Introduction

After the entry into force of the EU Charter of Fundamental Rights[1], the Commission adopted a Strategy on the effective implementation of the Charter[2] setting as an objective that the EU is exemplary as regard the respect of fundamental rights, in particular when it legislates. The Commission further committed to preparing annual reports to better inform citizens on the application of the Charter and to measure progress in its implementation. This Report covers the year 2011 and informs the public on the situations in which they can rely on the Charter and on the role of the European Union in the field of fundamental rights. In covering the full range of Charter provisions on an annual basis, the annual reports aim to track where progress is being made, and where new concerns are arising.

The Annual Report is based on the actions taken by the EU institutions as well as on the analysis of letters from the general public and questions and petitions from the European Parliament. The Member States are bound by the Charter when they implement EU law. However, there is not yet enough information on the efforts made to ensure the effective implementation of the Charter. The Commission will seek in its forthcoming Annual Reports on the Application of the Charter to document progress in that respect.

Protection of Fundamental Rights in the EU

In the European Union, the protection of fundamental rights is guaranteed both at national level by Member States' constitutional systems and at EU level by the Charter of Fundamental Rights of the European Union.

The Charter applies to all actions taken by the EU institutions. The role of the Commission is to ensure that all its acts respect the Charter. All EU institutions (including the European Parliament and the Council) must respect the Charter, in particular throughout the legislative process.

The Charter applies to Member States when they implement EU law. The factor connecting an alleged violation of the Charter with EU law will depend on the situation in question. For example, a connecting factor exists: when national legislation transposes an EU Directive in a way contrary to fundamental rights, when a public authority applies EU law in a manner contrary to fundamental rights, or when a final decision of a national court applies or interprets EU law in a way contrary to fundamental rights.

If a national authority (administration or court) violates fundamental rights set out in the Charter when implementing EU law, the Commission can take the matter to the Court of Justice of the European Union. The Commission is not a judicial body or a court of appeal against the decisions of national or international courts. Nor does it, as a matter of principle, examine the merits of an individual case, except if this is relevant to carry out its task of ensuring that the Member States apply EU law correctly. In particular, if it detects a wider problem, the Commission can contact the national authorities to have it fixed, and ultimately it can take a Member State to the Court of Justice. The objective of these proceedings 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.

When individuals or businesses consider that an act of the EU institutions directly affecting them violates their fundamental rights enshrined in the Charter, they can bring their case before the Court of Justice of the European Union, which, subject to certain conditions, has the power to annul such act.

The Commission cannot examine complaints which concern matters outside the scope of EU Law. This does not necessarily mean that there has not been a violation of fundamental rights. If a situation does not relate to EU law, it is for the Member States alone to ensure that their obligations regarding fundamental rights are respected. Member States have extensive national rules on fundamental rights, which are guaranteed by national judges and constitutional courts. Accordingly, complaints need to be directed to the national level in the first instance.

In addition, all EU countries have made commitments under the European Convention on Human Rights (ECHR), independently of their obligations under EU law. Therefore, as a last resort and after having exhausted all legal remedies available at national level, individuals may bring an action before the European Court of Human Rights in Strasbourg for a violation by a Member State of a right guaranteed by the ECHR. The European Court of Human Rights has designed an admissibility checklist in order to help potential applicants work out for themselves whether there may be obstacles to their complaints being examined by the Court[3].

Overview of the letters and questions to the Commission on fundamental rights

Among the letters from the general public on fundamental rights issues received by the Commission in 2011, 45% concerned situations where the Charter could apply. In a number of cases, the Commission requested information from the Member States concerned or explained to the complainant the applicable EU rules. In other cases, the complaints should in fact have been addressed to the national authorities or to the European Court of Human Rights in Strasbourg. Where possible, complainants were redirected to other bodies for more information (such as national data protection authorities).

Among the questions and petitions from the European Parliament approximately 70% concerned issues within EU competence. In a number of cases, the Commission contacted the Member States to obtain clarifications on alleged violations. The replies given by the Commission explained or clarified the relevant policies and ongoing initiatives.

Overview of the decisions of the Court of Justice of the European Union referring to Charter

The Court of Justice of the European Union has increasingly referred to the Charter in its decisions (see Annex I for an overview of all relevant rulings): the number of decisions quoting the Charter in its reasoning rose by more than 50% as compared to 2010, from 27 to 42.

National courts when addressing questions to the Court of Justice (preliminary rulings) have also increasingly referred to the Charter: in 2011, such references rose by 50% as compared to 2010, from 18 to 27.

Overview of enquiries with the Europe Direct Contact Centres

The figures collected by the Europe Direct Contact Centres (EDCC) confirm that there is a high degree of interest among citizens on justice, citizenship and fundamental rights. For the last 6 months of 2011, the EDCC replied to 3107 enquiries from citizens on topics such as free movement of persons and judicial cooperation.

Enquiries received by the Europe Direct Contact Centres on justice, fundamental rights and citizenship July – December 2011)

The structure of the Report

The structure of the Report follows the six titles of the Charter itself: Dignity, Freedoms, Equality, Solidarity, Citizens’ rights and Justice. Each of the six chapters of the Report contains the following information on the application of the Charter:

· Examples of how the EU institutions and, where relevant, the Member States have applied the Charter in 2011;

· Questions and petitions from the European Parliament, and letters from the general public received in 2011 focusing on fundamental rights issues;

· Relevant case-law of the Court of Justice of the European Union;

· Data gathered by the EU Agency for Fundamental Rights throughout 2011.

1. Dignity

§ Member States wishing to deploy security scanners must comply with minimum conditions set by the new EU rules to safeguard fundamental rights. Most importantly, passengers are entitled to opt out from the security scanner procedure and to be checked by alternative screening methods. Passengers must be informed of the possibility to opt out of the scanner technology used and of the conditions associated with its use.

§ The Commission proposed to strengthen the protection of fundamental rights in the EU rules on border control, which provide common standards and procedures on controls and surveillance at the external borders of the Schengen area.

§ The EU adopted new rules on preventing and combating trafficking in human beings and protecting its victims. These rules seek to achieve more effective prosecution by national authorities of human traffickers across borders.

§ The Court of Justice of the European Union issued a ruling on the application of EU rules on patents in the area of biomedicine. The Court considered that researchers cannot declare patents on inventions which imply the destruction of any human cell having the potential of developing into human being, including in the case when human cells are created via therapeutic cloning.

§ The Court of Justice of the European Union clarified the conditions for the transfer of asylum seekers in the application of the EU Dublin Regulation. The Court forbid the transfer of asylum seekers to Member States where there are systemic deficiencies in the asylum procedure and in the reception conditions of asylum seekers which would amount to a real risk of the asylum seeker being subject to inhuman or degrading treatment as enshrined in Article 4 of the Charter

Human dignity

Human dignity is the basis of all fundamental rights. It guarantees the protection of human persons from being treated as a mere object by the State or by his/her fellow citizens. The rights and freedoms under the title Dignity, such as the right to life, and the prohibition of torture and slavery, must be respected so we can exercise other rights and freedoms in the Charter, for example freedom of expression and freedom of association. None of the rights laid down in the Charter may be used to harm the dignity of another person.

The European Union strongly opposes the death penalty and has consistently backed its universal abolition, and continues to work towards this goal. In 2011, the Commission amended[4] existing EU rules on trade in certain goods which could be used for capital punishment or torture by imposing export control on certain chemicals which could be used for capital punishment (e.g. sodium thiopental, and other short and intermediate acting barbiturates), by broadening the ban on trade in electric-shock devices (such as electric shock sleeves and cuffs) which have the same impact as electric-shock belts and by imposing an export ban on spiked batons. The Commission has also provided guidance[5] on the application of EU rules regarding the control of exports to all third countries of chemicals of listed barbiturates (or medicinal products).

Guaranteeing the security of travellers in the field of aviation security includes the use of new technologies that can detect unsafe objects at airports, such as security scanners. Some technologies of security scanners can reveal a detailed display of the human body, including possible medical conditions, and could violate the right to the respect of human dignity which requires that people are treated as subjects and not as objects. The EU adopted new rules on the use of security scanners[6] providing an optional use at EU airports of security scanners that do not use X-ray radiation for screening passengers. The different preparation phases in the adoption of the legislation took into account the impact of different policy options on fundamental rights, in particular on human dignity, private and family life, data protection, the rights of the child, freedom of religion and the prohibition of discrimination. Adopted EU rules reflect this preparatory work and contain safeguards that ensure the legislation is in compliance with the Charter. For example, passengers are entitled to opt out from a security scanner procedure and to be checked by alternative screening methods. In addition, detailed conditions are laid down to ensure that the right to the protection of personal data and private life is respected, for instance, the obligation that security scanners shall not store, retain, copy, print or retrieve images. As far as health considerations are concerned, only scanners that do not use ionising radiation are allowed as a method for screening persons.

The entitlement of passengers to opt out from a security scanner procedure

Member States and airports wishing to deploy security scanners must comply with minimum conditions set by the EU's new rules to safeguard fundamental rights. Most importantly, passengers are entitled to opt out from the security scanner procedure and to be checked by alternative screening methods. Passengers must be informed of the possibility to opt out of the scanner technology used and of the conditions associated with its use.

The Court of Justice of the European Union referred to human dignity in a case concerning the patentability of human embryos created through therapeutic cloning.[7] The Court has pointed out that relevant EU rules emphasise that patent law must be applied so as to respect the fundamental principles safeguarding the dignity and integrity of the person and established EU legislation intended to exclude any possibility of patentability where respect for human dignity could thereby be affected. The Court considered that researchers cannot declare patents on inventions which imply the destruction of any human cell having the potential of developing into human being, including in the case when human cells are created via therapeutic cloning. The Court further specified that researchers cannot declare patents on the use of human embryos for research purposes. This means the researcher cannot ask for a patent on a research method which requires the use of embryos.

The Commission proposed a legal framework for the research funding programme Horizon 2020. When preparing its proposal, the Commission paid particular attention to the aspects relating to biomedical research with the use of embryonic stem cells in order to ensure the compliance of the funding programme with the Charter. The Commission submitted it legislative proposal only after making sure that it did not raise concerns from the perspective of the principle of the respect of human dignity (Article 1 of the Charter) and the right to integrity of the person (Article 3 of the Charter). The proposed programme will not finance any research intended to create embryos for the purpose of embryonic stem cell procurement. The proposed programme allows the financing of embryonic stem cells research on the condition of an ethical review and checks and only in Member states, where such research is allowed by law and where the legislation establishes appropriate mechanisms of evaluation, control and licensing.

Prohibition of inhuman or degrading treatment

The Charter provides that no one shall be subjected to torture or to inhuman or degrading treatment or punishment.

This provision is particularly relevant in the context of implementing EU rules on border control, which provide common standards and procedures for controls and surveillance at the external borders of the Schengen area[8]. These rules guarantee respect for the fundamental rights of all travellers. In particular, the Schengen Borders Code[9], which lays down Member States' obligations concerning external border management, provides that border guards must fully respect human dignity, should act in a proportionate manner and should not discriminate against travellers on grounds of sex, racial or ethnic origin, religion or belief, disability, age or sexual orientation. The Schengen Border Code also specifies that border guards should be properly trained professionals. In 2011, the Commission proposed amendments[10] that further strengthen the protection of fundamental rights by requiring training on the protection of unaccompanied minors and victims of trafficking. The proposal provides third country nationals with full access to international protection in accordance with EU law at joint border crossing points between Member States and neighbouring third countries, operated through bilateral agreements.

The EU borders agency (FRONTEX) plays a key role in coordinating the actions of Member States. In 2011, the EU amended the rules governing FRONTEX. The amendments require that all persons participating in border control activities undertake training in fundamental rights, that any incidents during operations, including in relation to fundamental rights, must be reported to the national authorities and followed up, and that FRONTEX develop detailed guidelines on how to treat third-country nationals who are being returned to their home country (building on the best practice guidelines already in place). The tasks of FRONTEX have also been revised, and now include possible assistance to Member States in situations that may involve humanitarian emergencies and rescue at sea. The office of a Fundamental Rights Officer will be created in the Agency to assist in matters having implications for fundamental rights. A code of conduct will set out the fundamental rights standards to be respected during FRONTEX operations, and a Consultative Forum on Fundamental Rights will be created involving relevant international organisations and non-governmental organisations. The amendments provide that the Member State hosting a FRONTEX-coordinated operation must provide for appropriate disciplinary or other measures in a case of fundamental rights violations during the course of a joint operation. FRONTEX operations must be suspended or terminated if such violations are of a serious nature or are likely to persist.

The Commission proposed setting up a European border surveillance system (EUROSUR).[11] The aim of EUROSUR is to reinforce control of Schengen external borders, particularly at the southern maritime and eastern land borders, in order to bring down the number of irregular migrants entering the EU undetected, reduce the loss of lives of migrants at sea and prevent cross-border crime. It aims to do so by allowing national authorities in charge of border surveillance (border guards, coast guards, police, customs and navies) to share and exchange operational information and cooperate with each other, with Frontex and with neighbouring third countries. The proposal guarantees that whenever data sharing includes personal data, the data protection rules apply and must be fully respected. The proposal also explicitly prohibits any exchange of data with a third country who could use this information to identify persons or groups of persons who are under a serious risk of being subjected to torture, inhuman and degrading treatment or punishment or any other violation of their fundamental rights.

The Court of Justice of the European Union clarified the conditions for the transfer of asylum seekers in application of the EU Dublin Regulation. In the ruling N.S. and others[12] the Court of Justice considered that Member States, including the national courts, must not transfer an asylum seeker to the Member State indicated as responsible where it is such that they cannot be unaware of systemic deficiencies in the asylum procedure and in the reception conditions of asylum seekers amounting to substantial grounds for believing that the asylum seeker would face a real risk of being subjected to inhuman or degrading treatment. When a transfer to the Member State responsible is impossible, the Member State where the applicant is present must examine whether another Member State can be identified as responsible for the examination of the asylum application or if necessary, examine the application itself.

This case clarifies certain issues within the framework of EU legislation that were raised by the European Court of Human Rights in the case M.S.S. v Greece and Belgium[13]. The applicant, an Afghan national, entered the European Union through Greece. The application for asylum lodged by the applicant in Belgium was not examined and the applicant was transferred to Greece pursuant to the Dublin Regulation. The Court found violations of Article 3 of the ECHR (prohibition of inhuman and degrading treatments) and Article 13 of the ECHR (effective remedy) both by Belgium and Greece, due to the structural failures of the asylum system in Greece (reception conditions, detention conditions, access to the asylum procedure) and the lack of access to effective remedy.

Fundamental rights situation of persons irregularly entering the EU's external border between Greece and Turkey

The EU Agency for Fundamental Rights reported on the fundamental rights situation of persons irregularly entering the EU's external border between Greece and Turkey, based on findings of a field study carried out January 2011[14]. The Agency's report stressed that conditions in detention centres raise serious concerns for the enjoyment of fundamental rights, including basic problems of over-crowding, and inadequate heating and sanitation facilities. The Agency further identified factors contributing to the current crisis, in particular, the practice of systematically detaining all those found crossing the border irregularly (including children), a lack of coordination in the Evros region, and the inadequate response to the humanitarian crisis, which would warrant the declaration of the state of emergency.

The findings of the Agency confirmed the serious concerns expressed by the Commission on conditions in which irregular migrants and asylum seekers are being detained in Greece, in particular in the Evros region, and the humanitarian situation in these places of detention. The Commission reiterated that third-country nationals held in detention for whatever reason should always be treated in a humane and dignified manner and in full respect of fundamental rights. The Commission already took a number of actions in that respect and intervened, by launching an infringement procedure against Greece in 2010, on the inappropriate reception conditions for asylum seekers detained in the Evros region.

The Commission is engaged in substantial efforts towards assisting Greece, together with the Member States, FRONTEX, EASO, UNHCR and other partners. This support combines significant financial and practical assistance for the reform of the national asylum system, border and return management, a more efficient use of the relevant EU funds for migration management and better cooperation with neighbouring countries, in particular Turkey.

Prohibition of trafficking in human beings

Trafficking in human beings is a form of slavery that violates human dignity. The Charter explicitly prohibits trafficking in human beings. Preventing and combating trafficking in human beings is a priority for the Union and the Member States.

The EU Directive on prevention and combating trafficking in human beings and protecting its victims entered into force in 2011[15]. The Directive takes a human rights and gender-specific approach. It seeks to achieve more effective prosecution by national authorities of human traffickers across borders. It establishes uniform definitions and common standards on sanctions, liability and jurisdiction. The definition of trafficking for the first time explicitly includes forms of exploitation like begging, criminal activities or removal of organs. The Member States must put in place mechanisms for the early identification of victims, as well as for the early provision of support to victims. Victims would also receive free legal counselling and legal representation. Special protection measures are envisaged for child victims, e.g. to protect them from the negative effects of court procedures by defining how to conduct interviews with child victims, or by setting out the rules for extended support to unaccompanied children (see also the section on Rights of the child and the section on newly proposed rules on victims rights). When adopting laws on this issue, Member States must take into account the rights of defence of those accused in criminal procedures.

To further streamline EU actions in the field of trafficking in human beings, the Commission appointed an EU Anti-trafficking Coordinator. The Commission also launched a new EU anti-trafficking website[16], which includes information on EU and national policy and legislation, Commission funded projects and publications.

2. Freedoms

§ The Commission prepared a reform of the EU legal framework on data protection. Individuals continue to be concerned about keeping control of their personal data, not only in social networks but in many different areas of their daily life. Negotiations started with the United States on an agreement to protect personal data exchanged in the context of fighting crime and terrorism. The Commission applied the requirement to protect personal across a range of policies in the preparation of new legislative proposals.

§ The Common European Sales Law proposed by the Commission would facilitate the exercise of the freedom to conduct a business by removing obstacles resulting from divergences between national contract laws.

§ Citizens and Members of the European Parliament voiced concern over the respect of freedom of expression and media freedom and pluralism. The High Level Group on Media Freedom and Pluralism created by the Commission will draw recommendations for the respect, protection, support and promotion of pluralism and freedom of the media in Europe.

Respect for private and family life

The Charter guarantees the right of everyone to the respect of their private and family life. EU free movement rules recognise the right to family life for all EU citizens who move and reside in another Member State as well as for third-country nationals who are member of the family of an EU citizen.

The Commission launched a public debate on the right to family reunification of third-country nationals living in the EU[17]. The outcome of this consultation will shape whether any concrete policy follow up is necessary (e.g. modification of the rules, interpretative guidelines or status quo).

The Commission proposed new regulations on matrimonial property regimes and on property regimes for registered partnerships[18]. The regulations take into account the right to respect for private and family life and the right to marry and to found a family according to national laws . There is no differentiation introduced in the legislation on the basis of sexual orientation.

German Youth Welfare Office (Jugendamt)

In November 2011, the European Parliament's Petitions Committee carried out its second fact-finding visit to Germany to enquire about the functioning of the German Youth Welfare Office (Jugendamt). According to the complainants and petitioners the Welfare Office's decisions and interventions allegedly discriminate against non-German parents, for example, by obliging non-German parents to communicate with their children only in German during visits supervised by the Welfare Office. The findings of the fact-finding mission have not yet been made public.

Data protection

The Charter guarantees the protection of personal information. Everyone has the right to the protection of their personal data. Such data must be processed fairly for specified purposes and on a legitimate basis laid down by law. In the European Union, compliance with these rules is subject to control by independent authorities in Member States.

The Commission took concrete steps to update EU rules on data protection in 2012, based on the numerous replies it received during the consultation process carried out in 2011.

The Court of Justice of the European Union declared in its landmark Scarlet ruling[19] that obliging an internet service provider to install a filtering system such as the one at stake in order to prevent an infringement of intellectual property rights would infringe the freedom of the provider to conduct its business, as well as its customers' rights to the protection of their personal data and to receive or impart information. The contested filtering system would not respect the requirement that a fair balance be struck between the right to intellectual property, on the one hand, and the freedom to conduct business, the right to protection of personal data and the freedom to receive or impart information, on the other. In particular, concerning the protection of personal data such filtering system may infringe that right as it would involve a systematic analysis of all content and the collection and identification of users’ IP addresses from which unlawful content on the network is sent; those addresses are protected personal data because they allow those users to be precisely identified. This ruling underlines the importance of taking into account all the fundamental rights involved by a given measure and to ensure its compliance with all these rights.

The Court of Justice of the European Union provided guidance on the interpretation of the provision in EU law on the processing of data[20]. The Court confirmed that the provision on the criteria which make data processing legitimate has direct effect before national courts. The Court further ruled that this provision provides an exhaustive list of legitimate legal basis for a processing activity upon which Member States cannot impose additional requirements.

Several data protection supervisory authorities in Member States concluded the investigations launched in 2010 into social networking sites. Many investigations had been triggered by complaints launched after the change of the privacy policies by social network providers. With these changes the social networking sites took the liberty of making broader use of the personal data it had collected under more restrictive policies. The social networking sites had not given users full information about the change, and had not obtained their consent. Furthermore, new features introduced in the meantime on one particular site caused new complaints and further investigations. This concerns a new function allowing the automatic identification of persons in photos uploaded to the site (facial recognition) and the use of cookies and web scripts to collect data about user behaviour, e.g. with the help of the so-called 'Like-Button', without the user's knowledge and control.

The Irish Data Protection Commissioner, who is the competent supervisory authority to monitor the application of EU data protection rules, received a complaint against a social network from an Austrian non-governmental organisation which had prepared 22 elaborate charges on privacy violations. The investigation also included on-site audits at the premises of the social network site in Ireland, the headquarters of the company managing the site. The Irish Data Protection Commissioner published its audit report on 22 December 2011. The report contains a number of observations and corresponding recommendations for improvements of the privacy policies and functions of the social network site in question. They concern for instance issues such as privacy related information which is not complete, not clear and difficult to understand, excessive retention of data and the lack of effective possibilities for the users to delete their data from the site. The social networking site agreed to implement some of the recommendations. The Irish Data Protection Commissioner will review progress in July 2012.

Geo-location service providers were also subject to investigations. A notable example is the agreement reached by the Dutch data protection authority with a provider, by which a technical solution was established which allows citizens and organisations that operate wireless LAN access points to ensure that these access points will not be used for location service. The solution is expected to be scrutinized by other service providers and privacy authorities' world wide.

The Commission continues to monitor the situation in the Member States, where doubts exist about the compliance of national rules with EU rules on data protection. In 2011, the Commission dealt with thirteen infringement cases for alleged violation of EU laws on data protection. Four infringement cases concerned Finland and were closed after Finland notified the Commission that it had repealed the offending legislative provision which had been restricting the scope of its national data protection legislation. One infringement case was closed against the United Kingdom, further to the clarifications made on the compliance of it national legislation with EU rules on data protection.

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

The European Commission opened negotiations with the United States on an agreement to protect personal data exchanged in the context of fighting crime and terrorism, on 28 March 2011. The European Commission aims to ensure a high level of protection of personal data exchanged between the EU and the US. The Council gave its green light for the conclusion of the new EU-Australia Passenger Name Record agreement which will replace the agreement in place since July 2008. The Council also gave its green light for the signature of the new EU-US Passenger Name Record agreement which will replace the existing one - provisionally applied since 2007 - improving data protection whilst providing an efficient tool to fight serious transnational crime and terrorism. The European Parliament has been asked to give its consent to the US agreement, which is necessary before the Council can adopt its decision on the conclusion of the agreement.

The European Commission presented a proposal for an EU Passenger Name Record Directive[21] to fight serious crime and terrorism, in February. The proposal obliges air carriers to provide EU Member States with data on passengers entering or departing from the EU. In this proposal, the Commission lays down common rules for EU Member States to set up national PNR systems. The proposal aims to create a coherent EU wide system which ensures close cooperation between law enforcement authorities within the EU. It contains rules on the protection of personal data involving a number of safeguards for the protection of personal data.

Upon request of the European Parliament, which is discussing the Commission's proposal and preparing a report on it, the EU Agency for Fundamental Rights presented an expert opinion on the proposal[22].

The Commission adopted a Communication on a European terrorist finance tracking system[23] ("European TFTS") presenting the different options on the possible introduction of such a system as a follow-up to the agreement signed between the EU and the US on the processing and transfer of financial messaging data for the purpose of the Terrorist Financing Tracking Programme on 28 June 2010. The Commission specified in its analysis that the European TFTS should have two main objectives. First, the system should contribute to limiting the amount of personal data transferred to the US. Second, it should contribute significantly to efforts to cut off terrorists' access to funding and materials and follow their transactions. The Commission further indicated that the key issues which need to be decided upon before such a system can be established. This includes the need to fully respect the fundamental rights of individuals, in particular data protection (Article 8 of the EU Charter) and judicial redress (Article 47 of the Charter), data security issues, the operational scope of the system, as well as costs. To that end, the Commission has indicated that it will follow the guidance provided in the strategy for the effective implementation of the Charter of Fundamental rights for the evaluation of the different options considered.

The Commission applied the requirement to protect personal data across a range of policies. In this regard, the Commission proposal for a regulation on insider dealing and market manipulation (market abuse)[24] makes it clear that any processing of personal data carried out by financial supervisory authorities will have to comply with EU rules on data protection. Similar provisions are also included in the proposals for a regulation on statutory audit of public-interest entities, and markets in financial instruments.

In the area of recognition of professional qualifications in medical and health professions[25], the Commission proposed to introduce an alert mechanism on professionals who have been prohibited by national authorities or courts from pursuing their profession, even temporarily, on the territory of that Member State. The proposal requires specific conditions to be fulfilled for issuing alerts, including the obligation to inform the individual concerned at the time of issuing the alert so as to enable him to make an appeal to national courts against the decision or apply for rectification of such decisions and to have access to remedies in respect of any damage caused by false alerts to other Member States.

The Commission adopted a communication on smart grids which sets policy directions to drive forward the deployment of future European electricity networks[26]. Smart meters, which are an inherent part of a smart grid, and which record the consumption of electric energy and communicate that information to the consumer, to the grid operator and energy supplier will be installed in each household following a positive cost benefit analysis in all EU Member States. The communication recognizes that consumer privacy and the protection of personal data need to be addressed to gain the consumer's trust and make the rolling out of smart grids a success for all stakeholders.

In the area of consumer protection enforcement cooperation, the Commission adopted guidelines[27] for the implementation of data protection rules in the Consumer Protection Cooperation System (CPCS)[28] in order to ensure that these rules are respected when personal data is processed through the CPCS.

The Visa Information System (VIS) started operations in Schengen States' consulates in North Africa on 11 October 2011. With this system, Schengen State's visa authorities will be able to register data on short-stay visa applicants, including their digital photograph and fingerprints, and on the decisions taken on the applications or subsequently. The duly authorised staff of the border, asylum, and immigration authorities will also have access to the VIS for the performance of their task. At a later stage, Europol and Schengen States' authorities responsible for the prevention, detection and investigation of terrorist or other serious criminal offences will be able to request access to data registered in the VIS under restrictive conditions. Data processing in the VIS is subject to specific data protection rules. Any person has the right to receive the data related to him/her registered in the system, to request the correction of inaccurate data, and to request the deletion of data recorded unlawfully as well as to lodge a complaint with the national data protection authorities in order to ensure the respect of his/ her rights. The European Data Protection Supervisor and Member States data protection authorities are competent to supervise the compliance with data protection rules applicable.

Freedom of expression

The Charter guarantees the right to freedom of expression for everyone. This right includes freedom to hold opinions and to receive and impart information and ideas without interference by public authority and regardless of frontiers.

Members of the European Parliament addressed the issue of media freedom, pluralism and independent governance in several questions to the Commission. The Commission replied that media pluralism is an essential condition for preserving the right to information and freedom of expression that underpins the democratic process. In this respect, the Commission created a High Level Group on Media Freedom and Pluralism. The objective of this independent group, chaired by the former President of Latvia (Professor Vaira Vīķe-Freiberga), is to draw up a public report with recommendations for the respect, protection, support and promotion of pluralism and freedom of the media in Europe. The Commission has also initiated a Centre for Media Pluralism and Media Freedom within the Robert Schuman School of the European University Institute to reflect and advise on the underlying issues.

Revision of the Hungarian Media Law

Following the Commission's intervention, using the full extent of its legal powers, the Hungarian government agreed to amend its national media law so that it complies with the concerns raised by the Commission on four points that concern EU law, namely: the obligation of balanced coverage, ii) country of origin principle, iii) registration requirements and iv) offensive content. In taking this action the Commission acted in line with the Treaty by focusing its intervention on areas subject to EU law. National courts and, if necessary, the European Court of Human Rights, could review issues of national competence.

A further examination of the Law by the Hungarian Constitutional Court introduced further amendments as regards the provisions which unconstitutionally limited freedom of expression of the written press. This concerned inter alia limitations to the protection of sources, restrictions on content for the written press and the provisions on the Media Ombudsman. The Commission urged the Hungarian authorities to respect this court ruling, and to implement it with the same speed and efficiency they applied to the Commission’s assessment on the EU law aspects of this media law[29].

The Commission received parliamentary questions and letters from citizens in relation to an Italian draft law on the use of wiretapping, which allegedly contained sanctions in the event of publication in the media of information obtained through taps. There is no EU legislation harmonising the use of wiretapping in the framework of investigations and criminal proceedings. The data protection directive provides for a derogation for the processing of personal data carried out solely for journalistic purposes only if they are necessary to reconcile the right to privacy with the rules governing freedom of expression[30]. The compatibility of the draft law with these provisions would have to be ensured, if the draft law would come before the Italian parliament for adoption.

In its landmark Scarlet ruling (see section on data protection), the Court of Justice of the European Union found that obliging an internet service provider (ISP) to install the contested filtering system could potentially undermine freedom of information since that system might not distinguish adequately between unlawful content and lawful content, with the result that its introduction could lead to the blocking of lawful communications. The reply to the question whether a transmission is lawful also depends on the application of statutory exceptions to copyright which vary from one Member State to another. Moreover, in some Member States certain works fall within the public domain or can be posted online free of charge by the authors concerned.

Freedom to conduct a business

The Charter recognises the freedom to conduct a business in accordance with Union law and national laws and practices. The freedom to conduct a business was taken into account in different areas of EU policy, including: new legislation on market in financial instruments, insurance mediation, credit ratings Agency[31] and on recording equipment for road transport (tachographs)[32].

The freedom to conduct a business was also a key consideration in the preparation of the Common European Sales Law[33] proposal aimed at removing obstacles resulting from divergences between national contract laws. This Commission proposal offers a single set of contract law rules which businesses can choose to apply to any of their cross-borders transactions throughout the EU. For example, the Common European Sales Law could be used when companies feel that differences in contract laws, such as remedies for faulty products, create considerable costs and are an important barrier to their sales to another country.

The negotiations in the European Parliament and in the Council on the proposed amendments to EU rules on jurisdiction and the recognition and enforcement of judgments in civil and commercial matters continue[34]. If these amendments are adopted judgements issued in another Member State in civil and commercial matters will be treated like domestic judgements. This would in effect make cross-border litigation much less cumbersome, time-consuming and costly then it is today. Under the current EU rules, a judgment given in one Member State does not automatically take effect in another Member State. In order to be enforced in another country, a court in that country first has to validate the decision and declare it enforceable. This is done in a special procedure ("exequatur") that takes place after the judgment has been obtained and before concrete measures of enforcement can be taken.

Negotiations in the European Parliament and in the Council on the amendments to EU rules for protecting information systems against attacks continue. The Council adopted a general approach on the proposal in 2011 and the European Parliament is expected to vote on it in early 2012. The amendments propose making the use of tools for committing offences and the illegal interception of information systems a crime and improving European criminal justice and police cooperation. They also contain measures on the storage of data and the exchange of data between law enforcement agencies, which are in compliance with EU data protection rules. The strengthening of the penalisation of the production, sale, procurement for use, import, distribution or otherwise making tools for cyber attacks available was worded carefully in order not to criminalise lawful behaviour, such as the use of these tools by ICT security companies to test the effectiveness of their products or by organisations and competent authorities to test and ensure the security of networks and information systems under their responsibility. Criminalisation of such acts would violate the freedom to conduct a business, enshrined in the Charter.

In its landmark Scarlet ruling (see section on data protection), the Court of Justice of the European Union found that obliging an internet service provider (ISP) to install a filtering system such as the one at stake would result in a serious infringement of the freedom of the ISP concerned to conduct its business since it would require that ISP to install a complicated, costly, permanent computer system at its own expense. The Court noted in particular the characteristics of the contested filtering system involved monitoring all the electronic communications made through the network of the ISP concerned in the interests of those right holders, it had no limitation in time, was directed at all future infringements and was intended to protect not only existing works, but also future works that had not yet been created at the time when the system was introduced.

Right to property

The Charter protects the right of everyone to property, which includes the right to own, use, and dispose of lawfully acquired possessions. The Charter also guarantees the protection of intellectual property.

Cross-border debt recovery in civil and commercial matters

The Commission proposed legislation to facilitate cross-border debt recovery in civil and commercial matters[35]. The proposal will establish a new uniform European procedure which will enable a creditor to prevent the withdrawal or transfer of funds standing to the credit of his debtor in any bank account located in the EU. The order will be of a protective nature i.e. it will only block the debtor's account. The procedure ensures both the right of a creditor to secure effective enforcement of its claim and the protection of the defendant's rights, particularly the right to redress, privacy and to data protection.

The Commission adopted a comprehensive strategy to review the legal framework in which Intellectual Property Rights operate[36]. The Commission announced that such review will require assessing the impact, not only on the right to property, but also on the rights to private life, protection of personal data, freedom of expression and information and to an effective remedy and it underlined that it will ensure that its proposal complies with all the fundamental rights involved.

In its landmark Scarlet ruling (see section on data protection) relating to the injunction for an internet service provider to install a filtering system, the Court of Justice of the European Union declared that the protection of the right to intellectual property is enshrined in Article 17(2) of the Charter but there is, however, nothing in the wording of that provision or in the Court’s case-law to suggest that that right is inviolable and must for that reason be absolutely protected. The Court added that in the context of measures adopted to protect copyright holders, national authorities and courts must strike a fair balance between the protection of copyright and the protection of the fundamental rights of individuals who are affected by such measures.

The European Commission presented a proposal for a unitary patent protection. This proposal, which was introduced through the special voluntary procedure (so-called "enhanced cooperation") would ensure that holders of European patents can apply for one single patent protection at the European Patent Office (EPO) for the entire territory of the 25 participating Member States.

The Commission has been in contact with the Spanish authorities in view of the number of complaints received from non-Spanish citizens on the Spanish coastal law. This legislation aims to protect the coast from abusive constructions. It applies to private projects which run the risk of being demolished as they are located in areas regulated by the coastal law. It resulted from the Commission's assessment that the enforcement of the Spanish coastal law affects both Spanish nationals and nationals from other Member States.

The European Parliament continued to pay attention to the application of the Spanish coastal law. In particular the Petition's Committee dealt with a number of petitions filed by affected proprietors. In addition, a seminar on property rights in the EU was organized in the European Parliament[37].

The Spanish coastal law does not provide for a financial compensation for the property loss resulting from the demarcation of the maritime-terrestrial public domain. It provides instead for a special form of compensation consisting of the granting of an administrative concession. The Commission has no power to address the adequacy of this compensation mechanism as a sufficient connection with EU law has not been identified. The question of whether this special form of compensation is in line with the case law of the European Court of Human Rights should be examined by national courts and, after having exhausted domestic legal remedies, by the Strasbourg Court itself.

The provision of appropriate information to all interested parties throughout the chain of parties involved (cadastre, notaries, real estate services, etc.) is crucial, in particular for EU citizens having exercised the right to free movement across the EU and having transferred funds to acquire property potentially affected by the coastal law. The interconnection of land registers across the EU, such as through the European Land Information Service (EULIS), can contribute to improving the situation in that respect. The Commission will intensify its efforts in the Council working party on e-Law (e-Justice) so that the European e-Justice portal provides access to land information stored in land registers of the different Member States of the EU.

Right to asylum

The right to asylum is guaranteed by the Charter.

New rules were adopted on standards for the qualification and status of third country nationals or stateless persons as beneficiaries of international protection and the content of the protection granted. The new provisions of the Qualification directive need to be transposed into national law within two years[38]. The amendments set standards for the identification of people in need of international protection in the EU either as refugees or as beneficiaries of subsidiary protection. The text also ensures a minimum level of benefits and rights for both categories of beneficiaries of international protection throughout the EU. Member states that wish to do so can provide for more favourable rules for beneficiaries of international protection.

Negotiations continued in the European Parliament and the Council to amend some of the existing rules of the Common European Asylum System, with the aim of ensuring higher standards of protection and a more uniform treatment of asylum seekers in Member States. The Commission presented modified proposals on reception conditions for asylum seekers[39] as well as on asylum procedures[40]. The proposals aim to reduce room for administrative error in asylum procedures, thus ensuring a better respect for the principle of non-refoulement. If adopted, the new rules will contribute to enhancing gender equality and promoting the best interests of the child principle in the asylum procedures and, in addition, to reinforcing the principle of non-discrimination. The right to liberty will also be enhanced in particular by underlining that a person shall not be detained for the sole reason that he/she has registered an application for international protection; similarly, it is foreseen that detention should only be allowed in exceptional cases and only if it is in line with the principles of necessity and proportionality with regard both to the manner and to the purpose of such detention. Access to an effective remedy is also ensured.

The European Asylum Support Office (EASO) became fully operational. Its legal basis foresees that the EASO must respect fundamental rights and observe the principles recognised by the EU Charter. In particular, EASO's missions must be carried out in accordance with the right to asylum. The first EASO asylum support teams were deployed in Greece in May 2011. The support teams will provide expertise relating to interpreting services, information on countries of origin and knowledge of the handling and management of asylum cases. The aim is to support the establishment of a functioning asylum system in Greece and to ensure full compliance with fundamental rights in the implementation of EU asylum legislation.

Protection in the event of removal, expulsion or extradition

The Charter prohibits the removal, expulsion or extradition to a State where there is a serious risk that a person would be subjected to the death penalty, torture, or other inhuman or degrading treatment or punishment.

The Commission published a large scale evaluation of the negotiation and conclusion of readmission agreements by the Union[41]. These are treaties which establish obligations, criteria and procedures for third countries to readmit their own nationals, found to reside irregularly in a Member State, as well as stateless persons and nationals of other third countries, who have transited through their territory on the way to the European Union. A considerable number of recommendations came out of the Commission's evaluation, including with regard to the further strengthening of fundamental rights protection and the international protection of refugees during readmission procedures. Amongst other measures, the Commission argued the necessity of introducing provisions that commit to respecting fundamental rights, especially in consideration of third countries which are not party to the relevant international conventions. In case of persistent human rights violations in a third country in general, the Commission would be in favour of a possibility of suspending the agreement. Also, the Commission announced its intention of launching a pilot project, aimed at monitoring the wellbeing of persons after they have been readmitted to a third country, with a view to establishing a so called "post-return monitoring mechanism".

The Court of Justice of the European Union delivered two rulings on the compatibility of criminalising irregular stays under national law with the EU rules on return of irregular migrants[42]. The Court found that these rules preclude national law from imposing a prison term on an irregularly staying third-country national who does not comply with an order to leave the national territory. In a further case, the Court found that EU rules preclude national legislation imposing a prison sentence on an irregularly staying third-country national during the return procedure. However, the Court specified that such prison sentences could be applied to third-country nationals to whom the return procedure has been applied and staying irregularly with no justified grounds for non-return.

The EU Agency for Fundamental Rights issued a report on the detention of third-country nationals in return procedures[43]. This report examined law and practice on the deprivation of liberty of irregular migrants pending their removal against the applicable international human rights law framework in all EU Member States.

3. Equality

§ Major progress has been achieved on the development of a common EU approach in tackling the exclusion of Roma. Member States supported the Commission's proposal for an EU Framework for national Roma integration strategies up to 2020. Four priority fields of integration have been identified: education, employment, health and housing.

§ The Commission adopted an EU Agenda on the Rights of the Child, which sets out priorities and key actions to make these rights effective in practice. New EU rules on combating the sexual abuse and sexual exploitation of children and child abuse material have been adopted that will make it easier to fight crimes against children.

§ The EU is bound by the UN Convention on the Rights of Persons with Disabilities since 22 January 2011. This implies that the rights enshrined therein need to be implemented and respected by the EU in its legislative actions as well as in its policy-making, to the extent of its competence.

§ Citizens, members of the European Parliament and civil society representatives expressed concern about various forms and manifestations of xenophobia. Racism, xenophobia and related intolerance are contrary to EU principles of human dignity, equality and respect for fundamental rights, including the rights of persons belonging to minorities.

Non-discrimination

The Charter prohibits any discrimination based on any grounds such as sex, race, colour, ethnic or social origin, genetic features, language, religion or belief, political or any other opinion, membership of a national minority, property, birth, disability, age or sexual orientation. The Charter also prohibits discrimination on grounds of nationality, within the scope of application of the Treaties and without prejudice to any of their specific provisions. Discrimination based on racial or ethnic origin is a violation of the principle of equal treatment and is prohibited in the workplace and outside the workplace. In the area of employment and occupation, EU legislation prohibits discrimination on grounds of religion or belief, disability, age or sexual orientation.

Discussions in the Council have continued on the Commission's proposal for new rules on Equal Treatment[44]. The discussions in the Council focussed on provisions on the duty to provide reasonable accommodation for people with disabilities[45] and the issue of age. In accordance with the EU Treaty, unanimity is required in the Council to adopt the new rules on Equal Treatment. While many Member States generally support the draft Directive, a few other Member States continue to voice more fundamental objections.

The Court of Justice of the European Union declared invalid as from 21 December 2012 a derogation contained in EU gender equality legislation[46] that enables insurers under certain conditions to differentiate between men and women in individuals' premiums and benefits[47]. The derogation was found incompatible with the objective of that piece of legislation in the insurance field which concerns unisex pricing, and therefore with Articles 21 and 23 of the Charter. On 22 December 2011, the Commission issued guidelines[48] aimed at facilitating the implementation of the ruling at national level.

The EU Agency for Fundamental Rights reported on the exclusion and discrimination of migrants, minorities in employment[49]. The Agency reported that the total number of complaints of discrimination has increased as a direct consequence of the implementation of the Equality Directives in the EU Member States. However, according to the Agency's findings there are still barriers for victims that need to be overcome.

In another report, the EU Agency for Fundamental Rights examined the legal protection of persons with mental health problems under non-discrimination law[50]. According to the report's findings almost all EU Member States provide for the protection of persons with mental health problems in non‐discrimination legislation. In most cases persons with mental health problems also benefit from reasonable accommodation measures, or other protection measures, in the employment context. The report concludes by presenting examples where legislation extends the duty to provide reasonable accommodation to other areas.

European Agenda for the Integration of Third-Country Nationals

Strong guarantees for the fundamental rights of migrants as well as the need for a positive attitude to diversity and equal treatment are promoted in the "European Agenda for the Integration of Third-Country Nationals", which the Commission presented on 20 July 2011.[51] Efforts to fight against discrimination and to give migrants instruments to become acquainted with the fundamental values of the EU and its Member States need to be strengthened.

Common EU framework for tackling the exclusion of Roma

The EU made a major step forward in promoting the social and economic integration of Roma with the Commission's communication on the "EU framework for national Roma integration strategies up to 2020[52]". This EU Framework calls upon Member States to prepare or revise their national Roma integration strategies in the light of the EU goals defined in the framework, and to present them to the Commission by the end of December 2011. The EU Framework was also endorsed by the European Council[53] and welcomed by the European Parliament.

Commitment to apply the prohibition of discrimination on the ground of sexual orientation in practice

Homophobia is an unacceptable violation of human dignity that is incompatible with the founding values of the EU[54]. The Commission is using all the powers at its disposal to fight against such phenomena. In particular, the Commission followed-up petitions and parliamentary questions on discriminatory practices on grounds of sexual orientation, when they concerned matters falling within EU competence. One case concerned the refusal of Polish authorities to issue certificates on civil status to citizens who wish to marry or conclude a registered partnership with a person of the same sex in a Member State where this is possible.

The Commission intervened with the Polish authorities on the basis that this practice is incompatible with the respect of private and family life (Art. 7 of the Charter), the prohibition of non-discrimination on the basis of sexual orientation (Art. 21 of the Charter) and EU rules guaranteeing free movement and residence. Further to the Commission's intervention, the Polish authorities informed that steps would be undertaken to abolish the practice of asking the sex of the future spouse or partner.

Medical test to assess asylum applications based on allegations of persecution on grounds of sexual orientation

A report from the EU Agency for Fundamental Rights revealed the use by the Czech authorities of a specific medical test in order to assess asylum applications based on allegations of persecution on grounds of sexual orientation in the country of origin[55].

The Commission intervened against the practice of “phallometric testing[56]” on the basis of its incompatibility with EU instruments regarding the grant of international protection and notably the Charter, in particular Articles 4 and 7, concerning the prohibition of torture and inhuman or degrading treatment and respect for private and family life. The test constitutes a strong interference with the person’s private sphere and dignity, in particular for asylum seekers who have been persecuted due to their sexual orientation.

Further to the Commission's intervention, the Czech authorities confirmed that the contested practice would no longer be used in the assessment of asylum applications.

New EU rules on asylum qualification (see Protection in the event of removal, expulsion or extradition) strengthen the reasons of protection when granting the refugee status to Lesbian, Gay, Bi-sexual and Transgender (LGBT) persons and introduce an explicit reference to gender identity as a protected ground for the first time.

The Court of Justice of the European Union confirmed in a ruling on equal treatment for married couples and registered partners that a registered partner in a same sex German life partnership was entitled to receive a supplementary retirement pension under an occupational pension scheme in the same way a married partner is. The Court stated that this applied if the life partner is in a situation that is legally and factually comparable to that of a married person as regards pensions[57].

The Commission asked the EU Agency for Fundamental Rights to conduct a specific survey on hate crimes and discrimination against LGBT persons in all Member States and Croatia. The survey will complement existing studies published by the Agency[58] and ask in particular LGBT persons a series of questions about whether they have experienced discrimination, violence, verbal abuse or hate speech on the grounds of their sexual orientation or gender identity. It will also ask participants to identify the context in which such incidents took place, and their nature.

In addition, the Strategy on equality between women and men 2010-2015 foresees a study on specific issues pertaining to sex discrimination in relation to gender identity. The work for launching this study has been completed. When the results of this study are available, the Commission will look at the appropriate follow-up.

How are the rights of persons belonging to minorities safeguarded in the EU?

The respect for the rights of persons belonging to minorities is one of the founding values of the European Union, and is explicitly mentioned following the entry into force of the Lisbon Treaty. The Charter explicitly prohibits discrimination on the basis of membership of a national minority. However, Member States maintain general powers to take decisions about minorities and the use of languages on their respective territories.

In 2011, the Commission received several parliamentary questions and letters concerning the amendments to the Lithuanian Law on Education, alleging that they considerably reduce the scope of teaching in national minority languages in primary and secondary schools in Lithuania. The Polish pupils should be the most affected by these legislative changes. The Commission explained that there is no Union law on the regime governing the use of regional or minority languages or the rules on languages of instruction in schools and these matters remain the sole responsibility of the Member States which must ensure the protection of rights of minorities living in their territory.

A number of EU legislation and programmes contributed to improving the situation of persons belonging to minorities. These instruments address certain difficulties which are likely to affect them. In particular, in application of the powers that it has under the Treaties, the EU has put in place a legal framework to fight discrimination and hate speech against the persons belonging to minorities.

In 2011, a report of the EU Agency for Fundamental Rights examined in a report[59] what the Treaty of Lisbon means for the protection of minorities and the policies the EU has recently adopted in this field. The report further provides evidence of the persistent phenomenon of discrimination found in many areas of life, including employment, housing, healthcare and education.

What does the EU do to fight against racism, xenophobia and related forms of intolerance?

The Commission pursued its efforts to ensure the conformity of national laws with EU legislation against racism and xenophobia. These rules have to be introduced by Member States into their penal legislation in order to allow citizens to benefit from them, and courts to apply them. By the end of the year, twenty-two Member States had communicated to the Commission the national laws intended to penalise racist and xenophobic hate speech and to provide for an aggravating circumstance for crimes having a racist or xenophobic motivation.

The Commission received an important number of letters and parliamentary questions concerning various forms and manifestations of racism and xenophobia, targeted against different groups or individuals belonging to these groups, in particular against Roma. Racist and xenophobic attitudes expressed by opinion leaders were of particular concern as they contribute to a social climate that condones racism and xenophobia and may therefore propagate more serious forms of racist conduct, such as racist violence. Reluctance to react to any incidents of racism or xenophobia contributes to understating the seriousness of these phenomena.

The Fifth Annual Seminar between the European Commission and the State of Israel on the Fight against Racism, Xenophobia and anti-Semitism enabled effective sharing of experiences, practices and methodologies relating to racist data and trends; access to justice and effective redress against racist discrimination; fight against racist hate speech; and the prevention of racism through education, training and remembrance activities.

Data collected by the EU Agency for Fundamental Rights[60] shows that few Member States have official data and statistics on anti-Semitic incidents. Even where data exist, they are not comparable, since they are collected using different definitions and methodologies. Furthermore, in many EU Member States Jewish organisations or other civil society organisations do not collect data on anti-Semitic incidents in a systematic way, as there is no complaints mechanism in place to receive and investigate allegations. Where such data exists, usually as lists of cases, they are collected ad hoc by civil society organisations or are based on media reports with varying degrees of validity and reliability.

Rights of the child

The Charter guarantees the right to such protection and care as is necessary for the well-being of children (Article 24 of the Charter). This Article is based on the United Nations Convention on the Rights of the Child, ratified by all 27 Member States. The Charter recognises children as bearers of autonomous rights, not just as subjects in need of protection. It recognises the need to protect children from abuse, neglect, violations of their rights and situations which endanger their well-being.

The Charter further provides that the best interests of the child must be a primary consideration in all actions relating to children. This principle applies to all actions concerning children. It includes children's right to maintain contact with both parents in case of a divorce, the right to express their views freely and for their views to be taken into consideration on matters which concern them. An important principle of the Charter is that when decisions are being made on what is in the best interests of children, children should have the opportunity to express their views and these views should be taken into account.

The EU Agenda for the Rights of the Child[61] adopted by the Commission aims to put in practice the rights of the child enshrined in the Charter and the UN Convention on the Rights of the Child through a comprehensive programme of actions for the years 2011-2014. The EU Agenda identified 11 concrete actions which will contribute to the effectiveness of the rights of the child. This aim is an integral part of the Charter Strategy and, for this reason the impact of EU legislative initiatives on these rights is thoroughly assessed.

The public consultation on the right of family reunification, launched by the Commission in November 2011 tries to explore how the best interests of the child can be facilitated and ensured in practice[62].

To raise awareness among children about their rights and facilitate their participation in matters that concern them, a new website for children and teenagers specifically dedicated to children's rights was launched in all EU languages. It contains child-friendly texts, games and quizzes informing children about their rights[63]. The Commission is also preparing a strategy for a Better Internet for Children, to empower and protect them, so that they can fully enjoy the Internet and benefit from it.

New rules on combating the sexual abuse and sexual exploitation of children and child abuse material[64] adopted by the EU will make it easier to fight crimes against children by acting on different fronts. A wide range of situations of sexual abuse and exploitation will be criminalised, covering new phenomena helped by the Internet, such as child grooming, webcam abuse or web viewing of child abuse material. More detailed provisions on levels of penalties will ensure greater consistency with the severity of the offence and among Member State laws. It will also be possible to prosecute offences after child victims have reached the age of majority; confidentiality rules will not prevent professionals working with children from reporting offences; and special police units to identify child victims (especially of child abuse material) will be set up and provided with effective investigative tools. The new legal framework includes also measures to combat "child sex tourism" and child abuse material on the Internet. Member States will be obliged to ensure prompt removal of child abuse material pages and take action to have them removed if hosted outside the European Union. In addition, Member States may block access to such web pages following transparent procedures and providing safeguards. The new rules reinforce the protection of child victims, provide for preventive measures with regard to convicted offenders and facilitate background checks prior to employment involving contact with children.

In the area of justice, newly proposed rules on victim rights[65] guarantee that children's special needs for protection and support are met throughout the proceedings to ensure their active participation and avoid of additional trauma. Children should be presumed to be vulnerable victims and authorities would have to determine which special measures should be provided to them. These measures could encompass adaptation of the interview rooms to children's needs, use of communication technologies and video to avoid contact between the child and the offender. Children will also be entitled to receive information in a way they can understand. As regards procedural rights, a new set of rules foresees that in case a child is arrested, the child’s legal representative or another adult, depending on the interest of the child, is informed about it. As regards the rights of juvenile prisoners, the Commission carried out a public consultation to find more information on detention issues, including on the situation of children in pre-trial detention.

Case law on custody rights and the return of abducted children

The Court of Justice of the European Union confirmed that a child should have an opportunity to be heard in custody proceedings in a case concerning the custody rights and the return of an abducted child[66]. This is however not an absolute obligation for the court, as the court must first determine whether it is in line with the best interests of the child in each individual case. The Court of Justice further confirmed that it is up to the national courts of the Member State where the child used to live to assess whether the child had an opportunity to be heard. Courts of other Member States must respect the results of this assessment when deciding on the return of the child.

The European Court of Human Rights clarified that when issuing an order to return an abducted child, the courts must duly assess whether the return of the child would not cause psychological trauma to the child[67]. Finally, the courts must consider whether there are any alternative solutions to ensure contact between the child and the parent requesting the return. The European Court of Human Rights confirmed the obligation of the state authorities to facilitate the reunion of the parent with the child in one other case[68].

The Commission has also continued to promote cross-border cooperation between Member States in cases of criminal abductions of children through child alert systems. They are designed to provide a quick response in cases of a criminal abduction of a child by disseminating relevant information to the public within hours of the disappearance of a child. The Commission's objective is that such a system be put in place in all EU Member States. At the end of 2011, such systems were operational in 10 EU Member States. There are some differences in the functioning of the systems, but in most cases they are run through NGO co-operation with public authorities and law enforcement.[69] The Commission's objective is that such a system is put in place in all EU Member States.

The Commission also continued discussions with Member States to ensure that the 116 000 hotline for missing children becomes operational in all Member States. This hotline, which offers help, support and a potential lifeline for missing children and their parents, is currently operational in only 17 Member States.

The Hague Convention on the Civil Aspects of International Child Abduction entered into force in Russia on 1st October. In addition, Japan took steps in view of its accession to the same Convention. These developments contribute to the protection of children in the EU in case of abductions. The Commission submitted proposals to ensure consistency in the application of the Convention between the EU and the third States which have acceded to it in recent years[70].

The Commission prepared a report to better assess what has already been done to protect children in the digital world and identify what further steps might be necessary[71]. The report found that Member States and industry are increasingly making efforts to respond to these challenges, but that the measures taken are not sufficient and not applied in a consistent way throughout the EU.

The EU Youth Strategy[72] points out how the prospects of young people are determined by the opportunities which they were - or were not - offered in their childhood. The Council expressed its support for encouraging new and effective forms of participation of all young people in democratic life in Europe[73]

The Commission took a number of measures to promote a high quality of social protection provided to children in child care institutions. This included amongst other things the promotion of mutual knowledge between the Member States on this issue as well as funding several initiatives to promote the de-institutionalisation process. This does not, however, replace the responsibility of Member States, which have sole responsibility for the administration of child-care institutions.

Integration of persons with disabilities

The Charter provides that the Union recognises and respects the right of persons with disabilities to benefit from measures designed to ensure their independence, social and occupational integration and participation in the life of the community.

The EU is bound by the UN Convention on the Rights of Persons with Disabilities since 22 January 2011. This is the first time that the EU has become party to an international human rights treaty. This implies that the rights enshrined therein need to be implemented and respected by the EU in its legislative actions as well as its policy-making, to the extent of its competences.

The Commission continued the preparation of the setting up of the EU framework for promoting, protecting and monitoring the rights in the Convention by consulting relevant stakeholders and organised a Work Forum on the implementation of the UN Convention in the EU, providing for exchanges of good practices between the Member States.

The European Parliament[74] and the Council[75] endorsed the European Disability Strategy[76], which empowers women and men with disabilities so they can enjoy their full rights and benefit fully from their participation in society. The Strategy sets out the framework of action for the Commission in the field of disability and also represents the framework to implement the UNCPRD at EU level.

Progress was made in ensuring that disability rights are reflected in legislative acts. Measures in favour of persons with disabilities and with reduced mobility are included in the new Regulations on passenger rights covering maritime and inland waterways transport and bus & coach transport. Moreover, disability issues are also present in some of the most important legislative proposals of the Multi Annual Financial Framework for 2014-2020 such as the new Rights and Citizenship Program[77] and the new Programme for future Structural Funds[78]. The Charter provides that the Union recognises and respects the right of persons with disabilities to benefit from measures designed to ensure their independence, social and occupational integration and participation in the life of the community.

Access City Award

The Austrian city of Salzburg won the European prize for making cities more accessible to people with disabilities. The annual honour recognises efforts to improve accessibility in the urban environment and to foster equal participation of people with disabilities. The European Commission commended Salzburg's long-standing commitment, coherent approach and excellent results in improving accessibility, achieved with the direct participation of people with disabilities.

4. Solidarity

§ New rules on European Works Councils increased the effectiveness of employees’ transnational information and consultation rights.

§ New legislation was adopted on the application of patients’ rights in cross-border healthcare. This clarifies the rights of the patients to reimbursement of healthcare received in another Member State.

§ Citizens, Members of the European Parliament and representatives of trade unions expressed concern over the relocation or restructuring of companies. Such decisions fall primarily within the managerial prerogative, which should fully respect the requirements provided for by EU law to inform and consult employees' representatives in good time and in any case before the employer takes a decision to close the undertaking or to effect collective dismissals.

§ The protection of consumers was strengthened through the adoption of new rules on online purchases. The Commission pursues a rigorous enforcement policy to make sure that the protection granted by different EU rules on consumer protection is effectively guaranteed in national laws.

Workers' right to information and consultation

The Charter provides that workers or their representatives must, at the appropriate levels, be guaranteed information and consultation, in good time, in the cases and under the conditions provided for by EU law and national laws and practices.

The new legal framework for European Works Councils entered into force for Member States[79]. The changes aim to ensure increased effectiveness of employees’ transnational information and consultation rights. After having assisted Member States in the implementation process, the Commission opened infringement proceedings against the Member States which did not adopt the required transposing measures within the determined deadline. The Commission also issued information material to promote awareness about the rights and opportunities created by the new framework.

The Commission set up an ad-hoc working group which brings together representatives of governments and social partners and commissioned a study to assess, in both quantitative and qualitative way, the social and economic benefits and costs related to EU rules on employees' information and consultation at national company level.

Seagoing workers are excluded or may be excluded, if Member States so decide, from the EU provisions that grant workers the right to information and consultation. Following the consultation of the European social partners on this matter, the Commission is now assessing the economic and social impacts of different policy options, including the suppression of the exclusions.

Relocation or restructuring of a company

The Commission received several parliamentary questions and inquiries from MEPs, citizens and trade unions on the relocation or restructuring of a company. The decision to relocate or restructure a company falls primarily within the managerial prerogative. However, employers have to respect the requirements provided for by EU law that provides in particular for employees' representatives to be informed and consulted in good time and in any case before the employer takes a decision to close the undertaking or to effect collective dismissals. It is for the competent national authorities and in particular the courts to ensure the correct and effective application of these provisions and to guarantee that employers fulfil their duties in each particular case.

Right of collective bargaining and action

The Charter provides that workers and employers, or their respective organisations, have, in accordance with EU law and national laws and practices, the right to negotiate and conclude collective agreements at the appropriate levels and, in cases of conflicts of interest, to take collective action to defend their interests, including strike action. There is no specific EU law regulating the conditions and consequences of the exercise of these rights at national level[80]. Member States remain, of course, bound by the provisions of the Charter, including the right to strike, in instances where they implement EU law.

The Commission is currently preparing the revision of the legislative framework on the posting of workers in the context of the provision of services. In line with the Single Market Act[81], the Commission will present two legislative proposals: a Directive aimed at improving and reinforcing the transposition, implementation and enforcement in practice of the Posting of Workers Directive, which will include measures to prevent and sanction any abuse and circumvention of the applicable rules, together with a Regulation aimed at clarifying the exercise of freedom of establishment and the freedom to provide services alongside fundamental social rights.

The Commission launched a searchable database on transnational company agreements and worked with Member States and social partners to secure a more frequent use of such types of agreements. These agreements are the fruit of transnational negotiations at corporate level and cover situations located in the different countries where the European/multinational companies operate or which are affected by corporate decisions. So far, the Commission’s services have recorded some 215 transnational company agreements and joint texts in 138 companies employing together over 10 million employees.

Competences of the Commission as regards strike actions

The Commission received several complaints alleging that the measures taken by the Spanish government with regard to air traffic controllers flagrantly violated their right to collective bargaining and action. In particular, following unsuccessful negotiations between the competent social partners in view of the renewal of a collective agreement, Spain adopted a law regulating the working conditions of the Spanish air traffic controllers. Confronted with a strike, it declared a state of emergency to break it.

The Commission replied that there is no EU law which prohibits Member States from introducing, through national laws, changes to practices previously applied under collective agreements. Nor is there any specific EU law regulating the right of association or the right to strike. In these circumstances, there did not seem to be any link with any EU legislation in that case. It is therefore for the competent authorities, including the courts, to assess the legality of the eventual restrictions on the exercise of these rights, and to enforce the relevant national legislation with due respect to the applicable international obligations of the Member States.

Fair and just working conditions

The Charter guarantees that every worker has the right to working conditions which respect his or her health, safety and dignity. Every worker has the right to a limitation of maximum working hours, to daily and weekly rest periods and to an annual period of paid leave

There is a substantial body of EU law in this area concerning in particular health and safety at work[82]. This framework was further enhanced with the Commission's proposal for new EU rules on the minimum health and safety requirements regarding the exposure of workers to the risks arising from physical agents (electromagnetic fields)[83].

The Commission published a Report on the implementation of the Working time Directive[84] and reviewed in a separate document implementing legislation taking into account the social partners rules and rulings of the Court of Justice regarding organisation of Working Time[85]. On 15 November 2011, the social partners at European level decided to negotiate amongst themselves with the aim of reviewing the aforementioned Directive, in accordance with Article 155 of the Treaty on the Functioning of the European Union[86].

Case law on working time

The European Court of Justice explicitly referred to the EU Charter, which states that every worker is entitled to an annual period of paid leave, in deciding that airline pilots are entitled to be paid at their normal rate of remuneration during the 4 weeks' minimum paid annual leave required by EU rules[87]. The case focused on whether airplane pilots are entitled, during their annual leave, only to the maintenance of their basic salary or also to other components, such as the supplementary payment for the time spent away from base.

Citizen enquiries on maximum working time

Citizens submitted complaints to the Commission alleging that national laws or practices excluded certain workers from the protection of the limits to maximum working time, minimum daily and weekly rests, or minimum periods of paid annual leave. In some cases, the Commission asked Member States to explain how their laws or practices complied with EU law. Several Member States informed the Commission that they were changing their national law so as to comply with EU law; in other cases the Commission warned that it would refer a case to the Court of Justice if the Member State did not do so.

The EU Agency for Fundamental Rights examined the legal and practical challenges facing EU Member States as they strive to guarantee migrants’ fundamental rights and proposes ways to incorporate those rights into the policies, laws and administrative practices that affect migrants in irregular situations[88]. The Agency reported that an estimated 1.9 to 3.8 million irregular migrants were staying in the EU in 2008, according to the European Commission-funded Clandestino project. Because of their irregular migration status they are vulnerable to exploitation and abuse in the workplace. They also often face legal and practical barriers in getting access to basic services, such as healthcare, education and access to justice.

Social security and social assistance

The Charter recognises citizens' entitlement to social security benefits and social services providing protection in cases of maternity, illness, industrial accidents, dependency or old age, and in the case of loss of employment. Everyone residing and moving legally within the European Union is entitled to social security benefits and social advantages in accordance with Union law and national laws and practices. Member States are free to determine the details of their social security systems, including which benefits shall be provided, the conditions of eligibility, how these benefits are calculated, as well as how much contribution should be paid. European rules ensure that the application of the different national legislations respects the basic principles of equality of treatment and non-discrimination. They guarantee that migrant EU workers are treated alike with the national workers and that the application of the different national legislations does not adversely affect them.

The Commission continued to monitor the application of EU rules on social security coordination to ensure that people moving across borders within the EU do not lose their entitlements to benefits. For instance when dealing with a claim for unemployment benefits, institutions must take into account periods of insurance completed in other Member States if this is necessary for the entitlement to the benefit. For people working and residing in different Member States, EU law determines where they have to pay their social security contributions and which country is responsible to provide them healthcare or pay family benefits.

Further discussion in the context of the negotiations on the proposals for Directives on third-country seasonal workers and intra-corporate transferees took place in the Council and in the European Parliament. The Commission continues to defend the right of third-national seasonal workers to equal treatment with nationals of the admitting Member State in respect of social security rights. as well as fair treatment of intra-corporate transferees and their family members. In particular, the Commission made the point that Member States cannot restrict third country nationals' right to receive social security benefits that are based on contributions made as this would be contrary to the right to property.

A new Directive was adopted on migrant workers granting equal treatment to legally residing third-country workers in a number of fields in particular working conditions, social security, recognition of diplomas, tax benefits, education but also freedom of association[89].

The European Court of Human Rights delivered its ruling in a case that concerned the refusal of Austria to grant an old-age pension from the pension fund for lawyers[90]. The Court stated that, even though the right to a pension is not, as such, guaranteed by the Convention, the right to a pension which is based on employment can in certain circumstances be assimilated to a property right. The Court held that entitlement to a social benefit is linked to the payment of contributions, and, when such contributions have been made, an award cannot be denied to the person concerned.

Health care

The Charter recognises that everyone has the right to access preventive health care and the right to benefit from medical treatment under the conditions established by national law and practices. A high level of human health protection shall be ensured in the definition and implementation of the Union's policies and activities.

New legislation was adopted on the application of patients’ rights in cross-border healthcare. The new rules clarify the rights of patients to reimbursement of healthcare received in another Member State[91].

The EU Agency for Fundamental Rights Report documented the legal, economic and practical obstacles that migrants in an irregular situation face in accessing healthcare in 10 EU Member States and proposes a number of ways to improve this access[92]. The Agency found in particular that the risk of detection and deportation prevents migrants in an irregular situation from seeking healthcare, even in those countries where it is legally available, and suggests disconnecting healthcare from immigration control policies.

Consumer protection

The Charter provides that Union policies shall ensure a high level of consumer protection, giving guidance to the EU institutions when drafting and applying EU legislation.

The protection of consumers was strengthened through the adoption of new EU rules on online purchases[93], which require that consumers must be given essential information before they order goods or services in particular during a visit of a sales representative at their home or place of work or by a means of distance communication, such as online purchases. In addition, consumers have the right to withdraw from such contracts within 14 days. The new EU rules on consumer rights furthermore ban pre-ticked boxes, internet cost traps and charges of which the consumer are not informed in advance.

The Common European Sales Law, proposed by the Commission in October 2011, sets out an optional sales law regime based on a high level of consumer protection when purchasing goods, digital content and related services across borders on the basis of this optional law regime. For example, the Commission proposal would afford consumers a free choice of remedies in case they buy a defective product – even several months after a purchase. Thus, consumers would be able to request the repair or replacement of the product, to withhold payment, to reduce the price, to terminate the contract and/or to claim damages.

The Commission pursued a rigorous enforcement policy to make sure that the protection granted by different consumer protection directives is effectively guaranteed in national laws. Several Member States improved their rules on the sale of consumer goods following intervention by the Commission. The Commission opened infringement proceedings against Member States which were late in transposing EU legislation on timeshares. Further to this, the large majority of Member States adopted the necessary implementing measures.

Specif