COMMUNICATION FROM THE COMMISSION Strategy for the effective implementation of the Charter of Fundamental Rights by the European Union
Date: 2010-10-19
Institutions: European Commission
Subjects: European Union, fundamental rights, human rights, report

EN 

EN 

   EN 

 
EUROPEAN COMMISSION 

Brussels, 19.10.2010 
COM(2010) 573 final 

COMMUNICATION FROM THE COMMISSION 

Strategy for the effective implementation of the Charter of Fundamental Rights by the 
European Union 

EN 

   EN 

 
 
  
COMMUNICATION FROM THE COMMISSION  

Strategy for the effective implementation of the Charter of Fundamental Rights by the 
European Union 

Decisive  steps  have  been  taken  towards  a  Europe  of  fundamental  rights.  The  Charter  of 
Fundamental  Rights  of  the  European  Union  has  become  legally  binding1  and  the  Union  is 
going  to  accede  to  the  European  Convention  on  Human  Rights2.  The  European  Parliament3 
and the European Council4 have made promotion of fundamental rights in the Union one of 
their  priorities  for  the  future  of  the  area  of  justice,  freedom  and  security.  There  is  now  a 
member  of  the  Commission  with  specific  responsibility  for  the  promotion  of  justice, 
fundamental rights and citizenship, and the members of the European Commission promised, 
in a solemn undertaking before the Court of Justice, to uphold the Charter5. More generally, 
the Lisbon Treaty is a major step forward in that it has extended the co-decision procedure, 
removed the pillar structure set up under the earlier Treaty, given the Court of Justice general 
responsibility in the field of freedom, security and justice, and confirmed the place of human 
rights at the heart of the Union's external action.  

All the components of an ambitious fundamental rights policy are therefore present. Respect 
for  fundamental  rights  has  always  been  an  obligation  subject  to  scrutiny  by  the  Court  of 
Justice  and  an  essential  component  in  the  construction  of  the  Union,  but  the  Charter's  new 
status will give a boost to the Union's work in this area.  

The purpose of this Communication is therefore to set out the Commission's strategy for the 
implementation of the Charter in the new legal environment existing since the entry into force 
of the Lisbon Treaty. 

1 

2 
3 

4 
5 

Article  6(1)  of  the  Treaty  on  European  Union  (TEU).  In  addition,  Article 6(3)  reaffirms  that 
fundamental rights as guaranteed by the European Convention on Human Rights and as they result from 
the constitutional traditions common to the Member States are general principles of EU law.  
Article 6(2) TEU. 
European Parliament resolution of 25 November 2009 on the Communication from the Commission – 
An  area  of  freedom,  security  and 
the  citizen  –  Stockholm  programme, 
justice  serving 
P7_TA(2009)0090. 
Stockholm Programme, OJ C 115, 4.5.2010.  
Text of the solemn undertaking: I solemnly undertake:  
- to respect the Treaties and the Charter of Fundamental Rights of the European Union in the fulfilment 
of all my duties; 
- to be completely independent in carrying out my responsibilities, in the general interest of the Union; 
- in the performance of my tasks, neither to seek nor to take instructions from any Government or from 
any other institution, body, office or entity;  
- to refrain from any action incompatible with my duties or the performance of my tasks. 
I formally note the undertaking of each Member State to respect this principle and not to seek to 
influence Members of the Commission in the performance of their tasks.  
I further undertake to respect, both during and after my term of office, the obligation arising therefrom, 
and in particular the duty to behave with integrity and discretion as regards the acceptance, after I 
have ceased to hold office, of certain appointments or benefits. 

EN 

2 

   EN 

                                                 
Charter of Fundamental Rights of the European Union 

With the Charter, the Union has equipped itself with an array of fundamental rights, updated 
to keep abreast of changes in society and scientific and technological developments6.  

The  Charter  is  an  innovative  instrument  because  it  brings  together  in  one  text  all  the 
fundamental  rights  protected  in  the  Union,  spelling  them  out  in  detail7  and  making  them 
visible and predictable. The Lisbon Treaty, by recognising the rights, freedoms and principles 
set out in the Charter and giving the Charter the same binding legal force as the Treaties, has 
offered citizens more visible and legally secure rights.  

The Charter applies primarily to the institutions and bodies of the Union (Article 51(1) of the 
Charter).  It  therefore  concerns  in  particular  the  legislative  and  decision-making  work  of  the 
Commission, Parliament and the Council, the legal acts of which must be in full conformity 
with the Charter. 

Article 51(1) of the Charter also stipulates that the Charter applies to the Member States only 
when they are implementing Union law. It does not apply in situations where there is no link 
with Union law8. The binding legal force conferred on the Charter by the Lisbon Treaty has 
not changed this situation; the Treaty explicitly states that the provisions of the Charter do not 
extend the powers of the Union as defined in the Treaties9.  

Accession to the European Convention on Human Rights 

The Union's accession to the European Convention on Human Rights was made obligatory by 
the Lisbon Treaty (Article 6(2) TEU) and will complement the system to protect fundamental 
rights by making the European Court of Human Rights competent to review Union acts. This 
external judicial review should further encourage the Union to follow an ambitious policy for 
fundamental rights: the more the  Union tries to ensure that its  measures are  fully  compliant 
with fundamental rights, the less likely it is to be censured by the European Court of Human 
Rights. 

Objective of the strategy: the Union must be exemplary 

The objective of the Commission's policy following the entry into force of the Lisbon Treaty 
is  to  make  the  fundamental  rights  provided  for  in  the  Charter  as  effective  as  possible.  The 
Union must be exemplary in this respect. The Charter is not a text setting out abstract values, 
it is an instrument to enable people to enjoy the rights enshrined within it when they are in a 
situation  governed  by  Union  law.  This  is  why  the  Commission  will  focus  its  efforts  on  the 
effective implementation of the Charter. 

6 

7 

8 
9 

The  Charter  was  solemnly  proclaimed  by  Parliament,  the  Council  and  the  Commission  in  Nice  on 
7 December 2000. On 12 December 2007 the Presidents of Parliament, the Council and the European 
Commission  signed  and  once  again  solemnly  proclaimed  the  Charter.  This  second  proclamation  was 
necessary because the Charter proclaimed in 2000 had been amended to make it legally binding.  
The  rights  and  principles  enshrined  in  the  Charter  stem  from  the  constitutional  traditions  and 
international conventions common to the Member States, the European Convention on Human Rights, 
the Social Charters adopted by the Community and the Council of Europe, and the case law of the Court 
of Justice of the Union and the European Court of Human Rights. 
See Section I.3. 
Article 51(2) of the Charter states that it does not extend the field of application of Union law beyond 
the powers of the Union or establish any new power or task for the Union, or modify powers and tasks 
as defined in the Treaties. 

EN 

3 

   EN 

                                                 
The development of individual policies concerning certain specific fundamental rights on the 
basis  of  the  Treaties  will  continue,  examples  being  protection  of  personal  data,  children's 
rights, gender equality, non-discrimination, intellectual property and freedom of movement.  

That the Union is exemplary is vital not only for people living in the Union but also for the 
development  of  the  Union  itself.  Respect  for  fundamental  rights  within  the  EU  will  help  to 
build mutual trust between the Member States and, more generally, public confidence in the 
Union's  policies.  A  lack  of  confidence  in  the  effectiveness  of  fundamental  rights  in  the 
Member States when they implement Union law, and in the capacity of the Commission and 
the  national  authorities  to  enforce  them,  would  hinder  the  operation  and  strengthening  of 
cooperation machinery in the area of freedom, security and justice. Effective protection is also 
necessary to strengthen the credibility of the Union's efforts to promote human rights around 
the world.  

The Union's work in the area of fundamental rights extends beyond its internal policies. The 
Charter  also  applies  to  its  external  action.  In  accordance  with  Article  21  TEU,  the  Union's 
action  on  the  international  scene  is  designed  to  advance  in  the  wider  world  democracy,  the 
rule  of  law,  the  universality  and  indivisibility  of  human  rights  and  fundamental  freedoms, 
respect  for  human  dignity,  the  principles  of  equality  and  solidarity  and  the  respect  for  the 
principles of the United Nations Charter and international law. Certain human rights standards 
of the United Nations have an internal and external dimension for the Union10. The Union has 
developed  a  dedicated  policy  to  promote  human  rights  and  democratisation  in  non-member 
countries.  Furthermore,  Article  8  TEU  provides  that  the  Union  shall  develop  a  special 
relationship with neighbouring countries founded on the values of the Union. Finally, Article 
49  TEU  provides  that  any  European  country  upholding  the  values  on  which  the  Union  is 
based may ask to become member of the Union. The political criteria for accession laid down 
by  the  1993  Copenhagen  European  Council  require  candidate  countries  to  have  stable 
institutions  guaranteeing  democracy,  the  rule  of  law,  human  rights  and  the  respect  for  and 
protection of minorities. The opening of the accession negotiations thus depends on whether 
the  candidate  country  meets  these  criteria  adequately.  Issues  concerning  the  fundamental 
rights are dealt with in detail during the accession negotiations. 

1. 

THE UNION MUST BE EXEMPLARY 

The Union’s action must be above reproach when it comes to fundamental rights. The Charter 
must  serve  as  compass  for  the  Union's  policies  and  their  implementation  by  the  Member 
States.  

1.1. 

Strengthening the culture of fundamental rights in the Commission 

The Commission routinely checks its legislative proposals and the acts it adopts to ensure that 
they  are  compatible  with  the  Charter.  To  reflect  the  new  legal  status  of  the  Charter,  this 
fundamental rights "reflex" must be reinforced within the Commission departments drawing 
up such proposals and acts. We have to promote a "fundamental rights culture" at all stages of 
the  procedure,  from  the  initial  drafting  of  a  proposal  within  the  Commission  to  the  impact 
analysis, and right up to the checks on the legality of the final text.  

10 

All the Member States have acceded to the main United Nations conventions on human rights, and the 
Council has adopted a decision on the conclusion by the European Community of the UN Convention 
on the Rights of Persons with Disabilities, OJ L 23, 27.1.10, p.35.  

EN 

4 

   EN 

                                                 
This fundamental rights culture is an essential underpinning of the detailed examination of the 
necessity for and proportionality of the proposals that the Commission puts forward. Indeed, 
apart from some rights that are absolute11, fundamental rights may, under certain conditions, 
be subject to limitations. These must be provided for in law, respect the essence of the said 
rights, observe the principle of proportionality, be necessary and effectively meet objectives 
of general interest recognised by the Union or the need to protect the rights and freedoms of 
others12.  

Fundamental Rights "Check-List" 

1.  What fundamental rights are affected?  

2.  Are  the  rights  in  question  absolute  rights  (which  may  not  be  subject  to  limitations, 

examples being human dignity and the ban on torture)? 

3.  What  is  the  impact  of  the  various  policy  options  under  consideration  on  fundamental 
rights? Is the impact beneficial (promotion of fundamental rights) or negative (limitation 
of fundamental rights)? 

4. Do the options have both a beneficial and a negative impact, depending on the fundamental 
rights concerned (for example, a negative impact on freedom of expression and beneficial 
one on intellectual property)? 

5.  Would  any  limitation  of  fundamental  rights  be  formulated  in  a  clear  and  predictable 

manner? 

6. Would any limitation of fundamental rights: 

-  be  necessary  to  achieve  an  objective  of  general  interest  or  to  protect  the  rights  and 

freedoms of others (which)?  

-  be proportionate to the desired aim? 

-  preserve the essence of the fundamental rights concerned? 

taken  some 

The  Commission  has  already 
internal  organisational  measures  -  "the 
methodology"13  -  in  order  to  ensure  that  Commission  departments  are  systematic  and 
thorough  in  checking  that  all  the  fundamental  rights  concerned  have  been  respected  in  all 
draft proposals. The evaluation report on this methodology14 found that it was well suited to 
the objective but needed to be applied better in practice, namely in a more systematic, more 
detailed  and  more  easily  understandable  manner.  The  report  also  underlines  that  the  impact 
assessment is not a matter of procedure but of substance. 

The Commission will step up internal training on fundamental rights to respond to the issues 
cited above and to reinforce and further promote a culture of respect for fundamental rights.  

11 
12 
13 

14 

The ban on torture, for example. 
Article 52 (2) of the Charter. 
Commission  communication  –  'Compliance  with  the  Charter  of  Fundamental  Rights  in  Commission 
legislative proposals - Methodology for systematic and rigorous monitoring', COM(2005) 172 final of 
27.4.2005. 
Report  on  the  practical  operation  of  the  methodology  for  a  systematic  and  rigorous  monitoring  of 
compliance with the Charter of fundamental rights, COM(2009) 205 final of 29.4.2009. 

EN 

5 

   EN 

 
 
 
                                                 
The methodology used by the Commission in drafting its proposals is described below, as are 
the  measures  taken  to  improve  its  application.  These  measures  will  contribute  to  the 
implementation of the "better regulation" policy. As underlined in the Stockholm programme, 
EU legislation that is clearly and  comprehensibly  drafted  will  help  citizens  to  exercise  their 
rights  effectively.  In  line  with  the  better  regulation  policy  and  the  Stockholm  programme, 
which stress the importance of evaluation, the Commission will also check that the Charter is 
taken into account in the ex post evaluation of Union instruments, in particular in the reports 
on the application of sensitive legislation and in the mutual evaluation process. 

Non-legislative measures adopted by the Commission, such as decisions, are also subject to 
checks  on  their  compatibility  with  the  Charter  during  drafting,  even  if  there  is  no  impact 
assessment.  

The  Commission  will  pay  particular  attention  to  "sensitive"  proposals  and  acts,  that  is  all 
legislative  proposals  and  implementing  acts  (Article 291  TFEU)  and  delegated  acts 
(Article 290 TFEU) which raise specific issues of compatibility with the Charter or which are 
designed to promote a specific fundamental right under the Charter. 

1.1.1.  Preparatory consultations 

Upstream  of  the  preparation  of  proposals  in  the  strict  sense,  namely  when  the  Commission 
opens  consultations  (green  papers,  communications,  working  papers,  etc.)  with  interested 
parties  on  issues  which  may  lead  to  new  sensitive  proposals,  it  will  highlight  any  potential 
fundamental rights aspects in order to encourage contributions that will feed into the impact 
assessment.  It  will  also  let  it  be  known  that  any  proposals  will  be  subject  to  an  impact 
assessment in accordance with methodology. 

1.1.2. 

Impact assessment 

The  impact  assessments  that  accompany  Commission  proposals  examine  the  impact  of  the 
proposal on fundamental rights when such an assessment is relevant. The impact assessment 
guidelines15,  as  revised  in  2009,  stipulate  that  certain  implementing  acts  (committee 
procedure) liable to have significant repercussions must also undergo an impact assessment. 
The impact assessment should be used to identify fundamental rights liable to be affected, the 
degree of interference with the right in question and the necessity and proportionality of the 
interference in terms of policy options and objectives. However, impact assessment does not 
include  examination  of  the  draft  act's  legal  compliance  with  fundamental  rights.  This 
examination  is  carried  out  at  a  later  date  on  the  actual  draft  act.  The  impact  assessment 
guidelines lay down how fundamental rights must be taken into account at each stage of the 
assessment. The Commission will maintain its general approach to the carrying-out of impact 
assessments, whilst reinforcing the assessment of impacts on fundamental rights16.  

15 
16 

Impact Assessment Guidelines, SEC(2009) 92 of 15.1.2009. 
In  its  'Communication  on  Smart  Regulation  in  the  European  Union'  (COM(2010)  543  final  of 
7.10.2010),  the  Commission  stressed  that  in  order  to  reflect  the  new  status  of  the  Charter  it  will 
reinforce  the  assessment  of  impacts  on  fundamental  rights  and  develop  operational  guidelines  on  the 
matter. 

EN 

6 

   EN 

                                                 
1.1.2.1.  Mainstreaming fundamental rights into the work of the Impact Assessment Steering 

Groups  

The  drawing-up  of  each  impact  assessment  is  headed  by  an  Impact  Assessment  Steering 
Group bringing together the Commission departments concerned and which has a key role to 
play  in  all  phases  of  the  impact  assessment.  The  relevant  Commission  departments  will 
actively make available their fundamental rights expertise to these groups in order to ensure 
that any effects on such rights are systematically identified and analysed at an early stage of 
the policy formulation process. Any effects on fundamental rights that so justify will be given 
prominence in the impact assessment report. Giving them prominence will help to strengthen 
the culture of respect for fundamental rights during the preparation of the draft act.  

1.1.2.2.  Operational guidance on fundamental rights  

In  order  to  ensure  the  development  of  a  truly  mainstreamed  approach  to  fundamental  rights 
and  provide  guidance  to  Commission  departments  on  how  the  impact  of  an  initiative  on 
fundamental  rights  should  be  assessed  in  practice,  operational  guidance  is  being  prepared. 
This guidance will cover the questions set out in the fundamental rights "check-list" above.  

1.1.2.3.  Impact Assessment Board 

The Impact Assessment Board exercises a central quality control and support function under 
the authority of the Commission President. It is independent of the departments drawing up 
policies.  The  Board  examines  and  issues  opinions  on  all  the  Commission's  impact 
assessments  and  hence  on  the  quality  of  the  analysis  underpinning  the  policy  proposals  the 
Commission  puts  forward.  It  systematically  checks  the  fundamental  rights  aspects  of  draft 
impact assessments submitted to it and will issue an opinion on them where necessary. 

1.1.3.  Drafting of draft acts  

1.1.3.1.  Targeted recitals 

After the impact assessment, when the draft legislative proposal (or delegated/implementing 
act)  is  prepared,  the  Commission  will  check  its  legality,  and  in  particular  its  compatibility 
with the Charter.  

Proposals that have a particular link with fundamental rights must include specific recitals that 
explain  how  the  proposal  complies  with  the  Charter.  The  role  of  recitals  is  to  explain  the 
reasoning  behind  the  adoption  of  the  act  in  question  and  so  enable  and  facilitate  judicial 
review of its conformity with the Charter. This means that use of a standardised recital merely 
noting  conformity  with  the  Charter  is  to  be  avoided.  The  insertion  of  recitals  is  not  a  mere 
formality, it reflects the in-depth monitoring of the proposal's compliance with the Charter.  

The  recitals  which  set  out  the  proposal's  conformity  with  the  Charter  will  be  chosen  to 
indicate exactly which fundamental rights the proposal in question will affect. More specific 
tailor-made recitals concerning certain fundamental rights will be inserted where necessary to 
explain the scope of a provision or the solutions incorporated in the proposal to ensure that the 
limitation on a fundamental right is justified under Article 52 of the Charter.  

EN 

7 

   EN 

1.1.3.2.  Summary of fundamental rights issues in the Explanatory Memorandum 

When  the  legislative  proposal  has  an  impact  on  fundamental  rights,  as  borne  out  by  its 
recitals, the Explanatory Memorandum must contain a summary explaining how fundamental 
rights obligations have been met. 

The  Explanatory  Memorandums  accompanying  sensitive  proposals  will  be  reinforced  by  a 
summary  of  all  the  fundamental  rights  aspects  contained  in  the  impact  assessment  and  the 
legislative proposal. In particular, this section will explain why the Commission believes that 
limitations on fundamental rights are justified in terms of necessity and proportionality. Such 
a summary will help to better pinpoint the fundamental rights recitals for sensitive proposals. 
It  will  increase  visibility  by  showing  that  impact  and  compatibility  have  indeed  been 
examined in detail.  

1.2. 

Taking the Charter into account in the legislative process 

The  methodology  introduced  by  the  Commission  applies  only  at  the  preparatory  stage  of 
proposals.  During  the  legislative  process,  the  Commission's  proposals  may  be  amended  by 
one  of  the  co-legislators  raising  questions  about  fundamental  rights,  without  any  systematic 
review of their impact and compatibility with fundamental rights. This situation was identified 
by the European Council in the Stockholm Programme, which calls on the EU institutions and 
Member  States  to  ensure  that  legal  initiatives  remain  consistent  with  fundamental  rights 
"throughout  the  legislative  process  by  way  of  strengthening  the  application  of  the 
methodology  for  a  systematic  and  rigorous  monitoring  of  compliance  with  the  Convention 
and the rights set out in the Charter of Fundamental Rights"17. In line with the objective of 
promoting a fundamental rights culture throughout the legislative process, the Commission is 
ready to help other institutions find an effective way to take into account the effects of their 
amendments  on  the  implementation  of  the  Charter,  including  through  an  examination  of 
questions to be borne in mind (as mentioned in the fundamental rights "check-list" above).  

1.2.1.  Amendments  

Co-legislators'  amendments  to  Commission  proposals  must  comply  with  the  Charter.  The 
Commission will strongly defend its position when it comes to the standards of fundamental 
rights  protection  contained  in  its  proposal,  and  will  notify  co-legislators  of  its  opposition  if 
they seek to lower those standards. In such cases it will not hesitate to use all the means at its 
disposal,  which  may  include  requesting  that  the  act  be  adopted  unanimously  or,  where 
applicable, withdrawing its proposal or bringing an action for annulment of the provisions in 
question18.  

1.2.2. 

Inter-institutional dialogue 

The manner in which draft amendments which raise issues of compatibility with the Charter 
are dealt with, should be subject to a transparent inter-institutional dialogue, in particular to 
make sure that: 

17 
18 

Article 2.1 
Point 3.4 of the report of 29.4.2009.  

EN 

8 

   EN 

                                                 
–  the amendments in question are the subject of an appropriate assessment of their impact on 
fundamental  rights  and  of  their  conformity  with  the  Charter.  The  inter-institutional 
agreement  Common  Approach  to  Impact  Assessment19  has  a  general  provision  that 
Parliament  and  the  Council  are  responsible  for  assessing  the  impact  of  their  own 
"significant" amendments. No mention is made of taking into account fundamental rights 
aspects,  nor  of  the  fact  that  any  amendment raising  a  fundamental  rights  issue  should  be 
considered 'significant';  

–  decisions  on  amendments  are  taken  at  the  appropriate  level  and  that,  for  example,  in  the 

case of the Council they are brought to the attention of ministers;  

–  the Legal Services of the three institutions are fully involved.  

With a view to a forthcoming revision of the interinstitutional agreement Common Approach 
to Impact Assessment, the Commission will propose a provision that, in the exceptional cases 
where  the  Treaty  allows  such  proposals20,  the  impact  assessments  that  accompany 
Member States' proposals also include an assessment of their impact on fundamental rights. In 
addition, in taking its position on the Member States' proposals, the Commission will consider 
carefully the assessment of their impact on fundamental rights. 

1.3. 

Ensuring  that  the  Member  States  respect  the  Charter  when  implementing 
Union law 

The  Charter  is  addressed  to  the  Member  States  only  "when  they  implement  Union  law" 
(Article 51(1)). The upholding of fundamental rights by Member States when they implement 
Union  law  is  in  the  common  interest  of  all  the  Member  States  because  it  is  essential  to  the 
mutual  confidence  necessary  for  the  operation  of  the  Union.  This  principle  is  particularly 
important  in  view  of  the  expansion  of  the  EU  acquis  in  areas  where  fundamental  rights  are 
especially  relevant,  such  as  the  area  of  freedom,  security  and  justice,  non-discrimination, 
Union citizenship, the information society and the environment.  

The  Commission's  efforts  to  enforce  fundamental  rights  will  be  guided  by  the  following 
principles:  

1.3.1.  Prevention  

The Commission will step up its preventive approach by reminding in appropriate cases the 
authorities responsible for transposing legislation of the obligation to comply with the Charter 
in implementing the legislation concerned and by assisting them to do so, in particular within 
the committees of experts set up to facilitate the transposition of the directives. For example, 
the  importance  of  compliance  with  the  Charter,  particularly  in  the  area  of  children's  rights, 
was  highlighted  in  the  expert  group  set  up  to  monitor  the  transposition  of  Directive 
2008/115/EC  ("the  return  Directive")  and  within  the  Committee  for  Framework  Decision 
2008/919/JHA, which amends the Framework Decision on combating terrorism. 

19 
20 

Council document 14901/05 of 24.11.2005. 
The areas of judicial cooperation in criminal matters and police and administrative cooperation in the 
area of freedom, security and justice (Article 76 TFEU). 

EN 

9 

   EN 

                                                 
1.3.2. 

Infringement procedures  

When  a  Member  State  does  not  respect  fundamental  rights  when  implementing  Union  law, 
the Commission, as guardian of the Treaties, has powers of its own to try to put an end to the 
infringement and may, if necessary, take the matter to the Court of Justice (action for failure 
to fulfil an obligation). The Commission may only intervene if the situation in question relates 
to Union law. The factor connecting it with Union law will depend on the actual situation in 
question21. 

The Commission is determined to use all the means at its disposal to ensure that the Charter is 
adhered  to  by  the  Member  States  when  they  implement  Union  law.  Whenever  necessary  it 
will start infringement procedures against Member States for non-compliance with the Charter 
in implementing Union law. Those infringement proceedings which raise issues of principle 
or which have particularly far-reaching negative impact for citizens will be given priority.  

1.3.3. 

Situations outside the scope of the Charter 

The  Charter  does  not  apply  where  there  are  breaches  of  fundamental  rights  with  no 
connection  to  Union  law.  Member  States  have  their  own  systems  to  protect  fundamental 
rights through their national courts and the Charter does not replace them. It is therefore up to 
the national courts to ensure compliance with fundamental rights and up to the Member States 
to  take  the  necessary  measures  in  accordance  with  their  national  laws  and  international 
obligations.  In  such  situations,  the  Commission  does  not  have  the  power  to  intervene  as 
guardian of the Treaties.  

Article 7 TEU provides for a mechanism enabling institutions of the Union to act when there 
is a clear risk of a serious breach or a serious and persistent breach by a Member State of the 
values referred to Article 2 TEU, which include respect for human rights. This is a political 
mechanism  of  last  resort,  intended  for  situations  of  an  exceptional  nature  with  a  systemic, 
structural  dimension22.  Where  there  is  a  clear  risk  of  a  serious  breach  of  these  values  this 
mechanism may be triggered by a reasoned proposal of a third of the Member States, of the 
European Parliament, or of the Commission. 

2. 

BETTER INFORMING THE PUBLIC 

2.1. 

Information needs 

For  the  rights  enshrined  in  the  Charter  to  be effective  the  public  needs  to  be  well  informed 
about these rights and how to enforce them in practice when they are violated. Information on 
means of redress is particularly important in relation to: 

21 

22 

For example, a connecting factor exists when national legislation transposes a Union Directive in a way 
contrary  to  fundamental  rights,  when  a  public  authority  applies  Union  law  in  a  manner  contrary  to 
fundamental rights or when a final decision of a national court applies or interprets the Union law in a 
way contrary to the fundamental rights. 
The conditions for implementing this mechanism are explained in the Commission communication on 
Article 7 TEU on Article 7 of the Treaty on European Union - Respect for and promotion of the values 
on which the Union is based, COM(2003) 606 final of 15.10.2003. 

EN 

10 

   EN 

                                                 
–  the rights of the child: for example, the problems most often cited by young people are that 
they  do  not  know  how  defend  their  rights  or  who  to  turn  to  (80%)23.  The  Fundamental 
Rights Agency reported the same type of difficulties in connection with discrimination24; 

–  the  difficulty  of  knowing  which  are  the  appropriate  legal  remedies  and  confusion  about 
their roles may lead complainants to knock on the "wrong door". The Commission receives 
many  letters  about  situations  for  which  it  has  no  competence  under  the  Treaties  because 
they are unrelated to Union law. On this point the Commission would point out that it is up 
to  national  authorities,  including  the  courts,  to  rule  on  cases  of  alleged  breaches  of 
fundamental rights and that the Commission is not a court of appeal against the decisions 
of national or international courts;  

–  the  lack  of  suitable  information  makes  redress  more  difficult  and  amplifies  the  practical 
difficulties  of  taking  action  (language,  awareness  of  the  procedures,  the  cost  of 
proceedings,  situation  of  the  complainant,  and  so  on),  and  this  may  deter  people  whose 
fundamental rights have been breached from seeking redress ("invisible" complainants).  

2.2. 

Commission action 

Targeted  communication  measures  tailored  to  various  situations  are  needed  to  tackle  these 
difficulties.  

2.2.1. 

Information on the Union's role in fundamental rights 

The  Commission  will  step  up  its  information  activities  concerning  the  Union's  role  and 
powers in the area of fundamental rights and the possibilities for intervention, and also ensure 
that the language needs of citizens and professionals are catered for: 

–  explanations will be made available to complainants and interested parties tailored to the 
audience  addressed,  for  example 
the 
Commission's  answers  to  individual  complaints  not  within  its  area  of  competence  will 
contain an explanatory annex in the form of Frequently Asked Questions; 

in  a  child-friendly  manner.  In  particular, 

–  information  and  training  for  legal  professionals  and  the  judicial  authorities,  including 
judges, will be promoted through, in particular, the European Judicial Network in civil and 
commercial matters, the European Judicial Network in criminal matters and the European 
Forum for Justice. 

2.2.2. 

Information on existing legal remedies 

Individuals who believe themselves to be victims of a breach of their fundamental rights must 
have access to practical information on the legal remedies existing in the Member States to 
deal  with  allegations  of  breaches  of  fundamental  rights.  The  Commission  will  take  the 
following measures: 

–  it will ensure that in 2011 the e-justice portal provides the public with information about 

legal remedies in cases of alleged violations of fundamental rights; 

23 

24 

When young people between 15 and 18 were asked which problems might be encountered by under 18s 
seeking to defend their rights; Flash Eurobarometer No 273, May 2009, 'The Rights of the Child'.  
EU-MIDIS European Union Minorities and Discrimination Survey. 

EN 

11 

   EN 

                                                 
–  in  liaison  with  the  European  Parliament's  Committee  on  Petitions,  national  human  rights 
institutions and national authorities, the registries of the Court of Justice and the European 
Court  of  Human  Rights  and  with  other  bodies of  the  Council  of  Europe,  it  will  launch  a 
joint reflection on the information available on legal remedies in the area of fundamental 
rights. 

3. 

ANNUAL REPORT ON THE APPLICATION OF THE CHARTER 

The Commission will present an Annual Report on application of the Charter which will have 
two objectives:  

–  to take stock of progress in a transparent, continuous and consistent manner. It will identify 
what  has  been  done  and  what  remains  to  be  done  for  the  effective  application  of  the 
Charter;  

–  to offer an opportunity for an annual exchange of views with the European Parliament and 

the Council. 

The Annual Report will provide a useful new way of throwing light on the implementation of 
the  Charter  of  Fundamental  Rights.  The  Commission  will  describe  how  it  takes  account  of 
fundamental  rights  in  drawing  up  its  initiatives  on  the  basis  of  the  activities  set  out  in  this 
communication.  It  will  also  enable  the  Commission  to  explain  before  Parliament  and  the 
Council how the Charter was taken into account during the legislative process.  

The  Annual  Report  will  cover  all  the  rights  contained  in  the  Charter  and  how  they  are 
implemented within the Union's field of competence. Whilst having a separate scope, it will 
complement the annual report on human rights and democracy in the world which covers the 
Union's  action  in  non-member  countries25.  The  report  will  focus  first  and  foremost  on  the 
activities  of  Union  institutions,  in  particular  those  of  the  Commission.  By  covering  all  the 
rights set out in the Charter continuously, year after year, the report will enable us to monitor 
progress and the emergence of any new problems.  

The  Annual  Report  will  look  at  the  various  matters  brought  to  the  attention  of  the 
Commission by citizens, members of the European Parliament and interested parties, and will 
identify issues of concern. By identifying the matters rightly notified to the Commission, and 
those which, in contrast, were the responsibility of other authorities, the report will also help 
to make members of the public better informed about the defence of their rights.  

The  Annual  Report  will  describe  what  the  Commission  has  done  to  ensure  the  effective 
application  of  the  Charter,  for  instance  through  infringement  proceedings  and  information 
activities.  By  increasing  transparency  and  disseminating  information  about  the  Charter,  the 
report may help the Member States to comply with the Charter when they implement Union 
law and thus reduce the need to resort to infringement proceedings. 

In preparing its Annual Report the Commission will work in partnership with all institutions 
and stakeholders to gather the information and data required, including the fundamental rights 

25 

See,  for  example,  'Human  rights  and  democracy  in  the  world:  report  on  EU  action  -  July  2008  to 
December 2009'.  

EN 

12 

   EN 

                                                 
case-law  of  the  Court  of  Justice  and  the  European  Court  of  Human  Rights,  plus  that  of 
national courts when it concerns Union law.  

The  European  Parliament,  particularly  through  its  questions  and  petitions,  is  a  crucial 
intermediary for finding out about the fundamental rights situation in Member States in areas 
within the Union's competence. The Commission will explore with Parliament the best way of 
cooperating and harnessing their efforts in the preparation of its annual report and within the 
mechanisms for cooperation between Parliament and national parliaments. 

With the Fundamental Rights Agency the Union has equipped itself with a tool to help its 
institutions and the Member States implement Union law; its main activity will be to provide 
reliable and comparable data on fundamental rights. This information will be crucial for the 
annual report and the Commission will encourage the Agency to collect such data. 

In drawing up its report the Commission will also take on board information provided by all 
stakeholders,  including national  authorities,  such  as  Supreme  Courts,  independent  national 
human rights bodies and the national authorities in charge of assessing the impact of domestic 
legislation on fundamental rights. The monitoring machinery of the Council of Europe and 
the  United  Nations  may  also  be  a  source  of  relevant  information  for  the  Union  and  the 
Member  States  when  implementing  Union  law.  Information  from  civil  society  will  also  be 
taken into account, since NGOs are best placed to know what is happening on the ground.  

The  Annual  Report  will  thus  enable  all  stakeholders  to  make  a  contribution  to  the  ongoing 
process of implementing the Charter and, by making this process visible and transparent, will 
promote a fundamental rights dynamic in the European Union. The Commission is currently 
preparing the first Annual Report, which will cover 2010, for publication in spring 2011. 

**** 

The strategy presented by the Commission is based on a clear objective: the Union must set 
an example to ensure that the fundamental rights provided for in the Charter become reality. 
The Commission has taken steps to achieve this objective, in particular by strengthening the 
assessment of the impact of its proposals on fundamental rights. It will also encourage other 
Union institutions to ensure the full respect of the Charter in their legislative processes. It will 
remind  Member  States  where  necessary  of  the  importance  of  complying  with  the  Charter 
when  they  implement  Union  law.  It  will  develop    communication  actions  targeted  on  the 
needs of the public. 

This strategy will be effective if it is implemented in a continuous, determined and transparent 
manner and with the involvement of all the interested parties. The Commission has decided to 
submit  an  Annual  Report  on  the  application  of  the  Charter  each  year  in  order  to  show  the 
progress that has been made and steer the development of its policy. This undertaking testifies 
to the Commission's determination to put the Charter into practice. 

EN 

13 

   EN