EUROPEAN COMMISSION Brussels, 18.5.2017 SWD(2017) 162 final COMMISSION STAFF WORKING DOCUMENT on the Application of the EU Charter of Fundamental Rights in 2016 Accompanying the document Communication from the Commission to the European Parlament, the Council, the European Economic and Social Committee and the Committee of the Regions on 2016 Report on the Application of the EU Charter of Fundamental Rights {COM(2017) 239 final}



Introduction After the entry into force of the EU Charter of Fundamental Rights in December 2009, the European Commission adopted a strategy on the effective implementation of the Charter, which sets as an objective that the EU should be beyond reproach in upholding fundamental rights, in particular when it legislates. The Commission also committed itself to preparing annual reports to inform citizens and measure progress on the implementation of the Charter. These are intended to serve as a factual basis for ongoing informed dialogue between all EU institutions and Member States. This report, for 2016, informs the public about situations in which they can rely on the Charter and on the role of the European Union in the field of fundamental rights. In covering the full range of Charter provisions on an annual basis, the Commission’s reports aim to track where progress is being made, where further efforts are still necessary and where new concerns are arising. The report contains an account of action taken by the EU institutions and analysis of letters and petitions from the general public and questions from the European Parliament. In addition, it covers key developments as regards the jurisprudence of the Court of Justice of the European Union (CJEU), and provides information on the caselaw of national courts on the Charter, based on an analysis carried out by the EU Agency for Fundamental Rights (FRA). Protection of fundamental rights in the EU In the European Union, the protection of fundamental rights is guaranteed both at national level (by Member States’ constitutional systems) and at EU level (by the Charter). The Charter applies to all action taken by the EU institutions (including the European Parliament and the Council), which must respect the Charter, in particular throughout the legislative process. The Charter applies to Member States only when they implement EU law. Hence it does not replace national fundamental rights systems, but complements them. The factor connecting an alleged violation of the Charter with EU law will depend on the situation in question. For example, a connecting factor exists where: ·national legislation transposes an EU directive; ·a public authority applies EU law; or ·a national court applies or interprets EU law. If a national authority (administration or court) violates fundamental rights set out in the Charter when implementing EU law, the Commission can start an infringement procedure against the Member State in question and may take the matter to the CJEU. The Commission is not a judicial body or a court of appeal against the decisions of national courts. Nor does it, as a matter of principle, examine the merits of an individual case, unless this is relevant to its task of ensuring that the Member States apply EU law correctly. In particular, if it detects a wider, e.g. structural, problem, it can contact the national authorities to have it solved, and it may open an infringement procedure and ultimately take a Member State to the CJEU. The objective of these infringement procedures is to ensure that the national law in question — or a practice by national administrations or courts — is aligned with the requirements of EU law. Where individuals or businesses consider that an act of the EU institutions violates their fundamental rights as enshrined in the Charter, they can subject to certain conditions bring their case before the CJEU, which has the power to annul the act in question. Matters outside the scope of EU law The Commission cannot pursue complaints which concern matters outside the scope of EU law. This does not necessarily mean that fundamental rights have not been violated. If a situation does not relate to EU law, it is for the Member States alone to ensure that their obligations regarding fundamental rights are respected. Member States have extensive national rules on fundamental rights, which are upheld by national including in many Member States, constitutional courts. Accordingly, complaints in this context need to be addressed at the national level. Therefore, where the Charter is not applicable in certain situations within a Member State, individuals seeking to respond to a violation by a Member State of a right guaranteed by the European Convention on Human Rights (ECHR) may: ·have recourse to national remedies; and (after having exhausted them) ·bring an action before the European Court of Human Rights (ECtHR) in Strasbourg for a violation of a right guaranteed by the European Convention on Human Rights (ECHR). All Member States are bound by the commitments they have made under the ECHR, independently of their obligations under EU law. The ECtHR has designed an admissibility checklist to help potential applicants work out for themselves whether there may be obstacles to it examining their complaints.

The interpretation of the Charter rights which correspond to rights guaranteed by the ECHR must correspond to the interpretation of the latter by the ECtHR. EU accession to the European Convention of Human Rights The Treaty of Lisbon imposed an obligation on the EU to accede to the ECHR. EU accession to the Convention remains a priority for the Commission,. It will improve the effectiveness of EU law and enhance the coherence of fundamental rights protection in Europe. However, the CJEU’s opinion of December 2014, by which the Court declared the 2013 draft Accession Agreement incompatible with the Treaties, raised a number of significant and complex questions. As a result, the draft Accession Agreement will have to be re-negotiated on a series of points. In its capacity as EU negotiator, the Commission continues to consult with the relevant Council working party on solutions to address the various objections raised by the Court. This work is making good progress. Overview of letters and questions to the Commission on fundamental rights In 2016, the Commission received 3 347 letters from the general public and 809 questions from the European Parliament on fundamental rights issues. Of the 751 petitions it received from the European Parliament, 118 concerned fundamental rights. Among the letters from the general public, 1 543 concerned issues within EU competence. In a number of cases, the Commission asked the Member States concerned for information or explained the applicable EU rules to the complainant. In other cases, the complaints should have been addressed to the national authorities or the ECtHR. Where possible, complainants were redirected to other bodies (such as national data protection authorities) for more information. Among the questions from the European Parliament, 571 concerned issues within EU competence. Among the 118 petitions relating to fundamental rights, 57 concerned issues within EU competence. In a number of cases, the Commission contacted the Member States to obtain clarification on alleged violations. Its replies explained or clarified the relevant policies and ongoing initiatives. Overview of CJEU (Court of Justice, General Court and Civil Service Tribunal) decisions referring to the Charter The EU courts have increasingly referred to the Charter in their decisions. The number of decisions quoting the Charter in their reasoning rose from 43 in 2011 to 87 in 2012 and then to 113 in 2013 and 210 in 2014. After a decrease to 167 in 2015, it rose again to 221 in 2016. Overall this reflects a general increase of decisions quoting the Charter (see Appendix I for an overview of all relevant rulings). Source: European Commission When addressing questions to the CJEU (requests for preliminary rulings), national courts often refer to the Charter. Of those requests submitted by judges in 2016, 60 contained a reference to the Charter, as compared with 36 in 2015 (See Appendix II for an overview).

Source: European Commission References to Charter rights in CJEU and national court decisions Charter articles referred to prominently in cases before the EU courts were those on the right to an effective remedy, the right to good administration, the scope and interpretation of rights and the right to property. Source: European Commission Note: The basis for this pie chart is the caselaw referred to in Appendix I. The total number of judgments analysed was 221 and the total number of references to Charter articles was 441, as several judgments referred to more than one article. The percentages were calculated on the basis of these references. The category ‘Other rights’ refers to all rights for which the percentage amounts to less than 3 %, i.e. fewer than 14 references.



As regards decisions by national courts in 2016, the Charter provisions referred to most concerned the right to an effective remedy (Article 47), the field of application of the Charter (Article 51) and the scope of guaranteed rights (Article 52). National courts: Number of references to Charter articles in selected high court decisions, 2016 Source: European Union Agency for Fundamental Rights (FRA) Note: The data for this graph is based on up to four court decisions per Member State where the Charter was used in the courts’ reasoning. 70 court decisions from 27 Member States were analysed. No relevant case was identified for Malta. Decisions may refer to more than one Charter article.



Overview of enquiries with the Europe Direct Contact Centres The figures collected by the Europe Direct Contact Centres (EDCCs) confirm a high degree of interest among citizens on justice, citizenship and fundamental rights. In 2016, the EDCCs replied to 6 491 enquiries from citizens. Most concerned topics such as consumer policy, EU family members and residence and justice and other related polices. Source: European Commission Methodology and structure of the staff working document The staff working document attached to the annual report does not treat the Charter only as a legally binding source of law. It also aims to give an account, more broadly, of the various ways in which the Charter was invoked and contributed to progress on respecting and promoting fundamental rights in a number of areas in 2016. As a consequence, it refers to the Charter as a legally binding instrument and/or a policy objective, depending on the areas concerned. The accounts given in the different chapters of the report vary in breadth as well as depth, depending on the progress made in specific policy areas, such as migration, asylum, digital single market, the European Energy Union, reflecting the 10 policy areas identified as priorities by President Juncker in his opening statement to the European Parliament in 2014. Hence, some chapters show how certain legislative measures are interacting with fundamental rights by promoting them or by striking the right balance in complying with them, including references to the relevant CJEU caselaw. Others contain little of either and/or may concentrate on policy rather than legislative measures. To illustrate the growing impact of the Charter, the SWD (in the margins of the page where relevant) includes national court decisions which refer to the Charter, irrespective of whether EU law was applicable or not in those national cases.

Some measures and cases may relate to different articles of the Charter. Hence, while a measure and/or case are explained in a more detailed manner under one chapter (the heading of one article), it may also be referred to in another. The structure of the SWD reflects the six headings of the Charter itself: Dignity, Freedoms, Equality, Solidarity, Citizens’ rights and Justice. Each of the six chapters of the SWD contains the following information on the application of the Charter, where available and relevant: ·legislation: oexamples of EU institutions’ (proposed or adopted) legislation promoting the Charter rights; and oexamples of how the EU institutions and the Member States ensured compliance with and applied the Charter in 2016 within other (proposed or adopted) legislation; ·policy: oexamples of how the EU institutions and the Member States ensured compliance with and applied the Charter in 2016 within policy areas, e.g. through recommendations and guidelines and best practices; ·case-law: orelevant CJEU jurisprudence; and onational courts’ case-law referring to the Charter (within or outside the scope of EU law); ·application by Member States: ofollow-up: infringement procedures launched by the Commission against Member States for failure (correctly) to implement relevant legislation; ·questions and petitions from the European Parliament and letters from the general public received in 2016 focusing on main fundamental rights issues; and ·data gathered by the EU Agency for Fundamental Rights in 2016.



Title I Dignity In September 2016, the European Parliament and the Council adopted Regulation (EU) 2016/1624 on the European Border and Coast Guard to ensure European integrated boder management at the external borders with a view to managing the crossing of the external borders efficiently. Given the stronger role and enhanced operational tasks of this Agency, the Regulation establishes a number of fundamental rights safeguards that aim to protect human dignity and the right to life and to prohibit torture and inhuman or degrading treatment or punishment. In 2016, the Commission launched a year of focused action to eradicate violence against women, which aimed to draw attention to the issue, mobilise, connect and support all relevant stakeholders in combating the problem, and ensure the dissemination of good practices across the EU. In addition, it adopted proposals for the EU’s accession to the Council of Europe’s Istanbul Convention on combating and preventing violence against women and gender-based violence. Following a Commission proposal in January 2014, the EU further strengthened the Union rules on exports of goods that could be used for capital punishment or torture, adopting (on 23 November 2016) an important amendment to Council Regulation (EC) No 1236/2005 (the Anti-Torture Regulation). The aim of the Regulation is to prevent EU exports from contributing to human rights violations in other countries.

Article 1 — Human dignity Human dignity, as protected under Article 1 of the Charter, is the basis of all fundamental rights. It guarantees the protection of human beings from being treated as mere objects by the state or by their fellow citizens. It is a right per se, but also part of the essence of all other rights. Thus it must be respected when any other rights are restricted. All subsequent rights and freedoms relating to dignity, such as the right to life and the prohibition of torture and slavery, add specific protection against infringements of dignity. They must equally be upheld in order to protect other rights and freedoms in the Charter, for example freedom of expression and freedom of association. None of the rights laid down in the Charter may be used to harm the dignity of another person.



Legislation and policy A number of legislative measures adopted or proposed in the course of 2016 in the area of migration are relevant for the protection of human dignity. The European Parliament and the Council adopted the Regulation on the European Border and Coast Guard on 14 September 2016. It establishes a European Border and Coast Guard bringing together the European Border and Coast Guard Agency consisting of Frontex and the Member States’ border management authorities, including coastguards to the extent that they carry out border control tasks. Given the stronger role and enhanced operational tasks of the Agency, the Regulation establishes a number of fundamental rights safeguards that aim to ensure compliance with the Charter. This includes an obligation on the Agency to develop various codes of conduct, including one on returns that will set out common standardised procedures to assure the return of migrants in full respect for fundamental rights, in particular the right to human dignity. The Agency will also develop common core curricula for the training of border guards to provide EUlevel training for instructors of Member States’ border guards. In the area of asylum, the proposal for a recast Reception Conditions Directive needs to be pointed out. The Commission’s proposal for an Asylum Qualification Regulation contains a specific recital encouraging Member States to use methods to assess applicants’ credibility when evaluating their application for international protection in a manner that respects their individual rights as guaranteed by the Charter, in particular the right to human dignity. The proposal on the revision of the Eurodac system, which the Commission put forward to support the practical implementation of the reformed Dublin Regulation, reaffirms the obligation on Member States to ensure that procedures for taking fingerprints and a facial image are determined and applied in accordance with the safeguards laid down in the Charter. This includes full respect of the right to human dignity, in particular when the procedures concern minors. The right to human dignity was also at the core of EU legislation and policy measures adopted in the field of humanitarian protection. In particular, the Emergency Support Regulation adopted in 2016 provides a needs-based emergency response aimed at preserving life, preventing and alleviating human suffering, and maintaining human dignity wherever the need arises as a result of a disaster, in line with Article 1 of the Charter. Emergency support was activated for a period of three years particularly for the management of the humanitarian impact of the refugee and migration crisis. On this basis, in Greece, the Commission funded access to primary health, psycho-social activities, non-formal education, child-friendly spaces, better accommodation, water and sanitation facilities, protection of the refugee population and cash transfers to cover basic needs. Protection of human dignity was also one of the key elements reflected in the Commission’s policy in the field of humanitarian action, as outlined in its May 2016 SWD on Humanitarian protection: improving protection outcomes to reduce risks for people in humanitarian crises, and in its approach to forced displacement, aimed at enabling forcibly displaced to live in dignity as an integral part of their host societies, as outlined in an April 2016 Communication on forced displacement and development. Article 2 — Right to life Under Article 2 of the Charter, everyone has the right to life and noone may be condemned to the death penalty or executed. The ECtHR has ruled since 1989 that exposure to the pervasive and growing fear of execution (the ‘death row phenomenon’) is in violation of the ECHR. It has also held that the death penalty could be considered inhuman and degrading, and thus contrary to Article 3 ECHR.



Legislation Following a proposal made by the Commission in January 2014, the EU has further strengthened the Union rules on exports of goods that could be used for capital punishment or torture. It adopted on 23 November 2016 an important amendment to Council Regulation (EC) No 1236/2005 (the "Anti-Torture Regulation") . See below, under Article 4. One of the objectives of Regulation (EU) 2016/1624 on the European Border and Coast Guard is to ensure full respect for the right to life, as protected under Article 2 of the Charter. The Agency will be required to assist persons in distress at sea and other persons in a particularly vulnerable situation.

In line with the EU-Turkey Statement , of 18 March 2016, all new irregular migrants and asylum applicants arriving from Turkey to the Greek islands whose applications for asylum have been declared unfounded or inadmissible or who have not applied for asylum should be returned to Turkey. This temporary and extraordinary measure is designed to protect the right to life and to end human suffering by showing clearly that there is no benefit in following the route offered by the smugglers. The Statement is to be implemented in accordance with EU law. This has been explicitly set out in the Statement, which makes clear that international protection safeguards will continue to be fully respected, with any application for international protection being processed individually by the Greek authorities with a right to appeal. Under the Statement, the EU Member States will resettle a Syrian from Turkey for every Syrian returned to Turkey from Greek islands, taking into account the UN Vulnerability Criteria. Article 3 — Right to the integrity of the person The right to physical and mental integrity (Article 3(1) of the Charter) protects people from infringements by public authorities and requires authorities to promote such protection, e.g. by concrete legislation. Legislation Gender-based violence, i.e. violence against women because they are women, is a serious breach of women’s fundamental rights. In 2016, the Commission launched a year of focused action to eradicate violence against women. The aim was to draw attention to the issue, mobilise, connect and support all relevant stakeholders in combating the problem, and ensure the dissemination of good practices across the EU. In addition, the Commission adopted proposals for the EU’s accession to the Council of Europe’s Istanbul Convention on combating and preventing violence against women and gender-based violence. The proposals expressly mention the Charter, referring to rights stipulated in its Articles 15 and 23, i.e. the right to human dignity, the right to life, and the right to the integrity of the person, the prohibition of inhuman or degrading treatment and all forms of slavery and forced labour, and the principle of equality between men and women. Article 4 — Prohibition of torture and inhuman or degrading treatment or punishment Article 4 of the Charter provides that noone is to be subjected to torture or to inhuman or degrading treatment or punishment. The respect of Article 4 requires particular vigilance in the field of border controls, immigration and asylum issues. Legislation Following a Commission proposal in January 2014, the EU further strengthened the Union rules on exports of goods that could be used for capital punishment or torture. On 23 November 2016, it adopted an important amendment to Council Regulation (EC) No 1236/2005 (the Anti-Torture Regulation). The Anti-Torture Regulation adopted in 2005 bans the export and import of goods which can only be used to apply the death penalty or to inflict torture or other cruel, inhuman or degrading treatment and punishment. It also imposes an export authorisation requirement on goods that could be used for the purpose of torture or other ill-treatment. The aim is to prevent EU exports from contributing to human rights violations in other countries and to uphold the right to human dignity (in particular the prohibitions of the death penalty and of torture). The new text lays down a specific set of rules for export controls applied to prevent listed medicinal products from being used for capital punishment in other countries, including a general Union export authorisation. It also imposes new restrictions on supplying brokering services involving listed goods located in a nonEU country, supplying certain other services to nonEU countries and promoting certain goods in trade fairs in the Union. As indicated above, Regulation (EU) 2016/1624 on the European Border and Coast Guard provides for the Agency to develop codes of conduct. The code of conduct for returns is to set out common standardised procedures to assure return in full respect for fundamental rights, including the prohibition of torture and of inhuman or degrading treatment or punishment (Article 4). Application by Member States On 8 June 2016, the European Parliament adopted a Resolution on the CIA’s rendition and detention programme in Europe. This was by way of follow-up to the Parliament’s Resolution of 11 February 2015 on the US Senate report on the use of torture by the CIA, which had called in particular on Member States to investigate the allegations that there were secret prisons on their territory where people were held under the CIA programme, and to prosecute those involved in these operations, taking into account all evidence that had come to light as a result of the report. In June 2016 the European Parliament reiterated the need to ensure full accountability of Member States participating and allowing torture and illegal investigation practises. It underlined that torture cannot be accepted under any circumstances and stressed the need to stand by European core values and defend them. In February 2016, the ECtHR held that one Member State had infringed a number of fundamental rights under the ECHR, including the prohibition of torture under Article 3 ECHR, when cooperating with the CIA’s activities on that Member State’s territory. The Commission has consistently stressed that all concerned Member States have to conduct in-depth, independent and impartial investigations to establish the facts in relation with the CIA programme. Case-law In the joint cases Aranyosi and Căldăraru, the CJEU held that the execution of a European arrest warrant must be deferred if there is a real risk of inhuman or degrading treatment due to the conditions of detention of the person concerned in the Member State where the warrant was issued. If the existence of that risk cannot be discounted within a reasonable period, on the basis of information provided by the issuing authority, the authority responsible for the execution of the warrant must decide whether the surrender procedure should be brought to an end. In its judgment in Sakir v. Greece, the ECtHR found a violation of the procedural aspect of Article 3 ECHR. The case concerned a physical assault in the centre of Athens in 2009 on the applicant, an Afghan national, who had left his country of origin for fear of persecution. The applicant complained that the Greek authorities had failed to comply with their obligation to carry out an effective investigation into the attack. The case is noteworthy because of the importance, in the Court’s analysis, of the general context within which the attack on the applicant took place. The Court took into account reports from various international non-governmental organisations (NGOs) and from Greek institutions which referred to a phenomenon of racist violence in the centre of Athens since 2009. Although the assault bore the hallmarks of a racist attack, the Court found that the police had failed to consider the assault in the light of the above reports, but had instead treated it as an isolated incident. The Court reiterated that where there is suspicion that racist attitudes underlie a violent act it is particularly important for the official investigation to be pursued with vigour and impartiality, having regard to the need continuously to reassert society’s condemnation of racism and ethnic hatred. Article 5 — Prohibition of slavery and forced labour

Slavery violates human dignity. Trafficking in human beings is one form of slavery. Article 5(3) of the Charter explicitly prohibits trafficking in human beings. Slavery and forced labour are forms of exploitation covered by the definition of trafficking in human beings in Article 2 of Directive 2011/36/EU on preventing and combating trafficking in human beings and protecting its victims (the Anti-trafficking Directive). Preventing and combating it is a priority for the Union and the Member States. Legislation and policy Based on a Commission proposal for a Council Directive (COM (2016)235), the Council adopted on 19 December 2016 Directive (EU) 2017/159, implementing the social partners’ agreement on the Work in Fishing Convention of the International Labour Organisation (ILO). All aspects relating to working and living conditions on fishing vessels are regulated by this Directive. Its implementation also provides an opportunity to closely work with Member States in preventing further occurrences of forced labour in the fishing sector. The Commission and the High Representative further committed to work with Member states and international partners to ensure the ratification and implementation of the ILO Work in Fishing Convention, considered as a key ocean governance instrument, in its Communication on « International ocean governance : an agenda for the future of our oceans » (JOIN (2016) 49 final). In accordance with Council Decisions 2015/2037 and 2015/2071 authorising its ratification and providing that Member States should take the necessary steps to ratify it as soon as possible, four Member states ratified the Protocol of 2014 to the Forced Labour Convention 1930 of the International Labour Organisation in 2016 and three more in the first quarter of 2017. When ratifying this new core labour standard, countries commit: to prevent the use of forced labour, in particular in the context of trafficking in human beings; to improve the protection of victims; to provide access to compensation, and to enhance international cooperation in the fight against forced or compulsory labour.This process reinforces compliance with Article 5 of the EU Charter and enhances international cooperation in the fight against forced labour. As part of the EU’s 2012-2016 strategy on eradicating trafficking in human beings, the Commission continued to facilitate the work of the EU Civil Society Platform against Trafficking in Human Beings, which brings together around 100 civil society organisations, including human rights organisations, migrant organisations and those working on the rights of women and children in Member States and nonEU countries. The Commission has also encouraged the use of the EU civil society e-platform against trafficking in human beings to improve its contacts with civil society and exchange information on action against trafficking in human beings. On 19 May 2016, the Commission published the Report on the progress made in the fight against trafficking in human beings (2016) and its accompanying Commission Staff Working document, presenting trends and challenges in addressing trafficking in human beings, examining progress made and highlighting key challenges that the EU and its Member States need to address as a priority. On 6 December 2016, in cooperation with the Slovak Council Presidency, the Commission organised a joint session gathering the representatives of the EU Network of National Rapporteurs or equivalent mechanisms and the EU civil society platform against trafficking in human beings. The conference focused on implementation of the EU’s ambitious legal and policy framework to address trafficking in human beings, which is anchored in human rights, victimcentred, gender-specific and childsensitive. The Commission presented two reports required under Article 23 of the Antitrafficking Directive: the ‘transposition report’ and the ‘users’ report’. In line with the priorities of the framework, the Commission published a study on the gender dimension of trafficking in human beings (March 2016) and a comprehensive policy review of anti-trafficking projects funded by the Commission, which were presented ahead of the 10th EU Anti-trafficking Day (October 2016). Application by Member States In the context of EU cohesion policy, the Commission services made enquiries of the Polish authorities as regards a possible violation of the prohibition of slavery and forced labour (Article 5(2) of the Charter) in a project co-financed by structural funds. In particular, the national authorities were requested to investigate the alleged employment of forced workers from North Korea following press reports according to which several companies, including some companies that had received ESIF co-financing, would have employed North Korean forced workers. The investigation of the National Labour Inspectorate is currently ongoing. Alleged cases of slavery and forced labour in the EU fishing industry were reported to the Commission, relating, in particular, to third country nationals working aboard certain vessels. Criminal investigations are ongoing in the concerned Member State. The Commission offered full support and cooperation to that Member State. It also recalled the existence of a strong legal and policy framework against trafficking in human beings in all its forms, including for the purpose of labour exploitation and Directive 2011/36/EU which requires Member States to take appropriate actions to address such criminal acts.



Title II Freedoms The adoption of the data reform package in 2016 was a key step towards ensuring a high degree of protection of personal data in the EU. It includes the General Data Protection Regulation (GDPR) and the Data Protection Directive for Police and Criminal Justice Authorities. The adoption of the EU-US Privacy Shield adequacy decision and the EU-US data protection Umbrella Agreement ensured data protection at international level. The Commission adopted the former on 12 July; it replaces its 2000 Safe Harbour adequacy decision and ensures the free flow of personal data for commercial purposes between the EU and US companies certified under the Privacy Shield, while guaranteeing the fundamental right of protection of personal data in line with Article 8 of the Charter. The Umbrella Agreement will establish a high level of data protection for any transfer of personal data between the EU and the United States in the context of police or judicial cooperation in criminal matters. In the joint Tele2 Sverige AB and Watson cases, the CJEU interpreted national laws on data retention in the light of Articles 7 and 8 of the Charter and applicable EU law on the protection of personal data. It found that laws requiring the general and indiscriminate retention of all traffic and location data of all subscribers and registered users relating to all means of electronic communication restricted the fundamental rights to private life and to the protection of personal data in Articles 7 and 8. The court clarified the requirements for justification of targeted retention of traffic and location data and for national competent authorities’ access to such retained data. In September, in line with the digital single market strategy adopted on 6 May 2015, the Commission adopted a set of legislative proposals to modernise the EU’s copyright rules. The aim is to strike a balance between copyright and relevant public policy objectives, such as education, research, innovation and the needs of persons with disabilities.

To counter terrorism and cross-border crime more effectively, on 21 December the Commission proposed three amending regulations on the establishment, operation and use of the Schengen Information System (SIS) in the context of: ·border checks; ·police cooperation and judicial cooperation in criminal matters; and ·the return of illegally staying nonEU nationals. Lastly, a number of measures adopted in 2016 for the implementation of the European Agenda on Migration are of direct relevance inter alia to respect for private and family life and the fundamental right to asylum. In particular, the Commission presented two packages of legislative proposals designed to bring about an extensive reform of the common European asylum system (CEAS).



Article 6 — Right to liberty and security Article 6 of the Charter guarantees the rights of all to liberty and security of person. These rights correspond to those guaranteed in Article 5 ECHR. They mean in particular that a person’s liberty can be limited only under strict legal conditions. Legislation The proposal for a recast of the Dublin Regulation amends the EU rules determining which Member State is responsible for dealing with each asylum application. The proposed measures are geared to ensuring a sustainable sharing of responsibility across the EU and timely processing of applications, thereby facilitating access to international protection for those who are in need of it. In order to create a fairer system based on solidarity, a corrective allocation mechanism will automatically establish when a Member State is handling a disproportionate number of asylum applications. All further new applicants in that Member State will be allocated, after an admissibility verification of their application, to other Member States until the number of applications is back below the reference level. The new system will speed up transfers of asylum applicants between Member States. The detention for the purpose of transfers is now limited to four weeks (it was previously six). This ensures that the restriction to the right to liberty and security as protected by Article 6 of the Charter is kept to a necessary minimum. Case-law Several CJEU cases relating to the application of European arrest warrants clarified the scope of the right to liberty and security. In the JZ case, the Court had to decide in the context of a European arrest warrant whether restrictions on liberty of movement constituted a deprivation of liberty so that the period in question could be credited to a custodial sentence. It referred to ECtHR case-law regarding Article 5 ECHR, which corresponds to Article 6 of the Charter. It distinguished between restrictions and deprivation of liberty and concluded that measures such as a nine-hour night-time curfew, in conjunction with the monitoring of the person concerned by means of an electronic tag, an obligation to report to a police station at fixed times on a daily basis or several times a week, and a ban on applying for foreign travel documents were not so restrictive as to give rise to a deprivation of liberty comparable to that arising from imprisonment. In the Bob-Dogi Case, the CJEU clarified another aspect of the Council Framework Decision on the European arrest warrant. It ruled that a separate national arrest warrant must be issued before a European arrest warrant is issued and the person subject to proceedings must enjoy a dual level of protection for procedural rights and fundamental rights. Thus, in addition to the judicial protection provided when a European arrest warrant is issued, there must already be protection at the first level, at which a national arrest warrant is adopted. The J.N. Case concerned the detention of an asylum applicant for reasons of national security and public order. The Court reviewed the validity of Article 8(3)(e) of the Reception Conditions Directive in view of Article 6 of the Charter and found no grounds for calling its validity into question; in the Court’s opinion, its scope is sufficiently strictly circumscribed to meet the requirements of proportionality. The Court found that limits to the possible restriction of the right to liberty, as set out in Article 52(1) of the Charter, had been respected. It found that the detention measure provided for in the Directive genuinely met an objective of general interest recognised by the EU. It also considered that the EU legislation remained within the limits of what is appropriate and necessary in order to attain the legitimate objectives pursued, striking a fair balance between an asylum seeker’s right to liberty and requirements relating to the protection of national security and public order. Article 7 — Respect for private and family life Article 7 of the Charter guarantees the right of all to respect of their private and family life, and their home and communications. The right to private life includes the protection of privacy in relation to any information about a person. Where legislation, policy or case-law refer to this right in connection with the protection of personal data, this report will refer to them under Article 8 below. Legislation

In the area of family law, two legislative projects adopted in 2016 had a particular impact on the right to family life: ·the 30 June proposal for the recast of the Brussels IIa Regulation, notably regulating the relationship between parents and their children, which streamlined procedures for the crossborder enforcement of judgments, thereby enhancing the right to respect for private and family life; and ·the adoption on 24 June of two Regulations aimed at helping bi-national couples, whether in a marriage or a registered partnership, to manage their property on a daily basis and to divide it in the event of divorce or of one of them dying. The Regulations determine which Member State’s courts are competent to deal with matters concerning such a couple’s property (jurisdiction), which national law will apply to their property matters (applicable law) and how a decision on these matters issued in one Member State will be recognised and enforced in another. They will provide bi-national couples with legal certainty and reduce the costs of proceedings. As a couple’s property must be divided in the event of divorce or death, the Regulations will also facilitate the application of Union rules on cross-border divorces and successions. Both Regulations will apply as from 29 January 2019. Recent legislation in the field of asylum and migration has an impact on Article 7 of the Charter. As mentioned above, the proposal for a recast of the Dublin Regulation will amend the EU rules for determining which Member State is responsible for dealing with each asylum application. In particular, the right to family unity of asylum applicants on EU territory (covered by the right to respect of family life under Article 7) is proposed to be strengthened. Its scope is proposed to be extended to include the applicant’s siblings and families formed in transit countries. This reflects the reality of current migratory trends, according to which applicants often arrive in the territory of the Member States after a prolonged period of time in transit outside their country of origin. The proposal for a recast of the Eurodac Regulation lowers the age of taking fingerprints to 6 years old. The proposal positively contributes to the protection of the rights of the child and to respect of the right to respect for family life. Many applicants for international protection and nonEU nationals arriving irregularly in the EU travel with families, in many cases including very young children. Being able to identify and register these children is a key factor contributing to their protection. This will help identify children in cases where they are separated from their families and support a Member State’s efforts to trace any family or links they may have with another Member State. Establishing family links is a key element in restoring family unity. It will also help strengthen the protection of unaccompanied children who do not always seek international protection and who abscond from care institutions or child social services under which their care has been assigned. Their registration in the Eurodac system can help keeping track of them and prevent them from ending up in scenarios of exploitation. In June, the Commission adopted a proposal to reform the 2009 Blue Card Directive. The proposal aims to enhance intra-EU mobility by facilitating the procedures and allowing for shorter business trips (up to 90 days) within the Member States that apply the blue card. It strengthens the rights of both the cardholders (allowing for quicker access to long-term residence status, immediate and more flexible labourmarket access) and their family members (ensuring they can join the cardholder simultaneously). Accordingly, the initiative protects the right to respect for private and family life through facilitated provisions in relation to family reunification for highly skilled workers. Case law In Bogendorff von Wolffersdorff, the CJEU held that refusal by the German authorities to recognise freely chosen forenames and surname legally acquired by a dual German-UK national in the UK on grounds of public policy, as they included several tokens of nobility, constituted a restriction on the freedom to move and reside across the EU. However, this may be considered justified if necessary to preserve the principle of equal treatment before the law (Article 20 of the Charter). More specifically, the Court recalled that a person’s surname is a constituent element of his identity and of his private life, the protection of which is enshrined in Article 7 of the Charter. However, this right could be balanced with other legitimate interests. In this case, the German authorities’ refusal to recognise the name had been based on public policy grounds, namely the fact that titles of nobility had been abolished under German law. In the interest of equal treatment of all German nationals, the authorities refused to allow a reintroduction of such titles by use of the law of another Member State. The Court analysed this potential justification of restricting the freedom of movement (and thereby the restriction of Article 7) and accepted that the objective of observing the principle of equal treatment before the law in Germany is compatible with EU law, noting that the principle of equal treatment is enshrined in Article 20 of the Charter. Hence, it left it to the referring court to determine whether the restriction was necessary and proportionate in view of the public policy grounds that were cited. On 13 September 2016, the CJEU delivered judgments in two similar cases: ·In the CS case, the Court examined the expulsion to a non-EU country of a non-EU national who had been convicted of a criminal offence and who was the parent and primary carer of a young child holding citizenship of a Member State. The child was consequently an EU citizen and had also been resident in that Member State since birth. The Court held that the expulsion of the parent could deprive the child of the genuine enjoyment of the substance of his or her rights as an EU citizen, as he or she may de facto be compelled to go with the parent and therefore to leave EU territory. However, the Court also held that, in exceptional circumstances, a Member State may expel the person concerned on grounds of public policy or public security, even where this means that the child in question will have to leave EU territory, provided that such a decision is proportionate and takes account of the right to respect for private and family life (Article 7 of the Charter) and the obligation to take into consideration the child’s best interests (Article 24(2)). ·In Rendón Marín, the Court held that Article 20 TFEU does not permit a non-EU national who has sole care of EU citizens who are minors to be automatically refused a residence permit or to be expelled from EU territory on the sole ground that he has a criminal record, where that refusal has the consequence of requiring the children to leave EU territory. In its consideration, the Court pointed out that the assessment of the applicant’s situation must take account of the right to respect for private and family life (Article 7 of the Charter), which must be read in conjunction with the obligation to take into consideration the child’s best interests (Article 24(2)). Article 8 — Protection of personal data The fundamental right of all to the protection of personal data is explicitly recognised in Article 8 of the Charter and also enshrined in Article 16 TFEU. It entails protecting individuals’ freedom to decide how their own personal data are used. This right is gaining increasing importance in view of the explosion of the collection, use and distribution of personal data within our digital society. Legislation The year 2016 was pivotal for the promotion of the fundamental right to the protection of personal data and the related right to private life. The promotion and protection of both were at the centre of several EU legislative acts and international agreements. Strong data protection rules are necessary to rebuild the trust of individuals in how their personal data are being used. The final adoption of the data reform package in 2016 constitutes a key element of ensuring a high standard for the protection of personal data in the European Union. It includes the General Data Protection Regulation (GDPR) and the Data Protection Directive for Police and Criminal Justice Authorities. The package constitutes a comprehensive reform of EU legislation to strengthen privacy rights. It is a key building block of the digital single market. It includes: ·the new GDPR, which modernises the principles of Directive 95/46/EC, tailoring them for the digital age and harmonising data protection law in Europe. The GDPR, which entered into force on 24 May 2016 and will apply from 25 May 2018, will give citizens easier access to their own personal data, a right to data portability, a clarified ‘right to be forgotten’ and certain rights in the event of a personal data breach; and ·the Data Protection Directive for Police and Criminal Justice Authorities, which will allow Member States’ enforcement authorities to exchange information necessary for investigations more efficiently and effectively. It also ensures strong protection of personal data fully in line with the Charter. The Directive entered into force on 5 May 2016 and Member States have to transpose it into national law by 6 May 2018.

The consistent application of new legislation will be further strengthened by a new consistency mechanism. Following the adoption of the data reform package, substantial efforts were made to ensure the smooth introduction of the new legislation. The existing Article 29 Working Party is already working to prepare for application of the new acquis; it has adopted guidelines on certain important issues and laid the ground for the creation of a new European Data Protection Board. The Commission has also established an expert group of Member State representatives to exchange views and information on the implementation of the GDPR and the transposition of the Police and Criminal Justice Authorities Directive. At international level, data protection was strengthened through the adoption of the Commission’s EU-US Privacy Shield adequacy decision and the EU-US data protection ‘Umbrella Agreement’. The Commission took account of the fundamental rights to private life and protection of personal data in a number of other legislative proposals in 2016, particularly in the area of security: ·Full compliance with fundamental rights was the guiding principle in the Commission’s proposal (adopted on 5 July) to amend the Fourth Anti-money Laundering Directive. The proposed measures include provisions to respond adequately and reduce risks relating to financial crime, evolving terrorist threats and the need for increased transparency. While these measures are ultimately geared to protecting the financial system, they aim to offer all guarantees to balance the need for increased security with the need to protect fundamental rights, including the right to private life and the protection of personal data. ·The proposal for a Council Directive amending Directive 2011/16/EU as regards access to anti-money-laundering information by tax authorities (DAC5) took into account potential interference with fundamental rights. The impact of increased access to beneficial ownership information and the underlying customer due diligence procedures were analysed from the perspective of ensuring respect of Articles 7 (right to private and family life) and 8 (protection of personal data) of the Charter. The assessment concluded that, while the proposed measures could interfere with the fundamental rights to private life (including confidentiality of communications and the protection of privacy and of personal data), they are necessary and proportionate to ensure the proper functioning of the tax systems and the supervision of the proper fulfilment by all actors of their obligations. ·In January, the Commission presented a legislative proposal aiming to ensure that the criminal records of nonEU nationals would become as easily available to competent authorities as the criminal records of EU nationals. It was considered that it is more difficult conclusively to identify nonEU nationals than EU citizens, so there was a need to establish an obligation to store and exchange fingerprints for their identification. In the preparation of the proposal, particular attention was paid to the respect of data protection aspects, as guaranteed by Article 8 of the Charter. Since the system would interfere with these rights, the necessity and proportionality of that interference were carefully checked. ·Finally, the EU also adopted the EU Passenger Name Records Directive and the Directive on Security of Network and Information Systems. In addition, the Commission presented proposals for a European travel information and authorisation system (ETIAS), put forward an EU PNR implementation plan and proposed an action plan on the security of travel documents. Lastly, in order to enhance security at the external border, the Commission proposed an EU entry/exit system. All of these instruments were checked as to their compatibility with the fundamental right to the protection of personal data. In the area of migration, a European Border and Coast Guard was established by Regulation (EU) 2016/1624 on 14 September 2016. When processing personal data, the Agency will apply Regulation (EC) No 45/2001, which gives effect to the right to the protection of personal data. In addition, respect for fundamental rights will be guaranteed by the codes of conduct to be developed by the Agency, which will inter alia set common standardised procedures to assure return in a humane manner and in full respect of fundamental rights, including the right to the protection of personal data. To support the practical implementation of the reformed Dublin System, the Commission also proposed adapting and reinforcing the Eurodac system. The proposal for a recast Eurodac Regulation will extend its scope to allow Member States to store and search data belonging to all three categories of data, i.e. also third country-nationals apprehended in connection with the irregular crossing of an external border and those found illegally staying in the EU, so that they can be identified for return and readmission purposes. Immigration authorities will also be able to ascertain whether an illegally staying third-country national in a Member State has claimed asylum, or has entered the EU illegally at the external border. It will also allow Member States to store more personal data in Eurodac, such as names, dates of birth, nationalities, nationalities type and number of identity or travel document, and facial images of individuals. The aim is to allow immigration and asylum authorities to identify irregular nonEU nationals or asylum applicants without having to request the information from another Member State separately, as is currently the case. The proposal has been checked for full compliance with data protection rules, in accordance with Article 8 of the Charter. As regards the control of external borders, an agreement was reached in December on the proposal for a Regulation amending Regulation (EC) No 562/2006 , which reinforces checks against relevant databases at external borders (Schengen Borders Code. Following its entry into force, Member States will be obliged, when persons enjoying the right of free movement under Union law cross the external border, to carry out systematic checks against databases on lost and stolen documents and in order to verify that the persons do not represent a threat to public order and internal security. As the databases are consulted on the basis of a hit/no-hit system, the consultation is neither registered nor further processed and so respects the rights to respect of private and family life (Article 7) and to the protection of personal data (Article 8). On 21 December, the Commission adopted three proposals for Regulations amending the legislative basis for the SIS. These involve technical and operational improvements to the SIS to address issues identified in the Commission’s 2016 comprehensive evaluation of the system. They develop and improve the existing system, building on the effective safeguards already in place. As the system continues to process personal data (and it will process further categories of sensitive biometric data), there are potential impacts on individuals’ fundamental right to the protection of such data. Hence, additional safeguards have been put in place to limit the collection and further processing of data to what is strictly necessary and operationally required, and granting access to data only to those who have an operational need to process them. Clear data retention timeframes have been set out in the proposals and there is explicit recognition of and provision for individuals’ rights to access and rectify data relating to them and to request erasure in line with their fundamental rights. In addition, the proposals set out requirements for an alert to be deleted and introduce a proportionality assessment if an alert is being extended. They also establish extensive and robust safeguards for the use of biometric identifiers to avoid innocent persons being inconvenienced. Lastly, they require the endtoend security of the system, ensuring greater protection of the data stored in it. Other legislative instruments adopted in 2016 which had an impact on Articles 7 and 8 of the Charter are connected to information systems in the field of customs, energy, transport or fishery policy. The Commission took measures to implement Regulation (EU) 2015/1525. The Import, Export and Transit Directory (IET) collects information on movements of goods for customs purposes, including details of senders and recipients, which, although they usually refer to companies, may also help to identify natural persons. In its work on the IET, the Commission implemented specific and adequate data protection safeguards, which were acknowledged in a prior check by the European Data Protection Supervisor (EDPS). In the road transport sector, the Commission adopted (on 18 March) new specifications for the smart tachograph, making full use of advanced digital technologies such as the GALILEO and EGNOS satellite positioning systems in order to transmit data on driving time, speed and distance directly to road controllers when the vehicle is moving, thus avoiding unnecessary stops for hauliers and improving efficiency for controllers. The new smart tachograph is a breakthrough in the enforcement of road transport legislation. Data will be processed in accordance with EU legislation on the processing of personal data and the protection of privacy in the electronic communications sector. In the field of energy, certain impacts on Article 7 and 8 of the Charter were acknowledged in the proposal for a recast of the Electricity Directive, In particular, Article 20 of the recast Directive (smart metering functionalities) requires Member States to ensure the privacy and data protection of final customers. Article 23 (data management) sets out rules for entities that manage metering and consumption data and provides that access to such data should be possible only with the final customer’s consent. Annex III to the proposal requires the highest level of cybersecurity and data protection for energy consumers equipped with smart metering systems. The proposal for an amendment of the Energy Efficiency Directive provides that energy meters should be remotely readable. This will avoid the need for meter readers to go into people’s homes and so increase the respect of privacy. The Commission balanced the Union’s interests in guaranteeing transparency in the use of public money against the rights recognised by Article 8 of the Charter as regards the publishing of information about the recipients of state aid to the fishery and aquaculture sector. It decided that the requirement that Member States publish information about recipients on a comprehensive state aid website can be waived when individual aid awards do not exceed EUR 30 000. This threshold was included in the Guidelines for the examination of state aid to the fishery and aquaculture sector in 2015 and the Commission also referred to it in the Supplementary information sheet for state aid to the fishery and aquaculture sector in the Annex to Commission Regulation (EU) 2016/2105, which was adopted on 1 December 2016. Agreements and other instruments affecting international protection of fundamental rights

After having reached a political agreement with the United States in February 2016, the Commission adopted the EU-U.S. Privacy Shield adequacy decision with the support of the Member States in the Article 31 Committee, following an opinion of the Article 29 Working Party in July. It replaces the Commission’s 2000 Safe Harbour adequacy decision, which had been declared invalid by the CJEU in its ruling in the Max Schrems case in 2015. The Commission took into account the requirements set out in that ruling. The Privacy Shield framework became operational on 1 August 2016. It ensures the free flow of personal data for commercial purposes between the EU and US companies certified under the Privacy Shield, while ensuring the fundamental right to the protection of personal data as guaranteed by Article 8 of the Charter. It comprises a set of privacy principles and ensures oversight and enforcement of compliance by Privacy Shield companies, and redress in cases of individual complaints. As redress mechanism of last resort when other avenues (such as intervention by the EU data protection authorities, the US Department of Commerce or the Federal Trade Commission) have been exhausted, it provides for an arbitration mechanism that can be invoked by individuals. As regards possible access to personal data by the US authorities for national security purposes, the Commission relies on their explicit representations and assurances that there is no mass surveillance of Europeans and their data. Possible complaints will be handled by a new Ombudsperson, independent from the US intelligence services, a new mechanism specifically created for Privacy Shield. The Commission will monitor the proper functioning of the Privacy Shield and any legal developments in the United States. Relevant issues will be discussed with US officials on an ad hoc basis or as part of the annual joint review. In the Schrems judgment, the CJEU also clarified that national supervisory authorities remain competent to oversee the transfer of personal data to a nonEU country which has been the subject of a Commission adequacy decision and that the Commission has no competence to restrict their powers under Article 28 of Directive 95/46/EC. Accordingly, it invalidated the first subparagraph of Article 3(1) of the Safe Harbour Decision, which put restrictive conditions on the power of national supervisory authorities to suspend or ban data flows. As a consequence, the Commission adopted two ‘omnibus’ decisions on 16 December to amend the existing adequacy decisions and decisions on standard contractual clauses, which contained comparable restrictive provisions. The latter are now replaced with provisions limited to information requirements between Member States and the Commission when a national supervisory authority suspends or bans transfers to a nonEU country. The omnibus decision amending the existing adequacy decisions also introduces a requirement for the Commission to monitor relevant developments in the nonEU country which is the subject of the Commission adequacy decision. On 2 June, the EU and the United States formally signed the Umbrella Agreement. Rather than providing itself a basis for data transfers, the Agreement ensures a high level of data protection for any transfer of personal data (based on international agreements or Member States’ laws) between the EU and the USA in the context of police or judicial cooperation in criminal matters. President Obama signed a new law, the Judicial Redress Bill, to allow the Agreement to enter into force. The Bill extends to EU citizens the right to judicial redress in US courts. On 2 December, following consent from the European Parliament, the Council adopted the decision to conclude the Agreement. It entered into force on 1 February 2017. Policy Commission policy work touching on the right to the protection of personal data revolved mainly around new developments in the digital environment. On 30 November, the Commission adopted a European strategy on cooperative intelligent transport systems (C-ITS), a milestone on the road to cooperative, connected and automated mobility. This Strategy outlines steps allowing for commercial deployment, as of 2019, of vehicles that communicate with each other and with the EU road infrastructure. The protection of personal data and privacy will be essential for the successful deployment of cooperative, connected and automated vehicles, and to public acceptance of the system. Hence, the C-ITS strategy proposes action to safeguard this right while facilitating the deployment of C-ITS. EU spectrum policy enables citizens to access and distribute digital content and information of their choice. For example, policy initiatives to make available spectrum for wireless broadband services in recent years have led to the wider use of internet access, e.g. through smartphones and tablets. Legal safeguards set up by the Commission when it devised the architecture of the spectrum inventory take into consideration the right to the protection of personal data. The basic act contains clear protections for citizens against potential breaches of data privacy. In the field of the internet of things (IoT), the Commission adopted a set of comprehensive actions to strengthen the creation of a digital single market for IoT products and services. One of these relates to the creation of a trusted environment for IoT. One of the policy challenges to help the rollout of IoT is to build end-users’ trust, i.e. to strengthen security and end-to-end personal data protection and privacy. One possible solution identified by the Commission in its Communication on ICT standardisation priorities for the digital single market could be to develop a ‘trusted IoT’ label with information for consumers of IoT about the product’s level of security and privacy. The data protection and privacy aspects of the Charter must be covered in the context of cloud computing services through the application of data protection law. In 2016, the Commission supported the work of the Cloud Select Industry Group (C-SIG) to prepare a data protection code of conduct for cloud service providers, which is designed to provide users of cloud infrastructure, software or platform services with assurance that their data are being protected in accordance with the GDPR. The C-SIG code has also been used as a model for a more specific code of conduct for cloud infrastructure providers (CISPE). Case-law A number of CJEU cases produced further guidance on the right to the protection of personal data, sometimes in connection with the right to private life (as guaranteed in Article 7 of the Charter). In the joint cases of Tele2 Sverige AB/ Post-och telestyrelsen and Secretary of State for the Home Department/Tom Watson e.a, the CJEU interpreted national laws on data retention in the light of Articles 7 and 8 of the Charter and applicable EU law on the protection of personal data. Following earlier case-law, it examined national legislation in two Member States that required the general and indiscriminate retention of traffic and location data for all subscribers and registered users relating to all means of electronic communication. It considered that these laws breached the fundamental rights to a private life and protection of personal data as enshrined in Articles 7 and 8 of the Charter. Given their broad range and limited safeguards, it considered none of the restrictions to be justified, even where the objective was to fight serious crime. However, it pointed to the fact that such an objective may justify targeted retention of traffic and location data, provided that this is limited to what is strictly necessary with respect to the categories of data to be retained, the means of communication affected, the persons concerned and the retention period. It also clarified the requirements under which national competent authorities may access such retained data. In GS Media BV, the CJEU ruled on the posting of hyperlinks in the context of the fundamental right to freedom of expression as protected in Article 11 of the Charter. A media company had posted on its website a hyperlink directing viewers to various websites displaying photos of a Dutch celebrity taken by Playboy magazine. As the copyright holder had not authorised publication of the photos on these websites, the magazine’s editor claimed that the posting infringed copyrights. Nevertheless, the media company continued to make the hyperlinks available, or similar ones when some of the original ones became unavailable. In the light of the EU Copyright Directive, the Court ruled that any communication to the public of any work had to be authorised by the copyright holder. It held that the posting, without the copyright owner’s authorisation, of hyperlinks to works published on the websites in question did constitute ‘communication to the public’. It conceded that in individual cases it could be difficult for the person posting the link to assess whether there was an authorisation. In this context, a fair balance had to be struck between the copyright holder’s right and the right to freedom of expression of the person posting the link. However, where the person posting hyperlinks was or should have been aware of the copyright infringements, as in the case at hand, such action constituted ‘communication to the public’ without the copyright holder’s consent. In the Patrick Breyer case, the CJEU clarified the concept of personal data. A citizen had brought an action before the German courts seeking an injunction to prevent websites run by the federal German institutions that he consulted from registering and storing his IP addresses. According to the CJEU’s preliminary ruling, dynamic IP addresses registered by the operator of a website may be considered as personal data where the operator has the legal means to obtain further information to identify the person using the IP address from the internet service provider. The Court also stated that Member State legislation may not prevent website operators from collecting and using a visitors’ personal data without their consent for purposes other than facilitating and invoicing the specific use of services by that visitor. It pointed out that the processing of personal data is lawful, inter alia, if it is necessary to pursue a legitimate interest, such as preserving the general operability of a website. This includes protecting it against cyberattacks, provided that the interests or the fundamental rights and freedoms of the data subject do not override that objective. In a preliminary ruling in Verein für Konsumenteninformation v Amazon EU Sàrl, the CJEU clarified how jurisdiction on data protection is to be determined. The Austrian Consumers’ Association brought a case against an electronic commerce company established in Luxembourg, which inter alia addressed Austrian consumers via a website with a ‘.de’ domain name. The company had no registered office or establishment in Austria. The CJEU ruled that processing of personal data by such an undertaking may be governed by the law of the Member State to which it directs its activities, if it is shown that it carries out the processing in the context of the activities of an establishment situated in that Member State. In Oikonomopoulos, the General Court issued a judgment relating to the protection of personal data held by the European Anti-Fraud Office (OLAF). It confirmed that OLAF’s procedures respected the fundamental right to the protection of personal data and the rights of defence. Article 9 — Right to marry and right to found a family Article 9 of the Charter is based on Article 12 ECHR, which reads as follows:

‘Men and women of marriageable age have the right to marry and to found a family according to the national laws governing the exercising of this right.’ The wording has been updated to cover cases in which national legislation recognises arrangements other than marriage for founding a family. Article 9 neither prohibits nor imposes the granting of the status of marriage to unions between people of the same sex. This right is thus similar to that afforded by the ECHR, but its scope may be wider when national legislation so provides. Article 10 — Freedom of thought, conscience and religion The right guaranteed in Article 10(1) of the Charter corresponds to that in Article 9 ECHR and, in accordance with Article 52(3) of the Charter, has the same meaning and scope. It includes freedom to change religion or belief and freedom, either alone or in community with others and in public or private, to manifest religion or belief, in worship, teaching, practice and observance. The limitations must therefore respect Article 9(2) ECHR, which reads as follows: ‘Freedom to manifest one’s religion or beliefs shall be subject only to such limitations as are prescribed by law and are necessary in a democratic society in the interests of public safety, for the protection of public order, health or morals, or for the protection of the rights and freedoms of others.’ Article 10 (2) recognises the right to conscientious objection in accordance with national laws. Parliamentary questions In 2016, several parliamentary questions were raised on the killing of animals without prior stunning, on the Commission’s policy on ritual slaughter and on whether the Commission intends to promote stunning before slaughter. The Commission confirmed that Council Directive 98/58/EC on the protection of animals kept for farming purposes requires the Union to pay full regard to animal welfare requirements when formulating and implementing certain EU policies, while respecting, inter alia, religious rites. The Union also has to respect the freedom of religion and the right to practise it, as enshrined in Article 10 of the Charter. The Commission believes that the EU legislation properly reflects the balance between these two considerations. Other parliamentary questions concerned the impact of national prohibitions on wearing a full-face veil in public places on the right to manifest religion freely. The Commission noted that the EU has no competence to legislate on this matter and it is for each Member State to ensure that it fulfils its obligations on fundamental rights, as resulting from international agreements, the ECHR and its national constitution. Case-law In the context of ritual slaughter, a Belgian court asked the CJEU for a preliminary ruling on whether Article 4(4) of Council Regulation (EC) No 1099/2009 is compatible with the freedom of religion under Article 10 of the Charter. Article 4(4) contains an exception for animals subject to particular methods of slaughter prescribed by religious rites (without stunning the animals), provided that the slaughter takes place in a slaughterhouse. The referring court asked whether Article 4(4) was contrary to Article 9 ECHR and Article 10 of the Charter, insofar as they require religious slaughtering to take place only in a slaughterhouse, even if there is insufficient capacity in the Flemish Region to meet the annual demand for the ritual slaughter of unstunned animals on the occasion of the Islamic Festival of Sacrifice and converting temporary slaughter establishments into approved slaughterhouses would be too cumbersome. Data gathered by the EU Agency for Fundamental Rights In December 2016, FRA published a report on Antisemitism, providing an overview of data available in the EU for 2005-2015. The report shows that a lack of progress in data collection impedes the fight against Antisemitism. Nevertheless, where comprehensive data exist, they show that Antisemitism remains a serious concern which demands decisive and targeted responses. Article 11 — Freedom of expression and information The right to freedom of expression is guaranteed by Article 11(1) of the Charter and includes the freedom to hold opinions and to receive and impart information and ideas without interference by public authorities and regardless of borders. Article 11(2) ensures respect for freedom and pluralism of the media. In line with Article 52(3) of the Charter, the EU’s approach to this right and its limits takes inspiration from ECtHR case-law and is enshrined in the EU human rights guidelines on freedom of expression online and offline. The guidelines address a host of issues including the safety of journalists, the promotion of media freedom and pluralism, defamation laws, blasphemy laws and laws addressing incitement to racial hatred and violence. Legislation On 25 May, the Commission adopted a proposal seeking to bring the Audiovisual Media Services Directive (AVMSD) into line with changing market realities. It substantially strengthens the provisions on independence of regulators and reinforces the role of the European Regulators Group for Audiovisual Media Services (ERGA). It specifies requirements of independence on all national regulatory authorities for audiovisual media services, such as impartiality, adequate human and financial resources, adequate enforcement powers and transparent dismissal procedures. In January and April, ERGA issued statements expressing concerns as to the state of regulatory independence and media pluralism in Poland, Greece and Croatia.

One of the objectives of the proposal for a Directive on copyright in the digital single market is to foster a well-functioning copyright marketplace. The impact assessment concluded that the measures to protect press publications should have a positive impact on the freedom of expression and information as they are expected to foster the quality of journalistic content. The proposed rules on the use of protected content by services storing and giving access to user uploaded content could have a negative impact on the freedom of expression, but this is expected to be mitigated by measures obliging the services to put in place complaint and redress mechanisms for users in the event of dispute over the application of the new rules. Lastly, the proposal for a Regulation of the European Parliament and of the Council laying down rules on the exercise of copyright and related rights applicable to certain online transmissions of broadcasting organisations and retransmissions of television and radio programmes establishes mechanisms that will make it simpler and faster to clear rights for making television and radio programmes available online across borders and for retransmission of packages of channels via internet-based networks equivalent to cable. The proposal is expected to have a positive impact on the freedom of expression and information since it will increase the cross-border provision and receipt of TV and radio programmes that originate in other Member States. Policy In addition to its legislative proposals, the Commission adopted on 14 September a Communication on Promoting a fair, efficient and competitive European copyright-based economy in the digital single market. The Communication encourages inter alia the development of technical tools which will improve the dissemination of and access to protected content such as audiovisual works and of new models of financing, production and distribution of content in the single market. This is expected to have a positive impact on freedom of expression and cultural diversity. Held in Brussels on 17-18 November, the second Annual Colloquium on Fundamental Rights focused on ‘media pluralism and democracy’. First Vice-President Timmermans, Commissioner Oettinger and Commissioner Jourová led discussions with a wide range of experts on the key role that free and pluralist media, in particular digital media, play in democratic societies. The conclusions, including a number of action points, were published in December. On 25 May, the Commission adopted a Communication on online platforms indicating that it will further encourage coordinated EU-wide self-regulatory efforts by online platforms and regularly review the effectiveness and comprehensiveness of such voluntary efforts with a view to determining the possible need for additional measures and ensuring that the exercise of users’ fundamental rights is not limited. In May, the Commission selected projects following a call for proposals for a preparatory action in the field of violations of media freedom and pluralism, to be run or coordinated by the European Centre for Press and Media Freedom (ECPMF). The Mapping Media Freedom project identifies threats, violations and limitations faced by media workers in the EU’s Member States, accession candidate countries and potential candidates for EU membership and neighbouring countries. Under this project, the International Press Institute (IPI) aims to address the threat that the abuse of defamation laws, and criminal defamation laws in particular, poses to the public’s right to information in the EU and in candidate countries. The project thus strengthens media freedom and the free flow of news and of diverse viewpoints. The IPI’s work under this project allows it to devote greater attention to studying and counteracting civil lawsuits intended primarily to intimidate journalists into silence rather than honestly defend against damage to legitimate reputation rights. The IPI is particularly active in Turkey and Greece, where it leads efforts to improve the skills of journalists and media lawyers in defending press freedom rights against legal abuse, and extensively documents defamation cases brought against journalists or media companies and the resultant impact on the public’s right to be informed. The annual meeting of the EU Media Literacy Expert Group took place on 15 November in Brussels. The main discussion topics included coordination and synergies with other EU policies, bridges between the media industry and the education sector to develop and disseminate critical thinking tools, media literacy in the digital era and the European Audiovisual Observatory’s mapping of media literacy practices in the EU. Case-law In Case C-547/14 Philip Morris Brands SARL and Others, the CJEU was asked to rule on the interpretation and validity of the Tobacco Products Directive, inter alia on the basis that the rules on the labelling of unit packets, on outside packaging, and on tobacco products themselves infringed Article 11 of the Charter and the principle of proportionality. While it found that the limitations did constitute interference with the right to freedom of expression, it also found that, given the interest of human health protection in an area characterised by the proven harmfulness of tobacco consumption, the Directive did not fail to strike a fair balance between the requirements to protect the freedom of expression and information and to protect human health. Article 12 — Freedom of assembly and of association The right to freedom of peaceful assembly and to freedom of association at all levels, including political, trade union and civic matters, is protected in Article 12 of the Charter. It corresponds to Article 11 ECHR, but its scope is wider since it applies to all European levels. Also, unlike Article 11 ECHR, it specifically mentions the special contribution of political parties to expressing the citizens’ political will. This right is also based on Article 11 of the Community Charter of the Fundamental Social Rights of Workers. Article 13 — Freedom of the arts and sciences Article 13 of the Charter ensures that arts and scientific research are free of constraint. This does not mean that they cannot be restricted, but restrictions are subject to the strict conditions of Article 52(1) of the Charter. Policy On 14 September, the Commission adopted a set of legislative proposals to update the EU’s copyright rules, as set out in the digital single market strategy adopted on 6 May 2015. Of relevance for Article 13 of the Charter is the Proposal for a Directive on copyright in the digital single market, which contains various measures that have three different objectives: ·ensuring wider access to content across the EU and improving licensing practices;

·adapting exceptions and limitations to digital and cross-border environments; and ·fostering a well-functioning copyright marketplace. With regard to the first aim, the Commission ensured that the measures proposed, while having a limited impact on copyright as a property right, will have a positive impact on cultural diversity, the freedom of arts and sciences, and the right to education (specifically in the context of the measures relating to out-of-commerce works, as it is expected that more creative and learning material will be accessible). As regards exceptions and limitations, the proposed measures are expected to have a limited impact on copyright (except the measure on the preservation of cultural heritage, which has no tangible impact on fundamental rights). Through its research and innovation policy projects, the Commission furthers scientific research and ensures that other fundamental rights are respected in this context. In 2016, it continued to support the Fostering Human Rights Among European Policies (FRAME) large-scale collaborative research project funded under the EU’s Seventh Framework Programme (FP7), which focuses on the contribution of the EU’s internal and external policies to the promotion of human rights worldwide. Article 14 — Right to education The right to education and access to vocational and continuing training is enshrined in Article 14 of the Charter. It is based on the common constitutional traditions of Member States and Article 2 of the Protocol to the ECHR. In 2016, education was at the forefront of the Commission’s response to the growing economic and social inequalities in the EU, the challenges brought about by the massive arrival of refugees and the problems linked to radicalisation in certain Member States. Legislation The right to education was mainstreamed in particular in the EU’s response to the asylum crisis. The Commission proposal for a recast of the Reception Conditions Directive, aimed at ensuring adequate reception standards for all asylum applicants throughout the Union, obliges Member States to treat applicants who have been granted access to the labour market in the same way as their own nationals with regard inter alia to education and vocational training. Similarly, the Commission proposal for a revision of the Directive on the conditions of entry and residence of third-country nationals for the purposes of highly skilled employment (blue card) upholds highly skilled workers’ rights to equal treatment, in particular as regards access to education and vocational training. The recast Students and Researchers Directive was adopted in May 2016. It establishes the conditions of nonEU nationals’ entry and residence for the purposes of research, study, training, voluntary service, pupil exchange schemes or educational projects, and au pairing. Member States have until 23 May 2018 to transpose the Directive into national law. Another area in which the right to education was mainstreamed was the digital agenda. The Commission’s proposal for a Directive of the European Parliament and of the Council on copyright in the digital single market aims to have a positive impact on the right to education, specifically in the context of measures relating to out-of-commerce works, as more creative and learning material will be accessible. Policy Education policies are instrumental in addressing inequalities, fostering inclusion and tolerance, and promoting the common values of democracy, fundamental rights and the rule of law. In 2016, the Erasmus+ programme (2014-2020) focused on the promotion of fundamental values and the social inclusion of young people by funding educational and youth activities. It also provided support for mobility periods abroad and for language learning, thereby fostering multicultural skills. In June, the Commission adopted a Communication on a "New Skills Agenda for Europe" which underlines the strategic importance of skills for sustaining jobs, growth and competitiveness. It covers areas such as skills development, mutual recognition of qualifications, support for vocational education and training and higher education, and ways of exploring the full potential of the digital economy, in order to promote lifelong investment in people. It inter alia also proposes a ‘skills guarantee’ to further combat exclusion and inequality. As a follow-up the Council adopted the Upskilling Pathways initiative which helps adults acquire a minimum level of literacy, numeracy and digital skills, on 19 December. The preliminary outline of the European Pillar of Social Rights published in March 2016 proposes a principle regarding skills, education and lifelong learning focused on the access to quality education and training throughout the life course and on the encouragement of skills upgrading. In the European Semester exercise (the EU’s annual cycle of economic policy coordination), the Commission made specific recommendations to four Member States (Austria, Bulgaria, the Czech Republic and Hungary) to improve social inclusion in education, hence promoting the right to education. A specific reference to the inclusion of the Roma in mainstream education was made for three Member States (the Czech Republic, Hungary and Slovakia). In January, the European Parliament highlighted the importance of education in fundamental values in a Resolution on fostering mutual respect, integrity, cultural diversity, social inclusion and cohesion. It repeated this message in its 23 June Resolution on the follow-up of the strategic framework for European cooperation in education and training (ET 2020), in which it called for greater inclusiveness.

These messages were echoed by the Council in its 24 February Resolution on promoting socioeconomic development and inclusiveness in the EU through education, which underlines that education and training should be a key element in a comprehensive European approach aimed at fostering ‘upward social convergence’ and inclusiveness. As a follow-up to the 2016 Colloquium on Fundamental Rights on media pluralism and democracy, the Commission undertook to reinforce its policy action on media literacy so as to empower citizens to be more active and critical, in particular on online platforms. Funding will be made available with the support of the European Parliament. On 7 June, in response to the challenges posed by migration, the Commission adopted an EU action plan on the integration of third-country nationals. This provides a comprehensive framework to support Member States’ efforts to develop and strengthen their integration policies, and sets out the concrete measures the Commission will be taking in this regard. Education, including action to promote language training, the participation of migrant children in early childhood education and care, teacher training and civic education, features prominently. In its efforts to respond to the wave of terrorist attacks in EU countries, the Commission adopted a Communication underlining the importance of education as the best safety net against social exclusion, which for some can be a factor in radicalisation. One of the key actions was to channel EUR 400 million in 2016 through Erasmus+ to transnational partnerships to develop innovative policy approaches and practices at grass-roots level, prioritising the social inclusion of young people and the promotion of fundamental values through the funding of educational and youth activities. As a follow-up, the Council adopted conclusions in November agreeing that education and training represent powerful means of promoting common values, for example through human rights and citizenship education, educational programmes with a focus on learning from the past and an inclusive learning environment, fostering participation, social mobility and inclusion, thereby laying stronger foundations for society and democratic life. Article 15 — Freedom to choose an occupation and right to engage in work Article 15(1) of the Charter protects the right to engage in work and to pursue a freely chosen or accepted occupation. Legislation On 22 November, the Commission adopted a proposal for a Directive on preventive restructuring frameworks, second chance and measures to increase the efficiency of restructuring, insolvency and discharge procedures. A key objective of the initiative is to ensure that viable businesses in financial difficulty can avoid insolvency and liquidation, and thus preserve their employees’ jobs by staying in business. It is expected that a significant proportion of the 1.7 million jobs lost to insolvency every year will be saved. Also, it is estimated that offering a true second chance to entrepreneurs to restart business activities would create three million jobs across Europe. The proposal takes into account the fundamental rights set out in the Charter and takes up the policy options enhancing such rights. It will have a positive impact on rights under Article 15, in particular the right to engage in gainful employment. In June, the Commission adopted a proposal to reform the 2009 Blue Card Directive. The proposal is aimed at improving the EU’s ability to attract and retain highly skilled nonEU nationals, since demographic patterns suggest that, even with the more skilled EU workforce the new skills agenda aims to develop, there will still be a need to attract additional talent in the future. The proposal establishes a single EU-wide scheme, replacing parallel national schemes for the purpose of highly skilled employment to provide more clarity for applicants and employers, and make the scheme more visible and competitive. It is aimed at enhancing intra-EU mobility by facilitating procedures and allowing for shorter business trips (up to 90 days) within the Member States that apply the blue card. It allows for a lower salary threshold by creating a flexible range within which Member States can adjust the threshold to their labour markets and provides for more appropriate conditions for recent nonEU graduates and workers in areas with a labour shortage. Under the new blue card scheme, highly skilled beneficiaries of international protection will be able to apply for a card. The proposal strengthens the rights of both the cardholders (allowing for quicker access to long-term residence status, immediate and more flexible labourmarket access) and their family members (ensuring they can accompany the cardholder). It should thus make the EU a more attractive destination for the highly skilled employees the EU economy needs. This initiative is fully consistent with the Charter and enhances some of the rights enshrined in it. In particular, it contributes to delivering the right to engage in work and to pursue a freely chosen or accepted occupation (Article 15(1)). It is also fully consistent with the rights relating to working conditions (Article 15(3)) and the rights of workers (Articles 27 to 36), as it upholds the rights to equal treatment for highly skilled workers as regards working conditions and access to social security, education and vocational training, and goods and services. Article 16 — Freedom to conduct a business Article 16 of the Charter recognises the freedom to conduct a business in accordance with Union law and national laws and practices. EU action in policy areas where measures could interfere in operators’ economic activity is frequently assessed for its impact on this freedom. Legislation The Commission’s proposal for a Directive on preventive restructuring frameworks, second chance and measures to increase the efficiency of restructuring, insolvency and discharge procedures (see above) will have a positive impact on the freedom to conduct a business, since: ·the availability of an effective restructuring framework will allow viable companies to continue operating instead of being driven towards liquidation; and ·the second chance framework will allow honest over-indebted entrepreneurs to resume their business activities within a period of time considered optimal taking into account the creditors’ right to property. Case-law

In Case C-134/15, Lidl GmbH & Co. KG v Freistaat Sachsen, the CJEU was asked whether Article 5(4)(b) of Commission Regulation (EC) No 543/2008 on marketing standards for poultry meat (which requires the indication of the total price and the price per weight unit on the pre-packaging or on a label for fresh poultry meat) was compatible with the freedom to conduct a business. While the Court found that the rules could limit the freedom to conduct a business, this limitation was justified and proportionate given that they ensured consumer information in the poultry meat sector so as to contribute to improving the quality of the meat and facilitating its sale in the interest of producers and traders. In Case C201/15 AGET Iraklis, the CJEU decided that the mere fact that a Member State requires that collective redundancies be first notified to a national authority, which has the power to oppose them on the basis of the protection of workers and of employment, is an unjustified limitation of the freedom to conduct a business. If the authority’s assessment was based on very general and imprecise criteria, such as the ‘situation of the undertaking’ and the ‘conditions in the labour market’ in the case at stake, without any reference in the law to the specific objective circumstances in which its powers are to be exercised, the legislation would fail to comply with the principle of proportionality laid down in Article 52(1) of the Charter and, therefore, with Article 16. Article 17 — Right to property Article 17 of the Charter protects the right of all to property, which includes the right to own, use, and dispose of lawfully acquired possessions. The Charter also guarantees the protection of intellectual property. Legislation As mentioned above, on 24 June 2016 the Council adopted two Regulations aimed at helping international couples, whether in a marriage or a registered partnership, to manage their property on a daily basis and to divide it in the event of divorce or of one of them dying. The Regulations determine which Member State’s courts are competent to deal with matters concerning the property of an international couple (jurisdiction), which national law will apply to the property matters of an international couple (applicable law) and how a decision on these matters issued in one Member State will be recognised and enforced in another. They will provide international couples with legal certainty and reduce the costs of proceedings. The impact assessment accompanying the Commission’s proposals for a Directive on copyright in the digital single market and a Regulation on the exercise of copyright and related