4.developing a new policy on legal migration.

Specific focus was given to urgent action to prevent deaths at sea. This included a proposal for an EU-wide resettlement scheme across all Member States to offer 20 000 places to displaced persons in clear need of international protection in Europe and, more recently, a proposal for a voluntary humanitarian admission scheme with Turkey.

The proposed policy initiatives are directly relevant for the protection and promotion of fundamental rights. For example, for returns, the Commission published a Return Handbook to support the September 2015 Action Plan on Return. The handbook provides guidance for national authorities including on how to ensure that any return operation fully complies with fundamental rights, especially for unaccompanied children.

As one immediate action to help frontline Member States facing disproportionate migratory pressures at the EU’s external borders, the Commission proposed to develop a ‘hotspot approach’. Hotspots can help Member States to better secure fundamental rights safeguards in practice, if efforts are shared to ensure that sufficient resources and staff are in place. Since the Western Balkans Leaders’ meeting in October 2015, the Commission has been closely following developments along the Western Balkans route. In the Leaders’ Statement, Greece and the Western Balkan countries committed to increase their reception capacities to enable better and more predictable management of migration flows. To this end, the Commission has granted both emergency and humanitarian assistance.

The December 2015 proposal for a Regulation establishing a European Border and Coast Guard (‘the Agency’) is also significant for safeguarding fundamental rights. It foresees the adoption of a code of conduct applicable to all border control operations coordinated by the Agency and of a code of conduct for return. A fundamental rights officer monitors the Agency's respect of fundamental rights and a complaint mechanism would deal with any violations of fundamental rights during operational activities. Joint operations or rapid border interventions could be suspended or stopped in the case of any breach of fundamental rights or international protection obligations. The Agency is to draw up a fundamental rights strategy with specific focus on children, victims of human trafficking, people in need of medical assistance or of international protection, people in distress at sea, and others in a vulnerable situation. The common core curricula for the Agency's border guard training would support compliance with the Charter.

Full compliance with fundamental rights is one of five guiding principles of the European Agenda on Security. It highlights that security and respect for fundamental rights are not conflicting aims, but complementary policy objectives. Ensuring security is an essential prerequisite for the protection and free exercise of fundamental rights. At the same time, all security measures must respect fundamental rights and the rule of law, and comply with the principles of necessity, proportionality and legality, with appropriate safeguards to ensure accountability and judicial redress. The Commission’s counter-terrorism proposals — following the Paris attacks in November 2015 — reflect this approach. The proposed Directive on Terrorism highlights the importance of respecting fundamental rights in transposing criminal law provisions into national law. It protects the fundamental rights of victims and potential victims. It criminalises preparatory acts, such as training and travel abroad, for terrorist purposes, aiding or abetting, inciting and attempting terrorist acts, and terrorist financing. It also seeks to ensure that any limits on fundamental rights of suspects and accused do not go further than what is strictly necessary, thus upholding the principles of legality and proportionality of criminal offences and penalties (Article 49 of the Charter).

The importance of fundamental rights in security action is reflected in the prominence given to preventive actions in the context of counter-terrorism policies. The EU response to extremism must not lead to stigmatisation of any group or community, but rather draw on common European values of tolerance, diversity and mutual respect. The Agenda on Security seeks to address the root causes of extremism through education, youth participation, interfaith and intercultural dialogue, and employment and social inclusion. It emphasises the importance of combating discrimination, racism and xenophobia, and highlights the EU's key actions in this field.

This was also reflected in the "Declaration on promoting citizenship and the common values of freedom, tolerance and non-discrimination through education" (Paris Declaration) , following the informal meeting of EU Education Ministers on 17 March in Paris, which provides a set of recommendations on the important role of education in promoting fundamental values such as active citizenship, mutual respect, diversity, equality and social inclusion, and in preventing violent extremism. As a follow-up to the Paris Declaration, the Commission and the Member States agreed on a set of new priority areas for cooperation at EU level until 2020.

Finally, on 19 October 2015 the Commission hosted the High-level Ministerial Conference "Criminal justice response to radicalisation", to exchange experiences on preventing radicalisation in prisons and rehabilitation programmes for foreign fighters and returnees. The joint commitment of the Member States to act in this area was confirmed in the Council Conclusions on "enhancing the criminal justice response to radicalisation leading to terrorism and violent extremism" of 20 November 2015.

2.3. Mainstreaming the Charter in international agreements and ensuring consistency in human rights

Article 21 of the Treaty on European Union guides the EU’s external action.

In response to the April 2015 Joint Communication ‘Keeping Human Rights at the heart of the EU agenda’, the Council adopted, in July, the EU Action Plan on Human Rights and Democracy (2015–2019). It lists more than 100 actions on human rights and democracy under 34 items. Giving effect to Article 21, the action plan implements commitments in the Strategic Framework on Human Rights and Democracy and provides leverage for the engagement of all EU authorities and stakeholders and improved mainstreaming of human rights’ considerations in all EU external policies. Planned actions include addressing human rights concerns in the impact assessment of policies that could have a significant impact in non-EU countries. The action plan sets out actions linked to the Commission’s work on internal fundamental rights compliance, in particular on privacy in the context of risks of mass surveillance, judicial reform, children’s rights, gender equality, the fight against racism and xenophobia, migration and counter-terrorism.

The Commission's October 2015 ‘Trade for All’ strategy sets out steps to ensure that fundamental rights are respected in the EU and in non-EU countries. It covers the right to regulate, and the assessment of impacts on fundamental and human rights of trade policies and agreements. It links trade policy with advancing human rights in non-EU countries, in particular for child labour, forced prison labour, and forced labour as a result of human trafficking and land grabbing. Human rights considerations are increasingly being incorporated into EU bilateral free trade agreements and into EU export controls policy.

In September 2015, the Commission finalised negotiations on the EU-US Data Protection ‘Umbrella Agreement’. This will ensure data protection safeguards for any transfer of personal data between the EU and the US in any police or judicial cooperation in criminal matters. Under the agreement, if their personal data are transferred to US law enforcement authorities and these data are incorrect or unlawfully processed, EU citizens — non-resident in the US — will be able to obtain redress in US courts. It constitutes a significant improvement of the situation concerning judicial redress in the US.

In August 2015, the EU held a dialogue with the UN Committee on the Rights of Persons with Disabilities for the first time ever over the implementation by the EU of the UN Convention on the Rights of Persons with Disabilities (UNCRPD). The EU was represented by the Commission, as focal point for the EU under the Convention. The related UNCRPD Committee adopted the Concluding Observations in October 2015 and the Commission stated its commitment to implement them.

In July 2015, the Commission adopted — as part of Better Regulation — Guidelines on the analysis of human rights impacts in trade-related impact assessments. These will facilitate analysis of the impacts of trade policy initiatives on human rights in both the EU and partner countries. The Better Regulation Agenda also foresees impact assessment on human rights for proposals with an external dimension in general.

2.4 Court of Justice scrutiny of EU institutions

In the Schrems case, the CJEU declared the Commission’s 2000 Safe Harbour Decision invalid. That decision was an adequacy decision under Article 25(6) of the Data Protection Directive. It had authorised transfer of personal data to a non-EU country, in this case the US. It had found an acceptable level of protection by reason of domestic law or US international commitments. The transfer of personal data to servers in the US by Facebook’s Irish subsidiary, authorised by this adequacy finding, was challenged before an Irish court, in particular because of revelations on mass surveillance in 2013 by US intelligence authorities.

The Court held that an adequacy decision was conditional on a Commission finding that — in the non-EU country concerned — there is a level of protection of personal data that, while not necessarily identical, is ‘essentially equivalent’ to that guaranteed in the EU by virtue of the Directive, as read in the light of the Charter. The Court held that the 2000 Safe Harbour Decision did not contain sufficient findings by the Commission on limits of access by US public authorities to data transferred under the decision, and on the existence of effective legal protection against such interference. The Court ruled that legislation giving public authorities general access to the content of electronic communications must be regarded as compromising the essence of the fundamental right to respect for private life. The Court’s judgment provided extra justification for the Commission’s approach since November 2013 in reviewing the safe harbour arrangements: the Commission seeks to ensure the data protection required by EU law. In November 2015, the Commission issued guidance on the possibilities of data transfer in light of the Schrems ruling, setting out alternative systems for transfers of personal data to the US until a new framework is put in place.

2.5 European Convention on Human Rights