Introduction

After the entry into force of the EU Charter of Fundamental Rights[1] (the Charter), in December 2009, the European Commission adopted a Strategy on the effective implementation of the Charter[2] setting as an objective that the EU is beyond reproach as regards the respect of fundamental rights, in particular when it legislates. The European Commission further committed 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 2013 and informs the public about situations in which they can rely on the Charter and on the role of the European Union in the field of fundamental rights. In covering the full range of Charter provisions on an annual basis, the 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 the 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 jurisprudence 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 Fundamental Rights in the EU

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

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

The Charter applies to Member States only when they implement EU law. Hence it does not replace national fundamental rights systems but complements them. The factor connecting an alleged violation of the Charter with EU law will depend on the situation in question. For example, a connecting factor exists: when national legislation transposes an EU Directive in a way contrary to fundamental rights, when a public authority applies EU law in a manner contrary to fundamental rights, or when a final decision of a national court applies or interprets EU law in a way contrary to fundamental rights.

If a national authority (administration or court) violates fundamental rights set out in the Charter when implementing EU law, the European Commission can take the matter to the CJEU and start an infringement procedure against the Member State in question. The European Commission is not a judicial body or a court of appeal against the decisions of national or international courts. Nor does it, as a matter of principle, examine the merits of an individual case, except if this is relevant to carry out its task of ensuring that the Member States apply EU law correctly. In particular, if it detects a wider, e.g. structural, problem, the European Commission can contact the national authorities to have it solved, and ultimately it can take a Member State to the CJEU. The objective of these infringement procedures is to ensure that the national law in question - or a practice by national administrations or courts - is aligned with the requirements of EU law.

Where individuals or businesses consider that an act of the EU institutions 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 European Commission cannot pursue complaints which concern matters outside the scope of EU Law. This does not necessarily mean that there has not been a violation of fundamental rights. If a situation does not relate to EU law, it is for the Member States alone to ensure that their obligations regarding fundamental rights are respected. Member States have extensive national rules on fundamental rights, which are guaranteed by national judges and constitutional courts. Accordingly, complaints 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 exhausted all legal remedies available at national level, individuals may bring an action before the European Court of Human Rights in Strasbourg for a violation by a Member State of a right guaranteed by the ECHR. The European Court of Human Rights (ECtHR) has designed an admissibility checklist in order to help potential applicants work out for themselves whether there may be obstacles to their complaints being examined by the ECtHR[3].

The European Convention of Human Rights (ECHR)

Therefore, where the Charter is not applicable in certain situations 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 the ECHR was finalized, which can be considered a milestone in the accession process. As a next step, the European Commission has asked the Court to give its opinion on the draft agreement.

Furthermore, any application of the Charter must comply with the ECHR as interpreted in the case law of the ECtHR. The Charter itself contains an explicit reference to the ECHR in its Articles 52 and 53. Data collected by the EU Fundamental Rights Agency on references made to the Charter in national judgments in two thirds of the cases also show references to the ECHR. Thus, there is a certain degree of parallelism when referring to both the ECHR as well as the Charter in judgments handed down in the Member States.

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

Among the letters from the general public on fundamental rights issues received by the European Commission in 2013, 69 % concerned situations where the Charter could apply. In a number of cases, the European Commission requested information from the Member States concerned or explained to the complainant the applicable EU rules. In other cases, the complaints should in fact have been addressed to the national authorities or to the ECtHR. Where possible, complainants were redirected to other bodies for more information (such as national data protection authorities).

Among the questions from the European Parliament 60 % concerned issues within EU competence whereas among its petitions 55% concerned such issues. In a number of cases, the European Commission contacted the Member States to obtain clarifications on alleged violations. The replies given by the European Commission explained or clarified the relevant policies and on-going initiatives.

Overview of the decisions of the Court 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 114, which is almost a triple of the number of cases of 2011 (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 2013, 41 of the requests submitted contained a reference to the Charter, which is exactly the same number as for 2012 (See Appendix II for an overview of the applications for preliminary rulings submitted in 2013 which refer to the Charter). This is a rise by 65 % as compared to 2011, when only 27 requests submitted contained a reference to the Charter.

References to Charter rights in decisions of the Court of Justice of the European Union and of national courts

When focussing 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 right to good administration. However, the right to property, the right not to be discriminated against, the presumption of innocence and the right of defence, and the right to equality before the law were more often referred to in the jurisprudence of the EU Courts, whereas the right to respect for private and family life and rights of the child played a more important role before national courts.

source: European European Commission

Note: The basis for this pie chart is the case law as referred to in Appendix I. In those cases where reference was made to both a Title VII (general provisions) article and an article contained in Title I-VI, only the latter was taken into account. Those cases which only referred to a Title VII article (C-276/12 Sabou) were not taken into account. The total number of judgments analysed therefore amounted to 113, and the total number of references to different Charter articles amounted to 212, as several judgments referred to more than one article. The percentages were calculated on the basis of these 211 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 2013 were the right to an effective remedy and to a fair trial, the right to good administration, and the right to respect for private and family life. Please note that the chart below only takes into account those decisions were the Charter was referred to in the reasoning of the court.

Source: European Union Agency for Fundamental Rights (FRA)[4]

Note: Only decisions where the Charter was referred to in the reasoning of the courts were taken into account, and only up to 5 judgments per Member State were considered. Just as with the pie-chart on the EU Courts, references to articles in Title VII (general provisions) were not taken into account. 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 Centres (EDCC) confirm that there is a high degree of interest among citizens on justice, citizenship and fundamental rights. In 2013, the EDCC replied to 11974 enquiries from citizens on topics such as free movement of persons (48 % of the total number of enquiries), consumer rights (12%) and judicial cooperation (11%).

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 contributed to the progress made in respecting and promoting fundamental rights in a number of areas during 2013. As a consequence, the Staff Working Document refers to the Charter as a legally 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 measures. 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, irrespective of whether EU law in those national cases was applicable or not.

Some measures and cases may have an impact on different articles of the Charter. Hence, while a measure and/or case are explained in a more detailed manner under one chapter (the heading of one article) it may be referred to under a different one as well.

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

· Legislation:

· Examples of EU institutions (proposed or adopted) legislation promoting the Charter rights;

· Examples of how the EU institutions and the Member States ensured compliance with and have

applied the Charter in 2013 within other (proposed or adopted) legislation;

· Follow-up: infringement procedures launched by the Commission against Member States for

not or wrongly implementing relevant legislation;

· Policies:

· Examples of how the EU institutions and the Member States ensured compliance with and have

applied the Charter in 2013 within policy areas, e.g. through recommendations and guidelines and best practices;

· Case law:

· Relevant jurisprudence of the CJEU;

· Case law of national courts referring to the Charter (be it within or outside the scope of EU

law);

· An overview of questions and petitions from the European Parliament, and letters from the general public received in 2013 focusing on main fundamental rights issues;

· Data gathered by the EU Agency for Fundamental Rights throughout 2013.

1. Dignity

In 2013, The European Commission adopted its first Communication on female genital mutilation demonstrating the commitment of the EU to address effectively one aspect of the issue of gender based violence.

A recast piece of legislation on asylum (determination of Member States responsible for examining applications and reception of applicants) was adopted. It guarantees effective remedies to asylum applicants as regards appeals against transfer decisions in accordance with case law of the CJEU. This ensures that asylum seekers cannot be sent back to a Member State where there is a serious risk of violation of their fundamental rights under the newly agreed rules. It also offers better protection to the most vulnerable asylum seekers, e.g. minors.

The European Commission presented a Proposal for a Regulation establishing rules for the surveillance of the external sea borders in the context of operational cooperation coordinated by Frontex in response to the judgment of the CJEU, European Parliament v. Council of EU (C-355/10). It aims at establishing clear rules for joint patrolling as regards interception, including on the high seas, search and rescue situations which arise during these surveillance operations and disembarkation. It emphasises also the obligation to respect the principle of non-refoulement.

The European Commission adopted the EU Strategy towards the Eradication of Trafficking in Human Beings 2012-2016 in June 2012., One of its actions was the launch of the European Civil Society Platform against Trafficking in Human Beings in 2013 which brought together numerous civil society organisations from the EU MS as well as neighbouring priority countries. The European Commission also established an EU anti-trafficking website. The EU Anti-trafficking Day conference in Vilnius explored the links between Trafficking in Human Beings and the Internet; issues discussed included the problem of online recruitment of victims and facilitation of trafficking in human beings as well as online awareness raising and investigation.

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 its 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.[5] They must equally be respected in order to allow enjoyment of other rights and freedoms in the Charter, for example freedom of expression and freedom of association. None of the rights laid down in the Charter may be used to harm the dignity of another person.

Legislation

Human dignity issues arose in a few instances in 2013. Thus, the European Commission took the right to human dignity into account when preparing a legislative proposal[6] for amendment of Regulation 1236/2005 concerning trade in certain goods which could be used for capital punishment, torture or other cruel, inhuman or degrading treatment or punishment, notably with a view to improving export controls on certain medicinal products to prevent the use of such products for capital punishment.[7]

Furthermore, when adopting a legislative package (notably Regulations 1141/2011, 1147/2011 and Decision 2011/8042)[8] allowing the use of security scanners at EU airports the European Commission had considered the impact on fundamental rights, namely on human dignity. Subsequently, in 2013, the European Commission received a number of parliamentary written questions and letters from citizens on security scanners and their deployment at the airports of a Member State. The issues raised concerned the policy of not offering passengers alternative control methods ("opt-out") on request, as provided for in the regulation. Thus, the services of the European Commission investigated the compliance of such a policy with EU law. They came to the conclusion that the policy of the Member State in question risks to constitute a breach of EU law. The European Commission informed this Member State of the assessment of their policy requesting it on 8 July 2013 to take corrective action. On 21 November the Member State issued a new measure. This new legal framework offers to passengers the possibility to opt out of being scanned by a security scanner.

Case law

As regards minimum benefits for asylum seekers the CJEU had already decided in 2012[9] that a Member State in receipt of an application for asylum is obliged to grant the minimum conditions for reception of asylum seekers laid down in Directive 2003/9 even to an asylum seeker in respect of whom it decides to call upon another Member State, as the Member State responsible for examining his application for asylum, to take charge of or take back that applicant. Subsequently, on 17 April 2013, the French Conseil d'Etat annulled internal guidelines which until then had excluded such asylum applicants from minimum benefits.

Ruling of the Supreme Court of the Czech Republic[10]

In a case where a patient in a psychiatric hospital was fastened to a toilet for 4 hours and found death after insufficient supervision, the mother of the patient brought proceedings against the hospital claiming among others an infringement of the right to human dignity. The district court held that, even though the way the patient was treated restricted her right to human dignity, it was legitimate. The case went up to the Supreme Court. One of the legal questions raised before the Supreme Court was whether a person with a grave mental disorder can be treated in a less dignified manner than a healthy person. The Supreme Court determined that human dignity is protected by both national and international law, including the Charter of Fundamental Rights. The Supreme Court disagreed with the district court and concluded that the right to human dignity is absolute. The right to human dignity of a mentally disordered person cannot be any different from the protection of this right of any other person. Although the Charter was not directly applicable in this purely internal case it was used by the Supreme Court as point of reference to interpret the notion of human dignity.

Article 3: Right to the integrity of the person

The right to physical and mental integrity of the person (Article 3 (1) of the Charter) on the one hand protects from infringements by public authorities. On the other hand it also puts them under an obligation to promote such protection, e.g. by concrete legislation.

Legislation

In this context attention is drawn to the Directive on combating the sexual abuse and sexual exploitation of children and child pornography.[11] The deadline for the Member States to transpose this directive into national law was on 18 December 2013.

Article 3 (2) (c) of the Charter prohibits making the human body as such a source of financial gain in the fields of medicine and biology. Hence, Article 20 of Directive 2002/98/EC[12] sets out principles governing voluntary and unpaid donation of blood and blood components. It states that Member States shall take the necessary measures to encourage voluntary and unpaid blood donations with a view to ensuring that blood and blood components are as far as possible provided by such donations. In accordance with Article 20 (2) of the Directive, Member States shall submit reports on the practice of voluntary and unpaid blood donation to the European Commission every three years. The European Commission prepared a new survey on the implementation of this principle in the Member States which was launched by the end of 2013.

Policy

The European Commission supports Member States in 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, non-discrimination.[13] In 2013, the European Commission adopted its first Communication on female genital mutilation demonstrating the commitment of the EU to address the issue effectively. It also co-finances national awareness-raising campaigns against gender-based violence.

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. This was in particular taken into account by EU Institutions in 2013 when dealing with provisions that concern border controls immigration and asylum issues.

Legislation

On 12 April 2013, the European Commission presented a Proposal for a Regulation establishing rules for the surveillance of the external sea borders in the context of operational cooperation coordinated by Frontex[14] in response to the judgment of the CJEU in the case of European Parliament v. Council of EU[15]. The aim of the proposal is to establish clear rules for joint patrolling as regards interception, including on the high seas, search and rescue situations which arise during these surveillance operations and disembarkation. The proposal takes into account recent legal and judicial developments, such as the amendments to the Regulation establishing Frontex[16] and the judgment of the European Court of Human Rights in Hirsi Jamaa and Others v. Italy[17], as well as the practical experiences of Member States and the Agency when implementing the annulled Council Decision. The European Commission proposal now provides that any measures taken during surveillance operations must be in full respect of fundamental rights and the principle of non-refoulement. Before disembarkation in a third country, Member States must take into account the general situation in that country to ensure that it is not engaged in practices in violation of the principle of non-refoulement. Furthermore, the persons intercepted or rescued must be identified and their personal circumstances must be assessed to the extent possible before disembarkation. They must be informed of the place of disembarkation in an appropriate way and they must be given an opportunity to express any reasons for believing that disembarkation in the proposed place would be in violation of the principle of non-refoulement. This guarantees that the migrants are informed about their situation and the proposed place of disembarkation thereby allowing them to express any objections.

Following another European Commission proposal, the co-legislator adopted the recast Dublin Regulation[18]. Its provisions guarantee effective remedies to asylum applicants as regards appeals against transfer decisions, thus ensuring full effect of the right to remain on the territory and reducing the risk of "chain refoulement". It provides for widened rules of reunification for unaccompanied minors, guarantees the right to a guardian, the right of all applicants to detailed information on the functioning of the Dublin system including, for minors, in a manner adequate for their understanding.[19] The regulation contains furthermore substantial provisions on detention, limiting it to cases of established risk of absconding, restricting it to a maximum of three months, and providing that the detention conditions and guarantees applicable to asylum seekers under this procedure are the ones foreseen by the Reception Conditions Directive[20] (thus ensuring the same level of rights as for any other asylum applicant). The latter was adopted by the co-legislator following a European Commission proposal. It lays down improved and clearer standards to more effectively safeguard the fundamental right to dignity, especially as regards vulnerable asylum seekers. In particular it further harmonises the rules on detention lying down clear and restrictive grounds, conditions for detention and guarantees for detainees.

The Regulation also incorporates in an article the judgment of the CJEU in the case NS v UK (case C-411/10)[21], whereby an asylum seeker cannot be sent to a Member State where there is a serious risk of violation of his/her fundamental rights, but instead another Member State is to assume responsibility on the basis of the Dublin criteria, within the shortest delay, in order not to jeopardize his/her quick access to procedure.

In a declaration annexed to the recast Dublin Regulation, the European Parliament, the Council, and the European Commission declared to use their respective legislative powers for a revision of the provisions in the recast Dublin Regulation, so as to ensure that the best interest of the child is safeguarded, once the CJEU has ruled on case C-648/11 MA and Others vs. Secretary of State for the Home Department. [22] This judgement has been delivered on 6 June 2013, clarifying that in an abovementioned scenario the Member State in which that minor is present after having lodged an asylum application there is to be designated the ‘Member State responsible’[23].

Article 5: Prohibition of slavery and forced labour, including trafficking in human beings

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.

Legislation/Policy

On 19 June 2012, the European Commission had presented a Communication on the "EU Strategy towards the Eradication of Trafficking in Human Beings 2012-2016"[24] , which aims to address in a comprehensive, integrated and structured way the challenges for the next five years. It proposes a series of 40 concrete and time-bound actions emphasizing the necessity to respect and promote fundamental rights in legislative and policy measures which address trafficking in human beings.

One of the latest actions delivered under the Strategy is the launch in May 2013 of an EU Civil Society Platform against Trafficking in Human Beings which aims at bringing together more than hundred civil society organisations including human rights organisations, migrant organisations and those working on the rights of women and children from EU Member States and third countries.

By prioritising prevention of the crime, prosecution of traffickers, the protection of the victims, as well as cooperation and coordination, the EU Strategy complements the Directive 2011/36/EU[25] on preventing and combating trafficking in human beings, which has a strong focus on victim protection, assistance and support. This directive adopts an integrated, holistic, and human rights-based approach in addressing trafficking in human beings, recognising the latters the gender-specific nature. It also refers to the role of an EU Anti-Trafficking Coordinator providing the overall strategy policy orientation in the field of trafficking in human beings. He or she will improve coordination and coherence between EU institutions, EU agencies, Member States and international actors. The Directive should have been transposed into national law by 6 April 2013. As thirteen Member States had not communicated by that deadline any measures transposing the directive, infringement procedures have been launched against them. Letters of formal notice (under Article 258 TFEU) were sent on 29 May 2013 to these thirteen Member States. In November 2013, Reasoned Opinions on non-communication basis were sent to Cyprus, Italy, Spain and Luxembourg.

Furthermore, the EU anti-trafficking website launched by the European Commission serves as one-stop shop, containing all relevant information on EU policy and legislation, National Information Pages on all Member States, European Commission funded projects and publications by relevant stakeholders.[26]

Finally, the EU Anti-Trafficking Day was established by the European Commission in 2007, marked on 18 October every year, with the aim to raise awareness on trafficking in human beings and to increase the exchange of information and networking between the different actors working in the field of combating trafficking in human beings. For 2013, the Lithuanian Presidency and the European Commission organised a conference in Vilnius to mark the 7th EU Anti-Trafficking Day exploring the links between the Internet and combating Trafficking in Human Beings ("Cyberspace for Prevention, not Recruitment").

On 13 June 2013 the Council the published its Revised Draft Conclusions on an EU Framework for the Provision of Information on the Rights of Victims of Trafficking in Human Beings, wherein it invited Member States to promote the rights of victims, by rendering available the relevant information to them, among others on labour, social, victim and migrant rights that victims of trafficking in human beings have under EU law in their jurisdiction with special attention being given to child victims.[27] At the same time it asked the European Commission to support the Member States efforts and allocate the necessary budget funding projects to implement the rights of victims. [28]

2. Freedoms

As regards the reform of EU data protection law, the Committee for Civil Liberties, Justice and Home Affairs (LIBE) of the European Parliament backed the European Commission's data protection proposal

Following last year's revelations about mass surveillance programmes the European Commission set out actions that need to be taken to restore trust in data flows between the EU and the US. These include ensuring that safeguards apply to EU citizens in US surveillance programmes as well as concluding negotiations concerning a EU-US umbrella agreement on data protection in the law enforcement sector. The agreement should include enforceable rights of judicial redress for citizens on both sides of the Atlantic. The European Commission also made 13 recommendations to improve the functioning of the Safe Harbour scheme. Remedies should be identified by summer 2014. The European Commission will then review the functioning of the scheme based on the implementation of these 13 recommendations.

In the framework of the Common Agricultural Policy (CAP) and the Common Fisheries Policy (CFP) post 2013, the European Commission proposal on the publication of information about beneficiaries of funds specific to these policy fields reflect the attention given to the protection of individuals' rights to privacy as well as personal data.

On 10 September 2013, the European Parliament adopted its Resolutions on the European Commission proposals for a Council Regulation on jurisdiction, applicable law and the recognition and enforcement of decisions in matters of matrimonial property regimes and for a Council Regulation on jurisdiction, applicable law and the recognition and enforcement of decisions regarding the property consequences of Registered Partnerships.

In order to address the growing number of calls for the European Commission to intervene with regard to media freedom and pluralism, an independent expert group presented 30 recommendations addressed to the EU institutions, Member States and relevant stakeholders. In public consultations on the report Member States and media organisations were reluctant to see increased European Commission intervention in media pluralism whereas citizen respondents on the other hand were largely in favour of intervention.

As already mentioned above one of the most important developments in this area is the strengthening of the Common European Asylum System by adoption of the revised Dublin Regulation, the Eurodac Regulation, Directives on the Reception Conditions and on the Asylum Procedures[29].

Article 7: Respect for private and family life

Article 7 of the Charter guarantees the right of everyone 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.

Legislation

This right as well as the right to protection of personal data of individuals (Article 8 of the Charter) naturally had to be considered and balanced against the taxpayer's right to be kept informed about the use made of public funds in the context of beneficiaries of European agricultural funds.[30] Thus, the proposals for the Common Agricultural Policy (CAP) post 2013, confirmed by the political agreement of June 2013,[31] which contained the European Commission proposal on the publication of information of CAP beneficiaries but on the other hand also reflects the attention given to the protection of individuals' rights to privacy as well as personal data. Provisions of general scope were added during the negotiation with the other two institutions. The main elements of the political agreement are:

o publication of the name of beneficiaries, with the exception of those receiving an amount of annual aid which does not exceed a certain threshold. The modalities for fixing the threshold are part of the new provisions and accommodate the principle of proportionality and non-discrimination;

o publication of details on the measures financed by the CAP funds under which the beneficiaries received the aid and also details on the obligations that the beneficiaries need to respect.

The first publication under the new rules should take place in 2015.

The proposed regulation on the European Maritime and Fisheries Fund (EMFF), which will replace the current European Fisheries Fund (EFF) and during the period of the next multiannual financial framework (2014-2020) finance measures in the field of fisheries and maritime policies, constitutes a further case in which the EU had to balance the rights to respect for private life (Article 7 of the Charter) and to the protection of personal data (Article 8 of the Charter and Article 16 TFEU) of beneficiaries of funds with the principle of transparency (Articles 1 TEU and 10 TEU and Article 15 TFEU). Taking into account the CJEU's judgment in Schecke and Eifert v. Land Hessen[32], the European Commission addressed the topic in its amended proposal for the EMFF regulation of April 2013[33]. The political agreement on the EMFF regulation reached by the EU legislators protects beneficiaries by foreseeing the publication of names of private persons only if such publication is in line with legislation of the respective Member State and by publishing detailed information on the financed operation, like a summary, key dates, and corresponding Union priorities.[34]

Furthermore, in order to protect the right to privacy in a balanced manner the European Commission ensured an effective protection of professional legal privilege within the EU's money laundering legislation. The proposed Anti-Money Laundering Directive of February 2013 imposes an obligation to report suspicions of money laundering or terrorist financing to the authorities in a number of professional activities. However, considering the crucial importance of the right to defence in a democratic society, the proposed Directive obliges Member States not to apply the reporting obligation to lawyers under certain circumstances, for instance when it relates to information received in the course of ascertaining the legal position of a client or performing their task of defending or representing that client in, or concerning judicial proceedings[35]. Furthermore, the Member States have the possibility to set in place a system of first instance reporting to a self-regulatory body which constitutes further safeguards to uphold the protection of fundamental rights with view to reporting obligations applicable to lawyers.

Of particular relevance to the right to respect of family life, including the right to marry and to found a family according to Article 9 of the Charter and national laws are the on-going negotiations on the European Commission proposals on matrimonial property regimes[36] and on property regimes for registered partnerships[37]. No differentiation is introduced in the legislation on the basis of sexual orientation.[38] On 10 September 2013, the European Parliament adopted its Resolutions on the European Commission proposals for a Council Regulation on jurisdiction, applicable law and the recognition and enforcement of decisions in matters of matrimonial property regimes[39] and for a Council Regulation on jurisdiction, applicable law and the recognition and enforcement of decisions regarding the property consequences of Registered Partnerships.[40] The Resolutions contained several amendments mentioning the Charter, such as

o inserting a reference to Article 20 of the Charter, which guarantees the equality before the law and to Article 23 on the equality between women and men[41] and

o stating that the competent authorities should not interpret the public policy exception in a way that is contrary to the Charter, and in particular Article 21 thereof, which prohibits all forms of discrimination.[42]

Policy

Furthermore, an increase in the number of petitions to the European Commission concerning the functioning of the German Youth Welfare Offices (Jugendämter) has to be mentioned in relation to the right to respect for family life. These petitions mainly concerned amongst others the following: alleged imposition of restrictions on access of non-German parents to their children; alleged discriminatory interventions of Jugendämter during the custody court proceedings e.g. favouring the German parent when Jugendämter officials provide evidence in court; alleged violation of the right to be heard by the Jugendämter; alleged incorrect implementation of the best interests of the child principle -"Kindeswohl" – which is allegedly used rather to protect the interests of the German state than the best interests of the children; alleged lack of complaint mechanisms and review procedures against the decisions of certain Jugendämter, or little awareness about these mechanisms. Vice President Reding has contacted the German authorities on these issues.

Case law

As regards case law the important ruling in Deutsche Bahn v European Commission[43] on the right to private life by the General Court of 6 September 2013 has to be emphasised. Here the Court ruled that carrying out inspections of undertakings or associations of undertakings on the basis of a European Commission decision is not a violation of Article 7 of the Charter on respect for private and family life. It held that prior judicial authorisation of such inspections is not required, provided comprehensive judicial review is available after the inspection. By this ruling, the Court confirmed its established case law on the European Commission's powers of inspection of undertakings and associations of undertakings as laid down in Article 20 of Regulation 1/2003 (formerly Article 14 of Regulation No. 17). It pointed to the safeguards provided by Regulation 1/2003, namely the obligation to state the reasons on which an inspection decision is based, the need to act within certain limits when carrying out inspections (respect of right to privacy, Legal Professional Privilege, privilege against self-incrimination), the fact that the European Commission does not have the power to enforce its inspection powers by force, the fact that the European Commission must seek the assistance of national police or equivalent enforcement authorities to overcome assistance to an inspection, as well as the fact that the legality of the inspection decision may be challenged before the CJEU. It concluded that these safeguards had been duly respected in the case before it.

Article 8: Protection of personal data

The fundamental right of everyone to the protection of personal data is now explicitly recognised by Article 8 of the Charter. It is also explicitly stated in Article 16 of the Treaty on the Functioning of the European Union. This gives the EU new responsibilities to protect personal data in all areas of EU law, including police and judicial cooperation. In view of this year's revelations about worldwide surveillance programmes potentially monitoring citizens' communication it was imperative for the EU institutions to progress in their negotiations about a new data protection level. The revelations have shown how technological progress and globalisation have profoundly changed the way personal data is collected, accessed and used. In addition, the 28 EU Member States have implemented the 1995 EU Data Protection Directive[44] differently, resulting in divergences in enforcement.

Legislation/Policy

The European Commission has already proposed a major reform of the EU's rules on the protection of personal data.[45] The proposals include a policy Communication setting out the European Commission's objectives[46] and two legislative proposals: a Regulation setting out a general EU framework for personal data protection[47] and a Directive[48] on protecting personal data processed for the purposes of prevention, detection, investigation or prosecution of criminal offences and related judicial activities.

In October 2013 the Committee for Civil Liberties, Justice and Home Affairs (LIBE) of the European Parliament supported the European Commission's proposal. The aim of the reform is to put individuals back in control of their data by updating their rights , in order to fully respect Article 8 of the Charter. Explicit consent, the right to be forgotten, the right to data portability and the right to be informed of personal data breaches are important elements. They will help to close the growing rift between citizens and the companies with which they share their data, willingly or otherwise.

Recent revelations of large-scale US intelligence collection programmes have negatively affected the trust on which the transatlantic relationship is based. As Vice-President Viviane Reding, the EU's Justice Commissioner pointed out: "Massive spying on our citizens, companies and leaders is unacceptable. Citizens on both sides of the Atlantic need to be reassured that their data is protected and companies need to know existing agreements are respected and enforced."[49] Following these deep concerns the European Commission in 2013 set out actions that need to be taken to restore trust in data flows between the EU and the US.[50] An EU-US working group was set up in July 2013 the findings of which were set out in a report of the EU Co-Chairs[51] . On this basis, the European Commission's response took the form of

o a strategy paper (a Communication) on transatlantic data flows setting out the challenges and risks following the revelations of US intelligence collection programmes, as well as the steps that need to be taken to address these concerns;

o a report on the functioning of "Safe Harbour" which regulates data transfers for commercial purposes between the EU and US.

In particular the European Commission called for actions in several areas, such as:

o The EU data protection reform: The data protection reform proposed by the European Commission in January 2012[52] provides key responses, in particular as as regards territorial scope, on international transfers, enforcement and sanctions, obligations and liabilities of data processors as well as with the establishment of comprehensive rules for the protection of personal data processed by competent authorities in the law enforcement sector in the Union.

o Making Safe Harbour safer: the European Commission made 13 recommendations to improve the functioning of the Safe Harbour scheme and after an analysis found the functioning of the scheme deficient in several respects. Remedies should be identified by summer 2014. The European Commission will then review the functioning of the scheme based on the implementation of these 13 recommendations.

o Strengthening data protection safeguards in the law enforcement area: the current negotiations on an “umbrella agreement” for transfers and processing of data in the context of police and judicial cooperation should be concluded swiftly. An agreement must guarantee a high level of protection for citizens who should benefit from the same rights on both sides of the Atlantic. Notably, EU citizens not resident in the US. should benefit from judicial redress mechanisms.

o Using the existing Mutual Legal Assistance and Sectoral agreements to obtain data: the US administration should commit to, as a general principle, making use of a legal framework like the mutual legal assistance and sectoral EU-US Agreements such as the Passenger Name Records Agreement and Terrorist Financing Tracking Programme whenever transfers of data are required for law enforcement purposes. Asking the companies directly should only be possible under clearly defined situations.

o Addressing European concerns in the on-going US reform process: US President Obama has announced a review of US national security authorities’ activities. This process should also benefit EU citizens. The most important changes should be extending the safeguards available to US citizens to EU citizens not resident in the US, ensuring the necessity and proportionality of the programmes, increased transparency and better oversight.

In August 2013 the Directive on attacks against information systems[53] was adopted. It aims at dealing with the growing number of large-scale cyber-attacks against businesses and also government organisations. The Directive addresses the penalisation of illegal access, system interference and data interference, and as such its implementation (by September 2015) will strengthen the protection of personal data by reducing the ability of cybercriminals to abuse victims' rights without impunity. The Directive seeks to ensure full respect of the protection of personal data, the right to privacy, freedom of expression and information, the right to a fair trial, the presumption of innocence and the rights of the defence, as well as the principles of legality and proportionality of criminal offences and penalties.[54]

Furthermore, in January 2013 the European Cybercrime Centre ('EC3') has been created within Europol to help protect European citizens, in particular their personal data and privacy, against threats from cybercriminals. The EC3 pools expertise and information, supports criminal investigations and promotes EU-wide solutions, while raising awareness of cybercrime issues across the Union. In February, a cyber-security strategy was presented that outlines the EU’s comprehensive vision on how best to prevent and respond to cyber disruptions and attacks. The European Commission and Catherine Ashton, the High Representative of the Union for Foreign Affairs and Security Policy and Vice-President of the European Commission, have jointly adopted this strategy alongside a directive proposed by the European Commission on network and information security (NIS). Specific actions are aimed at enhancing the cyber resilience of information systems, reducing cybercrime and strengthening the EU’s international cyber-security policy and cyber defence.

The European Commission routinely checks its legislative proposals and the acts it adopts to ensure that they are compatible with the Charter (sometimes called "mainstreaming") such as in the following cases.

As a new major initiative in the field of EU border management, the European Commission in February 2013 adopted the Smart Borders package. The main objective of the initiative is two-fold - the proposed Regulation for the Entry Exit System shall secure by means of automated registration of external border crossings of the third country nationals and subsequent calculation thereof the enforcement of the rule on short stay of in the EU whilst the Regulation for the Registered Traveller Programme would contribute to better management of the increasing travel flows and simplify the external borders' crossing of frequent and pre-screened and pre-vetted third country travellers. Acknowledging the need to safeguard privacy and guarantee data protection, the European Commission has attached high importance to the principles of proportionality, necessity and purpose limitation as well as to fundamental rights. Accordingly, both proposals contain a specific chapter on rights of data subjects and supervision of data protection. Overall, a special attention has been paid to the rights of the data subject and data protection aspects and the supervision thereof. The proposals contain provisions on liability, rights of persons, remedies and supervision of the lawfulness of processing the data by both the national supervisory authorities as well as the European Data Protection Supervisor. In full transparency, a joint report of their activities will be sent to the European Parliament, the Council, the European Commission and the eu-LISA every two years.

On 11 December 2013, a new basic regulation on the Common Fisheries Policy (CFP) was adopted which entered into force on 1 January 2014.[55] It defines core elements of this policy, like its general and specific objectives, basic instruments, key actors, and procedures. The regulation covers the collection and management of various kinds of data, including biological, environmental, technical, and socio-economic data necessary for fisheries management. Such data can also include personal data, like information collected for fishing fleet registers, information on individual catches by vessel owners, and on positions of vessels. The regulation, establishes certain basic principles for the "collection, management and use of data", thereby requiring the EU institutions and the Member States to respect the rules on the protection of personal data, e.g. through safe storage and protection of collected data in computerised databases, and their public availability where appropriate, including at aggregated level, whilst ensuring confidentiality. [56]

The right to data protection was furthermore taken into account during legislative procedures in a number of policy areas, such as:

o the European Commission proposal for a Regulation on the financing, management and monitoring of the common agricultural policy, balancing the rights of beneficiaries of European agricultural funds to protection of personal data against the taxpayer's right to be kept informed about the use made of public funds[57],

o the adoption of the recast Eurodac Regulation in the field of asylum policy[58]

o the European Commission proposal for a regulation on the European Maritime and Fisheries Fund (EMFF), in which the right to protection of personal data of beneficiaries under the EMFF was balanced against the principle of transparency[59],

o a proposal for the revision of the third anti-money laundering Directive and Fund Transfer Regulation which purports to clarify the interaction between the AML rules and the protection of personal data by bringing clarification on how institutions need to apply anti-money laundering/terrorist financing requirements in a way which is compatible with a high level of protection of personal data.

o the European Commission's proposal to boost Europol's role as a law enforcement agency and a EU hub for information exchange which provides for a re-designed data processing structure entailing the strengthening of the rights of individuals affected by data processing and ensuring robust supervision of Europol's data processing by the European Data Protection Supervisor.

o a proposal for a Regulation setting up the European Public Prosecutor's Office (EPPO) to improve Union-wide prosecution of criminals who defraud EU taxpayers defines a very important number of rights of the data subjects and also ensures supervision of the Office by the European Data Protection Supervisor.

o the reform for the European Union’s Agency for criminal justice cooperation (Eurojust) which provides for its supervision by the European Data Protection Supervisor and ensures that persons whose data are being processed can truly exercise their rights.

Finally, following privacy and data protection issues raised by MEPs in connection with the development of Remotely Piloted Aircraft Systems (RPAS) applications, the European Commission is currently considering the preparation of a supportive and enabling policy framework for the civilian use RPAS. The policy framework may include safety regulation and other relevant topics like security, privacy and data protection and therefore should ensure a balance of promoting the new technologies and industries involved and providing the highest levels of safety, security and privacy for citizens. With regard to data protection in particular, the European Commission is conducting a study to identify potential shortfalls in the current regulatory framework and ways to ensure drones comply with data protection rules and fundamental rights to privacy. The European Commission will also promote the adoption of relevant measures under national competence and ensure continuous monitoring of privacy and data protection issues.

International agreements

The modernisation of the Council of Europe's rules on data protection coincides with the comprehensive reform of the European Union's laws in this area. In order to respond to the rapid technological developments and globalisation trends that have brought new challenges for the protection of personal data, the Council of Europe has begun discussions on the modernisation of Convention of the Council of Europe for the Protection of Individuals with regard to Automatic Processing of Personal Data (Convention 108), which was the first legally binding international instrument in the field of data protection. In 2013 the European Commission was mandated by the Council to negotiate on this modernisation, in order to provide for a high level of protection of fundamental rights and freedoms with respect to processing of personal data, which reflects the EU's internal rules.

Furthermore as already pointed out above, the European Commission is currently negotiating an “umbrella agreement” with the US for transfers and processing of data in the context of police and judicial cooperation. The aim is to guarantee a high level of protection for citizens who should benefit from the same rights on both sides of the Atlantic, in particular rights of judicial redress.

Case law

In 2013 the CJEU issued several rulings relevant to the protection of data. Thus, on the case of Worten/ACT[60] it held in a preliminary ruling that the recording of working time is covered by the guarantees in EU law on personal data. However, this does not preclude any national legislation which requires an employer to make the record of working time available to the national authorities responsible for the monitoring of working conditions.

Further, in another preliminary ruling, the case of Case C-291/12 Schwarz,[61] the court held that including fingerprints in passports was lawful. Although the taking and storing of fingerprints in (biometric) passports constitutes a restriction of the rights to respect for private life (Article 7 of the Charter) and the right to protection of personal data (Article 8 of the Charter), such measures are nonetheless justified for the purpose of preventing any fraudulent use of passports. The Court added, with a clear reference to the case-law of the ECtHR (S. and Marper)[62], that the legislature must ensure that there are specific guarantees that the processing of such data will be effectively protected from misuse and abuse. In that respect, the Court noted that Article 4(3) of the Regulation on standards for security features and biometrics[63] explicitly states that fingerprints may be used only for verifying the authenticity of a passport and the identity of its holder. In addition, that regulation ensures protection against the risk of data including fingerprints being read by unauthorised persons. In that regard, Article 1(2) of that regulation makes it clear that such data are to be kept in a highly secure storage medium in the passport of the person concerned.

In a preliminary ruling, the CJEU in C-473/12 IPI[64] referred to its settled case-law stating that derogations and limitations in relation to the protection of personal data need to be applied only in so far as is strictly necessary in view of the fundamental right to privacy. Furthermore, the Court held that Member States have no obligation, but rather an option, to transpose into their national law one or more of the exceptions to the obligation to inform data subjects of the processing of their personal data as laid down in Article 13 (1) of Directive 95/46/EC. It also concluded that the activity of a private detective acting for a professional body in order to investigate breaches of ethics of a regulated profession - the profession of an estate agent in the case at hand - is covered by the exception in Article 13(1)(d) of Directive 95/46. The Court also observed that it is open to the Member States to take the view that those professional bodies and the private detectives acting for them have sufficient means, notwithstanding the application of Articles 10 and 11 of Directive 95/46/EC, of detecting the breaches of ethics at issue. Thus, it is not necessary for that exception to be implemented in order for those bodies to be able to carry out their duty of ensuring compliance with the rules.

In case C-486/12 X[65], another prelimary ruling, the Court of Justice held that Article 12(a) of Directive 95/46/EC does not preclude the levying of fees in respect of the communication of personal data by a public authority. It has also clarified that in view of the importance of protecting privacy, emphasised in the case-law of the Court and enshrined in Article 8 of the Charter, the fees which may be levied under Article 12(a) may not be fixed at a level likely to constitute an obstacle to the exercise of the right of access guaranteed by that provision. Consequently, in order to ensure that fees levied when the right to access personal data is exercised are not excessive, the level of those fees must not exceed the cost of communicating such data. That upper limit does not prevent the Member States from fixing such fees at a lower level in order to ensure that all individuals retain an effective right to access such data.

In its judgment in T-214/11 ClientEarth[66] the General Court applied the case law of the Court of Justice of the EU (notably C-28/08 P European Commission v Bavarian Lager) and held that where an application based on Regulation 1049/2001 seeks to obtain access to documents containing personal data, the provisions of Regulation 45/2001 become applicable in their entirety. The latter regulation has to be complied with by the European institutions when they receive an application for access to documents containing personal data. The Court went on to observe that that data may be transferred only if the applicant establishes the necessity of having the data transferred and if there is no reason to assume that the data subject’s legitimate interests might be prejudiced, pursuant to Article 8(b) of Regulation No 45/2001. Where the recipient does not provide any express and legitimate justification or any convincing argument in order to demonstrate the necessity for that personal data to be transferred, the institution which has received the application is not able either to weigh up the various interests of the parties concerned or to verify that there is no reason to assume that the data subjects’ legitimate interests might be prejudiced by the transfer of data and is therefore entitled to refuse the particular application for access.

Article 10: Freedom of thought, 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 practicing it, the right protects actions of conscience such as for example those of conscientious objectors.

Policy

Within Member States there are several issues concerning freedom of religion and belief, as well as the freedom of conscience that are currently being discussed by stakeholders.

Thus, in the context of the dialogue with churches, religious associations or communities and philosophical and non-confessional organisations (Article 17 TEU) the concerns raised relate in particular to issues of religious expression in the public space and the work place, such as ritual slaughter in view of animal welfare, home schooling with a view to conscientious objection, e.g. in Germany and Sweden and the debate on circumcision following a German court case.

These dialogue partners were consulted during the drafting process of the EEAS guidelines on freedom of religion and belief, adopted in June 2013.

While some of the above-mentioned issues do not fall within EU competence, a number of dialogue partners seem to feel that the issues relate to their fundamental rights of expressing their religion and belief and are of the strong opinion that given the Charter is part of the EU acquis, the EU should help to uphold them.

Ruling of the Federal Administrative Court of Germany[67]: limitation of the freedom of religion as an act of persecution

Applications of a Pakistani citizen for asylum in Germany had been dismissed. The applicant then claimed that EU Directive 2004/83/EG on minimum standards for the qualification and status of third country nationals or stateless persons as refugees or as persons who otherwise need international protection (the asylum qualification directive) and the content of the protection granted had changed his legal situation: the extent of protection was broadened to cover also active proselytization, which was the primary reason for the persecution in Pakistan. Both the Stuttgart Administrative Court and the Mannheim Higher Administrative Court ruled that the applicant should be recognized as a refugee. The Federal Administrative Court repealed the judgment. It referred to the freedom of religion as enshrined in Article 10 (1) of the Charter and ruled that an interference with the right to freedom of religion comes within the scope of the asylum qualification directive, but only if the limitation of the freedom of religion is not provided by law as defined in Article 52 (1) of the Charter, and the limitation of this right is severe, affecting the person concerned remarkably. The Court concluded that the seriousness of the actions and sanctions that are taken or may be taken towards the person concerned determines whether a violation of the right guaranteed in Article 10 (1) of the Charter can be classified as an act of persecution as defined by Article 9 (1) of the asylum qualification directive. The Federal Administrative Court held that this was not case for the Pakistani citizen.

Article 11: Freedom of expression and information

The right to freedom of expression for everyone is guaranteed in Article 11 (1) of the Charter. This right includes freedom to hold opinions and to receive and impart information and ideas without interference by public authority and regardless of frontiers. Article 11 (2) ensures respect for freedom and pluralism of media.

Policy

In order to address the growing number of calls for the European Commission to intervene with regard to media freedom and pluralism, an independent expert group was tasked to explore challenges and make recommendations. In January 2013 this High Level Group on Media Freedom and Pluralism presented 30 recommendations addressed to the European Union institutions, Member States and relevant stakeholders. Subsequently, public consultations on the report were launched with a view to seek opinions of different stakeholders on the recommendations. Levels of support varied according to the topics, the type of respondent and their geographical origin. Generally, citizens showed more enthusiasm for stepping up activities by the European Union in support of media pluralism. Member States and media organisations were more reluctant[68].

Furthermore, the feedback from a specific consultation on independence of audio-visual regulators very strongly supported the need for EU legislative action to ensure independence of the national regulators and formalisation of cooperation between audio-visual regulators.

The importance of media freedom and pluralism was recognised in the Council Conclusions[69] in November 2013. The European Commission is working on the follow up to the invitations addressed to it by the Council.

Case law

The case C-283/11 Sky Österreich v ORF[70] concerned compensation available to holders of exclusive broadcasting rights to events of high public interest in those cases, where other broadcasters seek access to short extracts for news reporting purposes. The European Court of Justice found that the arrangement under review fairly balanced the competing interests of the holder of exclusive broadcasting rights against the general interests in receiving information and promoting pluralism of the media, as guaranteed by Article 11 of the Charter.

In a number of cases[71] concerning broadcasting of events of major interest to society, namely football matches, the Court found that Article 14 of the relevant Audio-visual Media Services Directive[72], appropriately restricted the right of property in the general interests of the freedom to receive information and ensuring wide public access to coverage of major events. Any necessity for the General Court to consider less invasive applications of that provision capable of attaining its objective (than the decisions having originally given rise to the proceedings before it), was held to exist only where the appellants had successfully established an excessive interference with their property rights.

The preliminary ruling in case C-234/12 Sky Italia v AGCOM[73] addressed the question of whether national rules laying down shorter hourly advertising limits for pay-TV broadcasters than those set for free-to-air broadcasters infringed the general principle of equality and the rules of the TFEU relating to the free movement of services. The Court held that the national legislature was able, without infringing the principle of equal treatment, to set such a rule. It is however for the referring court to assess whether that rule complies with the principle of proportionality.

Article 15: Freedom to choose an occupation and the 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

To promote this right a Directive modernising the Professional Qualifications Directive was adopted on 20 November 2013 and has entered into force on 17 January 2014.[74] The recast Directive must be implemented by Member States within two years after entry into force, by 18 January 2016. It allows EU qualified citizens to obtain the recognition of their qualifications in order to establish and provide services in another Member State.

Furthermore, the European Commission requested Italy to allow third country nationals who are family members of EU citizens to access public employment to promote the right to engage in work. As a result, Italy modified its legislation in accordance with EU law.

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.

Legislation

To promote this freedom the European Commission had in 2012 made a proposal to modernise the current rules on cross-border insolvency.[75] During the negotiations, which have made real progress in 2013, the impact on minority creditors in terms of right to an effective remedy and right to property had been thoroughly considered. Thus the proposal is aimed at striking a fair balance between promoting the right to conduct a business on the one hand by and procedural rights of potential debtors on the other. The revision of the EU Insolvency Regulation will increase legal certainty, by providing clear rules to determine jurisdiction, and ensuring that when a debtor is faced with insolvency proceedings in several Member States, the courts handling the different proceedings work closely with one another. Information to creditors will be improved by obliging Member States to publish key decisions – about the opening of insolvency proceedings, for example, while strictly respecting the data protection rules.

Case law

In the case of Schaible[76] the European Court of Justice decided in a preliminary ruling that an obligation created individual electronic identification for sheep and goats did not infringe the right to conduct a business. Therefore, the relevant EU legislation establishing a system for the identification and registration of ovine and caprine animals was held to be valid. By adopting such identification measures which were intended to improve prevention of epizootic diseases, the legislature was held not to have infringed the freedom of animal keepers to conduct a business or the principle of equal treatment. In particular these measures were deemed proportional with view to their objective.

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 acquired possessions. The Charter also guarantees the protection of intellectual property.

Legislation

In November 2013, the European Commission submitted a proposal for a Directive on the protection of undisclosed know-how and business information (trade secrets) against their unlawful acquisition, use and disclosure[77]. This proposal, seeks to approximate national legislation to ensure that in case a trade secret is unlawfully acquired, used or disclosed by another person, the victim has access to a sufficient and comparable level of redress across the internal market. The European Commission paid special attention to fundamental rights in the preparation of the proposal, in particular the right to property, and also the right to the respect for private life (Article 7).[78]

Moreover, when preparing the proposal for a Directive of the European Parliament and of the Council on the return of cultural objects unlawfully removed from the territory of a Member State[79] , the right to property was taken into account accordingly.

The European Account Preservation Order strengthens the right to property and the procedural rights of potential debtors, such as the right to an effective remedy. In 2011 the European Commission had proposed a regulation on the subject. On 6 December 2013 the Council agreed on a general approach on the draft regulation creating a European Account Preservation Order.[80] The aim of the proposed regulation[81] is to facilitate cross-border debt recovery by creating a uniform European procedure leading to the issue of a European Account Preservation order ("Preservation Order"). This European procedure will be available only to citizens and businesses residing in the participating Member States as an alternative to national procedures, but will not replace national procedures. It will apply only to cross-border 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 thereby prevent the debtor from dissipating such funds with the aim of frustrating the creditor's efforts to recover his debt.

UK catch quota

Vessel owners or organisations representing vessel owners have at times challenged the allocation of fishing opportunities by individual Member States before national courts. A case in point is UK Association of Fish Producer Organisations v. Secretary of State for Environment, Food and Rural Affairs, a case decided by a UK court in July 2013. [82] Importantly, the judgment concerned the redistribution of national UK catch quota and analysed in detail whether the decision by the English authorities on the re-distribution of quota was not only in conformity with national law, but did also respect fundamental rights and principles of EU law. It analysed, in particular, the right to property, the principle of legitimate expectations, and the principle and right to non-discrimination. The ruling explicitly referred to the Charter. The judge deciding the case concluded that the relevant English authority had acted in conformity with the latter and EU law in general. (see also below under Article 21 for an analysis of the case from the angle of the right to non-discrimination)

Article 18: Right to asylum

The right to asylum is guaranteed by Article 18 of the Charter.

Legislation

As already mentioned above one of the most important developments in this area is the establishment of a Common European Asylum System by adoption of the recast Dublin Regulation and the Reception Conditions Directive.[83] This was further supplemented by the adoption of the Asylum Procedures Directive.[84] The latter reinforces the guarantees safeguarding the fundamental right to asylum, in particular by strengthening the right to access to the asylum procedure, the right of asylum seekers to receive legal and procedural information free of charge already during the first instance procedure, it reinforces the provisions on the fundamental right to an effective remedy, including the rules on the provision of free legal assistance.

Following a European Commission proposal, the co-legislator adopted a recast Eurodac Regulation[85] , touching upon issues of asylum procedures and the right to data protection. The regulation extends the scope permitting law enforcement access to the Eurodac database under strictly defined circumstances for the purposes of preventing, detecting or investigating serious crimes and terrorist offences. The use of Eurodac data for law enforcement purposes implies a change of purpose of access to the data processed and constitutes an "interference" with the right to data protection. As stipulated by Article 52 (1) of the Charter, any limitation to the right to the protection of personal data must be provided for by law, must respect the essence of the right, must be necessary to achieve an objective of general interest recognised by the Union or to protect the rights and freedoms of others, and must be proportionate, i.e. appropriate for attaining the objective pursued and not going beyond what is necessary to achieve it.

The regulation provides for a more effective and less intrusive measure for competent law enforcement authorities to determine if another Member State holds data on an asylum seeker. Under current rules, Member States' law enforcement authorities have to contact bilaterally all other Member States participating in Eurodac to determine if another Member State holds data on an asylum seeker. The current rules are inefficient and require that law enforcement authorities access more personal data or data on more persons than is necessary to establish whether relevant information exists. Therefore, the regulation provides for effective safeguards that mitigate the limitation of the right to the protection of personal data.

There are currently a number of on-going infringement procedures concerning Member States that have not fully implemented the EU asylum acquis: In 2013 the European Commission has launched infringement procedures against two Member States on the Reception Conditions Directive (Directive 2003/9), Asylum Procedures Directive (Directive 2005/85), the Asylum Qualification Driective (Directive 2004/83) and the Charter. The European Commission is currently considering launching further infringement procedures.

Asylum and immigration as the most relevant policy fields for references to the Charter in national case law

Out of the 69 national judgements analysed by FRA for the year 2013, the biggest group, namely 14 judgements, concerned the policy fields of immigration and asylum. This resembles the findings of last year’s data collection: research into 240 national cases handed down in the recent years revealed that half of them dealt with asylum and immigration issues.

Case law

In the case MA and Others v. Secretary of State for the Home Department[86] the CJEU interpreted the relevant provision of the Dublin Regulation in such a way that it respects fundamental rights, in particular those guaranteed in Article 24 (2) of the Charter, whereby in all actions relating to children, whether taken by public authorities or private institutions, the child’s best interests are to be a primary consideration. In this specific case the CJEU interpreted the relevant provision to mean that where an unaccompanied minor with no member of his/her 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 minor is present after having lodged an asylum application there is to be designated the ‘Member State responsible’.

In the case Bundesrepublik Deutschland v Kaveh Puid[87], the CJEU interpreted Article 3(2) of the Dublin Regulation and more precisely whether the duty of the Member States to exercise their right under the first sentence of Article 3(2) results in an enforceable personal right on the part of the asylum seeker to force a Member State to assume responsibility, in particular in light of Article 4 of the Charter. It ruled that where the Member States cannot be unaware that systemic deficiencies in the asylum procedure and in the conditions for the reception of asylum seekers in the Member State initially identified as responsible in accordance with the criteria set out in Chapter III of Council Regulation (EC) No 343/2003 of 18 February 2003 establishing the criteria and mechanisms for determining the Member State responsible for examining an asylum application lodged in one of the Member States by a third-country national provide substantial grounds for believing that the asylum seeker concerned would face a real risk of being subjected to inhuman or degrading treatment within the meaning of Article 4 of the Charter, which is a matter for the referring court to verify, the Member State which is determining the Member State responsible is required not to transfer the asylum seeker to the Member State initially identified as responsible and, subject to the exercise of the right itself to examine the application, to continue to examine the criteria set out in that chapter, in order to establish whether another Member State can be identified as responsible in accordance with one of those criteria or, if it cannot, under Article 13 of the Regulation. Conversely, in such a situation, a finding that it is impossible to transfer an asylum seeker to the Member State initially identified as responsible does not in itself mean that the Member State which is determining the Member State responsible is required itself, under Article 3(2) of Regulation No 343/2003, to examine the application for asylum.

In Shamso Abdullahi v Bundesasylamt[88], the CJEU ruled that Article 19(2) of Council Regulation (EC) No 343/2003 must be interpreted as meaning that, in circumstances where a Member State has agreed to take charge of an applicant for asylum on the basis of the criterion laid down in Article 10(1) of that regulation – namely, as the Member State of the first entry of the applicant for asylum into the European Union – the only way in which the applicant for asylum can call into question the choice of that criterion is by pleading systemic deficiencies in the asylum procedure and in the conditions for the reception of applicants for asylum in that Member State, which provide substantial grounds for believing that the applicant for asylum would face a real risk of being subjected to inhuman or degrading treatment within the meaning of Article 4 of the Charter of Fundamental Rights of the European Union.

On 7 November 2013, the CJEU ruled on preliminary questions referred to it by the Dutch Council of State.[89] The applicants in the three joined cases brought an appeal against the decision of the Minister for Asylum and Immigration in which their request for a residence permit was declined. The applicants claimed that they feared persecution in their countries of origin on account of their homosexuality. The national court asked the CJEU (1) if Article 10(1)(d) of Directive 2004/83/EC on asylum qualification must be interpreted as meaning that homosexuals may be regarded as being members of a particular social group, (2) whether Article 9(1)(a) of the Directive, read together with Article 9(2)(c) thereof, must be interpreted as meaning that the mere fact that homosexual acts are criminalised and accompanying that criminalisation with a term of imprisonment is an act of persecution and (3) whether a distinction must be made between homosexual acts which fall within the scope of the directive and those which do not. The CJEU decided that the existence of criminal laws, which specifically target homosexuals, supports the finding that those persons form a particular social group which is perceived by the surrounding society as being different. Furthermore the CJEU ruled that the criminalisation of homosexual acts per se does not constitute an act of persecution. However, a term of imprisonment which sanctions homosexual acts and which is actually applied, must be regarded as being a punishment which is disproportionate or discriminatory and thus constitutes an act of persecution. The CJEU then stated that only homosexual acts which are criminal in accordance with the national law of the Member States are excluded from the scope of Directive 2004/83/EC.

Already before this judgment of the CJEU was issued, the German Higher Administrative Court of Baden-Württemberg decided on a similar case[90]. It came to the same conclusion, stating that a homosexual belongs to a 'social group' for the purpose of the asylum qualification directive. It held that this sexual orientation is a part of a person's sphere of privacy which is protected under Article 8 ECHR and Article 7 of the Charter, both of which needed to be taken into account when interpreting the relevant EU directive and national law. Yet it held that in the particular case the country of origin did not practice a persecution of that group. Thus, it had to be decided on the basis of the individual circumstance of the case if the applicant in the concrete case would face persecution in his country of origin if he were to be returned there. This the court answered in the affirmative.

Article 19: Protection in the event of removal, expulsion or extradition

The Charter in Article 19 prohibits removal, expulsion or extradition to a State where there is a serious risk that an individual would be subject to the death penalty, torture, or other inhuman or degrading treatment or punishment.

Legislation

Following the CJEU's annulment of Council Decision 2010/252/EU on surveillance of the sea external borders,[91] the European Commission presented a new Proposal for a Regulation establishing rules for the surveillance of the external sea borders in the context of operational cooperation coordinated by Frontex[92]. As already indicated above,[93] This European Commission proposal provides that any measures taken during surveillance operations must be in full respect of fundamental rights and the principle of non-refoulement.

Laws that criminalise ‘irregular entry and/or stay’, in different forms exist in the majority of Member States. Neither the Return Directive nor any other EU legal instrument prevent Member States from considering irregular entry and/or stay as a criminal offence under their national criminal law. However, several ECJ judgments have limited and constrained Member States’ ability to keep returnees in prison as a consequence of this[94]. These rulings have resulted in a wide range of changes to national legislation in the countries examined and several Member States have recently changed their legislation as a consequence of this jurisprudence. The European Commission is following the situation closely and has already launched EU Pilot procedures against certain Member States.

International agreements

Ensuring respect for human rights – including those enshrined in the Charter and the 1951 Geneva Convention in the implementation of EU Readmission Agreements (EURA) - is considered of utmost importance by the European Commission, as outlined in its Communication to the European Parliament and the Council on the Evaluation of EU Readmission Agreements[95]. The Return Directive and the Asylum Procedures Directive contain clear safeguards on access to the asylum procedure and the protection of the non-refoulement principle, and EURAs cannot be applied in violation of these guarantees. Without questioning the applicability of the current EU acquis and other relevant international instruments (which must always be observed during the implementation of EURAs), the European Commission has proposed several flanking measures which would further ensure the full respect of human rights of returnees. In response to the Stockholm programme, the European Commission proposed 15 recommendations addressing the implementation and negotiation of EURAs as well as the further strengthening of human rights guarantees of readmitted persons.

As a result, the latest EURAs contain new provisions, in particular the Agreement with Armenia – which was signed on 19 April 2013 and entered into force on 1 January 2014 – and the Agreement with Azerbaijan, which was signed on 28 February 2014. A new article was added on ‘fundamental principles’, which ensures respect for the human rights of persons in the readmission procedure, and safeguards the treatment of persons in accordance with relevant international obligations after their readmission. This provision also stipulates the priority that voluntary return should enjoy over forced return. A suspension clause has been added to the final provisions of these agreement that, although formulated neutrally, would allow for unilateral suspension of the Agreement in case of a deterioration over a protracted period of the overall human rights situation in a third country. Finally, the European Commission has together IOM and UNHCR developed a pilot project introducing a post-return monitoring mechanism in selected third countries (Pakistan and Ukraine), which has started operations to monitor the well-being of persons after being returned under an EURA (own nationals as well as third country nationals and stateless persons).

Case law

The CJEU in case G and R[96] expressly confirmed that the rights of the defence referred to in Article 41 (2) of the Charter (the right to be heard and the right to have access to the file) must be observed when taking decisions under the Return Directive even where this Directive does not expressly provide for such a procedural requirement. In this context the CJEU clarified that not every irregularity in the observation of the rights of the defence brings about the annulment of the decision.

Ruling of the Federal Administrative Court of Germany[97]

In this case an Afghan citizen applied for asylum in Germany, because he feared discrimination in his home country. The Federal Administrative Court decided that the national relevant law, providing that a foreigner must not be deported to a state in which he is facing threat of torture, inhumane or humiliating treatment or punishment, must be interpreted in line with EU Directive 2011/95/EU (the Asylum Qualification Directive), Article 3 of the ECHR and Article 19 of the Charter. The Federal Administrative Court repealed the judgment of the Mannheim Higher Administrative Court since it referred to the region of Kabul to determine whether there is an armed conflict at the destination of the applicant and did not refer to the native region of the applicant.

3. Equality

As in the previous years, the year 2013 witnessed a number of serious incidents of racism and xenophobia in the EU, including racist and xenophobic hate speech and violence against Roma and immigrants. The majority of Member States have provisions penalising incitement to racist and xenophobic violence and hatred, but these do not always seem to fully transpose the offences covered by the Framework Decision 2008/913/JHA on combating certain forms and expressions of racism and xenophobia by means of criminal law.

Data collected by the EU Fundamental Rights Agency (FRA) on Jewish people's experiences and perceptions of hate crime has revealed that one third of the respondents (33 %) experienced some form of anti-Semitic harassment in the five years before the survey, while one quarter (26 %) encountered such harassment in the 12 months before the survey, and that on average, minorities are victims of assault or threat more often than the majority population.

Regarding the inclusion of the Roma, the Council has adopted a recommendation on effective Roma integration measures in the Member States. It is the first ever EU-level legal instrument for Roma inclusion. It reinforces the EU Framework for national Roma integration strategies agreed by all Member States in 2011 and gives specific guidance to help Member States strengthen and accelerate their efforts in order to bridge the gaps between the Roma and the rest of the population.

Results of the FRA LGBT survey have provided valuable evidence of how LGBT persons in the EU and Croatia experience bias-motivated discrimination, violence and harassment in different areas of life, including employment, education, healthcare, housing and other services.

The European Commission launched an infringement procedure against Finland concerning inadequacies relating to the country’s national equality body, which all Member States are required to set up under Directive 2000/43/EC (the Racial Equality Directive).

The European Commission has proposed a Directive on procedural safeguards for children suspected or accused in criminal proceedings, which is to ensure that children have mandatory access to a lawyer at all stages of criminal proceedings.

The Social Investment Package[98] and its accompanying Recommendation on Investing in Children: breaking the cycle of disadvantage calls on Member States to step up early, preventative social investments targeting children to ensure that children are given the best start in life and to make sure that children are not locked into a life of disadvantage. To support its implementation, the European Commission has also created a European Platform for investing in Children which collects and disseminates evidence- based good practices in such areas as or parental support, or early childhood education and care.

The European Commission engaged with all relevant stakeholders on how to support integrated child protection systems through the implementation of the EU Agenda during the 8th Forum on the Rights of the child. It has also set up an informal Member State expert group as a further step towards enhanced cooperation and dialogue with stakeholders.

In the joined cases Ring and Skouboe Werg, the CJEU interpreted Council Directive 2000/78/EC establishing a general framework for equal treatment in employment and occupation in the light of Article 1 UN Convention on the Rights of Persons with Disabilities and adopted a broad interpretation of the concept of disability provided in the Directive.

In the IBV case, the CJEU held that the Charter and the principle of non-discrimination as enshrined in its Article 21 apply to a Belgian support scheme for renewable energy (biomass).

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, age or sexual orientation. The Charter also prohibits discrimination on grounds of nationality, within the scope of application of the Treaties and without prejudice to any of their specific provisions. Discrimination based on racial or ethnic origin is a violation of the principle of equal treatment and is prohibited in the workplace and outside the workplace. In the area of employment and occupation, EU legislation prohibits discrimination on grounds of religion or belief, disability, age or sexual orientation.

Legislation

The Irish Presidency continued the discussions in the Council working group on the European Commission's Proposal for an Equal Treatment Directive, prohibiting discrimination on grounds of religion or belief, disability, age or sexual orientation also outside the area of employment and occupation[99]. Its work focused on the scope of the Directive, providing a definition of the wording 'access to' in this context as opposed to the concept of 'eligibility' (as the setting of eligibility criteria in the area of education and social protection remains in exclusive Member State competence). The Presidency also worked on the definition of 'reasonable accommodation' for people with disabilities, discrimination 'by association', and preferential pricing for certain age groups. The aim is to improve the text at technical level, as long as no political compromise is in sight.

Negotiations for a Directive on improving the gender balance among non-executive directors of companies listed on the stock exchange are on-going[100]. On 20 November 2013 the European Parliament adopted its first reading report on the proposed Directive[101] by a vast majority of its members, confirming a broad consensus on the objective of increasing women's representation on corporate boards and largely endorsing the European Commission's approach to redressing the current imbalance.[102] The European Commission also adopted on 13 April 2013 a Proposal for a Directive amending Council Directives 78/660/EEC and 83/349/EEC as regards disclosure of non-financial and diversity information by certain large companies and groups. This proposal would oblige companies to disclose their diversity policies for their administrative, management and supervisory bodies with regard to aspects such as age, gender, geographical diversity, educational and professional background. It only applies to large companies listed on the stock exchange. A political compromise was reached by the European Parliament and Council on 26 February and the Parliament will likely adopt the measure in April 2014.

The European Commission also ensures that its legislative proposals under negotiation in 2013, such as the Proposal for a Council Regulation on jurisdiction, applicable law and the recognition and enforcement of decisions in matters of matrimonial property regimes and the Proposal for a Council Regulation on jurisdiction, applicable law and the recognition and enforcement of decisions regarding the property consequences of registered partnerships comply with the principle of equal treatment of same sex couples.[103]

Furthermore, the European Commission continued monitoring the transposition and implementation of the Framework Decision 2008/913/JHA on combating certain forms and expressions of racism and xenophobia by means of criminal law, which all Member States were obliged to transpose into their national legislation by 28 November 2010. By the end of 2013 all Member States had notified their national implementing measures to the European Commission. The European Commission finalised its assessment of the notifications and prepared a report on Member States' compliance with the Framework Decision, which was adopted on 27 January 2014, honouring International Holocaust Remembrance Day.

The report concludes that a number of Member States have not transposed fully and/or correctly all the provisions of the Framework Decision, namely in relation to the offences of denying, condoning and grossly trivialising certain crimes. The majority of Member States have provisions on incitement to racist and xenophobic violence and hatred but these do not always seem to fully transpose the offences covered by the Framework Decision. Some gaps have also been observed in relation to the racist and xenophobic motivation of crimes, the liability of legal persons and jurisdiction. The European Commission therefore considers that the full and correct legal transposition of the existing Framework Decision constitutes a first step towards effectively combating racism and xenophobia by means of criminal law in a coherent manner across the EU. Since infringement procedures for Framework Decisions are not possible before 1 December 2014, the European Commission will engage in bilateral dialogues with Member States during 2014 with a view to ensuring full and correct transposition of the Framework Decision, giving due consideration to the Charter.

The European Commission has also shown that it is strict and serious about the full and correct implementation of the provisions of Directive 2000/43/EC (the Racial Equality Directive