EUROPEAN COMMISSION Brussels, 4.6.2018 SWD(2018) 304 final COMMISSION STAFF WORKING DOCUMENT Staff Working Document on the Application of the EU Charter of Fundamental Rights in 2017 Accompanying the document Report from the Commission to the European Parliament, the Council, the European Economic and Social Committee and the Committee of the Regions 2017 Report on the Application of the EU Charter of Fundamental Rights

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Introduction Following the entry into force of the EU Charter of Fundamental Rights (‘the Charter’) in December 2009, the European Commission (‘the Commission’) adopted a strategy on the effective implementation of the Charter . The strategy sets as an objective that the EU should be beyond reproach in upholding fundamental rights, in particular when it legislates. The Commission also undertook to preparing annual reports to inform citizens and measure progress on the implementation of the Charter. They are intended to serve as a factual basis for ongoing dialogue between all EU institutions and Member States. This Staff Working Document accompanying the report for 2017, informs the public about situations in which they can rely on the Charter and on the role of the EU in fundamental rights. In covering all of the Charter provisions, the Commission’s annual reports aim to track where progress is being made, where further efforts are still needed and where new concerns are arising. The Staff Working Document includes action taken by the EU institutions and analysis of letters and petitions from the public and questions from the European Parliament. In addition, it covers major developments on the jurisprudence of the Court of Justice of the European Union (‘the CJEU), and provides information on the case law 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 EU, 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 depends 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 neither a judicial body nor a court of appeal against the decisions of national courts. It does not as a matter of principle, examine the merits of an individual case, unless this is relevant to its role of ensuring that the Member States apply EU law correctly. In particular, if it detects a wider, e.g. structural, problem, it can first approach the national authorities in order to have them address the issue, or it may start an infringement procedure and ultimately take a Member State before 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 that 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 fundamental rights obligations are respected. Member States have extensive national rules on fundamental rights, which are upheld by national, including in many Member States, constitutional courts. Accordingly, any 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 application before the European Court of Human Rights (ECtHR) in Strasbourg for a violation of a right guaranteed by the Convention. All Member States are bound by the commitments they have made under the Convention, independently of their obligations under EU law. The ECtHR has designed an admissibility checklist to help potential applicants assess for themselves whether there may be obstacles to it examining their applications . The interpretation of the rights laid down in the Charter which reflect the rights guaranteed by the Convention must correspond to the interpretation of the Convention by the ECtHR. EU accession to the European Convention of Human Rights The Treaty of Lisbon requires that the EU accede to the Convention. EU accession to the Convention remains a priority for the Commission. Accession 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, that 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. In its capacity as EU negotiator, the Commission continues to consult with the relevant Council working party on solutions to address the objections raised by the Court and is making good progress. Overview of letters and questions to the Commission on fundamental rights In 2017, the Commission received 1 935 letters from the public and 781 questions from the European Parliament on fundamental rights issues. Of the 411 petitions it received from the European Parliament, 61 concerned fundamental rights . Among the letters from the public, 781 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 the national data protection authorities). Among the questions from the European Parliament, 282 concerned issues within EU competence. Among the 61 petitions on fundamental rights, 30 concerned issues within EU competence. In a number of cases, the Commission contacted the Member States to obtain clarification on alleged violations. The Commission’s 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 increased from 43 in 2011 to 87 in 2012 and further to 113 in 2013 to 210 in 2014. Following a decrease to 167 in 2015, the number increased again to 221 in 2016, only to then fall slightly to 195 in 2017. Overall this reflects a tendency by the EU courts to quote the Charter in their decisions (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 2017, 44 contained a reference to the Charter, as compared to 60 in 2016 (See Appendix II for an overview). Source: European Commission References to the Charter in CJEU and national court decisions Articles of the Charter referred to prominently in cases before the EU courts were those on the right to an effective remedy, the right to good administration, non-discrimination and the right to property. Source: European Commission Note: The basis for this pie chart is the case law referred to in Appendix I. The total number of judgments analysed was 195 and several of them mentioned more than one article of the Charter. For the purpose of the pie chart, for each judgment one most relevant article was chosen, and percentages were calculated on that basis. The category ‘Other rights’ refers to all rights for which the percentage amounts to less than 5 %, i.e. fewer than 10 references.



On decisions by national courts in 2017, 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 the analysed court decisions in 2017 Note: Based on 68 court decisions analysed by the EU Agency for Fundamental Rights. These were issued in 27 Member States in 2017. Up to three decisions were reported per Member State; no decision was reported for Sweden. For every case only the predominant policy area was taken into account. The category ‘Other policy areas’ includes policy areas that were referred to in fewer than three court decisions. The categories used in the graph above are based on the subject matters used by EUR-Lex.

Source: FRA, 2017



Overview of enquiries with the Europe Direct Contact Centres The data collected by the Europe Direct Contact Centres (EDCCs) confirm a high degree of interest among citizens on justice, citizenship and fundamental rights. In 2017, the EDCCs replied to 7 761 enquiries from citizens. Most concerned topics such as the status of family members of EU citizens and their right of residence, protection of consumers economic and legal interests and free movement of persons. Source: European Commission Methodology and structure The staff working document accompanying 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 2017. Consequently, it refers to the Charter as a legally binding instrument and/or a policy objective, depending on the policy areas concerned. The accounts given in the different chapters of the report vary depending on the progress made in specific policy areas, such as migration, asylum, digital single market, the European Energy Union, and reflect the 10 policy areas identified as priorities by Commission 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 case law. Others contain little of either and/or may concentrate on policy rather than legislative measures. To illustrate the growing impact of the Charter, the staff working document (in the margins of the page where relevant) includes national court decisions that refer to the Charter, irrespective of whether EU law is applicable to those national cases. Some measures and cases may relate to different articles of the Charter. While a measure and/or case are explained in more detail under the heading of one article, it may also be referred to in another. The structure of the staff working document reflects the six headings of the Charter itself: (i) Dignity, (ii) Freedoms, (iii) Equality, (iv) Solidarity, (v) Citizens’ rights and (vi) Justice. All six chapters contains the following information on the application of the Charter: ·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 2017 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 2017 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 on infringement procedures launched by the Commission against Member States for failure to correctly implement relevant legislation; ·questions and petitions from the European Parliament and letters from the public received in 2017 focusing on key fundamental rights issues; and ·data gathered by the EU Agency for Fundamental Rights in 2017.



Title I Dignity Effective protection of human dignity continues to be a major concern in particular in the area of migration. The Commission closely monitored during 2017 the creation of a complaint mechanism to monitor and ensure respect for fundamental rights in the activities carried out by the European Border and Coast Guard Agency. The Court of Justice of the EU ruled in the case C-578/16 C.K and others on whether a transfer of an asylum seeker to the Member State designated under the Dublin III Regulation as responsible to examine their application should be prevented when there is a risk of inhuman or degrading treatment for the applicant concerned by that transfer. 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, but also part of the essence of all other rights. Therefore it must be respected when any other rights are restricted. All subsequent rights and freedoms on dignity, such as the right to life and the prohibition of torture and slavery, add specific protection against violations of dignity. They must be equally upheld in order to protect other rights and freedoms in the Charter, for example the freedom of expression and the 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 The need to ensure effective protection of human dignity guided the Commission’s negotiations during 2017 on the status agreements with Serbia, Albania and the Former Yugoslav Republic of Macedonia for the deployment of European Border and Coast Guard (EBCG) teams with executive powers onto the territory of those third countries . The draft agreements include an explicit clause for the respect of fundamental rights and freedoms by EBCG teams in the performance of their tasks. This includes human dignity as well as other relevant fundamental rights such as the right to respect for private life and personal data . They also provide for a complaint mechanism to deal with allegations of fundamental rights breaches. The process of creating a complaint mechanism to monitor and ensure the respect for fundamental rights in the activities carried out by the European Border and Coast Guard Agency was also monitored by the Commission during 2017 . NATIONAL CASE LAW Outside the scope of application of EU law, the Charter was used by national courts to strengthen protection provided by their national Constitutions. In particular, the Consititutional Court of Croatia clarified the implication of their accession to the EU on fundamental rights. In a case concerning the violation of the right to dignity (Article 1) where a twelve year old boy was searched by a security guard under suspicion of theft in a shop, the Constitutional Court went beyond referrring to the scope of EU law by affirming that ‘by joining the European Union, the Republic of Croatia has accepted the contents of the Charter, whose Chapter I is titled Dignity [ …]. In this way, by committing to the contents of the Charter, human dignity becomes a component of the human rights catalogue of the Croatian Constitution’ . Article 2 — Right to life According to Article 2 of the Charter everyone has the right to life and no one should be condemned to the death penalty or executed. The European Court of Human Rights has ruled since 1989 that the exposure to the pervasive and growing fear of execution — the so called ‘death row phenomenon’ — was in violation of the European Convention on Human Rights. The ECtHR has also held that the implementation of the death penalty could be considered inhuman and degrading and therefore contrary to Article 3 of the European Convention on Human Rights . Preventing loss of lives is also one of the main challenges of the EU in managing irregular migration. Policy Continued efforts have been made by the Commission to implement the actions taken under the European Agenda on Migration that was adopted in 2015. The Commission reported regularly on the action being undertaken during 2017 , including in a mid-term review that was published on 27 September 2017 . This includes actions taken on the protection of the right to life, in particular, support provided to the Italian and Greek rescue operations as well as the European Border and Coast Guard’s Triton and Poseidon operations and Operation Sophia, which contributed to saving more than 620 000 lives in the Mediterranean Sea. While every life lost remains one too many, an improvement in the situation was reported by the International Organisation for Migration, whose ‘Missing migrants’ project reported 3 116 deaths in the Mediterranean in 2017, the lowest figures for the last two years (compared to 3 785 in 2015 and 5 143 in 2016) .

Preventing the loss of lives also continued to be one of the main objectives in the implementation of the EU-Turkey Statement of 18 March 2016 , which the Commission has been closely monitoring and regularly reporting on . This international agreement, as a temporary and extraordinary measure designed to put an end to the unsustainable humanitarian crisis created by the cycle of uncontrolled flows of migrants and to the human suffering exploited by the smugglers led, from the first weeks of its operation, to a sharp decrease of irregular arrivals and the loss of life, while at the same time opening up the legal channel of resettlement for those in need of protection. Case law The compatibility of the EU-Turkey Statement with fundamental rights, including the right to protection from refoulement , was raised before the Court in an action for annullment in case NF, NG and NM v European Council . The case was dismissed, however, because the international agreement was concluded by the Member States and not the EU . Article 3 — Right to the integrity of the person The right to physical and mental integrity protects people from infringements by public authorities and requires authorities to promote such protection, e.g. through specific legislation. In medicine and biology, in particular the free and informed consent of the person concerned and the prohibition of eugenic practices, on making human body and its parts a source of financial gain and of the reproductive cloning of human beings must be respected. Application by Member States Issues on the respect and protection by law enforcement authorities of the right to the integrity of the person were the object of a number of parliamentary questions and complaints addressed to the Commission, which drew attention to allegations of violence exercised by the police in the Member States or the lack of protection by the police against violence and threats. The Commission recalled the obligation upon national authorities to investigate any such instances, in order to ensure respect for fundamental rights as enshrined in national constitutions and derive from international human rights instruments to which Member States are parties. National authorities are obliged to do this when exercising their exclusive competence to maintain law and order and safeguard internal security in their country in line with applicable national legislation (Article 72 of the Treaty for the Functioning of the European Union (TFEU)). The Commission also received a number of complaints alledging that smart metering systems promoted in EU legislation was incompatible with the right to the integrity of the person. The Commission considered that smart metering systems do not present a risk to health linked to the exposure to radio frequency electromagnetic radiation. The Commission pointed to evidence showing that low-energy radio frequency waves generated by smart meters (only for short periods each day to transmit information) would only make minor contributions to the total background radiation level inside a home which is negligible compared with accepted safety limits . The Commission also recalled that smart meter systems remain subject to strict national and EU product safety legislation, which require manufacturers to ensure the safety of all products they place on the market. Article 4 — Prohibition of torture and inhuman or degrading treatment or punishment Article 4 of the Charter prohibits torture and inhuman or degrading treatment or punishment. Complying with Article 4 requires authorities to be particularly vigilant where border controls, immigration and asylum is concerned. Policy The Commission monitored and took stock during 2017 of the progress achieved and the work that still needed to be done to ensure that a fully operational and equipped European Border and Coast Guard Agency is in place. The Commission published five reports on the workings of the Agency , focusing on five main priority areas, including creating the complaint mechanism and ensuring the respect for fundamental rights in the activities carried out by the Agency . Case law Of particular relevance is the ruling of the CJEU in the case C.K and others on whether a transfer of an asylum seeker to the Member State designated under the Dublin III Regulation as responsible for examining their application should be prevented when there is a risk of inhuman or degrading treatment for the applicant concerned by that transfer. The Court held that Article 4 of the Charter must be interpreted as meaning that even where there are no substantial grounds for believing that there are systemic flaws in the Member State responsible for examining the application for asylum under Article 3(2) of the Regulation, the transfer of an asylum seeker as provided by the Regulation can only take place if it is excluded that that transfer might cause a real and proven risk that the person concerned could suffer inhuman or degrading treatment. According to the Court, a transfer of an asylum seeker who has a serious mental or physical illness would constitute inhuman and degrading treatment if the transfer would result in a real and proven risk of significant and permanent deterioration in the state of their health. In such situation, the authorities of the transferring Member State, and if necessary its courts, need to take all the necessary precautions to ensure that the transfer takes place in conditions enabling appropriate and sufficient protection of that person’s state of health. If those precautions are not sufficient, the authorities of the Member States concerned should suspend the execution of the transfer of that person until their condition improves. The Court further clarified that where the state of health of the asylum seeker concerned is not expected to improve in the short term, or that the suspension of the procedure for a long period would risk worsening the condition of that person, the requesting Member State may conduct its own examination of that person’s application by invoking the ‘discretionary clause’ laid down in Article 17(1) of the Dublin III Regulation. Article 5 — Prohibition of slavery and forced labour Slavery violates human dignity. Article 5(3) of the Charter prohibits trafficking in human beings. Slavery and forced labour are also 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’) .

Policy The Commission, responding to calls by civil society, the European Parliament, the Council, Member States and other stakeholders, adopted on 4 December 2017 a Communication on ‘Reporting on the follow-up to the EU strategy towards the eradication of trafficking in human beings and identifying further concrete actions’ . The priorities of the strategy are: ·to disrupt the business model and untangle the trafficking chain; ·to provide better access to and fulfill the rights for victims; and ·to bolster a coordinated and consolidated response, both within and outside the EU. In addition, collecting information and improving understanding of this complex issue needs to continue, as well as providing appropriate funding in support of anti-trafficking initiatives and projects. The Communication supports the implementation of the Anti-trafficking Directive and its integrated, holistic, human rights-based, gender specific and child sensitive approach in addressing trafficking in human beings. The Communication was presented on 5 December 2017 to the 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, organised with the Estonian Presidency of the Council . The Commission has encouraged making use of the EU Civil Society e-Platform, which would enable better engagement with the Commission and exchange information on actions against trafficking in human beings . On 17 January 2017 the final evaluation report on the Implementation of the Eurojust Action Plan against trafficking in human beings 2012-2016 was published. Following Europol’s Serious and Organised Crime Threat Assessment in the EU , the Council decided to continue the EU policy cycle for organised and serious international crime in 2018-2021 , which identifies trafficking in human beings as a priority. The Commission published in 2017 an overview on EU anti-trafficking actions for 2012-2016 . On 18 October 2017, the EU Anti-trafficking day, European Commissioner Avramopoulos in charge of migration, home affairs and citizenship, called for stronger action to fight trafficking in human beings . The day was preceded by an exhibition as part of a campaign ‘Hear their voices. Act to protect’, at the European Economic and Social Committee in cooperation with the United Nations Office on Drugs and Crime . Addressing trafficking in human beings also continued to feature as a funding priority of the EU both in migration and security based on a victim-centred approach and taking into account the gender specific and child sensitive nature of the EU framework. Further in research financial support was earmarked for new methods to prevent, investigate and mitigate trafficking of human beings and child sexual exploitation and on the protection of victims under the Horizon 2020 work programme 2018-2020 priority ‘Secure societies - protecting freedom and security of Europe and its citizens’ . Issues related to human trafficking continue to be raised, in particular with connection to migration (the Central Mediterranean route and the situation in non-EU countries such as Libya and Egypt) and the specific risks facing children (including unaccompanied) but also in connection to exploitation and abuse of both EU citizens and non-EU nationals. The Commission replied to the 19 written questions received on this issue from Members of the European Parliament. Application by Member States In the context of the EU cohesion policy, a Member State was contacted by a Commission department on a possible violation of the prohibition of slavery and forced labour in a project co-financed by the European Structural and Investment Funds (ESI). National authorities were requested to investigate the alleged employment of forced workers from North Korea after several companies, including those that had received co-financing from ESI Funds, were accused by the press of forcibly employing workers of North Korean origin. During 2017 national authorities provided information to the Commision according to which there had been no identified breach of EU labour law and the Charter in that case. That said, the National Labour Inspectorate was also conducting further checks on other companies that were beneficiaries of ESI funds. In late 2015 and 2016 several reports emerged on cases of alleged abuses and forced labour of migrant fishers in the EU fishing industry. Following these reports various measures were adopted by the Member State concerned to rectify the situation, including the creation of a dedicated task force and a new recruitment-scheme for non-EEA workers. Despite these efforts, various international and national public and private bodies, including the Council of Europe, have continued to find shortcomings in the protection of migrant workers in the fisheries sector throughout 2017. The Commission has closely monitored developments since they first emerged. It has repeatedly called on the Member State concerned to solve the remaining problems as quickly as possible in order to ensure compliance with applicable EU law, in particular, rules on trafficking in human beings and labour exploitation and continues to do so.



Title II

Freedoms Following the adoption of the EU-US Privacy Shield Adequacy Decision in July 2016, the Commission conducted the first annual review of its application in 2017. The outcome of the review is contained in a Report to the European Parliament and the Council on the first annual review of the functioning of the EU-U.S. Privacy Shield, which also proposes a number of specific recommendations to the U.S. authorities. The proposal for a Regulation on a framework for the free flow of non-personal data in the EU, adopted by the Commission on 13 September 2017 aims at contributing to eliminating and preventing unjustified or disproportionate barriers to using and providing data services (such as cloud services and configuring in-house IT systems). The Security of Gas Supply Regulation adopted on 25 October 2017 introduced for the first time a solidarity mechanism between Member States. This mechanism is designed to address extreme situations in which gas supply, as priority basic need, is at stake in a Member State. The Commission adopted a Communication on Tackling Illegal Content Online on 28 September 2017. The Communication states that the fight against illegal content online must be carried out with proper and robust safeguards to ensure protection of the different fundamental rights at stake. In the last quarter of 2017, the Commission launched its initiative on fake news and the spread of disinformation online, as called for in a 15 June 2017 Resolution of the European Parliament and announced by President Juncker in his 13 September 2017 State of the Union address. Policy and legislative developments were registered in 2017 in asylum and migration, including in the context of negotiations on the reform of the Common European Asylum System as well as the progress made in relocation and resettlement policy. The Court issued several judgments providing guidance to the Member States on the validity and interpretation of the EU asylum and migration acquis, in particular in detaining migrants. Issues related to the respect of the right to freedom of association were also raised in 2017 including developments at national level touching on the role and functioning of civil society organisations.



Article 6 — Right to liberty and security The rights of all to liberty and security correspond to those guaranteed in Article 5 of the Convention. They mean that a person’s liberty can be limited only under strict legal conditions. Case law The CJEU issued a number of judgments on the detention of migrants. In K . the Court considered the right to liberty versus the administrative detention of asylum seekers provided under the Reception Conditions Directive . The question asked by the referring Dutch court concerned the detention of an asylum seeker in order to determine their identity or nationality; or in order to determine those elements on which the application for international protection is based and which could not be obtained in the absence of detention, in particular when there is a risk of abscondment . The Court analysed the relevant provisions in light of the standards set in Article 6 of the Charter read in conjunction with Article 52(1) and (3) . It found no elements that would affect the validity of the relevant provisions of the Directive. According to the Court, these provisions struck a fair balance between the asylum seeker’s right to liberty and, the requirements on the identification of that asylum seeker or of their nationality, or to determine the elements on which their application is based. According to the Court, the administrative detention of an asylum seeker based on these grounds serves to allow the assessment of whether the asylum seeker satisfies the conditions to qualify for such protection, which is necessary for the proper functioning of the Common European Asylum System − an objective of general interest recognised by the EU. At the same time, the Court stressed that all the conditions for applying such a measure and the guarantees set out in Articles 8 and 9 of the Directive must be respected and that national authorities must always determine, on a case-by-case basis, whether detention measures are proportionate to the aims pursued. This implies that administrative detention is used only as a last resort and for as short a period as possible. In Khir the Court clarified the relevant provisions of the Dublin III Regulation on the maximum periods of detention pending the transfer of an asylum seeker. The Court held that national legislation may provide for detention of an asylum seeker for international protection for no longer than two months when the requested Member State has accepted to take charge of the request. In that situation, the duration of the detention must not go beyond what is necessary for the purposes of that transfer procedure. This is to be assessed on a case-by-case basis. Where applicable, the duration of the detention must not to longer than six weeks from the date when the appeal or review ceases to have suspensive effect. In Al Chodor , on the detention of an asylum seeker at significant risk of absconding under the Dublin III Regulation, the Court clarified that the objective criteria according to which a person subject to a Dublin transfer procedure is deemed to be at risk of absconding must be defined by the provisions of a binding act of general application. According to the Court, case law of competent courts and established administrative practice of the border police are not sufficient, and in the absence of such a definition ‘by law’ of such criteria, detention is to be regarded as unlawful. Article 7 — Respect for private and family life Article 7 of the Charter guarantees the right of all to respect for private and family life, home and communications.

The right to private life includes the protection of privacy in relation to personal information. 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 On 12 December 2017, the Commission adopted legislative proposals establishing a framework for interoperability between EU information systems, as a further step to improve information exchange to improve external border control and to enhance internal security in full compliance with fundamental rights. Interoperability has the potential of having an indirect positive impact on the right to private life, and in particular the right to one’s identity, as it can help to avoid incorrect identifications. Given the personal data involved, interoperability will have an impact on the right to the protection of personal data, which is closely linked to respect for private and family life enshrined by Article 7 of the Charter . The Commission will evaluate the instruments, including assessing the results against the objectives and their impact on fundamental rights. Case law In Chavez Vilchez the CJEU further clarified its jurisprudence in the Zambrano case. The case concerned the conditions linked to the right of residence in the EU of a non-EU national parent whose child is an EU citizen in a situation in which the child would otherwise be compelled to leave the EU and therefore be deprived of benefiting from the rights of EU citizenship. The judgment explained the assessment that needs to be carried out to determine whether the child would be compelled to leave the EU and the factors that need to be taken into consideration in that assessement: ·which parent is the primary carer of the child; ·whether there is a relationship of dependency between the child and the non-EU national parent taking into account the age, and physical and emotional development of the child; ·the extent of the child’s emotional ties to each parent; and ·the risks that separation from the non-EU national parent might entail for the child’s equilibrium. The Court stated that, as part of that assessment, competent authorities must take account of the right to respect for family life and the best interests of the child (Article 7 read in conjunction with Article 24(2) of the Charter). Article 8 — Protection of personal data The fundamental right of all to the protection of personal data is explicitly stated in Article 8 of the Charter and also enshrined in Article 16 of the Treaty on the Functioning of the EU (‘TFEU’). According to this right, personal data must be processed fairly, for specified purposes and on the basis of the consent of the person concerned or some other legitimate basis laid down by law. The data protection reform package — which entered into force in May 2016 and will apply from May 2018 — will ensure that the rights of data subjects can be effectively protected in times of rapid technological developments. Legislation Following the adoption of the data protection reform package in 2016 , the Commission worked closely in 2017 with the Member States to accompany them in the process of adapting or repealing their existing laws, as necessary, and to turn the new legislation into national law by May 2018. The Commission set up an Expert Group with representatives from the Member States, which met regularly in 2017 to exchange views and information on the implementation of the General Data Protection Regulation (‘GDPR’) and on turning the Data Protection Directive for police and criminal justice authorities into national law. Moreover, the Commission supported the work of the national data protection authorities, which play a key role in ensuring the coherent interpretation and enforcement of the new rules. The Article 29 Working Party adopted guidelines for companies and other stakeholders on certain key provisions of the GDPR . In collaboration with the Commission, the Working Party also devoted much of its work to setting up a new EU body: the European Data Protection Board whose main task will be to ensure the consistent application of the GDPR. As announced in the letter of intent following President Juncker’s State of the Union speech on 13 September 2017, the Commission prepared guidance to businesses and organisations (particularly targeted towards SMEs) processing personal data and for individuals to explain the new rules that would apply from May 2018. The guidance takes the form of a practical online toolkit and was published on 28 January 2018. It waspromoted through an information campaign and dissemination activities in all Member States, targeting businesses and the public. Over the past year, the Commission organised a number of events to reach out to stakeholders on the GDPR, for instance with representatives of the health sector and of SMEs.

The Commission is also supporting awareness-raising and compliance efforts at national level by awarding grants that can be used to provide training to data protection authorities, public administrations, legal professions and data protection officers to familiarise them with the GDPR. The Commission also published a restricted call for proposals to support awareness-raising activities carried out by data protection authorities at national level and aimed at individuals and SMEs. The Commission set up a multi-stakeholder group on the GDPR to get the views of businesses and civil society, practitioners and academics on certain issues related to this legislation, in particular on how to achieve an appropriate level of awareness among stakeholders. Along with the reinforced protection provided by the data protection reform package within the EU, the Commission also aims to ensure a high level of data protection at international level in the context of the global information society. Openness for international data flows and ensuring the highest level of protection for individuals need to go hand in hand to ensure trust. The Communication on Exchanging and Protecting Personal Data in a Globalised World , published on 10 January 2017, sets out the Commission strategy to ensure that when the personal data of Europeans are transferred abroad, the level of protection ensured by the EU is also recognised by the country receiving the data’. Taking advantage of the new rules for cross-border data transfers provided by the data protection reform package, shapes the lines for future action that the Commission is going to take in seeking gradual global coming together of data protection principles and standards across the world. Following the adoption of the EU-US privacy shield adequacy decision in July 2016, the Commission conducted in September 2017 in Washington, D.C. the first annual review of its application. The positive outcome of the review and specific recommendations to the US authorities to ensure the continued successful functioning of the Privacy Shield Framework were then considered in a Report to the European Parliament and the Council on the first annual review of the functioning of the EU-US privacy shield . The EU-US Data Protection ‘Umbrella Agreement’ , which 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 US in police or judicial cooperation in criminal matters, entered into force on 1 February 2017 . The Commission took account of the fundamental rights to private life and protection of personal data in a number of other policy areas in 2017.In the digital area, the new legislative proposal on the respect for private life and the protection of personal data in electronic communications and repealing Directive 2002/58/EC — Regulation on Privacy and Electronic Communications — was adopted on 10 January 2017. The proposal aims to increase the level of protection of privacy and personal data processed and make it more effective in relation to electronic communications in line with Articles 7 and 8 of the Charter and to ensure greater legal certainty. The proposal complements the GDPR. Effective protection of the confidentiality of communications is essential for exercising the freedom of expression and information and freedom of thought, conscience and religion . On 13 September 2017, the Commission adopted a new cybersecurity package . Cybersecurity has an essential role in protecting the privacy and personal data of individuals: in case of cyber incidents, the privacy and the protection of our personal data are clearly exposed. By aiming to reinforce cybersecurity in the EU, the proposal complements legislation protecting the fundamental right to privacy and personal data. In migration, the Schengen Borders Code entered into force on 7 April 2017. Member States are obliged to carry out systematic checks against relevant databases on individuals enjoying the right of free movement when they cross the external border. The databases contain data on lost and stolen documents used to check that those individuals do not represent a threat to public order and internal security. Since the consultation of databases functions on a hit/no-hit basis, the mere consultation is neither registered nor further processed, thereby guaranteeing the right to respect private and family life and to the right to the protection of personal data. On 20 December 2017, the Commission adopted eight Recommendations for a Council Decision authorising the opening of negotiations for agreements between the EU and the People’s Democratic Republic of Algeria, the Arab Republic of Egypt, the State of Israel, the Hashemite Kingdom of Jordan, the Lebanese Republic, the Kingdom of Morocco, Tunisia and the Republic of Turkey respectively on the exchange of personal data between the EU Agency for Law Enforcement Cooperation (Europol) and, respectively, the Algerian, Egyptian, Israeli, Jordanian, Lebanese, Moroccan, Tunisian and Turkish competent authorities for fighting serious crime and terrorism. The purpose of these international agreements is to provide a legal basis for the transfer of personal data between Europol and the respective competent authorities in the non-EU country, adducing adequate safeguards for the protection of privacy and fundamental rights and freedoms of individuals . The previously mentioned Commission proposals to establish a framework for interoperability between EU information systems are based on the principles of data protection by design and by default and include all appropriate provisions limiting data processing to what is necessary for the specific purpose, and granting data access only to those entities that ‘need to know’. Data retention periods are appropriate and limited and access to data is reserved exclusively for authorised staff of the Member State authorities or EU bodies that are competent for the specific purposes of each information system and limited to the extent that the data are required for the performance of tasks for these purposes. In fisheries, three instruments have been adopted in 2017 in full compliance with the EU rules on the protection of personal data: 1) Implementing Regulation on the Union fishing fleet register ; 2) Regulation on a Union framework for the collection, management and use of fisheries data ; and 3) Regulation on the sustainable management of the external fishing fleet . All of these instruments require that any data handling must be carried out in line with the EU legislation on the protection of personal data. Furthermore, in all relevant cases appropriate safeguards, such as a higher level of aggregation or anonymisation of data, should be put in place if data includes information relating to identified or identifiable natural persons, taking into consideration the purposes of processing, the nature of the data and the potential risks relating to the processing of personal data. To comply with the relevant EU rules on data protection, these three Regulations require that at all times and at all levels the obligations on personal data protection are respected. In taxation, a political agreement was reached in the Council on 13 March 2018 to adopt the Commission’s proposal for a Council Directive for mandatory automatic exchange of information on reportable cross-border arrangements . The proposal provides that any processing of personal data carried out within the framework of the Directive must comply with the EU data protection legislation and with the principles recognised by the Charter. The proposal is in line with the principle of proportionality with regard to its purpose, in particular since it will be limited to schemes of a cross-border dimension that fulfil certain indications of aggressive tax planning (‘hallmarks’). Another measure proposed by the Commission that could trigger new exchange and joint processing of existing VAT information, which could include personal data is the proposal for a Council Regulation as regards measures to strengthen administrative cooperation in the field of value added tax . Therefore data collection will be strictly targeted and restricted to operators alledgedly involved in fraudulent transactions. The data will be stored only for the time needed for analysis and investigations by national tax authorities empowered to enforce VAT obligations. They will be used solely to identify suspected fraudsters at an early stage and to put an end to fraudulent networks whose purpose is to abuse the VAT system by perpetrating VAT fraud. They will be accessed and used only by authorised staff. Policy The protection of personal data has been central in several policies related to the digital environment. The commitment of the Commission to guarantee data protection and privacy aspects of the Charter in the context of cloud computing services through the application of data protection law continued in 2017. Since September 2012, the Commission has been working with industry to agree on a code of conduct for cloud service providers to support a uniform application of personal data protection rules. The code would provide users of cloud infrastructure, software or platform services with the assurance that their data are being protected in line with the GDPR .

The joint work with industry was carried out in the context of the Cloud Select Industry Group (C-SIG) . The C-SIG code has also been used as a model for a more specific code of conduct for cloud infrastructure providers (CISPE) . Since then, the two codes have been discussed with data arotection authorities (through the Article 29 Working Party), who made suggestions for improvements. At the C-SIG meeting in February 2017, the code of conduct was handed over to a non-profit organisation (Scope Europe), where the code continues to be further developed and disseminated. SCOPE Europe established governance rules and promotes the widespread adoption of the code by cloud service providers. Both codes of conduct need to be further developed in line with the feedback of the Article 29 Working Party and to make them fully compliant with GDPR requirements. In the Internet of things, the recently proposed Cybersecurity Package mentioned under ‘legislation’ is putting forward the instruments that would enable the development of the Internet of things certification and potential labels or marks. Moreover, in January 2017 the Communication on ‘ Building a European Data Economy ’ assessed whether the current EU legal rules for product liability are fit for purpose, when damages occur in the context of the use of the Inernet of things and autonomous systems. In May 2017 the Commission announced in the Digital Single Market mid-term review that it will consider the possible need to adapt the current legal framework to take account of new technological developments, particularly from the angle of civil law liability and taking into account the results of the ongoing evaluation of the Product Liability Directive and the Machinery Directive . Under the Research and Innovation Programme Horizon 2020, several initiatives co-funded by the EU during 2017 are of particular relevance for the rights enshrined in Article 8 (and 7) of the Charter. In particular, six ongoing projects addressing privacy have been funded for a total EU contribution of EUR 19.5 million. They aim at empowering individuals in managing their privacy as a response to the need for privacy in a highly connected world where personal information becomes an increasingly valuable commoditiy. To this end, the Privacy Flag and Operando projects are developing tools to enable individuals to check whether their rights as data subjects are being respected, and tools and services to help companies comply with personal data protection requirements. The project VisiOn will provide clear visualisation of privacy preferences, relevant threats and trust issues along with an insight into the economic value of user data. The TYPES project will provide tools that should enable the end user to configure the privacy settings so that only the information they consent to is collected by online advertising platforms and to detect information collection occurring without consent and to identify the offender. The PANORAMIX project will develop a European infrastructure for secure communications with the capability to delete meta-data information while at the same time having suitable accountability features. And particularly in the context of the cloud, project SafeCloud will ensure that data transmission, storage, and processing can be separated into multiple administrative domains that are unlikely to collude, so that sensitive data can be protected by design. Under Horizon 2020, the Commission called for more proposals addressing privacy and the protection of personal data , with a total estimated EU contribution of additional EUR 19.6 million. The new projects from this 2017 call are expected to start by April 2018. Case law In the case of Mr Manni , the CJEU provided an important interpretation of the storage limitation principle (Article 6(1)(e) of the Directive 95/46/EC, also referred to in Article 5(1)(e) of the GDPR). According to this principle, personal data must be ‘kept (…) no longer than is necessary for the purposes for which the data were collected or for which they are further processed’. In this case, an individual brought an action before the Italian court seeking to erase, anonymise or block the personal data processed by a rating company linking him to the liquidation of a company. Mr Manni also requested the court to grant him compensation for the damage he had suffered. The Court considered that there is no ‘right to be forgotten’ for personal data in company registers. However, in exceptional cases, Member States may grant restricted access to such data by third parties once a sufficiently long period has passed following the dissolution of the company concerned. According to the Court, the mere fact that the properties did not sell because potential buyers had access to the personal data of Mr Manni held in the companies register could not justify a limitation of access by third parties to that data, given the legitimate interest of those buyers in obtaining that data. Another important interpretation of the data protection legislation was provided by the CJEU following a preliminary ruling in the Nowak case . The preliminary question related to the possibility to request access to exam papers based on the data protection legislation. The Court ruled that the written answers submitted by a exam candidate and any written comments made by an examiner constitute personal data, within the meaning of the data protection legislation. Therefore, the rights of data subjects, such as the right of access can be exercised in such cases. In Tele2 (Netherlands) BV , the Court ruled that telephone subscriber’s consent to the publication of their personal data also covers its use in another EU Member State, since the highly harmonised EU regulatory framework makes it possible to ensure the same level of protection for subscribers’ personal data. In its Opinion 1/15 of 26 July 2017, the Court concluded that the envisaged agreement between the EU and Canada on the transfer of passenger name record data (PNR) may not be concluded in its current form. While the Court stated that the systematic transfer, retention and use of all air passenger data may be justified to ensure public security in the context of the fight against terrorist offences and serious cross-border crime as an objective of general interest. The Court also found that several provisions of the envisaged agreement were not in line with the fundamental rights to privacy and to personal data protection enshrined in the Charter, in particular in terms of their proportionality and the clarity and precision of the rules laid down and due to the lack of justification for the transfer, processing and retention of sensitive data. The Opinion also sets out detailed conditions which, if adequately fulfilled, would make the agreement compatible with the fundamental rights recognised by the EU. In particular, the Court considered that the agreement should exclude the transfer of sensitive data from the EU to Canada and the use and retention of that data. Moreover, the retention of PNR data after the air passengers’ departure needs to be justified by the existence of risks affecting public security. It also makes the disclosure of data to non-EU authorities conditional to specific conditions. Finally, the oversight of the rules concerning the protection of air passengers’ personal data by an independent supervisory authority has to be guaranteed. The Commission will resume negotiations with Canada in accordance with a new mandate to meet the Court’s requirements. NATIONAL CASE LAW BOX In checking the compliance of Member States’ legislation implementing EU law, Article 8 of the Charter served as parameter in two cases related to the right of data protection. The Supreme Administrative Court of Finland assessed the compatibility of the Personal Data Act of 1999 with the Charter and the European Convention on Human Rights in a case on the storage of fingerprints data in the passport register. The national court found that the restriction on the right to a private life and the protection of personal data are precise and defined in sufficient detail and therefore not contrary to the Charter . The Higher Administrative Court in Germany checked the compatibility of the German Telecommunication Act, implementing the e-Privacy Directive 2002/58/EC with the Charter. In that case, the national court found the limitation on the freedom to conduct business (Article 16 of the Charter) was unjustified and therefore incompatible with the Charter . Article 9 — Right to marry and right to found a family

Article 9 of the Charter is based on Article 12 of the European Convention on Human Rights, which states that: ‘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 Convention, but its scope may be wider when national legislation allows. Case law An interesting reference for a preliminary ruling was submitted by the Constitutional Court of Romania to the CJEU on the free movement of persons . The question raised the issue of whether the same-sex spouse of an EU citizen having exercised his freedom of movement, must be granted a right of permanent residence as the ‘spouse’ of that EU citizen in a Member State which does not recognise same-sex marriage. Following the hearing in November 2017, the Advocate-General delivered his Opinion on 11 January 2018, where he clarified that the legal issue at the centre of the dispute is not that of the legalisation of same-sex marriage, but that of the free movement of EU citizens: while Member States are free to allow marriage between people of the same sex in their domestic legal system or not, they must fulfil their obligations under the freedom of movement of EU citizens. Article 10 — Freedom of thought, conscience and religion The right guaranteed in Article 10 (1) of the Charter corresponds to the right guaranteed in Article 9 of the European Convention on Human Rights. The right 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. Article 10 (2) recognises the right to conscientious objection, in line with national laws. Case law In 2017 the CJEU issued two important judgments in the area of non-discrimination on the grounds of religion in employment, regarding two cases where Muslim women were dismissed by their employers because of their wish to wear an Islamic headscarf at work . In Achbita and Bougnaoui the Court clarified for the first time the interpretation of the relevant provisions under the Employment Equality Directive . It interpreted the notion of ‘religion’ covering also the freedom of persons to manifest their religious beliefs in public, explicitly referring to the Convention (Article 9) and the Charter (Article 10 (1)). The Court recognised that, under specific conditions, an internal rule of a private undertaking which prohibits the visible wearing of any political, philosophical or religious sign can be compatible with EU law. Parliamentary questions In 2017, several questions were raised by the Members of the European Parliament on the safety of Jews in Europe and what action the Commission was taking to combat antisemitism. The Commission replied that it has boosted the political will to fight antisemitism through different means. A coordinator to combat antisemitism was appointed in 2015 to liaise with Member States and civil society and funding was made available to support civil society and Member States. In particular, funding had been provided for projects to increase awareness about our common history, particularly the Holocaust remembrance. The Fundamental Rights Agency also provides data and assists EU institutions and national governments in taking the necessary measures to ensure that the rights of Jews are fully respected and protected across the EU. The annual EU-Israel seminar on combating racism, xenophobia and antisemitism also deepens international efforts to eradicate antismitism. Data gathered by the EU Agency for Fundamental Rights (FRA) In 2017 the Agency published the second report on EU Minorities and Discrimination Survey (EU-MIDIS II) Muslims . The report is based on data collected from a survey of around 26 000 people with immigrant or ethnic minority backgrounds living in the EU. It examines the experiences of more than 10 500 people surveyed who identified as Muslims in 15 EU Member States. In addition to discrimination — including police stops based on ethnic background — it explores issues ranging from citizenship, trust and tolerance, harassment, violence and hate crime, to rights awareness. It provides a unique insight into the experiences and perceptions of the EU’s second largest religious group, representing about 4 % of the EU’s total population. Taken together, the survey findings and the recommendations can provide a good basis to support the effectiveness of a wide range of measures in integration and non-discrimination, as well as internal security policy. 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 share information and ideas without interference by public authorities and regardless of frontiers. 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 ensuring this right is inspired by the case law of the European Court of Human Rights. Legislation Negotiations continued in the Council and the European Parliament during 2017 on the Commission legislative proposal amending the Audiovisual Media Services Directive which aims at strengthening the provisions on independence of regulators and reinforces the role of the European Regulators Group’s for Audiovisual Media Services. Negotiations also continued on the Directive of the European Parliament and of the Council on copyright in the Digital Single Market which contains provisions on measures aiming at protecting press publications which are expected to have a positive impact on the freedom of expression and information as they are expected to foster the quality of journalistic content. Discussions also continued in the Council and the European Parliament on 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 which 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 which originate in other Member States.

Policy The Commission adopted a Communication on Tackling Illegal Content Online on 28 September 2017 . It states that ‘the fight against illegal online content must be carried out with proper and robust safeguards to ensure protection of the different fundamental rights at stake’. Prior to the adoption of this Communication, the Commission had carried out an extensive stakeholder consultation, including several workshops to gather information from digital platforms, civil rights organisations and academia . One of the workshops which took place on 12 June 2017 was on digital platforms and fundamental rights. The Commission has been involved as observers and followed-up closely the Council of Europe recommendation on the roles and responsibilities of internet intermediaries to ensure policy coherence in this area. The Commission has consistently stressed that fundamental rights must be fully respected. In the last quarter of 2017, the Commission launched its initiative on fake news and the spread of disinformation online , as called for in a 15 June 2017 Resolution of the European Parliament and announced by Commission President Juncker in his 13 September 2017 State of the Union letter . The Commission has carried out several multi-stakeholder consultations in support of the initiative including a multi-stakeholder conference and a Member States workshop aimed at obtaining input from the competent national authorities as well as the private-sector, including online platforms, media outlets, academics and civil society organisations. The initiative was also discussed in the Media Literacy Expert Group in its meeting on 14 December 2017 . Views from other interested parties on the initiative were collected through a public consultation launched on 13 November 2017 and a High Level Expert Group has been convened to advise on policy initiatives . While it is primarily the responsibility of Member States to ensure media freedom and pluralism, the Commission is aware of challenges in the Member States and is taking a number of measures. To this end, the Commission funds — further to the initiative of the European Parliament — a number of independent projects in media freedom and pluralism, including the Index on Censorship, which monitors violations, threats and limitations to media freedom within the ‘Mapping Media Freedom Project’ . Building on the crowd-sourced platform, it provides assistance to journalists and disseminates knowledge about media freedom in Europe. Another EU-financed project is the Media Pluralism Monitor, which is designed to identify potential risks to media pluralism in Member States. It is run independently by the Centre for Media Pluralism and Media Freedom at the European University Institute. The results of the 2016 Media Pluralism Monitor (published in 2017) show that none of the featured countries are free from risks to media pluralism . Article 12 — Freedom of assembly and of association

The right to freedom of peaceful assembly and to freedom of association at all levels in particular in political, trade union and civic matters is protected in Article 12 of the Charter and corresponds to Article 11 of the European Convention on Human Rights. Its scope, however, is wider since it applies to all European levels. Furthermore unlike Article 11 of the Convention, it specifically mentions the important contribution of political parties to the expressing the political will of the people. This right is also based on Article 11 of the Community Charter of the Fundamental Social Rights of Workers. Application by Member States Issues related to the respect of the right to freedom of association have been raised during 2017 on the reported pressure facing civil society organisations in a number of Member States, such as funding cuts, burdensome regulatory frameworks and smear campaigns affecting public perceptions on the credibility and legitimacy of civil society organisations . Against this background, the Commission has continuously stressed that civil society is the very fabric of democratic societies, empowering and invigorating communities and a prerequisite for healthy democracies and sound policy-making. In this context, the Commission has monitored developments at national level touching upon the role and functions of civil society organisations against Member States’ obligations under the Treaties and the Charter. This led to a decision by the Commission to refer Hungary to the CJEU on 7 December 2017 for adopting the law imposing reporting and transparency obligations for foreign-funded civil society organisations which the Commission found to be incompatible with the right to freedom of association, as well as the right to protection for private life and personal data , read in conjunction with Treaty obligations on the free movement of capital. 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 restrictions of the former are not possible, but that they are only possible under the strict conditions provided in Article 52 (1) of the Charter . Article 14 — Right to education The right to education and access to vocational 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 No 1 to the European Convention on Human Rights. In 2017, education remained high on the agenda as a means to combat inequalities and promote our common values based on the Paris Declaration on promoting citizenship and the common values of freedom, tolerance and non-discrimination through education, adopted by EU Education Ministers and Commissioner Navracsics on 17 March 2015 . Legislation The proposal for a Directive on copyright in the Digital Single Market and the proposal for a Regulation 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, adopted on 14 September 2016, were discussed with the Council and the European Parliament in 2017 . On 30 May, the Commission adopted the proposal for a Regulation of the European Parliament and of the Council laying down the legal framework of the European Solidarity Corps , which aims to enhance the engagement of young people (from the age of 17 upwards) and organisations in accessible and high quality solidarity activities as a means to contribute to strengthening cohesion and solidarity in Europe, supporting communities and responding to societal challenges. On 5 October, the Commission adopted a proposal for a Council Recommendation on the European Framework for Quality and Effective Apprenticeships. This initiative is part of the New skills agenda for Europe and ties in with the European pillar of social rights , which envisages a right to quality and inclusive education, training and life-long learning. The Commission has identified 14 key criteria that Member States and stakeholders should use to develop quality apprenticeships that are meaningful. This initiative should help increase the employability and personal development of apprentices and contribute towards a highly skilled and qualified workforce responsive to labour market needs.

Policy On 17 February 2017, the Council adopted conclusions on inclusion in diversity to achieve high quality education for all . These conclusions emphasised the need for inclusive high-quality education available and accessible to all learners of all ages, including those facing challenges and regardless of sex, racial or ethnic origin, religion or belief, disability, age or sexual orientation. The conclusions call also on the Commission to build on the work of the Agency in promoting mutual respect, non-discrimination, fundamental freedoms and solidarity throughout the EU. On 23 May 2017, the Council adopted conclusions on sport as a platform for social inclusion through volunteering . These conclusions stress the role volunteering in sport can play to create inclusive communities and to help integrate groups at risk of marginalisation including people with disabilities. On 14 November 2017 the Commission adopted a Communication on ‘Strengthening European Identity through Education and Culture’ as a contribution to the informal EU summit in Gothenburg, Sweden, on 17 November which discussed the future of education and culture. The Commission outlined the potential of education and culture as drivers for job creation, economic growth and social fairness as well as a means to experience European identity in all its diversity. The Communication sets out the vision of a European Education Area, building on the New Skills Agenda for Europe and investing in Europe’s youth initiatives. On 30 May 2017, the Commission presented its new strategy to support high quality, inclusive and future-oriented school and higher education . The initiatives outlined the EU’s support to help Member States and education providers take the steps needed to improve opportunities for all young people in Europe, helping to build fair and resilient societies. In the Communication on school development and excellent teaching for a great start in life the Commission identifies areas where action is urgently needed and how EU support can help EU countries address the current challenges. Based on evidence from Member States, the communication highlights three priority areas: 1. raising the quality and inclusiveness of schools; 2. supporting excellent teachers and school leaders; and 3. improving the governance of school education systems. The renewed EU agenda for higher education identifies four main goals for higher education in the EU: 1. making sure higher education equips graduates with the right skills for today’s economy; 2. building inclusive higher education systems; 3. bridging the innovation gap between higher education, research and business; and 4. ensuring different parts of higher education systems work together effectively and efficiently. The Erasmus+ programme (2014-2020) focused on social inclusion of young people and the promotion of fundamental values through the funding of educational and youth activities, such as the European Solidarity Corps. The Erasmus Programme celebrated its 30th anniversary throughout 2017, marked with various events organised across Europe highlighting the substantial impact the Erasmus programme had on young Europeans. Parliamentary questions The Commission received a question from a Member of the European Parliament on whether a Spanish law establishing the unavailability of appropriations in the budget of the Autonomous Community of Catalonia for 2017, thus blocking the agriculture and fisheries programmes, is against the exercise of the fundamental right to vocational training in agriculture and fisheries, in accordance with the Charter. The Commission responded on 1 December 2017 by stating that it does not intervene on issues that fall under Member States’ authorities powers at national or regional level. Application by Member States The Commission launched an infringement proceeding against Hungary whose rules governing higher education institutions were found to be incompatible with the rights to education, academic freedom (Article 13) and the freedom to conduct a business (Article 16), read in conjunction with the freedom for higher education institutions to provide services and establish themselves anywhere in the EU and with the EU’s legal obligations under international trade law. Following a letter of formal notice and a reasoned opinion, the Commission found that its concerns were not sufficiently addressed and therefore referred the case to the CJEU in December 2017 . 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 26 July 2017, the Council agreed on the mandate for negotiations on a draft Directive covering entry and residence conditions for highly skilled non-EU country national workers (EU Blue Card Directive) adopted by the Commission in June 2016 . Based on this mandate, the Council Presidency started negotiations with the European Parliament. The Commission’s proposal for reviewing the EU Blue Card Directive aims at making working in the EU more attractive to highly skilled workers from non-EU countries. The proposal also aims to improve possibilities for move between jobs in the same Member State and between Member States. It would replace the existing EU Blue Card Directive, harmonising further conditions of entry and residence and improving the situation of highly skilled workers who come to the EU. This initiative is consistent with the Charter in particular the right to respect for private and family life — through provisions on family reunification for highly skilled workers — and the right to engage in work and to freely pursue an occupation. It is also consistent with the rights related to working conditions of non-EU nationals and the rights of workers laid down under Articles 27 to 36. The Commission’s proposal aims at ensuring equal treatment for highly skilled workers on working conditions, access to social security, to education and vocational training as well access to goods and services. Compatibility with the right to an effective remedy and fair trial is ensured as the current provisions in the EU Blue Card on the right to appeal in case the application is rejected, as well as to be notified the grounds for rejection, are maintained. NATIONAL CASE LAW BOX The Constitutional Court of Bulgaria referred to the Charter in the context of a constitutional review of a provision in the Judiciary Act which prohibits judges and prosecutors to be discharged from their duties by resigning when a disciplinary proceeding is still pending. The Constitutional Court not only concluded that the provision violated the Bulgarian Constitution, but referred to Article 15 of the Charter, which enshrines the right of freedom of work, ‘in accordance to which everyone has the right to engage in work and to pursue a freely chosen or accepted occupation’ . Article 16 — Freedom to conduct a business Article 16 of the Charter recognises the freedom to conduct a business in accordance with EU law and national laws and practices. EU measures that could interfere with businesses economic activity are frequently assessed by the courts for their impact on this freedom. Legislation On 18 October 2017 the Commission adopted an Interpretative Communication on the acquisition of Farmland and EU law which aims to provide guidance on how land sales markets can be regulated in compliance with EU law. The Communication refers to the possible impact of national legislation on acquiring, using or disposing of agricultural land on the fundamental freedoms protected by the Charter. It refers to the freedom to conduct a business, including the freedom of contract (Article 16), the right to property (Article 17) and the freedom to choose an occupation (Article 15). The premise of the proposal for a Regulation on a framework for the free flow of non-personal data in the European Union, adopted by the Commission on 13 September 2017, are the free movement principles (freedom of establishment and free movement of services) and respect of fundamental rights and principles as recognised by the Charter. The impact assessment of the proposed Regulation concluded that it would have a positive effect on the freedom to conduct a business (Article 16) because it would contribute to eliminating and preventing unjustified or disproportionate barriers to the use and provision of data services (such as cloud services, as well as configuration of in-house IT systems). The proposed Regulation promotes and respects also the freedom to conduct a business by adopting a self-regulation approach on the issue of facilitating the change of service providers for professional users. Case law In Achbita the CJEU found that in examining the application of an internal rule of a private undertaking relating to the visible wearing of any political, philosophical or religious sign the employer’s freedom to conduct a business must be taken into account and balanced with other fundamental rights, in particular freedom of religion and the principle of non-discrimination. A policy of political, philosophical and religious neutrality may constitute a legitimate objective justifying difference of treatment, provided that the means of achieving that aim are appropriate and necessary, in line with relevant case law of the European Court of Human Rights . Such policy relates, according to the Court, to the freedom to conduct a business recognised in Article 16 of the Charter. NATIONAL CASE LAW BOX In Germany, the Federal Court of Justice ruled in a case concerning a woman who carried out an IVF treatment in the Czech Republic. She was charged around EUR 11 000 by the IVF centre and sought reimbursement from her German insurance company arguing that according to the general insurance conditions, treatments in other European countries are insured. She was refused reimbursement which she argued violated the freedom to provide services (Article 56 TFEU). The Court, however, agreed with the insurance company that — since fertilisation by means of egg cell donation is prohibited under German law — there was no insurance cover for the treatment in the Czech Republic, although egg cell donation was permitted there. The Court did not find a violation of EU law in the general insurance conditions of the insurance company and said that, in any event, a possible restriction of the freedom to provide services in case of a dispute is to be considered justified by the freedom to conduct a business (Article 16 of the Charter) (Germany, Federal Court of Justice, case IV ZR 141/16, 14 June 2017). 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 The Security of Gas Supply Regulation introduced in its Article 13, for the first time, a solidarity mechanism between Member States. This mechanism is designed to address extreme situations in which gas supply, as an essential need is at stake in a Member State. The Regulation makes specific reference to the Charter as part of the framework within which Member States must implement the provisions on the solidarity mechanism. The fundamental rights component of the solidarity mechanism falls under the provisions of the Charter on the right to property but also social assistance , services of general economic interest and consumer protection , as stated in Recital 23 and 43 of the Regulation. In May 2017, the EU Firearms Directive was adopted . The Directive was proposed by the Commission following the terror attacks that took place in 2015. These new rules will substantially reduce the likelihood of dangerous but legally held weapons falling into the hands of criminals and terrorists. The revised Directive broadens the range of prohibited weapons by banning automatic firearms transformed into semi-automatic firearms and semi-automatic weapons fitted with high capacity magazines and loading devices. This measure introduces limitations on the right to property in line with Article 52 of the Charter. In particular, it has introduced stricter derogations for sport shooters and national defence reservists undertaking voluntary military training, as provided under Member State law. Defined group of licence holders — such as museums or collectors — will also be subject to stringent security and monitoring requirements. The Commission’s proposal for the EU accession to the Geneva Act of the Lisbon Agreement on Appellations of Origin and Geographical Indications is intended to provide protection of geographical indications for agricultural products, beverages and foodstuffs. Through the system provided for in this revised and modernised Agreement, the scope of its application refers not only to appellation of origin, but also to geographical indicators both requiring a qualitative link between the product to which they refer and its place of origin. EU accession to the Lisbon system would protect the intellectual property rights of the geographical indicators products of local farmers and food producers in the global market. Policy

In preparing the Supplemental Memorandum of Understanding for the 2nd review of the Stability programme for Greece under the European Stability Mechanism, the Commission has sought to ensure that the conditionality in the draft Memorandum of Understanding takes on board the implications of the Court ruling in the Ledra case . The ruling provided that the EU may be held liable for any damages caused by its institutions, if it signs a Memorandum of Understanding with policy conditionality that is not in line with the EU body of legislation and the Charter. In view of this, the Commission has ensured that its proposals, in particular on the Greek pension reform, are consistent with the Charter. In Ledra, the Court recalled that the EU may incur non-contractual liability only if a number of conditions are fulfilled, namely: (i) the unlawfulness of the conduct alleged against the EU institution; (ii) the damage; and (iii) the existence of a causal link between the conduct of the institution and the damage suffered. As a result of this judgment, the Commission sought to ensure that the provisions on the reform of the pension system in Greece proposed under the Memorandum of Understanding are consistent with Article 17 of the Charter, which states that everyone has the right to own their lawfully acquired possessions. The jurisprudence from the ECtHR provides that a pension claim can constitute a ‘possession’ within the meaning of Article 1 of Protocol No 1 to the ECHR where it has a sufficient basis in national law and thus give rise to the ‘legitimate expectation’ that a pension results from the contribution to a pension scheme. In particular, if the amount of pensions is reduced or discontinued, as a result of a pension reform, this may constitute interference with possessions where it would result in a disproportionate reduction in the pension and fail to ensure an adequate standard of living . Article 18 — Right to asylum The right to asylum is guaranteed by Article 18 of the Charter. Asylum is granted to people fleeing persecution or serious harm in their own country and therefore in need of international protection. Granting asylum is an international obligation, first recognised in the 1951 Geneva Convention on the protection of refugees. Since 1999, the EU has been working to create a common policy on asylum, subsidiary protection and temporary protection (the ‘Common European Asylum System’), in line with the Geneva Convention and related instruments, as required by the EU Treaties (Article 78 TFEU). Legislation and policy Negotiations between the European Parliament and the Council on the Commission’s proposals for a reform of the Common European Asylum System are ongoing though at different stages of advancement. Good progress has been made on the proposal for a new European Union Agency for Asylum , on which the European Parliament and the Council reached a broad political agreement during 2017. They also started to discuss the proposals for the Eurodac and Asylum Qualification Regulations, the recast Reception Conditions Directive and the Union Resettlement Framework . They also continued to work on the Asylum Procedures Regulation . On the Dublin III Regulation , discussions focused on effective solidarity and are expected to continue at an intense pace. In December 2017, the European Council set a target to reach a position on an overall reform of the Common European Asylum System by June 2018. On the progress made in relocation and resettlement on which the Commission regularly reported , collective EU resettlement efforts were given a further boost in September 2017 with the Commission’s call to Member States to resettle at least 50 000 additional people by the end of October 2019. EUR 500 million were been made available to assist Member States in their efforts. By the end of 2017 this call resulted in over 39 800 new resettlement pledges by 19 Member States. First resettlements under the scheme took place by the end of the year, including via the evacuation transit mechanism, which was launched with the United Nations Refugee Agency (UNHCR) to help the most vulnerable people in need of international protection to be evacuated from Libya to Niger in view of their onward resettlement. As of November 2017, over 32 000 people were also relocated as the Commission’s efforts were being directed to ensure relocation as a matter of priority of eligible applicants still present in Italy and Greece. The implementation of the EU-Turkey Statement of 18 March 2016 also contributed to resettlement efforts as Member States resettled in 2017 alone, 8 975 Syrians from Turkey. This exceeded their commitment under the Statement to resettle a Syrian from Turkey for every Syrian returned to Turkey from Greek islands, taking into account the UN vulnerability criteria. The Commission also adopted guidance on the implementation of the hotspot approach, giving prominence to the obligation to respect fundamental rights over operations and performance of tasks in the hotspots . Application by Member States Issues related to the respect of the right to asylum and the treatment of asylum applicants during their stay in the Member States are regularly raised and brought to the attention of the Commission, including the situation of migrant children and in particular on unaccompanied children , respect for the right to family life , the right to liberty , the right to an effective remedy as well as issues related to access to services and guarantees of a decent standard of living. In 2017, the Commission has continued to monitor closely how Member States have implemented into national legislation the provisions of the various existing Common European Asylum System legislative instruments, in particular the amended Long-Term Residence Directive, the Asylum Qualification Directive, the Asylum Procedures Directive and the Reception Conditions Directive . Applying the EU asylum and migration body of legislation as interpreted in light of several provisions of the Charter, including the right to asylum, but also the right to liberty and security and the right to an effective remedy has been the subject of a complementary letter of formal notice and a reasoned opinion in one case . The Commission also decided to refer the Czech Republic, Hungary and Poland to the CJEU for non-compliance with their legal obligations under the EU relocation scheme . Case law In the judgment X and X v Belgium , the CJEU clarified that an application for a visa with limited territorial validity made on humanitarian grounds by a non-EU national at the representation of the Member State of destination in the territory of a non-EU country, with a view to lodging, immediately upon arrival in that Member State, an application for international protection, cannot be regarded as falling within the scope of application of the EU Visa Code . The reasoning being that a kind of long-term visa the issuing of which only falls within the scope of national law. The Court therefore concluded that no positive obligation to issue such a visa can be derived from EU law, including Article 18 and/or 4 of the Charter since the situation in question is not governed by EU law . The Court also had the opportunity to confirm the validity of the EU provisional mechanism for the mandatory relocation of asylum seekers in the case of Slovakia and Hungary v Council , where it dismissed in their entirety the actions brought by Slovakia and Hungary against the mechanism. The Court maintained that the non-legislative act was legally adopted pursuant to Article 78(3) TFEU, and underlined the appropriateness of the act in contributing to achieving its objective as a crisis-management measure whose purpose is to take pressure off the Greek and Italian asylum systems by swiftly relocating a significant number of applicants to other Member States, in compliance with EU law and the Charter, so that the fundamental right to asylum, laid down in Article 18 of the Charter, can be exercised properly.

On the functioning of the ‘Dublin system’ in times of high influx of asylum applicants, in particular during 2015-2016, the Court clarified in case A.S. that the crossing of a border in breach of the conditions imposed by the rules applicable in the Member State concerned must be considered ‘irregular’ within the meaning of the Dublin III Regulation. Therefore, the Member States concerned must be regarded as responsible for examining applications for international protection submitted by people crossing their external border pursuant to the criteria contained in the Dublin III Regulation. According to the Court, this remains the case even in exceptional situations where, for example in Croatia during the 2015-2016 migration crisis, such crossing happened ‘en masse’ and the Member State concerned decided to admit into its territory non-EU nationals on humanitarian grounds, by way of derogation from the entry conditions generally imposed on non-EU nationals. Absolving the Member State concerned of its responsibility would, in the Court’s view, not be compatible with the Dublin rules. Although the taking charge of such non-EU nationals in those circumstances may be enabled by the use by other Member States, unilaterally or bilaterally in a spirit of solidarity, of the ‘sovereignty clause’, which enables them to decide to examine applications for international protection lodged with them, even if they are not required to carry out such an examination under the criteria laid down in the Regulation. The Court also clarified the interpretation of EU rules on the exclusion from qualification for international protection, holding in Lounani that an application for international protection may be rejected under those rules if it established that the applicant participated in the activities of a terrorist network, without it being necessary that the asylum seeker personally committed terrorist acts, or instigated such acts, or participated in their commission. Article 19 — Protection in the event of removal, expulsion or extradition Article 19 of the Charter enshrines the same right as that afforded by Article 4 of Protocol No 4 to the European Convention on Human Rights (prohibition of collective expulsions) and codifies requirements flowing from case-law on Article 3 of the Convention (protection of individuals from being removed, expelled or extradited to a state where there is a serious risk of death penalty, torture or other inhuman or degrading treatment or punishment). Guarantees deriving from this provision are relevant in asylum and migration matters and often constitute the object of inquiries and complaints under the EU legal framework. Parliamentary questions Cases of alleged abuses of Interpol’s Red Notices systems for political purposes by a number of non-EU countries were raised during 2017 in debates held in the European Parliament and a number of parliamentary questions were addressed to the Commission. The Commission stressed in this respect its determination to closely monitor the compliance by Member States with fundamental rights, including the principle of non-refoulement when they implement relevant EU provisions and to make use, where necessary, of the powers conferred to it under the EU Treaties to ensure their full respect. Case law The compatibility of the EU-Turkey Statement of 18 March 2016 with fundamental rights , including the right to protection from refoulement, was raised before the CJEU in an action for annulment in the case NF, NG and NM v European Council . The General Court ordered on 28 February 2017, however, that it lacked jurisdiction to hear and determine the actions brought by the applicants, as it found that the evidence, provided by the European Council and relating to the meetings on the migration crisis held successively in 2015 and 2016 between the Heads of State or Government of the Member States and their Turkish counterpart, showed that it was not the EU but its Member States, as actors under international law, that conducted negotiations with Turkey in that area, including on 18 March 2016. As neither the European Council nor any other EU institution decided to conclude an agreement with the Turkish Government on the migration crisis, there was no act of an EU institution to review under Article 263 TFEU and the Court had no jurisdiction to rule on the lawfulness of an international agreement concluded by the Member States. The Court was also called on to clarify how EU provisions concerning the status of non-EU nationals who are long-term residents should be interpreted against the obligation to provide reinforced protection against expulsion. The Court held that EU provisions would preclude legislation of a Member State which does not provide for the application of the requirements of protection against the expulsion of a non-EU national who is a long-term resident to all administrative expulsion decisions, regardless of the legal nature of that measure or of the detailed rules governing it. The Court also pointed out that the adoption of an expulsion measure may not be ordered automatically following a criminal conviction. In the case at hand, the expulsion was motivated by the fact that the long-term resident non-EU national had been sentenced to a term of imprisonment of more than one year. However, the court also noted that the assessment needs to be carried out on a case-by-case basis .



Title III Equality 2017 marked a major progress on the legal framework to combat violence against women. On 13 June the EU signed the