA%2bP7-TA-2012-0053%2b0%2bDOC%2bXML%2bV0%2f%2fEN&language=EN

[14]             Directive 2011/98/EU on a single application procedure
for a single permit for third country nationals to reside and work in the
territory of a Member State and on a common set of rights for third-country
workers legally residing in a Member State, OJ L 343, 23.12.2011, p. 1 – 9.

[15]             Council conclusions on the role of the Council of the
European Union in ensuring the effective implementation of the Charter of
Fundamental Rights of the European Union, 25.2.2011, available at: http://www.consilium.europa.eu/uedocs/cms_data/docs/pressdata/en/jha/119464.pdf

[16]             Inter-institutional Agreement
on Better Lawmaking, OJ C 321, 31.12.2003, p. 1 – 5.

[17]             Guidelines on methodological steps to be taken to check
fundamental rights compatibility at the Council's preparatory bodies,
19.5.2001, available at:

http://register.consilium.europa.eu/pdf/en/11/st10/st10140.en11.pdf

[18]             Council conclusions on the Council's actions and
initiatives for the implementation of the Charter of fundamental rights of the
European Union, 23.5.2011, available at:
http://www.consilium.europa.eu/uedocs/cms_data/docs/pressdata/EN/genaff/122181.pdf

[19]             ECJ, Case C-300/11, ZZ v
Secretary of State for the Home Department,
17.06.2011.

[20]             ECJ, Case Case C-399/11, Stefano Melloni,1.10.2011.

[21]             ECJ, Case C-236/09, Test-Achats, 30.4.2011.

[22]             Guidelines on the application of Council Directive
2004/113/EC to insurance, in the light of the judgment of the Court of Justice
of the European Union in Case C-236/09 (Test-Achats), OJ C 11, 13.1.2012, p. 1
– 11.

[23]             ECJ, joined cases C-411/10 and C-493/10, N.S. v
Secretary of State for the Home Department and M.E. e.a. v Refugee Applications
Commissioner, 21.12.2011.

[24]             ECJ, Case, C-70/10, Scarlet v SABAM, 24.11.2011.

[25]             ECJ, C-34/10, Brüstle v. Greenpeace, 18.10.2011.

[26]             Joined Cases, C-297/10 and C-298/10, Hennings and
Land Berlin.

[27]             Communication from the Commission: Strategy for equality between women and men, 2010, COM(2010) 491
final, available at:

http://eur-lex.europa.eu/LexUriServ/LexUriServ.do?uri=COM:2010:0491:FIN:EN:PDF

[28]             Council conclusions on the European Pact for gender
equality for the period 2011 – 2020, 7.3.2011, available at: http://www.consilium.europa.eu/uedocs/cms_data/docs/pressdata/en/lsa/119628.pdf

[29]             Council conclusions on the Reconciliation of work and
family life in the context of demographic

Change, 17.6.2011, available at:

http://www.consilium.europa.eu/uedocs/cms_data/docs/pressdata/en/lsa/122875.pdf

[30]             Women on the Board Pledge for Europe, available at:

http://ec.europa.eu/commission_2010-2014/reding/pdf/p_en.pdf

[31]             Information on the EU financial framework for
2014-2020, available at:

http://ec.europa.eu/budget/biblio/documents/fin_fwk1420/fin_fwk1420_en.cfm

[32]             Proposal for a Regulation establishing for the period
2014 to 2020 the Rights and Citizenship Programme, COM (2011) 758 final,
available at:

http://ec.europa.eu/justice/newsroom/files/1_en_act_part1_v5_frc_en.pdf

[33]             Proposal for a Regulation of the European Parliament
and of the Council on a European Union Programme for Social Change and
Innovation, COM(2011) 609 final, available at:

http://eur-lex.europa.eu/LexUriServ/LexUriServ.do?uri=CELEX:52011PC0609:EN:NOT

[34]             Flash Eurobarometer 340; "The Charter of
Fundamental Rights of the European Union".

[35]             In this respect, even the US Bill of Rights originally
only applied to the Federal level.

[36]             European
e-Justice portal available at: https://e-justice.europa.eu/home.do?action=home

[37]             Joint Communication
of European Commission and EU High Representative for
Foreign Affairs and Security Policy: Human rights and
democracy at the heart of EU external action – towards a more
effective approach", 12.12.2011, COM(2011)
886 final, available at:

http://eur-lex.europa.eu/LexUriServ/LexUriServ.do?uri=COM:2011:0886:FIN:EN:PDF

[38]             Communication from the Commission: Increasing the
impact of EU development policy: an agenda for change, COM(2011)
637 final; Communication from the Commission: The future approach to EU budget
support to third countries, COM(2011) 638 final, available at:

http://eur-lex.europa.eu/LexUriServ/LexUriServ.do?uri=COM:2011:0637:FIN:EN:PDF;

http://ec.europa.eu/europeaid/how/delivering-aid/budget-support/documents/future_eu_budget_support_en.pdf

[39]             Directive 2004/38/EC on the right of citizens of the
Union and their family members to move and reside freely within the territory
of the Member States, OJ L 158 , 30.04.2004, p. 77 – 123.

[40]             French Constitutional Council, Decision n°. 2011-625 DC
of 10 March 2011, available at:

http://www.conseil-constitutionnel.fr/conseil-constitutionnel/root/bank/download/2011625DCen2010625dc.pdf

[41]             See Commission 2010 Report on the application of the
Charter, page 10, available at:

http://ec.europa.eu/justice/fundamental-rights/files/annual_report_2010_en.pdf

[42]             Commission Communication: An EU Agenda for the Rights
of the Child, COM(2011) 60 final, available at: http://eur-lex.europa.eu/LexUriServ/LexUriServ.do?uri=CELEX:52011DC0060:en:NOT

[43]             Available at: http://europa.eu/kids-corner/index_en.htm

[44]             Directive on combating the sexual abuse and sexual
exploitation of children and child pornography, and replacing Council Framework
Decision 2004/68/JHA, available at:

http://register.consilium.europa.eu/pdf/en/11/pe00/pe00051.en11.pdf

[45]             Austria, Bulgaria, Cyprus, Czech Republic, Finland,
Ireland, Latvia, Lithuania, Luxembourg, and Sweden have yet to make the hotline
operational.

[46]             Hague Convention of 25 October
1980 on the Civil Aspects of International Child Abduction, available at: http://www.hcch.net/index_en.php?act=conventions.text&cid=24

[47]             Albania, Andorra, Armenia, Gabon, Morocco, Russia,
Seychelles and Singapore.

[48]             Proposal for a Directive of the European Parliament and
the Council establishing minimum standards on the rights, support and
protection of victims of crime, COM(2011) 275, available at:

http://ec.europa.eu/justice/policies/criminal/victims/docs/com_2011_275_en.pdf

Communication from
the Commission: Strengthening victims' rights in the EU, COM(2011) 274 final, available at: http://ec.europa.eu/justice/policies/criminal/victims/docs/com_2011_274_en.pdf

[49]             Proposal for a Regulation on mutual recognition of
protection measures in civil matters, COM(2011) 276,
available at http://ec.europa.eu/justice/policies/criminal/victims/docs/com_2011_276_en.pdf

[50]             Directive 2011/36/EU on preventing and combating
trafficking in human beings and protecting its victims, and replacing Council
Framework Decision 2002/629/JHA, OJ L 101, 15.04.2011, p. 1-11.

[51]             Proposal for a Directive on the right of access to a
lawyer in criminal proceedings and on the right to communicate upon arrest,
COM(2011) 326, available at:

http://eur-
lex.europa.eu/LexUriServ/LexUriServ.do?uri=COM:2011:0326:FIN:EN:PDF

[52]             Green Paper: Strengthening mutual trust in the European
judicial area – A Green Paper on the application of EU criminal justice legislation
in the field of detention, COM(2011) 327, available at:
http://ec.europa.eu/justice/policies/criminal/procedural/docs/com_2011_327_en.pdf

[53]             EU Agency for Fundamental Rights, 'Fundamental
Rights: Challenges and achievements in 2010', June 2011, p. 127. Available
at: http://fra.europa.eu/fraWebsite/attachments/annual-report-2011_EN.pdf

[54]             Council Framework Decision 2008/913/JHA on combating certain forms and expressions of racism and xenophobia
by means of criminal law, OJ L 328, 6.12.2008, p. 55 –
58.

[55]             Council Directive 2000/43/EC of 29
June 2000, implementing the principle of equal treatment between persons
irrespective of racial or ethnic origin, OJ L 180, 19.7.2000, p. 22 - 26.

[56]             Communication from the Commission: European Agenda for
the Integration of Third-Country Nationals, COM(2011)
455 final, available at:

http://ec.europa.eu/home-affairs/news/intro/docs/110720/1_EN_ACT_part1_v10.pdf

[57]             Communication from the
Commission: An EU Framework for National Roma Integration Strategies up to
2020, COM(2011) 173 final, available at:

http://ec.europa.eu/justice/policies/discrimination/docs/com_2011_173_en.pdf

[58]             European
Council Conclusions, 24 June 2011, http://www.consilium.europa.eu/uedocs/cms_data/docs/pressdata/en/ec/123075.pdf.

[59]             For instance, in 2011, over twenty projects addressing
racism and xenophobia or promoting diversity and tolerance were supported
through the Fundamental Rights and Citizenship Programme amounting to financial
support of more than €9.5 million. Further information on this programme is
available at:

http://ec.europa.eu/justice/grants/programmes/fundamental-citizenship/index_en.htm

[60]             Proposal for a Regulation of the European Parliament
and the Council on a common European sales law, COM (2011) 635 final, available
at:

http://eur-lex.europa.eu/LexUriServ/LexUriServ.do?uri=COM:2011:0635:FIN:EN:PDF

[61]             ECJ, Case C-70/10, Scarlet v SABAM, 24.11.2011.

[62]             ECJ, Case C-360/10, SABAM v. Netlog, 16.2.2012.

[63]             Communication from the Commission: A Single Market for
Intellectual Property Rights Boosting creativity and innovation to provide
economic growth, high quality jobs and first class products and services in
Europe, COM(2011) 287 final, available at:

http://ec.europa.eu/internal_market/copyright/docs/ipr_strategy/COM_2011_287_en.pdf