EUROPEAN COMMISSION Brussels, 11.2.2021 SWD(2016) 158 final/2 CORRIGENDUM

This document replaces SWD(2016) 158 final of 19.5.2016

Correction of footnotes 220 and 221



The text shall read as follows: COMMISSION STAFF WORKING DOCUMENT Staff Working Document on the Application of the EU Charter of Fundamental Rights in 2015 Accompanying the document Report from the Commission to the European Pariliament, the Council, the European Economic and Social Committee and the Committee of the Regions 2015 Report on the Application of the EU Charter of Fundamental Rights {COM(2016) 265 final}



Introduction After the entry into force of the EU Charter of Fundamental Rights (the Charter), in December 2009, the Commission adopted a Strategy on the effective implementation of the Charter setting as an objective that the EU is beyond reproach as regard the respect of fundamental rights, in particular when it legislates. The Commission further 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 2015 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 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 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 Commission can take the matter to the CJEU and start an infringement procedure against the Member State in question. The Commission is not a judicial body or a court of appeal against the decisions of national or international courts. Nor does it, as a matter of principle, examine the merits of an individual case, except if this is relevant to carry out its task of ensuring that the Member States apply EU law correctly. In particular, if it detects a wider, e.g. structural, problem, the 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 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. 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 European Convention on Human Rights (ECHR), in accordance with that convention. In fact, all EU Member States are bound by the commitments they have made under the 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. Furthermore, the interpretation of the Charter rights which correspond to rights guaranteed by the ECHR must correspond to the interpretation of the latter by the ECtHR.

EU accession to the European Convention of Human Rights

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. The opinion of the Court of Justice of December 2014, by which the Court declared the 2013 draft Accession Agreement incompatible with the Treaties, raised legally and politically complex issues. After a reflection period during which the Commission has examined the best way forward, in both legal and political terms, the Commission, in its capacity as EU negotiator, is now consulting with the special committee designated by the Council on concrete solutions for the different issues raised in the opinion of the Court of Justice. Overview of the letters and questions to the Commission on fundamental rights



During 2015, the Commission received almost 2200 letters from the general public concerning fundamental rights issues as well as 930 questions from the European Parliament concerning fundamental rights issues. It has also received 916 petitions from the European Parliament, 187 of which concerned fundamental rights. Among the letters from the general public on fundamental rights issues received by the Commission in 2015, 895 concerned issues within EU competence. In a number of cases, the Commission requested information from the Member States concerned or explained to the complainant the applicable EU rules. In other cases, the complaints should in fact have been addressed to the national authorities or to the 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, 570 concerned issues within EU competence. Among 187 petitions, 106 concerned issues within EU competence. In a number of cases, the Commission contacted the Member States to obtain clarifications on alleged violations. The replies given by the Commission explained or clarified the relevant policies and 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 113, which is almost a triple of the number of cases of 2011. In 2014, this number rose even higher to 210 cases while in 2015 it settled at 167 (see Appendix I for an overview of all relevant rulings).

Source: European Commission National courts when addressing questions to the CJEU (applications for preliminary rulings) are often referring to the Charter. Regarding applications for preliminary rulings submitted by national judges to the CJEU in 2015, 36 of the requests submitted contained a reference to the Charter, compared to 43 in 2014 (See Appendix II for an overview of the applications for preliminary rulings submitted in 2015 which refer to the Charter). Source: European Commission



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



When focusing on the different articles of the Charter referred to in cases before the EU Courts the articles that featured prominently were the ones on the right to an effective remedy and a fair trial, the right to good administration and the scope and interpretation of rights and principles. Source: European Commission Note: The basis for this pie chart is the case law as referred to in Appendix I. The total number of judgments analysed amounted to 167, and the total number of references to different Charter articles amounted to 326, as several judgments referred to more than one article. The percentages were calculated on the basis of these 326 references. The category 'Other rights' refers to all rights for which the percentage amounts to less than 2 %, i.e. less than 8 references. The rights mostly referred to in decisions of national courts in 2015 were the right to an effective remedy, the right to private and family life and the right to protection of personal data. Source: European Union Agency for Fundamental Rights (FRA)

Note: The data for this graph is based on up to three court decisions per EU Member State where the Charter was used in the courts’ reasoning (cases where the courts simply refer to the fact that parties invoked the Charter were not taken into account). 68 court decisions from 26 Member States were analysed. Just as last year, no relevant case was identified for Denmark. Also for Croatia no case was communicated. The percentages are based on the total number of references made to the Charter (121), rather than the number of courts’ decisions (68), as some courts' decisions contained references to more than one Charter articles. 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 2015, the EDCC replied to 9,199 enquiries from citizens. Most Enquirires concerned topics such as: free movement of persons, consumer policy and judicial cooperation and fundamental rights and citizenship. Source: European Commission Methodology and Structure of the Staff Working Document



The Staff Working Document annexed to the Annual Report does not look at the Charter only as a legally binding source of law. It rather aims also to render account, from a broader perspective, of the different ways the Charter was invoked and contributed to the progress made in respecting and promoting fundamental rights in a number of areas during 2015. 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: oExamples of EU institutions (proposed or adopted) legislation promoting the Charter rights; oExamples of how the EU institutions and the Member States ensured compliance with and have applied the Charter in 2015 within other (proposed or adopted) legislation; ·Policy: oExamples of how the EU institutions and the Member States ensured compliance with and have applied the Charter in 2015 within policy areas, e.g. through recommendations and guidelines and best practices; ·Case-law: oRelevant jurisprudence of the CJEU; oCase-law of national courts referring to the Charter (be it within or outside the scope of EU law);

·Application by Member States: oFollow-up: infringement procedures launched by the Commission against Member States for not or wrongly implementing relevant legislation; ·Questions and petitions from the European Parliament, and letters from the general public received in 2015 focusing on main fundamental rights issues; ·Data gathered by the EU Agency for Fundamental Rights throughout 2015.



Dignity In May 2015 the European Ombudsman closed its enquiry concerning the means through which Frontex ensures respect for fundamental rights in joint return operations. Specific fundamental rights safeguards were later included in the proposal for a Regulation on the European Border and Coast Guard with a view to ensuring compliance with the specific provisions of the Charter, including the right to dignity and the prohibition of inhuman and degrading treatment. Council Decisions adopted in November 2015 authorised the Member States to ratify, in the interests of the European Union, the Protocol of 2014 to the Forced Labour Convention of the International Labour Organisation. The Protocol obliges the State Parties to prevent the use of forced labour, in particular in the context of trafficking in human beings, to improve the protection of victims, and to provide access to compensation.



Title I Dignity

Article 1 – Human Dignity Human dignity, as protected in Article 1 of the Charter, is the basis of all fundamental rights. It guarantees the protection of human beings from being treated as a mere objects by the State or by his/her fellow citizens. It is not only a right in 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. 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 several instances in 2015. In the area of migration, in May 2015 the European Ombudsman closed its enquiry concerning the means through which Frontex ensures respect for fundamental rights in joint return operations (JRO). The Ombudsman commended Frontex' work to date. However, she called on the agency to ensure that families with children and pregnant women are seated separately from other returnees. Frontex should also promote common rules on the use of restraint, publish more information on JROs, including monitors' reports, and require the Member States to improve complaints procedures. The Ombudsman expressed concern about the refusal of Frontex to establish its own complaints mechanism. The proposal for a Regulation on the European Border and Coast Guard adopted in December 2015, represents an important step forward in answering to the European Ombudsman's recommendations. The proposal which is intended to ensure the implementation of the European integrated border management in line with the principle of shared responsibility, aims at establishing a number of fundamental rights safeguards to ensure compliance with fundamental rights , first and foremost the right to human dignity. The proposal envisages, in particular, that the financing of a joint operation or a rapid border intervention may be withdrawn and that such operations and interventions may be suspended or terminated in case of a breach of fundamental rights. A Fundamental Rights Officer shall have the task to monitor the respect of fundamental rights by the Agency, and a complaint mechanism will be available to any person who considers him or herself to have been subject of a breach of fundamental rights during activities carried out by the Agency, or any third party intervener. Finally, it is envisaged that the Agency shall draw up a Fundamental Rights Strategy aimed at guaranteeing the protection of fundamental rights in the performance of its tasks, including a specific focus on persons in need of international protection and other persons in a particularly vulnerable situation. Codes of Conduct to be developed by the Agency will ensure respect for fundamental rights in all border control and return operations. Policy On 18 March 2015, a new international framework, the Sendai Framework for Disaster Risk Reduction 2015-2030 , was agreed and signed by 187 UN Member States in Sendai, Japan. The EU has taken a leading role in building a robust, ambitious and enhanced framework. The Commission played a cooperation and coordination role in the process, organising regular coordination meetings with Member States and preparing common positions. The new framework outlines seven global 'qualitative' targets to be achieved over the next 15 years including a substantial reduction in global disaster mortality, a substantial reduction in numbers of affected people, a reduction in economic losses in relation to global GDP, a substantial reduction in disaster damage to critical infrastructure and disruption of basic services (including health and education facilities), an increase in the number of countries with national and local disaster risk reduction strategies by 2020, enhanced international cooperation and increased access to multi-hazard early warning systems and disaster risk information and assessments.

The EU has strongly supported a framework addressing vulnerabilities and needs, harnessing the potential of civil society and integrating gender, age, and disabilities into disaster risk management. The actions ensure compliance with the principles of dignity and equality recognised under the Charter. The implementation of the EU Aid Volunteers initiative started in January 2015 aiming at a first deployment of volunteers in early 2016. The EU Aid Volunteers initiative is based on Regulation (EU) No 375/2014 establishing the European Voluntary Humanitarian Aid Corps ("EU Aid Volunteers initiative") . The objective is to contribute to strengthening the Union’s capacity to provide needs-based humanitarian aid and to strengthening the capacity and resilience of vulnerable or disaster-affected communities in third countries, while giving the European citizens an opportunity to be involved in humanitarian action in third countries. The initiative aims at preventing and alleviating human suffering and maintaining human dignity, in line with Article 1 of the Charter. The actions under the initiative, namely the certification of sending and hosting organisations and deployment of volunteers, ensure equal opportunities and non-discrimination in the identification and selection process, in compliance with the principle of equality (Art. 20 and 21 of the Charter). Finally, in the field of migration, the Commission provided guidelines for the Member States on the obligation to take fingerprints , setting out best practices to follow in order to ensure that the obligations under the Eurodac Regulation are fulfilled in line with the provisions of the Charter. In particular, the guidance highlights the legal parameters of using any necessary force and detention in cases where third-country nationals refuse to have their fingerprints taken and stresses the need for Member States to have full regard to persons’ dignity and physical integrity. Application by Member States In 2014 the Commission had identified a possible violation of fundamental rights in a temporary detention centre for irregular migrants, which was confirmed by the Court of Auditors. Rental costs for the centre had been included in a national programme under the External Borders Fund and the Commission had not accepted the corresponding costs when the programme closed. The Court of Auditors found that the Member State had not complied with the prohibition of degrading treatment and the principle of human dignity due to the bad conditions in which irregular migrants were detained. During 2015, the corresponding financial corrections were effectively implemented and accepted by the Member State concerned. Questions from Members of the European Parliament In March and April 2015, Members of the European Parliament contacted the Commission regarding the approved UK “Human Fertilisation and Embryology (Mitochondrial Donation) Regulations”. The regulations allow a new technique, by means of which the resulting embryo receives the mitochondrial DNA from a third egg donor. Members of the European Parliament put forward, among others, that the regulations are in breach of the EU Charter of Fundamental Rights, Articles 1, 2, 3 and 21. In its replies, the Commission indicated that by allowing the mitochondrial transfer procedures, the UK does not implement EU law, in particular Directive 2001/20 on clinical trials, and therefore Charter does not apply. Article 2 – Right to life According to Article 2 everyone has the right to life and no one shall be condemned to the death penalty, or executed. The European Court of Human Rights has ruled since 1989 that the exposure to the pervasive and growing fear of execution - the so called “death row phenomenon” – was in violation of the European Convention on Human Rights. The ECtHR also held that the implementation of the death penalty could be considered inhuman and degrading and, as such, contrary to Article 3 of the European Convention on Human Rights. In a press interview of 28 April 2015 Hungarian Prime Minister Orbán launched a debate on the reintroduction of the death penalty. This led to strong criticism from EU institutions, including by President Juncker, FVP Timmermans as well as by the President of the European Parliament, Martin Schulz. On 30 April 2015, President Juncker declared his opposition to the death penalty and recalled that the Charter of Fundamental Rights of the European Union prohibits the death penalty. First Vice President Timmermans declared on 19 May 2015 that there is no doubt that the reintroduction of capital punishment would be contrary to the EU's fundamental values. A reintroduction of the death penalty by a Member State would therefore lead to the application of Article 7 TEU. The mechanisms of Article 7 TEU relate to the values referred to in Article 2 TEU, including human dignity and respect for human rights. The Commission noted that Hungary had in the meantime clarified that it had no intention to introduce the death penalty. Accordingly, no legal action was required by the Commission at this stage. In the field of migration, the budget of the Joint Operation Triton, launched off the coast of Italy on 1 November 2014, was tripled and the new Triton Operational Plan, agreed between Frontex and Italy and presented on 27 May 2015 , expanded both the number of deployed assets and the geographical scope of the operation, in order to allow Frontex to fulfil its dual role of coordinating operational border support to Member States under pressure and helping to save the lives of migrants at sea, thus contributing directly to the respect of the right to life. 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

The Victims' Rights Directive entered into application in the Member States on 16 November 2015. It lays down a set of rights for victims of crime, including a right to protection during the criminal proceedings and trial. The Directive requires inter alia that the national authorities apply specific protection measures relevant to victims' individual needs. The new Directive replaces the 2001 Framework Decision and reaffirms the existing minimum on the rights to access information, support, protection and basic procedural rights in criminal proceedings. However, the Directive brings significant added value compared to the previous legal framework since it contains more concrete and comprehensive rights for victims and clearer obligations for Member States. New rights and obligations: • Access to victim support – Member States must ensure access for victims and their family members to general victim support and specialist support, in accordance with their needs. The Directive specifies the basic level of services that need to be provided. Support is not dependent on the victim having reported the crime. Member States must facilitate referrals from police to victim support organisations. • Specialist support services must as a minimum provide shelters and targeted and integrated support for victims with specific needs, such as victims of sexual violence, victims of gender based violence and victims of violence in close relationships, including trauma support and counselling. • Individual assessment to identify vulnerability and special protection measures – All victims will be individually assessed to determine whether they are vulnerable to secondary or repeat victimisation or intimidation during criminal proceedings. If they have specific needs, a whole range of special measures will be put in place to protect them. The Commission has proposed the EU accession to the Council of Europe's Istanbul Convention, which offers a comprehensive approach to combatting violence against women, and which could strengthen the EU's efforts in promoting its fundamental values of human rights and equality between men and women. The European Commission published a roadmap on a possible EU accession to the Convention in October 2015, as a first, concrete step. Case-law The ECtHR judgment in case of Y v. Slovenia clarified the scope of the state's obligations regarding protection of victims during the criminal proceedings. The case concerned a young woman’s complaint about the criminal proceedings brought against a family friend, whom she accused of repeatedly sexually assaulting her while she was a minor, alleging that the proceedings were excessively long and traumatic for her. The ECtHR found that long breaks between the hearings in cases involving charges on sexual assault against a minor were not justified and that this amounted to inhuman and degrading treatment of the victim. The Court held that there had been a violation of Article 3 (prohibition of inhuman or degrading treatment) and of Article 8 (right to respect for private and family life) of the European Convention on Human Rights. The Court found that the Slovenian authorities had failed to protect the alleged victim’s personal integrity during the criminal investigation and trial. The Court noted that the proceedings had been marked by long periods of complete inactivity. The police had submitted an incident report of Y.’s complaint to the prosecutor only a full year after their investigation had been concluded and upon being urged by the prosecutor to do so. Also, they should have prevented the alleged assailant from using offensive and humiliating remarks while cross-examining her during the trial. Rulings of Maltese courts In Malta the Charter has been referred to by national courts in order to argue for the award of compensation in contexts where an entitlement for such compensation is not established by national law. In a 2015 decision, the Civil Court explicitly excluded the applicability of the Charter, but mentioned that lower courts have used Article 3 of the Charter on the right to the integrity of the person – for which there is no corresponding provision in the Maltese constitution - to argue for the possibility of claiming moral damages. (Malta, Civil Court, case no 33/2014 of 15 January 2015) Article 4 – Prohibition of torture and inhuman or degrading treatment or punishment Article 4 of the Charter provides that no one shall be subjected to torture or to inhuman or degrading treatment or punishment. The respect of Article 4 requires particular vigilance in the field of border controls, immigration and asylum issues. Legislation The proposal for a Regulation on the European Border and Coast Guard adopted in December 2015, intended to ensure the implementation of the European integrated border management in line with the principle of shared responsibility, aims at establishing a number of fundamental rights safeguards to ensure compliance with fundamental rights, including the prohibition of torture and degrading treatment. Policy

In the field of return, a Return Handbook was published by the European Commission to accompany the Action Plan on return adopted in September 2015, with a view to providing concrete guidance for national authorities in charge of return and contains detailed common guidelines, best practices and recommendations on how to ensure that any return operation fully complies with fundamental rights. This includes detailed guidelines on standards to be taken into account whenever Member States impose detention for the purpose of removal, in order to ensure detention conditions that comply with the prohibition of inhuman or degrading treatment under Article 4 of the Charter. Following the release, in December 2014, of the "Study of the Central Intelligence Agency's (CIA) detention and interrogation program" by the US Senate Select Committee on Intelligence, the European Parliament adopted on 11 February 2015 a resolution "on the US Senate report on the use of torture by the CIA" . The Parliament welcomed the publication of the report, recalled its absolute condemnation of torture, called on Member States to investigate fully recent allegations that illegal rendition, detention and torture took place on their territory and to prosecute those responsible and instructed several of its committees to resume its inquiry on ‘alleged transportation and illegal detention of prisoners in European countries by the CIA’ and to report to plenary within a year. Article 5 – Prohibition of slavery and forced labour Slavery violates human dignity. Trafficking in human beings is one form of slavery. The Charter explicitly prohibits trafficking in human beings in Article 5 (3). Both slavery and forced labour are the forms of exploitation covered by the definition of trafficking in human beings as stipulated in Article 2 of Directive 2011/36/EU on preventing and combating trafficking in human beings and protecting its victims. Preventing and combating it is a priority for the Union and the Member States. Policy As part of the EU’s strategy on eradicating trafficking in human beings, the European Commission organised, in cooperation with the Luxembourg Presidency of the Council of the European Union, a high-level conference to mark the Ninth EU Anti-Trafficking Day on 20 October 2015. The conference focused on the implementation of the ambitious EU legal and policy framework to address trafficking in human beings that is anchored in human rights, victims centred, gender-specific and child sensitive. The EU Anti trafficking Day - instituted for 18th October in 2007 - serves as an occasion to reinvigorate Europe-wide commitment for eradicating trafficking in human beings. On the occasion of the Ninth EU Anti-trafficking Day, the Commission published a series of relevant studies including the Study on case law on trafficking in human beings for the purpose of labour exploitation, the Study on prevention initiatives on trafficking in human beings and the Study on high risk groups focusing on children. Furthermore, on the same occasion, the European Union Agency for Fundamental Rights (FRA), in close cooperation with the European Commission, published the report “Guardianship systems for children deprived of parental care in the European Union”, which explores the key features of guardianship systems across all EU Member States that have been established to meet the needs of children without parental care, including those at risk of becoming victims of human trafficking or other forms of violence and exploitation. This comparative report complements the handbook on guardianship for children deprived of parental care, which is a deliverable of the EU anti-trafficking strategy. Council Decisions authorizing Member States to ratify, in the interests of the European Union, the Protocol of 2014 to the Forced Labour Convention of the International Labour Organisation (ILO) were adopted in November 2015. The Protocol was adopted by the assembly of the ILO, together with a Recommendation on Forced Labour, in June 2014. Countries ratifying the ILO Protocol agree to prevent the use of forced labour, in particular in the context of trafficking in human beings, to improve the protection of victims ensuring their identification, release, protection, recovery and rehabilitation, and to provide access to remedies, including compensation, to all victims and to ensure that competent authorities are entitled not to prosecute them for unlawful activities which they have been compelled to commit. Wide implementation of the Protocol to the Forced Labour Convention is of particular relevance for the EU, which is committed to promoting human rights and decent work conditions and to eradicating trafficking in human beings, both internally and in its external relations. Of particular importance in the context of the Protocol is also the commitment of the EU to the promotion of the protection of the rights of the child and gender equality, notably as children and women are particularly vulnerable to some forms of forced labour. Strengthening victims' rights in the EU has also been a strategic priority of the Commission over the past few years. The horizontal Victims' Rights Directive ensures that victims of crime benefit from common minimum standards of rights during police investigations and court proceedings. The Protocol should be seen as part of this work and its ratification by EU Member States sends an important signal on the coherence of the EU’s policy in addressing forced labour and trafficking in human beings in a more effective, coordinated and coherent manner. Another key instrument in this area is the ILO Domestic Workers Convention (Convention No. 189) , adopted in 2011. Two years after the adoption of the Council Decision authorising Member States to ratify this Convention, the Commission invited EU Member States on 15 December 2015 for an expert meeting to exchange views on national experiences, and discuss with ILO and Commission experts on the legal implications of the Convention and how to best implement it. A large consensus emerged among EU Member States during this meeting, on the need to protect domestic workers, predominantly women, and to improve their working conditions. Six EU Member States have ratified this Convention and many Member States have reported continuing exchanges with their social partners and stakeholders to advance ratification. The ratification by all EU Member States would complement the EU acquis on issues such as on working conditions and contribute to the EU efforts to promote ratification and application of up to date ILO conventions throughout the world. Another relevant policy initiative was the adoption, in the area of migration, of the EU Action Plan against migrant smuggling on 27 May 2015. The plan recognises fundamental rights protection as one of its guiding principles and contains several elements that show the Commission's commitment on this point. Among the actions mentioned in the Action Plan, a Commission proposal for a revision of the existing EU legal framework on migrant smuggling is expected by the end of 2016. The purpose of the review of the legislation is, among others, to reinforce the existing penal framework while avoiding punishment of those individuals who provide assistance for humanitarian reasons to migrants in distress. The Commission also announced the revision of Directive 2004/81/EC on residence permits issued to victims of trafficking in human beings and to smuggled migrants who cooperate with authorities with the aim to improve protection and assistance to the victims of such forms of crimes. Finally, the Action Plan envisages a specific role for the EU Fundamental Rights Agency in the implementation of this policy framework as regards in particular the development of the fundamental rights dimension, specifically in the field of protection of smuggled migrants, and as regards EU-wide mapping of training needs in this field.

Title II Freedoms In the field of data protection, the Council reached in 2015 an agreement with the European Parliament on the General Data Protection Regulation and a Data Protection Directive for Police and criminal justice authorities.

The Commission also continued to negotiate with its U.S. counterparts on the Data Protection Umbrella agreement in order to protect personal data transferred between the EU and the U.S. for law enforcement purposes as well as the conditions of a safe harbour successor regime as regards data transfers to the US for commercial purposes. The latter negotiations became even more topical after the CJEU in the Max Schrems case annulled the Commission's adequacy decision of 2000. The European Agenda for Migration and its subsequent implementation packages are of direct relevance to the enjoyment of the fundamental right to asylum. The Commission activated, for the first time in 2015, the emergency mechanism foreseen in the Treaties proposing a temporary distribution mechanism for persons in clear need of international protection within the EU. The Commission also adopted a proposal for a Regulation establishing a Crisis Relocation Mechanism and amending the Dublin III Regulation, and a proposal for a Regulation establishing an EU common list of safe countries of origin. Finally, as part of the immediate action to assist frontline Member States which are facing disproportionate migratory pressures at the EU’s external borders, the European Commission proposed to develop the so-called "hotspot approach". In 2015, the Commission initiated several infringement decisions for failing to fully implement legislation making up the Common European Asylum System.

Article 6 – Right to liberty and security Article 6 of the Charter guarantees the right of everyone to liberty and security of person. These rights correspond to the rights guaranteed in Article 5 of the ECHR. This means in particular that a person's liberty can only be limited under strict legal conditions. Case law In the Lanigan case , the CJEU referred to the fundamental right to liberty and security in the light of implementation of the European Arrest Warrant. Here the Court held that the expiry of the time-limits to take a decision on the execution of a European arrest warrant did not preclude, in itself, the continued holding of the requested person in custody. However, the Court noted that in accordance with the fundamental right to liberty and security the requested person must be released, together with measures necessary to prevent him from absconding, if the duration of the custody is excessive. 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. Where legislation, policy or case law refer to this right in connection to the protection of personal data, this report will refer to them under Article 8 below. Legislation In 2015, the Directive on the coordination and cooperation measures to facilitate consular protection for unrepresented citizens of the Union in third countries was adopted. Amongst others the Directive clarifies when and how third country family members of EU citizens can receive protection with a view to ensuring the effectiveness of the right to consular protection, and of the right to respect for private and family life recognised in Article 7 of the Charter. Case Law In the case Deutsche Bahn the CJEU reviewed the investigative powers of the Commission in the context of enforcing EU competition law. The Court ruled on whether an inspection carried out by the Commission without prior judicial authorisation constituted an infringement of the right to the inviolability of the private premises, as laid down by Article 7 of the Charter. The Court, after reiterating its case law that in principle Article 7 may also protect businesses premises, concluded that there was no such infringement in this case, given that the Commission’s powers of investigation were strictly defined and there was an effective legal remedy ex post, which constituted a fundamental guarantee in order to ensure the compatibility of the inspection measure in question with Article 7 of the Charter as well as Article 8 of the ECHR. The later had already been ruled upon by the ECtHR. As regards the right to respect for family life, and in particular the right to family reunification, the Court of Justice ruled in K and A that the right to family reunification as guaranteed by EU law to third country nationals residing lawfully in the territory of the Member States does not prevent Member States from requiring third country nationals to pass a civic integration examination prior to family reunification, provided that the exercise of the right to reunification is not, as a result of this examination, made impossible or excessively difficult. Such an assessment should take into account specific individual circumstances, such as the age, level of education, economic situation or health of the applicants, as well as the cost of the examination. It is on those grounds that the Court found that the national provisions at stake, in so far as they did not consider the special circumstances objectively forming an obstacle to the applicants passing the examination and in so far as they set the fees relating to such an examination at too high a level, could be regarded as making the exercise of the right to family reunification impossible or excessively difficult. Ruling of the Lithuanian Supreme Court In Lithuania the Supreme Court interpreted national law in line with the Charter against the background of the EU data protection directive (Directive 95/46). The case concerned a legal dispute between two joint owners of a house. One of the owners had decided to install surveillance cameras on his part of the building without asking the permission of the second owner, who brought a case against the co-owner seeking the removal of the cameras. The Court made reference to the respect for private and family life (Article 7) and the protection of personal data (Article 8), emphasising that the exception of “purely” private use of data laid down in the EU directive and the Lithuanian law implementing it should be interpreted narrowly and decided in favour of the claimant. (Lithuania, Supreme Court, case no 3K-3-430-415/2015 decision of 26 June 2015)

Ruling of the Portuguese Constitutional Court In Portugal, the President of the Republic made use of the possibility provided by the Constitution to seek an ex-ante evaluation from the Constitutional Court of the constitutionality of a provision in a Parliamentary Decree that had been passed by the Parliament and submitted to him for promulgation. The decree was about the Republic’s Information System that would allow officials of the Security Information Service and the Strategic Defence Information Service, under determined circumstances, access to banking and tax data, data on communication traffic, locality or other data. The Court declared the relevant provision unconstitutional referring amongst others to Article 7 of the Charter (respect for private and family life) and Article 8 of the Charter (protection of personal data). (Portugal, Constitutional Court, case no 773/15, judgement no 403/2015 of 27 August 2015). Article 8 – Protection of personal data The fundamental right of everyone to the protection of personal data is explicitly recognised by Article 8 of the Charter. It is furthermore stated in Article 16 of the Treaty on the Functioning of the European Union. It aims at the protection of an individual's free decision on the use of his or her own personal data. This right is gaining increasing importance in view of the explosion of the collection, use and distribution of personal data within our digital society. Legislation The significant advancements of the data reform package constitute the cornerstone of EU legislation efforts on the protection of personal data in 2015, thereby further substantiating the fundamental right to protection of personal data. Already in January 2012 the Commission had published its proposals for a General Data Protection Regulation and a Data Protection Directive for Police and criminal justice authorities. These measures are aimed at replacing the existing 1995 Data Protection Directive 95/46/EC and the Framework Decision 2008/977/JHA. This package is a key element for the completion of the Digital Single Market, and for the protection of the fundamental rights of individuals in the face of rapid technological change. The European Parliament had adopted its position in first reading on 12 March 2014, confirming its strong support for the Commission's data protection reform. On 15 December 2015 the Council reached an agreement with the European Parliament on the Regulation and on the Police Directive thereby meeting the objective set by the European Council and by the political guidelines of President Juncker. Currently work is ongoing to prepare the agreed texts for the formal adoption by the Parliament and the Council. The Regulation and the Police Directive will become applicable two years after publication. The new EU data protection rules will apply not only to European companies, but also to foreign companies offering goods and services to EU citizens, or monitoring their behaviour. In other words, the same rules will apply to all companies operating in the EU regardless of where they come from. For example, start-ups from other world regions will have to play by the same rules as start-ups from Europe. Further legislative activities of the EU relevant for fundamental rights to private life (Article 7) as well as for the protection of personal data (Article 8 of the Charter) were aimed at furthering concrete EU policies while at the same maintaining a high level of protection of these fundamental rights. Such policies in particular concerned public or policy interests (e.g. in the field of fisheries, external border control, tax information or insolvency) as well as the advancement of digital technologies. Under the Common Fisheries Policy, the Commission submitted two proposals for regulations foreseeing the collection of data in the fisheries sector. The Proposal for a Regulation on a framework for the collection, management and use of data in the fisheries sector aims to be the main legal instrument by which Member States are to provide any data in the fisheries sector necessary to data users (end-users and other interested parties), whatever the source of the legal obligation under which data are collected, unless other legal instruments already provide for the availability of the data (e.g. most statistical regulations). In this context, no generic measures should, a priori, restrict the access to data, whether by scientific users or by other interested parties. However, where the protection of personal data is at stake, the proposal would ensures that appropriate safeguards be taken by the Member States. Thus, a higher level of aggregation or anonymisation of data must be achieved, if the latter include information relating to identified or identifiable natural persons. The proposal for a regulation on the sustainable management of fishing fleets aims at allowing the Union to better monitor its external fishing fleet. It follows upon the new Common Fisheries Policy, which is enshrined in the 'Basic Regulation'. The latter promotes, amongst others, European Union fishing activities outside Union waters that shall be sustainable and based on the same principles and standards as those applicable under Union law in European waters. One of the core principles of good governance promoted by the Basic Regulation in its Article 3, is transparency of data. In the light of the above, Article 34 of the Proposal aims to institute a Union fishing authorisation register which gathers 'all information' related to the fishing authorisations issued under the Regulation. It will be used for data and information exchange between the Commission and the Member States. Article 34 aims to provide for both a public and a 'secure' part. The first should 'at least' contain the name and flag of the vessel, the type of authorisation, as well as the time and place of activity. The second, on the other hand, would include, among others, personal data related to the operator and the captain (name, address, contact details, nationality), which are considered necessary to establish responsibilities pursuant to existing legislation (mostly the Control Regulation (EC) No 1224/2009 and the IUU Regulation (EC) No 1005/2008). Where the register includes personal data, its processing should comply with Regulation (EC) No 45/2001, Directive 95/46 and implementing national rules, as set out in Article 36 of the Proposal. In the area of external border controls the European Commission’s proposal for a Regulation amending Regulation No 562/2006 (EC) as regards the reinforcement of checks against relevant databases at external borders (Schengen Borders Code) intends to oblige Member States to carry out systematic checks on persons enjoying the right of free movement under Union law when they cross the external border against databases on lost and stolen documents as well as in order to verify that those persons do not represent a threat to public order and internal security. Since the consultation of databases’ functions on the basis of a hit/no-hit basis and the mere consultation of the database is therefore neither registered nor further processed, the respect of the rights to respect of private and family life (Article 7) and to the protection of personal data (Article 8) would be ensured. Regarding tax transparency, on 18 March 2015 the European Commission adopted a legislative proposal for a Directive amending Directive 2011/16/EU as part of the Tax Transparency Package which the Council adopted in December 2015. The purpose of the amendment is to ensure that Directive 2011/16/EU provides for comprehensive and effective administrative co-operation between tax administrations. To this end it envisages mandatory automatic exchange of information regarding advance cross-border rulings and advance pricing arrangements which is a particular type of advance cross border ruling used in the area of transfer pricing. The Directive does not generally concern personal data but, at the same time, contains data protection safeguards that would apply to the limited extent that personal data might be exchanged. With view to an EU-wide on-line interconnection of national electronic insolvency registers Regulation (EU) 2015/848 of the European Parliament and of the Council on insolvency proceedings (recast) was adopted on 20 May 2015. As the Regulation is particularly aimed at promoting the protection of personal data the adopted Regulation contains detailed provisions on data protection in compliance with Directive 95/46/EC and Regulation (EC) No 45/2001. These rules clarify the responsibilities of the Member States and of the Commission with regard to the system of interconnection. Furthermore, the new rules clarify that no personal data relating to data subjects shall be stored in the European e-Justice Portal; all such data shall be stored in the national databases operated by the Member States or other bodies. Consequently, the time of accessibility of personal data via the European e-Justice Portal will correspond to the retention period of the relevant data in the national registers under the respective national laws. In addition, for the purpose of satisfying the requirement of proportionality, the Regulation establishes a regime of conditionality, which Member States may apply in terms of requests on information concerning natural person debtors not pursuing an economic activity. Furthermore, the Commission’s policies respond to issues, which arise in the nexus between financial regulations on the one hand, and data protection and cyber-security/crime issues on the other. Thus, on 23 December 2015, Directive 2015/2366 on payment services in the internal market was published in the Official Journal. It opens the EU payment market to new service providers offering more choice for consumers or businesses. Citizens will also be better served as a result of the introduction of a number of requirements to protect their rights, in particular new provisions to better protect the personal data of payers and payees when using payment services but also strict security requirements for the initiation and processing of electronic payments, enhanced consumers’ rights as well as better defined out-of-court redress procedures to enforce their rights under the Directive. Also, on 9 September 2015, the European Parliament and the Council adopted a Regulation on mutual administrative assistance in the area of customs and agriculture, which reinforces the fundamental right of protection of personal data enshrined in Article 8 of the Charter. The new Regulation strengthens the collaboration between the two bodies currently responsible for supervising data protection in the area: the European Data Protection Supervisor (EDPS) and the Customs Joint Supervisory Authority (CJSA) thereby contributing to improved coherence of their audit recommendations. The new Regulation also clarifies the responsibility for data protection supervision with regard to the technical systems of data exchange (e.g. CIS) established by the Commission on the basis of this Regulation and assigns this responsibility to the EDPS. The Regulation introduces a maximum retention period of ten years for data stored in the CIS, stipulating additionally that in cases where personal data are stored for a period exceeding five years, the EDPS should be informed accordingly. Finally, in order to safeguard the rules governing data protection, specific provisions are introduced on the security of processing. Finally, the on-going implementation of a Digital Single Market (DSM) as envisaged in the Commission's work programme needs to be pointed out in this context. Ensuring a general acceptance of the Digital Single Market requires the citizens' trust and confidence in a new digital environment. This includes strong and efficient protection of fundamental rights online. In this context a number of legislative measures on EU level were initiated and/or adopted to ensure widespread access and use of digital technologies while at the same time guaranteeing a high level of fundamental rights protection, namely of the right to private life and to protection of personal data as enshrined in Articles 7 and 8 of the Charter.

Thus on 25th November 2015 the European Parliament and the Council adopted rules on the open internet protecting the right of every individual in the EU to access Internet content without discrimination, following the Commission legislative proposal of 11 September 2013.Recitals of the Regulation explicitly refer to the EU Charter, notably the protection of personal data, but also the freedom of expression and information, the freedom to conduct a business, non-discrimination and consumer protection. For the first time it enshrines the principle of net neutrality into EU law: users will be free to access the content of their choice, they will not be unfairly blocked or slowed down anymore. The Regulation entered into force on 29 November 2015.. Furthermore, the European Commission has been continuously working on the proposed Directive on Network and Information Security. Improving cyber security is a necessary precondition to promote and ensure effective protection of personal data within the meaning of Article 8 of the Charter. The Network and Information Security Directive – proposed by the Commission in 2013 and which moved to the final stages of negotiations between the European Parliament and the Council in 2015 – aims to ensure a high common level of cyber security in the EU, by improving Member States' national cyber security capabilities, by improving cooperation between Member States and between public and private sectors and by requiring companies in critical sectors to adopt risk management practices and report major incidents to the national authorities. On 23 June 2015, a European Commission Delegated Regulation on real-time traffic information services was published. The Delegated Regulation establishes the specifications necessary to ensure accessibility, exchange, re-use and update of road and traffic data in order to support the interoperability, compatibility and continuity for the provision of real-time traffic information services in the European Union. With view to personal data the Regulation requires that where data is to be processed, it should be, irreversibly anonymised where possible. Moreover, it should be processed in accordance with European Union law, e.g. in particular, Directive 95/46/EC and Directive 2002/58/EC as well as with national legislations thereto. Agreements In 2015, the Commission continued to negotiate with its U.S. counterparts on the Data Protection Umbrella agreement in order to protect personal data transferred between the EU and the U.S. for law enforcement purposes as well as the conditions of a safe harbour successor regime as regards data transfers to the US for commercial purposes. The latter negotiations became even more topical after the CJEU on 6 October 2015 in its decision in the Max Schrems case annulled the Commission's adequacy decision of 2000, on the basis that it contained no findings as to the limitations and safeguards applicable under U.S. law with regard access to transferred data by U.S. public authorities for law enforcement and national security purposes. In this judgment, the CJEU also clarified that the relevant standard is that the third country's legal order and international commitments provide a level of data protection that is "essentially equivalent" to the one prevailing in the EU. Immediately thereafter the Commission as well as the Working Party 29 (EU Member States Data Protection Authorities) issued communications that pointed to alternative tools that in the meantime could be used for data transfers to the U.S., namely standard contractual clauses (SCC) and Binding Corporate Rules (BCR). The WP 29 announced that it would assess whether these tools could indeed continue to provide a sufficient legal basis for such transfers and would decide accordingly by 31 January 2016 whether to take enforcement measures to prevent transfers if it deemed SCR and BCR to be deficient in the light of the requirements of the CJEU. 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 their personal data are transferred to US lawThis constitutes a significant improvement of the situation concerning judicial redress in the US. Furthermore, in order to fight tax fraud and evasion the European Commission is working with Member States on the implementation of the OECD global standard for automatic exchange of financial account information. In this context the Commission was given a mandate in 2014 to negotiate EU level agreements with Andorra, Liechtenstein, Monaco, San Marino and Switzerland for the automatic exchange between these countries and the Member States of financial account information (such as account balances, interest, dividends, and sales proceeds from financial assets). These agreements, most of which were concluded in 2015,contain the necessary data protection safeguards, taking into account that Switzerland's data protection framework has been recognised as adequate, while Liechtenstein applies Directive 95/46/EC as a Member of the EEA. The Agreement with San Marino includes an additional specific annex detailing the data protection rules and safeguards applying to the exchanges of information, as there is no adequacy decision in place with San Marino. The initialled Agreement with Andorra has similar language on data protection to the Agreement with Switzerland, given the adequacy decision adopted by the Commission on its data protection framework. The data protection provisions in the draft Agreement with Monaco follow the model of the San Marino Agreement given the lack of an adequacy decision for this jurisdiction. Policy Policy work of the European Commission touching upon the right to protection of personal data in 2015 particularly evolved around new developments in the digital environment. Thus, in 2015, the Commission continued to work on the Network and Information Security NIS public-private Platform. The Platform is part of the Cybersecurity Strategy of the European Union, which calls on the Commission to set up a public-private platform to identify and develop incentives to adopt good cyber security practices and promote the development and the adoption of secure ICT solutions. The adoption of adequate security measures is essential in order to ensure effective protection of personal data within the meaning of Article 8 of the Charter. The NIS Platform met for its 5th Plenary on 27 May 2015, and finalised guidance documents on cyber security risk management approaches and voluntary information sharing. An industry-led code of conduct working group within the realm of mHealth was established at a first mHealth stakeholder event, held at the end of March 2015. The aim of this subgroup is to produce a code of conduct on mobile health apps, covering privacy and security, and possibly to submit it to the Article 29 Working Party for approval. The European Commission is a facilitator in this process. This code of conduct is aimed at increasing citizens' trust in mHealth apps, facilitating compliance with EU data protection rules for industry, and mHealth app developers in particular, and providing a competitive advantage for those who are signatory to the code. Also, the Commission has in 2015 been working on a Staff working Document in the field of Internet of Things (IoT). Bearing in mind the relevance of new developments in this field for the fundamental rights to a private life and protection of personal data the Commission is analysing the existing EU legislative packages that may apply to IoT (Data protection directive, e-Privacy Directive, Consumers' rights Directive, e-Commerce directive) in order to draw a gap analysis and identify aspects that might need further regulatory intervention. The Working Party set up under Article 29 in its Opinion 8/2014 on Recent Developments on the Internet of Things presented the main data protection risks that lie within the ecosystem of the IoT, and already identified certain risks related to citizen acceptability, notably in terms of data privacy, security, liability, ethics. Apart from the road mapping exercise in the field of IoT, the Commission is taking further the concept of "Charter-friendly alternative" when designing its funding instruments under Horizon 2020. As regards the European energy policy a communication on a Framework Strategy for a Resilient Energy Union with a Forward-Looking Climate Change Policy delineates an Energy Union strategy with five mutually-reinforcing and closely interrelated dimensions designed to bring greater energy security, sustainability and competitiveness. The dimensions are directly relevant to the right to private life and the protection of personal data. In developing synergies between the Energy Union and the Digital Single Market agenda, the Commission envisages to propose measures aimed at ensuring privacy protection and cyber-security. The reference to smart technologies in the energy field and to the protection of personal data can also be found in the communication on the Digital Single Market. New developments with an impact on the right to data protection and privacy are manifested by Cooperative Intelligent Transport Systems (C-ITS) which use technologies to allow road vehicles to communicate with other vehicles, with traffic signals and roadside infrastructure as well as with other road users. The systems are also known as vehicle-to-vehicle communications, or vehicle-to-infrastructure communications. A stakeholder platform for the Deployment of Cooperative Intelligent Transport Systems in the European Union (C-ITS Platform) in its first phase, essentially covering the year of 2015 (November 2014 – January 2016), delivered its contribution towards a shared vision on the topic. As C-ITS equipped vehicles are making use of messages that are constantly broadcasting data, including e.g. their speed and location, this could raise potential concern as how to guarantee privacy and data protection in line with Article 8 of the Charter. After various consultations, in particular with the EDPS and privacy experts, the C-ITS platform considers these messages as “personal data” because of their potential of indirect identification of users. Therefore, it has been recommended to use principles laid down by Directive 95/46/EC to process data exchanged with the C-ITS, namely informed consent, vital interests and public interest in cases of lacking (express) consent. Case Law The year 2015 saw a number of important decisions by the CJEU concerning the right to protection of personal data. The decision in the case of Max Schrems recalled the EU institutions’ and the Member States’ authorities’ obligations to protect fundamental rights under the Charter when implementing EU law. Here the CJEU declared the Commission's so-called Safe Harbour Decision invalid. The latter constituted an adequacy decision under Article 25(6) of the Data Protection Directive. This decision had allowed transfer of personal data to a third country, here the United States, as it found that there was an adequate level of protection by reason of its domestic law or its international commitments by the United States. This adequacy finding and the transfer of personal data to servers in the US by Facebook's Irish subsidiary had been challenged by an individual before national courts, in particular in the light of revelations on mass surveillance by intelligence authorities within the US in 2013. The CJEU found that an adequacy decision was conditional on a finding by the Commission that in the third country concerned there is a level of protection of personal data which, while not necessarily identical, is "essentially equivalent" to that guaranteed within the EU by virtue of the Directive read in the light of the Charter of Fundamental Rights. Regarding specifically the Safe Harbour Decision in question the Court held that it did not contain sufficient findings by the Commission on the limitations as regards access by U.S. public authorities to data transferred under that decision and on the existence of effective legal protection against such interference. In particular, the Court clarified that legislation permitting public authorities to have access on a generalised basis to the content of electronic communications must be regarded as compromising the essence of the fundamental right to respect for private life. Furthermore, the Court confirmed that even where there is an adequacy decision under Article 25(6) of Directive 95/46/EC, the Member States' Data Protection Authorities (DPAs) remain empowered to examine, with complete independence, whether data transfers to a third country comply with the requirements laid down by Directive 95/46/EC, read in the light of Articles 7, 8 and 47 of the Charter of Fundamental Rights. However, the Court also affirmed that only the Court of Justice can declare an EU act, such as a Commission adequacy decision, invalid. Thus, where a claim is lodged with the national supervisory authorities, such as a data protection authority, they may, even where the Commission has adopted a decision finding that a third country affords an adequate level of protection of personal data, examine whether the transfer of a person’s data to the third country complies with the requirements of the EU legislation on the protection of that data and, in the same way as the person concerned, bring the matter before the national courts, in order that the national courts make a reference for a preliminary ruling for the purpose of examination of that decision’s validity. In the case of Weltimmo, a company formally registered in Slovakia, running a real estate website focused on the Hungarian market, was the data controller of the personal data of advertisers on that website. Weltimmo ignored requests for deletion from those advertisers and was therefore fined by the Hungarian DPA. Weltimmo complained, arguing that it was established in Slovakia and therefore could not be fined by the Hungarian DPA and under Hungarian law. The CJEU found that the notion of establishment needs to be interpreted in light of the objectives of the Data Protection Directive 95/46/EC. To be established on a territory of a Member State, the real and effective exercise of activity through stable arrangements is enough, notwithstanding the formal place of establishment. In this case, Weltimmo had a real and effective exercise of its entire business activity in Hungary. Hence, Hungarian law was applicable and the Hungarian DPA was competent to impose fines. In its judgment delivered on 16 April 2015, (reference for preliminary ruling in several joined cases including Willems ) the Court of Justice ruled that the provisions of Regulation (EC) No 2252/2004 on standards for security features and biometrics in passports and travel documents issued by Member States, as amended by Regulation (EC) No 444/2009, must be interpreted as meaning that that Regulation is not applicable to identity cards issued by a Member States to its nationals, regardless of the period of validity and the possibility of using them for the purposes of travel outside that State. They must also be interpreted as meaning that they do not require the Member States to guarantee, in their legislation, that biometric data collected and stored in accordance with that regulation will not be collected, processed and used for purposes other than the issue of the passport or travel document, since that is not a matter which falls within the scope of that regulation. In the case of Ms Smaranda Bara and numerous other Romanian citizens who were self-employed workers (for the purposes of Directive 95/46/EC – data subjects) the Romanian tax authority transmitted data relating to their declared income to the National Health Insurance Fund. The latter then required the payment of arrears of contributions to the health insurance regime. The persons concerned contested, before national courts the lawfulness of that transmission under the Directive. They submitted that their data were used for purposes other than those for which those data had initially been communicated to the tax authority, without their prior explicit consent and without their having previously been informed. Under National Law, public bodies were empowered to transfer personal data to the health insurance funds so that the latter may determine whether an individual qualifies as an insured person. The data concerned the identification of persons (surname, first name, personal identity card number, address) but did not include data relating to income received. The question of the referring court to the CJEU was whether EU law precluded a public administrative body from transferring personal data to another public administrative body for the purpose of their subsequent processing, without the data subjects being informed of that transfer and processing. The CJEU held that the requirement of fair processing of personal data required a public administrative body to inform the data subjects of the fact that their data would be transmitted to another public administrative body for the purpose of their processing by the latter in its capacity as recipient of those data. The Directive expressly required that any restrictions on the requirement to provide information were to be imposed by legislative measures. The Court concluded that the combined reading of Articles 10, 11 and 13 of Directive 95/46/EC (right to information and restrictions) prohibited national measures such as those contested by the applicants which allow transmission of data between public authorities, without the data subjects having been informed of that transfer or processing. In the case of WebMindLicenses, a Hungarian company operating a website providing interactive erotic services was required by the Hungarian tax authority to make a substantial VAT payment in Hungary, following a tax investigation. The authority also imposed a fine on WML and obliged it to pay interests. In its decision the authority had used as evidence data that had secretly been compiled in the course of a parallel criminal investigation. WML challenged the decision, which led to a preliminary ruling request by the national court. Questions raised concerned, inter alia, the legality of using, in an administrative (tax) procedure, evidence collected within a criminal procedure, in view of the guarantee of person's fundamental rights to good administration, to an effective remedy, a fair trial and his or her rights of defence, and consequences of breach of a Charter's rights for the validity of the decision, if such breach is established. The CJEU stated that EU law did not preclude using the evidence obtained in the context of a parallel criminal procedure, provided that the obtaining of such evidence and its use did not infringe the rights guaranteed by EU law (and in particular the rights to privacy and protection of personal data, Article 7 and 8 of the Charter). The national court had to assess whether secret gathering of evidences were means of investigation provided for by law and were necessary in the context of the criminal procedure and whether their use by the tax authorities was also authorised by law and necessary. It was also for the national court to verify whether, in accordance with the general principle of observance of the rights of the defence, the person concerned was granted, in the context of the administrative procedure, access to that evidence and was being heard concerning it. If the national court were to find that this was not the case, or that that evidence was obtained or used in breach of Article 7 of the Charter, it would be obliged to disregard that evidence and annul the decision if, as a result, the latter had no basis. That evidence also had to be disregarded if the national court is not empowered to carry out such review.

German legislative proposal In Germany, a draft law tabled, on mandatory retention of telecommunication metadata and a maximum retention period, set out specifically how the temporary retention by service providers of internet and telephone data that it provided for in order to aid criminal investigations was designed to meet the standards of Articles 7 and 8 of the Charter. (Germany, German Parliament (Deutscher Bundestag), Draft Act on Introducing a Mandatory Retention of Telecommunication Metadata and a Maximum Retention Period (Entwurf eines Gesetzes zur Einführung einer Speicherpflicht und einer Höchstspeicherfrist für Verkehrsdaten), 9 June 2015) Article 9 – Right to marry and right to found a family



This Article is based on Article 12 of the ECHR, which reads as follows: ‘Men and women of marriageable age have the right to marry and to found a family according to the national laws governing the exercising of this right.’ The wording of the Article has been modernised to cover cases in which national legislation recognises arrangements other than marriage for founding a family. This Article neither prohibits nor imposes the granting of the status of marriage to unions between people of the same sex. This right is thus similar to that afforded by the ECHR, but its scope may be wider when national legislation so provides. Dutch legislative proposal Scrutinising a Dutch draft law against forced marriages, which, amongst others, did not recognise a marriage between cousins concluded in other countries under any circumstances, the National Commission for International Private Law found that this provision violates the right to marry as protected by Article 9 of the Charter. This opinion was taken into account in the law, as adopted. Article 41a of the law allows for the recognition of a marriage between cousins if, before the marriage, they have filed a certified declaration that the marriage is concluded with mutual free consent. (Netherlands, Minister of Security and Justice (Minister van Veiligheid en Justitie),'Motie Van Oosten c.s.', Wet van 7 oktober 2015 tot wijziging van Boek 1 en Boek 10 van het Burgerlijk Wetboek betreffende de huwelijksleeftijd, de huwelijksbeletselen, de nietigverklaring van een huwelijk en de erkenning van in het buitenland gesloten huwelijken (Wet tegengaan huwelijksdwang)) 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 practising it, the right protects actions of conscience such as for example those of conscientious objectors. Policy A 2015 Eurobarometer survey on discrimination looked into attitudes and perceptions of Europeans towards discrimination based on different grounds including religion or beliefs and citizens' opinions on different policy measures to combat discrimination. The survey explored the social acceptance of specific groups belonging to ethnic and religious minorities. Statistics published in the survey show that: 50% of Europeans believe discrimination based on religion or beliefs is widespread (up from 39% in 2012); 33% believe that expressing a religious belief can be a disadvantage when applying for a job (up from 23% in 2012); Muslims suffer from the lowest levels of social acceptance among religious groups, with only 61% of respondents stating that they would be fully comfortable with a colleague at work being Muslim, and only 43% being fully comfortable if their adult children had a relationship with a Muslim person. Reflecting these results, the majority of respondents thought that new measures need to be introduced to raise the level of protection for groups at risk of discrimination. They were also in favour of information about diversity being provided at school. The EU Fundamental Rights Agency survey on discrimination and hate crime against Jews shows rising Antisemitism in Europe; 73% of respondents felt that Antisemitism online has become worse over the last five years. Application by Member States Council Regulation 1099/2009 on the protection of animals at the time of killing establishes the general principle that animals shall only be killed after stunning. At the same time, the EU must respect freedom of religion as enshrined in Article 10 of the EU Charter of Fundamental Rights. The Regulation thus contains an exception to the stunning requirement for animals subject to particular methods of slaughter prescribed by religious rites, provided that the slaughter takes place in a slaughterhouse. Derogation from stunning is therefore justified for religious reasons in the case of slaughter under the Jewish rite (for Kosher meat) or Muslim rites (for Halal meat). In view of the above mentioned Council Regulation 1099/2009 on protection of animals, Member States define themselves to what extent exemptions from the stunning requirement for animals due to religious reasons are applicable and notify the Commission. Several Parliamentary questions were raised on slaughter without stunning in 2015 and on the respective legislation in specific Member States. The Commission is currently assessing the relevant national laws. Petitions received on slaughter without stunning suggested that such slaughter should not be authorised at EU level. In reply, the Commission highlighted that such proposal would not respect the freedom of religion and the right to practice it. Case law

a) ECtHR The judgment in Karaahmed v. Bulgaria concerned a demonstration outside a mosque during regular Friday prayers and an official investigation into clashes that erupted in the grounds of the mosque. There were some 100 to 150 demonstrators, all members and supporters of a political party who were protesting against what they referred to as “howling” emanating during the calls to prayer from the loudspeakers installed on the capital’s only mosque. The demonstration got out of hand. Muslim worshippers, including the applicant, were insulted and this was followed by acts of violence and the throwing of objects. The police intervened to stop the violence. The Court found a violation of Article 9. The authorities had been aware of the tensions that existed and the risks to which the planned demonstration gave rise. However, they had not taken any measures to ensure that the rights of the demonstrators and of the worshippers received equal protection. The police actions were confined to simply limiting the violence. Ultimately, the right to demonstrate had been accorded precedence to the detriment of the right to practise one’s religion peacefully. The subsequent investigations had not produced any effective response to the impugned events either. The judgment in Ebrahimian v. France concerned the question of reconciling a hospital employee’s freedom of religion with the duty of neutrality owed by health professionals in public hospitals. The applicant, of the Muslim faith, was employed as a social assistant in the psychiatric department of a public hospital. The authorities refused to renew her contract when she refused, after receiving a warning, to remove her veil (covering her hair, ears and neck) at her place of work. The domestic courts upheld the decision, which they considered justified by the need to ensure respect for the constitutional principles of secularism and equality before the law, and the derived duty of civil servants to display neutrality when it came to the manifestation of their religious beliefs in their dealings with the users of public services. In the Convention proceedings, the applicant claimed that the decision had breached her Article 9 right to freedom of religion. The Court found otherwise. The judgment is noteworthy in view of the Court’s analysis of the weight to be given to the principles of secularism, equality and neutrality when examining whether the interference pursued a legitimate aim and was necessary. b) Preliminary rulings pending before the CJEU In 2015 the Belgian and French Supreme Courts (Cour de Cassation) submitted to the CJEU two preliminary rulings requesting it to interpret Directive 2000/78/EC. The two cases are similar in certain regards. Both concern dismissals of female Muslim workers (a receptionist and a computer engineer respectively) by private companies because they were wearing Islamic headscarves at work. However, there are also some differences in the facts. In the Belgian case, the prohibition on wearing a headscarf at the workplace was proclaimed in the company's regulations, applied in all situations and concerned all outward signs of political, philosophical and religious beliefs. In contrast, in the French case, the prohibition was not proclaimed in any formal text issued by the company, concerned basically the Islamic headscarf, and was only applied in the relations with clients (it was imposed following a client's request). The two cases raise important and complex issues involving several fundamental rights and will give the CJEU the opportunity to clarify the interpretation of EU law prohibiting discrimination at the workplace. Ruling of the Dutch Supreme Court In a Dutch case, parents argued that compulsory education without exemption for children whose parents change their religious persuasion is in conflict inter alia with the Charter. The parents claimed they should be free to act in line with their persuasion by removing their child from school. The Supreme Court stated that no Union law was being implemented in that case, thus the Charter did not apply. (The Netherlands, Supreme Court, case no NL:HR:2015:1338 of 27 May 2015). Ruling of the Spanish Constitutional Court In a case before the Constitutional Court in Spain, the Charter was referred to by a dissenting judge who stressed that the majority vote of the court was in her view misinterpreting the reach of the right to conscientious objection – a right that is mentioned in the Charter but not in Spanish constitutional law. The case concerned a co-owner of a pharmacy who refused, based on conscientious objection, to sell condoms and the ‘day-after pill’ in his establishment. In his defence he had relied amongst others on the provision of the Spanish Constitution guaranteeing ideological and religious freedom. The Court affirmed the claimant’s right to conscientious objection. However, the dissenting judge argued that the right to freedom of thought, conscience and religion (Article 10 of the Charter) and the preparatory works of the Charter (Article 52(7)) imply that only the legislator may establish how the right to conscientious objection can be exercised in practice. (Constitutional Court, dissenting opinion by judge Adela Asua Batarrita, case no STC 145/2015 of 25 June 2015) Article 11 – Freedom of expression and information



The right to freedom of expression is guaranteed by Article 11(1) of the Charter and includes the freedom to hold opinions and to receive and impart information and ideas without interference by public authorities and regardless of frontiers. Article 11(2) ensures respect for freedom and pluralism of the media. In line with Article 52(3) of the Charter, the EU's approach to this right and its limits takes inspiration from the case law of the ECtHR and is enshrined in its EU human rights Guidelines on freedom of expression online and offline. The Guidelines address a host of issues including, inter alia, the safety of journalists, the promotion of media freedom and pluralism, defamation laws, blasphemy laws and laws addressing incitement to racial hatred and violence. The attacks on the offices of Charlie Hebdo ensuing in the murder of cartoonists and journalists in January 2015 emphasised the paramount significance of freedom of expression in a democratic society; a freedom that extends to information and ideas that may offend, shock or disturb the state or any sector of the population. This may include criticism of religion, ideology, beliefs and institutions and all forms of satire. At the same time freedom of expression will not protect hate speech, as emphasised by the decision of the ECtHR in the case of M'Bala as described below. Legislation The EU's Audiovisual Media Services Directive 2010/13/EU (AVMSD) governs EU-wide coordination of national legislation on all audiovisual media, both traditional TV broadcasts and on-demand services. The European Commission carried out a public consultation between July and September 2015 with the aim of seeking the views of interested parties on the functioning of the current audiovisual framework (so-called REFIT evaluation) as well as policy options for its future. The evaluation and review of the AVSMD is part of the Commission's Digital Single Market strategy. The Commission has identified a number of issues to be considered in the evaluation and review of the AVMSD. Issues relating to fundamental rights include: an optimal level of consumer protection (Art. 38), user protection (in particular children) and prohibition of hate speech and discrimination (Articles 21, 24 and 38), promoting European audiovisual content (Article 22) and strengthening media freedom and pluralism, access to information and accessibility to content for people with disabilities (Articles 11, 25 and 26). The Commission is currently analysing the replies to the public consultation. Policy Several policy projects of the European Commission in 2015 aimed at fostering freedom of expression and information as well as media freedom and pluralism, as can be seen below. On 1 May 2015 the Commission launched two new independent pilot projects in the field of media freedom and pluralism. They are part of the European Centre for Press and Media Freedom (ECPMF) and have the support of the European Parliament. The new projects are coordinating some of Europe's media freedom community and mapping media freedom violations in the EU and neighbouring countries and will run until April 2016.

The Media Pluralism Monitor tool is another EU-financed pilot project. It is run independently by the European University Institute in Florence (Centre for Media Pluralism and Media Freedom) to identify potential risks to media pluralism in Member States. It is based on a European Commission funded study published in 2009. The first phase of the project – based on a sample of nine Member States – resulted in a final report published in January 2015. In 2015, the European University Institute in Florence has applied the tool to the remaining Member States. As regards the independence of the audiovisual regulatory bodies, in 2015 the European Regulators Group's for Audiovisual Media Services (ERGA) sub-group on independence continued its work on analysing the characteristics of independence in the light of the existing studies and the experiences of regulatory authorities. On 15 December ERGA adopted the Report on independence of National Regulatory Authorities. The Report provides recommendations on the characteristics of independent regulatory authorities and calls on the Commission to revise the AVMSD in order to ensure the independence of audiovisual regulatory bodies. The independence of regulatory authorities for audiovisual media services is considered essential for the preservation of a free and pluralistic media. The replies to the 2015 Public consultation on the AVMSD showed that a majority of respondents (63%) consider that there is a need to reinforce the independence of audiovisual regulatory bodies. The review of the AVMSD will consider solutions to strengthen the independence of audiovisual regulators. The Commission remains committed to a vision of an open and free Internet in which all rights and freedoms that people have offline also apply online as presented in the Communication "Internet Policy and Governance Europe's role in shaping the future of Internet Governance" and has published a report on the implementation of this Communication in 2015. In this context, the project for a Global Internet Policy Observatory is also being implemented. To that end, the Commission had successfully included the reaffirmation to protect human rights online in the outcome document of the World Summit on the Information Society (WSIS+10) review in December 2015. In addition, the Commission-funded project for a Global Internet Policy Observatory is also being implemented to promote capacity building on Internet policies. The annual meeting of the EU Media Literacy Expert Group took place on 1 December 2015 in Brussels. Its main topics included among others: media freedom and pluralism, media ethics, technical verification tools in the EU, tools for decoding propaganda, media literacy beyond borders and questions of whether media have a moral imperative to create informed citizens and support democracy. Furthermore, the development of a new toolkit by the EU Agency for Fundamental Rights and the European broadcasting Union for media to increase accuracy of reporting on diversity related-issues and combat entrenched prejudices was also announced at the meeting. Application by Member States On 10 July 2015, the Commission adopted a decision on the compatibility with EU law of certain measures which Lithuania had adopted under Article 3(2) of the Audiovisual Media Services Directive. These measures concerned the temporary suspension of the retransmission of the television broadcast RTR Planeta in the territory of Lithuania for a period of three months. The temporary suspension was based on the grounds that, according to the Lithuanian authorities, certain broadcasts on RTR Planeta infringed the prohibition of incitement to hatred. When assessing the compatibility of these measures with EU law, the Commission took into account Article 11 of the Charter (freedom of expression). The Commission found that the effects of the suspension on the freedom of expression did not go beyond those which are intrinsically linked to the suspension of retransmission of the broadcast, possible under Article 3(2) AVMSD. In its decision, the Commission also highlighted the importance of respecting the broadcaster's right to be heard. Case law In 2015 the ECtHR decided two important cases in the area of freedom of expression which are also relevant for the interpretation of the Charter. In the Delfi case, in which the ECtHR had been called upon to examine a complaint about liability of an Internet news portal for user-generated comments, the Court held that there had been no violation of Article 10 (freedom of expression) of the European Convention on Human Rights. The applicant company, Delfi AS, which runs a news portal run on a commercial basis, complained that it had been held liable by the national courts for the offensive comments posted by its readers below one of its online news articles about a ferry company. At the request of the lawyers of the owner of the ferry company, Delfi removed the offensive comments about six weeks after their publication. The case therefore concerned the duties and responsibilities of Internet news portals which provided on a commercial basis a platform for user-generated comments on previously published content and some users – whether identified or anonymous – engaged in clearly unlawful hate speech which infringed the personality rights of others. The Delfi case did not concern other fora on the Internet where third-party comments could be disseminated, for example an Internet discussion forum, a bulletin board or a social media platform. The question before the Court was not whether the freedom of expression of the authors of the comments had been breached but whether holding Delfi liable for comments posted by third parties had been in breach of its freedom to impart information. The Court found that the Estonian courts’ finding of liability against Delfi had been a justified and proportionate restriction on the portal’s freedom of expression, in particular, because: the comments in question had been extreme and had been posted in reaction to an article published by Delfi on its professionally managed news portal run on a commercial basis; the steps taken by Delfi to remove the offensive comments without delay after their publication had been insufficient; and the 320 euro fine had by no means been excessive for Delfi, one of the largest Internet portals in Estonia. In the case of M’Bala the ECtHR declared that Article 10 ECHR (freedom of expression) could not be invoked to protect negationist and anti-Semitic performances. Here Mr M’Bala, a comedian with political activities, had been convicted for public insults directed at a person or group of persons on account of their origin or of belonging to a given ethnic community, nation, race or religion, specifically in this case persons of Jewish origin or faith. The Court found that during the offending scene the performance could no longer be seen as entertainment but rather resembled a political meeting, which, under the pretext of comedy, promoted negationism and a degrading portrayal of Jewish deportation victims. In the Court’s view, this was not a performance which, even if satirical or provocative, fell within the protection of Article 10 (freedom of expression) of the European Convention on human rights, but was in reality, in the circumstances of the case, a demonstration of hatred and anti-Semitism and support for Holocaust denial. Disguised as an artistic production, it was in fact as dangerous as a head-on and sudden attack, and provided a platform for an ideology which ran counter to the values of the European Convention. The Court thus concluded that M’Bala had sought to deflect Article 10 from its real purpose by using his right to freedom of expression for ends which were incompatible with the letter and spirit of the Convention and which, if admitted, would contribute to the destruction of Convention rights and freedoms