EN    EN  
 EUROPEAN  
COMMISSION 
Brussels, 8.5.2015  
SWD(2015) 99 final 
  
COMMISSION STAFF WORKING DOCUMENT 
Staff Working Document on the application of  the EU Charter of Fundamental rights in 
2014 
Accompanying the document 
REPORT FROM THE COMMISSION TO THE EUROPEAN PARLIAMENT, THE 
COUNCIL, THE EUROPEAN ECONOMIC AND SOCIAL COMMITTEE AND THE 
COMMITTEE OF THE REGIONS  
 
2014 Report on the Application of the EU Charter of Fu ndamental Rights 
{COM(2015) 191 final}  
 
2 Staff Working Document on the application of the EU Charter 
of Fundamental rights in 2014 
Introduction 
 
After the entry into force of the EU Charter of Fundamental Rights1 (the Charter), in December 2009, 
the Commission adopted a Strategy on the effective implementation of the Charter2 setting as an 
objective that the EU is beyond reproach as regard  the respect of fundamental rights, in particular 
when it legislates. The Commission further committe d to preparing Annual Reports to better inform 
citizens on the application of the Charter and to measure progress in its implementation. The reports 
are intended to serve as a factual basis for the continuing informed dialogue between all EU 
institutions and Member States on the implementation of the Charter.  
This Report covers the year 2014 a nd informs the public about situatio ns 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 Report aims to track where progress is 
being made, where further efforts are still necessary and where new concerns are arising.  
The Annual Report is based on the actions taken by th e EU institutions, on the analysis of letters and 
petitions from the general public and questions from the European Parliament. In addition, the 
report covers key developments as regards the juri sprudence of the Court of Justice of the European 
Union (CJEU), and provides information on the case law of national courts on the Charter, based on 
the contributions received from Member States and further analysis carried out by the EU Agency for 
Fundamental Rights (FRA).  
 
Protection of Fundamen tal Rights in the EU 
 
In the European Union, the protection of fundamental  rights is guaranteed both at national level by 
Member States' constitutional systems and at EU level by the Charter.  
The Charter applies to all actions taken by the EU institutions . The Commission ensures that all its 
acts and proposals respect the Charter. All EU in stitutions (including the European Parliament and 
the Council) must respect the Charter, in pa rticular throughout the legislative process.  
The Charter applies to Member States only when they implement EU law . Hence it does not replace 
national fundamental rights systems but complements them. The concept of "implementation" 
implies a connecting factor between a Member State's action and a provision of EU law. That 
connecting factor will depend on the situation in qu estion. For example, a connecting factor exists: 
                                                            
1 Available at: http://eur-lex.europa.eu/LexUriServ/LexUri Serv.do?uri=OJ:C:2010:083:0389:0403:en:PDF . 
2 Available at: http://ec.europa.eu/justice/news/intro/doc/com_2010_573_en.pdf . 
 
3 when national legislation transposes an EU Dire ctive, when an administrative authority takes a 
measure it is required to take under EU law, or when a national court affords judicial protection 
regarding a claim based on a right conferred on an individual or business by  EU law. 
If a national authority (legislative, administrative or  judicial) violates fundamental rights set out in the 
Charter when implementing EU law, the Commission can launch an infringement procedure against the Member State in question and, ultimately, take  that Member State to the CJEU. 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 St ates apply EU law correctly. Therefore, regarding 
administrative or judicial decisions, an infringement procedure will normally be launched only if the 
Commission detects a wider, e.g. structural, problem.  The objective of the infringement procedure 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. The Commi ssion will therefore normally start by contacting 
the Member State informally, to have the problem solved consensually, befo re launching the formal 
stages of the infringement procedure. 
Where individuals or businesses consider that an ac t of the EU institutions directly affecting them 
violates their fundamental rights as enshrined in the Charter, they can bring their case before the CJEU, which, subject to certain conditions, has the power to annul the act in question. 
The Commission cannot pursue complaints which concern situations outside the implementation 
of EU Law . In those situations, it is for the Member St ates alone to ensure that their obligations 
regarding fundamental rights are respected. Member States have domestic guarantees of fundamental rights, normally at constitutional le vel. These guarantees are protected by national 
judges and, as the case may be, constitutional courts . Accordingly, complaints in this context need to 
be directed to the national level.  
In addition, all EU Member States are bound by the commitments they have made under the 
European Convention on Human Rights  (ECHR), independent of their obligations under EU law. 
Therefore, as a last resort and after having exhaus ted 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 
(ECtHR) has designed an admissibility checklist in or der to help potential ap plicants work out for 
themselves whether there may be obstacles to their complaints being examined by the ECtHR
3.  
 
                                                            
3 Available at: http://appform.echr.coe. int/echrappchecklist/?cookieCheck=true.  
 
4 
 
 
The European Convention of Human Rights (ECHR) 
 
Therefore, even where the Charter is not applicable to a given situation within an EU Member State, 
two other sources of protection for fundamental rights exist: Individuals may have recourse to 
national remedies  and, after having exhausted them, they can lodge an application to the ECHR , in 
conformity with that convention. 
The Treaty of Lisbon has imposed an obligation on the EU to accede to the ECHR. In April 2013, the 
draft agreement on accession of the EU to th e ECHR was finalized. On 18 December 2014 the CJEU 
delivered its opinion on the draft agreement . Although the Court identified problems with regard to 
its compatibility with EU law and declared the draf t accession agreement not compatible with Article 
6(2) TEU or with Protocol (No 8) relating to Article 6(2) TEU. The opinion will determine the 
Commission's position in the pursuit of the negoti ations with the Contracting Parties to the ECHR. 
These negotiations will continue, as accessi on to the ECHR is a priority for the Juncker  Commission. 
Furthermore, the interpretation of the Charter rights which correspond to rights guaranteed by the 
ECHR must correspond to the interpretation of the latter, by the ECtHR. 
 
 
5 Overview of the letters and question s to the Commission on fundamental 
rights 
 
During 2014, the Commission received over 3000 letters from the general public concerning 
fundamental rights issues as well as over 600 que stions from the European Parliament. It has 
received almost 200 petitions regarding fundamental rights issues. 
Among the letters from the general public on fundamental rights issues received by the Commission 
in 2014, 37% concerned situations where the Char ter 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 ca ses, the complaints should in fact have been 
addressed to the national authorities or to the EC tHR. Where possible, compla inants were redirected 
to other bodies for more information (such as na tional data protection authorities). Given that 
almost two thirds of the letters fell outside the scope of EU competence, there still seems to be a 
need for a better understanding of when the Charter applies and when it does not apply. 
 
Source: European Commission 
 
 
6 
 
Source: European Commission 
Important to note is that two third of the letters from the general public concerning fundamental 
rights issues concerned questions which fell outsid e the scope of EU competence. This shows that 
there still is a need for a better understanding of when the Charter applies and when it does not. 
Among the questions from the European Parliame nt, 464 concerned issues within EU competence 
(compared to 168 outside the scope of EU compet ence). Among the fundame ntal rights related 
petitions received by the European Parliament  on which the Commission was questioned, 116 
concerned issues within EU competence wherea s 76 concerned issues outside EU competence. 
 
 
Source: European Commission Outside 
competence
40%
with specific 
follow  -up
15%no specific 
follow  - up 
45%Petitions
 
7 In 15% of all cases for the questions and the peti tions, 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 on-going initiatives. 
Overview of the decisions of the Cour t of Justice of the European Union 
(Court of Justice, General Court and Civil Service Tribunal) referring to 
the Charter 
 
The European Union Courts have increasingly referred to the Charter in their decisions. The number 
of decisions of these Courts quoting the Charter in  their reasoning developed from 43 in 2011 to 87 
in 2012. In 2013, the number of these decisions quoting the Charter amounted to 113, which is 
almost a triple of the number of cases of 2011. In  2014, this number rose even higher to 210 cases 
(see Appendix I for an overview of all relevant rulings). 
 
 
 
National courts when addressing questions to the CJEU (preliminary rulings) are often referring to 
the Charter. Regarding applications for preliminary rulings submitted by national judges to the CJEU 
in 2014, 43 of the requests submitted contained a refe rence to the Charter, slightly more than in 
2013, when 41 requests contained a reference to the Charter (See Appe ndix II for an overview of the 
applications for preliminary rulings submit ted in 2014 which refer to the Charter).  
 
8 
 
 
References to Charter rights in decisi ons of the Court of Justice of the 
European Union and of national courts 
 
When focusing on the different articles of the Charter referred to in cases before the EU Courts and 
before national courts the following articles featured  prominently in both scenarios: the right to an 
effective remedy and to a fair trial, and the sc ope and interpretation of rights and principles. 
However, the right to good administration and the right to property were more often referred to in 
the jurisprudence of the EU Courts, whereas the righ t to respect for private and family life played a 
more important role be fore national courts. 
 
9 
 
Source:  European Commission 
Note: The basis for this pie chart is the case law as referred to in Appendix I. The total number of 
judgments analysed therefore amounted to 210, a nd the total number of references to different 
Charter articles amounted to 446, as several judg ments referred to more than one article. The 
percentages were calculated on the basis of these 446 references. The category 'Other rights' refers 
to all rights for which the percentage amounts to less than 3 %. 
 The rights mostly referred to in decisions of national courts in 2014  were the right to an effective 
remedy and to a fair trial, the respect for privat e and family life, the scope and interpretation of 
rights and principles and the field of application. Please note that the chart below only takes into 
account those decisions where the Charter was referred to in the reasoning of the court. 
 
10 
 
Source:  European Union Agency for Fundamental Rights (FRA)  
Note: Only decisions where the Charter was referred to in the reasoning of the courts were taken 
into account, and only up to five judgments per Me mber State were considered. The category 'Other 
Rights' refers to all rights for which the percentage amounts to less than 3 %. 
 
Overview of enquiries with the Europe Direct Contact Centres  
 
The figures collected by the Europe Direct Contact Ce ntres (EDCC) confirm that there is a high degree 
of interest among citizens on justice, citizenshi p and fundamental rights. In 2014, the EDCC replied to 
11608 enquiries from citizens on topics such as free movement of persons (48.5 % of the total 
number of enquiries), consumer rights (12.7 %) and judicial cooperation (11%). 
 
 
11 
 
Source: European Commission 
 
Methodology and Structure of the Staff Working Document  
 
The Staff Working Document annexed to the Annual Report does not look at the Charter only as a 
legally binding source of law. It rather aims also  to render account, from a broader perspective, of 
the different ways the Charter was invoked and co ntributed to the progress made in respecting and 
promoting fundamental rights in a number of ar eas during 2014. As a consequence, the Staff 
Working Document refers to the Charter as a lega lly binding instrument as well as a policy objective 
depending on the areas concerned. Furthermore, accounts given under the different chapters of the 
report vary in breadth as well depth. 
Hence, some chapters may show how certain legislative measures are interacting with fundamental 
rights by promoting them or by finding the right balance in complying with them, including references to the relevant case law of the CJEU. Other chapters contain little of both and/or may 
concentrate on policy rather than legislative me asures. To illustrate the growing impact of the 
Charter, the Staff Working Document - on the margins of the page where relevant - includes national court decisions which refer to the Charter, irrespecti ve of whether EU law in those national cases was 
applicable or not. 
Some measures and cases may have an impact on di fferent articles of the Charter. Hence, while a 
measure and/or case are explained in a more detailed manner under one chapter (the heading of 
one article) it may be referred to under a different one as well. 
 
12 The structure of the Staff Working Document follows  the seven titles of the Charter itself: Dignity, 
Freedoms, Equality, Solidarity, Citizens’ rights,  Justice and General provisions governing the 
interpretation and application of the Charter. Each of the seven chapters of the Staff Working 
Document contains the following information on th e application of the Charter, where available and 
relevant: 
• Legislation: 
o Examples of EU institutions (proposed or adopted) legislation promoting the Charter 
rights; 
o Examples of how the EU institutions an d the Member States ensured compliance 
with and have applied the Charter in 2014 within other (proposed or adopted) 
legislation; 
• Policy: 
o Examples of how the EU institutions an d the Member States ensured compliance 
with and have applied the Charter in 2014 within policy areas, e.g. through 
recommendations and guidelines and best practices;  
• Case law:  
o Relevant jurisprudence of the CJEU; 
o Case-law of national courts referring to the Charter (be it within or outside the scope 
of EU law); 
• Application by Member States: 
o Follow-up: infringement procedures laun ched by the Commission against Member 
States for not or wrongly implementing relevant legislation; 
• An overview of questions and petitions from the European Parliament, and letters from the 
general public received in 2014 focusing  on main fundamental rights issues; 
• Data gathered by the EU Agency for Fundamental Rights throughout 2014. 
 
13 Dignity 
 
In 2014, the European Commission furt her promoted the prohibition of trafficking in human beings  
by taking stock of the actions taken in recent years and identifying needs for further improvement. In 
order to help more civil society organisations to engage with the Commission and exchange 
information on actions against human trafficking, the European Commission has launched the EU 
Civil Society e-Platform. 
The Regulation establishing rules for the  surveillance of the external sea borders  in the context of 
operational cooperation coordinated by Frontex  was adopted by the Parliament and the Council on 
15 May 2014, based on a proposal from the European  Commission. This Regulation provides for clear 
rules on interception applicable to sea-border surveillance operations coordinated by Frontex and 
improves measures of coordination in search and rescue situations that arise during these 
operations, so as to ensure the protection and sa fety of lives. It strengthens the protection of 
fundamental rights, in particular the principle of non-refoulement  by establishing a procedure for the 
principle's implementation. 
Human Dignity also played an important role in several judgments of the CJEU. In case A, B, C v 
Staatssecretaris van Ve iligheid en Justitie  4 the court made it clear that, while Member States are 
entitled to assess the credibility of the statements of an applicant regarding his/her sexual 
orientation  in asylum proceedings, the methods used by the competent national authorities to 
assess the credibility of those statements must ensu re the respect of fundamental rights, such as the 
right to respect for human dignity. In the case Saciri and Others5, the CJEU emphasised that the 
question of what constitutes minimum standards for housing of asylum applicants  must be 
interpreted in light of fundamental rights and in particular Article 1 of the Charter. 
                                                            
4 CJEU judgment of 2 December 2014 in Jo ined Cases C-148/13, C-140/13 and C-150/13 A, B, C v 
Staatssecretaris van Ve iligiheid en Justitie, see also Articles 7, 18 and 21 . 
5 CJEU Judgment of 27 February 2014 in Case C-79/13 Saciri and Others, see also Article 24. 
 
14 Titl e I 
Dignity 
 
Article 1 – Human Dignity 
Human dignity, as protected in Article 1 of the Charter, is the basis of all fundamental rights. It 
guarantees the protection of human beings from being treated as a mere objects by the State or by 
his/her fellow citizens. It is not only a right in it s own but also part of the very substance of each 
right. Thus it needs to be respected when any of these rights are restricted. All subsequent rights and 
freedoms under the title Dignity, such as the right to life, and the prohibition of torture and slavery 
add specific protection against infringements of dignity. They must equally be respected in order to allow enjoyment of other rights and freedoms in th e Charter, for example freedom of expression and 
freedom of association. None of the rights laid do wn in the Charter may be used to harm the dignity 
of another person.  
Legislation Human Dignity issues arose in a few instances in  2014. The European Commission took the right to 
human dignity into account when preparing a legislative proposal
6 for amendment of Regulation (EC) 
No 1236/2005 concerning trade in certain goods which could be used for capital punishment , 
torture or other cruel, inhuman or degrading treatment or punishment . This proposal was adopted 
by the European Commission on 14 January 2014 a nd should in particular improve the export 
controls on certain medicinal produc ts to prevent the use of such pr oducts for capital punishment. In 
addition, in July 2014, the European Commission p ublished new lists of goods subject to the trade 
restrictions of Regulation (EC) No 1236/20057.  
Policy Both the European Parliament
8 and the Committee of the Regions9 recalled that homelessness  is a 
violation of human dignity and of human righ ts. The European Commission confirmed that 
confronting homelessness remains a priority and that the EU will continue efforts to reduce 
homelessness and housing exclusion through the impl ementation of the Social Investment Package10.  
                                                            
6 Proposal for a Regulation of the European Parliament and of the Council amending Council Regulation (EC) No 
1236/2005 concerning trade in certain goods which coul d be used for capital punishment, torture or other 
cruel, inhuman or degrading treatment or punishment, COM(2014)1, available at:  
http://eur-lex.europa.eu/legal-content/E N/TXT/HTML/?uri=CELEX:52014PC0001&from=EN  . 
7 European Commission Implemen ting Regulation (EU) No 775/2014, OJ L 2 10, 17.7.2014, p. 1. The new lists 
replace those found in European Commission Implementi ng Regulation (EU) No 1352/2011, OJ L 338, 
21.12.2011, p. 31. 
8 European Parliament resolution of 16 January 2014  on an EU homelessness st rategy (2013/2994(RSP)). 
9 Opinion of the Committee of the Regions — A European  homelessness strategy, OJ C 271, 19.8.2014, p. 36. 
10 For more details see Article 34. 
 
15 Case law 
On 2 December 2014, the CJEU ruled on preliminary questions referred to it by the Dutch Council of 
State in the case A, B, C v Staatssecretaris van Veiligheid en Justitie  11 concerning the interpretation 
of EU provisions on asylum in relation to the me thods by which national authorities may assess the 
credibility of the declared sexual orientation of applicants for asylum . The applicants in the three 
joined cases brought an appeal against a decision of the Staatssecretaris in which their application 
for a temporary residence permit (asylum) in the Netherlands was rejected. The applicants claimed 
that they feared persecution in their countries of origin on account of their homosexuality. The national court asked the CJEU whether there are any limits imposed by EU law as regards the 
verification of the sexual orientation of applicants for asylum. In its ruling the Court underlined that 
the Asylum Qualification Directive 2004/83/EC [as repealed and replaced by Directive 2011/95/EU] 
and the EU Charter impose certain limits as regard s the verification of the sexual orientation of 
applicants for asylum. The judgment makes it clear that, while Member States are entitled to assess the credibility of the statements of an applicant regarding his/her sexual orientation, the methods 
used by the competent national authorities to assess  the credibility of those statements must ensure 
the respect of fundamental rights, such as the right to respect for human dignity and the right to respect for private and family life. In this regard , nothing can be required of applicants that would 
undermine their human dignity or personal integrity, which may be the case in particular for intrusive 
and humiliating medical/ pseudo-medical tests; the same applies for intrusive questioning, or 
requiring/accepting photographic or video evidence of sexual practices. The assessment cannot be 
based on stereotyped notions and should always ta ke full account of the individual situation and 
personal circumstances of the appl icant. These clarifications provid ed by the CJEU will enable the 
competent national authorities to assess applicat ions based on the sexual orientation of the 
applicant in a more convergent manner, while ensuring the full respect of fundamental rights. 
In Saciri and Others
12 the CJEU clarified the minimum standa rds Member States must observe to 
ensure that asylum applicants  are housed  adequately. The CJEU emphasised that the question of 
what constitutes minimum standards  must be interpreted in light of fundamental rights and in 
particular Article 1 of the Charter, under which human dignity must be respected and protected. The CJEU therefore held that where a Member State has opted to grant the material reception conditions 
in the form of financial allowances or vouchers, th e total amount of the financial allowances covering 
the material reception conditions is sufficient to ensure a dignified standard of living and adequate for the health of applicants and capable of ensuring  their subsistence, enabling them in particular to 
find housing, having regard, if necessary, to the preservation of the interests of persons having 
specific needs. The amount of those allowances mu st also be sufficient to enable minor children to 
be housed with their parents, so that the family  unity of the asylum seekers may be maintained.  
 
Article 2 – Right to life 
According to Article 2 everyone has the right to life and no one shall be condemned to the death 
penalty, or executed. 
                                                            
11 CJEU judgment of 2 December 2014 in Jo ined Cases C-148/13, C-140/13 and C-150/13 A, B, C v 
Staatssecretaris van Veiligheid en Justitie, see also Articles 7, 18 and 21 . 
12 CJEU Judgment of 27 February 2014 in Case C-79/13 Saciri and Others, see also Article 24.   
 
16  
Article 3 – Right to the integrity of the person 
The right to physical and mental integrity of the pers on (Article 3 (1) of the Charter) on the one hand 
protects against interferences by public authorities. On the other hand it also puts them under an 
obligation to promote such protection, e.g. by concrete legislation. 
Policy The European Commission supports Member States in related key policy areas, such as policies 
putting an end to gender-based violence. Gender-based violence constitutes a breach of the fundamental right to dignity and physical and mental integrity of a person, as well as the rights to 
life, liberty, security, equality between women and men and the principle of non-discrimination. 
In 2014, the European Commission pursued its efforts to improve knowledge on gender-based 
violence  and raise awareness on the prevalence of this violation of fundamental rights. In 
cooperation with national statistical offices, Euro stat started to collect more detailed crime data 
recorded by the police and justice systems and disaggregated by sex. The European Commission 
supported awareness-raising by Member States, including targeted campaigns on sexual harassment 
among young people, the role of men in combating violence against women, or the role of health 
professionals in detecting violence and support ing its victims. The European Commission funded 
grassroots projects aimed at preventing violence against women, including harmful practices (female 
genital mutilation, forced marriage and ‘honour crimes’), supporting victims and training relevant 
professionals.
13  
The Commission also implemented the concrete actions announced in the Communication "Towards 
the elimination of female genital mutilation "14, adopted in November 2013 and promoting Article 3 
of the Charter.15 For example, it supported the development of a web-based knowledge platform on 
female genital mutilation, which will train and su pport professionals who can help women and girls 
living with or at risk of female genital mutilation. 
Application by Member States 
In 2014, the European Commission launched infringe ment proceedings against 11 Member States for 
the non-communication of measures transposing Directive 2011/93/EU on  combating the sexual 
abuse and sexual exploitation of children and child pornography16. The deadline for the Member 
States to transpose this directive into national law was on 18 December 2013.17 
 
                                                            
13 See also Articles 23 and 24. 
14 Communication from the European Commission to the European Parliament and the Council "Towards the 
elimination of female genital mutilation" of 25.11.2013, COM(2013) 833 final, available at: 
http://ec.europa.eu/justice/gender-
equality/files/gender_based_violenc e/131125_fgm_communication_en.pdf  . 
15 See also Articles 23 and 24. 
16 Directive 2011/92/EU on combating the sexual ab use and sexual exploitation of children and child 
pornography, and replacin g Council Framework Decisio n 2004/68/JHA, OJ L 335, 17.12 .2011, p. 1. 
17 See also Article 24. 
 
17 Article 4 – Prohibition of torture and inhuman or degrading treatment 
or punishment 
Article 4 of the Charter provides that no one shall be subjected to torture or to inhuman or degrading 
treatment or punishment. The respect of fundamental rights requires particular vigilance in the field 
of border controls, immigration and asylum issues. 
Legislation With a view to the judgment of the CJEU in the case Parliament v Council
18, Regulation (EU) 656/2014 
establishing rules for the surveillance of the external sea borders  in the context of operational 
cooperation coordinated by Frontex19 was adopted by the Parliament and the Council on 15 May 
2014, based on a proposal from the European Commi ssion. This Regulation provides for clear rules 
on interception applicable to sea-border surv eillance operations coordinated by Frontex and 
improves measures of coordination in search and rescue situations that arise during these 
operations, so as to ensure the protection and sa fety of lives. It strengthens the protection of 
fundamental rights, in particular the principle of non-refoulement  by establishing a procedure for the 
principle's implementation. The Regulation requires that after a rescue operation persons are 
disembarked in a place of safety, which is defined as  a place where not only the safety of life is no 
longer threatened but also takes into account the protection of fundamental rights in compliance 
with the principle of non-refoulement .20 
Policy In 2014, Frontex has produced a Handbook for trainers on fundam ental rights for border guards
21 in 
consultation with the Fundamental Rights Ag ency and UN bodies. Fundamental rights are a 
prominent aspect during the briefing provided to bo rder guards before the start of joint operations. 
The fundamental rights challenges at the external borders remain significant and Frontex is committed to ensuring that fundamental rights are respected during joint operations under its 
coordination.  
At the end of 2014, the European Ombudsman  started on her own initiative an inquiry
22 concerning 
the means through which Frontex ensures respect for fundamental rights of the persons who are subject to forced returns in joint return operatio ns (JRO). The ombudsman noted in the inquiry that, 
by their very nature, forced return operations h ave the potential to involve serious violations of 
fundamental rights. The ombudsman stressed that it is  important for the public to know how Frontex 
is equipped to deal with any violations that may ta ke place and what steps it takes to minimise the 
                                                           
 
18 CJEU judgment of 5 September 2012 in Case C-355/10 Parliament v Council , for more details on this case and 
the response to the judgment see Article 4 of the 20 13 Report on the application of the EU Charter of 
Fundamental Rights. 
19 Regulation (EU) No 656/2014 of th e European Parliament and of the Council of 15 May 2014 establishing 
rules for the surveillance of the extern al sea borders in the context of op erational cooperation coordinated by 
the European Agency for the Management of Operationa l Cooperation at the External Borders of the Member 
States of the European Union, OJ L 189, 27.6.2014, p. 93-107. 
20 See also Article 19. 
21 Available at: 
http://frontex.europa.eu/assets/P ublications/Training/Fundamental_Rights_Training_for_Border_Guardsl.pdf  . 
22 OI/9/2014/MHZ, available at: 
http://www.ombudsman.europa.eu/cases/corre spondence.faces/en/ 58135/html.bookmark  . 
 
18 risk of such violations occurring. The inquiry also includes Frontex's cooperation with the national 
monitoring bodies.   
A number of detailed questions23 were asked, to which Frontex has submitted a reply on 5 February 
2015.24 Frontex stresses in its reply that the Fundament al Rights Officer (FRO) has never received a 
complaint or a serious incident report alleging violations of fundamental rights during a JRO coordinated by Frontex since her appointment. Theref ore, participation in JROs has so far served the 
purpose of learning how JROs are organised and carrie d out, as well as identifying potential critical 
issues and best practices during the operations from the perspective of the Frontex mandate. In this sense, for instance, the participation of children in JROs is of crucial interest and concern. The 
upcoming revision of the Best Practices for JROs re presents an excellent opportunity to provide more 
fundamental rights guidance in this respect. Fo r instance, the FRO has observed a variety of 
embarkation and boarding methods among MSs of families with children and has discussed ways to 
minimise the risk of impact of the operations and avoid any potential exposure to use of force during 
JROs. Frontex has so far not allowed participatio n of unaccompanied minors in JROs, even before 
FRO's appointment, and the FRO supports this approa ch in light of the best interests of the child.
25 
Case law Two important judgments concerning the obligations for the sending and receiving Member States 
under the Dublin procedure, also to be read in light of relevant new obligations for Member States set out in the Dublin III Regulation
26, were issued by the European Court of Human Rights. On 4 
November 2014 in the case Tarakhel v Switzerland27, the European Court of Human Rights issued a 
judgment on whether a Dublin transfer of a family with children by Switzerland to Italy would violate 
Articles 3, 13 and 8 of the European Convention of Human Rights. The ECtHR did not consider that 
there are systemic deficiencies in the Italian as ylum system such as would justify a systematic 
suspension of Dublin transfers to Italy, stressing th at the situation in Italy is not comparable to the 
situation in Greece which led to the ECtHR M.S.S.28 judgment. However, the Court pointed out that in 
view of the current situation as regards the receptio n system in Italy, the possibility that a significant 
number of asylum seekers may be left without accommodation or accommodated in over-crowded 
facilities without any privacy, or even in insa lubrious conditions or violent conditions is not 
unfounded. Therefore, in view of complying with Article 3 of the ECHR, Switzerland should seek individual guarantees from Italy "that the applicants would be taken charge of in a manner adapted 
to the age of the children and that the family would be kept together" before sending the applicants 
to Italy.
29 
                                                            
23 http://www.ombudsman.europa.eu/cases/corre spondence.faces/en/ 58135/html.bookmark 
24 http://www.ombudsman.europa.eu/en/cases/co rrespondence.faces/en/59007/html.bookmark 
25 For more information on the best interests of the child, see below under Article 24. 
26 Regulation (EU) No 604/2013 of 26  June 2013 establishing the criteria  and mechanisms for determining the 
Member State responsible for examinin g an application for international protection lodged in one of the 
Member States by a third-country national or a stat eless person (recast), OJ L180, 29.06.2013, p. 31. 
27 ECtHR, Tarakhel v Switzerland  (GC), No 29217/12, 04.11.2014. 
28 ECtHR, M.S.S. v Belgium and Greece  (GC), No 30696/09, 21.01.2011. 
29 See also Articles 18, 19 and 24. 
 
19 Another important judgment concerning Dublin transfers was rendered in the case Sharifi and 
Others30. The case concerned 32 Afghan nationals, two Sudanese nationals and one Eritrean national, 
who alleged, in particular, that they had entered It aly illegally from Greece and been returned to that 
country immediately, with the fear of subsequent de portation to their respective countries of origin, 
where they faced the risk of death, torture or inhuman or degrading treatment. The Court shared the 
concerns of several observers with regard to the automatic return, implemented by the Italian 
border authorities in the ports of the Adriatic Sea, of persons who, in the majority of cases, were 
handed over to ferry captains with a view to bei ng removed to Greece, thus depriving them of any 
procedural and substantive rights. In addition, it reiterated that no form of collective and 
indiscriminate returns could be justified by reference to the Dublin system, being for the State carrying out the return to ensure that the destin ation country offers sufficient guarantees in the 
application of its asylum policy to prevent the pe rson concerned being removed to his country of 
origin without an assessment of the risks faced. The Court found thus a violation by Italy of Article 4 
of Protocol No. 4 (prohibition of co llective expulsion of aliens), of Article 3 in relation to the return of 
the applicants to Greece as well as of Article 13 combined with Article 3 of the Convention and 
Article 4 of Protocol No. 4 on account of the lack of access to the asylum procedure or to any other 
remedy in the port of Ancona.
31 
On 9 December 2014 the Senate Intelligence Commi ttee released its long awaited Study of the 
Central Intelligence Agency's (CIA) detention an d interrogation program, detailing the so-called 
enhanced interrogation techniques (EIT) used at the time of the Bush-administration. The study 
confirms what the European Parliament has conde mned on several occasions, the latest in a 
resolution of 7 October 201332: the secret detention and transportation of detainees and their 
torture and ill-treatment by the CIA , often in collusion with the authorities in third countries 
including Member States. In July 2014 the European  Court of Human Rights held that one Member 
State had infringed a number of fundamental rights under the ECHR, including the prohibition of 
torture under Article 3 ECHR, when cooperating with  the CIA's activities on that Member States' 
territory.33 The European Commission has consistently stressed that all concerned Member States 
have to conduct in-depth, independent and impartial investigations to establish the facts in relation 
with the CIA program.   
 
Article 5 – Prohibition of slavery and forced labour 
Slavery violates human dignity. Trafficking in human beings is one form of slavery. The Charter 
explicitly prohibits trafficking in human beings in  Article 5 (3). Preventing and combating it is a 
priority for the Union and the Member States. 
Policy 
                                                            
30 ECtHR, Sharifi and Others v Italy , No 16643/09, 21.10.2014. 
31 See also Articles 18 and 19. 
32 European Parliament resolution of  10 October 2013 on alleged tran sportation and illegal detention of 
prisoners in European countries by the CIA (2013/2702(RSP)). 
33 ECtHR, Al Nashiri v. Poland,  No. 28761/11. 
 
20 On 19 June 2012, the European Commission presented a Communication on the "EU Strategy 
towards the Eradication of Tra fficking in Human Beings 2012-2016"34, which aims to address in a 
comprehensive, integrated and structured way the challenges in the EU for the next five years. The 
EU Strategy proposes a series of 40 concrete ac tions, in particular for the European Commission, 
other EU institutions, Member States and JHA agen cies. The document emphasizes the necessity to 
respect and promote fundamental rights in all legislative and policy measures which address 
trafficking in human beings.  
On 18 October 2014, to mark the 8th EU Anti-trafficking Day, the European Commission presented the 
Midterm Report on the implementation of the EU St rategy towards the eradication of trafficking in 
human beings 2012-201635, the Second Eurostat Working Paper on  statistics on trafficking in human 
beings36 and a Communication on the application of the Directive 2004/81/EC regulating the granting 
of a temporary residence permit to third-country national victims of trafficking in human beings or 
who have been the subject of an action to fac ilitate illegal immigration, who cooperate with the 
authorities for the investigation and pr osecution of the alleged traffickers37. 
The Midterm Report  takes stock of the actions that have been launched and implemented by the 
European Commission jointly with other EU instit utions, Member States, Justice and Home Affairs 
Agencies and civil society. The Report covers the pe riod since the adoption of the Strategy until the 
third quarter of 2014. It also includes as an Anne x the Second Report on the implementation of the 
Joint Statement signed by the seve n Heads of Justice and Home Affair s Agencies on 18 October 2011.    
The Second Eurostat working paper on statistics on trafficking in human beings , published on the 
same day and covering the years 2010, 2011 and 2012, is  the only statistical data collection existing 
at EU level on trafficking in human beings. Enco uraging progress has been achieved in terms of 
availability of data, but the working paper also po ints to a need for further improvement. The 
working paper does not measure the full extent of tr afficking in human beings, it provides data only 
on the victims and traffickers that have come into  contact with authorities and actors at national 
level. An important ongoing research project in this regard is Addressing Demand in Anti-Trafficking Efforts and Policies (DemandAT
 38). 
The Communication on Directive 2004/81  takes stock of the relevant st eps that have been taken in 
EU policy addressing trafficking in human beings in the ten years following the adoption of this 
Directive and provides an updated overview of the main legal and practical issues relating to its 
                                                            
34 Available at: http://eur-lex.europa.eu/LexUriServ/LexU riServ.do?uri=COM:2012:0286:FIN:EN:PDF  . 
35 European Commission Staff Working Document "Mid-term report on the implementation of the EU strategy 
towards the eradication of trafficking in huma n beings", COM(2014) 635 final, available at: 
http://ec.europa.eu/dgs/ho me-affairs/what-is-new/news /news/docs/20141017_mid-
term_report_on_the_2012-2016_eu_strategy_on_trafficking_in_human_beings_en.pdf  . 
36 Available at: http://ec.europa.eu/dg s/home-affairs/what-is-
new/news/news/docs/20141017_working_paper_on_statistics_on_trafficking_in_human_beings_en.pdf  . 
37 Communication from the European Commission to the Council and the Europe an Parliament on the 
application of Directive 2004/ 81 on the residence permit issued to th ird-country nationals who are victims of 
trafficking in human beings or who ha ve been the subject of an action to facilitate illegal immigration, who 
cooperate with the competent author ities, COM(2014) 635, available at: 
http://ec.europa.eu/transparency/regdoc/rep/1/2014/EN/1-2014-635-EN-F1-1.Pdf  . 
38 http://research.icmpd.org/2491.html  . 
 
21 application. Available figures show that the possib ility of issuing temporary residence permits to non-
EU victims is currently under-used. For example,  in 2012 only 1.124 first residence permits were 
granted in the EU to victims who cooperated with the authorities, whereas for that very same year 
23 Member States registered 2.171 non-EU citizens as victims of trafficking. The European Commission will continue to engage with Member St ates to ensure full and correct implementation 
of the legislation and to facilitat e exchange of good practices. 
Member States and the Commission participated in  the negotiations at the International Labour 
Conference 2014 of a protocol to update the ILO Co nvention 29 on Forced Labour, which inter alia 
links forced labour and trafficking in human beings. 
Furthermore in 2014, the European Commission al so continued facilitating the work of the EU Civil 
Society Platform against Trafficking in Human Beings , launched in May 2013, which brings together 
more than one hundred civil society organisation s including human rights organisations, migrant 
organisations and those working on the rights of women and children from EU Member States and 
third countries. The European Commission has also launched the EU Civil Society e-Platform  to help 
even more civil society organisations to engage with the Commission and exchange information on 
actions against human trafficking.  
Application by Member States By prioritising the prevention of the crime, the prosecution of traffickers, the protection of the 
victims, cooperation and coordination , the EU Strategy complements the Directive 2011/36/EU on 
preventing and combating trafficking in human beings
39, which has a strong focus on victim 
protection, assistance and support. The Directive adopts an integrated, holistic, and human rights-
based approach in addressing trafficking in human beings, recognising the gender-specific nature 
thereof. The Directive respects fundamental ri ghts and observes the principles recognised in 
particular by the Charter and notably human dignity , the prohibition of slavery, forced labour and 
trafficking in human beings, the prohibition of torture and inhuman or degrading treatment or 
punishment, the rights of the child, the right to liberty and security, freedom of expression and 
information, the protection of personal data, the ri ght to an effective remedy and to a fair trial and 
the principles of the legality and proportionality of  criminal offences and penalties. The Directive had 
to be transposed by Member States by 6 April 2013. Until the end of 2014, 25 Member States have 
informed the Commission that they fully transposed the Directive into national laws. Two Member States have informed the Commission of partially having done so . The Commission is currently in the 
process of assessing the information received by the Member States and will not hesitate to take any 
necessary steps to ensure full compliance
40. 
                                                            
39 Directive 2011/36/EU on preventing and combating tra fficking in human beings an d protecting its victims, 
and replacing Council Framewor k Decision 2002/629/JHA, OJ L 271, 18.10.2011, p. 49. 
40 As mentioned in the 2013 Report on the application of the Charter of Fundamental Rights, in May 2013 the 
European Commission launched infringeme nt proceedings against 13 Member States that by that deadline had 
not communicated any measures transposing the Directive (L etters of formal notice were sent to them on 29 
May 2013). In November 2013, reason ed opinions on non-co mmunication basis were sent to Cyprus, Italy, 
Spain and Luxembourg. 
 
22 
 
 
 
23 
 
Source: European Commission 
 
24 Freedoms 
The Commission adopted an implementation report on the three detention Framework Decisions. It 
follows that despite a tight monitoring of thes e instruments carried out by the Commission, more 
than half of the Member States have still not yet implemented them. 
With view to EU data protection law, the Europe an Parliament adopted its position confirming its 
strong support for the reforms proposed by the Co mmission. The Commission continued to negotiate 
with its US counterparts on the Data Protection Umbrella agreement in order to protect personal 
data transferred between the EU and the US. 
The CJEU in two important judgments underlined the need to protect but also balance fundamental 
rights correctly in the digital environment. In the Digital Rights Ireland case, the Court declared the 
Data Retention Directive invalid, because it dispropo rtionately restricted rights to private life and to 
the protection of personal data as guaranteed by arti cles 7 and 8 of the Charter. In the Google case  
the CJEU clarified that a data controller is obliged to respect EU data protection law  and therefore 
has to comply with requests to re move links to personal data, under certain circumstances ("right to 
be forgotten").  
European Parliament and Council ad opted Directive 2014/54/EU to ensu re the better application at 
national level of EU citizens' right to work in an other Member State. It aims at removing existing 
obstacles to the free movement of workers. 
The Commission adopted a proposal amending Article 8(4) of the Dublin III Regulation on the issue of 
determining responsibility for examining applications  made by unaccompanied children.  It codifies 
the Courts' jurisprudence on this topic as it aims to ensure that the best interests of the child are always a primary consideratio n in the Dublin procedure. 
 
25 Titl e II 
Freed oms 
Article 6 – Right to liberty and security 
Article 6 of the Charter guarantees the right of everyone to liberty and security of person. Its rights 
are the same as the rights guaranteed in Article 5 of the ECHR. This means in particular that any a 
person's liberty can only be limited under strict legal conditions.  
The European Commission attaches high importance to  the respect of fundamental rights for persons 
who are detained in the EU and is aware of overcrowding of prisons in certain places. The Commission regularly receives citizens' letters, pa rliamentary questions and petitions on prison 
overcrowding and substandard detentio n conditions in the Member States. 
Policy As far as non-legislative action is concerned, th e European Commission will continue to support the 
exchange of information and best practices between Member States on detention conditions, including the involvement of the national  supervisors in places of detention. 
In 2014 a European Commission study reported on Children in conflict with the law and in 
detention.
41 It found that there was a statutory obligatio n in most Member States for pre-trial 
detention of children suspected of committing offences  to be used as a measure of last resort. Some 
Member States had implemented this obligation by es tablishing additional criteria that must be met 
before placing child suspects in pre-trial detentio n. Fifteen Member States had statutory provisions 
requiring that pre-trial detention is used for the shortest appropriate period of time. However, in 
practice the maximum duration of pre-charge and post-charge pre-trial detention of child suspects 
varied significantly across Member States. The longest  period of police custody permitted by law was 
72 hours (in Bulgaria, the Czech Republic and Hungar y). The longest period of post-charge pre-trial 
detention permitted by law was 8 months (Denmark).  The longest exceptional extension of pre-trial 
detention for terrorism and other serious offences wa s 10 years (Spain). In all MS except Belgium and 
Portugal there are rules requiring that children in pre-trial detention are held separately from adults. 
However, in practice, several Member States failed to implement this obligation due to problems of 
infrastructure. 
Additionally, the European Migration Network study on the use of detention and alternatives to 
detention in the context of immigration policies42 of 2014 examined alternat ives to administrative 
detention in the field of immigration in 26 Member States. It found that the majority of Member 
                                                            
41 European Commission, Summary of co ntextual overviews on children’s in volvement in criminal judicial 
proceedings in the 28 Member States of the European Union, availabe at: 
http://bookshop.europa.eu/en/summary-of-contextual -overviews-on-children-s-involvement-in-criminal-
judicial-proceedings-in-the-28-mem ber-states-of-the-european-union-
pbDS0313659/?CatalogCategoryID=WTQKABsteF0AAAEjKpEY4e5L  . 
42 European Migration Network, Synthe sis Report – The Use of De tention and Alternatives to Detention in the 
Context of Immigration Policies, 2014, available at: http://ec.europa.eu/dgs/home-affairs/what-we-
do/networks/european_migration_network/reports/docs/emn-
studies/emn_study_detention_alternative s_to_detention_synthesis_report_en.pdf   
 
26 States (24 in total) had developed alternatives to detention , which included: reporting obligations; 
residence requirements; the obligation to surrender identity or a travel document; release on bail; 
electronic monitoring; provision of a guarantor; an d release to care workers or under a care plan.  
Case law   
In 2014, the CJEU has rendered several important judgments as regards dete ntion conditions for pre-
removal detainees. The judgment of 17 July 201443 in cases Bero  and Bouzalmate  clarified that 
detention must be carried out, as a matter of  principle, in specialis ed detention facilities  and that 
the non-existence of specialised detention facilities in parts of the federal subdivisions of a Member 
State is no justification to carry out detention in ordinary prisons. The protection oriented approach 
of the detention related provisions of the Return  Directive was further emphasised in the judgment 
of 17 July 2014 case Thi Ly Pham.44 Here the Court clarified that Member States are not allowed to 
detain a third-country national for the purpose of  removal in prison acco mmodation together with 
ordinary prisoners even if the third-country na tional consents thereto. In its judgment in Mahdi45 the 
Court insisted that judicial supervision of prolonged detention must take into account both legal 
and factual elements .46 
Application by Member States In 2008 and 2009, EU legislation was adopted which aims  at facilitating the social rehabilitation of 
sentenced persons and at providing alternatives to  prison, notably the three Framework Decisions on 
the transfer of prisoners
47, on probation and alternative sanctions48 and on supervision measures49 . 
This EU legislation, if properly applied, has the po tential to reduce substantially the use or the period 
of imprisonment, in particular for persons that are non-residents in the Member State where the 
conviction takes place. The Commission on 5 February 2014 adopted an implementation report on 
the three detention Framework Decisions . It concluded that despite a tight monitoring of these 
instruments carried out by the Commission since four  years, more than half of the Member States 
have still not yet implemented them.  
In 2014 the Commission continued to systematically  follow up shortcomings related to the correct 
transposition of the Return Directive50. It opened formal infringement proceedings against three 
                                                            
43 CJEU judgment of 17 July  2014 in Cases C-473/13 Adala Bero v Regierungspräsidium Kassel  and C-514/13 
Ettayebi Bouzalmate v Kreisverwaltung Kleve . 
44 CJEU judgment of 17 July 2014 in Case C-474/13 Thi Ly Pham v Stadt Schweinfurt, Amt für Meldewesen und 
Statistik. 
45 CJEU judgment of 5 June 2014 in Case C-146/14 PPU Mahdi.  
46 See also below Article 47. 
47 Council Framework Decision 2008/909/JHA of 27 Novemb er 2008 on the application of the principle of 
mutual recognition to judgments in  criminal matters imposing custodia l sentences or measures involving 
deprivation of liberty for the purpose of their enforcemen t in the European Union, OJ L 327, 5.12.2008, p. 27. 
48 Council Framework Decision 2008/947/JHA of 27 Novemb er 2008 on the application of the principle of 
mutual recognition to judgments and probation decisions with a view to the supervision of probation measures 
and alternative sanctions, OJ L 337, 16.12.2008, p. 102. 
49 Council Framework Decision 2009/829/JHA of 23 Octobe r 2009 on the application, between Member States 
of the European Union, of the principle of mutual recognition to de cisions on supervision measures as an 
alternative to provisional detent ion, OJ L 294, 11.11.2009 , p.20. 
50 Directive 2008/115/EC of 16 December 2008 on common standards and procedures in Member States for 
returning illegally staying third-country nationals OJ L 348,  24.12.2008 , p. 98. 
 
27 Member States for not having correctly implemented several provisions of the Return Directive into 
national law. One of the most important reasons for infringements is related to the detention of 
returnees. Conditions of detention and its extensiv e use (including in one case detention beyond 18 
months) as well as the absence of appropriate re view of detention have been raising serious 
concerns. The absence of effective forced return monitoring systems, duration and territorial validity 
of entry bans, the lack of free legal assistance to returnees in detention centres  and procedural 
issues (translation) were also raised in the infringement procedures just as the definition of return. 
In 2014 the European Commission launched infringe ment proceedings against a Member State on 
the Returns Directive51 raising concerns among others on  the maximum length of detention, 
inadequate material detention conditions, the lack of free legal assistance to returnees in detention 
centres and the absence of judicial review of detention orders before six months and the limited 
possibilities for review of decisions to ex tend the detention beyond the six months. 
Furthermore, a letter of formal notice was sent to one Member State concerning their practice of 
detaining certain categories of asylum applican ts, which raised questions on the necessity of 
detention as well as effective remedies against the detention orders.52 
 
Article 7 – Respect for pr ivate and family life 
Article 7 of the Charter guarantees the right of ever yone to respect of their private and family life as 
well as home and communications.  
The right to private life  includes the protection of privacy in  relation to any information about a 
person. Where legislation, policy or case law refer to this right in connection to the protection of 
personal data, this report will refer to them under Article 8 below. 
Policy As regards the right to respect of family life the Communication of 3 April 2014 on guidance for 
application of the Directive on the right to family reunification
53 (henceforth "guidelines") clarifies in 
its general introduction that the Directive must be interpreted and applied in accordance with 
fundamental rights. This concerns, in particular, th e right to respect of private and family life, the 
principle of non-discrimination, the rights of the child and the right to an effective remedy, as enshrined in the European Convention of Human Rights and the EU Charter of Fundamental Rights. 
With regard to the family members falling into its sc ope all provisions must be applied in accordance 
with the non-discrimination principle enshrined in Article 21 of the Charter.
54 This applies in 
                                                            
51 Directive 2008/115/EC of 16 December 2008 on common standards and procedures in Member States for 
returning illegally staying third-country nationals OJ L 348,  24.12.2008 , p. 98. 
52 See also Articles 18 and 47. 
53 Communication on guidance for application of Direct ive 2003/86/EC on the righ t to family reunification 
(COM(2014) 210 final), available at: 
http://www.europarl.europa.eu/m eetdocs/2014_2019/doc uments/com/com_com(20 14)0210_/com_com(201
4)0210_en.pdf  . 
54 Communication on guidance for application of Direct ive 2003/86/EC on the righ t to family reunification 
(COM(2014) 210 final) , recital 5; see also re ferences to this communication under Article 21. 
 
28 particular to spouses and unmarried partners in a duly attested stable lo ng-term relationship and 
registered partnerships, concepts that have been ex tended in several Member St ates in recent years. 
Furthermore, these guidelines underline that while Member States enjoy a wide margin of 
appreciation when taking due account of the relevan t factors in an individual case, they are limited 
by the principles of Article 8 of the European Conv ention on Human Rights, Article 7 of the Charter of 
Fundamental Rights of the European Union concerni ng protection of family and respect for family 
life, as well as the relevant case law of the European Court of Human Rights and the CJEU. 
Finally, with regard to the right to legal redress,55 the guidelines clarify that the Directive’s redress 
provision must be applied in conformity with the right  to an effective remedy before a tribunal, as set 
out in Article 47 of the Charter and the CJEU’s ca se law in this matter. The Directive explicitly 
envisages the right to legally challenge four possible types of decisions under the Directive (the 
rejection of an application for family reunification, the refusal to renew a residence permit, the 
withdrawal of a residence permit, and the order of removal from the territory of a MS). However, the 
guidelines now state that effective remedies must also  be granted with regard to any other decisions, 
for instance, decisions concerning the restriction of the right to employment or the refusal to grant 
an independent residence title, since Article 47 applies to all rights provided for in the Directive. The 
guidelines clarify that full judicial review must be  available concerning merits and legality. They also 
point out that quasi-judicial or administrative review may not be adequate to meet the benchmark of 
Article 47 of the Charter.56  
Case Law Regarding the right to respect of one's family life  the CJEU in the Reyes  case
57 decided that the right 
to family reunification with a dependant direct de scendant who is 21 years old or older, does not 
depend on the descendant having tried unsuccessfully to obtain employment or to obtain 
subsistence support from the authorities of his country  of origin and/or otherwise to support him- or 
herself.58  
The case A, B, C v Staatssecretaris van Veiligheid en Justitie59 touched on questions of the 
protection of privacy,  also enshrined in Article 7 of the Charter. It concerned the interpretation of EU 
provisions on asylum in relation to the meth ods by which national authorities may assess the 
credibility of the declared sexual orientation of applicants for asylum . The applicants here had 
claimed that they feared persecution in their countr ies of origin on account of their homosexuality. 
The national court asked the CJEU whether there are any limits imposed by EU law as regards the verification of the sexual orientation of applicants  for asylum. In its ruling the Court underlined that, 
while Member States are entitled to assess the cred ibility of the statements of an applicant regarding 
his/her sexual orientation, the methods used by the competent national authorities to assess the 
                                                           
 
55 Communication on guidance for application of Direct ive 2003/86/EC on the righ t to family reunification 
(COM(2014) 210 final), Article 18. 
56 See also references to this communication under Articles 47.  
57 CJEU judgment of 16 January 2014 in Case C-423/12 Reyes . 
58 See also below under Article 45. 
59 CJEU judgment of 2 December 2014 in Jo ined Cases C-148/13, C-149/13 and C-150/13 A, B, C v 
Staatssecretaris van Ve iligiheid en Justitie, see also under Articles 7, 18 and 21 . 
 
29 credibility of those statements must ensure the respect of fundamental rights, including the right to 
respect for private and family life.60 
A case dealing with the right to data protection on the one hand and the interest of an individual to 
protect his or her home and family on the other was dealt with in the case Ryneš  discussed below.61 
Text Box Example 
Ruling of the Austrian Constitutional Court  
In 2014 the Austrian Constitutional Court62 examined the constitutionality of the national data 
retention provisions transposi ng the Data Retention Directive63. Austria provides the Charter with 
constitutional rank allowing the Charter to be used  as a legal benchmark. In its ruling, the Court 
stressed once more that within the scope of EU la w the rights of the Charter form benchmarks when 
checking the legality of national norms. Although the Court referred to Articles 7 and 8 of the 
Charter, the challenged national provisions were  eventually only measured against national 
constitutional law and Article 8 ECHR. The Court ru led that the national data retention provisions 
were unconstitutional and therefore void. 
 
Article 8 – Protection  of personal data 
The fundamental right of everyone to the protection  of personal data is explicitly recognised by 
Article 8 of the Charter. It is furthermore stated in Article 16 of the Treaty on the Functioning of the 
European Union. It aims at the protection of an i ndividual's free decision on the processing of his or 
her own personal data. This right is gaining increa sing importance in view of the explosion of the 
collection, use and distribution of pers onal data within our digital society. 
                                                            
60 For further information see discussion of the case above under Article 1. 
61 CJEU judgment of 11 December 2014 in Case C-212/13 Ryneš , see below under Article 8. 
62 Constitutional Court Austria (Verfassu ngsgerichtshof Österreich), case G47/ 2012 u.a., 27.6.2014, available at: 
www.ris.bka.gv.at/Dokument.wxe?Abfrage=Gesamtabf rage&Dokumentnummer=JF T_201406 27_12G00047_00
&ResultFunctionToken=4d6a6c54-02c0-443e-990d-
5bdfadfd80bb&SearchInAsylGH=&SearchInBegut=&SearchInBgblAlt=&SearchInBgblAuth=&SearchInBgblPdf=&
SearchInBks=&SearchInBundesnormen=&SearchInDok=&SearchInDsk=&SearchInErlaesse=&SearchInGbk=&Sea
rchInGemeinderecht=&SearchInJustiz=&SearchInBvwg= &SearchInLvwg=&SearchInLgbl=&SearchInLgblAuth=&S
earchInLrBgld=&SearchInLrK=&SearchInLrNo=&SearchInLrOO=&SearchInLrSbg=&SearchInLrStmk=&SearchInLrT
=&SearchInLrVbg=&SearchInLrW=&Se archInNormenliste=&SearchInPvak=&S earchInRegV=&SearchInUbas=&Se
archInUmse=&SearchInUvs=&SearchInVerg=&SearchInVfgh=&SearchInVwgh=&ImRisSeit=Undefined&ResultPa
geSize=100&Suchworte=GRC .  
63 Directive 2006/24/EC of the European Parliament and of the Council of 15 March 2006 on the retention of 
data generated or processed in conne ction with the provision of publicly available electronic communications 
services or of public communications networks and amendi ng Directive 2002/58/EC, OJ L 105, 13.4.2006, p. 54 . 
 
30 Legislation 
To ensure adequate protection and promotion of this fundamental right in view of the digital 
revolution the European Commission has been conti nuously working on the data protection reform. 
Already in January 2012 it published its proposals for a General Data Protection Regulation  and a 
Data Protection Direct ive for Police and criminal justice authorities .64 These will replace the existing 
1995 Data Protection Directive 95/46/EC and the Framework Decision 2008/977/JHA. The European 
Parliament adopted its position in the first read ing on 12 March 2014, confirming its strong support 
for the European Commission's data protection reform.65 However, the Council has yet to reach a full 
general approach. The European Council, of Octo ber 2013 and June 2014, committed to an adoption 
of a "strong data protection framework" as an esse ntial step for the completion of the Digital Single 
Market by 2015. The JHA Council of 5 and 6 June  2014 reached partial general approaches on the 
territorial scope of the regulation and on international transfers, on the rules governing the 
processing of personal data by data controllers a nd processors (Council of  9-10 October 2014) and on 
flexibility for the public sector as well as specific  processing operations of the regulation. A majority 
of justice ministers endorsed the overall archit ecture of the One-Stop-S hop. Furthermore, the 
European Commission continued to negotiate with its US counterparts on the Data Protection 
Umbrella agreement  in order to protect personal data tran sferred between the EU and the U.S. for 
law enforcement purposes as well as the conditions of a new safe harbour regime  as regards data 
transfers to the US. A critical outstanding issue whic h remains is the right of effective judicial redress 
that should be granted by the U.S. to EU citizens not resident in the U.S. 
Additionally, the right to data protection has been adequately taken into account during the last year 
by a number of relevant legislative instruments in  a variety of areas as shown by the following 
examples.  
In the area of tax law the European Commission is working with Member States on the 
implementation of the OECD Global Standard for automatic exchange of financial account 
information for the purposes of fighting tax fraud and evasion66. Under the Global Standard, 
financial institutions would be required to collect  certain financial account information (such as 
account balances, interest, dividends, and sales pr oceeds from financial assets) in respect of non-
resident individuals and entities and report it to  their tax authorities which would in turn pass it 
automatically to the tax authorities of the countr y of residence of these individuals and entities. 
                                                            
64 Proposal for a Regulation on the pr otection of individuals with regard to  the processing of personal data and 
on the free movement of such data (General Data Protection Regulation)( COM(2012) 11 final) available at: 
http://eur-lex.europa.eu/legal-content/E N/TXT/PDF/?uri=CELEX :52012PC0011&from=EN  and: Proposal for a 
directive on the protection of indi viduals with regard to the processin g of personal data by competent 
authorities for the purposes of preven tion, investigation, detection or pros ecution of criminal offences or the 
execution of criminal penalties, and the free movement of such data, available at: 
http://ec.europa.eu/justice/data-protect ion/document/review2012/com_2012_10_en.pdf .    
65 European Parliament legislative resolution of 12 March 2014 on the proposal  for a regulation of the 
European Parliament and of  the Council on the protection of indivi duals with regard to the processing of 
personal data and on the free movement of such data  (General Data Protection Regulation) (COM(2012)0011 – 
C7-0025/2012 – 2012/0011(COD)); available at: 
http://www.europarl.europa.eu/sides/getDoc.do;jse ssionid=5C176F19AC428C1721 BF3CDE5676C1A 8.node1?p
ubRef=-//EP//TEXT%20TA%20P7-TA-2014-0212%200%20DOC%20XML%20V0//en  . 
66 Council Directive 2014/107/EU of 9 December 2014 amending Directive 2011/16/EU as regards mandatory 
automatic exchange of information in the field of taxation, available at: 
http://eur-lex.europa.eu/legal-con tent/EN/TXT/?uri=celex:32014L0107  . 
 
31 Comments issued by the Article 29 Working Party have been taken into account with the inclusion, of 
comprehensive data protection safeguards in the draf t act, in the course of the discussions with the 
Council.  
As regards maritime and fisheries policy the the European Maritime and Fisheries Fund (EMFF) 
Regulation 67 of 2014 put in place particular safeguards for th e right to protection of personal data. It 
requires Member States to publish the names of natural persons who receive EMFF funding only if 
such publication is in conformity with the national law of the Member State concerned.68 This 
requires respecting the provisions of Directive 95/46/EC  on the protection of personal data as well as 
national acts adopted to implement that Directiv e. The EMFF Regulation thereby ensures not only 
the individual's right under Article 8 of the Charter but also the right to respect for private life (Article 
7 of the Charter), while at the same time giving effect to the principle of transparency set out in 
Articles 1 and 10 TEU and Article 15 TFEU.  
Furthermore, the Communication on the  Common Information Sharing Environment (CISE) for the 
EU maritime domain69, which sets out the next steps to be taken as regards enhanced cooperation 
between maritime surveillance authorities, was adop ted on 8 July 2014. It recalls that in cases where 
maritime surveillance data involve personal data, th e relevant EU data protection instruments apply, 
in particular Directive 95/46/EC, Council Framewor k Decision 2008/977/JHA, and Regulation (EC) No 
45/2001. Furthermore, the Commission outlines its plan to develop a non- binding Maritime CISE 
handbook that will include guidance on the reco mmended handling of personal information by 
relevant authorities. It also points to complianc e with data protection requirements within its 
ongoing review of EU legislation concerning the re moval of barriers to cross-sectorial information 
sharing. Finally, Member States are advised to involv e national data protection authorities at an early 
stage, when adapting their national surveillance system s to the objectives of CISE in order to ensure 
compliance with national data protection requirements.  
To cover specific needs in the energy sector and to  ensure adequate attention to data protection and 
security in the smart grid environment throughout the EU, the Commission adopted its Recommendation 2014/724/EU
70 on the Data Protection Impact Assessment Template for Smart 
Grid and Smart Metering Systems  on 10 October 2014, aiming to formalize and promote the 
template's take-up in order to ensure adequate at tention to data protection and security in the 
smart grid environment throughout the EU. The temp late aims at the protection of the right to 
privacy under Article 7 of the Charter as well.71 
                                                            
67 Regulation (EU) No 508/2014 of the European Par liament and of the Council of 15 May 2014 on the 
European Maritime and Fisheries Fund, OJ L 149, 20.5.2014, p. 1. 
68 Article 119 and Annex V of the EMFF Regulation. 
69 Communication from the Commission to the European Parliament and the Council, Better situational 
awareness by enhanced cooperation ac ross maritime surveillance authorit ies: next steps within the Common 
Information Sharing Environment for th e EU maritime domain, available at: 
http://ec.europa.eu/maritimeaffair s/policy/integrated_maritime_survei llance/documents/com_2014_451_en.
pdf , COM(2014) 451 final. 
70 Commission Recommendation 2014/724/ EU OJ L300, 18 .10.2014 , p.63. 
71 A two years test phase for the application of the template was kicked-off at the beginning of March 2015 to 
apply it to real-life cases. Based on  this feedback and in light of the upcoming Data Protection Reform, the 
template could be further fine-tuned to enhance its efficiency and user-friendliness. 
 
32 Policy 
Different Policy activities of the EU in 2014 aimed at  sufficiently ensuring the right to privacy as well 
as the right to protection of personal data. 
A reference to Article 8 of the Charter in the Euro pean Commission's Decision on the protection of 
personal data in the European e-Justice Portal72 ensures that the institutions, bodies, offices and 
agencies of the European Union as well as the Member States when they are implementing Union 
law, respect fundamental rights and observe the principles recognised by the Charter, in particular 
the right to the protecti on of personal data.  
The European  Commission  Communication: 'Towards a thriving data-driven economy' ,73 adopted in 
July 2014, identifies the necessary elements of a data-driven economy and lists a number of actions 
to help Europe position itself as a leader in da ta-driven innovation. Data driven economy will only 
thrive if business and individuals have confidence that their data are secure. Systems that can gain 
the users' confidence in their data protection safeguards may provide a competitive edge to their 
providers. The Communication lists a number of acti ons and initiatives, namely to conclude the EU 
data protection reform package; to  partner with  Member States and stakeholders to ensure that 
businesses receive guidance on data anonymisatio n and pseudonymisation, personal data risk 
analysis, and tools and initiatives to enhance cons umer awareness. The Commission will also invest 
into the research for related technical solutions that are privacy-enhancing 'by design', produce 
guidelines on good practices for secure data stor age, propose measures to help detect and better 
respond to cyber-attacks, to launch a consultation  and set up an expert group on "data ownership" 
and liability of data provision, in particular fo r data gathered through the Internet of Things, and 
examine the potential of the concept of user-con trolled cloud-based technologies for storage and 
use of personal data ("personal data spaces"). 
In line with the European Cloud Strategy74 the European Commission work s with the industry (C-SIG) 
to agree on a Data Protection Code of Conduct for cloud service providers (CSPs)75  which aims at 
supporting an uniform application of data protection  rules and to build trust and confidence in the 
field of cloud computing. The purpose of the Code of Conduct is to assist prospective cloud users in 
evaluating whether personal data under the Cloud Service Agreement is processed with an 
appropriate level of data protection, and to help Cloud Service Providers to comply with the data 
protection framework. The governance structure of the Code will also assist in achieving this goal. 
The Code will aim to instil trust among cloud us ers that a CSP needs the applicable requirements 
related to the processing of personal data. 
                                                            
72 Commission Decision of 5 June 2014 on  the protection of personal data in the European e-Justice Portal 
(2014/333/EU), OJ L 167, 6.6.2014, p. 57. 
73 Communication from the Commission to  the European Parliament, the Coun cil, the European Economic and 
Social Committee and the Committee of the Regions of 2 July 2014: Towards a thriving data-driven economy 
(SWD(2014) 214 final), available at: https://ec.europa.eu/digital-agenda/en/news/communication-data-driven-
economy  .  
74Communication from the Commission to the European Parliament, the Coun cil, the European Economic and 
Social Committee and the Committee of the Regions of 27 Sept 2012: Unleashing the Potential of Cloud Computing in Europe, COM(2012) 529 final . 
75 Information on the C-SIG subgroup on Data Protecti on Code of Conduct: http s://ec.europa.eu/digital-
agenda/en/cloud-select-industry-group-code-conduct. 
 
33 Finally, the ongoing implementation of a Digital Single Market (DSM)  as envisaged in the European 
Commission's work programme needs to be pointed out in this context. In his political guidelines to 
the European Parliament, President Juncker called for breaking down national silos in the regulation 
of telecoms, in copyright and data protection legi slation, in the management of radio waves and in 
the application of competition law. Citizens' trust an d confidence are key pillars of this strategy and 
important pre-conditions of a fully functioning Di gital Single Market. This includes strong and 
efficient protection of fu ndamental rights online.  
Challenges in the context of the digital revolution related to protection of fundamental right online 
are not limited to the data protection reform and th e completion of the DSM. They also arise in other 
areas, most prominently in relation to security policies. The trust of citizens, based on credible 
protections of fundamental rights, non-discrimination , tolerance and the rule of law is also vital for 
the success of such policies in democratic societies. 
Case Law The CJEU in several important judgments under lined the need to protect but also balance 
fundamental rights correctly in the digital environment. In the Digital Rights Ireland case
76, the Court 
reiterated the EU institutions’ obligations to respec t the Charter in its activities, namely where they 
affect the right to private life and personal data pr otection. It declared the Data Retention Directive 
invalid, because it disproportionately restricted right s to private life and to the protection of personal 
data as guaranteed by Articles 7 and 8 of the Char ter. The Directive had required Member States to 
ensure that telecommunications service providers reta in traffic and location data of their customers 
for a period between six months and two years and to make these data available, on request, to law enforcement authorities for the purposes of invest igating, detecting and prosecuting serious crime 
and terrorism.
77  
In the Google  case78 the CJEU clarified that an internet  search engine operator, such as Google , as a 
data controller, established in the EU is responsible for the processing of personal data that it carries 
out and which appear on web pages published by th ird parties. Consequently it was held to be 
obliged to respect EU data protection law (Article s 7 and 8 of the Charter) and therefore to comply 
with requests to remove links to certain personal data, under certain circumstances ("right to be 
forgotten").  
The preliminary ruling case of Ryneš79 highlighted a scenario of tension between the right to 
protection of personal data (Article 8) on the one side and the right to prot ection of one's home and 
family on the other (Article 7). Here it was held that the use of a camera system that recorded the 
entrance to the user's home , the public footpath and the entrance to the house opposite as well as 
the storage of those recordings on a hard disk driv e to which only this user had access rendered such 
a user a data controller in the sense of the Data Pr otection Directive 95/46. It was not covered by the 
exception of collecting data for personal or hous ehold activities, as the surveillance recordings 
included data of persons within the public sphere, e.g. the public footpath. This would generally 
                                                            
76 CJEU judgment of 8.4.2014 in Cases C-293/12 and C-594/12 Digital Rights Ireland and Kärntner 
Landesregierung , see also below Article 52. 
77 See also Article 11. 
78 CJEU judgment of 13.5.2014 in Case C-131/12 Google Spain and Google . 
79 CJEU judgment of 11 December 2014 in Case C-212/13 Ryneš ,. 
 
34 entail the obligation of the data controller to obtain  the consent of anyone recorded that the latter's 
data are processed. In the concrete case this lack of consent was the issue in the national case that 
had led to criminal prosecutions of persons wh ich had attempted to break into Mr Ryneš home. 
However the CJEU pointed out that the applicat ion of Directive 95/46 makes it possible, where 
appropriate, to take into account legitimate in terests pursued by the controller, such as the 
protection of the property, health and life of his family and himself.  
Finally, in the case of Commission v Hungary80 the CJEU held that  Hungary had infringed EU law 
by prematurely bringing to an end the term served by its Data Protection Supervisor.  
 
Article 9 – Right to marry an d right to found a family 
The right to marry and to found a family as guaranteed  in Article 9 of the Charter is similar to that 
afforded by the ECHR in its Article 12.  
Policy The right to marry was taken into account when designing a handbook  on addressing the issue of 
alleged marriages of convenience  between EU citizens and non-EU nationals: The Handbook is 
designed to help uphold the fundamental right to marry as well as that of free movement where 
national authorities try to identify so-called marriag es of convenience. It aims at helping national 
authorities address this phenomenon - the extent of which varies significantly between Member States - based on the same factual and legal crit eria throughout the Union and therefore effectively 
tackle marriages of convenience, while safeguardin g the fundamental right of EU citizens to free 
movement.
81  
 
Article 10 – Freedom of though t, conscience and religion 
The right guaranteed in paragraph 1 of Article 10 of  the Charter corresponds to the right guaranteed 
in Article 9 of the ECHR. Besides the freedom of adhering to a chosen religious belief and practising 
it, the right protects actions of conscience such as for example those of conscientious objectors. 
In the context of the dialogue with churches, religions, philosophical and non-confessional 
organisations under Article 17 TFEU, concerns regarding freedom of religion have been raised with 
view to the legislative framework in Hungary, in particular the registration of churches. 
Legislation 
Slaughtering  l e g i s l a t i o n  i n  s o m e  M e m b e r  S t a t e s  i s  p e r c e i v e d  a s  a n  i m p e d i m e n t  t o  f r e e d o m  o f  
religion. Council Regulation 1099/200982 on the protection of animals at the time of killing 
establishes the general rule that animals shall only be killed after stunning. At the same time, in order 
                                                            
80 CJEU judgment of 8 April 2014, Case C-288/12 European Commission v Hungary.  
81 See also Article 45 below. 
82 Council Regulation 1099/2009 of 24 September 2009 on the pr otection of animals at the time of killing, OJ 
L303, 18.11.2009, p.1. 
 
35 to respect freedom of religion as enshrined in Article 10 of the EU Charter of Fundamental Rights, the 
regulation contains an exception to the stunning requirement for animals subject to particular 
methods of slaughter prescribed by religious rites, provided that the slaughter takes place in a 
slaughterhouse. Derogation from stunning is therefor e justified for religious reasons in the case of 
slaughter under the Jewish rite (for Kosher  meat) or Muslim rites (for Halal  meat).  
Application by Member States In view of the above mentioned Council Regulat ion 1099/2009 on protection of animals, Member 
States define themselves in how far exemptions from the stunning requirement for animals due to 
religious reasons are applicable and notify the Co mmission. In some Member States ritual slaughter 
has been banned for some time (Finland, Lithua nia, Malta, and Sweden) while three Member States 
only recently banned slaughter without stunning: Poland and Slovenia in 2013, Denmark in 2014. In 
Poland the legislation was revoked in December 2014 by its Constitutional Court.
83 
 
Article 11 – Freedom of ex pression and information 
The right to freedom of expression is guaranteed by Article 11(1) of the Charter and includes the 
freedom to hold opinions and to receive and impa rt information and ideas without interference by 
public authority and regardless of frontiers. Articl e 11(2) ensures respect for freedom and pluralism 
of the media.  
In line with Article 52(3) of the Charter, the EU's ap proach to this right and its limits takes inspiration 
from the case law of the European Court of Human Rights. Namely, that the right to freedom of 
expression extends to speech which " offends, shocks or disturbs the State or any sector of the 
population "84 b u t  t h a t  S t a t e s  m a y  " sanction or even prevent all forms of expression which spread, 
incite, promote or justify hatred based on intolerance "85. Furthermore, the reje ction or revision of 
"clearly established historical facts - such as the Holocaust " falls outside the scope of protection of 
Article 11(1)86. These principles find their legislative expr ession in, among others, the EU Framework 
Decision on racism and xenophobia87.   
Policy On 12 May 2014, the Council of the European Union adopted the EU Human Rights Guidelines on 
Freedom of Expression Online and Offline.
88 Their aim is to clarify the international human rights 
standards on freedom of opinion and expression a nd to provide political and operational guidance to 
officials and staff of the EU institutions and EU Me mber States for their work in third countries, in 
international organisations and civil society.    
                                                            
83 Judgment of the Polish Constitutional Tribunal  of 12 December 2014, Case Ref. No K 52/13. 
84 ECtHR,  Handyside v UK, No. 5493/72, 07.12.1976.  
85 ECtHR,  Erbakan v Turkey,  No. 59405/00,  06.07.06. 
86 ECtHR,  Lehideux and Isorni v France, No. 24662/94, 23.09.1998. 
87 Council Framework Decision 2008/913/JHA on combating certain fo rms and expressions of racism and 
xenophobia by means of criminal law of 28 November 2008, OJ L 328, 6.12.2008, p.55.  
88 Available at: 
http://eeas.europa.eu/delegations/ documents/eu_human_rig hts_guidelines_on_freedom_of_expression_onli
ne_and_offline_en.pdf  .  See also Article 21 for more details on this legislation. 
 
36 Following the Council Conclusions adopted in November 2013 on media freedom and pluralism , the 
European Commission issued a call for proposals fo r a European Centre for Press and Media Freedom 
and in early 2014 selected four projects, run by NG Os and academic institut ions, with the objective 
to address violations of media freedom and plura lism in the EU and Candidate Countries. A new call 
was launched in 2014. During the course of 2014, th e European Commission also awarded a grant for 
the Centre for Media Pluralism and Media Freedom (C MPF) to conduct a pilot implementation of the 
“Media pluralism Monitoring tool” (MPM)89. This included a simplification and a testing of the tool in 
9 Member States.90 For this year's pilot project a testing in  the remaining Member States is foreseen. 
In February 2014, the Commission adopted a decision regarding the European Regulators Group for 
Audio-visual Media Services (ERGA)91. One of the first topics on the agenda of the group was the 
independence of regulatory authorities92. A conference on the exchange of transparency in media 
ownership was held on 3 October in Brussels.  
Case Law In the Deckmyn v Vandersteen case of 3 September 2014
93 the CJEU clarified the scope of the 
parody exception under Article 5(3)(k) of Direct ive 2001/29 on the harmonisat ion of certain aspects 
of copyright and related rights in the information society.  
It is noteworthy that the CJEU in the Digital Rights Ireland  case94 amongst others found a limitation 
of the right to freedom of expression under Article 11 of the Charter. However, it did not continue to examine whether such a limitation by the challenged  data retention directive was justified, since the 
court had already established an infringement of Articles 7 and 8. On the basis of the latter the CJEU 
annulled the directive and saw no further need to examine Article 11.   
 
Article 12 – Freedom of assembly and of association 
The Right to freedom of peaceful assembly and to  freedom of association at all levels including 
political, trade union and civic matters is protected in Article 12 of the Charter. It corresponds to 
Article 11 of the ECHR. Its scope, however, is wider since it applies to all European levels. 
Furthermore unlike Article 11 ECHR, it specifically  mentions the special contribution of political 
parties to the expressing the citizens' political will.  
                                                            
89 On all these initiatives please refer to https://ec.europa.eu/digital-agenda/en/media-freedom-and-pluralism   
90 The final report of the first phase was published in January 2015. Link: http://ec.europa.eu/digital-
agenda/news-redirect/20149   
91 Commission Decision of 3.2.2014 on establishing the European Regulators Group for Audiovisual Media 
Services, C(2014) 462 final, available at;: 
http://www.google.de/url?sa=t&rct =j&q=&esrc=s&frm=1&s ource=web&cd=1&ved=0 CCEQFjAA&url=http%3A
%2F%2Fec.europa.eu%2Finformation_society%2Fnews room%2Fcf%2Fdae%2Fdocument.cfm%3Fdoc_id%3D42
94&ei=cRT3VOPDL4j3O7D1gNgC&usg=AFQjCNHx-nnaB6E1oDb8ZEvQ4gN9X13C1g .  
92 ERGA statement on the independence of  NRAs in the audiovisual sector - 
http://ec.europa.eu/information_ society/newsroom/cf/dae/document .cfm?action=display&doc_id=7310 
93 CJEU judgment of 3 September 2014 in Case C-201/13, Deckmyn v Vandersteen , see also Article 21. 
94 CJEU judgment of 8.4.2014 in Cases C-293/12 and C-594/12 Digital Rights Ireland and Kärntner 
Landesregierung, see also above under Article 8. 
 
37 Legislation 
On the basis of a proposal of the European Co mmission, the Parliament and the Council adopted on 
22 October 2014 the Regulation (EU) No 1141/2014 on the statute and funding of European political 
parties and European political foundations. The new rules aim at increasing the visibility and EU-wide 
recognition of European political parties and help ing European political parties and their affiliated 
political foundations to play their role of expressing the political will of EU citizens. 
Article 13 – Freedom of the arts and sciences 
Article 13 of the Charter ensures that arts and scient ific research are free of constraint. This does not 
mean that restrictions of the former are not possibl e, but that they are only possible under the strict 
conditions of Article 52 I of the Charter.95  
Policy Where EU institutions fund areas of research or sc ience, they remain under an obligation to respect 
the Charter. In this context, the new Framewor k Programme for Research and Innovation for the 
period 2014-2020, Horizon 2020 needs to be ment ioned. It was launched on 1 January 2014 
(regulation 1291/2013
96). It includes a specific Societal Challenge 6 with the title “Europe in a 
changing world – Inclusive, innovative and reflective  societies” which addresses the many facets of 
fundamental rights in Europe whether in its internal dimension on in its external dimension. The first 
calls for proposals were published in July 2014 and contained several topics relevant for research on 
the EU Charter of fundamental rights and in particul ar a topic with the title “Europe’s contribution to 
a value-based global order and its contestant” under a Call “Europe as a global actor”. The results of 
this research in social sciences and the humanitie s will be fed into policymaking as they are made 
available. 
Article 14 – Right to education 
The right to education and access to vocational a nd continuing training is enshrined in Article 14 of 
the Charter. It is based on the common constitutional  traditions of Member States and on Article 2 of 
the Protocol to the ECHR. 
Application in the Member States Infringement Proceedings by the European Commi ssion against a Member State launched in 2014 
concern discrimination of Roma children in education are referred to below under Article 21. 
 
                                                           
 
95 For further explanations see below Article 52. 
96 Regulation (EU) No 1291/2013 of 11 December 2013 establishing Hori zon 2020 - the Framework Programme 
for Research and Innovation (2014-20 20) and repealing Decision No 1982/2 006/EC, OJ L 347 20.12.2013, p.104. 
 
38 Article 15 – Freedom to choose an o ccupation and right to engage in 
work  
The Charter in its Article 15 (1) protects the right to engage in work and to pursue a freely chosen  or 
accepted occupation.  
Legislation In 2014 a number of legislative instruments were adopted to further facilitate free movement of 
workers thereby promoting the rights under Article 15. 
On 16 April 2014, a Directive was adopted to ensure the bett er application at national level of EU 
citizens' right to work in another Member State
97. The new rules, proposed by the European 
Commission in April 2013, aim to remove existing ob stacles to the free movement of workers, such 
as the lack of awareness of EU rules among public and private employers and the difficulties faced by mobile citizens to get information and assistance  in the host Member States. To overcome these 
barriers and prevent discrimination, the Directive requires Member States to ensure that one or 
more bodies at national level provide support and legal assistance to EU migrant workers with the 
enforcement of their rights. It also requires an effective legal protection of rights (including for 
example protection from victimisation for EU migr ant workers who seek to enforce their rights) and 
easily accessible information in more than one EU  language on the rights enjoyed by EU migrant 
workers and jobseekers. 
The Seasonal workers' Directive  was adopted on 26 February 2014
98. This Directive concerns the 
conditions of entry and stay of third-country nati onals for the purpose of employment as seasonal 
workers. The text of the Directive provides for th e respect of fundamental rights recognised by the 
Charter, in particular Articles 7, 15(3), 17, 27,  28, 31 and 33(2). The Directive provides for equal 
treatment with nationals of the Member State where they work as regards: terms of employment and working conditions, the right to strike and take  industrial action and freedom of association and 
membership of trade unions, back payments, access to branches of social security (with possible 
exceptions as regards family and unemployment benefits), access to goods and services and to 
advice services on seasonal work and recognitio n of diplomas. Third-country national seasonal 
workers are also entitled to equal treatment as regards education and vocational training and tax 
benefits, but Member States may decide to restrict  it on the basis of criteria specified in the 
Directive.  
The Directive on Intra-Corporate Transferees was adopted on 13 May 2014
99. This directive will 
make it easier and quicker for multinationa l companies to temporarily assign highly skilled 
employees to subsidiaries situated  in the EU. Moreover, the Directive will facilitate mobility of intra-
                                                            
97 Directive 2014/54/EU of the European Parliament and of the Council of 16 April 2014 on measures 
facilitating the exercise of rights conferred on workers in the context of freedom of movement for workers,  OJ 
L 128, 30.4.2014, p. 8.  
98 Directive 2014/36/EU of the European Parliament and of the Council of 26 February 2014 on the conditions 
of entry and stay of third-country nationals for the purpose of employment as seasonal workers, OJ L 94, 
28.3.2014, p. 375.   
99 Directive 2014/66/EU of the European Parliament and of the Council of 15 May 2014 on the conditions of 
entry and residence of third-country nationals in the framework of an intra-corporate transfer, OJ L 157, 
27.5.2014, p. 1.    
 
39 corporate transferees between member states during their assignments. The Directive also lays 
down a common set of rights for intra-corporate tr ansferees when working in the EU in order to 
avoid their exploitation and distortion of competitio n. In particular, the Directive provides for equal 
treatment between intra-corporate transferees and nationals as regards terms and conditions of 
employment, access to social security and affiliation to a trade union.  
On 18 January 2014, the Directive 2013/55/EU100 modernising the Professional Qualifications 
Directive (Directive 2005/36/EC) has entere d into force. The Directiv e must be implemented by 
Member States by 18 January 2016. It further simplif ies the possibility for EU qualified citizens to 
obtain the recognition of their qualifications in or der to establish and provide services in another 
Member State. It also ensures that the protection of  personal data is taken into consideration in the 
framework of the European Professional Card101 and within the alert mechanism102. 
Case law The CJEU, in Giordano v Commission
103 , held that the imposition of a fishing ban due to evidence of a 
serious threat to the conservation of a particular fish stock did not infringe the freedoms and rights, 
as set out in Articles 15 and 17 of the Charter, of owners of vessels endowed with a licence and individual quota to fish a particular type of fish, even if the quota had not been exhausted on the day 
the ban became effective. In particular, the Court considered that the freedom to pursue a trade or 
profession does not constitute an absolute prerogativ e, but must be viewed in relation to its function 
in society.
104 Limitations may be imposed on the exercise of that freedom provided that in 
accordance with Article 52(1) of the Charter, they are prescribed by law and that, in accordance with 
the principle of proportionality, they are necessary and genuinely meet objectives of general interest recognised by the European Union or the need to protect the rights and freedoms of others. In the 
present case, the Court considered that Regulation No 530/2008 met an objective of general interest 
pursued by the European Union, namely to avoid a serious threat to the conservation and recovery 
of bluefin tuna stock in the Eastern Atlantic and the Mediterranean Sea. Furthermore, the measures 
prohibiting fishing contained in the regulation were not manifestly inappropriate in relation to what 
was necessary to attain that objective of general interest, and thus complied with the principle of 
proportionality. 
 
Article 16 – Freedom to conduct a business 
The Charter in Article 16 recognises the freedom to  conduct a business in accordance with Union law 
and national laws and practices.  
                                                            
100 Directive 2013/55 am ending Directive 2005/36/EC on the recognition of professional qualifications and 
Regulation (EU) No 1024/2012 on administrative cooper ation through the Internal Market Information System 
(‘the IMI Regulation’), OJ L 354, 28.12.2013, p. 132; see also Articles 8, 38 and 48. 
101 Article 4e of Directive 2013/55/EU : processing and access to data rega rding the European Professional Card. 
102 Article 56a(3): processing of personal data fo r the purpose of the exchange of information. 
103 CJEU (Grand Chamber),  Judgment of  14 October 2014 in Case C-611/12 P, Jean-François Giordano v 
European Commission . 
104 Referring to its judgment in cases C ‑120/06 P and C ‑121/06 P, FIAMM and Others v Council and 
Commission , paragraph 183. 
 
40 The impact on the freedom to conduct a business is frequently assessed in EU action in policy areas 
where measures could interfere in the economic ac tivity of the operators concerned. By way of 
example a Directive adopted in 2014 on measures to reduce the cost of deploying high-speed 
electronic communications networks105 contains in recital 39 a reference to the Charter to ensure 
ensures compliance of the Directive with the freedom to conduct a business.  
Legislation The European Commission proposal of 2013 on a Directive on the placing on the market of food 
from animal clones
106 specifically refers to the freedom to conduct business in recital 11. Article 20 
of the Regulation on materials and articles intended to come into contact with food107 allows those 
applying for the authorisation of a new substances or processes to claim confidentiality for business 
information submitted and that may concern intellec tual property on the ground that its disclosure 
might significantly harm its competitive position. To ensure inter alia, the freedom to conduct a 
business in this respect, the European Commission  prepared and sent guidance letters in 2014 to 
relevant business operators to raise awareness of this  possibility and to enable them to prepare such 
claims.  
Policy The freedom to conduct a business was also ca refully assessed in the European Commission 
Recommendation on a new approach to business failure and insolvency
108 of 12 March 2014, which 
concluded that a final Court confirmation of a restru cturing plans will be necessary to ensure that the 
limitation of the rights of creditors, including to their freedom to conduct a business and access to an 
effective remedy, is proportionate to the benefits of the restructuring entity. 
Case Law and key pending cases In the case of Mark Alemo-Herron and Others v Parkwood Leisure Ltd
109 the CJEU ruled that 
Directive 2001/23 (safeguarding of employees' rights during transfers of undertakings) precludes 
Member States from providing, in the event of a transfer of an undertaking, that dynamic clauses 
referring to collective agreements negotiated and ad opted after the date of transfer are enforceable 
against the transferee, where that transferee does not have the possibility of participating in the 
negotiation process of such collective agreements concluded after the date of the transfer. In order 
to reach this conclusion, the Court interpreted Di rective 2001/23 in the light of Article 16 of the EU 
Charter, laying down the freedom to conduct a business. 
                                                            
105 Directive 2014/61/EU of the European Parliament and of the Council of 15 May 2014 on measures to reduce 
the cost of deploying high-speed electronic comm unications networks, OJ L 155, 23.5.2014, p.1. 
106 Proposal 2013/0434 for a Council Directive on the plac ing on the market of food  from animal clones of 
18.12.2013, COM(2013) 893 final, available at: 
http://www.europarl.europa.eu/m eetdocs/2014_2019/doc uments/com/com_com(20 13)0893_/com_com(201
3)0893_en.pdf. 
107 Regulation 1935/2004 of the European Parliament an d of the Council of 27 October 2004 on materials and 
articles intended to come into contact with food and repealing Directives 80/590/EEC and 89/109/EEC, OJ L 
338, 13.11.2004, p. 4. 
108 Commission Recommendation of 12.3.2014 on a new appr oach to business failure and insolvency, C (2014) 
1500 final. 
109 CJEU judgment of 18 July 2013 in Case C-426/11, Mark Alemo-Herron and Others v Parkwood Leisure Ltd .   
 
41 In the case of UPC Telekabel vs Constantin Film110 the CJEU, building upon its earlier case law, stated 
that a blocking injunction ordered against an Internet Service Provider (ISP) on the basis of Article 
8(3) of Directive 2001/29 needs to strike a balanc e, primarily, between (i) copyrights and related 
rights, which are intellectual property and are therefore protected under Article 17(2) of the Charter, (ii) the freedom to conduct a business, which econ omic agents such as internet service providers 
enjoy under Article 16 of the Charter, and (iii) the freedom of information of internet users, whose 
protection is ensured by Article 11 of the Charter.  
Although still pending, two preliminary rulings conc erning the Tobacco Products Directive should be 
pointed out in view of this recent EU legislatio n. On 3 April 2014 the European Parliament and the 
Council adopted Directive 2014/40/EU on the a pproximation of the laws, regulations and 
administrative provisions of the Member States concerning the manufacture, presentation and sale 
of tobacco and related products ( Tobacco Products Directive )
111. This Directive is aimed at facilitating 
the functioning of the internal market while protecting public health. Several fundamental rights, including the rights to conduct a business and to property
 were considered in the preparation and 
drafting of the proposal.112 Alleged infringements of these rights were subsequently invoked in two 
recent requests for preliminary rulings from the UK Courts to the CJEU. The actions before UK courts 
were brought by Philip Morris and British American Tobacco UK Limited113 and Pillbox 38 (UK) 
Limited .114 
 
Article 17 – Right to property 
Article 17 of the Charter protects the right of everyone to property , which includes the right to own, 
use, and dispose of lawfully ac quired possessions. The Charter also  guarantees the protection of 
intellectual property.   
Legislation The Regulation on a European Account Preservation or der procedure to facilitate cross-border debt 
recovery in civil and commercial matters (EAPO Regulation) was adopted on 15 May 2014
115. The 
European Account Preservation Order  strengthens the right to property and the procedural rights of 
                                                            
110 CJEU judgment of 27 March 2014 in Case C-314/12 UPC Telekabel vs Constantin Film . 
111 Directive 2014/40 of the European Parliament and of  the Council of 3 April 2014 on the approximation of 
the laws, regulations and administra tive provisions of the Member Stat es concerning the manufacture, 
presentation and sale of tobacco and related produc ts and repealing Directive 2001/37/EC, OJ L 127, 
29.4.2014, p.1, see also Articles 16 and 17. 
112 Impact Assessment, see in  particular section 2.4: 
http://ec.europa.eu/health/tobacco/docs/com_2012_788_ia_en.pdf 
113 Case C-547/14, Philip Morris Brands and Others , refers also to Articles 11 and 35 of the Charter. 
114 Case C-477/14, Pillbox 38 , for both cases see also Articles 17 and 35. 
115 Regulation (EU) No 655/2014 of th e European Parliament and of the Co uncil of 15 May 2014 establishing a 
European Account Pres ervation Order procedure to facilitate cr oss-border debt recovery in civil and 
commercial matters, OJ L 189, 27.6.2014, p. 59.   
 
42 potential debtors, such as the right to an effective remedy. The aim of the proposed regulation116 is 
to facilitate cross-border debt recovery by crea ting a uniform European procedure leading to the 
issue of a European Account Preservation order ("Pr eservation Order"). This European procedure will 
be available to citizens and businesses as an altern ative to national procedures, but will not replace 
national procedures. It will apply only to cross-bord er cases. By way of this new European procedure, 
a creditor would be able to obtain a preservation order which would block funds held by the debtor 
in a bank account in a Member State and thereb y prevent the debtor from dissipating such funds 
with the aim of frustrating the creditor's efforts to recover his debt.  
Policy The European Commission adopted on 1 July 2014 an Action Plan on the enforcement of Intellectual 
Property Rights
117. It aims at renewing the consensus on the enforcement of intellectual property (IP) 
rights. With this action plan, the European Commissi on seeks to re-orientate its policy for intellectual 
property enforcement towards a better compliance of  IP rights by all economic actors. Rather than 
penalising the citizen for infringing – often unknowingly – IP rights, the actions set out in this action plan pave the way towards a “follow the money approach”, seeking to deprive commercial scale 
infringers of the revenue flows that  draw them into such activities. 
To address this challenge, the EU Action Plan against infringements of intellectual property rights 
foresees to improve compliance with IP rights am ong all actors involved, improving cooperation 
between Member States and facilitating exchanges of best practices. Such measures must be 
proportionate and minimise any risk of being anti-competitive or unduly restrict fundamental rights. 
On 10 November 2014, the Council endorsed in it s conclusion the approach proposed by the 
European Commission Action Plan on the En forcement of Intellectual Property Rights. 
Case law 
The CJEU, in the case of Giordano v Commission
118 (Case C-611/12 P) the Court ruled that the 
imposition of a fishing ban in view of a serious threat to the conservation of a fish stock did not 
infringe the freedoms and rights under Articles 15 and 17 of the Charter of owners of vessels 
endowed with a licence and individual quota to fish a particular type of fish even if the ban became 
effective before the individual quota was exhausted.119   
As already mentioned above, the Tobacco Products Directive  has been challenged in two cases by 
tobacco companies inter alia because of alle ged infringements of the right to property.120 
 
                                                            
116 Proposal for a Regulation of the European Parliament and of the Council creating a European Account 
Preservation Order to facilitate cross-border debt re covery in civil and commerc ial matters, COM(2011) 445, 
Available at: http://ec.europa.eu/justice/ci vil/files/comm-2011-445_en.pdf . 
117 Communication " Towards a renewed consensus on the enforcement of Intellectual Property Rights: An EU 
Action Plan" , COM(2014) 0392 final, 1.7.2014. 
118 CJEU, judgment in Case C-611/12 P Giordano v Commission . 
119 See also Article 15. 
120 See above under Article 16 as well as below under Article 35. 
 
43 Article 18 – Right to asylum 
The right to asylum is guaranteed by Article 18 of the Charter. 
Legislation One major legislative development in this area is  the adoption by the European Commission, on 26 
June 2014, of a proposal amending  Article 8(4) of the Dublin III Regulation on the issue of 
determining responsibility for examining applications made by unaccompanied minors.
121 This 
proposal was adopted following the ruling by the Court of Justice in the M.A.  case122. The proposal, 
currently under negotiation, codifies the Courts' juri sprudence on this topic and aims at ensuring that 
the best interests of the child are always a prim ary consideration in the Dublin procedure, by 
providing, in particular, that unaccompanied minors, one of the most vulnerable group of 
international protection applicants , will not be needlessly transferred from one EU State to another 
and that the examination of their applications will not be unduly prolonged. 
Policy  Following the tragedy in Lampedusa on 3 Octobe r 2013, when 366 migrants lost their lives, the 
European Commission had proposed ways and ta ken measures to better address migratory and 
asylum flows, and prevent migrant deaths in the Mediterranean, chairing the Task Force 
Mediterranean on the basis of a mandate of th e Justice and Home Affairs Council and of the 
European Council. The European Commission presen ted on 22 May 2014 an overview of the concrete 
steps taken so far.
123  
On 10-11 November 2014, the European Union Agency  for Fundamental Rights (FRA), toge ther with 
the Italian Presidency of the Council of the EU, held its annual Fundamental Rights Conference, which 
was dedicated to the topic of fundamental rights and migration to the EU. The Conference was an 
opportunity to discuss fundamental rights challenges in the area of asylum, border and migrant 
integration. The conclusions of the conference cont ain suggestions for measures relating to specific 
areas of migration, including border surveillance, combating smuggling, protection of children, and 
migrant integration.124  
The European Commission on 25 November 2014 held a second Forum on Resettlement and 
Relocation to discuss specific solidarity and respon sibility sharing tools, in order to cope with the 
pressing refugee crisis related in particular to the si tuation in the Middle East and in North Africa. On 
the basis of the conclusions reached, the Commissi on will continue discussions with the Member 
                                                            
121 Proposal for a Regulation of the European Parliament and of the Council amending Regulation (EU) No 
604/2013 as regards determining the Member State respon sible for examining the application for international 
protection of unaccompanied minors with no family me mber, sibling or relative legally present in a Member 
State of 26.6.2014, (COM(2014) 382 final), available at: 
http://www.europarl.europa.eu/m eetdocs/2014_2019/doc uments/com/com_com(20 14)0382_/com_com(201
4)0382_en.pdf ,  see also Article 24. 
122 CJEU judgment of 6 June 2013 in Case C-648/11 MA and Others v Secretary of State for the Home 
Department.  
123 See Staff Working Document 'Implementation of the Communication on the Work of the Task Force 
Mediterranean' (SWD(2014) 173 final); availabl e at: http://ec.europa.eu/dgs/home-affairs/e-
library/documents/policies/immigrat ion/general/docs/sdw_implementation_of_the_communication_on_the_
work_of_the_task_force_mediterranean_part_1_en.pdf. 
124 Available at: http://fra.europa.eu/en/publication/2014/fundamental-rights-conference-2014-conclusions . 
 
44 States on developing a common approach to intra-EU relocation of beneficiaries of protection as a 
tool which could be triggered in an emergency situation, as well as on a pilot project on resettlement 
which would involve as many Member States as possible.  
The respect for the Charter of Fundamental Rights and human rights lie at the basis of the EU 
migration policy and its relations with third countries. Th erefore, it is at the heart of the EU's external 
migration policy, the Global Approach to Migration and Mobility (GAMM). This issue is systematically 
addressed in all policy dialogues with third countries , and is also reflected in the numerous projects 
carried out under the GAMM focusing on protecting migrants, in particular the most vulnerable groups such as children, asylum seekers and vict ims of trafficking of human beings, empowering 
them though effective integration policies and acce ss to basic services, including health care. Hence, 
during 2014, the protection of the fundamental ri ghts and the human rights continued to be an 
essential element of the work carried out in the framework of the GAMM and has also been a cross 
cutting element of the new cooperation processes es tablished last year, i.e. the Khartoum Process 
with the Eastern African countries (November 2014), the Dialogue on Migration, Mobility and 
Security established with Leba non (December 2014), the new Mobilit y Partnerships signed with 
Azerbaijan, Jordan and Tunisia. The Commission  has launched in 2014 a EUR 9.5 million globally 
coordinated civil society action with the Internatio nal Federation of the Red Cross, focusing on the 
rights of vulnerable migrants and victims of human trafficking. 
 Case-law The abovementioned case A, B, C
125 concerned the interpretation of  EU provisions on asylum in 
relation to the methods by which national auth orities may assess the credibility of the declared 
sexual orientation of applicants for asylum. Here the CJEU clarified that, while Member States are 
entitled to assess the credibility of the statem ents of an applicant regarding his/her sexual 
orientation, the methods used by the competent national authorities to assess the credibility of 
those statements must ensure the respect of fund amental rights, such as the right to respect for 
human dignity and the right to respect for private and family life. 
Another important ruling was rendered by the Court of Justice in case M'Bodj126 where the Court 
clarified that Articles 28 and 29 of the Asylum Qualification Directive127, read in conjunction with 
Articles 2(e), 3, 15, and 18 of that Directive, are to be interpreted as not requiring a Member State to 
grant the social welfare and health care benefits provided for in those measures to a third country 
national in specific circumstances. This concer ned the scenario where such a person had been 
granted leave to reside in the territory of that Member State under national legislation, allowing a 
foreign national suffering from a serious illness to reside in that Member State on the ground that 
there is a risk that that person’s health will de teriorate as a result of the fact that adequate 
treatment is not available in his country of origin or in the third country in which he resided 
                                                            
125 CJEU judgment of 2 December 2014 in Joined Cases C-148/13, C-149/13 and C-150/ 13 A, B, C v 
Staatssecretaris van Ve iligiheid en Justitie, see also Articles 1, 7 and 21. 
126 CJEU judgment of 18 December 2014 in Case C-542/13 Mohamed M'Bodj v Belgian State . 
127 Council Directive 2004/83/EC of 29 April 2004 on minimum standards for the qualification and status of 
third country nationals or stateless persons as refuge es or as persons who otherwise need international 
protection and the content of the protecti on granted, OJ L304, 30.9.2004, p.12. 
 
45 previously. The Court clarified that Article 15(b) of the Directive, defining serious harm, is applicable 
only to the inhuman or degrading treatment of an applicant in his country of origin. It further 
clarified that serious harm must be inflicted by a third party and cannot simply be the result of 
general shortcomings in the health system in the country of origin. 
Finally, two important judgments were issued by the European Court of Human Rights concerning 
the obligations for the sending and receiving Member States under the Dublin procedure, also to be 
read in light of relevant new obligations for Member States set out in the Dublin III Regulation. 128  In 
the case of Tarakhel vs Switzerland129 the ECtHR decided on whether a Dublin transfer of a family 
with children by Switzerland to Italy would violate Articles 3, 13 and 8 of the European Convention of 
Human Rights. In this context the ECtHR ruled that  Switzerland should seek individual guarantees 
from Italy "that the applicants would be taken charge of in a manner adapted to the age of the 
children and that the family would be kept together"  before sending the applicants to Italy. Another 
important judgment concerning Dublin transfers was rendered in the case Sharifi and Others .130 Here 
the Court shared the concerns of several observers with regard to the automatic return, 
implemented by the Italian border au thorities in the ports of the Adriat ic Sea, of persons who, in the 
majority of cases, were handed over to ferry captai ns with a view to being removed to Greece, thus 
depriving them of any procedural and substantive rights.131 
Application by Member States In the course of 2014 the European Commission ha s examined how Member States have applied the 
Charter when implementing EU legislation at the Unio n's external borders, in particular as regards 
the application of the principle of non-refoulement .
132  
Issues such as the application and length of detent ion, detention conditions, the particular situation 
of minors, free legal assistance and effective remedi es in the context of the asylum process in some 
Member States have also been of concern to th e European Commission. In particular, infringement 
proceedings were launched against a Member St ate for bad implementation of the Reception 
Conditions Directive133 and the Asylum Procedures Directive.134 The Commission raised concerns 
among others on the duration of the asylum procedure, the effectiveness of remedies against negative asylum decisions, the practical lack of free legal assistance, the detention of certain 
categories of asylum seekers, which appears to be applied automatically without an individualised 
assessment, and the right to an effective remedy against a detention decision as well as free legal in detention.
135  
Text Box Example 
                                                            
128 For further information on both following cases  see also above Article 4. 
129 ECtHR,  Tarakhel v Switzerland (GC), No 29217/12, 04.11.2014. 
130 ECtHR, Sharifi and Others v Italy , No 16643/09, 21.10.2014. 
131 See also Articles 4 and 19. 
132 See also Articles 4 and 19. 
133 Directive 2003/9/EC of 27 January 2003 laying down standards for the reception of applicants for 
international protection, OJ L31,6.2.2003, p.18. 
134 Council directive 2005/85/EC of 1 December 2005 on minimum standards on procedures in Member States 
for granting and withdrawing refugee status, OJ L3 26, 13.12.2005, p.13, see also Articles 6 and 47. 
135 See also Articles 6 and 47. 
 
46 Ruling of the Supreme Court of Ireland 
This case136 concerned failed asylum seekers who sought to  contest, by means of judicial review, a 
number of decisions whereby the State refused them recognition as refugees pursuant to s. 17 of the 
Refugee Act 1966. The State argued that their application for judicial review was out of time as s. 5 of 
the Illegal Immigrants (Trafficking) Act 2000 impose s a 14 day time limit on the making of such an 
application in asylum cases. In its ruling the Supr eme Court held that the limitation period rendered 
the applicants' access to a judicial remedy practi cally impossible or excessively difficult. The Court 
referred to Articles 18 and 47 of the Charter and acknowledged that Ireland had a duty to grant 
refugee status to those who qualify as refugees in  accordance with the Qualifications Directive137. 
Since the rights sought by the respondents derived exclusively from EU law and since the State was 
obliged to give effect to EU law it could not limit the rights in any way, including by means of 
legislation given the primacy of EU law in Ireland. 
 
Article 19 – Protection in the event of removal, expulsion or extradition 
Article 19 of the Charter incorporates the same right as afforded by Article 4 of protocol No.4 to the 
ECHR as well as case law of the ECtHR on Article 3 of the ECHR. It prohibits collective expulsions and 
protects individuals from being removed, expelled or  extradited to a state where there is a serious 
risk of death penalty, torture or other i nhuman or degrading treatment or punishment. 
Policy The Commission continues its approach to ensure respect for human rights and international refugee 
protection in the implementation  of EU Readmission Agreements  (EURA), as outlined in its 
Communication to the European Parliament and the Council on the Evaluation of EU Readmission 
Agreements (COM(2011) 76 of 23 February 2011) and as referred to in the 2013 report. 
The Commission has together with 2 international organisations launched a pilot project introducing 
a post-return monitoring mechanism in selected  third countries (Pakistan and Ukraine), which 
monitors the well-being of persons after being returned under an EURA (own nationals as well as 
third country nationals and stateless persons). 
Moreover, as recalled by the Council Conclusions of  5 June 2014 on the EU return policy, further 
efforts should be done in the framework of our cooperation with third countries, in particular transit 
countries, to facilitate the return of migrants to  their countries of origin with due respect of 
fundamental rights and the principle of non-refoulement.  
                                                           
 
136 Supreme Court of Ireland, case IESC 29, judgment of Mr Justice Murray, 10.4.2014, available at: 
http://www.supremecourt.ie/Judgme nts.nsf/1b0757edc371032e802572e a0061450e/b58b66 b170cdb1dd8025
7d12004e4cc0?OpenDocument.  
137 Council Directive 2004/83/EC of 29 April 2004 on minimum standards for the qualification and status of 
third country nationals or stateless persons as refuge es or as persons who otherwise need international 
protection and the content of the protection granted. 
 
47 Case law 
In the case of Mukarubega138 the Court expressly endorsed the righ t to be heard, as enshrined in the 
general principle of good administration, in the Return Directive context and highlighted that it 
applies in the context of taking a return decision . The Court held in particular that despite the 
absence of detailed guidance in the Return Directive on whether and under what conditions observance of the right to be heard must be ensured before the adoption of a return decision 
concerning a third country national, Member States are required to ensure that return decisions are 
issued in compliance the right to be heard, which is inherent in observance of the right of defence. While recalling the same principle, the Court clarified in Boudjlida
139 that this right implies an 
obligation upon national authorities to ensure th at the person concerned always has the possibility 
to express his point of view on the legality of hi s stay and on possible reasons that may justify the 
non-adoption of a return decision, as well as on the detailed arrangements for his return. In this 
context, the Court also clarified that in principl e such obligations do not go as far as requiring 
national authorities to set out further and more de tailed arrangements in order to ensure full respect 
of an adversarial procedure. 
The Court reiterated the obligation upon national  authorities to ensure full protection of 
fundamental rights as enshrined in the EU Charter in the case of Abdida140 when implementing EU 
rules on return of illegally staying third country na tionals: this may require national authorities to 
provide for a remedy with suspensive effect in re spect of the administrative  decision refusing leave 
to remain or subsidiary protection, as well as to provide for the basic needs of the person concerned 
to be met under their social security or reception system, pending a ruling on his appeal against that 
administrative decision. 
Finally, two important judgments were issued by the European Court of Human Rights concerning 
the obligations for the sending and receiving Member States under the Dublin procedure under, 
respectively, the principle of non-refoulement  and the prohibition of collective expulsions under 
Article 4 of Protocol No. 4 of the Convention.141 
                                                            
138 CJEU judgment of 5 November 2014 in case C-166/13 Mukarubega.  
139 CJEU judgment of 11 December 2014 in case C-249/13 Boudjlida. 
140 CJEU judgment of 18 December 2014 in Case C-562/13 Abdida. 
141 See above under Articles 4 and 18 cases Tarakhel vs Switzerland  and Sharifi and Others v Italy.   
 
48 
 
 
 
49 
 
Source: European Commission 
 
 
50 Equality 
The Joint High Level Event on Non-Discrimination and Equality " Shaping the Future of Equality 
Policies in the EU " was co-organised by the European Commissi on and the Italian Presidency in Rome 
on 6-7 November 2014. Equality and non-discrimina tion in economic recovery, new directions for 
diversity management, new possibilities in valuing e quality and diversity and future perspectives on 
access to justice were addressed and a High Level Group on non-discrimination, diversity and equality was launched.
142  
Efforts to combat racism and xenophobia contin ued in 2014. The 8th semina r between the European 
Commission and the State of Israel on the fight against racism, xenophobia and anti-Semitism  was 
held on 27-28 October 2014 in Jerusalem. In additi on, the Fundamental Rights  Agency established a 
Working Party on improving reporting and recording of hate crime in the EU.  
In the autumn of 2014, anticipating the end of the transitional period on 1 December 2014 applicable 
to Framework Decisions set by Protocol 36 of  the Lisbon Treaty, the European Commission 
commenced bilateral dialogues with the Member States  on remaining gaps in their transposition of 
the Council Framework Decision 2008/913/ JHA on racism and xenophobia. The Framework 
Decision obliges the EU Member States to penalise the most serious forms of hate speech  as well as 
hate crimes  based on a racist or xenophobic motivation. 
Regarding the inclusion of Roma, in April 2014, the European Commission published the Report on 
the Implementation of the EU Framework for National Roma Integration Strategies . The report 
presented progress on the situation of the Roma in education, employment, health, housing and discrimination since 2011. The third EU-level Roma Summit
143 took stock of how the national Roma 
strategies submitted by Member States as a resu lt of the EU Framework are being implemented and 
their impact on the life of Roma communities. Around 500 representatives of EU institutions, 
national governments and parliaments, internatio nal organisations, civil society (including Roma 
organisations) and local and regional authorities we re able to express their views on what has been 
achieved so far and how to further im prove Roma integration in the future. 
With respect to Article 24 of the Charter on the rights of the child, the actions set out in the EU 
Agenda for the rights of the child (2011-2014) have been successfully completed. As in previous 
years, the European Commission was involved in a high number of actions promoting the rights of 
the child, such as a study on the effective use of early childhood education and care in preventing 
early school leaving and a report on the protection of children online.144 
                                                            
142 More information on the outcomes of the event can be found at http://ec.europa.eu/justice/events/hle-
2014/index_en.htm   
143 More information on the Roma su mmit can be found at http://ec.eu ropa.eu/justice/events/roma-summit-
2014/index_en.htm 
144 For further reference see: http://ec.europa.eu/education/policy/st rategic-framework/archive/index_en.htm  
. 
 
51 The European Commission has also launched infringe ment proceedings against 11 Member States for 
the non-communication of measures transpos ing Directive 2011/93/EU on combating the sexual 
abuse and sexual exploitation of children and child pornography . 
As far as the integration of persons with disa bilities is concerned, the European Commission 
submitted its first report to the UN  on how the EU is giving effect to the UN Convention  on the 
Rights of Persons with Disabilities . 
 
 
52 Titl e III 
Equality 
Article 20 – Equality before the law 
Article 20 stipulates that everyone is equal befo re the law. The article corresponds to a general 
principle of law which is included in all European constitutions and has also been recognised by the 
CJEU as a basic principle of Union law.145  
Case law In the Baltic Agro SA  case
146, the CJEU ruled about the compliance of definitive anti-dumping duty on 
imports of products originating in Russia with the principle of equal treatment as enshrined in Article 20 of the Charter. One of the questions referred by the Tartu Ringkonnakohus  (Estonia) concerned 
the issue whether Article 66 of the Customs Co de and Article 251 of Regulation No 2454/93 are 
compatible with the fundamental right to equality before the law affirmed in Article 20 of the Charter in circumstances where, in the context of the common customs tariff referred to in Articles 
28 TFEU and 31 TFEU, those provisions of the Cu stoms Code and of Regulation No 2454/93 do not 
permit the invalidation, on request, of an incorre ct customs declaration and thus the grant of the 
benefit of the exemption from anti-dumping duty to the consignee that the latter could have 
claimed, if the error had not been made. The referri ng court considered that, if the provisions of the 
Customs Code and of Regulation No 661/2008 at is sue in the main proceedings do not permit the 
cancellation of the customs declaration in order to  correct the consignee of the goods at issue and 
thereby preclude Magnet Grupp from relying on the exemption from anti-dumping duty that it could have claimed had there been no such error, the quest ion arises as to whether there is a breach of the 
fundamental right to equality before the law, since the two companies involved in the main 
proceedings, which are essentially in the same si tuation, are not treated in the same manner. 
However, no error of such a kind as to permit th e invalidation of the customs declarations was at 
issue in the main proceedings. The obligation to pr ovide correct information in a customs declaration 
falls on the declarant. That obligation is no more th an the corollary of the principle of irrevocability of 
the customs declaration once it has been accepted . Moreover, a company that has complied with the 
requirements laid down in Article 3 of Regul ation No 661/2008 and has correctly completed a 
customs declaration in order to be eligible for an exemption from anti-dumping duty is not in a 
situation comparable with that of a company that has not complied with those requirements. 
Further, even if the entries in the customs declarations at issue in the main proceedings had been correct, Baltic Agro would not be in a position to claim the exemption from anti-dumping duty 
because it would not, in any event, satisfy the condi tions laid down by Article 3(1) of Regulation No 
661/2008. Consequently, the answer to the referred que stion is that Article 66 of the Customs Code 
and Article 251 of Regulation No 2454/93 are compat ible with the fundamental right to equality 
before the law affirmed in Article 20 of the Charte r in circumstances where, in the context of the 
common customs tariff, referred to in Articles 28 TF EU and 31 TFEU, those provisions of the Customs 
                                                           
 
145 See the Explanation on Article 20 in the Explanations  Relating to the Charter of Fundamental rights, OJ C 
303/17, 14.12.2007, p. 17 
146 CJEU judgment of 17 September 2014 in Case C-3/13 Baltic Agro SA . 
 
53 Code and of Regulation No 2454/93 do not permit the invalidation, on request, of an incorrect 
customs declaration and thus the grant of the bene fit of the exemption from anti-dumping duty to 
the consignee that the latter could have claimed, if the error had not been made. 
The CJEU also ruled on several cases where Articl e 20 of the Charter was invoked by the referring 
judge, but where the Charter did not apply as the circumstances of the case were only related to the implementation of national law, and not EU law. 
A first case where Article 20 of the Charter was held not to be applicable is the order of 26 June 2014 
in the case Sindicato Nacional dos Profissionais de Seguros e Afins v Fidelidade Mundial – 
Companhia de Seguros SA
147. The Court held that it is obviously not competent for answering the 
preliminary request by the Tribunal do Trabalho do Porto  (Portugal). As previously stated in Case C-
128/12, which related to the Budget Law 2011, the Budget Law 2012 does not implement EU Law.  
A second case where the Charter was invoked but held not to be applicable was the Dano148 case., 
The CJEU ruled that it has no jurisdiction to answ er the question whether Articles 1, 20 and 51 of the 
Charter require the Member States to grant Union ci tizens non-contributory cash benefits by way of 
basic provision such as to enable permanent reside nce or whether those States may limit their grant 
to the provision of funds necessary for return to the home State. According to the CJEU, since it is for 
the legislature of each Member State to lay down the conditions creating the right to those benefits, 
when laying down these conditions and the exte nt of such benefits, Member States are not 
implementing EU law. 
 
Article 21 – Non-discrimination 
The Charter prohibits any discrimination  based on any ground 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, ag e or sexual orientation. The Charter also prohibits 
discrimination on grounds of nationality, within th e scope of application of the Treaties and without 
prejudice to any of their specific provisions. Disc rimination 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. 149 In the area of employment and occupation, EU legislation prohibits discrimination on 
grounds of religion or belief, disability, age or sexual orientation. 150 
                                                            
147 CJEU order of 26 June 2014 in Case C-264/12 Sindicato Nacional dos Profi ssionais de Seguros e Afins v 
Fidelidade Mundial – Companhia de Seguros SA . 
148 CJEU judgments of 11 November  2014 in Case C-333/13 Dano, for more details see Article 45. 
149 Directive 2000/43/EC, OJ L 180/22. 
150 Directive 2000/78/EC, OJ L 303/16. 
 
54 1. General Non-Discrimination issues 
Legislation and Policy A horizontal anti-discrimination directive , extending the protection against discrimination of the 
Employment Equality Directive to areas outsid e employment is under negotiation in the Council
151. 
President Juncker identified the adoption of the Di rective as a priority in the political guidelines 
presented to the European  Parliament in July 2014.152  
In terms of information on wide-reaching initiatives on non-discrimination, still related to Article 21 
of the Charter, the European Commission and the Italian Presidency organised a Joint High Level 
Event on Non-Discrimination and Equality in  Rome on 6-7 November 2014 entitled " Shaping the 
Future of Equality Policies in the EU ", which brought together 250 high-level delegates from 
governments, NGOs, social partners, media, acad emics, businesses and independent experts. The 
themes of equality and non-discrimination in ec onomic recovery, new directions for diversity 
management, new possibilities in valuing equality an d diversity and future perspectives on access to 
justice were addressed.  
Within the actions aimed at fighting against discrimina tion at the workplace also related to Article 21, 
the Diversity Charter signatories from across the European Unio n have come together to work as the 
EU-level exchange Diversity Charter Platform si nce 2010. In October 2014, the European Commission 
published an overview of diversity management implementation and impact amongst Diversity 
Charter signatories in the European Union153. This shows that a Diversity Charter stands as a useful 
framework to build more evolved and ambitious diversity management strategies. The European 
Commission also co-organised a high level event with the French Diversity Charter, which was 
attended by 300 representatives of businesses (mul tinationals, SME, consultants), academia, public 
authorities and civil society from 24 EU countries. 
Finally, the Communication of 3 April 2014 on guidance for application of the Directive on the right 
to family reunification154 clarifies in its general introduction that the Directive must be interpreted 
and applied in accordance with fundamental rights. This concerns, in particular, the right to respect 
for private and family life, the principle of non-disc rimination, the rights of the child and the right to 
an effective remedy, as enshrined in the European  Convention of Human Rights and the EU Charter 
of Fundamental Rights. With regard to the family members falling into the scope of the above 
directive, all provisions must be applied in a ccordance with the non-discrimination principle 
enshrined in Article 21 of the Charter.155 This applies in particular to spouses and unmarried partners 
                                                            
151 Proposal for a Council Directive on implementing  the principle of equal treatment between persons 
irrespective of religion or belief, disa bility, age or sexual orientation, CO M(2008) 426 final, 2.7.2008, available 
at http://eur-lex.europa.eu/LexUriServ/LexU riServ.do?uri=CELEX:52008PC0426:EN:NOT . 
152 J-C Juncker, "A New Start for Europe: My Agenda for Jobs, Growth, Fairness and Democratic Change: 
Political Guidelines for the Next European  Commission", 22 October 2014, available at 
http://ec.europa.eu/priorities/docs/pg_en.pdf , at p. 9. 
153 The report is available at http://ec.europa.eu/just ice/discrimination/files/dive rsity_report2014_en.pdf. 
154 Communication on Directive 2003/86/EC, COM(2014) 210 final. 
155 Communication on Directive 2003/86/EC, COM(2014) 210 final, recital 5. 
 
55 in a duly attested stable long-term  relationship and to registered partnerships, concepts that have 
been extended in several Memb er States in recent years.156 
Case Law In the Kaltoft case
157 the CJEU had received a request for a pr eliminary ruling from the Danish District 
Court of Kolding ( retten i Kolding ). The Danish Court asked the CJEU to specify whether EU law itself 
prohibits discrimination on grounds of obesity . It also asked whether obesity can constitute a 
disability and therefore falls within the sc ope of the Employment Equality Directive158. The CJEU 
specified that in the area of employment and occupation, EU law does not lay down a general 
principle of non-discrimination on grounds of ob esity as such. However, the Court found that, if 
under given circumstances the obesity of the worker entails a limitation which results in particular 
from physical, mental or psychological impairment s which in interaction with various barriers may 
hinder the full and effective participation of that person in professional life on an equal basis with 
other workers, and the limitation is a long-term on e, such obesity can be covered by the concept of 
‘disability’ within the meaning of the directive. The concept of ‘disability’ was interpreted in light of 
the United Nations Convention on the Rights of Pe rsons with Disabilities, to which the EU and the 
majority of its Member States are a party.159 It also stressed that the conc ept of ‘disability’ within the 
meaning of Directive 2000/78 does not depend on th e extent to which the person may or may not 
have contributed to the onset of his disability.  
Regarding the applicability of the Charter to the pr esent case, the CJEU noted that the situation at 
issue in the main proceedings, in so far as it rela tes to a dismissal purportedly based on obesity, as 
such, would not fall within the scope of EU law, and that therefore the Charter does not apply. 
In the Deckmyn v Vandersteen case  of 3 September 2014160 the CJEU clarified the scope of the 
parody  exception under Article 5(3)(k) of Directive 2001/29 on the harmonisation of certain aspects 
of copyright and related rights in the information so ciety. As a result, the Court stated that if a 
parody conveys a discriminatory message, a person holding rights in the parodied work may demand 
that that work should not be associated with that message. 
The CJEU also gave a preliminary ruling on discrimination on the grounds of nationality  in the case 
Grauel Rüffer161 where it decided that reserving the option to use a certain language before civil 
courts only for resident nationals is  contrary to Articles 18 and 21 TFEU. 
In the Glatzel162 case, the CJEU was asked by the referri ng German court whether the refusal of a 
driver's license on the grounds of bad eyesight cons tituted a violation of Articles 20, 21 and 26 of the 
Charter. Particularly, the German court asked whet her point 6.4 of Annex III to Directive 2006/126 is 
compatible with Article 20, Article 21(1) and Articl e 26 of the Charter in so far as that provision 
                                                            
156 See also above, Article 7. 
157 CJEU judgment of 18 December 2014 in Case C-354/13 Kaltoft ; see also Article 26. 
158 Council Directive 2000/78/EC of 27 November 2000 , establishing a general fram ework for equal treatment 
in employment and occupation, OJ 2000 L 303, p. 16. 
159 Council Decision 2010/ 48/EC of 26 November 2009 concerning th e conclusion, by the European Community, 
of the United Nations Conven tion on the Rights of Persons with Disa bilities,  OJ  L 23,27.01.2010,  p. 35. 
160 CJEU judgment of 3 September 2014 in Case C-201/13, Deckmyn v Vandersteen . 
161 CJEU judgment of 27 March 2014 in Case C-322/13 Grauel Rüffer.  
162 CJEU judgment of 22 May 2014 in Case C-356/12 Glatzel , see also Articles 26 and 51. 
 
56 requires — without permitting any derogation — that applicants for Category C1 and Category C1E 
driving licences have a minimum vi sual acuity of 0,1 in their worse eye, even if those persons use 
both eyes together and have a normal field of vision when using both eyes. Although the CJEU 
eventually ruled that it did not have sufficient info rmation to conclude that the applicant of the case 
had such bad eyesight that it constitutes a ‘disab ility’ within the meaning of the Charter, the court 
stated that the differential treatment of a person with impaired eyesight can be justified by a 
concern such as road safety, whic h fulfils an objective of public interest, is necessary and is not a 
disproportionate burden. 
2. Manifestations of intolerance, racism and xenophobia in the EU Legislation and Policy The 8th seminar organised by the European Commission and the State of Israel on the fight against 
racism, xenophobia and anti-Semitism  was held on 27-28 October 2014 in Jerusalem, bringing 
together officials, diplomats and experts fr om Israel, the European Commission, the EU's 
Fundamental Rights Agency and several EU Member St ates. Over the two days, topical issues such as 
the threat of radicalization in Europe, online anti -Semitism, measures to combat hate speech and 
hate crime, data and trends of racism and an ti-Semitism in the EU, the European Commission's 
official dialogue with religious and non-confessi onal organisations as well as prevention through 
education, training and Holocaust remembrance were discussed.  
In response to the Council Conclusions on comb ating hate crime in the European Union, which 
invited Member States to take ap propriate measures to expedite the reporting of hate crimes by 
victims, the Fundamental Rights Agency established a Working Party on improving reporting and 
recording of hate crime in the EU
163 which brings together most Member States, the European 
Commission, the Council of Europe’s Commission agai nst Racism and Intolerance (ECRI), ODIHR and 
FRA. Member State representatives include sta ff from ministries, prosecutors’ offices, law 
enforcement agencies, police training institutions an d national parliaments. The inaugural meeting of 
the Working Party, which has initially been esta blished for a two-year period, took place on 4 
November 2014 in Rome. Its activities are focused on three thematic areas: encouraging victims to 
report and improving recording of hate crime, en hancing multi-agency partnerships to encourage a 
closer and better cooperation between various acto rs for combating hate crime effectively, and 
fostering training for law enforcement and criminal ju stice staff. The output of this work is to be 
reported to the European Commission's Ex pert Group on racism and xenophobia.  
As regards funding , for the period 2014-2020 the Rights, Equality and Citizenship Programme 
supports the development of efficient monitori ng and reporting mechanisms for racist and 
xenophobic hate speech on the internet and hate crim e as well as the exchange of best practices to 
prevent and combat racism, xenophobia and other fo rms of intolerance focusing in particular on 
criminal law tools. Supporting effe ctive and consistent implementation of the Framework Decision on 
the fight against racism an d xenophobia through ju dicial training is also one of the priorities for 2014 
of the Justice Programme. In this context MYPLAC E, a EU funded research project, needs to be 
                                                            
163 http://fra.europa.eu/en/news/2014/fra-co-hosts -inaugural-meeting-hate-crime-working-party  . 
 
57 mentioned, which explores how young people's social  participation is shaped by the shadows (past, 
present and future) of totalitarianism and populism in Europe.164 
Application by Member States In January 2014, the European Commission adopted the first report
165 on the implementation by the 
Member States of Council Framework Decision 2008/ 913/JHA on racism and xenophobia  which 
obliges the EU's Member States to penalise the most serious forms of hate speech , (i.e. the public 
incitement to violence and hatred based on race , colour, religion, descent or national or ethnic 
origin, including on the internet) as well as hate crimes  based on a racist or xenophobic motivation. 
With a view to the end of the transitional pe riod of 1 December 2014 applicable to Framework 
Decisions set by Protocol 36 of  the Lisbon Treaty, in autu mn 2014 the European Commission 
commenced bilateral dialogues with the Member States  on remaining gaps in their transposition 
and practical implementation of this legislation.   
3. EU Framework for National Roma Integration Strategies Legislation and Policy In the context of the EU Framework for National Roma Integration Strategies up to 2020
166, and the 
Council Recommendation on Roma integration  adopted on 9 December 2013167, finding solutions for 
the problems Roma face in Europe has remained a high priority for Member States, the European 
Parliament and Civil Society. 168 
On a bilateral level, the European Commission has continued to promote the protection of the 
fundamental rights of Roma through the organisation of high-level meetings with Member States and 
permanent dialogue regarding country specific re commendations related to Roma as part of the 
European Semester. On a multilateral level, tw o National Roma Contact Point meetings were 
organised in 2014, which focused on funding, stak eholder involvement and developing links with 
national equality bodies. Moreover, the 3rd Roma summit was held on 4 April 2014. Around 500 
representatives of EU institutions, national govern ments, international organizations, mayors, civil 
society organizations and local and regional auth orities were invited to deliver further on the 
implementation of the EU Framework for National Roma Integration Strategies. The "go local" theme 
of the summit contributed to the promotion of th e Charter values at every level of governance.  
In April 2014, the European Commission also published the Report on the Implementation of the EU 
Framework for National Roma Integration Strategies , which consisted of a Communication169 and a 
                                                            
164 http://www.fp7-myplace.eu/concept.php  . 
165 http://ec.europa.eu/justice/fundamental-rights/files/com_2014_27_en.pdf  . 
166 Communication on an EU Framework for National Roma  Integration Strategies up to 2020, COM (2011)173 
final. 
167 Council recommendation on effectiv e Roma integration measures in the Member States, Brussels, 9 an 10 
December 2013, available at http://www.consilium.europa.e u/uedocs/cms_data/docs/pre ssdata/en/lsa/139979.pdf
 
168 For more information, see http://ec.europa.eu/justice/discrimination/roma/index_en.htm   
169 COM(2014) 209. 
 
58 Staff Working Document170. The report presented progress on the situation of the Roma in 
education, employment, health, hous ing and discrimination since 2011.  
In terms of funding , the Fundamental Rights and Citizenship Programme171 has supported projects 
promoting the fundamental rights of Roma, such as the 3-million Euro grant to the Roma Matrix 
project. This project aims at combating racism , intolerance and xenophobi a towards Roma and at 
increasing integration through actions across Europe. It  is a partnership of 20 organizations in 10 EU 
Member States which contain 85% of the European  Union's Roma populations. The project runs for 
two years from April 2013 until March 2015. The rights of Roma will continue to be promoted through the funds of the new Rights, Equality a nd Citizenship Programme for the period 2014-2020. 
These funds support meetings, such as the abovementioned National Contact Point meetings, the 
annual report on the implementation of the EU Framework for National Roma Integration 
Strategies), etc. Furthermore, they are available to  co-finance projects on raising awareness, on 
identifying and exchanging good practices, etc.  
During 2014 specific actions have been taken to reduce the health gap between the Roma and the 
rest of the population. In this context, the EU Framework for National Roma Integration Strategies  
calls on Member States to provide access to quality healthcare, preventive care  and social services at 
a similar level and under the same conditions as the rest of the population. To achieve this objective, 
several Member States (e.g. Romania, Spain) have  invested in Roma mediators and the European 
Commission has launched an initiative to develop training packages for health professionals for 
migrants and ethnic minorities, including the Roma . The fundamental right of access to preventive 
health care and to benefit from medical treatment subject to national laws and practices is envisaged 
in the Union's policies to promote the effectiv e, holistic integration of Roma communities.
172 
The European Commission promotes equal access to quality education for Roma children and 
inclusive education. The ROMED programme  (2011-2014), a project jointly run by the European 
Commission and the Council of Europe, is a training  programme for mediators in schools, culture and 
health. The objective is to increase the inclusion of Roma communities, especially with regard to 
access to and completion of school education, with a holistic perspective towards the specific 
challenges of the communities. For 2013-2014, me diation is focusing on local authorities 
(municipalities, local schools, etc.) as well as th e role of mothers in their children's education.  
Application by Member States In September 2014, the European Commission launched infringement proceedings  against a 
Member State by sending a letter of formal notice. The case concerns discrimination of Roma 
children in education , which is deemed to constitute a viol ation of Directive 2000/43/EC on Racial 
Equality. The Charter was specifically referred to in  the letter of formal notice, since the Member 
State had referred to the case-law of the Court of Ju stice related to the Charter in its administrative 
reply before the infringement proceedings were launched.  Consequently, the European Commission 
                                                           
 
170 SWD(2014) 121. 
171 The objective of this programme are available at http://ec.europa.eu/justice/grants1/programmes-2014-
2020/rec/index_en.htm 
172 See also Article 35. 
 
59 deemed it necessary to clarify the correct interpretation of this case-law in the letter of formal 
notice.173 
4. Fight against homophobia Legislation and Policy The FRA together with the Italian Presidency  of the Council organised on 28 October 2014 a high-
level conference to discuss ways to further address discrimination  and hostility faced by lesbian, 
gay, bisexual, transgender, and inte rsex (LGBTI) people across the EU . Building on FRA’s EU LGBT 
survey results and other studies, the conference bro ught together over 400 decision makers, experts, 
civil society organisations, national human rights  bodies and practitioners from across the EU to 
discuss effective and targeted policy responses to  address the fundamental rights challenges that 
LGBTI people face in their daily lives, including hostil ity, hate crime, discrimination and bullying. The 
conclusions of the conference
174 highlighted that while LGBTI persons residing in the EU enjoy 
considerably more rights than they did in past de cades - even though the specific situation for the 
various LGBTI sub-groups differs significantly, also  between EU Member States – LGBTI people still 
face a number of challenges. Concrete steps forward in terms of legislation, policies and institutional 
practices were suggested. 
As part of an active policy on mainstreaming fund amental rights for LGBTI persons and combat LGBTI 
discrimination, the new Justice Commissioner V ĕra Jourová has expressed her willingness  to explore 
the possibility to take further measures  in cooperation with Member States and other key 
stakeholders.  
Case law An important judgment
175 was delivered by the Court of Justice as  it concerns the scope and limits of 
the assessment by national authorities of the credibility of an asylum seeker’s declarations 
regarding his or her sexual orientation .  
Further, a preliminary ruling176 is pending before the Court of Justice following a request by a French 
court as to whether, in the light of Annex III  to Directive 2004/33/EC implementing Directive 
2002/98/EC as regards certain technical requirements for blood and blood components, the fact that 
a man has sexual relations with another man constitutes in itself sexual behaviour placing him at a 
high risk of acquiring severe infectious diseases  justifying a permanent deferral from blood 
donation  or a merely temporary deferral from blood donation after the cessation of the risk 
behaviour. On 17 July 2014, the Advocate General  delivered an opinion in this case stating that while 
Member States may lay down more stringent prot ective measures than those laid down in the 
Directive, these would in any case be subject to the limits deriving from relevant EU provisions of 
primary law and from the fundamental rights as enshrined in the Charter, including Article 21. The 
Advocate General also maintained that, in the in vi ew of the discriminatory character of the French 
                                                            
173 See Article 14. 
174 Available at: http://fra.europa.eu/sites/defau lt/files/fra-it-presidency-concl usions-lgbti-conference-28-10-
2014.pdf  . 
175 CJEU judgment of 2 December 2014 in Jo ined Cases C-148/13, C-140/13 and C-150/13 A, B, C v 
Staatssecretaris van Veiligheid en Justitie , for more details see Articles 1 and 18. 
176 Request for preliminary ruling in Case C-528/13 Geoffrey Léger v Ministre des affaires sociales et de la santé.  
 
60 measure, it would be up to the referring court to  determine whether the measure is justified and 
proportional.  
Application by Member States As part of its work of mainstreaming fundamental  rights for LGBTI people into all Union policies,  the 
European Commission has been reviewing a complaint alleging a discriminatory nature of French 
legislation and practice which are claimed to re sult in discriminatory blood donation policies 
against homosexuals  as they are considered a high-risk group as regards exposure to sexually 
transmitted diseases, in light of relevant provisions  of EU legislation on technical requirements for 
blood and blood components. As the issue is re lated to the subject of the above-mentioned 
reference for a preliminary ruling, the as sessment of the complaint was suspended. 
The European Commission is in contact with the Lit huanian authorities to see whether the Lithuanian 
law on the ‘Protection of Minors against the Detrimen tal Effect of Public Information’ is compatible 
with, inter alia, the scope of derogations under Article 3 Audiovisual Media Services Directive 
(AVMSD) (freedom of reception) which may only be limited to protect minors from serious physical, 
mental or moral impairment or to prohibit inci tement to hatred (Articles 12 and 27 AVMSD).  
Text Box Example 
Ruling of the Austrian Constitutional Court  
One example where the scope of application of the Charter was dealt with in detail by a national 
court, including references to the relevant case law of the CJEU and literature, is the judgment of the 
Austrian Constitutional Court of 13 March 2014. This case177 concerned a homosexual couple from 
the Netherlands who wanted to repeat their marria ge in Tyrol. This was refused by the Austrian 
authorities and the couple claimed that their constitutional rights as guaranteed by Articles 8 and 14 
of the ECHR and Article 21 of the Charter were violat ed by this decision. With regard to its previous 
judgment178, in which the Constitutional Court ruled that the rights enshrined in the Charter can be 
                                                            
177 Constitutional Court Austria (Verfa ssungsgerichtshof Österreich), case B166/2013, 13.3.2014, available at: 
www.ris.bka.gv.at/Dokument.wxe?Abfrage=Gesamtabf rage&Dokumentnummer=JF T_201403 12_13B00166_00
&ResultFunctionToken=4d6a6c54-02c0-443e-990d-
5bdfadfd80bb&SearchInAsylGH=&SearchInBegut=&SearchInBgblAlt=&SearchInBgblAuth=&SearchInBgblPdf=&
SearchInBks=&SearchInBundesnormen=&SearchInDok=&SearchInDsk=&SearchInErlaesse=&SearchInGbk=&Sea
rchInGemeinderecht=&SearchInJustiz=&SearchInBvwg= &SearchInLvwg=&SearchInLgbl=&SearchInLgblAuth=&S
earchInLrBgld=&SearchInLrK=&SearchInLrNo=&SearchInLrOO=&SearchInLrSbg=&SearchInLrStmk=&SearchInLrT
=&SearchInLrVbg=&SearchInLrW=&Se archInNormenliste=&SearchInPvak=&S earchInRegV=&SearchInUbas=&Se
archInUmse=&SearchInUvs=&SearchInVerg=&SearchInVfgh=&SearchInVwgh=&ImRisSeit=Undefined&ResultPa
geSize=100&Suchworte=GRC .  
178 Constitutional Court Austria (Verfassungsger ichtshof Österreich), joined cases U 466/11 ‐18 U 1836/11 ‐13, 
VfSlg 19.632/2012, 14.3.2012, available at: https://www.vfgh.gv.at/cms/vfgh-
site/attachments/9/6/0/CH0006/ CMS1353421369433/grundrecht echarta_english_u466-11.pdf  . 
 
61 brought to the Constitutional Cour t as constitutionally guaranteed rights and are to be used as 
suitable scales in the area of competence of the Charter, the Court raised the question whether 
Article 21 of the Charter was applicable in the case at hand. The Court found that the national 
provisions of marital law do not aim at implemen ting EU law. Therefore, the Court ruled that the 
Charter was not applicable.  
 
Article 22 – Cultural, religiou s and linguistic diversity 
Article 22 stipulates that the Union shall respect cult ural, religious and linguistic diversity. This Article 
has been based on Article 6 of the Treaty on Euro pean Union and Article 167(1) and (4) of the Treaty 
on the Functioning of the European Union, concer ning culture. Respect for cultural and linguistic 
diversity is also laid down in Article 3(3) of the Tr eaty on European Union. The Article is also inspired 
by Declaration No 11 to the Final Act of the Amst erdam Treaty on the status of churches and non-
confessional organisations, now taken over in Ar ticle 17 of the Treaty on the Functioning of the 
European Union. 
Policy 
In May 2014 the Council of Education Mini sters adopted Council conclusions on multilingualism and 
the development of language competences . They include measures to support children and adults 
with migrant backgrounds in learning the language(s) of the host country. 
In November 2014 the Council of Culture Minister s adopted the EU Work Plan for Culture (2015-
2018) which foresees actions to protect and promote the diversity of cultural expressions ; and to 
foster the contribution of culture to social inclusion. 
Art 17 (3) TFEU stipulates that the Union shall ma intain an open, transparent and regular dialogue 
with churches and philosophical and non-confessional organisation.179 This dialogue takes place at 
various levels in the form of wri tten exchanges, meetings or specific events. Interlocutors are invited 
to contribute to the EU policy making process th rough the various written consultation processes 
launched by the European Commission. The dialogue  contributes to the promotion of religious 
diversity. 2014 marked the 10th anniversary of the annual high-level meeting with religious leaders. 
The topic of the discussion was "The future of the European Union".180 
Diversity was also at the core of the 11th meeting of the European Integration Forum "Ten years with 
the Common Basic Principles on integration – what next?"181 which took place in Brussels on 3 April 
2014. The European Integration Forum is the dialo gue platform on integration of immigrants. The 
goal of the 11th European Integration Forum wa s to assess to what extent the Common Basic 
Principles for Immigrant Integration Policy in the European Union182 have been a useful framework 
for the development of European integration policies,  so as to feed the policy dialogue for their 
                                                            
179 See also under Article 10 on freedom of thought, conscience and religion. 
180 http://europa.eu/rapid/press-release_IP-14-650_en.htm 
181 http://ec.europa.eu/ew si/en/policy/legal.cfm 
182 Council doc 14615/04, 
http://www.consilium.europa.eu/ ueDocs/cms_Data/docs/pressD ata/en/jha/82745.pdf   
 
62 future development. The Forum structured the discussion around three dimensions of the Common 
Basic Principles: legal-political, so cio-economic and cultural-religious.183 
 
Article 23 – Equality between women and men 
According to Article 23 equality between women and men must be ensured in all areas, including 
employment, work and pay. The principle of equalit y shall not prevent the maintenance or adoption 
of measures providing for specific advantages  in favour of the under-represented sex. 
Legislation The European Maritime and Fisheries Fund  (EMFF) Regulation
184 adopted in 2014 includes several 
provisions that explicitly aim at achieving a higher degree of equality between women and men 
within the scope of the Common Fisheries Policy (CFP). Articles 29 and 50 of the EMFF Regulation, 
which foresee support in order to promote human ca pital, job creation, and social dialogue in the 
fishery and aquaculture sector, explicitly mention the involvement of organisations devoted to 
gender equality and to the promotion of the role of women in fishing communities in networking 
activities and the exchange of experiences and be st practices. Article 50 EMFF ensures that bodies 
involved in promoting equality between men and women are informed about funding possibilities 
and rules on access to EMFF funds. Further, unde r Article 113 of the EMFF Regulation each national 
monitoring committee overseeing the implementation  of the EMFF must examine actions that 
promote general equality in order to verify the performance and effective implementation of EMFF 
support measures. 
Policy In line with Article 23 of the Charter, the Euro pean Union promotes equality between women and 
men, by monitoring legislation, issuing recommenda tions, and by co-funding and awareness-raising 
activities, in the five priorities areas of the 2010-2015 Strategy for equali ty between women and 
men .  
This report refers to some of the main develo pments in the gender equality area. A more detailed 
description can be found in the annual 2014 Report on equali ty between women and men
185. The 
latter  shows that although gaps between men and women have narrowed in recent decades, 
inequalities within and between Member States have grown overall and challenges remain in the 
following areas: 
• For every hour worked women earn on average 16.4% less than men . This figure is above 
20% in Czech Republic, Aust ria, Estonia and Germany. Closing the gender pay and pension 
                                                            
183 The summary report of the 11th meeting of the European Inte gration Forum is available at 
http://ec.europa.eu/ewsi/UDRW/ima ges/items/static_38_93999696.pdf 
184 Regulation (EU) No 508/2014 of the European Par liament and of the Council of 15 May 2014 on the 
European Maritime and Fisheries Fund, OJ L 149, 20.5.2014, p. 1. 
185 Annual 2014 Report on equality between women and men, 03.03.2015, SWD(2015) 49, available at: 
http://ec.europa.eu/justice/gender -equality/files/annual_reports/150 304_annual_report_2014_web_en.pdf .   
 
63 gap has been frustratingly slow.  The latter has reached 39 %. Women still tend to be 
concentrated in less well-paid sectors. 
• The prevalence of gender-based violence is still alarmingly high . A third of women in the EU 
report having experienced physical and sexual violence. More figures are available in the 
published by the EU Agency for Fundamental Rights.186 
• Gender gaps in employment and decision-making have narrowed in recent years, but 
women still account for less than a quarter of company board members,  despite 
representing almost half of the employed wo rkforce (46 %). Also, the extent of gender 
equality varies substantially across Member States and improvement has not reached all social groups. Many factors continue to ha mper women’s employment and therefore the 
potential for economic growth. 
• Women are more likely to have a higher education degree (over 60% of new graduates are 
female), but are significantly under-represented in STEM187 studies and careers , in research 
and in senior posts at all levels of education, including higher education. 
The annual 2014 Report on equa lity between women and men  describes how the EU has acted to 
advance gender equality over the past year. In particular, in 2014, the EU has  issued country specific 
recommendations188 and used co-funding opportunities with the European Structural and 
Investment Funds to promote female employment, investment in early childhood education and care 
facilities, accessible long-term care and the reduc tion of tax-benefit disincentives for women to 
work.189 The EU has also supported specific actions, su ch as national governments’ campaigns against 
gender-based violence and grass-root projects led by non-governmental organisations.190 And over 
the past years, the EU has adopted legislatio n and practical measures on victims’ rights191. 
Moreover, the European Commission raised awareness of the size and persistence of the gender pay 
gap by organisation of a European Equal Pay Day . It provided funding  for transnational projects 
aimed at reducing the gender pay gap and gender imbalances in decision-making.  
The European Commission Recommendation on strengthening the principle of equal pay between 
men and women through transparency192 was adopted on 7 March 2014 and specifically refers in 
Recital 4 to Article 23 of the Charter of Fundamental Rights. 
                                                            
186 FRA study: Violence against women: an EU-wide survey, March 2014, available at:  
http://fra.europa.eu/en/publication/2014/violence-a gainst-women-eu-wide-survey-main-results-report . 
187 See European Commission Press Release of 5 March 20 15: Commission outlines remaining key challenges on 
gender equality, available at: http://europa.eu/rapid/press-release_IP-15-4552_en.htm#_ftn1 .  
188 Available at: http://ec.europa.eu/europe2020/mak ing-it-happen/country-specific-
recommendations/index_en.htm  .  
189 See 2014 Report on equality between women and men, chapter 1. 
190 See 2014 Report on equality between women and men, chapter 4.  
191 see European Commission Fact Sheet of 20 February 2015 : Protection of victims in the EU availabela ot 
MEMO/15/4465  and European Commission Press Release of 9 Janu ary 2015: Better protection for victims of 
violence anywhere in the EU, available at: IP/15/3045 ). 
192 Recommendation on strengthening the principle of equal pay between men and women through 
transparency (2014/124/EU). 
 
64 Finally, in 2014, the European Commission also impl emented the concrete ac tions announced in the 
Communication "Towards the elimination of female genital mutilation"193, adopted in November 
2013 and promoting Article 3 of the Charter which fo resees a right to the integrity of the person.194 
 
Article 24 – The rights of the child 
Article 24 of the Charter recognises that children are independent and autonomous holders of rights 
who have needs and interests which are different from adults. Article 24 also makes the child's best interest a primary consideration for public author ities and private institutions. The promotion and 
protection of the rights of the child is one of the objectives of the EU on which the Treaty on 
European Union, following from Article 3(3).  
With respect to Article 24 of the Charter on the rights of the child, the actions
195 set out in the EU 
Agenda for the rights of the child196 have been successfully completed.  
Legislation  
In 2013, the European Commission tabled a proposal for a  Directive on procedural safeguards for 
children suspected or accused in criminal proceedings197, which will ensure that children have 
mandatory access to a lawyer at all stages. This me ans that children cannot waive their right to be 
assisted by a lawyer, to ensure that a lacking understanding of the consequence of their actions does 
not lead them to waive their rights. Children are also set to benefit from other safeguards such as being promptly informed about their rights, being assisted by their parents (or other appropriate 
persons), not being questioned in public hearings, having the right to receive a medical examination 
and being kept separate from adult inmates if de prived of liberty. In conjunction with Directive 
2012/29/EU establishing minimum standards on the ri ghts, support and protection of victims of 
crime of 2012
198, and the 2011 legislation on child sexual a buse and exploitation and trafficking in 
human beings, this proposal will contribute to crea ting a more child-friendly justice system for all 
children involved in judicial proceedings.199 In 2014 discussions in the Co uncil took place culminating 
in a Council general appr oach in June 2014.  
                                                            
193 Communication from the Commission to  the European Parliament and th e Council "Towards the elimination 
of female genital mutilation" of 25.11. 2013, COM(2013) 833 final, available at 
http://ec.europa.eu/justice/gender-
equality/files/gender_based_violenc e/131125_fgm_communication_en.pdf  . 
194 See Articles 3 and 24. 
195 On the state of play of the 11 actions taken to impl ement the EU Agenda for the Rights of the Child, see 
http://ec.europa.eu/justice/fundamental-rights/files/20140916_state_of_play.pdf.  
196 Commission Communication: An EU Agenda for the Rights  of the Child, COM(2011) 60 final, available at 
http://eur-lex.europa.eu/LexUriServ/LexUri Serv.do?uri=CELEX:52011DC0060:en:NOT .  
197 Proposal for a Directive of the European Parliament and of the Council on procedural safeguards for children 
suspected or accused in criminal proceedings, COM(20 13) 822 final, available at http://eur-
lex.europa.eu/LexUriServ/LexUriServ.do?uri=CELEX:52013PC0822:en:NOT.   
198 Directive 2012/29/EU establishing minimum standards on  the rights, support and protection of victims of 
crime, and replacing Council Framework Decisio n 2001/220/JHA, OJ L 31 5, 14.11. 2012, p. 57. 
199 See also the on-going FRA research on  forms of child participation in crim inal and civil judicial proceedings. 
Practices of child participation in justice proceedings vary considerably across EU Member States. There are 
gaps in relation to clear, consisten t standards and guidelines on how and when children should be involved. In 
 
65 In the context of the negotiations of the Dublin III Regulation200, the European Parliament and the 
Council invited the European Commissi on to consider a revision of Article 8(4). On 26 June 2014, the 
European Commission adopted a proposal amending Article 8(4)  of the Dublin III Regulation on the 
issue of determining responsibility for examinin g applications made by unaccompanied minors201. 
The proposal codifies the Courts' jurisprudence on this topic and ensures that all loopholes in the 
responsibility criteria regarding unaccompanied mino rs are covered. On 6 June 2013, in the case C-
648/11 MA and Others vs. Secretary of State for the Home Department202 the Court of Justice ruled 
that Article 6(2) of the Dublin II Regulation "must be interpreted as meaning that, in circumstances 
such as those of the main proceedings, where an unaccompanied minor with no member of his 
family legally present in the territory of a Member State has lodged asylum applications in more than 
one Member State, the Member State in which that  child is present after having lodged an asylum 
application there is to be designated the ‘Member State responsible’ In line with the Charter of 
Fundamental Rights and as reiterated by the Court of Justice in the MA case, the Commission's 
proposal ensures that the best interests of the minors will always be a primary consideration in the 
Dublin procedure . In particular, it provides that unaccompanied minors, one of the most vulnerable 
group of international protection applicants, will no t be needlessly transferred from one EU State to 
another and that the examination of their applicat ions will not be unduly prolonged. The European 
Commission presented its proposal in the LIBE Committee of the European Parliament on 25 September 2014 and to the JHA counsellors on the 26 September 2014.
203  
Policy  
The EU Agenda for the rights of the child  (2011-14) aimed to reinforce the full commitment of the 
EU - as enshrined in the Treaty of Lisbon and the Charter of Fundamental Rights - to promote, 
protect and fulfil the rights of the child in all relevan t EU policies and actions. It included 11 concrete 
actions, covering in particular child-friendly justice, and vulnerable children. A preliminary evaluation 
of the EU Agenda was presented to the relevan t Council working group (FREMP) on 3 October and 
led to Council Conclusions  on the promotion and protection of the rights of the child  adopted in 
December 2014204 to mark the 25th Anniversary of the UN Convention on the Rights of the Child . In 
the conclusions the Council, among other things, made a commitment to consistently apply its 
internal guidelines on fundamental rights compatibility in its preparatory bodies and invited the 
European Commission and EU Member States to give  full recognition to children as rights holders 
and to ensure respect for the principle of the best  interests of the child in all policies affecting 
children.  
                                                                                                                                                                                          
2011, the Commission highlighted in the EU Agenda for the Rights of the Child that promoting child-friendly 
justice is at the center of its action s. Therefore, in close cooperation wi th the Commission, FRA is engaging in 
research to examine practices and procedures of child  participation in justice proceedings which should 
conform to the Council of Europe’s guidelines on child-friendly justice.  More information on the research 
project is available at http://fra.europa.eu/en/project/2012/children-and-justice. 
200 Regulation (EU) No 604/2013 of 26  June 2013 establishing the criteria  and mechanisms for determining the 
Member State responsible for examinin g an application for international protection lodged in one of the 
Member States by a third-country national or a stat eless person (recast), OJ L180, 29.06.2013, p. 31. 
201 COM(2014) 382 final.  
202 CJEU judgment of 6 June 2013 
203 See also Article 18.  
204 http://db.eurocrim.org/db/en/doc/2272.pdf .  
 
66 The European Parliament adopted a Resolution on the 25th anniversary of the UN Convention on 
the Rights of the Child.205 T h e  re solu t ion  c alls on  E U  M e mb e r S t ate s t o p u t  t h e issu e  of  c h ild re n ’s  
rights on the European Union’s agenda and to consider  children as a priority in future regional and 
cohesion policies206. The resolution also calls on the Euro pean Commission to seize the opportunity 
afforded by the mid-term review of the multiannual financial framework to ensure that EU funds 
benefit the most disadvantaged and vulnerable children across Europe. 
In May 2014, the Council and the representatives of  the governments of the Member States also 
adopted a resolution on an EU Work Plan for Youth (2014 – 2015). It is a medium-term structured 
plan for 18 months, with a limited number of key in itiatives in specific youth policy areas so as to 
enable the EU and its Member States to addre ss urgently the high youth unemployment rates and 
the consequences of the current crisis for yo ur people. As a follow-up the Council adopted 
conclusions on promoting young people's access to rights in order to foster their autonomy and 
participation in civil society in December 2014.  The Council has also decided to make youth 
empowerment the overall thematic priority for the structured dialogue with young people until the 
end of 2015.  
In the same month, the Council of Sport Ministers adopted the EU Work Plan for Sport  (2014 – 2017) 
which, among other things, plans actions to protec t young athletes and safeguard children's rights in 
sport. Next to this, the Council of Education Ministers adopted Council conclusions on 
multilingualism and the development of language competences . They include measures to support 
children and adults with migrant backgrounds in  learning the language(s) of the host country. 
Investing in Children On 20 February 2013 the European Commission adopted a recommendation on Investing in 
children: breaking the cycle of disadvantage
207, which took a comprehensive child-rights approach 
to tackling child poverty and prom oting child wellbeing. In 2013, members of the European network 
of independent experts on social inclusion were asked to prepare country reports to assist the 
European Commission and Member States in implem entation of the recommendation and inform its 
monitoring, resulting in a 2014 synthesis report Investing in children: breaking the cycle of 
disadvantage – A study of national policies  . The synthesis report cont ains an assessment of what 
Member States would need to do to implement the recommendation.208 In 2014, the European 
Commission published a study on research carried out in the context of the investing in children 
recommendation, to investigate if and how co nditional cash transfers (CCTs) can promote 
investment in children .209 Next to this, to help foster the soci al inclusion of children, the European 
Commission established the European Platform for Investing in Children (EPIC) website210, as a 
platform to share the best of policymaking for ch ildren and families and to foster cooperation and 
                                                            
205 http://www.europarl.europa.eu /sides/getDoc.do?pubRef=-
//EP//TEXT+TA+20141127+ITEMS+DOC+ XML+V0//EN&langu age=EN#sdocta7  
206 Ibidem, at point 9. 
207 http://eur-lex.europa.eu/legal-con tent/EN/ALL/?uri=CELEX:32013H0112   
208EU Synthesis:  http://ec.europa.eu/social/main.jsp?catId= 89&langId=en&newsId=2061&furtherNews=yes  
Individual country profiles and reports: http://europa.eu/epic/countries/index_en.htm    
209 http://bookshop.europa.eu /en/study-on-conditional-cash-transfers-and-their-impact-on-children-
pbKE0214922/   
210 http://europa.eu/epic/about/index_en.htm   
 
67 mutual learning in the field. The “Practices that  work” section features evidence-based practices 
(reviewed prior to their inclusion on the website).  
Following, amongst others, the 2013 Recommendation on Investing in Children, the European 
Commission also issued Country-Specific Recommendations211 in 2014 to 26 Member States relating 
to children, covering, amongst others, inclusive education and early school leaving, income support, 
affordable housing, financial disincentives, reconciliation, youth activation, health, Roma, 
efficiency/effectiveness, and ECEC/childcare .212 The European Commission also proposed country-
specific recommendations to enhance access to affordable quality early childhood education and 
care services and long-term care services in 2014, with a view of better reconciling family and 
professional life and supporting parents’ labour market participation.  
Access to quality and inclusive education  is a critically important ar ea for children, reflected in 
Europe 2020, and the EU's engagement with and focu s on education has increased over the years.  A 
2014 study on the effective use of early childhood education and care (ECEC) in preventing early 
school leaving (ESL)213 was published. 
Protecting Children A study to collect data on childre n's involvement in criminal, civ il and administrative judicial 
proceedings was finalised in 2014 and the results will be  published in 2015. The study results on 
children's involvement in criminal judici al proceedings were published in June 2014.
214 The study 
gathers all available data, identifies gaps in data and procedural safeguards, and provides examples 
of good practices in the 28 Member States. 
Further to the 2012 and 2013 European Fora on the rights of the child, a 2014 public consultation on 
integrated child protection systems  resulted in approximately 300 responses from a broad range of 
stakeholders. The EU Agency for Fundamental Rights mapped national child protection systems, 
assessing, amongst others, national legislative fram eworks, national policy frameworks (action plan 
or strategy), decentralized child protection responsi bilities, the presence of a central authority with 
national coordinating role, the possibility of outsou rcing service provision to  commercial institutions 
or companies, financial resources and budget a llocations, the accredit ation procedures for 
professionals, the vetting of foster families and re sidential care personnel, and provisions on the 
legal obligation of professionals to report ca ses of child abuse, the referral and assessment 
procedures, as well as the (independent) monito ring performance of national child protection 
systems and the development of national standards. Both of these exercises informed preparation of 
a communication on integrated child protection systems, expe cted to be adopted in 2015.  
                                                            
211 http://europa.eu/epic/docs/20 14-final-csrs-on-inv-children.pdf   
212 For an overview of all the issued co untry specific recommendations of 20 14 or the European Semester in 
general, please visit http://ec.europa.eu/ europe2020/making-it-ha ppen/country -specific-
recommendations/index_en.htm.   
213Executive summary: http://bookshop.europa.eu/en/study-on-the-effective-use-of-early-childhood-
education-and-care-ecec-in-preventing-early-school-leaving-esl--pbNC0414324/ ; other deliverables: 
http://bookshop.europa.eu/en/search/?webform-
id=WFSimpleSearch&DefaultButton=findSimple&WFSimp leSearch_NameOrID=ECEC&SearchConditions=&Searc
hType=1&SortingAttribute=LatestYear-desc&findSimple.x=0&findSimple.y=0    
214 http://www.childreninjudicialproc eedings.eu/Home/Default.aspx .  
 
68 One of the best-known pieces of research co-f unded by the European Commission, under the EU 
safer/better internet programme , is EU Kids Online215. In 2014 they published a report (based on 
individual and group interviews of children aged  9-16 carried out in 2013 in nine EU MS) on " The 
meaning of online problematic situations for ch ildren: results of qua litative cross-cultural 
investigation in nine European countries ".216   
The Global Alliance against Child Sexual Abuse Online , which was launched in 2012 at the joint 
initiative of the EU and the US, seeks to ensure  that Charter rights such  as human dignity and 
particularly the rights of the child are respected an d protected. At the 2nd Ministerial Conference of 
the Alliance in Washington D.C. on 29-30 Septembe r 2014, 54 ministers from countries all across the 
world endorsed a Declaration on Facilitating Internationa l Cooperation in Online Child Sexual 
Abuse Investigations  involving commitments to facilitate tr ansnational investigation and prosecution 
of these crimes. The European Commission has also  launched infringement proceedings against 11 
Member States for the non-communication of measures transposing Directive 2011/93/EU on 
combating the sexual abuse and sexual exploitation of children and child pornography. 
Under the Connecting Europe Facility, the Commission co-funds hotlines in Member States that work 
in partnership with law enforcement, industry and children's organisation to combat the distribution 
of child abuse images online. The Commission also funds awareness centres and helplines in Member States that provide information and support to  young people, parents and teachers for issues, 
including cyberbullying, supported by a central platform of shared information and services.
217 
As discussed under Article 5, on 18 October 2014, to mark the 8th EU Anti-trafficking Day, the 
Commission presented the Midterm Report on the im plementation of the EU Strategy towards the 
eradication of trafficking in hu man beings 2012-2016, as well as the Second Eurostat Working Paper 
on statistics on trafficking in human beings .218 It, amongst others, deta ils that between 2010 and 
2012, 30 146 victims of trafficking were registered. Of these victims it was detailed that 16% were 
children (under the age of 18), and that more th an 1000 children have been trafficked for the 
purpose of sexual exploitation. It also demonstrated  that 65% of the victims hold EU citizenship. In 
June 2014, the European Commission and the Fundamental Rights Agency jointly published 
"Guardianship for children deprived of parental ca re – A handbook to reinforce guardianship systems 
to cater for the specific needs of child victims of  trafficking". In 2014 the European Commission also 
launched a study on  identifying high-risk groups of trafficking . The study aims to develop the  
knowledge and increase understanding on children as a particularly vulnerable group that is at 
greater risk of being trafficked into the EU, within the EU and within a Member State.  
In June 2014 the Council adopted conclusions on preventing and combating all forms of violence 
against women and girls, including female genital mutilation .219  
                                                            
215 www.eukidsonline.net  
216 http://eprints.lse.ac.uk/56972/  
217 Regulation of the European Parliament and of  the Council on guidelin es for trans-European 
telecommunications networks and repealing Decision No1336/97/EC. 
218 For more information see also Article 5.  
219 See also Articles 3 and 23.  
 
69 Much of the available EU-level research and inform ation relating to children in migration situations 
has been gathered by the European Migration Network  (EMN)220. The EMN, amongst other things, 
published in 2014 compilations of replies on ad mission/residence and guardianship-related 
provisions for unaccompanied foreign and/ or EU children in vulnerable situations221 and on issues 
relating to care orders for foreign children of illegally staying parents222. In addition, they also 
published in 2014 an EU synthesis report on the use of  detention and alternatives to detention in the 
context of immigration policies223, covering 26 EU Member States and Norway (excluding Denmark, 
Italy and Romania), based on national reports224 that addresses immigration detention as applied to 
children.  
The protection of the human rights of migrants is a cross-cutting priority also in the EU's external 
migration policy, the Global Approach to Migration and Mobility  (GAMM).225 Numerous projects are 
carried out under the GAMM focusing on protecting migrants, including children and vulnerable 
groups like asylum seekers, from abuse and human rights violations such as trafficking in human 
beings, and empowering them through effective inte gration policies and promoting access to basic 
services such as healthcare. The European Commission has launched in  2014 a EUR 9.5 million 
globally coordinated civil society action with the In ternational Federation of the Red Cross, focusing 
on the rights of vulnerable migrants  and victims of human trafficking. 
Child Health  In March 2014 the EU adopted the Action Plan on Childhood Obesity 2014 – 2020, amongst others 
promoting further synergies with its work with the World Health Organisation. In June the 2014 
Council adopted conclusions on 'The European Pact for Mental Health and Well-being: results and 
future action' , which invited Member States to Strengthen Mental Health promotion of children and 
young people by supporting positive parenting skills,  holistic school approaches to reduce bullying 
and to increase social and emotional competences as well as supporting families where a parent has 
a mental disorder.  
Case law In a series of case law on Council Regulat ion no 2201/2003 of 27 November 2003 concerning 
jurisdiction and the recognition and enforcemen t of judgments in matrimonial matters and the 
matters of parental responsibility (the Brussels IIa Regulation), the Court, without explicitly referring 
to the Charter or its Article 24, held that jurisdic tion in matters of parental responsibility must be 
determined, above all, in the best interests of the child. The concept of the best interests of the child 
is enshrined in Article 24 of the Charter, and also in  several provisions of the Brussels IIa Regulation 
                                                           
 
220 http://ec.europa.eu/dg s/home-affairs/what-we-
do/networks/european_migration_network/about/index_en.htm   
221 http://ec.europa.eu/dgs/home-affairs/what-we-do/netwo rks/european_migration_net work/reports/docs/ad-hoc-
queries/518_emn_ahq_unaccompanied_fore ign_and_or_eu_minors_in_vulnerable _situations_16january2014_(wider_diss
emination).pdf   
222 http://ec.europa.eu/dgs/home-affairs/what-we-do/netwo rks/european_migration_net work/reports/docs/ad-hoc-
queries/miscellaneous/536_emn_ ahq_care_orders_17032014_en.pdf   
223 http://ec.europa.eu/dgs/home-affairs/what-we-do/net works/european_migration_n etwork/reports/docs/emn-
studies/emn_study_detention_alternatives_to_detention_synthesis_report_en.pdf   
224 http://ec.europa.eu/dgs/home-affairs/what-we-
do/networks/european_migration_n etwork/reports/studies/results/i rregular-migration/index_en.htm   
225 See also Article 18. 
 
70 itself, the Regulation hereby being a nice example of how children's rights were mainstreamed in the 
EU legislative process. 
In C v M226, the CJEU held that Article 2(11) and Arti cle 11 of Council Regulation no 2201/2003 of 27 
November 2003 concerning jurisdiction and the recognition and enforcem ent of judgments in 
matrimonial matters and the matters of parental resp onsibility (the Brussels IIa Regulation), must be 
interpreted as meaning that, in circumstances wh ere the removal of a child has taken place in 
accordance with a court judgment which was prov isionally enforceable and which was thereafter 
overturned by a court judgment fixing the child’s residence at the home of the parent living in the Member State of origin, the failure to return the child to that Member State following the latter 
judgment is wrongful. Article 11 of the Regulation is a pplicable if it is held that the child was still 
habitually resident in that Member State immediat ely before the retention. This means that where a 
parent has lawfully removed a child from a Member State, in conformity with a judgment of a court 
of that State allowing it to do so, and has meanwhile  settled in another Member State with the child, 
but a subsequent judgment on appeal reverses the decision at first instance and orders the return of 
the child, it is for the courts of the second State to determine whether the child has obtained 
habitual residence there by the time of the judgment on appeal. As regards the concept of ‘habitual residence’, the Brussels IIa Regulation does not contai n a definition of that concept. It is up to the 
national judge to establish the child's habitual re sidence. The CJEU has stressed that the national 
judge, when establishing the child's habitual resi dence, must determine the meaning and scope of 
that concept in the light the best interests of the child, a concept as enshrined in in recital 12 in the 
preamble to the Regulation and also Article 24 of the Charter. 
The CJEU further held in L v M
227 on the Brussels IIa Regulation, that Article 12(3) of this regulation, 
must be interpreted as allowing, for the purposes of proceedings in matters of parental 
responsibility, the jurisdiction of a court of a Memb er State which is not that of the child’s habitual 
residence to be established even where no other proceedings are pending before the court chosen. 
As in the C v M  case, the notion of "the best interest of the child" was a central notion in the 
judgment and a key concept on which the Court based its reasoning. It held, more in particular, that 
where a court is seized of proceedings in accordan ce with Article 12(3) of Regulation No 2201/2003, 
the best interests of the child can be assured only by an examination, in each individual case, of 
whether the prorogation of jurisdiction sought is in accordance with those interests. The Court 
therefore concluded that it cannot be considered th at the jurisdiction of the court seized by one 
party of proceedings in matters of parental respon sibility has been ‘accepted expressly or otherwise 
in an unequivocal manner by all the parties to th e proceedings’ where the defendant in those first 
proceedings subsequently brings a second set of pr oceedings before the same court and, on taking 
the first step required of him in the first proceedings, pleads the lack of jurisdiction of that court. 
In E v B228 the CJEU interpreted Article 12(3) as giving pa rents in matters relating to custody or access 
rights a possibility to go to a court in a Member Stat e in which the child is no t habitually resident but 
where the child has a substantial connection with that Member State. The Court again referred to 
the best interest of the child, holding that where a court is seized of proceedings in accordance with 
Article 12(3) of Regulation No 2201/2003, the best inte rests of the child can be safeguarded only by a 
                                                            
226 CJEU Judgment of 9 October 2014 in Case C-376/14 PPU.   
227 CJEU Judgment of 12 November 2014 in Case C-656/13 . 
228 CJEU Judgment of 1 October 2014 in Case C-436/13.  
 
71 review, in each specific case, of the question whet her the prorogation of jurisdiction which is sought 
is consistent with those best interests. It concluded its ruling with the finding that jurisdiction in 
matters of parental responsibility which has been prorogued, under Article 12(3) of Regulation No 
2201/2003 in favour of a court of a Member State be fore which proceedings have been brought by 
mutual agreement by the holders of parental resp onsibility, ceases, following a final judgment in 
those proceedings. 
In Saciri and Others229 the CJEU held that where a Member State has opted to grant the material 
reception conditions in the form of financial a llowances or vouchers, the total amount of the 
financial allowances covering the material receptio n conditions is sufficient to ensure a dignified 
standard of living and adequate for the health of applicants and capable of ensuring their 
subsistence, enabling them in particular to fi nd housing, having regard, if necessary, to the 
preservation of the interests of persons having specif ic needs. The amount of those allowances must 
be sufficient to enable minor children to be housed wi th their parents, so that the family unity of the 
asylum seekers may be maintained.230 
Tarakhel v Switzerland231, a case judged by the ECtHR, concerned a couple and their children who left 
Iran for Turkey and from there took a boat to It aly, where they were immediately subjected to the 
EURODAC on 16 July 2011. The same day the couple a nd the five children were placed in a reception 
facility provided by the municipal authorities of Stignano. They were transferred to the Reception 
Centre for Asylum in Bari. According to the applicants, living conditions in the centre were poor, 
particularly on account of the lack of appropriate sanitation facilities, the lack of privacy and the 
climate of violence among the occupants. The applicants left the CARA in Bari without permission. 
They subsequently travelled to Austria, where on 30 July 2011 they were again registered in the 
EURODAC system. They lodged an application for asylum in Austria which was rejected. On 1 August 
2011 Austria submitted a request to take charge of th e applicants to the Italia n authorities, which on 
17 August 2011 formally accepted the request. On an unspecified date the applicants travelled to Switzerland. The applicants applied for asylum in Switzerland. The first and second applicants were 
interviewed by the Federal Migration Office (“the FMO”) and stated that living conditions in Italy 
were difficult and that it would be impossible for th e first applicant to find work there. Relying on 
Articles 3 and 8 of the Convention, the applicants alleged mainly that if they were returned to Italy 
they would be exposed to inhuman and degrading tr eatment on account of the risk of being left 
without accommodation or being accommodated in  inhuman and degrading conditions. The risk 
stemmed, in their submission, from the absence of  individual guarantees as to how they would be 
taken charge of, in view of the systemic deficiencies in the reception arrangements for asylum 
seekers in Italy. The Court declared, unanimously, the complaints of a violation of Article 3 of the 
Convention admissible and the remainder of the application inadmissible. The Court subsequently 
ruled that there would be a violation of Article 3 of the Convention if the applicants were to be 
returned to Italy without the Swiss authorities h aving first obtained individual guarantees from the 
                                                           
 
229 CJEU Judgment of 27 February 2014 in Ca se C-79/13, see also Articles 1 and 7.   
230 See also above Articles 1 and 7. 
231 ECtHR Judgment of 4 November 2014 (Application no 29217/12) Tarakhel v Switzerland , see also Articles 4, 
18 and 19.  
 
72 Italian authorities that the applicants would be taken charge of in a manner adapted to the age of 
the children and that the family would be kept together.232 
Application by the Member States In the course of 2014 the European Commission ha s examined how Member States have applied the 
Charter when implementing EU legislation at the Unio n's external borders, in particular as regards 
the application of the principle of non-refoulement . Issues such as the application and length of 
detention, detention conditions , the particular situation of children , free legal assistance and 
effective remedies in the context of the asylum pr ocess in some Member States have also been of 
concern to the Commission. 
Member States were due to adopt national measur es to comply with their obligations under the 
Child Sexual Abuse Directive
233 by 18 December 2013. Of the 27 Member States bound by the 
Directive, 18 have notified complete transposition and nine notified partial transposition. There are 
11 infringement procedures open against countries that did not no tify before December 2013. The 
content of the notifica tions are under review.234 
The European Commission launched an infringement procedure against a Member State by sending a 
letter of formal notice in 2014 as regards the situation of unaccompanied minors seeking asylum . In 
this case aspects of the asylum and reception system appeared not to properly implement the 
Reception Conditions Directive235 and the Asylum Procedures Directive236. They also appeared to 
breach Article 24 of the Charter. 
Text Box Example 
Ruling of the Supreme Court Italy 
The case237 concerned the refusal of the Italian Immigrat ion Authority to grant an entry visa to a 
minor who was entrusted to an Italian couple under the Arabic scheme of kafalah . Kafalah  is a 
guardianship system similar to an adoption. The Supreme Court acknowledged the need to provide a 
broad interpretation of "family member" in the nati onal provision, which includes relations like the 
kafalah  provided that certain conditions were fulfilled. The Court reasoned that the principle of the 
best interest of the child, as guaranteed in Article 3 of the UN Convention on the Rights of the Child 
and Article 24 of the Charter, had to be taken in to consideration. This ruling shows how the Charter 
was used to interpret national laws which result ed in providing fundamental rights aspects in the 
reading of certain national provisions. It partic ularly exemplifies how a principle found in EU and 
                                                            
232 See above Articles 4, 18 and 19.  
233 Directive 2011/92/EU of 13 December 2011 on comb ating the sexual abuse and sexual exploitation of 
children and child pornography, and replacing Council Framework Decision 2004/68/JHA, OJ L 335, 17.12.2011, p. 1. 
234 See also Article 3. 
235 Council Directive 2003/9/EC of 27 January 2003 laying  down minimum standards for the reception of asylum 
seekers OJ L 31, 6.2.2003, p. 18 
236  Council Directive 2005/85/EC of 1 December 2005 on  minimum standards on procedures in Member States 
for granting and withdrawing refugee status OJ L 32 6, 13.12.2005, p. 13. See also Articles 6 and 47. 
237 Supreme Court Italy (Cassazione, I sez. Civ.), case 11404, 22.5.2014. 
 
73 International law, such as the best interest of the child, but does not expressly exist in national 
constitutional law, can be given effect by way of application of the Charter. 
 
Article 25 – The rights of the elderly 
Article 25 of the Charter provides that the European Union recognizes and respects the rights of the 
elderly to lead a life of dignity and independence and to participate in social and cultural life. 
Whereas most of the policies directly affecting the realisation of these rights are in the competences 
and responsibilities of the individual member stat es, the European Union is committed to respect 
and promote these rights in relevant EU law, policies and programs. 
Legislation In order to cover equal treatment between persons irre spective of religion or belief, disability, age or 
sexual orientation also outside the labour mark et, the European Commission had proposed in 2008 
the Equal Treatment Directive
238. While supported by the European Parliament, the proposal is 
blocked in the Council because of subsidiarity and cost concerns expressed mainly by a few Member 
States. The newly composed European Commission has announced in 2014 to step up its efforts for 
the adoption of this proposal. 
Policy In 2014 the European Commission and the Social Pr otection Committee issued a joint report on 
‘Adequate social protection for long-term care needs in an ageing society’
239. The report analyses 
Europe’s rapid demographic ageing and suggests innovat ive solutions to ensure a proactive, fair and 
sustainable response to the challenges faced by EU member States. The European Commission also 
organised a seminar on the rights of older people in need of care and assistance together with the Council of Europe and AGE Platform Europe. 
There is an important correlation between age and disability . According to Eurostat figures (EU-SILC 
2012) the percentages of people reporting a disability are per age group as follows: 
• age 55-64:  32 % • age 65-74:  44 %  • age 75-84:  60 %   • age 85+:      70 %  For the rights of older persons it is therefore im portant that the European Union became a Party to 
the United Nations Convention on the Rights of Persons with Disabilities (UNCRPD). In 2014 the EU 
has submitted its first Report to the UN on the implementation of the UNCRPD, as required by Article 
                                                           
 
238 Proposal for a Council Directive on implementing  the principle of equal treatment between persons 
irrespective of religion or belief, disa bility, age or sexual orientation, CO M(2008) 426 final, 2.7.2008, available 
at http://eur-lex.europa.eu/LexUriServ/LexU riServ.do?uri=CELEX:52008PC0426:EN:NOT . See above Article 21. 
239 Available at: http://ec.europa.eu/social/main.js p?catId=738&langId=en&pubId=7724  . 
 
74 3 5 .  A l s o  m o r e  g e n e r a l l y  t h e  E U  i s  a n  i m p o r t a n t  actor in international processes to promote and 
improve the protection of the rights of older peop le, such as in the UN Open-Ended Working Group 
on Ageing, which held its fifth meeting in 2014. Th e group has a mandate to discuss elements of the 
possible convention on the rights of older people. It is a forum for exchange of information between the world's regions on the initiati ves supporting the rights of the elde rly. The European Commission's 
presentation illustrated the above mentioned report on adequate protection against the risk of long-
term care and at a side-event show cased its upcoming project on Human Rights in long-term care.  
In the framework of the Council of Europe the Committee of Ministers representing its 47 Member 
States adopted unanimously on 14 Fe bruary 2014 a Recommendation on the Promotion of Human 
Rights of Older Persons
240. This Recommendation essentially codifies in a single text relevant 
standards and case law under the European Convention of Human Rights and the European Social 
Charter, and consolidates their recognition as co mmon European standards. A first implementation 
report is expected in 2019. 
In 2014 the European Commission reported241 on the implementation of Directive 2000/78/EC on 
equal treatment in employment and occupation ( ‘Employment Equality Directive’ ). This report has a 
special focus on age discrimination and contains in  its Annex III an overview of provisions on age 
discrimination in employment and occupation in the Member States. 
  
Article 26 – Integration of persons with disabilities 
The Charter provides that the Union recognises and re spects the right of persons with disabilities to 
benefit from measures designed to ensure their in dependence, social and occupational integration 
and participation in the life of the community. The Charter in Article 53 on the level of protection 
relates it inter alia "to international law and inte rnational agreements to wh ich the Union or all the 
Member States are party". 
International agreements 
The level of protection offered by the Charter has to be interpreted in line with the UN Convention 
on the Rights of Persons with Disabilities  ('the UN Convention'), to which the EU is a Party since 
2011.242 The UN Convention is the first international legally binding instrument setting minimum 
standards for a range of civil, political, social, econ omic and cultural rights for people with disabilities 
around the world. All 28 Member States have si gned the UN Convention and 25 of these have 
ratified it, while the remaining three (Finland, Ireland and the Netherlands) are progressing towards 
ratification. On 5 June 2014, the European Commission submitted its first report to the UN on how 
                                                            
240 Recommendation CM/Rec(2014)2 of the Committee of Ministers to Member States on the promotion of 
human rights of older persons, available at: https://wcd.coe.int/ViewDoc.jsp?id=2162283&  . 
241 Report from the Commission to the European Parliament and the Council, Joint Repo rt on the application of 
Council Directive 2000/43/EC of 29 June 2000 implemen ting the principle of equal treatment between persons 
irrespective of racial or ethnic origin (‘Racial Equalit y Directive’) and of Council Di rective 2000/78/EC of 27 
November 2000 establishing a general framework for equal treatment in empl oyment and occupation 
(‘Employment Equality Dire ctive’), available at: 
http://ec.europa.eu/ju stice/discrimination/files/com_2014_2_en.pdf  . 
242 Council Decisio n 2010/48/EC, http://eur-lex.europa.eu/legal-con tent/EN/TXT/?uri=C ELEX:32010D0048   
 
75 the EU is giving effect to the UN Convention as required by article 35 of the UN Convention.243 This 
first report shows that the ratification of th e UN Convention has had tangible impacts in EU 
legislation and policy-making.  
In the area of justice, the 2013 Eu ropean Commission Recommendation on procedural safeguards 
for vulnerable people suspected or accused in criminal proceedings244 makes explicit reference to 
the UN Convention to ensure that the needs of pe rsons with disabilities are properly identified and 
addressed during the proceedings, for example by providing information about the proceedings in an 
accessible format.  
To promote the implementation of the UN Conv ention in the EU and the Member States, the 
European Commission organises the Work Forum on the implementation of the UN Convention . 
The 2014 meeting focused on the right to equal recogni tion before the law, access to justice and the 
monitoring frameworks of the Conven tion at EU and national level. 
In April 2014, the EU signed the Marrakesh Treaty,  a multilateral agreement administered by the 
World Intellectual Property Organisation (WIPO)  which aims to facilitate access to copyright 
protected published works for persons who are blind, visually impaired, or otherwise print disabled. 
In October 2014 the European Commission proposed its ratification on behalf of the European Union.  
Legislation With a view to improve accessibility, the Europe an Commission made further progress towards the 
preparation of a European Accessibility Act , an internal market initiative establishing common 
accessibility requirements across the EU for a number  of products and services to create business 
opportunities - by removing national regulatory barri ers. It would use the internal market potential 
to increase the availability of better accessible pr oducts and services and at a lower price for 
consumers, notably consumers with disabilities and older consumers.  
Policy The overall framework for the implementation by th e EU of its obligations under the UN Convention 
is the European Disability Strategy 2010-2020 . Its aim is to create a barri er-free Europe that allows 
for the full and equal participation of persons with disabilities. 
Each year, the European Commission raises aw areness to the disability challenges, through a 
conference celebrating the Day of Persons with Disabilities  that it organises with the European 
Disability Forum.
245 The 2014 conference focused on em ployment, accessibility and future 
challenges.246  
The 2014-2020 regulatory framework fo r the European Structural and Investment Funds (ESIF)  
contains new, reinforced provisions  and ex-ante conditionality criteria  to make sure that investments 
are effectively used to promote equality, non-disc rimination, social inclusion and accessibility for 
                                                            
243 http://ec.europa.eu/justice/discrimination/files/swd_2014_182_en.pdf   
244 Commission Recommendation of 27 November 2013 on  procedural safeguards for vulnerable persons 
suspected or accuse d in criminal proceedings, OJ C 378, 24.12.2013, p. 8. 
245 www.edf-feph.org  
246 http://ec.europa.eu/justice/newsroom/dis crimination/events/eventedpd2014_en.htm   
 
76 persons with disabilities, including the right to  live independently and being included in the 
community, through both targeted actions and effective mainstreaming of disability as a cross-
cutting issue.247  
In the new Common Provisions Regulation for the ESIFs248, one of the "investment priorities" is to 
support the transition from institutional to communi ty-based services. This objective has been also 
promoted through seminars on the use of struct ural funds to support the transition from 
institutional to community-based services249. In addition, Article 8 of the European Social Fund 
Regulation250 states that "(…) actions shall aim to combat all forms of discrimination as well as to 
improve accessibility for persons with disabilities,  with a view to improving integration into 
employment, education and training, thereby enhancing social inclusion, reducing inequalities in 
terms of educational attainment and health status, and facilitating the transition from institutional to 
community-based care, in particular for those who face multiple discrimination." Lastly, the new 
Common Provisions Regulation also requires that na tional authorities that are managing the EU 
funds have sufficient administrative capacity for the implementation and application of the UN 
Convention on the Rights of Persons with Disabilities in the field of ESIFs.   
The European Commission organised, in partners hip with the European Disability forum, the 2015 
Access City Award  which recognises accessibility initiatives improving equal access to city life for 
people with disabilities. The Award illustrates the wi de range of initiatives and policies that can make 
a society more inclusive – from accessible housin g to children’s play areas and public transport 
information.251  
As announced in the Citizenship Report 2013, the Eu ropean Commission started to work with a group 
of Member States and civil society organisations to develop a mutually-recognised EU-model 
disability card  that would facilitate the freedom of moveme nt of persons with disabilities within the 
EU allowing  persons with disabilities who travel to another EU country to be treated in the same way 
as nationals, when it comes to acce ss to culture, tourism and leisure.  
Under the ICT-PSP CIP Programme the Commission has co-funded the SIMON project which is testing 
the feasibility of an intelligent eCard fo r disability parking rights across borders. 
Better mobility for persons with disabilities is also supported by the Erasmus+ Programme  (2014-
2020), which grants additional funds to students with  special needs for their mobility periods abroad.  
                                                            
247 http://eur-lex.europa.eu/legal-content/EN/TXT/?uri=celex:32013R1303   
248 Regulation (EU) No 1303/2013 of the European Parliament and of the Council of 17 December 2013 laying 
down common provisions on the European Regional Development Fund, the Euro pean Social Fund, the 
Cohesion Fund, the European Agricultural Fund for Rural Development and the European Maritime and Fisheries Fund and laying down general provisions on th e European Regional Develo pment Fund, th e European 
Social Fund, the Cohesion Fund and the European Maritime and Fisheries Fund and repealing Council Regulation (EC) No 1083/2006, OJ L 347, 20.12.2013, p. 320. 
249 Organised in the framework of the Soci al Investment Package, available at: 
http://ec.europa.eu/social/main.jsp?catId=1044  . 
250 Regulation (EU) No 1304/2013 of the European Parliament and of the Council of 17 December 2013 on the 
European Social Fund and repealing Council Regulation (EC) No 1081/2006, OJ L 347, 20.12.2013, p. 470. 
251 http://ec.europa.eu/justice/discrimi nation/disabilities/award/index_en.htm   
 
77 Following the European Parliament's initiative, the European Commission launched a pilot project to 
develop a web-based service platform  to facilitate communication of deaf and hard of hearing 
people with the EU institutions.  
FRA, together with the Academic Network of Europe an Disability experts, supported by the European 
Commission, developed indicators on the right to political participation  of people with disabilities. 
The findings were released in April and May 2014 on the occasion of the European elections.252 They 
show that, given an accessible and enabling environmen t, people with disabilities actively participate 
in politics. However, significant challenges remain to participation on an equal basis with others, 
including: legal obstacles, restrictions linked to  the lack of recognition of, and support for the 
exercise of legal capacity, inaccessible environm ents, processes and information, and a lack of 
awareness about the right to political participation.  
The Union's external action financial instruments  also cater for the rights of persons with 
disabilities. The new regulations establishing the financing instruments for 2014-2020 in the areas of 
development cooperation253, democracy and human rights worldwide254, and Pre-accession 
Assistance (IPA II)255 include explicit provisions for supporti ng the social inclusion and the rights of 
persons with disabilities in accordance with th e UN Convention. Moreover, the regulation laying 
down common rules and procedures for the implem entation of Union’s instruments for financing 
external action256, which applies to all instruments, indi cates that accessibility for persons with 
disabilities must be duly taken into account in the design and implementation of programmes and 
projects.  
Case law In 2014, the CJEU has further developed its jurisprudence
257 on the definition of disability. 
In the Glatzel258 case, the CJEU issued a preliminary ruling on the request of the Bayerischer 
Verwaltungsgerichtshof  (Germany) about the compat ibility with the Charter of Annex III to Directive 
2006/126/EC (amended by Directive 2009/113/EC)259 laying down minimum standards relating to the 
physical fitness to drive a motor vehicle as regard s visual acuity. The CJEU analysed whether the 
refusal of a driving license for certain vehicles on the ground of not reaching a minimum level of 
visual acuity on the basis of Directive 2006/126 was compatible with Articles 20 (equality before the 
law), 21(1) (non-discrimination against persons with  disabilities) and 26 (the integration of persons 
                                                            
252 FRA, "The right to political partic ipation for persons with disabilities: human rights indicators", May 2014, 
available at http://fra.europa.eu/e n/publication/2014/right- political-participation-persons-disabilities-human-
rights-indicators. 
253 Regulation (EU) No 233/2014 of the European Parliame nt and of the Council of 11 March 2014 establishing a 
financing instrument for development cooperation for the period 2014-2020. 
254 Regulation (EU) No 235/2014 of the European Parliame nt and of the Council of 11 March 2014 establishing a 
financing instrument for democracy and human rights worldwide. 
255 Regulation (EU) No 231/2014 of the European Parliame nt and of the Council of 11 March 2014 establishing 
an Instrument for Pre-accession Assistance (IPA II). 
256 Regulation (EU) No 236/2014 of the European Parliame nt and of the Council of 11 March 2014 laying down 
common rules and procedures for the implementation of the Union's instruments for financing external action. 
257 See last year's report, which referred to CJEU judgme nt of 11 April 2013 in Joined Cases C-335/11 and C-
337/11 HK Danmark  ("Ring and Skoube Werge"). 
258 CJEU judgment of 22 May 2014 in Case C-356/12 Glatzel , see also Articles 21 and 51. 
259 Directive 2006/126/EC of 20 December 2006 on  driving licences (recast), OJ L 403, p. 18. 
 
78 with disabilities) of the Charter.  The CJEU emphasised that the notion of "disability" must be read in 
light of the UN Convention on the Rights of Person s with Disabilities. Although the CJEU eventually 
ruled that it did not have sufficient information to conclude that the applicant of the case had such 
bad eyesight that it constitutes a ‘disability’ within  the meaning of the Charter, the court stated that 
the different treatment of a person with impaired eyesight can be justified by a concern such as road 
safety, which fulfils an objective of public interest, is necessary and is not a disproportionate burden. 
The Kaltoft260 case has already been discussed above under Article 21. It concerns a request for a 
preliminary ruling from the Danish District Court of Kolding ( retten i Kolding ) submitted to the CJEU 
on whether EU law itself prohibits discrimination on grounds of obesity . The CJEU was asked 
whether obesity can constitute a disability and ther efore falls within the scope of the Employment 
Equality Directive261.  
Disability is not defined by the Employment Equality Directive. However, the Directive must, as far as 
possible, be interpreted consistently with the UN Convention on the Rights of Persons with 
Disabilities (UNCRPD)262. The CJEU followed the definition of di sability offered in previous case law, 
which is “a limitation which results in particular from physical, mental or psychological impairments 
which in interaction with various barriers may hi nder the full and effective participation of the 
person concerned in professional life on an equal basis with other workers.” The CJEU relied on the 
UNCRDP and acknowledged disab ility as an evolving concept.263  
The CJEU specified that in the area of employme nt and occupation, EU law does not lay down a 
general principle of non-discrimination on grounds  of obesity as such. However, the Court found 
that, if under given circumstances the obesity of the worker entails a limitation which results in 
particular from physical, mental or psychologica l impairments which in interaction with various 
barriers may hinder the full and effective participation of that person in professional life on an equal 
basis with other workers, and the limitation is a lo ng-term one, such obesity can be covered by the 
concept of ‘disability’ within the meaning of the directive. It also stressed that the concept of 
‘disability’ within the meaning of Directive 2000/78 does not depend on the extent to which the 
person may or may not have contributed to the onset of his disability.  
Application by Member States The current EU regulatory framework and in particular Art 26 (4) of the Universal Service Directive 
(Directive 2002/20/EC as amended by Directive 2009/ 139/EC) includes measures in favour of persons 
with disabilities which are an expression of Articl e 26 of the EU Charter. The provision provides for 
the obligations on Member States to ensure that disabled end-users enjoy equivalent access to the 
Single European emergency number 112 . In the course of monitoring of the implementation of this 
particular provision, Member States were invite d to provide information on their measures, which 
ensure that disabled end-users enjoy tailored so lutions for equal access to  112 taking into account 
aspects such as speed, mobility, reliability, covera ge or language handling. Generally, access to 112 
by other means than voice communication is provided in a number of countries for ensuring 
                                                           
 
260 CJEU judgment of 18 December 2014 in Case C-354/13 Kaltoft ; see also Article 21. 
261 Council Directive 2000/78/EC of 27 November 2000 , establishing a general fram ework for equal treatment 
in employment and occupation, OJ 2000 L 303, p. 16. 
262 See below under Article 26 on integr ation of persons with disabilities. 
263 This case is a nice illustration of how the CJEU relies on UN instruments for the interpretation of EU law. 
 
79 accessibility of disabled end-users to emergency services. According to the COCOM report on the 
Implementation of the European emergency numbe r 112, access to 112 for disabled end-users did 
not improve significantly. 22 Member States reported  the implementation of an alternative access to 
112 in 2014 up from 21 in 2013. The take-up of SMS re mained the same (18 member States) while 3 
Member States reported the ongoing deployment of such alternative means to contact emergency 
services.  
Text Box Example 
Ruling of the Federal Social Court Germany 
This case264 concerned an employee of a German national authority, who had the status of a disabled 
person. She applied for being legally equated with a severely disabled person to the Federal 
Employment Agency, which rejected her application. In its ruling, the Court interpreted the national 
provision of the Code of Social Law, which aims at disabled person's full participation in working life, 
against the background of, amongst other provisions of national and international law, Articles 21 
and 26 of the Charter. Thus, the Court stated that equality rights have to be guaranteed not only to 
unemployed persons with disabilities but also to peop le with disabilities who have a job and want to 
make a career change. As a result, the Federal Empl oyment Agency was obliged to legally equate the 
plaintiff to a severely disabled person. In addition, the Court called on the legislator and employer to 
accordingly modify the requirements for access to the civil service. 
 
  
                                                           
 
264 Federal Social Court Germany (Bundessozialgericht) , case B 11 AL 5/14 R, 6.8.2014, available at: 
http://juris.bundessozialgericht.de/cgi-
bin/rechtsprechung/document.py?Gericht=bs g&Art=ps&Datum=2014&nr=13566&linked=urt . . 
 
80 Dignity
4%
Freedoms
15%Solidarity
4%Citizens' rights
9%Justice
54%Other
2%
Equality before the law 0%Non-discrimination 2%
Nat and linguist min 1% 
Racism and xen 0% 
Roma 1 %
Other discrimination 0%
Cultural, religious and 
linguistic diversity 0% Equality betw w and m 0% 
The rights of the child 1%:
The rights of the elderly 1%
Racism and xenophobia 0% Integration of persons with 
disabilities  4%Equality
12%Letters (Equality)
 
Dignity
7%Freedoms
28%Solidarity
4%Citizens' rights
0%Justice
5%Other
4%
Non-discrimination 1%Homophobia, sexual 
orientation 3%
National and linguistic 
minorities 3%
Racism and xenophobia
8%
Roma 4%
Other discrimination 3%Cultural, religious and linguistic 
diversity 1%
Equality between women and 
men 6%
The rights of the child 5%
The rights of the elderly 2%
Integration of persons with 
disabilities 
14%Equality
51%Questions (Equality)
 
 
81 
 
Source: European Commission 
 
82 Solidarity 
 
In 2014, the Seasonal workers' Directive  and the Directive on Intra-Corporate Transferees were 
adopted, which provide for equal treatment as rega rds access to social security, subject to a number 
of restrictions.  
The EU also adopted the Tobacco Products Directive . It is expected that the new rules introduced by 
the Directive will help to reduce the number  of people who start smoking in the EU. 
The Directive on Payment Accounts , which was also adopted in 2014, will strengthen consumers’ 
rights by giving all EU citizens access to a basic pa yment account and by ensuring that consumers are 
provided with transparent and comparable information before making choices with regard to 
payment accounts.  
An important preliminary ruling concerning consumer protection was given by the CJEU in the Case 
Sánchez Morcillo265. This Case concerned the procedural rights  of consumers in relation to mortgage 
enforcement procedures and the CJEU stressed the aspect of the equality of arms. 
In the case AMS v CGT  266, the CJEU held that Article 27 of the EU Charter , alone or in conjunction 
with Directive 2002/14 (information and consultation of workers), cannot be invoked in a dispute 
between individuals ("horizontal application")  in order not to apply a nati onal provision which is not 
in conformity with the Directive. 
                                                            
265 CJEU judgment of of 17 July 2014 in Case C-169/14 Sánchez Morcillo and Abril García , see Article 47. 
266 CJEU Judgment (Grand Chamber) of 15 January 2014 in Case C-176/12, Association de médiation sociale 
(AMS) v Union locale des syndicats CGT , see also Article 51. 
 
83 Titl e IV 
Solidarity 
 
Article 27 – Workers' right to info rmation and consul tation within the 
undertaking 
The Charter in Article 27 provides that workers or their representatives must, at the appropriate 
levels, be guaranteed information and consultati on, in good time, in the cases and under the 
conditions provided for by EU law and national laws and practices. 
Legislation 
Discussions before the EU inst itutions have started on the proposal to include seafaring workers in 
the personal scope of application of a number of EU labour law Directives (the Works Council 
Directive267, the Insolvency Directive268, the Collective Redundancies Directive269, the Transfer of 
Undertakings Directive270 and the Information and Consultation Directive271). This proposal was 
adopted by the European Co mmission on 18 November 2013272. The Economic and Social 
Committee273 and the Committee of the Regions274 adopted opinions thereon, on 25 March 2014 and 
3 April 2014 respectively, broadly endorsing the European Commission's proposal. The European 
Parliament discussed a draft report on this pr oposal at the beginning of 2014. The report was 
rejected by the Parliament's EMPL Committee as it  proposed to weaken the European Commission's 
proposal. The Parliament resumed its work in autumn 2014. The Council has started discussing the 
proposal under the Italian Presidency.  
Case law 
                                                            
267 Directive 2009/38/EC on the establishment of a European Works Council or a procedure in Community-scale 
undertakings and Community-scale groups of undertak ings for the purposes of informing and consulting 
employees , OJ L 122, 16.5.2009, p. 28. 
268 Directive 2008/94/EC on the protection  of employees in the event of the insolvency of their employer, OJ L 
283, 28.10.2008, p. 36. 
269 Directive 98/59/EC on the approxim ation of the laws of the Member States relating to collective 
redundancies, OJ L 225, 12.8.1998, p. 16. 
270 Directive 2001/23/EC on the approximatio n of the laws of the Member States relating to the safeguarding of 
employees' rights in the event of transfers of undertakin gs, businesses or parts of undertakings or businesses, 
OJ L 82, 22.3.2001, p. 16. 
271 Directive 2002/14/EC on th e establishing a general framework for informing and consulting employees in 
the European Community, OJ L 80, 23.3.2002, p. 29. 
272 Proposal for a Directive of the European Parliament and of the Council on seafarers amending Directives 
2008/94/EC, 2009/38/EC, 2002/14/EC, 98/59/EC and 2001/23/EC,  COM(2013) 798 final. 
273 Opinion of the European Economic and Social Committee on the ‘Proposal for a Directive of the European 
Parliament and of the Council on seafarers amendi ng Directives 2008/94/EC, 2009/38/EC, 2002/14/EC, 
98/59/EC and 2001/23/EC’ COM(2013) 798 final, OJ C 226, 16.7.2014, p. 35. 
274 Opinion of the Committee of the Regions — Amendment of  the directives on exclusions for seafarers, OJ C 
174, 7.6.2014, p. 50. 
 
84 In the case AMS v CGT  275, the CJEU held that Article 27 of the EU Charter , alone or in conjunction 
with Directive 2002/14276 (the Information and Consultation Directive), cannot be invoked in a 
dispute between individuals ("horizontal application")  in order not to apply a national provision 
which is not in conformity with the Directive. While Article 27 was applicable in the case at issue, the 
Court observed that Article 27 must be given more specific expression by provisions of EU law or 
national law to be fully effective. In the pr esent case, the prohibition on excluding from the 
calculation of the staff numbers of an undertaking a particular category of employees could not be 
inferred, as a directly applicable rule of law, from  the wording of Article 27 of the Charter. In other 
words, Article 27 of the Charter does not by itself suffice to confer on individuals a right which they 
may invoke as such. The Court concluded from this that it is necessary to reach the same assessment 
where that article is considered in conjunctio n with the provisions of the Information and 
Consultation Directive277.  
 
Article 28 – Right of collective bargaining and action 
Article 28 of the Charter provides that workers a nd 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 level278. Member States 
remain, of course, bound by the provisions of the Charter, including the right to strike, in instances 
where they implement EU law.  
Legislation On 15 May 2014, the EU adopted the  Posting of Workers Enforcement Directive
279. The Enforcement 
Directive provides for a comprehensive package of sp ecific rules and obligations in order to enhance 
the implementation, applicat ion and enforcement of the  Posting of Workers Directive280. These 
measures are expected to consider ably improve the current protection of posted workers' rights as 
well as to prevent circumvention and abuse. Th e Enforcement Directive contains provisions 
                                                            
275 CJEU Judgment (Grand Chamber) of 15 January 2014 in Case C-176/12, Association de médiation sociale 
(AMS) v Union locale des syndicats CGT , see also Article 51. 
276 Directive 2002/14/EC on the establishing a general framework for informing and consulting employees in 
the European Community, OJ L 80, 23.3.2002, p. 29. 
277 The Court confirmed its previous case-law and declared  that the provisions of Directive 2002/14 prohibit the 
exclusion of certain categories of employees (apprent ices and holders of profe ssional insertion/training 
contracts) from the calculation of the staff numbers of an undertaking. The Court declared also that the trade 
unions cannot rely on the provisions of  Directive 2002/14 (in particular Arti cle 3.1) as such against the private 
employer, AMS, since these provisions do not have horizontal direct effect, see also Article 51. 
278 Article 153(5) of the Treaty on the Functioning of the EU (TFEU) stipulates that it does not apply to the right 
to strike. 
279 Directive 2014/67/EU of the European Parliament and of the Council of 15 May 2014 on the enforcement of 
Directive 96/71/EC concerning the posting of workers in the framework of the provision of services and 
amending Regulation (EU) No 1024/2012 on admin istrative cooperation through the Internal Market 
Information System ( ‘the IMI Regulation’ ), OJ  L 159, 28.5.2014, p. 11, see also Article 31. 
280 Directive 96/71/EC of the European Parliament and of the Council of 16 December 1996 concerning the 
posting of workers in the framework of the provisio n of services, OJ L 18 , 21.1.1997, p. 1.  
 
85 improving the effectiveness of cont rols and sanctions and the possibilit ies given to posted workers to 
defend their rights better.  
 
Article 29 – Right of access to placement services 
According to Article 29 of the Charter everyone has the right of access to a free placement service.  
Policy  Member States endorsed the initiative deve loped by the European Commission in 2013 on a quality 
framework for traineeships
281 through Council Recommendations  in March 2014282. The initiative 
has the objective to make it easier for young people  to find quality work experience in another EU 
country. The framework sets out the main features of  high quality traineeships in terms of protecting 
trainees’ rights and helping them make the most of their working experience.  
An initiative283 was prepared to modernise EURES , the European job search network supporting 
labour mobility within the EU. The initiative wa s adopted in January 2014 and aims to further 
increase the likelihood of job matches across border s and help employers to fill job vacancies faster 
and better. A pilot project with several Memb er States was launched to improve the EURES 
information exchange about traineeships and apprenticeships with a view to further facilitating the 
transition to work in other EU countries for young people.   
 
Article 30 – Protection in the event of unjustified dismissal 
According to Article 30 every worker has the right to protection against unjustified dismissal, in 
accordance with Union law and national laws and practices. 
 
Article 31 – Fair and just working conditions 
Article 31 guarantees that every worker has the right to working conditions which respect their 
health, safety and dignity. Every worker has the righ t 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 pa rticular, health and safety at work284.  
                                                            
281 Proposal for a Council Recommendation on a Qualit y Framework for Traineeships, COM(2013) 857 final. 
Available at: http://eur-lex.europa.eu/L exUriServ/LexUriServ.do?uri=SWD:2013:0495:FIN:EN:PDF  . 
282 Council recommendation on a Quality Framework for Traineeships, Brussels, 10 March 2014. Available at: 
http://www.consilium.europa.e u/uedocs/cms_data/docs/pre ssdata/en/lsa/141424.pdf . 
283 Proposal for a Regulation of the European Parlia ment and of the Council on a European network of 
Employment Services, workers' access to mobility servic es and the further integrat ion of labour markets, 
COM(2014) 6 final, available at: http://eur-lex.europa.eu/legal-con tent/EN/TXT/?uri=CELEX:52014PC0006  . 
284 The central piece is the Council Dire ctive 89/391/EEC of 12 June 1989 on  the introduction of measures to 
encourage improvements in the safety and health of work ers at work, OJ L 183, 29.6.1989, p. 1, which lays 
down general principles on the protection of workers' health and safety. Several sp ecific directives cover a 
number of specific risks, e.g. exposure of workers to bi ological and chemical agents at work, noise, work at the 
 
86 Legislation 
The adoption of the Posting of Workers Enforcement Directive285 - mentioned under the part 
concerning Article 28 - aims at ensuring a better prot ection of the rights of posted workers, including 
in the areas covered under Article 31 of the Charter. 
The European Commission adopted on 9 April 2014 a Proposal for a Decision of the European 
Parliament and of the Council on establishing a Eu ropean Platform to enhance cooperation in the 
prevention and deterrence of undeclared work286. Undeclared work has negative impacts on 
employment, productivity and working conditio ns, skills development and life-long learning. 
Preventing and deterring undeclared work contributes to better enforcement of EU and national law, 
including as regards fundamental rights in the area s of employment, labour law, health and safety 
and coordination of national social security syst ems. At the moment, there is no formal mechanism 
in place for all relevant authorities from the Member States to address issues related to cross-border 
aspects of undeclared work. The proposal foresees  that the platform would bring together Member 
States' different enforcement bodies  such as the labour inspectorate s and the social security, tax and 
migration authorities to ensure a better enforcement of EU and national law.  
Work continued during 2014 on the review of the Working Time Directive287. The aim of this review 
is to ensure that EU working time rules can m eet the needs of employers and workers in the 21st 
century, while securing effective protection of wo rkers' health and safety. Following the end of the 
negotiations between social partners at EU le vel without any agreement in December 2012, the 
European Commission has been engaged since 2013 in a comprehensive Impact Assessment on the 
future of the Directive, the resu lts of which are expected in 2015.  
On 7 July 2014, the European Commission adopted a proposal for a Directive on working time for 
mobile workers in commercial inland waterway transport288. This proposal implements the EU 
social partner agreement on this issue. It contai ns specific working time rules for mobile workers 
working on crafts in the EU Member States in commercial inland waterway transport. This will 
provide flexibility for the operators while at the same  time maintaining the protection of health and 
safety for workers. 
                                                                                                                                                                                          
construction sites, manual handling of loads, etc. Anot her important piece of legislation covers working time 
and regulates issues such as minimum daily and weekly rest periods, br eaks, maximum weekly working time, 
night work and annual leave. 
285 Directive 2014/67/EU of the European Parliament and of the Council of 15 May 2014 on the enforcement of 
Directive 96/71/EC concerning the posting of workers in the framework of the provision of services and 
amending Regulation (EU) No 1024/2012 on admin istrative cooperation through the Internal Market 
Information System ( ‘the IMI Regulation’ ), OJ L 159, 28.5.2014, p. 11.  
286 Proposal for a decision of the European Parliament an d of the Council on estab lishing a European Platform 
to enhance cooperation in the prevention and deterrence of undeclared work, COM(2014) 221 final, available 
at: http://eur-lex.europa.eu/legal-con tent/EN/TXT/?uri=CELEX:52014PC0221  . 
287 Directive 2003/88/EC of the European Parliament a nd of the Council of 4 November 2003 concerning certain 
aspects of the organisation of working time, OJ L 299, 18.11.2003, p. 9.  
288 Proposal for a Council Directive implementing the European Agreement concluded by the European Barge 
Union (EBU), the European Skippers Organisation (ESO) and the European Transport Workers’ Federation (ETF) 
concerning certain aspects of the organisation of work ing time in inland waterway  transport, COM/2014/0452 
final, 7.7.2014. Available at : http://eur-lex.europa.eu/legal-con tent/EN/TXT/?uri=CELEX:52014PC0452  . 
 
87 The EU adopted the Council Decision authorising Member States to ratify the International Labour 
Organisation 2011 Convention  concerning decent work  for domestic workers (Convention No. 
189)289. Member States ratifying the ILO Convention ag ree to ensure fair and decent conditions for 
domestic workers by protecting their fundamental  labour related rights, preventing abuse and 
violence and establishing safeguards for young domestic workers. The Convention contains 
provisions that ensure equal payment of domestic  workers, decent living conditions and access to 
complaint mechanisms. 
Policy  On 6 June 2014, the European Commission adopted a new Strategic Framework on Health and 
Safety at Work 2014 – 2020
290. This Framework identifies three major health and safety at work 
challenges. First, the need to improve implementa tion of existing health and safety rules, in 
particular by enhancing the capacity of micro a nd small enterprises to put in place effective and 
efficient risk prevention strategies. Second, work-related diseases must be prevented by tackling new 
and emerging risks without neglecting existing risks.  Third, the ageing of the EU's workforce must be 
taken into account. The Framework proposes to im prove policy coordination and mutual learning, 
enforcement by Member States, in particular national  l a b o u r  i n s p e c t o r a t e s .  I t  i s  a l s o  p r o p o s e d  t o  
simplify existing legislation and impr ove statistical data collection. 
The implementation of the Youth Guarantee Recommendation , adopted in 2013291, has continued in 
2014 with the development of national Youth Guarantee Implementation Plans . The Youth 
Guarantee aims to tackle youth unemployment by ensuring that all young people under 25 get a 
good-quality, concrete offer for a job, apprenticesh ip, traineeship, or continued education within 4 
months of them leaving formal education or becoming unemployed. The European Commission is 
helping Member States to develop the national Implementation Plans and to set up the Youth 
Guarantee scheme. The European Commission also fa cilitates the sharing of best practices between 
governments. 
Case law The case Lock
292 concerned the right to minimum paid annual leave laid down in Article 31(2) of the 
Charter and more concretely in Article 7 of the Working Time Directive. The CJEU held that workers on performance-related pay are entitled to their normal, average remuneration in relation to their 
minimum paid annual leave. The ruling addresses the increasingly common phenomenon of 
performance-related pay schemes under which workers'  salaries sometimes consist entirely or for a 
large part of commissions on sales or other target s. The Court has ruled that when there is an 
intrinsic link between a component of a workers' remuneration (such as a commission) and the 
performance of his work, such a component must be  taken into account in the calculation of the 
total remuneration to which a worker is entitled in  respect of his annual leave. While it falls to the 
                                                           
 
289 Council Decision of 28 January 2014  authorising Member States to ratify , in the interests of the European 
Union, the Convention concerning decent work for do mestic workers, 2011, of the International Labour 
Organisation (Convention No 189), OJ L 32, 1.2.2014, p. 32.  
290 Communication of the Commission on a new Strategic Framework on Health and Safety at Work 2014 – 
2020, COM(2014) 332, available at: http://ec.europa.eu/social/main.jsp?langId =en&catId=89&newsId=2053&furtherNews=yes
 . 
291 Council Recommendation of 22 April 2013 on establishing a Youth Guarante e, OJ C 120, 26.4.2013, p. 1. . 
292 CJEU judgment of 22 May 2014 in Case C-539/12, Z.J.R. Lock v British Gas Trading Limited,  - Lock.  
 
88 national court to determine the way in which the work er's salary in relation to the period of annual 
leave has to be calculated, the Court has made it clea r that it must be determined in such a way as to 
correspond to the normal remuneration received by the worker, including an average of his 
commissions. 
 
Article 32 – Prohibition of child la bour and protection  of young people 
at work 
Article 32 states that the employment of children is prohibited. The minimum age of admission to 
employment may not be lower than the minimum school-leaving age, without prejudice to such rules 
as may be more favourable to young peop le and except for limited derogations. 
Young people admitted to work must have worki ng conditions appropriate to their age and be 
protected against economic exploitation and any work  likely to harm their safety, health or physical, 
mental, moral or social development or  to interfere with their education. 
 
Article 33 – Family an d professional life 
Article 33 stipulates that the family shall enjoy le gal, economic and social protection. To reconcile 
family and professional life, everyone shall have th e right to protection from dismissal for a reason 
connected with maternity and the right to paid ma ternity leave and to parental leave following the 
birth or adoption of a child. 
Legislation In order to further promote the rights and principles laid down in Article 33, the European 
Commission proposed an amendment of the Maternity Leave Directive
293 in 2008. This proposal 
aims to grant four weeks of paid maternity leave in  addition to the current 14 weeks. Since the co-
legislators could not reach an agreement on the proposal, the European Commission announced in 
December 2014294 that it would withdraw the proposal and replace it by a new initiative if the co-
legislators do not find an agreement within the first half of 2015. 
 
                                                            
293 Council Directive 92/85/EEC of 19 October 1992 on the introduction of measures to encourage 
improvements in the safety and health at work of preg nant workers and workers who have recently given birth 
or are breastfeeding (tenth individual Directive within the meaning of Article 16 (1) of Directive 89/391/EEC), 
OJ L 348, 28.11.1992, p. 1. 
294 Annex to the Communication from the Commission to the Eu ropean Parliament, the Council, the European 
Economic and Social Committee an d the Committee of the Regions – Commission Work Programme 2015 – A 
New Start, COM(2014) 910 final Annex 2, available at: http://ec.europa.eu/atwork/pdf/cwp_2015_withdrawals_en.pdf
 . 
 
89 Article 34 – Social security  and social assistance 
Article 34 of the Charter recognises citizens' entitlemen t 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 ad vantages (including social and housing assistance) in 
accordance with Union law and na tional 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 eligib ility, how these benefits are calculated, as well as 
how much contribution should be paid, provided it complies with applicable EU law. EU rules ensure 
that the application of the different national legisl ations respects the basic principles of equality of 
treatment and non-discrimination. They guarantee th at migrant EU workers are treated in the same 
way as national workers and that the application of the different national legislations does not 
adversely affect them. 
Legislation In 2014, the Seasonal workers' Directive
295 and the Directive on Intra-Corporate Transferees296 were 
adopted. These directives provide for equal treatmen t as regards access to social security, subject to 
a number of restrictions. The Seasonal workers' Directive  concerns the conditions of entry and stay 
of third-country nationals for the purpose of employ ment as seasonal workers and provides for equal 
treatment as regards access to branches of social security (with possible exceptions as regards family 
and unemployment benefits). The Directive on Intra-Corporate Transferees will make it easier and 
quicker for multinational companies to temporarily  assign highly skilled employees to subsidiaries 
situated in the EU and provides for equal tr eatment between intracorporate transferees and 
nationals in particular as regards to benefits related to sickness, invalidity and old-age. Member States can make exceptions where the national la w or a bilateral agreement with the host member 
state establishes that the laws of the country of origin of the intra-corporate transferee will apply. 
Member states may also decide not to grant fam i l y  b e n e f i t s  t o  e m p l o y e e s  w h o  s t a y  l e s s  t h a n  9  
months in the EU.  
Policy  Within the European Semester, the European Commission has urged Member States to ensure the 
adequacy of income support , joined up with inclusive labour market measures  and access to 
quality, enabling services such as job-search assistance and skill training . In 2014, the European 
Commission proposed several Country-Specific Recommendations  to raise the adequacy of income 
support, improve the coverage of benefits and social  services, and/or link the benefits to activation 
measures where appropriate
297.  
                                                            
295 Directive 2014/36/EU of the European Parliament and of the Council of 26 February 2014 on the conditions 
of entry and stay of third-country nationals for the purpose of employment as seasonal workers, OJ L 94, 
28.3.2014, p. 375. 
296 Directive 2014/66/EU of the European Parliament and of the Council of 15 May 2014 on the conditions of 
entry and residence of third-country nationals in the framework of an intra-corporate transfer, OJ L 157, 
27.5.2014, p. 1. . 
297 http://europa.eu/rapid/press-release_IP-13-1064_en.htm  . 
 
90 As mentioned above under Article 1, the European  Parliament Resolution of 16 January 2014 on an 
EU Homelessness Strategy298 makes reference to the Charter of Fundamental Rights and recalls that 
homelessness is a violation of human dignity and of human rights, whereas housing is a basic human 
need and a precondition for a decent life and soci al inclusion. The Opinion of the Committee of the 
Regions on a European strategy on homelessness299 notes that homelessness is the most extreme 
form of poverty and social exclus ion, and violates human dignity and rights, given that housing is a 
fundamental human need. The European Commission confirmed that confronting homelessness remains a priority and that the EU will conti nue efforts to reduce homelessness and housing 
exclusion through the implementation of the Social Investment Package.  
 
Article 35 – Health care 
Article 35 of the Charter provides 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.  
Legislation On 3 April 2014 the European Parliament and the Council adopted the Tobacco Products Directive
300. 
The Directive governs the use of tobacco and relate d products in the EU. The new rules introduced 
are expected to help to reduce the number of people who start smoking in the EU. In particular, the prohibition of lip stick-style packs and the large ma ndatory picture and text warning to be placed on 
both sides of the pack of cigarettes is designed to  put an end to products which entice children and 
teenagers into starting to smoke in the EU. The Directive is in force since 19 May 2014. The EU 
Member States have the obligation to transpose the Directive by 20 May 2016.  
The Tobacco Products Directive refers to several fundamental rights and to the general respect of 
fundamental rights in the preamble. Some aspects of fundamental rights were invoked in two recent 
requests for preliminary rulings from UK Courts to  the CJEU. The actions before UK courts were 
brought by Philip Morris and British American Tobacco UK Limited
301 and Pillbox 38 (UK) Limited302. 
The claimants challenge the validity of the Directive and invoke in this respect the freedom of expression and information in relation to Article 13 of the Tobacco Products Directive concerning the 
                                                           
 
298 European Parliament resolution of 16 January 2014  on an EU homelessness st rategy (2013/2994(RSP)). 
299 Opinion of the Committee of the Regions — A European  homelessness strategy, OJ  C 271, 19.8.2014, p. 36. 
300 Directive 2014/40 of the European Parliament and of the Council of 3 April 2014, OJ L 127, 29.4.2014, p.1, 
see also Articles 16 and 17. 
301 CJEU, reference for a preliminary ruling from th e High Court of Justice, Queen's Bench Division 
(Administrative Court) (England and Wales) (United Kingdom) made on 1 December 2014 in Case C-547/14 – Philip Morris Brands SARL, Philip Morris Limited, British Am erican Tobacco UK Limited against Secretary of State 
for Health.  
302 CJEU, reference for a preliminary ruling from High Co urt of Justice Queen's Bench Division (Administrative 
Court) (England and Wales) (United Kingdom) made on 27 October 2014 in Case C-477/14 – Pillbox 38 (UK) 
Limited, trading as “Totally Wicked” v Secretary of State for Health.  
 
91 rules on product presentation and the freedom to  conduct business and the right to property in 
relation to Article 20 of the Tobacco Products Direct ive, which contains rules on electronic cigarettes. 
Also concerning the rules on tobacco produc ts, the Commission adopted on 10 October 2014 a 
proposal for a delegated Directive amending An nex II to Directive 2014/40/EU establishing the 
library of picture warnings  to be used on tobacco products303. Protection of personal data and 
intellectual property rights were ca refully addressed in this context. 
Policy  As mentioned under Article 21, during 2014 specific actions have been taken to reduce the health 
gap between the Roma and the rest of the population. In this context, the EU Framework for 
National Roma Inte gration Strategies
304 calls on Member States to provide access to quality 
healthcare, preventive care and social services at a similar level and under the same conditions as the 
rest of the population. To achieve this objective,  several Member States (e.g. Romania, Spain) have 
invested in Roma mediators and the European Co mmission has launched an initiative to develop 
training packages for health professionals for mi grants and ethnic minorities, including the Roma. 
The fundamental rights of access to preventive health care and to benefit from medical treatment subject to national laws and practices are therefor e enshrined in the Union's policies to promote the 
effective, holistic integration of Roma communities.  
The EU Joint Action on Mental Health and Well-being
305 is a 3-year initiative that aims at building a 
framework for action in mental health policy at the European level. In this context good practices are 
being gathered and recommendations developed for people with severe mental disorders, in 
particular the transition from institutional care to community care.  
Case law On 6 August 2014 a UK Court made a reference for a preliminary ruling to the CJEU
306 on the 
compatibility with European Union law (in particular free movement of goods) of national legislative 
measures imposing a minimum price on alcohol in Scotland . The national measures aim to tackle 
health harm caused in particular by drinks that  are high in alcohol content and sold relatively 
cheaply. The Commission supported the national meas ures and relies in this respect to the Charter 
principle laid down in Article 35 that ‘A high level of human health protection shall be ensured in the 
                                                            
303 Annex Picture Library (of combined health warnings ) (referred to in Articl e 10(1)) to the Commission 
delegated directive ../.../EU amending Annex II to Directiv e 2014/40/EU of the European Parliament and of the 
Council by establishing the library of  picture warnings to be used on tobacco products, C(2014) 7212 final 
Annex 1, available at: http://ec.europa.eu/transparency/regdoc/rep/3/2014/EN/3-2014-7212-EN-F1-1-ANNEX-
1.Pdf  . 
304 Communication from the Commission to  the European Parliament, the Co uncil the European Economic and 
Social Committee and the Committee of the Regions – An EU Framework for National Roma Integration 
Strategies up to 2020, COM (2011)173 final, available at: http://eur-lex.europa.eu/legal-
content/EN/TXT/PDF/?uri=CELEX:52011DC0173&from=en  . 
305 For further information see http://www.mentalhealthandwellbeing.eu/  . 
306 CJEU, reference for a preliminary ruling from Court of Session, Scotland (United Kingdom) made on 8 July 
2014 in Case C-333/14 – The Scotch Whisky Association and others against The Lord Advocate, The Advocate 
General for Scotland. 
 
92 definition and implementation of all the Union’s policies and activities’ and several TEU and TFEU 
provisions which concern EU health policies and well-being of people. 
 
Article 36 – Access to services of general economic interest 
Article 36 of the Charter provides that the Unio n recognises and respects access to services of 
general economic interest as provided for in nati onal laws and practices, in accordance with the 
Treaties, in order to promote the social and territorial cohesion of the Union.  
Reference to services of general economic interest (SGEI) is also made in Articles 14 and 106 TFEU. 
Protocol n. 26 TFEU refers to the broader notion of services of general interest. No definition is 
provided in the EU Treaties or in secondary EU la w. In its Communication on  A Quality Framework for 
Services of General Interest in Europe307, the Commission stated: 
"SGEI are economic activities which deliver outcom es in the overall public good that would not be 
supplied (or would be supplied under different conditi ons in terms of quality, safety, affordability, 
equal treatment or universal access) by the market without public intervention. The PSO [public service obligation] is imposed on the provider by wa y of an entrustment and on the basis of a general 
interest criterion which ensures that the service is provided under conditions allowing it to fulfil its 
mission." 
Legislation Respect for Article 36 of the Charter is especially important in the energy sector . Here, EU policies 
aim at fostering affordable, sustainable and secu re energy to consumers through competition and 
market integration while at the same time ensuring adequate access to SGEI. The Third Energy Package
308, in force since 3 March 2011, defines universal  service obligations for electricity supply. 
For both the electricity and natural gas sectors it includes provisions on protection of consumers in 
general and more specifically of those consumers th at qualify as vulnerable consumers, as well as 
provisions on public service obligations. The latter h ave to observe strict conditions set out in the 
Third Energy Package and in the case law of the Cour t of Justice. These provisions contribute to the 
implementation of the right to access set out in Article 36. In this context, in 2014 the 
                                                            
307 Communication from the Commission to  the European Parliament, the Co uncil the European Economic and 
Social Committee and the Committee of the Regions – A Qua lity Framework for Services of General Interest in 
Europe COM(2011) 900, available at: 
http://ec.europa.eu/services_general_int erest/docs/comm_quality_framework_en.pdf  . 
308 The package includes: Regulation (EC) No. 713/2009 of  the European Parliament and of the Council of 13 
July 2009 establishing an Ag ency for Cooperation of En ergy Regulators; Regulation  (EC) No. 714/2009 of the 
European Parliament and of the Council of 13 July 20 09 on conditions for access to the network for cross-
border exchanges in electricity and re pealing Regulation (EC) No. 1228/2003; Regulation (EC) No. 715/2009 of 
the European Parliament and of the Council of 13 Ju ly 2009 on conditions for access to the natural gas 
transmission networks and repealing Re gulation (EC) No. 1775 /2005; Directive 2009/7 2/EC of the European 
Parliament and of the Council of 13 July 2009 concerning common rules for the internal market in electricity 
and repealing Directive 2003/54/EC; Directive 2009/73/EC of the European Parliament and of the Council of 13 
July 2009 concerning common rules for the internal mark et in natural gas and repe aling Directive 2003/55/EC, 
OJ L 211, 14.8.2009, p. 1. 
 
93 Communication on Energy Pr ices and Costs in Europe309 explicitly acknowledges that, in the 
framework of the Internal Energy Market, the actions aimed at reducing energy costs through the 
use of new technologies and energy services (s uch as energy efficiency measures and demand 
response) will primarily benefit vulnerable consumers.  
Policy The Commission finances energy efficiency improvements
310 that are a cost-effective means of 
alleviating energy poverty and runs stakeholder even ts to develop solutions and share best practices 
in protecting vulnerable consumers. Further, the Commission is conducting studies to identify 
possible future policy actions to mitigate vulner ability patterns across key consumer markets, 
including energy. Results of the studies are expected during 2015.  
 
Article 37 – Environm ental protection 
The Charter in Article 37 establishes that a high level of environmental protection and the 
improvement of the quality of the environmental must  be integrated into the policies of the union 
and ensured in accordance with the principle of sustainable development.  
Legislation 
In 2014, the Environmental Impact Assessment Directive (EIA)311 has been amended with a view to 
strengthening public access to information and tr ansparency. The environmental impact assessment 
procedure laid down by the Directive ensures that  the public is duly informed and consulted before 
decisions on projects with likely significant effect s on the environment are taken. 25 years after the 
original rules came into force, the new Environmental Impact Assessment Directive (EIA)312 reflects 
on-going environmental and socio-economic changes and challenges in the legislation and aligns it 
with the principles of smart regulation. The newly amended Directive which entered into force on 15 
May 2014 also reduces the administrative burde n and improves the level of environmental 
protection in the EU.  
In particular, as from May 2017 (due date of tran sposition by EU Member States), environmental 
information should also be accessible in electronic  format and Member States should establish at 
least a central portal or points of access allowing the public to access that information easily and 
effectively. In addition, the new Directive provides for a new timeframe ensuring the minimum 
                                                            
309 Communication from the Commission to  the European Parliament, the Co uncil the European Economic and 
Social Committee and the Committee of the Regions – En ergy Prices and Costs in Europe COM(2014) 21/2, 
available at: 
http://ec.europa.eu/energy/sites /ener/files/documents/20140122_communication_energy_prices_1.pdf  . 
310 http://ec.europa.eu/research/participants/portal/desktop/en/opportunities/index.html  . 
http://ec.europa.eu/regional_policy/thefunds/index_en.cfm   
311 Directive 2011/92/EU of the European Parliament and of the Council of 13 December 2011 on the 
assessment of the effects of certain p ublic and private projects on the environment Text with EEA relevance, OJ 
L 26, 28.1.2012, p. 1. 
312 Directive 2014/52/EU of the European Parliament a nd of the Council of 16 April 2014 amending Directive 
2011/92/EU on the assessment of the effects of certain public and private projects on the environment Text 
with EEA relevance, OJ L 124, 25.4.2014, p. 1. 
 
94 period (at least 30 days) of consulting the public on  the environmental report for a given project will 
also be introduced by Member States. Once a decisi on on a project is taken, the competent national 
authority should promptly inform the public on th e content of the decision and on several items 
substantiating it in order to ensure transparency and better explanation of the decision-making process. All the above strengthen the environmental integration principle enshrined in Article 37 of 
the Charter.  
Policy On 7 February 2014 the European Commission adopted a Communication on the EU approach to 
Wildlife Trafficking
313. Although Wildlife Trafficking (defined as the illegal cross-border trade in 
biological resources taken from the wild, including trade in timber and marine species) is not a new 
phenomenon, poaching has reached over the last fe w years unprecedented levels for some species. 
Facing this dramatic surge in wildlife traffickin g, the European Commission in its Communication 
proposes to review existing policies and measures at EU level so as to enable the Union to react more 
effectively to the current crisis situation.  
Case law Specific reference to the Article 37 of the Charter was made in the Opinion of the Advocate General 
of the CJEU, in the joined cases Essent Belgium NY v Vlaamse Reguleringsinstantie voor de 
Elektriciteits - en Gasmarkt
314. In fact, in its Opinion, the Advocate General referred to Article 37 of 
the Charter while arguing that environmental protection could justify measures that restrict the freedoms of movement even where such measures are discriminatory. However, he concluded that 
in the case at issue national rules that preclude electricity suppliers from importing renewable energy 
produced in other Member States or in the EEA cannot be justified on grounds of environmental 
protection. The court disagreed and held that the objective of promoting the use of renewable 
energy sources for the production of electricity is in principle capable of justifying barriers to the free 
movement of goods. Therefore, even without mentioning Article 37 of the Charter, the Court has 
granted a high priority status to environmental protection. In this respect, the Essent judgment 
follows closely the judgment in the Case Ålands vindkraft AB v Energimyndigheten
315. In the latter no 
reference was made to fundamental rights.  
 
Article 38 – Consumer protection 
Article 38 of the Charter provides that Union policies shall ensure a high level of consumer 
protection, giving guidance to the EU institutio ns when drafting and applying EU legislation. 
Legislation 
                                                            
313 Communication from the Commission to the Council an d the European Parliament on the EU Approach 
against Wildlife Trafficking, COM( 2014) 64 final, available at: http://eur-lex.europa.eu/legal-
content/EN/TXT/PDF/?uri=CELEX:52014DC0064&from=EN  . 
314 CJEU Judgment of 11 September 2014  in Joined Cases C-204/12 - 208/12 Essent Belgium NY v Vlaamse 
Reguleringsinstantie voor de Elektriciteits - en Gasmarkt . 
315 CJEU Judgment (Grand Chamber) of 1 July 2014 in Case C-573/12 Ålands vindkraft AB v Energimyndigheten . 
 
95 The Directive on Payment Accounts316, which was adopted on 23 July 2014, will strengthen 
consumers’ rights by giving all EU citizens access to a basic payment account and by ensuring that 
consumers are provided with transparent and comp arable information before making choices with 
regard to payment accounts.  
Negotiations on the European Commission's proposal for a new  Directive on Package Travel317 
continued with the European Par liament voting in favour of this  reform in March 2014 and largely 
supporting the European Commission's proposal a nd the adoption of a general approach by the 
Council in December 2014. This means that inter-inst itutional negotiations ca n start at the beginning 
of 2015.  
The majority of Member States respected the 13 December 2013 transpositio n deadline set by the 
Directive on Consumer Rights318 and, consequently, started applying the new measures from 13 June 
2014, as required by the Directive. The Europe an Commission ensured, through infringement 
proceedings, that the remaining Member Stat es transposed the directive by July 2014. 
A Directive amending and modernising the Professional Qualifications Directive319, which entered 
into force on 18 January 2014 and must be impl emented by Member States by 18 January 2016, 
contains, inter alia , measures aimed at ensuring a high level of consumer protection (including 
provisions of language proficiency and the setting up of alert mechanisms in case of professional 
malpractice).  
In April 2014 the European Parliament adopted a po sition on the European Commission legislative 
proposal of 11 September 2013 for a Regulation laying down measures concerning the Single 
Market for Electronic Communications in the EU  and to achieve a Connected Continent  (known as 
the Connected Continent Proposal ).320 The proposal contains inter alia  measures on consumers' 
interests and rights in the field of electronic co mmunications in key areas such as roaming, open 
internet access, and end-user protection and empowerment. The proposal was in first reading in the Council in December 2014.  
Policy Following the adoption, in 2013, of  a report and a communication
321 on the functioning of the Unfair 
Commercial Practices Directive322, in the course of 2014 the European Commission organised two 
                                                            
316 Directive 2014//92/EU on the co mparability of fees related to pa yment accounts, payment account 
switching and access to payment accounts with basic features, OJ L 257, 28.8.2014, p.214. 
317 Proposal for a Directive on packag e travel and assisted travel arrangem ents, amending Regulation (EC) No 
2006/2004, Directive 2011/83/EU and repealing Council Directive 90/314/EEC, COM(2013) 512 final, available 
at: http://ec.europa.eu/justice/consum er-marketing/files/com_2013_512_en.pdf. 
318 Directive 2011/83/EU on consumer rights, OJ L 304, 22.11.2011, p.64. 
319 Directive 2013/55 am ending Directive 2005/36/EC on the recognition of professional qualifications and 
Regulation (EU) No 1024/2012 on administrative cooper ation through the Internal Market Information System, 
OJ L 354/132, 28.12.2013, see also Articles 8, 15 and 48. 
320 Proposal for a Regulation of the European Parliament  and of the Council laying down measures concerning 
the European single market for electronic communica tions and to achieve a Connected Continent, and 
amending Directives 2002/20/EC, 2002/21/EC and 2002/22/EC and Regulations (EC) No 1211/2009 and (EU) No 531/2012, COM(2013) 627 final, available at: http://eur-lex.europa.eu/legal-
content/EN/TXT/PDF/?uri=CELEX:52013PC0627&from=EN  . 
321 Refer to the 2013 SWD on the application of the EU Charter for details. 
 
96 workshops  with national enforcement agencies regard ing the implementation of the Directive in 
relation to emerging challenging practices on-line and with specific attention to problems faced by 
consumers in the areas of financial services, im movable property and environmental claims. The 
European Commission is currently in the process of updating the 2009 Guidance Document on the 
Application of the Directive . With regard to its transposition , the Commission closed 14 EU-pilot 
investigations, in most cases following positive legi slative changes in the Member States concerned. 
The European Commission has initiated other infri ngement proceedings, so that, to date, in total 
twelve cases are still pending.  
With regard to the Directive on Certain Aspects of the Sale of Consumer Goods and Associated 
Guarantees323, the European Commission launched a market study on the functioning of legal and 
commercial guarantees for consumers, which will fe ed into the upcoming REFIT exercise, announced 
in the European Commission's Communication of  2 October 2013 on the Regulatory Fitness and 
Performance (REFIT): Results and Next Steps324. This exercise will in particular test the suitability of 
existing consumer protection instruments for the Digital Single Market. 
The Vulnerable Consumer Working Group , which was established by the European Commission to 
support the implementation of consumer protection pr ovisions in the Third Energy Package, issued in 
2014 a Guidance Document on Vulnerable Consumers325 whose main aim is to (i) assist those 
Member States that have not yet defined the concept of vulnerable customers as required by energy 
legislation, and (ii) assist Member States develop policy - where it is needed - to ensure vulnerable 
customers are supported in the best possible way.  
Between January and April 2014 a public consultation on the retail energy market326 was 
undertaken with the aim of seeking the views of stakeholders on the functioning of the retail energy 
market and consumer participation. The results of the consultation are under assessment and will 
lead to a Commission communication on the retail energy market.  
Case law In the Monika Kušionová v SMART Capital a.s
327. case the CJEU clarified the scope of consumer 
protection in a case concerning the methods of  enforcement of a charge provided by way of 
guarantee for a mortgage loan agreement and the lawfulness of terms included in that agreement. Since the right to accommodation is a fundamental right  enshrined in Article 7 of the Charter, it must 
be taken into consideration by the national cour t when implementing the unfair terms in consumer 
contracts directive.  
                                                                                                                                                                                         
 
322 Directive 2005/29/EC of the European Parliament and of the Council of 11 May 2005 concerning unfair 
business-to-consumer commercial practices in the intern al market and amending Council Directive 84/450/EEC, 
Directives 97/7/EC, 98/27/EC and 2002/65/EC of the Eu ropean Parliament and of the Council and Regulation 
(EC) No 2006/2004 of the European Parliament and of the Council (‘Unfair Commerc ial Practices Directive’) 
(Text with EEA relevance), OJ L 149, 11.6.2005, p. 22. 
323 Directive 1999/44/EC of 25 May 1999. 
324 COM(2013) 685 final of 2 October 2013. 
325 Available at: 
http://ec.europa.eu/energy/sites /ener/files/documents/20140106_vulnerable_consumer_report.pdf  . 
326 See http://ec.europa.eu/energy/en/consultati ons/consultation-retail-energy-market  . 
327 CJEU judgment of 10 September 2014 in Case C-34/13 Monika Kušionová v SMART Capital a.s.  
 
97 Another important preliminary ruling concerning cons umer protection was given by the CJEU in the 
Case Sánchez Morcillo328. This Case concerned the procedural rights of consumers in relation to 
mortgage enforcement procedures and the CJEU st ressed the aspect of the equality of arms. It 
considered that national law was contrary to the Directive on unfair terms in consumer contracts and 
Article 47 of the Charter in cases where the law do es not provide consumers with a right of appeal 
even though the creditor does benefit from such  a right of appeal in the reverse scenario.  
In the Alexandra Schulz v Technische Werke Schussental  GmbH und Co. KG and Josef Egbringhoff v 
Stadtwerke Ahaus GmbH329 case the CJEU held that Directives 2003/54/EC330 and 2003/55/EC331 
preclude national legislation that, while determining the content of consumer contracts for the 
supply of electricity and gas covered by a universal supply obligation, does not ensure that customers 
are given adequate notice, before price adjustment comes into effect, of the reasons and 
preconditions for the adjustment, and its scope. No explicit mention is made of fundamental rights in 
the judgment. However, the Court stated that cons umers can fully and effectively benefit from the 
rights conferred upon them by the Directives only when they are adequately informed. From this 
point of view, the interpretation of the Court is in line with the goal of ensuring a high level of 
consumer protection laid down in Article 38 of the Charter. 
Application by Member States With regard to the Timeshare Directive
332, the European Commission has closed 16 out of the 19 EU-
pilot investigations  it had launched, thanks to the fact th at, in most cases, the concerned Member 
States have in the meantime adopted the legisl ative changes needed to bring their laws in 
compliance with the text of the Directive. In one case formal infringement proceedings  were 
opened. 
Text Box Example 
Ruling of the Czech Constitutional Court 
In the original proceedings of this case333 the applicant sued a bank and requested that the bank fees 
she had paid were returned to her. This action was dismissed by the District Court in Prague. The 
applicant filed a constitutional complaint against th is decision. The Constitutional Court interpreted 
the right to consumer protection pursuant to Arti cle 38 of the Charter and concluded – by referring 
also to horizontal consumer protection clause in Article 12 TEU and the policy provision in Article 169 
TFEU – that this Charter provision does not grant an  individual right and is not directly enforceable. 
                                                            
328 CJEU judgment of 17 July 2014 in Case C-169/14 Sánchez Morcillo and Abril García , see Article 47. 
329 CJEU judgment of 23 October 2014 in Joined Cases C-359/11 and C-400/11 Alexandra Schulz v Technische 
Werke Schussental GmbH und Co. KG and Josef Egbringhoff v Stadtwerke Ahaus GmbH . 
330 Directive 2003/54/EC of the European Parliament a nd of the Council of 26 June 2003 concerning common 
rules for the internal market in electricity and repe aling Directive 96/92/EC, OJ L 176, 15.7.2003, p. 37. 
331 Directive 2003/55/EC of the European Parliament a nd of the Council of 26 June 2003 concerning common 
rules for the internal market in na tural gas and repealing Directive 98/30/EC, OJ L 176, 15.7.2003, p. 57. 
332 Directive 2008/122/EC of 14 January 2009 on the prot ection of consumers in respect of certain aspects of 
timeshare, long-term holiday product, resale and exchange contracts, OJ L 33, 3.2.2009, p. 10. 
333 Constitutional Court of the Czech Republic (Ústavní soud), case III. ÚS 3725/1 3, 10.4.2014, available at: 
http://nalus.usoud.cz  . 
 
98 The Court explained that Article 38 of the Charter was a principle that EU institutions and Member 
States reflect when transposing EU legislatio n. The applicant's claim was thus dismissed. 
 
Dignity
4%
Freedoms
15%
Equality
12%Citizens' rights
9%Justice
54%Other
2%Fair and just 
working 
conditions 1%
Social security and 
social assiatance  
1%Social security and 
social assistance 
1%
Consumer 
protection 1%Solidarity
4%Letters (Solidarity)
 
Dignity
5% Freedoms
22%Equality
48%Citizens' rights
0.27%
Justice
4%Other
3%Worker's rights to 
information and 
consultation
4%
Environmental 
protection 2%Fair and just work 
conditions
2%Right to collective 
bargain and action 1%
Family and 
professional life 1%
Social security 1%
Health care 1%  Access to services of 
gen. economic 
interest 0.27%
Consumer protection
4%Solidarity
17%Questions (Solidarity) 
 
99 Dignity
4%
Freedoms
25%Equality
43%Citizens' rights
5%
Justice
14%
Other 2%Social security and 
social  assistance
3%
Health care (incl. mental 
health & handicapped)
2%
Consumer protection
2%Solidarity
7%Petitions (Solidarity)
 
Source: European Commission 
 
100 Citizens' rights 
 
Ahead of the 2014 European Parliament elections,  the European Commission published a report on 
the implementation of its recommendation for further enhancing the  democratic and efficient 
conduct of the European Parliament elections. The European Commission also issued a Handbook 
on the rights of EU citizens  to participate in municipal and European Parliament elections. 
The European legislators adopted the Portability Directive , which promotes the freedom of 
movement by improving the acquisition and pr eservation of supplementary pension rights. 
In 2014, the European Ombudsman  opened on her own initiative an investigation334 concerning the 
respect for fundamental rights in the implementation of EU cohesion policy  examining the 
adequacy of the means the European Commission ha s at its disposal to en sure that fundamental 
rights enshrined in the Charter of Fundamental Rights are complied with. 
 
                                                            
334 Case OI 8/2014/AN, available at: 
http://www.ombudsman.europa.eu/en/press/ release.faces/en/54420/html.bookmark  . 
 
101 Titl e V 
Citizens' rights 
 
Article 39 – Right to vo te and stand as a candi date at elections to the 
European Parliament 
Article 39 of the Charter and Article 20 (2) b of the Treaty on the Functioning of the European Union 
(TFEU) guarantee the right of every EU citizen to vote in the European elections in whichever Member State they reside. Both articles also provide for the right of EU citizens to vote and to stand 
as candidates at municipal elections in the Member State in which they reside. 
Policy On 12 March 2013, the European Commission adopted a Recommendation for further enhancing 
the democratic and efficient conduct of the European Parliament elections
335. On 27 March 2014, 
the European Commission also published a report on the  implementation336 of the said 
recommendations ahead of the May 2014 elections. The report took stock of the measures taken by 
the Member States, and by politic al parties at national and Eu ropean level, to promote the 
transparency of the European Parliament election s and to encourage genuine pan-European debates 
to help stimulate voter interest and ultimately reinforce the democratic legitimacy of the EU decision-making process. The Europe an Commission furthermore issued a Handbook on the rights of 
EU citizens
337 to promote and raise awareness of thes e rights, including notably the right to 
participate in municipal and European Parliament elections. 
Application by Member States Following the action announced in  its 2010 EU Citizenship Report
338 (action 18), the European 
Commission pursued a dialogue with Member States to ensure that EU citizens can found and 
become members of political parties in the Member State in which they reside . In two cases 
(Bulgaria and Finland) national legislation was adopted that removed the restriction preventing non-
national EU citizens to found a political party, and in three other cases (Lithuania, Slovakia and Spain) 
amendments were announced allowing non-national  EU citizens to found and become members of 
political parties. The European Commission is moni toring the situation to ensure that legislation 
restricting mobile voters' rights is removed across the EU.  
                                                            
335 Commission Recommendation on enhancing the democratic  and efficient conduct of  the elections to the 
European Parliament, OJ L 79, 21.3.2013, p. 29. 
336 Report from the Commission to the European Parliame nt, the Council, the Europe an Economic and Social 
Committee and the Committee of the Regions: Towards more democratic European Parliament elections 
Report on the implementation of the Commission's re commendations of 12 March 2013 on e nhancing the 
democratic and efficient conduct of the elections to the European Parlia ment, COM (2014) 196 final, available 
at: http://ec.europa.eu/justice/citizen/files/report_ep_elections_2014_en.pdf  . 
337 Did you know: 10 EU rights at  a glance, available at http://bookshop.europa.eu/en/did-you-know--
pbNA0414127/  
338 Available at: http://ec.europa.eu/ justice/citizen/file s/com_2010_603_en.pdf  . 
 
102 Ahead of the 2014 European Parliament elections,  the European Commission took measures to 
ensure that the Directive339 adopted in January 2013, which simplified the procedure for EU citizens 
to stand as candidates for the European Parliament , was transposed in a timely manner into the 
national legislation of the Member States. The European Commission launched infringement procedures against fourteen Member States, afte r which the Member States concerned transposed 
the Directive into national law. In one case , the Commission issued a reasoned opinion. 
 
Article 40 – Right to vote and to  stand as a candidate at municipal 
elections 
According to Article 40 every citizen of the Union has the right to vote and to stand as a candidate at 
municipal elections in the Member State in which he or she resides under the same conditions as 
nationals of that State. 
 
Article 41 – Right to good administration 
Every person according to Article 41 of the Charter has the right to have his or her affairs handled 
impartially, fairly and within a reasonable timefram e by the Institutions, bodies and agencies of the 
Union. It also includes the right to be heard and to receive a reply. 
Legislation In the field of customs, work is underway for draft delegated and implementing acts for the Union 
Customs Code
340, which are deemed to be adopted in 2015. The aim is to promote the right to good 
administration through the following provisions: time  limits for the taking of a decision by customs 
authorities; right to the applicant to be heard before a decision which would affect him or her is 
taken; right of appeal against a customs decision and the recognition of Union-wide validity of 
customs decisions.  
Policy A huge number of enquiries are addressed by citizens to the European Commission, whether by 
phone, e-mail or correspondence. The European Commi ssion commits itself to answering them in the 
most appropriate manner and as quickly as possibl e. The general rule applied in the European 
Commission is that every letter is registered and, with the exception of those that are unreasonable, 
repetitive or abusive, should receive a reply within 15 working days from the date of receipt of the 
letter. The European Commission also takes care th at replies are sent in the language of the author 
of the correspondence, provided that it was written in one of the official language of the Union. For 
                                                           
 
339 Directive 2013/1/EU amending Directive 93/109/EC as regards certain detailed arrangements for the 
exercise of the right to stand as a candidate in election s to the European Parliament for citizens of the Union 
residing in a Member State of which they are not nationals, OJ L 26, 26.1.2013, p. 27. 
340 Regulation (EU) No 952/2013 of the European Parliame nt and of the Council of 9 October 2013 laying down 
the Union Customs Code, OJ L 269, 10.10.2013, p. 1. 
 
103 complaints and enquiries by citizens on the applic ation of EU law, the European Commission uses an 
IT tool for registering and managing this specific kind of correspondence. 
In May 2014, the European Ombudsman opened an inve stigation into respect for fundamental rights 
in the EU cohesion policy.341 In its reply of 29 October 2014342 the European Commission has 
committed to adopting a set of measures to increase the awareness of the Charter's relevance 
among Member States when disbursing ESI funds :  
• First, the Commission will formally write to  Member States to remind them of their 
obligations as regards respect of the Charter when they implement EU law. 
• Second, the Commission will draw the attention of Member States to the possibility to use 
technical assistance from ESI funds to su pport arrangements fo r handling complaints. 
• Third, the Commission will disseminate good practices of what are effective arrangements 
for the treatment of complaints.  
• Fourth, the Commission will issue a guidance do cument addressed to the Member States as 
regards respect of the Charter when Member St ates implement EU law in the context of the 
disbursement of ESI funds. 
• Fifth, after this guidance has been issued, the Commission will organise training in the 
Member States on the Charter, its applicability and its relevance in the context of the disbursement 
of ESI funds. 
Case law In 2014 the CJEU rendered several judgments which concerned Article 41 and its scope of 
application. The right to good administration as enshrined in the Charter expressly only binds the 
institutions, bodies, offices and agencies of the Un ion. The question of whether Article 41 is also 
applicable when Member States implement EU law was discussed by the CJEU in the case 
Mukarubega
343. This case concerned the right to be he ard of third-country nationals as regards 
return decisions in the field of asylum. Ms Mukarubega brought an action in France for the annulment of the return decisions adopted in 2012 and 2013. She claimed that the adoption of those 
decisions was contrary to the principle of good ad ministration stated in th e Charter of Fundamental 
Rights of the EU, since she was not given the oppo rtunity to submit her observations before those 
decisions were adopted. The CJEU re iterated its previous case law th at Article 41 is not addressed to 
Member States and therefore ruled that Article 41 wa s not applicable in the case at hand. Since the 
right to good administration is however inherent in  respect for the rights of the defence, which is a 
general principle of EU law, the Court further discu ssed the conditions that must be met to fulfil this 
principle. In the case of Ms Mukarubega, the Court clarified that third-country nationals who have 
been duly heard on the illegality of their stay need not necessarily be heard again before the 
adoption of a return decision. Therefore the Court he ld that there was no violation of the right to be 
heard. 
                                                           
 
341 http://www.ombudsman.europa.eu/en/press/re lease.faces/en/54420/html.bookmark . 
342 http://www.ombudsman.europa.eu/en/cases/co rrespondence.faces/en/58451/html.bookmark 
343 CJEU judgment of 5 November 2014 in Case C-166/13 Mukarubega , see also Article 19. 
 
104 In another judgment, which concerned the right to  good administration, the Court recalled that 
Article 41 was not applicable, but that the right to be heard as a general principle could be applied. 
The Court clarified in Boudjlida344 that this right implies an oblig ation upon national authorities to 
ensure that the person concerned always has the possibility to express his point of view on the 
legality of his stay and on possible reasons that may justify the non-adoption of a return decision, as 
well as on the detailed arrangements for his return. In this context, the Court also clarified that in 
principle such obligations do not go as far as re quiring national authorities to set out further and 
more detailed arrangements in order to ensure full respect of an adversarial procedure. 
In order to achieve the objectives of Article 21 TEU, the EU  also applies restrictive measures345, 
which often give effect to binding Resolutions of the UN Security Council based on Article 41 or 42 of 
the Charter of the United Nations but can also be  autonomous EU measures. Some of the restrictive 
measures involve the listing of individuals and en tities with a view to having their funds and 
economic resources frozen. For the individuals and entities concerned, the right to good administration (Article 41) and the right to an effe ctive remedy and to a fair trial (Article 47 of the 
Charter) are of particular importance. In 2014, th e CJEU decided on a number of cases concerning 
the procedure to list individuals a nd entities for this purpose. Of more than 30 judgments issued in 
2014 on the legality of the restrictiv e measures imposed, the Court uphe ld the listings in only a small 
number of cases,
346 whereas in the other cases347 the listing decisions were annulled.  
 As regards UN Security Council based restrict ive measures, the General Court handed down the Yusef  
judgment
348 concerning restrictive measures taken on  the basis of Council Regulation (EC) No 
881/2002349. This regulation is designed to give effect to UN Security Council resolution on the 
freezing of assets of the individuals, entities and gr oups identified by the UN Sanctions Committee as 
                                                            
344 CJEU judgment of 11 December 2014 in Case C-249/13 Boudjlida , see also Article 19. 
345 See Article 215 TFEU. 
346 Case T-646/11, Vadzim Ipatau v Council of the EU ; Case T-256/11, Ahmed Abdelaziz Ezz and others v Council 
of the EU ; Joined Cases T 174/12 and T 80/13, Syrian Lebanese Commercial Bank SAL v Council of the EU ; Case 
T-202/12, Bouchra Al Assad v Council of the EU ; Case T-263/12, Manufacturing Support & Procurement Kala 
Naft v Council of the EU.  
347 Joined Cases T-208/11 and T-508/11, Liberation Tigers of Tamil Eela m (LTTE) v  Council of the EU; Case 
T-400/10, Hamas v Council of the EU;  Joined Cases T-196/11 et T-542/12, Aliaksei Mikhalchanka v Council of 
the EU; Case T-66/12 , Ali Sedghi, Ahmad Azizi v Council of the EU; Case T-67/12,  Sina Bank v Council of the EU; 
Case T 181/13 , Sharif University of Technology v Council of the EU; Case T-182/13 , Moallem Insurance Co v 
Council of the EU; Case T-384/11 , Safa Nicu Sepahan Co. v Council of the EU; Case T-348/13 , Ahmed 
Mohammed Kadhaf Al Dam v Council of the EU; Case T-293/12 , Syria International Islamic Bank PJSC v Council 
of the EU; Case T-203/12 , Mohamad Nedal Alchaar v Council of the EU; Joined Cases T-329/12 and T-74/13, 
Mazen Al-Tabbaa v Council of the EU; Case T-306/10  Hani El Sayyed Elsebai Yusef v European Commission ; Case 
T-565/12, National Iranian Tanker Company v Council of the EU ; Case T-155/13, Zanjani v Council of the EU ; 
Case T-133/12, Ben Ali v Council  of the EU . 
348 CJEU judgment of 21.3.2014 in Case T-306/10 Hani El Sayyed Elsebai Yusef v European Commission . 
349 Regulation (EC) No 881/2002, OJ L 139/9. 
 
105 associated with Al Qaida. In this case, th e General Court applied the 2008 Kadi I case-law350 and ruled 
that the Commission had failed to act by still not having remedied the procedural deficiencies and 
substantive irregularities affectin g Regulation (EC) No 1629/2005 or dering the freezing of the funds 
and economic resources of Mr Yu sef. It called on the Commission to discharge its obligation to 
examine the grounds for listing carefully and im partially and where appropriate in "effective 
cooperation" with the Sanctions Committee of the UN351. . The failure to act held to have occurred 
did not consist in a failure to re voke Regulation (EC) No 1629/2005352 and the Commission is 
currently proceeding with the review of the grounds for listing in cooperation with the relevant UN 
bodies.  
Most of the other cases353 where restrictive measures against entities or individuals were annulled by 
the CJEU concerned Council Deci sions and Regulations, in which the evidence or information 
substantiating the grounds for listing the individu al or entity submitted by the Council was not 
sufficient and the burden of proof which rested on it under Article 47 of the Charter, as interpreted by the Court of Justice in Kadi II
354, was not discharged. 
 
Article 42 – Right of access to documents 
The Charter in Article 42 guarantees that any EU citizen and any natural or legal person residing or 
having its registered office in a Member State,  has a right of access to documents of the EU 
institutions, bodies, offices and agencies. Th is right is subject to certain exceptions.355 In particular, 
the institutions refuse access wh ere disclosure would undermine the protection of the public 
interest. 
In 2014, the European Commission registered 6227 init ial requests for access to  documents, which is 
approximately 300 less than in 2013. Full or partial access was granted at the initial stage in more 
than 80 % of the cases. Some 70% of requests we re granted at the initia l stage. In 2014, the 
European Commission received 300 confirmatory a pplications, a 27% increase compared to 2013. 
Such applications are reassessed by case handlers acting independently from the ones that handled 
the initial application. This review has led to wider access being granted in almost half of the cases.  
 
                                                            
350 CJEU judgment of 3.9.2008 in Joined Cases C ‑402/05 P and C-415/05 P Kadi and Al Barakaat International 
Foundation v Council and Commission  
351 CJEU judgment of 21.3.2014 in Case T-306/10 Hani El Sayyed Elsebai Yusef v European Commission , at para. 
102. 
352 Ibid,at para. 107. 
353 For instance CJEU judgment of 3.07.2014 in Case T-565/12 National Iranian Tanker Company v Council ; CJEU 
judgment of 9.122014 in Case T-439/11 Sport-pari v Council  
354 CJEU judgment of 18.07.2013 in Case C-584/10 P Commission and Others v Kadi  (Kadi II), Appeal Case 
against T-85/09 Kadi v Commission  (Kadi I). 
355 Under Regulation (EC) No 1049/2001 regarding public access to European Parliament, Council and 
Commission documents, OJ L 145, 31.5.2001, p. 43. 
 
106 Article 43 – European Ombudsman 
The Charter provides that any EU citizen and any natural or legal person residing or having its 
registered office in a Member State, has the right to refer to the European Ombudsman on cases of 
maladministration in the activities of the EU in stitutions, bodies, offices and agencies, with the 
exception of the CJEU acting in its judicial role. 
In 2014, the European Ombudsman was able to help more than 23,000 citizens356. This includes 
individuals who complained directly to the Eu ropean Ombudsman (2,079 complaints), those who 
received a reply to their request for information (1,823), and those who obtained advice through the 
interactive guide on the Europe an Ombudsman’s website (19,170). 
About 60% of the complaints fell within the compet ence of a member of the European Network of 
Ombudsmen, and 34% fell within the European Ombudsman’s mandate. 
Policy On 19 May 2014, the European Ombudsman  opened on her own initiative an investigation
357 
concerning the respect for fundamental rights in the implementation of EU cohesion policy  
examining the adequacy of the means the European Commission has at its disposal to ensure that 
fundamental rights enshrined in the Charter of Fundamental Rights are complied with. 
In its response358, the European Commission confirmed that it attached great importance to the 
respect of fundamental rights, including in the context of cohesion policy implementation. It outlined 
that the framework for ensuring respect of fundamental rights was significantly strengthened in Regulation (EU) No 1303/2013
359 through provisions requiring the European Commission and the 
Member States to ensure that support of the ES I Funds was consistent with relevant policies and 
horizontal principles. Furthermore, Regulat ion (EU) No 1303/2013 established ex ante 
conditionalities inter alia in the area of anti-discr imination, gender and disability. These had to be 
fulfilled, if they were applicable to the specific objectives pursued within the priorities of Member 
States' programmes. Where they applied, they required administrative capacity for the 
implementation and application of Union anti-dis crimination law and policy, gender equality law and 
policy, and the United Nations Convention on the rights of persons with disabilities (UNCRPD).  
The European Commission stressed that these prov isions were complemented by a new explicit 
obligation imposed on Member States to set up effective arrangements for the examination of 
                                                            
356 It is not possible to indicate how many users who were  advised by the Interactive Guide to complain to the 
European Ombudsman actually did so, since the Interact ive Guide does not require a login name and password 
in the way that the online co mplaint form does, and this fo r data protection reasons. 
357 Case OI 8/2014/AN, available at: 
http://www.ombudsman.europa.eu/en/press/ release.faces/en/54420/html.bookmark  . 
358 Available at: 
http://www.ombudsman.europa.eu/en/cases/co rrespondence.faces/en/58451/html.bookmark   
359 Regulation (EU) No 1303/2013 of the European Parliament and of the Council of 17 December 2013 laying 
down common provisions on the European Regional Development Fund, the Euro pean Social Fund, the 
Cohesion Fund, the European Agricultural Fund for Rural Development and the European Maritime and Fisheries Fund and laying down general provisions on the European Regional Development Fund, the European 
Social Fund, the Cohesion Fund and the European Maritime and Fisheries Fund and repealing Council Regulation (EC) No 1083/2006, OJ L 347, 20.12.2013, p. 320. 
 
107 complaints, including complaints alleging violation of the Charter of Fundamental Rights (Article 
74(3) of Regulation). The European Commission further pointed to the possibility to interrupt 
payment deadlines, to suspend payments in case of serious deficiencies and to apply financial 
corrections in cases where Member States do not comply with this obligation.  
Another example of the European Ombudsman's work included a request by an academic to the 
European Commission for access to vari ous documents  concerning a new regulation on the  
Common Fisheries Policy360. The European Commission granted partial access, arguing that full 
disclosure would undermine its ongoing decision-making process.361 The researcher turned to the 
Ombudsman who inspected the documents and concluded that the European Commission's 
arguments for refusing full disclosure were not convincing. According to the Ombudsman, the EU's 
transparency rules foresee the widest possible acce ss when EU institutions act in their legislative 
capacity. The European Commission followed the European Ombudsman's proposal for a friendly 
solution recommendation to release the documents as an agreement on the reform of the Common 
Fisheries Policy had been reached in May 2013. 
 
Article 44 – Right to petition 
All EU citizens, as well as any natural or legal person residing or having its registered office in a 
Member State, have the right to petition the European Parliament on matters which come within the 
Union's fields of activity and which affect the petitioner directly. 
The petition may present an individual request, a complaint or observation concerning the 
application of EU law or an appeal to the Europe an Parliament to adopt a position on a specific 
matter. Such petitions give the European Par liament the opportunity of calling attention to 
infringements of citizens' rights. A petition's port al was created to help citizens to submit their 
petitions easily: http://www.petiport.europarl.europa.eu/petitions/en/main .  
                                                            
360 Proposal for a Regulation of the European Parliame nt and of the Council on the Common Fisheries Policy, 
COM(2011) 425 final, available at: http://eur-lex.europa.eu/legal-
content/EN/TXT/PDF/?uri=CELEX:52011PC0425&from=EN  . 
361 Case: 2232/2011/FOR, available at: 
http://www.ombudsman.europa.eu/en/cases /decision.faces/en/54453/html.bookmark   
 
108 In the year 2014 the European Commission has de alt with 1053 petitions, 185 of which concerned 
fundamental rights.  
Dignity
4% Freedoms
15%Equality
12%Solidarity
4%Justice
54%
Freedom of 
movement and of 
residence 8%Right to good 
administration
0.19%Diplomatic and 
consular protection
European 
Ombudsman
0.03%Right to vote and  
stand as a candidate 
1%Other 2%
Right to petition to 
petitionCitizens' rights
12%Letters (Citizens' rights)
 
 
 
 
109 
 
Source: European Commission 
 
Article 45 – Freedom of movement and of residence 
The Charter guarantees the right of every EU citize n to move and reside freely, whilst respecting 
certain conditions, within the territory of the Member  States. This fundamental right is also included 
in the Treaty on the Functioning of the EU. 
Legislation In 2014, a Directive on minimum requirements for enhancing worker mobility between Member 
States by improving the acquisition and preservation of supplementary pension rights  (Portability 
Directive)
362 was adopted. The Directive provides that workers' occupational pension rights should 
be granted no later than after three years of employment relationship and preserved after they leave 
the pension scheme. The Directive applies to workers who move between Member States, however Member States may extend these standards also to workers who change jobs within a single country.  
                                                           
 
362 Directive 2014/50/EU of the European Parliament and of the Council of 16 April 2014 on minimum 
requirements for enhancing worker mobility between Member States by improving the acquisition and 
preservation of supplementary pension rights, OJ L 128, 30.4.2014, p. 1. 
 
110 The European legislators also adopted a Directive on measures facilitating the exercise of rights 
conferred on workers in the context of freedom of movement of workers363. This Directive, in its 
Article 3, imposes a legal obligation on Member  States to provide the Union workers with 
appropriate means of redress at national level. It  also relates to the enforcement and defence of 
rights, which in itself concerns a fundamental right. The Charter of Fundamental Rights of the 
European Union confirms the right to an effect ive remedy for everyone whose rights and freedoms 
guaranteed by the law of the European Union are vi olated or not respected. The directive covers 
both judicial and extra-judicial means of redress, including alternative dispute settlement 
mechanisms such as conciliation and mediation.  Ombudsmen and equality bodies or other similar 
structures may also provide an alternative to the ge neral courts. In accordance with Article 47 of the 
Charter of Fundamental Rights of the European Union this Article provides that, in case where 
Member States only provide for administrative proc edures, they shall ensure that any administrative 
decision may be challenged before a tribunal.364  
Policy On 8 October 2014 the European Commission organised a workshop on Inclusion of Mobile EU 
Citizens , aimed at encouraging an effective use of EU funding to promote reception and social 
inclusion policies for incoming mob ile EU citizens, as well as to pr omote intra EU mobility and best 
practices and partnerships among cities. 
Case law One important judgment involving the freedom of  movement was rendered by the CJEU on 11 
November 2014 in the Dano
365 case. As already discussed under Article 20, this case concerned a 
national of one Member State who had applied for basic welfare benefits in another Member State 
for herself and her son. The Court ruled that in order to access certain social security benefits 
nationals of other Member States could claim equal treatment with nationals of the host Member State only if their residence complied with the condi tions laid down in the Free Movement of Persons 
Directive
366.  
Freedom of movement was also at the centre of the Reyes  case,367 which revolved around the 
interpretation of the word "dependant" in the co ntext of the Free Movement of Persons Directive368. 
                                                            
363 Directive 2014/54/EU of the European Parliament and of the Council of 16 April 2014 on measures 
facilitating the exercise of rights co nferred on workers in the context of freedom of movement for workers, OJ 
L 128, 30.4.2014, p. 8. 
364 See also Article 47. 
365 CJEU judgment of 11 November 2014 in Case C-333/13 Dano , see also Articles 20 and 51. 
366 Directive 2004/38/EC of the European Parliament and of  the Council of 29 April 2004 on the right of citizens 
of the Union and their family members to move and resi de freely within the territory of the Member States 
amending Regulation (EEC) No 1612/68 and repealing Directives 64/221/EEC, 68/360/EEC, 72/194/EEC, 73/148/EEC, 75/34/EEC, 75/35/EEC, 90/364/EEC, 90/365/EEC and 93/96/EEC, OJ L 158, 30.4.2004, p. 77. 
367 CJEU judgment of 16 January 2014, Case C-423/12 Reyes , see also above Article 7. 
368 Directive 2004/38/EC of the European Parliament and of  the Council of 29 April 2004 on the right of citizens 
of the Union and their family members to move and resi de freely within the territory of the Member States 
amending Regulation (EEC) No 1612/68 and repealing Directives 64/221/EEC, 68/360/EEC, 72/194/EEC, 73/148/EEC, 75/34/EEC, 75/35/EEC, 90/364/EEC, 90/365/EEC and 93/96/EEC, OJ L 158, 30.4.2004, p. 77. 
 
111 Here the CJEU decided that the right to family reunification with a dependant direct descendant who 
is 21 years old or older, does not depend on the descendant having tried unsuccessfully to obtain 
employment or to obtain subsistence support from the authorities of his country of origin and/or 
otherwise to support him- or herself.369 
Application by Member States The European Commission's action to promote th e freedom of movement resulted in several 
changes to national legislation. In Sweden , holders of Swedish identity cards were prevented from 
travelling to an EU country outside the Schengen ar ea on the basis of this document. Following the 
Commission's intervention, amendments to the law are foreseen to enable Swedes to leave the 
country with only their national ID card. In Belgium , a modifying law was adopted on 19 March 2014 
to better recognise the rights of family members a nd notably those of durable partners, as well as 
with respect to the right of residence of EU citizens and their family members. 
The European Commission furthermore identified the need to help EU Member States take action 
against marriages of convenience between EU citize ns and non-EU nationals in the context of EU 
legislation on free movement, which frames Article 45 of the Charter and therefore prevents abuse. 
Working in close cooperation with Member St ates, the European Commission published, on 26 
September 2014, a handbook on marriages of convenience
370 in order to help national authorities 
effectively tackle marriages of convenience, while  safeguarding the right of EU citizens to free 
movement as guaranteed by the Charter. 
 
Article 46 – Diplomatic an d consular protection 
Article 46 of the Charter guarantees the right of unrepresented EU citizens to seek diplomatic or 
consular protection from embassies or consulates  of other Member States in third countries under 
the same conditions as nationals. EU citizens must be able to rely effectively on this right when travelling abroad. 
Legislation 
The European Commission has proposed a Directive on consular protection for citizens of the Union 
abroad
371 in a bid to clarify and streamline implementation of EU citizens' right to receive equal 
protection. During 2014, progress has been made at both European Parliament and Council.  
 
                                                            
369 See also above under Article 7. 
370 Available at: http://ec.europa.e u/justice/citizen/files/swd_2014_28 4_en.pdf , see also Article 9. 
371 Proposal for a Council Directive on consular protec tion for citizens of the Union abroad, COM(2011) 881 
final, available at: http://ec.europa.eu/justice/citize n/files/consular-protection_en.pdf  . 
 
112 Titl e VI 
Justice 
The adopted Directive on the European Investigation Order  in criminal matters includes several 
procedural safeguards including specific grounds of refusal in case of violation of fundamental rights 
or remedies. 
During 2014 negotiations on the Procedural rights package  advanced. It consists of three Directives; 
one on the presumption of innocence and the right to  be present at trial; one on special safeguards 
for children in criminal proceedings; and one on prov isional legal aid and legal aid in European Arrest 
Warrant proceedings. 
To better protect and to reinforce the integrity of  the EU's financial markets, a Directive and a 
Regulation on Market abuse were adopted in 2014. Th e Directive clarifies that in the application of 
national law transposition measures, Member States should ensure that the imposition of criminal 
sanctions for offences does not lead to a breach of the principle of the ne bis in idem  principle . 
In the area of disbursement of EU funds , the Court of Justice ruled on the applicability and scope of 
Article 47 of the Charter. The Court ruled that the adoption of the programme manual by the 
monitoring committee within the disbursement pr ocedure had to be regarded as a measure 
implementing EU law within the meaning of Article 51(1) of the Charter and that the lack of any 
remedy against the decision refusing funding for a project did not comply with the principle of 
effective judicial protection laid down in Article 47(1) of the Charter. 
 
 
113 Article 47 – Right to an effectiv e remedy and to a fair trial 
Article 47 of the Charter provides that when EU rule s give a right to a person, he or she has the right 
to an effective remedy before a tribunal in case this right is violated. This protection is called right to 
an effective remedy , because it provides to individuals a lega l solution decided by a tribunal when an 
authority applied EU law in an incorrect way. The right to an effective remedy guarantees judicial 
protection against violations of an y EU rule which grants rights to people. It therefore plays a key role 
in ensuring the effectiveness of all EU provisions, ranging from social policy, to asylum legislation, 
competition, agriculture, etc.  
Closely related to the right to an effective remedy is  the provision, also guaranteed by Article 47, that 
legal aid  shall be made available to those who lack sufficient resources, in so far as such aid is 
necessary to ensure effective access to justice. This means that the right to effective access to justice 
cannot be hampered by the fact that a pe rson cannot afford to take a lawyer. 
Article 47 of the Charter does not only provide a right  to an effective remedy, but it also stipulates 
that, in all judicial proceedings which relate to the interpretation or the validity of EU rules, everyone 
shall have the right to a fair trial . This right encompasses the right to  a fair and public hearing, the 
right to have one’s case adjudicated within a reasonable time, the principles of independence and 
impartiality of the tribunal as well as the right  to be advised, defended and represented. 
Legislation During the negations of the Directive on the European Investig ation Order in criminal matters
372 
stemming from a Member States' initiative between the Council and the European Parliament, the European Commission strongly supported the effort s of the European Parliament to strengthen 
defence rights. As a result, the Directive includes several procedural safeguards including specific 
grounds of refusal in case of violation of fundamental rights or remedies. 
The European Commission also undertakes actions to  assist the Member States in the process of 
correct and timely implementation and application of the Directive on Victims' Rights
373. The 
Directive contains, among others, a number of provisions aimed at ensuring that victims of crime are 
granted individual rights aimed at ensuring their acce ss to justice and full participation in criminal 
proceedings. In order to ensure effective implemen tation of the provisions of the Directive, the 
European Commission's Directorate General for Justice and Consumers has issued a Guidance 
document related to the transposition and implem entation of the Directive in December 2013.  
On 11 June 2014, the European Commission has proposed measures to further safeguard 
procedural guarantees in OLAF investigations374, in order to complete the reform of the EU's anti-
fraud office implemented in 2012 and 2013. The propos al foresees the creation of a new Controller 
                                                            
372 Directive 2014/41/EU of the European Parliament and of the Council of 3 April 20 14 regarding the European 
Investigation Order in criminal matters. OJ L 130, 1.5.2014, p. 1. 
373 Directive 2012/29/EU of the Euro pean Parliament and of the Council of 25 October 2012 establishing 
minimum standards on the rights, support and protection of victims of crime, and replacing Council Framework 
Decision 2001/220/JHA, OJ L315, 14.11.2012, p.57. 
374 Proposal for a Regulation of the European Parliament ant of the Council amending Regulation (EU, Euratom) 
No 883/2013 as regards the establishment of a Contro ller of procedural guarante es (COM/2014/0340 final), 
available at: http://eur-lex.europa.eu /legal-content/EN/ALL/?uri=CELEX:52014PC0340  . 
 
114 of Procedural Guarantees tasked with reviewing and providing recommendations on complaints that 
might be lodged by a person subject of an OLAF  investigation. Second, OLAF will have to get 
authorisation from the Controller before inspecting  the offices of members of EU institutions, or 
taking any documents or data from these offices. Th e proposal is another step to ensure that OLAF 
can continue to work efficiently and independently in protecting EU financial interests, while also 
guaranteeing the effective protection of fundamental rights.  
Finally Directive 2014/54/EU on measures facilitating the exercise of rights conferred on workers in 
the context of freedom of movement of workers needs to be mentioned in this context. This 
Directive, as adopted in 2014 by the European legislator, imposes a legal obligation on Member 
States to provide the Union workers with approp riate means of redress at national level. The 
directive covers both judicial and extra-judicial  means of redress, including alternative dispute 
settlement mechanisms such as co nciliation and mediation. In accordance with Article 47 of the 
Charter of Fundamental Rights of the European Union this Article provides that, in case where Member States only provide for administrative proc edures, they shall ensure that any administrative 
decision may be challenged before a tribunal.
375  
Policy FRA started working on a Handbook on access to justice : the Handbook will be produced in 
partnership with the European Commission for the Efficiency of Justice (CEPEJ) and the European 
Court of Human Rights, and will highlight and summ arise the key European legal and jurisprudential 
principles in the area of access to justice. 
The right to an effective remedy was furthermor e subject of the Communication of 3 April 2014 on 
guidance for application of the Directive on the right to family reunification
376 (henceforth 
"guidelines"). These guidelines clarify in their ge neral introduction that the Directive must be 
interpreted and applied in accordance with fundam ental rights. This concerns, amongst others also 
the right to an effective remedy, as enshrined in the European Convention of Human Rights and the 
EU Charter of Fundamental Rights. The guidelines cl arify that the Directive’s redress provision must 
be applied in conformity with the right to an effect ive remedy before a tribunal, as set out in Article 
47 of the Charter and the CJEU’s case law in this matter. 377 The Directive explicitly envisages the right 
to legally challenge four possible types of decisions under the Directive (the rejection of an 
application for family reunification, the refusal to renew a residence permit, the withdrawal of a residence permit, and the order of removal from the territory of a MS). However, the guidelines now 
state that effective remedies must also be granted with regard to any other decisions, for instance, 
decisions concerning the restriction of the right to employment or the refusal to grant an 
independent residence title, since Article 47 applie s to all rights provided for in the Directive 
including. Furthermore, full judicial review must be available concerning meri ts and legality, and that 
quasi-judicial or administrative review may not be adequate to meet the benchmark of Article 47 of 
the Charter.  
Case law 
                                                           
 
375 See also Article 45. 
376 Communication on Directive 2003/86/EC (C OM(2014) 210 final), see also Article 7. 
377 Communication on Directive 2003/86/EC (COM(2014) 210 final), Article 18. 
 
115 The CJEU has ruled in a number of cases378 that the Council of the EU and the European Commission 
need to respect the fundamental rights (in particular the right to be heard, right to effective judicial 
review and right to property) of the individuals and entities subject to restrictive measures  against 
persons and entities associated with Usama bin Laden, the Al-Qaeda network and the Taliban. When giving effect to UN Security Council Resolutions, the EU needs in particular to ensure that the reasons 
provided by the United Nations (or Member Stat es in case of autonomous EU sanctions) are 
sufficiently detailed to allow the effective exercise of the right of defence.
379  
An Austrian Administrative Court lodged a request for a preliminary ruling to the CJEU in a case that 
concerns the interaction between the transparency  principle under the ‘Environmental Information 
Directive’ 2003/4/EC and the right to a fair trial as stipulated in Article 47 of the EU Charter of 
Fundamental Rights. In its order380 t h e  C J E U  h e l d  t h a t  M e m b e r  S t ates are required to respect the 
Charter when they implement the Environmental Information Directive and that an interpretation 
that would authorise Member States to adopt measures that are incompatible with Article 47 of the Charter would not be accepted.  
In case A v B and Others  
381 concerning the interpretation of the Brussels I Regulation382 the CJEU, 
concluded that Article 24 of the Regulation read in the light of Article 47 of the Charter, must be 
interpreted as meaning that, if a national court appo ints, in accordance with national legislation, a 
representative in absentia for a defendant upon whom the documents instituting proceedings have 
not been served because his place of domicile is not known, the appearance entered by that 
representative does not amount to an appearance  being entered by that defendant for the purposes 
of Article 24 of that Regulation. 
In its judgment in Mahdi383 the CJEU decided on the question of judicial supervision of prolonged 
detentions .384 It ruled, in particular, that Directive 2008/115/EC on common standards and 
procedures in Member States for returnin g illegally staying third-country nationals , read in the light 
of Articles 6 and 47 of the Charter, must be interpreted as meaning that any decision adopted by a 
competent authority, on expiry of the maximum pe riod allowed for the initial detention of a third-
country national, on the further course to take concerning the detention must be in the form of a 
written measure that includes the reasons in fact and in law for that decision. 
In the area of disbursement of EU funds , the Court of Justice ruled on the applicability and scope of 
Article 47 of the Charter in relation to national rules providing for an absolute ban on judicial review of a decision refusing funding for a project, which was made by the monitoring committee of a cross-
border cooperation programme.
385 The request for a preliminary ruling was made in proceedings 
between an association of cattle breeders a nd the Monitoring Committee of the Estonia-Latvia 
                                                            
378 See in particular CJEU judgment of 21 March 2014 in Case T-306/10 Yusef v Commission.  
379 The cases are presented under Article 41. 
380 CJEU order of 8 May 2014 in Case C-329/13 Stefan.  
381 CJEU judgment of 11 September 2014 in Case C-112/13 A v B and Others . 
382 Council Regulation (EC) No 44/2001 of 22 Decemb er 2000 on jurisdiction  and the recognition and 
enforcement of judgments in civil and co mmercial matters, OJ L12,16.1.2001,p.1. 
383 CJEU judgment of 5 June 2014 in Case C-146/14 PPU Mahdi.  
384 See also Article 6. 
385 CJEU judgment of 17 September 2014 in Case C-562/12 Liivimaa Lihaveis MTÜ v Eesti-Läti programmi 2007-
2013 Seirekomitee. 
 
116 Programme for 2007 to 2013, concerning the latter’s re jection of an application for subsidies made 
by that association in the context of the implementation of the European Regional Development 
Fund (ERDF). The Court ruled that the adoption of the programme manual by the monitoring 
committee had to be regarded as a measure implementing EU law within the meaning of Article 51(1) of the Charter and that the lack of any remedy against the decision refusing funding for a 
project did not comply with the principle of effective judicial protection laid down in Article 47(1) of 
the Charter. 
In the field consumer protection and unfair cont ract terms in mortgage enforcement proceedings, 
the CJEU, in the Sánchez Morcillo and Abril García  case
386, concluded that article 47 and the 
requirement to respect the principle of equality of arms, must be interpreted as precluding a system 
of enforcement whereby a creditor seeking enforcement of a mortgage claim, may bring an appeal 
against a decision terminating the proceedings while the debtor in the same proceeding, would not 
be able to appeal against a decision dismissing his objection to that enforcement. 
The CJEU also ruled on a number of cases concer ning the excessive duration of proceedings before 
the General Court.387 
Finally, the European Court of Human Rights found in Dhahbi v. Italy  a violation of the right to a fair 
trial as enshrined in Article 6 § 1 of the Conventi on because the Italian Court of Cassation did not 
provide reasons to its refusal to refer a prelimin ary ruling to the Court of Justice in order to 
determine whether the Euro-Mediterranean Agreement allowed the national authorities to refuse to 
pay the allowance in question to a Tunisian worker388. The Court noted that the Italian court, whose 
decisions were not open to appeal under domestic law, had failed to comply with their obligation to 
give reasons for refusing to submit a prelim inary question to the Court of Justice on the 
interpretation of relevant provisions of EU law, in line with the applicable law and the exceptions laid 
down in CJEU case-law.  
Application by Member States Infringement proceedings were also launched against a Member State for deficiencies in the 
implementation of the Reception Conditions Directive
389 and the Asylum Procedures Directive390. The 
concerns raised by the Commission included the durat ion of the asylum procedure, the effectiveness 
of remedies against negative asylum decisions, the lack of effective free legal assistance, the 
detention of certain categories of asylum seekers,  which appears to be applied automatically without 
an individualised assessment, and the right to an effective remedy against a detention decision as 
well as free legal assistance in detention.391 
                                                            
386 CJEU judgment of 17 July 2014 in Case C-169/14 Sánchez Morcillo and Abril García , see also under Article 38. 
387 CJEU judgment of 30 April 2014 in Case C-238/12 P FL Smidth v Commission , judgment of 12 November 2014 
in case C-580/12  P Guardian v Commission , and CJEU judgment of 12 July 2014 in Case C-578/11 P Deltafina.  
388 ECtHR judgment of 8 April 2014 in Case Dhahbi v. Italy  (no. 17120/09). 
389 Council Directive 2003/9/EC of 27 January 2003 laying  down minimum standards for the reception of asylum 
seekers OJ L 31, 6.2.2003, p. 18. 
390 Council Directive 2005/85/EC of 1 December 2005 on minimum standards on procedures in Member States 
for granting and withdrawing refugee st atus OJ L 326, 13.12.2005, p. 13. 
391 See also Articles 6 and 18. 
 
117 As indicated in the 2013 Charter Report, letters of Fo rmal Notice were sent to several Member States 
in 2013 in the context of nati onal implementation of the Visa Code392 and in particular as concerns 
the right to appeal against a visa refusal/annulme nt/revocation. Reasoned opinions on this matter 
were subsequently addressed to the Czech Republic, Estonia, Slovakia, Poland and Finland in 2014.  
The European Commission also inquired with the It alian authorities on the compatibility of their 
legislation regulating compulsory mediation proceedings , provided for under Article 5(2) of the EU 
Directive on civil and commercial mediation393 read in light with Article 47 of the Charter. More in 
particular it was questioned whether the Italia n legislation regulating compulsory mediation 
proceedings is compatible with relevant provisions  o f  E U  l a w ,  i n s o f a r  a s  t h e  a p p a r e n t  l a c k  o f  
availability of legal aid could hamper the right to access to justice. 
Finally, the European Commission started an inquiry with Italian authorities on the compatibility of 
their legislation implementing EU provisions on free movement of workers with regards to Italian 
lecturers , as interpreted by the Court of Justice394, with Article 47 of the Charter. The issue concerns, 
in particular, the closing of all cases pending before national courts concerning the economic 
treatment of the lecturers, provided for in national law395, and the alleged detrimental effects that 
the application of such provisions would produce on the parties in the proceedings. 
Text Box Example 
Ruling of the Supreme Court of the Republic of Croatia 
A ruling396 by the Supreme Court of the Republic of Croatia concerning the right to appeal in the field 
of judicial cooperation in criminal matters illustra tes how the Charter was used to interpret national 
laws and which resulted in providing fundamental rights aspects in the reading of certain national 
provisions. In this case the appeal of the wife of a murder victim against the decision not to 
surrender to German prosecuting authorities the su spect of this crime was dismissed by Croatian 
authorities. The Croatian Supreme Court held that  although the Judicial Cooperation in Criminal 
Matters with the EU Member States Act only provides the right to appeal the decision on surrender 
to the state attorney and the person whose surre nder is requested and not to the victims of the 
crime, legislation should be interpreted in light of the human rights standards, including the rights 
guaranteed by the Charter. The Court particularly refe rred to the rights to a fair trial and to effective 
legal remedy as protected by Article 47 of the Charter and allowed the appeal. 
 
                                                            
392 Regulation (EC) No 810/20 09 of the European Parliament and of th e Council of 13 July 2009 establishing a 
Community Code on Visas (Visa Code) OJ L 243, 15.9.2009, p. 1. 
393 Directive 2008/52/EC of the European Parliament and of the Council of 21 May 2008 on certain aspects of 
mediation in civil and commercial matte rs OJ L 136, 24.5.2008, p. 3. 
394 See CJEU, judgment of 26 June 2001 in Case C-212/99 Commission v Italy  and judgment of 18 July 2006 in 
Case C-119/04 Commission v Italy.  
395 Article 26(3) of law n. 240 of 30 December 2010 
396 Supreme Court of the Republic of Croatia (Vrhovni sud Republike Hrvatske), ca se VSRH Kž eun5/2014-4, 
6.3.2014, available at: www.iusinfo.com  (only to subscribers). 
 
118 Article 48 – Presumption of i nnocence and right of defence 
Article 48 of the Charter provides that everyone who has been charged shall be presumed innocent 
until proven guilty according to the law. It further specifies that respect for the right to defence of 
anyone who has been charged shall be guaranteed. 
Legislation During 2014 negotiations on the Procedural rights package  advanced with the co-legislator
397. The 
package consists of three Directives; one on th e presumption of innocence and the right to be 
present at trial; one on special safeguards for children in criminal proceedings; and one on provisional legal aid and legal aid in European A rrest Warrant proceedings. It also includes two 
Commission recommendations on special safeguards fo r vulnerable suspects in criminal proceedings 
and on legal aid in criminal proceedings.  
In terms of implementation, the European Commission observed the speedy and effective 
transposition by the Member States of the 2010 Directive on the right to interpretation and 
translation, the 2012 Directive on the right to info rmation and on the 2013 Directive on the right of 
access to a lawyer. 
A new Directive
398 modernising the 2005 Professional Qualifications Directive  entered into force on 
18 January 2014. The Directive take s into account the pres umption of innocence and right of defence 
by the provisions on an alert mechanism, exch ange of information on sanctions and right of 
appeal.399  
Policy The European Commission continues to  provide financial support for the training of legal 
practitioners  on fundamental rights, following the ambitious target set in 2011 for expanding 
training for legal practitioners on how to apply EU law. In 2014 almost 8 % of the training activities 
followed by legal practitioners on EU law or of the law of another Member State dealt mainly or 
exclusively with fundamental rights and over 9 % of all legal practitioners whose training on EU law 
or law of another Member State received EU financial support have been funded by the programme 
on fundamental rights and citizenship.   
 
Article 49 – Principles of legalit y and proportionality of criminal 
offences and penalties 
Some fundamental rights are guaranteed in absolute  terms and cannot be subject to any restrictions. 
Interferences with other rights may be justified if, subject to the principle of proportionality, they are 
necessary and genuinely serve to meet objectives of general interest recognised by the Union.  
                                                            
397 COM(2013) 821, 822 and 824 of 27 November 2013 and COM(2013) 8178 and 8179 of 27 November 2013. 
398 Directive 2013/55/EU. 
399 See also Articles 8, 15 and 38. 
 
119 This Article follows the traditional rule of the non- retroactivity of laws and criminal sanctions. There 
has been added the rule of the retroactivity of a mo re lenient penal law, which exists in a number of 
Member States and which features in Article 15 of the Covenant on Civil and Political Rights. 
Paragraph 2 refers to crimes against humanity in particular. In accordance with Article 52(3), the 
right guaranteed here therefore has the same meaning and scope as the right guaranteed by the ECHR, which is Article 7 ECHR. 
Paragraph 3 states the general principle of propor tionality between penalties and criminal offences 
which is enshrined in the common constitutional trad itions of the Member States and in the case-law 
of the CJEU. 
Case law In Case T-519/09, Toshiba Corp v European Commission ,
400 the applicant requested the annulment 
of a Commission Decision of 7 October 2009 relating  to a proceeding under Article 81 EC and Article 
53 of the EEA Agreement, asking the Court if the methodology set out in paragraph 18 of the Guidelines on the method of setting fines is co nsistent with Article 23(3) of Regulation No 1/2003 
and is not contrary to Article 49(3) of the Charter,  which contains the requirement that the severity 
of penalties must not be disproportionate to the criminal offence.  
The market at issue in the present case is that of power transformers, auto transformers and shunt 
reactors with a voltage range of 380 kV and ab ove. A power transformer is a major electrical 
component the function of which is to reduce or in crease the voltage in an electrical circuit. The 
transformers are sold as stand-alone equipment or as part of turnkey power substations. The 
applicant, Toshiba Corp., is a Japanese company which is primarily active in three key domains: 
digital products, electronic devices and components and infrastructure systems. 
On 7 October 2009, the European Commission adopte d its decision relating to a proceeding under 
Article 81 EC and Article 53 of the EEA Agreemen t (Case COMP/39.129 — Power Transformers) (‘the 
contested decision’), in which it found that the applicant had infringed Article 81 EC and Article 53 of 
the Agreement on the European Economic Area (EEA ) and imposed on it a fine of EUR 13.2 million.  
The applicant contested the proportionality and the appropriateness of the method provided for in 
paragraph 18 of the 2006 Guidelines on the method of setting fines. Accordin g to the applicant, the 
Commission should take into consid eration the actual impact of the infringement when establishing 
the amount of the fine. The applicant contended th at the methodology provided for in point 18 of 
the Guidelines is excessively ab stract and therefore contrary to Article 49 of the Charter. 
First of all, the Court considered that, in the pr esent case, since the applicant participated in a 
market-sharing agreement designed to restrict access by Japanese producers to the EEA, the 
Commission rightly held that it would not be appr opriate to apply a methodology which is based on 
its actual sales in the EEA. The Court also considered that, in the light of the nature of the 
infringement in question, a methodology which take s into account the worldwide market shares is 
appropriate for reflecting the weight of the infringement.  
                                                           
 
400 CJEU judgment of 21 May 2014 in Case T-519/09, Toshiba Corp v European Commission.  
 
120 Having regard to the extremely harmful nature of  a market-sharing agreement, one of the most 
serious infringements of Article 81 EC, the imposition of sufficiently dissuasive penalties against non-
European producers which undertake not to compete with European producers in their territory is 
justified. The Court underlined that the methodology set out in paragraph 18 of the 2006 Guidelines is not a mere presumption. The worldwide market shares give the best adapted representation of 
the capacity of those undertakings to cause signifi cant damage to other operators in the European 
market and give an indication of their contribution to the effectiveness of the cartel as a whole or, 
conversely, of the instability which would have affected the cartel had they not participated .The 
Court thus concluded that the methodology set out in paragraph 18 of the Gu idelines is consistent 
with Article 23(3) of Regulation No 1/2003 and is not contrary to Article 49(3) of the Charter of 
Fundamental Rights. 
 
Article 50 – Right not to be trie d or punished twice in criminal 
proceedings for the same criminal offence  
The ne bis in idem  principle is one of the cornerstones of criminal law and is based on the principle 
that no one shall be held liable to be tried or punished again in criminal proceedings for an offence 
for which he or she has already been finally acquitte d or convicted. Article 50 provides that criminal 
laws should respect this. 
Legislation 
To better protect and to reinforce the in tegrity of the EU's financial markets, a Directive and a 
Regulation on Market Abuse  were adopted in 2014401. The Directive provides for minimum criminal 
sanctions for insider dealing and market manipulat ions while the Regulation allows regulators to 
impose administrative sanctions and other administ rative measures in cases where someone tries to 
insider deal or manipulate the market. An ex emption from the obligation to provide for 
administrative sanctions has been agreed in th e scope of the Market Abuse Regulation: Member 
States may decide, in accordance with Article 26 Ma rket Abuse Regulation, not to lay down rules for 
administrative sanctions where those breaches are already subject to criminal sanctions in their 
national law by 24 months after the entry into force of the regulation. The Directive clarifies that in 
the application of national law transposition me asures, Member States should ensure that the 
imposition of criminal sanctions for offences and of  administrative sanctions do not lead to a breach 
of the principle of ne bis in idem  principle. 
Case Law In Grande Stevens and Others v Italy  
402, the ECtHR delivered a judgment concerning administrative 
and criminal proceedings  against persons responsible for market manipulation. In this case the 
                                                            
401 Directive 2014/57/EU of the European Parliament and of  the Council of 16 April 20 14 on criminal sanctions 
for market abuse (market abuse directive) OJ L 173, 12.6.2014, p. 179–189 and Regulation (EU) No 596/2014 of 
the European Parliament and of the Council of 16 April 2014 on market abuse (market abuse regulation) and 
repealing Directive 2003/6/EC of the European Parliament and of the Council and Commission Directives 
2003/124/EC, 2003/125/EC and 2004/72/EC Text with EEA relevance OJ L 173, 12.6.2014, p. 1.  
402 ECtHR Judgment in Case Grande Stevens and Others v Italy  (nos. 18640/10, 18647/10, 18663/10, 18668/10 
and 18698/10). 
 
121 ECtHR observed that the prohibition on disseminating  false or misleading information with regard to 
financial instruments was intended to guarantee the integrity of the financial markets and to 
maintain public confidence in the security of transactions, which undeniably amounted to an aim 
that was in the public interest. Accordingly, the fines imposed on the applicants, while severe, did 
not appear disproportionate in view of the conduc t with which they had been charged. However, the 
subsequent criminal proceedings against the applic ants concerned offences involving identical facts 
to those for which they had been finally convicted,  breaching Article 4 of Protocol 7, and ought to 
consequently be closed as rapidly as possible. 
 
 
 
 
 
122 Dignity
6%
Freedoms
24%Equality
54%Solidarity
4%
Justice
8%Other
4%Right to an effective 
remedy and fair trial:
1.83%Functioning of judicial 
systems 3%
Access to Justice 0%
EU Arrest Warrant
1%
Presumption of innocence 
and right of defence 0.31%Victims' rights
1.22%Questions (Justice)
 
 
Source: European Commission  
 
123 Titl e VII 
General provisions governing the interpretation and 
application of the Charter 
 
The CJEU has delivered several judgments giving further guidance on the applicability of the Charter . 
In the Dano  case  the court stated that the conditions for receiving social security benefits did not 
result from Union law but directly from that of the Member States. Therefore, the Charter was not 
applicable. 
In the AMS case  the CJEU held that Article 27 of the EU Charter cannot be invoked in a dispute 
between individuals ("horizontal application") in or der not to apply a national provision which is not 
in conformity with the Directive. 
In a landmark case of 2014 ( Digital Rights Ireland ) the CJEU held the EU Data Retention Directive to 
breach Articles 7 and 8 of the Charter and subseque ntly declared it invalid. It did so by carefully 
examining all conditions laid down in Article 52 (1)  of the Charter which may justify the limitation of 
fundamental rights. In the case concerned it found  the limitations to fail the proportionality test. 
Article 51 – Field of application  
The scope of applicability of the Charter is defined in Article 51. It clearly states that it is addressed to 
all EU institutions, bodies, offices and Agencies and to the Member States in so far as the latter are 
implementing EU law. It further clarifies that the Charter cannot extend the field of application of EU 
law or any competences of the EU as defined in the Treaties. 
Case Law The question of applicability arose in  some cases in 2014. In the case of Siragusa
403 the Regional 
Administrative Court in Sicily (Tribunale Amministrativo Regionale per la Sicilia)  lodged a request for 
a preliminary ruling to the CJEU. This case concerne d the interaction between the public interest in 
the protection of the environment and the private ri ght to property as provided for by Article 17 of 
the EU Charter of Fundamental Rights. By judgmen t of 6 March 2014, the CJEU declared itself not 
competent to reply to the preliminary question by th e Italian Court, as the Italian legislation did not 
intend to apply EU law and thus the EU Charter of Fundamental Rights.  
Similarly, the CJEU held the Charter not to be applicable in the Dano404 case. It concerned, in 
particular, the interpretation of EU legislation concerning the coordination of social security systems 
and of the right of citizens of the Union and their family members to move and reside freely within 
the territory of the Member States. In so far as que stions on the interpretation of Articles 1, 20 and 
51 of the Charter were concerned the CJEU refused to  rule on them. It stated  that the conditions for 
                                                            
403 CJEU judgment of 18.4.2013 in case C-206/13 Siragusa . 
404 CJEU judgment of 11.11. 2014 in case C-333/13 Dano ; for further details see also  case descri ption under 
Articles 20 and 45. 
 
124 receiving social security benefits did not result from Union law but directly from that of the Member 
States. Therefore, the Charter was not applicable. 
By contrast the CJEU held the Charter to be applicable in the case of Pfleger.405 The case concerned 
restrictions on the use of gaming machines. The co ncerned Member State, Austria argued that this 
was an entirely internal case without cross-border factors. As a consequence it was claimed that no 
EU law was implemented. However, the Court pointe d to the ownership of the machines by a Czech 
company and the resulting issue of freedom to pr ovide services. It further held that, where a 
Member State relies on overriding requirements in the public interest in orde r to justify rules which 
are liable to obstruct the exercise of the freedom to  provide services, such justification, provided for 
by EU law, must be interpreted in the light of th e general principles of EU law, in particular the 
fundamental rights henceforth guaranteed by the Ch arter. Thus the CJEU ruled that the national 
rules in question could fall under the exceptions prov ided for only if they were compatible with the 
fundamental rights of the Charter. Therefore the use by a Member State of exceptions provided for by EU law in order to justify an obstruction of a fundamental freedom guaranteed by the Treaty had 
to be regarded, as ‘implementing Union law’ with in the meaning of Article 51(1) of the Charter. 
The CJEU also confirmed that Member States are under an obligation to respect the Charter, 
whenever they implement Union law, including when disbursing Union funds. In the case Liivimaa 
Lihaveis MTÜ  
406 the Court held that the Member States implement Union law whenever "EU law 
required the […] Member States involved in [an] operational programme to implement that 
programme".407 Whenever a Member State adopts legislatio n, or any other (guidance) document of a 
non-legislative nature, such as a programme manual, and whenever its adoption is required by EU 
law, the Member State is implementing Union law. In the above case, the programme manual 
excluded the possibility of judicial review of decisions by the monitoring committee rejecting a 
subsidy. The CJEU held this to infringe the right to  an effective remedy as enshrined in Article 47 of 
the Charter. 
The question of the Charter's applicab ility was also raised in the case AMS v CGT  .408 Here the CJEU 
held that Article 27 of the EU Charter , alone or in conjunction with  Directive 2002/14 (information 
and consultation of workers), cannot be invoked in a dispute between individuals ("horizontal 
application")  in order not to apply a national provis ion which is not in conformity with the 
Directive.409 While Article 27 is applicable in the case at issue, the Court observed that Article 27 
must be given more specific expression by provisions  of EU law or national law to be fully effective. 
The Court also declared that trade unions cannot re ly on the provisions of Directive 2002/14 as such 
against the private employer, AMS, since these prov isions do not have hori zontal direct effect. 
As regards rights and principles of the Charter the CJEU in the case Glatzel410 emphasised that by 
virtue of the second sentence of Article 51(1) of the Charter, the EU legislature is to observe and 
                                                            
405 CJEU judgment of 30.4.2014 in case C-390/12 Pfleger and Others.  
406 CJEU judgment of 12.9.2014 in Case C-562/12 Liivimaa Lihaveis MT Ü. 
407 Ibid., at para 63. 
408 CJEU, judgment of 15.1.2014 in case C-176/12, Association de médiation sociale (AMS) v Union locale des 
syndicats CGT  (Grand Chamber). 
409 See also above under Articles 20 and 27. 
410 CJEU, judgment of 2.5.2014, case C ‑356/12, Wolfgang Glatzel v. Freistaat Bayern , see also above under 
Article 26. 
 
125 promote the application of the principles laid down in  it. In the concrete case it referred particularly 
to the principle of the integration of persons with disabilities according to Article 26 of the Charter. 
The latter states that the Union is to recognise a nd respect the right of persons with disabilities to 
benefit from measures designed to ensure their in dependence, social and occupational integration 
and participation in the life of the community. 
 
Article 52 – Scope and interpretati on of rights and principles 
Article 52 lays down main general provisions on the scope and interpretation of rights and principles. 
In its first paragraph it defines the strict conditions under which the rights of the Charter can be 
limited. It also explains the relation of the Charter to the ECHR aiming at the highest level of fundamental rights protection possible (paragraph 3). It  also clarifies that the principles named in the 
Charter may be implemented by the EU institutions  in their legislative and executive acts – and 
similarly by the Member States where they implem ent EU law (paragraph 5). Yet they can only be 
invoked in court in view of the interpretation of such acts. This means that these principles do not 
confer subjective rights on the individual. 
It is thus important to distinguish whether a certain Charter article contains concrete rights, or rather 
principles. This is not always clea r from the wording of the article itself. Guidance on the nature of 
the different Charter articles can be found in the explanatory memorandum to the Charter. This 
explanatory memorandum explicitly lists Article 25 (the rights of the elderly), Article 26 (integration of persons with disabilities) and Article 37 (env ironmental protection) as examples of Charter 
provisions which contain principles, as opposed to subjective rights. It also explicitly mentions under 
Article 34 (1) (social security and social assistance), Article 35 (health care), Article 36 (access to services of general economic interest) and Article 38 (consumer protection) th at the articles set out 
principles, not rights. 
Regarding the difference between rights and prin ciples, the explanatory memorandum points out 
that subjective rights shall be respected, whereas principles shall be observed (Article 51(1) of the 
charter). Principles may be implemented through legi slative or executive acts (adopted by the Union 
in accordance with its powers, and by the Member  States only when they implement Union law); 
accordingly, they become significant for the Courts only when such acts are interpreted or reviewed. 
They do not however give rise to direct claims fo r positive action by the Union's institutions or 
Member States authorities. This is consistent  both with case-law of the Court of Justice
411 and with 
the approach of the Member States' constitutional sy stems to ‘principles’, particularly in the field of 
social law.  
The explanatory memorandum also lists examples of articles which contain both elements of a right 
and of a principle, such as Article 23 (equality between women and men), 33 (family and professional life) and 34 (social security  and social assistance). 
                                                           
 
411 Cf. notably case-law on the ‘precautionary principle’ in  Article 191(2) of the Treaty on the Functioning of the 
European Union: judgment of the CFI of 11 September 2002, Case T-13/99 Pfizer v Council , with numerous 
references to earlier case-law; and a series of judgments on Article 33 (ex-39) on the principles of agricultural 
law, e.g. judgment of the Cour t of Justice in Case 265/85 Van den Berg [1987] ECR 1155: scrutiny of the 
principle of market stabilisation and of reasonable expectations. 
 
126 The discussion on the summa divisio  between rights and principles versus the general principles of 
EU law recognised by the case law of the CJEU was prominently present in the AMS  case.412 In his 
Opinion, Advocate General Cruz Villalon elaborates extensively on the status of a fundamental right 
in the Charter as a ‘principle’, and on the question  whether the national court is to refrain from 
applying national provisions contrary to acts wh ich directly specify the substantive content of a 
‘principle’. The main issue at stake in the case wa s whether a ‘principle’ may be relied on in a dispute 
between individuals. The case is discussed above under Article 27. 
Case law In one of the most important cases of 2014, the Digital Rights Ireland
413 case, the CJEU, when 
examining the validity of the Data Retention Dire ctive, had undertaken careful assessment of all 
conditions listed in Article 52 (1) for limitations of fundamental rights. It then declared the directive 
invalid, because it disproportionately restricted right s to private life and to the protection of personal 
data as guaranteed by Articles 7 and 8 of the Char ter. The Directive had required Member States to 
ensure that telecommunications service providers reta in traffic and location data of their customers 
for a period between six months and two years and to make these data available, on request, to law 
enforcement authorities for the purposes of invest igating, detecting and prosecuting serious crime 
and terrorism. The Court agreed that the directive met most of the conditions mapped out in Article 52 (1) for a justified limitation of the rights under Articles 7 and 8. It confirmed that the essence of 
the rights were retained, and that the limitations were imposed in order to achieve an objective of a 
general interest recognised by the Union, namely that of fighting terrorism and organised crime. It also agreed. Within the proportionality test (examining appropriateness and necessity of the 
restrictions) the Court went into considerable deta il. It agreed that the measure was an appropriate 
one to achieve the objective of providing enhanced security. However, it obse rved that the Directive 
did not lay down clear and precise rules governing the extent of the interference with the Articles 7 
and 8 of the Charter. Hence the Court took the view that the Directive, whilst entailing a wide-ranging and particularly serious interference with those fundamental rights, did not precisely 
circumscribe such interference by provisions to ensu re that it would be actually limited to what is 
strictly necessary. The judgment also clarified that  specific safeguards for the purpose of protecting 
fundamental rights would have to be expressively included in the secondary legislation and not left 
to the discretion of national law. 
                                                           
 
412 CJEU Judgment (Grand Chamber) of 15 January 2014 in Case C-176/12, Association de médiation sociale 
(AMS) v Union locale des syndicats CGT , see also Article 28 and Article 51. 
413 CJEU judgment of 8.4.2014 in Cases C-293/12 and C-594/12 Digital Rights Ireland and Kärntner 
Landesregierung , see also above under Article 8. 
 
127 Article 53 – Level of protection 
Article 53 ensures that nothing in the Charter will be  interpreted as restricting or adversely affecting 
human rights and fundamental freedoms as reco gnised by Union law, international law and 
international agreements to which the Union or all the Member States are party, including the ECHR. 
Its main aim is thus to provide the minimum stan dard of fundamental right protection allowing for 
wider protection under instruments other th an the Charter where they are applicable. 
This provision is intended to ma intain the level of protection currently afforded within their 
respective scope by Union law, national law and in ternational law. Owing to its importance, mention 
is made of the ECHR. 
 
Article 54 – Prohibition of abuse of rights 
Furthermore Article 54 provides for a safeguard agains t an abuse of the Charter rights. It states that 
nothing in the Charter can be interpreted as implying any right to engage in activities aimed at the 
destruction of rights or freedoms recognised in the Charter or at their limitation beyond its extent as 
envisaged in the Charter.