COMMISSION STAFF WORKING DOCUMENT Accompanying document to the  REPORT FROM THE COMMISSION TO THE EUROPEAN PARLIAMENT, THE COUNCIL, THE EUROPEAN ECONOMIC AND SOCIAL COMMITTEE AND THE COMMITTEE OF THE REGIONS  2010 Report on the Application of the EU Charter of Fundamental Rights
Date: 2011-03-30
Institutions: European Commission
Subjects: European citizenship, charter on human rights, equal treatment, human rights, protection of freedoms, right to justice

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EUROPEAN COMMISSION 

Brussels, 30.3.2011 
SEC(2011) 396 final 

COMMISSION STAFF WORKING DOCUMENT 

Accompanying document to the 

REPORT FROM THE COMMISSION TO THE EUROPEAN PARLIAMENT, THE 
COUNCIL, THE EUROPEAN ECONOMIC AND SOCIAL COMMITTEE AND THE 
COMMITTEE OF THE REGIONS 

2010 Report on the Application of the EU Charter of Fundamental Rights 

COM(2011) 160 final 

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INTRODUCTION 

The Charter of Fundamental Rights is the EU's bill of rights. With the entry into force of the Lisbon 
Treaty the Charter became legally binding. It is an historic breakthrough in reinforcing a Europe of 
rights  and  values.  The  Charter  brings  together  in  one  text  all  the 
fundamental  rights  protected  at  Union  level,  spelling  them  out  in 
detail and making them visible and predictable. 

The  Charter  of  Fundamental  Rights: 
the EU's bill of rights  

The Charter is not just a text setting out values and principles which can only be used in theory. The 
Charter  was  conceived  to  be  an  instrument  that  enables  people  to  effectively  enjoy  fundamental 
rights in all the situations that are governed by EU law. It is a living instrument, which should be put 
in  practice  daily  by  the  EU  institutions,  as  well  as  by  Member  States  only  when  they  are 
implementing EU law.  

to 

reinforce 

Fundamental Rights "Check-List" 
1. Which fundamental rights are affected?  

In  2010,  the  European  Commission  adopted  a  Strategy  to  make  sure  the  Charter  is  effectively 
implemented, so that people can enjoy their rights in practice1. The objective is that the EU sets an 
example  to  ensure  that  the  fundamental  rights  provided  for  in  the  Charter  become  reality.  The 
Commission is taking action to achieve this objective: it verifies that EU laws are in compliance with 
the Charter at each stage of the legislative process – from the preparatory work in the Commission 
to the adoption of draft laws by the European Parliament and the Council, as well as when Member 
States  apply  them.  To  help  do 
this, the Commission produced 
a  "Fundamental  Rights  Check-
the 
List" 
impacts  on 
evaluation  of 
its 
fundamental 
legislative 
The 
Commission also aims to better 
inform  citizens  where  to  turn 
in  cases  of 
for  assistance 
violations 
fundamental 
of 
rights.  To  monitor  progress, 
the Commission will present an 
Annual 
the 
Report 
application of the Charter.   

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)? 

2. Are the rights in question absolute rights (which may not be subject to 
limitations, examples being human dignity and the ban on torture)? 

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

predictable manner? 

rights  of 

proposals. 

on 

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? 

1 

Communication from the Commission of 19 October 2010 on the Strategy for the effective implementation of the Charter of 
Fundamental Rights by the EU, COM/2010/0573 final, available at: 
http://eur-lex.europa.eu/LexUriServ/LexUriServ.do?uri=COM:2010:0573:FIN:EN:PDF 

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Protecting fundamental rights in the EU: who does what? 

In the European Union there is a clear legal requirement that fundamental rights must be protected. 
This protection is guaranteed by different institutions at national level and at EU level, depending on 
whether  the  Charter  applies.  When  the  Charter  does  not  apply,  national  constitutional  systems 
guarantee the respect of fundamental rights.  

At EU level 

The Court of Justice of the European Union 

The Charter applies to all actions by EU institutions. The role of the Commission is to ensure 
that its legislative proposals respect the Charter. All EU institutions (and notably the European 
Parliament  and  the  Council)  are  equally  responsible  for  respecting  the  Charter  throughout  the 
legislative  process.  The  Charter  applies  to  Member  States  only  when  they  are  implementing  EU 
law.  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 
Court  of  Justice.  The  Commission  is  not  a 
judicial body or a court of appeal against the 
decisions of national or international courts. 
it,  as  a  matter  of  principle, 
Nor  does 
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 problem, the Commission can contact 
the national authorities to have it fixed, and 
ultimately it can take a Member State to the 
Court  of  Justice.  The  objective  of  these 
proceedings  is  to  ensure  that  the  national 
law in question - or a practice by national administrations or courts - is aligned with the requirements 
of EU law. 

The Court of Justice in Luxembourg is an institution of 
the European Union. It is the final authority in relation to 
the  Treaties,  the  Charter  and  EU  law.  It  makes  sure  that 
they  are  interpreted  and  applied  in  the  same  way  across 
the  Union,  and  that  EU  institutions  and  the  Member 
States do what EU law requires of them.  

The  Court  of  Justice  has  long  recognised  fundamental 
rights  as  an  “integral  part  of  the  general  principles  of  EU 
law” by referring to the constitutional traditions common 
to the Member States and to the European Convention on 
Human Rights.  

When  individuals  or  businesses  consider  that  an  act  of  the  EU  institutions  directly  affecting  them 
violates their fundamental rights, they can bring their case before the Court of Justice, which subject 
to certain conditions has the power to annul such act. 

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At national level 

National  authorities  must  apply  the  Charter  when  they  follow  rules  laid  down  in  EU 
law.  Judges  in  the  Member  States,  under  the  guidance  of  the  Court  of  Justice,  have  the  power  to 
ensure that the Charter is respected by the Member States only when they are implementing EU law. 
Individuals  may  also  obtain  compensation  or 
damages if their rights under EU law are violated. 

Informing citizens on where to complain 

fundamental 

Where  the  Charter  does  not  apply,  citizens' 
fundamental  rights  are  guaranteed  by  national 
authorities  according  to  their  constitutional 
systems. Member States have extensive national 
rights,  which  are 
rules  on 
guaranteed by national judges and constitutional 
courts. 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.  Accordingly,  complaints  need  to  be 
directed to the national level in the first instance. 

Individuals  may  lose  their  rights  for  compensation  if 
they  miss  a  deadline  for  bringing  a  case  to  the  right 
national court or authority when enforcing their rights.   

The  Commission  intends  to  better  inform  people, 
institutions, 
jointly  with  national  human 
ombudspersons  and  other  relevant  bodies,  on  where  to 
turn  to  in  case  of  a  complaint.  The  protection  for 
fundamental  rights  in  the  EU  should  not  become  an 
inextricable  maze  for  individuals  seeking  to  enforce  their 
rights. 

rights 

The  role  of  the  European 
Court of Human Rights  

The  European  Court  of  Human  Rights  in  Strasbourg  also  provides  legal 
recourse of last resort for individuals who feel that their fundamental rights 
have  been  violated  by  a  Member  State  -  all  of  which  have  adopted  the 

European  Convention  on  Human  Rights.  The  entry 
into force of the Lisbon Treaty requires the European 
Union  to  accede  to  the  European  Convention  on 
Human  Rights.  When  this  process 
is  completed, 
individuals  who  feel  that  their  human  rights  have 
been violated by the EU will also be able to bring their 
case in front of the European Court of Human Rights. 
The  European  Court  of  Human  Rights  will  therefore 
provide an external mechanism of control, regardless 
of which authority (national or EU) has adopted an act 
which might potentially violate a fundamental right. 

The European Court of Human Rights 

is  an 

The  Council  of  Europe 

international 
organisation  of  47  European  countries  dealing  with 
human  rights,  which  has  enacted  the  European 
Convention  on  Human  Rights.  It  is  distinct  from  the 
EU.  All  of  the  Member  States  of  the  EU  are  also 
members of the Council of Europe and bound by the 
Convention.  

The  European  Court  of  Human  Rights  (located  in 
Strasbourg) is an international court and an organ of 
the  Council  of  Europe,  which  rules  on  applications 
alleging  violations  of  the  rights  set  out 
in  the 
European Convention on Human Rights. 

The  Annual  Report:  the  track 
record of the Charter  

This Report is an essential tool in implementing the rights and freedoms in 
the  Charter.  It  aims,  for  the  first  time,  to  illustrate  by  examples  how  the 
Charter is being applied. The Report informs the public on the situations in which they can rely on 
the  Charter  and  on  the  role  of  the  European  Union  in  the  field  of  fundamental  rights.  It  identifies 
what has been done and what remains to be done for the effective application of the Charter. The 
Report is based on the actions of EU institutions and the analysis of letters from the general public 
and questions and petitions from the European Parliament. This Report covers the year 2010 and will 
be  followed  by  yearly  reports.  In  covering  the  full  range  of  Charter  provisions  on  an  annual  basis, 
future reports will track where progress is being made, or where new concerns are arising.   

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

rights 

received  by 

Among  the  letters  from  the  general  public  on 
fundamental 
the 
issues 
Commission  in  2010,  approximately  one  third 
concerned  situations  where  the  Charter  could 
apply. In several 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  European  Court  of  Human  Rights 
in 
Strasbourg.  Where  possible,  complainants  were 
redirected  to  other  bodies  for  more  information 
(such as national data protection authorities). 

Among  the  questions  and  petitions  from  the  European  Parliament  in  2010,  approximately  half 
concerned  issues  within  EU  competence.  In  several  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 ongoing initiatives.   

The structure of the Report 

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

•  Examples  of  how  the  EU  institutions2  and,  where  relevant,  the  Member  States3  have  applied 

the Charter in 2010; 

•  Questions  and  petitions  from  the  European  Parliament4,  and  letters  from  the  general  public 

received in 2010 focusing on fundamental rights issues; 

•  Relevant case-law of the Court of Justice5; 
•  Data gathered by the EU Agency for Fundamental Rights throughout 2010.6 

2 

3 
4 

5 
6 

Examples  of  the  application  of  the  Charter  by  the  Commission  in  the  preparation  of  the  initiatives  adopted  in  2010,  and 
examples  of  the  application  of  the  Charter  in  the  legislative  process  during  2010  before  the  European  Parliament  and  the 
Council. 
Examples of the application of the Charter by Member States when implementing EU law in 2010. 
Questions from the European Parliament received in 2010 and petitions submitted to the European Parliament, for which the 
European Parliament requested in 2010 an opinion or follow-up from the Commission.  
Case-law in which the Court directly quoted the Charter or referred to fundamental rights in the reasoning, published in 2010. 
Data resulting from surveys and data collections on fundamental rights in the EU and published in thematic reports. 

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1.  Dignity 

Human dignity 

Right to life 

Right to the integrity of 
the person 

Prohibition of torture 
and inhuman or 
degrading treatment or 
punishment 

Prohibition of slavery 
and forced labour 

The  Commission  in  2010  proposed  new  EU  rules  to  combat  human  trafficking,  a 

practice explicitly prohibited by the Charter. 

The Commission examined the impact on human dignity and other fundamental rights 

of  security  scanners  at  airports.  This  technology  aims  to  enhance  security  on  flights 

and the EU must make sure that rules on use of scanners protect human dignity and 

other fundamental rights, and the health of travellers. 

Respect  for  human  dignity  is  particularly  important  in  the  rules  on  common  EU 

external  borders.  New  EU  rules  on  the  interception  of  migrants  at  sea  and  rules 

governing the EU Border agency (FRONTEX) guarantee the respect of human dignity of 

all migrants.  

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Human dignity  

Human dignity is the basis of all fundamental rights. It guarantees the protection of human person 
from being treated as a mere object by the State or by his fellow citizens. The rights and freedoms 
under the title Dignity, such as the right to life, and the prohibition of torture and slavery, must be 
respected  so  we  can  exercise  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. 

In  2010,  the  Commission  received  a  number  of  letters  from  the  general  public,  and  questions  and 
petitions from the European Parliament on this title, which were mainly related to the situation of 
irregular immigrants at the external borders and detention. 

As  a  result,  the  Commission  took  action  in  several  cases  to  ensure  the  respect  of  the  Charter  in 
relation to EU law. One such case concerned the respect of human dignity at the external borders of 
the Union, following allegations of maltreatment.  

In a number of other cases brought to the attention of the Commission in 2010, the alleged violation 
of human dignity was not related to the implementation of EU law, such as alleged mistreatment in 
the context of routine police checks. 

Respect  for  human  dignity  at  EU  external 
borders 

Respect  for  human  dignity  by  the  police 
within a Member State 

In  one  case,  an  individual  claimed  to  have  been 
mistreated during a routine police check on the street, 
violating his human dignity. 

Law  enforcement  issues  such  as  routine  police 
checks  on  the  street  conducted  by  the  police  are  the 
responsibility of the Member States. There is no EU law 
in  this  area,  meaning  that  the  Charter  cannot  be 
invoked in this context and that the Commission cannot 
give any follow-up to such complaints. 

The  complainant  should  seek  redress  elsewhere, 
through  the  national  courts,  for  example.  The  courts 
then apply the constitutional principles of the Member 
State concerned. 

organisations 

Non-governmental 

the 
Commission  to  a  number  of  cases  of  alleged 
maltreatment  and  violation  of  the  human  dignity  of 
migrants  by  national  border  guards  in  one  Member 
State.  

alerted 

Border management at the external borders of the 
so-called Schengen area is governed by EU law and the 
Commission intervened in this case.  

With  the  creation  of  the  Schengen  area,  Member 
States  abolished  border  controls  and  only  maintain 
them  at  borders  with  non-Schengen  Member  States 
and  non-EU  countries.  National  border  guards  must 
fully  respect  fundamental  rights, 
including  human 
follow  EU  rules  on  border 
dignity,  when  they 
management. 

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How  is  human  dignity 
the 
respected 
in 
of 
implementation 
security scanners? 

EU  action  in  the  field  of  aviation  security  aims  at  preventing  acts  of  unlawful 
interference against civil aviation, such as seizure of an aircraft or transportation of 
a hazardous device. In 2010, new EU rules on aviation security came into force.7 The 
main  principle  of  European  as  well  as  international  rules  in  this  field  is  to  keep 
dangerous  items  such  as  arms,  knives  or  explosives  away  from  aircraft.  For  that  reason,  every 
passenger, piece of luggage and cargo departing from an EU airport, or coming from a third country 
and transferring through an EU airport, must undergo controls. 

Guaranteeing  the  security  of  travellers  includes  the  use  of  new 
technologies  that  can  detect  unsafe  objects  at  airports.  A  security 
intended  for  screening  persons  entering 
scanner 
restricted  areas  such  as  passengers  boarding  an  aircraft  to  detect 
metallic  and  non-metallic  objects  carried  on  that  person  ,  some  of 
which a metal detector would fail to recognise.  

is  a  device 

In  2010,  the  Commission  adopted  a  Communication  on  the  use  of 
security  scanners  at  EU  airports.8  The  Communication  recalled  the 
need to ensure the respect of human dignity and private and family 
life,  the  protection  of  personal  data,  the  rights  of  the  child,  and 
identified  that  according  to  the  technology  used  different  health 
issues  must  be  considered.9  The  Commission  took  note  of  the 
possibility  for  opt-outs  from  the  use  of  security  scanners.  The 
Communication  presents  the  types  of  security  scanners  that  are 
available on the market and are used for aviation security purposes, 
reports  on  their  detecting  capabilities  and  on  their  possible  impact 
on human dignity and other fundamental rights.  

Security  scanners  and  respect  for 
human dignity 

of 

Some 

technologies 

security 
scanners can reveal a detailed display of 
the  human  body, 
including  possible 
medical  conditions,  such  as  prostheses 
and diapers. 

This 

capability  may 

compromise 
respect  for  human  dignity  and  private 
life.  Displaying  the  details  about  a 
person's body and his medical conditions 
indicates treating people as objects. This 
could  violate  the  right  for  respect  of 
human  dignity,  which  requires  that 
people are treated as subjects.

The  European  Union  strongly  opposes  the  death  penalty  and  has  consistently  backed  its  universal 
abolition,  and  continues  to  work  towards  this  goal.  The  Commission  was  alerted  to  the  fact  that 
companies based in EU sell certain chemicals (sodium thiopental) to the US, which are then used in 
judicial executions.  The Commission is considering amending EU rules that would avoid the export of 
pharmaceuticals for use in capital punishment and aims to present formal proposals in 2011. 

7 
8 
9 

Regulation (EC) 300/2008, OJ L. 97, 09.04.2008, p.72, and its implementing legislation, in force since 29 April 2010. 
COM(2010) 311 final, available at: http://ec.europa.eu/transport/air/security/doc/com2010_311_security_scanners_en.pdf 
The  Communication  identified  that  the  capture  and  processing  of  the  image  of  an  identified  or  unidentifiable  person  by 
security scanners in order to allow a human reviewer to perform the security relevant assessment falls under EU legislation on 
data  protection.  The  criteria  against  which  the  scanning  has  to  be  assessed  are  i)  whether  the  measure  proposed  is 
appropriate to achieve the objective (detection of non-metallic items and therefore a higher security level), ii) whether it does 
not go beyond what is necessary to achieve this objective and iii) whether there is no less intrusive means. 
The Commission in the Communication paid special attention to health aspects, reflecting the Charter obligation that, in the 
definition  and  implementation  of  all  the  Union's  policies  and  activities,  a  high  level  of  human  health  protection  shall  be 
ensured. 

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Prohibition of inhuman or degrading treatment 

The Charter provides that no one shall be subjected to torture or to inhuman or degrading treatment 
or punishment. 

This  provision  is  particularly  relevant  in  the  context  of  implementing  EU  rules  on  border  control, 
which  provide  common  standards  and  procedures  on  controls  at  the  external  borders  of  the 
Schengen area10. These rules guarantee respect for the fundamental rights of all travellers. 

Border surveillance at the external sea borders in the Mediterranean Sea is a particularly challenging 
task.  In  2010,  the  Commission  proposed  new  rules11  to  make  border  surveillance  at  sea  more 
effective  and  at  the  same  time  to  guarantee  the  respect  of  fundamental  rights  of  migrants 
intercepted at sea. In particular, national authorities must inform the intercepted migrants about the 
proposed place of disembarkation, so that they can object 
being  taken  to  countries  where  they  could  face  torture. 
The  needs  of  children,  victims  of  trafficking,  persons  in 
need  of  urgent  medical  assistance  or  of  international 
protection  and  other  vulnerable  groups  must  be 
observed.  

EU rules on surveillance of sea borders 

the 

In 2010, the EU adopted new rules on border 
surveillance  at  sea  which  enhance  border 
security  and  guarantee 
for 
fundamental  rights  of  migrants  intercepted  at 
sea. 

respect 

The  EU  borders  agency  (FRONTEX)  plays  a  key  role  in 
coordinating  the  action  of  the  Member  States.  In  2010, 
the Commission also proposed amendments to the rules 
governing FRONTEX12. The proposed amendments require 
that  all  persons  participating  in  border  control  activities 
in  fundamental  rights,  that  any 
undertake  training 
incidents  during  operations, 
in  relation  to 
fundamental rights, must be reported to the national authorities and followed up, and that FRONTEX 
develops detailed guidelines on how to treat third-country nationals who are being returned to their 
home  country  (building  on  the  best  practice  guidelines  already  in  place).  For  example,  an 
independent monitor must be present during return operations and report to the Commission on the 
compliance of operations with EU law. 

For example, these rules require that national 
authorities  inform  migrants  intercepted  at  sea 
about the proposed place of disembarkation, so 
they  can  object  to  being  taken  to  countries 
where they could face torture. 

including 

Ill-treatment  of  migrants  at  the  external 
border 

The  Commission  has  continued  to  follow  the  situation  on 
the  ground  concerning  the  application  of  EU  law  by  the 
Member States. In 2010, a number of national courts have 
referred questions to the Court of Justice on the transfer of 
asylum seekers to Greece in the framework of the EU rules 
on  determining 
for 
the  Member  State 
examining  an  asylum  application.  The  Commission 
continued  discussions  with  Greece  regarding  the  failure  to 
properly  investigate  reports  of  violations  of  fundamental 
rights.  These  proceedings  also  concern  a  breach  of  EU 
asylum legislation. The Commission is concerned about allegations of a failure to respect the right to 
effective access to a procedural system allowing an application for asylum to be made and properly 
assessed,  and  a  number  of  legal  provisions  relating  to  the  treatment  of  unaccompanied  minor 
applicants for asylum.  

Following  a  number  of  allegations  of  ill 
treatment  of  migrants  at  the  border  between 
Greece and Turkey, the Commission continued 
discussions  with  Greece, 
in  2009, 
regarding  the  failure  to  fulfill  its  obligation  to 
respect fundamental rights when implementing 
EU external border legislation. 

responsible 

initiated 

EU  law  concerning  the  return  of  illegally  staying  third-country  nationals  takes  full  account  of  the 
importance  of  Member  States  respecting  the  fundamental  rights  of  third-country  nationals.  The 

10 

11 

12 

The Schengen area is an area within the EU without border controls. It includes the territories of the Member States that have 
decided to abolish border controls between them. External borders are borders between the Member States that have joined 
the Schengen area and non-Schengen Member States or third countries. 
Council Decision of 26 April 2010 supplementing the Schengen Borders Code as regards the surveillance of the sea external 
borders in the context of operational cooperation coordinated by the European Agency for the Management of Operational 
Cooperation at the External Borders of the Member States of the European Union (2010/252/EU) (proposal adopted by the 
Commission on 27 November 2009; adopted by the Council on 26 April 2010), OJ L 111, 04.05.2010, p. 20-26. 
Proposal for a Regulation amending Council Regulation (EC) No 2007/2004 establishing a European Agency for the 
Management of Operational Cooperation at the External Borders of the Member States of the European Union (FRONTEX), 24 
February 2010, COM(2010) 61 final, available at:  
http://eur-lex.europa.eu/LexUriServ/LexUriServ.do?uri=COM:2010:0061:FIN:EN:PDF 

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Return  Directive13  includes  a  number  of  guarantees  for  the  respect  of  fundamental  rights  of  the 
potential returnees, in particular as regards the respect for the principle of non-refoulement, which 
prohibits returning people to countries where they could face torture. The deadline for transposition 
of  most  of  the  provisions  of the  Directive  expired  on 24 December  2010,  and the  Commission  will 
continue to pay close attention to the transposition and application of the Directive by the Member 
States in 2011 and beyond. In 2010, the Commission provided assistance to the Member States on 
how to adapt national laws to the Return Directive while respecting the prohibition of inhuman and 
degrading  treatment  and  other  fundamental  rights,  by  conducting  regular  meetings  with  Member 
States. 

In  2010,  the  Commission  received  a  number  of  letters  from  the  general  public  on  the  issue  of 
detention.  They  raised  concerns  about  poor  detention  conditions  due  to  prison  overcrowding  in 
national prisons, in the light of the requirements of the Council of Europe 'European Prison Rules'. 
Several  letters  complained  about  pre-trial  detainees  staying  together  with  convicted  prisoners.  To 
discuss these issues, the Commission in 2010 started preparation for a Green Paper on detention. 

Prohibition of trafficking in human beings 

Trafficking  in  human  beings  is  a  new  form  of  slavery  that  violates  human  dignity.  The  Charter 
explicitly  prohibits  trafficking  in  human  beings.  A  report  by  the  EU  Agency  for  Fundamental  Rights 
estimated that a significant number of people, mostly women and children, fall victim to trafficking 
for sexual exploitation, labour exploitation, domestic servitude, begging, and the removal of organs 
or other purposes.14  
In 2010, the Commission proposed new EU rules15 aiming to develop a comprehensive approach to 
human  trafficking  for  the  purpose  of  sexual  and  labour  exploitation.  These  rules  seek  to  achieve 
more effective prosecution by national authorities of human traffickers across borders. They propose 
uniform definitions and common standards on sanctions, liability and jurisdiction. If this proposal is 
adopted, the Member States would have to put in place mechanisms for the early identification of 
victims, as well as for the early provision of support to victims. Victims would also receive free legal 
counselling  and  legal  representation.  When  the  victims  of  trafficking  are  children,  the  proposal 
extends  the  protection  measures  to  unaccompanied  and  separated  children  that  are  subject  to 
exploitation.  The  new  definition  of  trafficking  only  requires  the  recruitment  or  transfer  and 
subsequent exploitation when children are involved, regardless whether children have been forced 
into exploitation. The proposal also protects children from the negative effects of court procedures 
by defining how to conduct interviews with child victims. When adopting laws on this issue, Member 
States must take into account the rights of defence of those accused in criminal procedures. 
The  Commission  adopted  a  report16  on  the  implementation  in  Member  States  of  EU  rules17which 
require  issuing  residence  permits  to  third-country  nationals  who  are  victims  of  trafficking.  The 
objective of these rules is twofold. On the one hand, they protect fundamental rights of victims and 
ensure that there are measures in place to assist in their recovery (e.g. medical services, translation, 
and attendance to special needs of minors). On the other hand, they provide concrete incentives for 
victims,  such  as  the  issue  of  the  residence  permit,  to  cooperate  in  dismantling  networks  of 
traffickers.  

13 

14 

15 

16 

17 

Directive  2008/115  on  common  standards  and  procedures  in  Member  States  for  returning  illegally  staying  third-country 
nationals, OJ L 348, 24.12.2008, p.98. 
EU  Agency  for  Fundamental  Rights  Report  "Child  Trafficking  in  the  EU:  challenges,  perspectives  and  good  practices"  (July 
2009), available at: http://www.fra.europa.eu/fraWebsite/attachments/Pub_Child_Trafficking_09_en.pdf 
Proposal for a Directive on preventing and combating trafficking in human beings, and protecting victims, repealing 
Framework Decision 2002/629/JHA, COM(2009) 136 final, available at: 
http://eur-lex.europa.eu/LexUriServ/LexUriServ.do?uri=COM:2010:0095:FIN:EN:PDF 
Report from the Commission on the application of Directive 2004/81 on the residence permit issued to third-country nationals 
who are victims of trafficking in human beings or who have been the subject of an action to facilitate illegal immigration, who 
cooperate with the competent authorities, COM(2010) 493 final, available at:  
http://ec.europa.eu/commission_2010-2014/malmstrom/archive/COMM_PDF_COM_2010_0493_F_EN_RAPPORT.pdf  
Council Directive 2004/81/EC of 29  April 2004 on the  residence  permit issued to third-country nationals who are victims of 
trafficking in human beings or who have been subject of an action to facilitate illegal immigration, who cooperate with the 
competent authorities, OJ L 261, 06.08.2004, p. 19. 

EN 

11 

 
                                                 
2. 

Freedoms 

Among the rights and freedoms under this title, protection of personal data was 

the  area  of  major  interest.  This  was  reflected  in  the  number  of  questions  by  EU 

citizens  and  by  the  European  Parliament.  To  respond  to  challenges  such  as  the 

emergence of new technologies, the Commission set out a reform of existing EU 

rules in this area. 

The  right  to  property  was  also  frequently  mentioned  in  questions  from  the 

European Parliament, as well as in letters from the general public. The main issues 

were  the  restitution  of  nationalised  or  confiscated  property  by  communist 

totalitarian regimes and national laws for the protection of the environment. 

Freedom  of  religion  was  brought  up  in  questions  from  the  European  Parliament 

mainly in relation to the wearing of the burqa or veils.  

For  the  first  time,  the  Court  of  Justice  declared  invalid  a  provision  of  EU  law 

because it violated the Charter. The case concerns the publication of beneficiaries 

of EU agricultural subsidies, a practice which the Court found to be in violation of 

the right to respect for private life and the protection of personal data. 

Right to liberty and 
security 

Respect for private and 
family life 

Protection of personal 
data 

Right to marry and right 
to found a family 

Freedom of thought, 
conscience and religion 

Freedom of expression 
and information 

Freedom of assembly 
and of association 

Freedom of the arts and 
sciences 

Right to education 

Freedom to choose an 
occupation and right to 
engage in work 

Freedom to conduct a 
business 

Right to property 

Right to asylum 

Protection in the event 
of removal, expulsion or 
extradition 

EN 

12 

 
 
 
 
Respect for family life  

The Charter guarantees the right of everyone to respect for his or her private and family life. EU free 
movement rules recognise the right to family life for all EU citizens who move and reside in another 
Member State. EU rules on family reunification18 recognise the right to family reunification for third-
country nationals legally residing in the EU. 

The  majority  of  the 
letters  that  the  Commission 
received in 2010 in this area related to problems of EU 
citizens  who  wanted  their  family  member,  a  third-
country  national,  to  join  them  in  their  own  Member 
State.  EU  free  movement  rules  apply  to  third  country 
family members when EU citizens have exercised their 
right  to  free  movement  (for  example,  they  reside  in 
another  Member  State  than  their  own).  If  problems 
concern  third  country  family  members  of  EU  citizens 
not having exercised the right to free movement (e.g. a 
Spaniard in Spain), national law applies. 

Respect for family life of an EU citizen 

In 2010, the Commission drew the attention of the 
authorities  of  a  Member  State  to  the  fact  that  their 
legislation  did  not  guarantee  the  right  to  respect  for 
family  life  in  accordance  with  the  case-law  of  the 
European Court Justice.  

The  Member  State  amended 

legislation  to 
ensure  that  EU  citizens,  who  move  to  that  Member 
State,  can  be  joined  or  accompanied  by  their  third-
country family members without requiring that family 
members had previously resided in the EU. 

its 

In  2010,  the  Commission  continued  to  receive  letters  and  questions  related  to  the  practice  of  the 
German Youth Welfare office (Jugendamt) of asking non-German parents to communicate with their 
children  only  in  German  under  the  supervision  of  the  Jugendamt.  According  to  the  observations 
provided  to  the  European  Parliament  Committee  on  Petitions,  the  German  authorities  take  into 
primary  consideration  the  best  interests  of  the  child  and  it  is  possible  that  the  right  to  visit  is 
exercised under surveillance to protect a child from the risk of abduction. The Charter only applies 
when the Member States follow rules laid down in EU law. The specific cases raised did not involve 
application of EU laws and were related to substantive decisions of national authorities.   
The  Court  of  Justice  case  Chakroun19  concerned  the  interpretation  of  the  EU  Family  Reunification 
Directive in light of national legislation that imposes certain requirements on the amount of financial 
resources  available  to  third-country  nationals  that  wish  to  obtain  a  residence  permit  for  their 
spouses.  At  stake  was  furthermore  whether  Dutch  legislation  can  draw  a  distinction  according  to 
whether the family relationship arose before or after the third country national entered the territory 
of  the  host  Member  State  in  applying  this  income  requirement.  The  Court  highlighted  that  the 
provisions of this EU Directive have to be interpreted in the light of fundamental rights, in particular 
the  respect  for  family  life  as  enshrined  in  the  Charter.  It  concluded  that  EU  law  precluded  such 
provisions of national legislation.  

18 
19 

Council Directive 2003/86/EC of 22 September 2003 on the right to family reunification, OJ L 251, 3.10.2003, p. 12-18. 
ECJ, Case C-578/08, Chakroun, 4.3.2010. 

EN 

13 

 
 
                                                 
Data protection 

in 

The Charter guarantees the protection of personal information and Europeans take a keen interest in 
these  issues.  The  questions  and  concern  of  citizens  cover  a  wide  range  of  topics,  from  the  use  of 
personal  data 
the  application  of  new 
technologies  to  the  respect  of  data  protection 
rules  by  third  countries.  What  happens  to 
personal data when boarding a plane, opening a 
bank  account,  or  sharing  photos  online?  How  is 
this data used and by whom? 

issue  of  photographic  panoramic  views  of 
European streets, provided by the company Google, was 
addressed several times in questions by the Members of 
the European Parliament. 

Google Street View 

The 

How 
is  my  personal  data 
protected  in  the  application  of 
new technologies? 

Developments 
in 
technology make our 
lives  easier, 
daily 
assisting  us  in  communication  and  protecting  us 
from certain dangers. But they can also present a 
challenge  from  the  perspective  of  fundamental 
rights,  as  the  use  of  personal  data 
in  the 
application of new technologies has an impact on 
privacy. 

This  practice  may  involve  the  processing  of  personal 
data,  in  which  case  EU  Data  protection  legislation  is 
applicable. 

Google  must  provide  information  in  advance  about 
the  collection  of  data,  such  as  taking  pictures  for  its 
Street View service, not only through its website, but also 
by means of information in the national, regional or local 
press  or  by  any  other  appropriate  means.  Individuals 
must  have  a  possibility  to  object  to  the  publication  of 
personal  data  relating  to  them  by  means  of  a  simple 
procedure.

offer 

Twitter) 

(for  example 
extensive 

Social  networking  websites 
and 
Facebook 
possibilities  to  interact  with  people  and  share  photos,  opinions  and  other  information  online.  As 
these  websites  also  contain  personal  data,  which  must  be  protected,  the  EU  Data  Protection 
Authorities  reminded  the  companies  who  signed  the  Safer  Social  Networking  Principles  of  their 
obligation  to  respect  EU  data  protection  rules.  For  example,  personal  data  on  social  networking 
websites cannot be shared and further processed without the consent of the individuals concerned. 

Dialogue with search engine operators 

Searching  for  information  online  (surfing)  is  part  of  a  daily  routine  for  many  people.  Even  though 
many  think  they  surf  the  Internet  anonymously,  this  is 
often  not  the  case,  as  they  leave  behind  a  history  of 
what they have searched for online.  Online advertising 
companies use this valuable information. This so-called 
online  behavioural  advertising  means  tracking  users 
when  they  surf  the  Internet  and  building  personal 
profiles over time, which are later used to provide them 
with  advertising  matching  their  search  history.  Such 
practice  cannot  be  carried  out  at  the  expense  of  the 
rights  of  individuals  to  privacy  and  data  protection. 
Search engines must inform clearly users of the fact that 
their  behaviour  on  line  may  be  recorded,  and  privacy 
settings  must allow  users  to  select  by  default  the  least 
intrusive option. 

In 2010 the Commission reminded three major 
companies (Yahoo!, Microsoft and Google) of the 
need  to  cut  down  to  six  months  the  period  that 
is  made 
they  store  search  data  before 
anonymous, which would align their policies with 
the EU data protection legislation.  

A user's search history also contains a footprint 
of  users'  interest  and  personal  relations  and  can 
therefore be considered as personal data. 

it 

EN 

14 

 
 
 
A number of questions from the European Parliament were related to EU funding on research into 
new  technologies  in  the  field  of  security,  such  as  the  project  INDECT20.  This  is  a  project  through 
which the EU finances research into new methodologies and technologies, intended for police and 
other 
law  enforcement  authorities.  
The  Commission  has  clarified  that  it 
remains 
the 
Member  States  to  determine  how  to 
use these new technologies.  

The parent of a child at school complained to the Commission 
about the school taking photographs and fingerprints of pupils for 
issuing  dinner  cards  and  for  monitoring  the  use  of  the  school 
library.  

Fingerprinting of school children 

responsibility  of 

the 

Access  control  in  schools  involves  the  processing  of  personal 
data and therefore the EU rules on data protection apply. Before 
introducing  such  measures,  school  authorities  should  think 
carefully  about  whether  or  not  they  are  necessary  and 
proportional  to  achieve  the  intended  aim.  According  to  EU  rules 
on data protection, personal data may only be collected in a fair 
manner,  only  if  it  is  adequate,  relevant  and  not  excessive  in 
relation to the purposes for which they are collected.  

The  Commission  has  asked  the  Member  State  concerned  for 
more  information,  to  establish  if  data  protection  rules  were 
violated. 

20 

Intelligent information system supporting observation, searching and detection for security of citizens in urban environment. 

EN 

15 

 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
                                                 
What  happens  to  my  personal 
data  outside  the  EU  -  in  third 
countries? 

Personal data is sometimes transferred to countries outside the EU. This 
can  raise  a  number  of  questions  because  the  level  of  protection  of 
personal data outside the EU can sometimes be lower. The Commission 
maintains  a  list  of  third  countries  where  the  level  of  protection  of 
personal data is considered to be in line with EU rules on data protection, to where personal data 
may be transferred without additional safeguards. Transfers of personal data to all other countries 
may only take place if the EU exporter provides for the adequate protections of rights, in particular 
through special contracts between the EU exporter and the foreign importer which will receive and 
process the data in compliance with EU rules. 

In  2010,  the  Commission  received  several  requests  on  how  personal  data  is  protected  in  third-
countries.  The  Commission  has  put  in  place  a  number  of  arrangements  to  protect  EU  citizens. 
Companies from United States can sign up to a set of principles called “Safe Harbor” providing an 
adequate level of data protection. If personal data is transferred between companies belonging to 
the same multinational corporation, binding corporate rules must be put in place and approved by 
the  national  data  protection  authorities  involved.  To  facilitate  and  speed  up  the  approval  of  these 
binding rules by national data protection authorities, these decisions are recognised automatically in 
16 of the 27 Member States21.  

Stronger  data  protection  guarantees  were  taken  up  in  the  agreement  between  the  EU  and  the 
United States on the processing and transfers of data from the EU to the US for the purposes of the 
fight against terrorism (so called TFTP - Terrorist Finance Tracking Programme). The agreement was 
concluded on 28 June 2010 and contains specific provisions, such as the right of access to personal 
data processed by the US Treasury, the right to rectification, erasure or deletion of personal data and 
the  right  to  administrative  and  judicial  redress.  The  agreement  was  approved  by  the  European 
Parliament and entered into force on 1 August 2010. 

How  does  the  EU  respond  to  the 
challenges  in  the  area  of  data 
protection? 

The 
Fundamental 
Rights  Agency  in  its 
report identified the 
main 
following 
challenges  for  the  data  protection  system  in  the 
EU: a) deficiencies of data protection authorities, 
b)  lack  of  enforcement  of  the  data  protection 
systems,  c)  lack  of  rights  awareness  about  data 
protection  laws  and  authorities,  d)  lack  of  data 
protection in the former third pillar of the EU, e) 
exemptions from data protection for security and 
defence, and f) recent and ongoing technological 
developments (e.g. video surveillance).22  

A new strategy on data protection 

Controlling  your  information,  having  access  to  your 
data,  being  able  to  modify  or  delete  it  –  these  are 
essential  rights  that  have  to  be  guaranteed  in  today's 
digital world. 

To  address  these  issues,  the  Commission  set  out  a 
strategy on how to protect individuals' data in all policy 
areas,  including  law  enforcement,  while  reducing  red 
tape for business and guaranteeing the free circulation of 
data within the EU. The Commission will use this strategy 
together with the results of a public consultation in order 
to propose changes to EU rules on data protection. 

The  Commission  will  continue  to  monitor  the 
situation in the Member States, where doubts exist about the required complete independence of 
the Data Protection authority. 

The Commission is also ensuring the correct application of the data protection rules in place. In 2010, 
the  Commission  dealt  with  fifteen  infringement  cases  for  alleged  violation of  the  EU  law  on  data 
protection23.  For  example,  the  Commission  warned Finland24  that  its  data  protection  law  might be 
breaking  EU  rules  because  it  does  not  protect  personal  tax  information  published  in  the  media. 
Finnish  data  protection  rules  do  not  cover  personal  data  that  has  been  made  public  in  the  media. 

21 

22 

23 

24 

Austria,  Belgium,  Bulgaria,  Czech  Republic,  Cyprus,  France,  Germany,  Ireland,  Italy,  Latvia,  Luxembourg,  Malta,  the 
Netherlands, Slovenia, Spain and the UK. 
EU  Agency  for  Fundamental  Rights  Report  "Data  Protection  in  the  EU:  the  role  of  National  Data  Protection  Authorities", 
available at: http://www.fra.europa.eu/fraWebsite/attachments/Data-protection_en.pdf 
Directive 95/46/EC of the European Parliament and of the Council of 24 October 1995 on the protection of individuals with 
regard to the processing of personal data and on the free movement of such data, OJ L 281, 23.11.1995, p. 31-50. 
Commission Press Release IP/10/673, 3.6.2010. 

EN 

16 

 
                                                 
Under  EU  rules,  personal  data  may  only  be  collected  for  legitimate  purposes,  and  may  only  be 
further processed for the specific purposes for which it is was collected. 
The Court of Justice provided guidance on the interpretation of EU law25 by clarifying that Member 
States have to ensure that the authorities in charge of monitoring the processing of personal data 
are entirely free from any external and internal influence. Already the mere risk of influence on the 
supervisory bodies is considered enough by the Court of Justice to hinder independent performance 
of tasks.  

Data protection and criminal law 

Responding to petitions related to the deletion of 
personal  data  from  police  criminal  records  due  to 
rehabilitation  by  national  courts,  the  Commission 
explained  that  the  EU  law  on  data  protection1  does 
not apply to processing operations concerning public 
security, defence, State security and the activities of 
the State in the area of criminal law. 

Two cases before the Court of Justice concerned the issue of publishing the names and location of 
the  beneficiaries  of  subsidies 
in  the  area  of 
agriculture.26 EU rules required the publication of the 
names and location of beneficiaries of funds from the 
European  Agricultural  Guarantee  Fund  and 
the 
European Agricultural Fund for Rural Development on 
a  website,  specifying  also  the  amounts  received. 
Beneficiaries  in  Germany  asked  the  Court  not  to 
publish  the  data  relating  to  them,  claiming  that  it 
would  breach  the  right  to  data  protection.  The 
national  court  requested  the  Court  of  Justice  to 
examine the validity of the EU rules on the publication 
of the data. The Court, referring to Articles 7 and 8 of 
the  Charter,  declared  EU  provisions  on 
the 
publication  of  beneficiaries  -natural  persons-  of  the 
funds invalid. It recognised that in a democratic society, taxpayers have a right to be kept informed 
of the use made of public funds, but decided that the publication naming the beneficiaries who are 
natural persons and indicating the precise amounts received by them violates their right to respect 
for  their  private  life  and  in  particular  to  the  protection  of  their  personal  data,  as  laid  down  in 
Articles  7  and  8  of  the  Charter.  The  EU  institutions  had  not  examined  whether  rules  limiting  the 
publication  of  data  according  to  the  periods  for  which  the  natural  persons  received  aid,  or  the 
frequency  or  nature  and  amount  of  aid  received,  could  have  satisfied  the  requirement  of 
transparency in providing public money to individuals.  

the 
processing  of  this  type  of  data  falls  within  the 
competence  of  national  data  protection  authorities, 
and should be raised with them. 

The  supervision  of 

lawfulness  of 

the 

N.B.:  The figure illustrates only the  cases in which the Court directly quoted the Charter or referred to 
fundamental rights in the reasoning. 

25 
26 

ECJ, C-518/07, Commission v. Germany, 9.3.2010. 
ECJ, Joined cases C-92/09 and C-93/09, Volker und Markus Schecke, Eifert, 9.10.2010. 

EN 

17 

 
 
 
                                                 
Freedom of religion 

The  Charter  guarantees  that  everyone  has  the  right  to  freedom  of  religion,  which  includes  the 
freedom to change religion or to manifest it in worship, teaching, practice and observance. 
The  display  of  religious  symbols  (wearing  of  the  burqa  or  veils  and  the  display  of  crucifixes  in 
schools27) was frequently raised in questions and petitions from the European Parliament as well as 
letters from the general public. The issue of display of religious symbols in public buildings is an issue 
where Union law does not apply. The wearing of the burqa or veil raises a number of complex issues 
and involves various fundamental rights at the same time, in particular the freedom of religion and 
the principle of non-discrimination on the grounds of sex and religion. The issue falls under the scope 
of national law and Member States have adopted different approaches.  
The  Commission  received  a  question  from  the  European  Parliament  regarding  the  wearing  of  the 
burqa  or  veil  in  official  premises  of  the  EU.  It  replied  that  the  entry  into  Commission  buildings  is 
subject  to  an  identity  check  for  security  reasons.  The  Commission  security  guards  must  be  able  to 
verify that the physical appearance of the person seeking entry corresponds to the photograph on 
the identity card or other means of identification. When any person is dressed in such a way that all 
identifying  characteristics,  in  particular  the  face,  are  hidden,  a  proper  security  check  can  not  be 
carried  out.  In  such  cases,  access  to  the  Commission's  buildings  could  be  denied,  following  a 
proportionality assessment taking into account religious freedom, non-discrimination and the need 
to ensure the security of the Commission's officials, visitors and guests. 

Freedom of expression 

that 

information 

The Lithuanian Law on the protection 
of minors 

In  2010,  the  Lithuanian  authorities 
considered  the  adoption  of  a  law,  which 
on 
provided 
homosexuality  is  detrimental  to  minors 
and  should  therefore  be  banned.  This 
proposal touched upon a number of issues 
falling  within  the  scope  of  EU  law,  for 
example  the  rules  on  Audiovisual  and 
Media  Services  Directive  and  the  E-
commerce Directive. 

The  Charter  guarantees  that  everyone  has  the  right  to  freedom 
of expression. This right includes freedom to hold opinions and to 
receive and impart information and ideas without interference by 
public authority and regardless of frontiers.  
In  2010,  a  case  was  brought  before  the  Court  of  Justice 
concerning the introduction by operators of a system for filtering 
electronic  communications  to 
identify  users  who  damage 
copyright  or  related  rights.28  This  case  raises  issues  related  to 
freedom  of  expression,  as  a  system  for  filtering  all  electronic 
communications  could  have  an  impact  on  this  freedom.  The 
Court has, until the end of 2010, not yet delivered its ruling. 
The Commission received several letters from the general public 
and  questions  from  the  European  Parliament  on  the  issue  of 
legislation (National Defence Strategy) adopted by the Romanian 
Supreme Defence Council (CSAT), which described the media as a 
security threat and vulnerability for Romania due to alleged press 
campaigns  aimed  at  spreading  false  information  about  the 
activity  of  state  institutions.  The  Commission  replied  that  it  is, 
within  the  scope  of  its  competences,  fully  committed  to  ensure 
and promote the respect of freedom of expression. In this case, 
the  Member  State  concerned  did  not  act  in  the  course  of 
implementation of EU law and it is for the national authorities to 
ensure  that  their  obligations  regarding  fundamental  rights  are 
respected. 
The  Commission  was  in  contact  with  the  Hungarian  authorities 
concerning  the  national  media  law  and  raised  concerns  regarding  its  compatibility  with  the 
Audiovisual  and  Media  Services  Directive29,  and  other  provisions  of  EU  law  such  as  freedom  of 
establishment,  freedom  to  provide  services  and  the  Charter.  Following  the  Commission's 
intervention, the Hungarian government agreed to amend the national media law using a fast track 
procedure so that it complies with the concerns raised by the Commission. 

The  Commission  took  the  position  that 
this  could  be  contrary  to  the  Charter,  in 
particular the prohibition of discrimination 
and  the  freedom  of  expression.  The 
the 
Lithuanian  Parliament  suppressed 
most  contentious  provision  from  the  law, 
which  entered  into  force  in  March  2010. 
The  Commission 
the 
implementation  of  the  law  to  ensure  that 
this  complies  fully  with  the  principles  set 
out  in  the  Charter,  in  particular  that  of 
freedom of expression. 

is  monitoring 

27 
28 
29 

Relating to the judgement of the European Court of Human Rights of 3 November 2009, Case of Lautsi v. Italy. 
ECJ, Case C-70/10, Scarlet, reference for a preliminary ruling from the Cour d’appel de Bruxelles (Belgium) lodged on 5.2.2010. 
Directive 2010/13/EU of the EP and the Council of 10 March 2010 on the coordination of certain provisions laid down by law, 
regulation  or  administrative  action  in  Member  States  concerning  the  provision  of  audiovisual  media  services  (Audiovisual 
Media Services Directive), OJ L 95. 15.4.2010, p.1. 

EN 

18 

 
                                                 
Freedom to conduct a business 

The  Charter  recognises  the  freedom  to  conduct  a  business  in  accordance  with  Union  law  and 
national laws and practices. This Article is based on Court of Justice case-law which has recognised 
freedom  to  exercise  an  economic  or  commercial  activity  and  freedom  of  contract,  and  on  Article 
119(1)  and  (3)  of  the  TFEU,  which  recognises  free  competition.  Arguably,  these  rights  encompass 
that the legal system gives effect to the will of the parties. The freedom to conduct a business has to 
be taken into account in different areas of EU policy, including IT security and civil law. 

How  do  EU  rules  on  civil  law 
take into account the freedom 
to conduct a business? 

In 2010, the Commission proposed amendments to EU rules on jurisdiction 
and the recognition and enforcement of judgments in civil and commercial 
matters.30  The  proposal  gives  maximum  effect  to  the  will  of  the  parties  in 
business  to  business  contracts  by  allowing  them  to  agree  on  which  court 
should have jurisdiction to settle any dispute (choice of forum) and whether to refer the matter to 
arbitration  (arbitration  clause).  The  impact  assessment  showed  that  this  approach  would  enhance 
their freedom of contract and improve their situation in terms of the freedom to conduct a business.  

How  to  protect  information 
systems against attacks while 
respecting  the  freedom  to 
conduct a business? 

In recent years, the number of attacks against information systems has risen 
steadily  in  Europe.  New  concerns,  such  as  the  spread  of  malicious  software 
creating  'botnets'  -  networks  of  infected  computers  that  can  be  remotely 
controlled  to  stage  large-scale,  coordinated  attacks  -  have  emerged.  To 
respond to these challenges, in 2010 the Commission proposed to amend EU 
rules for protecting information systems against attacks.31 These rules propose making a crime the 
use of tools for committing offences, making a crime the illegal interception of information systems 
and improving the European criminal justice and police cooperation. They also contain measures on 
storage  of  data  and  the  exchange  of  data  between  law  enforcement  agencies,  which  are  in 
compliance with EU data protection rules. The strengthening of the penalisation of the production, 
sale,  procurement  for  use,  import,  distribution  or  otherwise  making  available  of  tools  for  cyber 
attacks was worded carefully in order not to criminalise lawful behaviour, such as the use of botnets 
by  Internet  security  companies  to  test  the  effectiveness  of  their  products.  Criminalisation  of  such 
acts would violate the freedom to conduct a business, enshrined in the Charter. 

30 

31 

Proposal for a Regulation of the European Parliament and of the Council on jurisdiction and the recognition and enforcement 
of judgments in civil and commercial matters, COM/2010/748 final of 14.12.2010, available at: 
http://ec.europa.eu/justice/policies/civil/docs/com_2010_748_en.pdf 
Proposal for a Directive of the European Parliament and of the Council on attacks against information systems and repealing 
Council Framework Decision 2005/222/JHA, COM(2010) 517 final, available at:  
http://eur-lex.europa.eu/LexUriServ/LexUriServ.do?uri=COM:2010:0517:FIN:EN:PDF  

EN 

19 

 
                                                 
Right to property 

The  Charter  protects  the  right  of  everyone  to  property,  which  includes  the  right  to  own,  use,  and 
dispose of lawfully acquired possessions. Issues related 
to  the  right  to  property  were  featured  frequently  in 
petitions from the European Parliament and in letters 
from the general public.  

National laws regulating coastal areas 

the 

issue  that  was  frequently  raised  with  the 
One 
restitution  of  property 
Commission  was 
nationalised  or  confiscated  in  Member  States  during 
the  period  of  communist  regimes.  The  petitions  and 
letters  referred  in  particular  to  the  length  of  the 
procedures and administrative obstacles. 

The Treaties provide that "the provisions of the Treaty 
shall  in  no  way  prejudice  the  rules  in  Member  States 

governing  the  system  of  property  ownership".  It  is 
therefore  for  Member  States  to  determine  the  scope 
of property restitution and the choice of the conditions 
under which they agree to restore the property rights 
of  former  owners  that  were  subject  to  expropriation 
decisions prior to the accession to the European Union.  

How  does  the  EU  protect 
intellectual property? 

The  Charter  guarantees  the 
protection  of 
intellectual 
property. 

In  2010, 

the  Commission 
announced  in  the  Communication  Towards  a  Single 
Market  Act32  proposals  to  promote  and  protect 
creativity. Their aim is to lay ground for an EU patent, 
to open up access to online content by improving the 
electronic  management  of  copyright,  and  to  fight 
against counterfeiting and piracy.      

Several questions (as well as letters) concerned the 
implementation  of  the  Spanish  Coastal  Law.  This 
legislation, aimed at protecting the coast from abusive 
construction,  applies  to  private  property,  which  runs 
the  risk  of  being  demolished,  as  it  is  located  in  areas 
regulated by the Coastal law.  

The Commission wrote to the Spanish authorities to 
ensure  that  Spanish  Coastal  Law 
in 
conformity with the principle of non-discrimination on 
the ground of nationality as set out in the Charter. 

is  applied 

Restitution  of  property  nationalised  or 
confiscated under communist regimes 

An EU citizen wrote to the Commission complaining 
against  the  national  authorities,  which  have  rejected 
his  request  for  restitution  of  property  nationalised 
under the communist regime. 

In situations where EU law does not apply, national 
legislation  on  the  restitution  of  nationalised  or 
confiscated  property  during  the  period  of  communist 
regimes  falls  under  the  national  competence.  The 
complainant  should  seek  redress  before  national 
authorities,  including  the  courts,  in  accordance  with 
national law. 

32 

COM(2010) 608/final2, available at:  
http://eur-lex.europa.eu/LexUriServ/LexUriServ.do?uri=COM:2010:0608:REV1:EN:PDF#page=2 

EN 

20 

 
 
                                                 
Right to asylum  

The right to asylum is guaranteed by the Charter. The Commission received a number of letters from 
citizens, asylum seekers, and refugees concerning the implementation of EU asylum law. The EU is 
developing legislation on asylum.  

In  2010,  negotiations  in  the  European  Parliament  and  the  Council  on  a  number  of  legislative 
proposals33 tabled by the Commission were ongoing. These proposals are intended to amend some 
of  the  existing  rules  of  the  Common  European  Asylum  System  with  the  aim  to  ensure  higher 
standards of protection and a more uniform treatment of asylum seekers in Member States. The 
Commission  proposals  contain  in  particular  provisions  on  preventing  arbitrary  detention  and  on 
safeguarding  human  dignity  with  regard  to  detention  conditions  of  asylum  seekers.  The  proposals 
also aim to introduce greater care for ensuring family unity in asylum related decisions, prohibit the 
detention of unaccompanied minors and facilitate access to effective remedy for asylum applicants. 
The  Court  of  Justice  case  Hasan  and  others34  concerned  Iraqi  nationals  whose  refugee  status  was 
revoked in Germany, following the fall of Saddam Hussein's regime. The Court highlighted that the 
provisions  of  relevant  EU  legislation35  have  to  be  interpreted  in  the  light  of  fundamental  rights,  in 
particular the right to asylum as enshrined in the Charter. The Court gave a number of indications 
that help to ensure the proper application of relevant EU legislation by Member States. 

Compatibility of national legislation with EU rules on asylum 
A non-governmental organisation wrote to the Commission about 
the difficult situation of asylum seekers in a Member State, claiming 
the  authorities  did  not  ensure  adequate  access  to  the  asylum 
procedure  or  material  assistance.  As  a  consequence,  many  asylum 
seekers were destitute and deprived of a fair opportunity to present 
their case, which resulted in a violation of their right to asylum.  

According to EU rules on asylum, asylum seekers have a right to 
apply for asylum and to have their applications effectively examined 
by  a  Member  State,  on  the  basis  of  common  criteria  which 
determine  who  is  genuinely  in  need  of  protection.  EU  rules  entitle 
asylum seekers to reception conditions such as accommodation. It is 
the  responsibility  of  national  authorities  to  ensure  that  these  rules 
are effectively enforced.  

The Commission requested clarifications from the Member State 
and  initiated  infringement  proceedings  regarding  the  compatibility 
of  national  legislation  with  EU  asylum  rules,  in  particular  the 
effective  access  to  the  asylum  procedure  and  the  reception 
conditions. 

Right to asylum 

A  citizen  of  a  third  country  wrote  to  the 
Commission  that  his  application  for  asylum  in  a 
Member  State  was  rejected  and  requested  that 
the Commission grants him asylum. 

EU rules determine the conditions and criteria 
for  recognition  of  third  country  nationals  or 
stateless  persons  who  apply  for  asylum  in  a 
competent  national 
Member 
authorities  can  grant 
international  protection 
depending  on  the  individual  circumstances  of 
each applicant.  

State.  Only 

international  protection 

The  Commission  replied  that 

it  has  no 
competence  to  assess  asylum  applications  and 
grant 
individual 
applicants. Individuals who consider that they are 
not  granted  the  rights  prescribed  by  EU  law 
should  seek  redress  before  competent  national 
authorities, including courts. 

to 

33 

34 
35 

Proposal for a Regulation of the European Parliament and of the Council establishing the criteria and mechanisms for 
determining the Member State responsible for examining an application for international protection lodged in one of the 
Member States by a third-country national or a stateless person, COM(2008) 820 final, available at:  
http://eur-lex.europa.eu/LexUriServ/LexUriServ.do?uri=COM:2008:0820:FIN:EN:PDF 
Proposal for a DIRECTIVE OF THE EUROPEAN PARLIAMENT AND OF THE COUNCIL laying down minimum standards for the 
reception of asylum seekers, COM (2008), 815 final, available at:  
http://eur-lex.europa.eu/LexUriServ/LexUriServ.do?uri=COM:2008:0815:FIN:EN:PDF 
Proposal for a Directive of the European Parliament and of the Council on minimum standards for the qualification and status 
of third country nationals or stateless persons as beneficiaries of international protection and the content of the protection 
granted, COM(2009) 551 final, available at:  
http://eur-lex.europa.eu/LexUriServ/LexUriServ.do?uri=COM:2009:0551:FIN:EN:PDF 
ECJ, Case C-175/08, Hasan and others, 2.3.2010. 
Council  Directive  2004/83/EC  of  29  April  2004  on  minimum  standards  for  the  qualification  and  status  of  third  country 
nationals or stateless persons as refugees or as persons who otherwise need international protection and the content of the 
protection granted, OJ L 304, 30.9.2004, p. 12-23. 

EN 

21 

 
 
 
                                                 
3. 

Equality 

Equality before the law 

Non-discrimination 

Cultural, religious and 
linguistic diversity 

Equality between 
women and men 

The rights of the child 

The rights of the elderly 

Integration of persons 
with disabilities 

Among  the  rights  and  freedoms  under  this  title,  the  rights  of  the  child  were  most 

frequently raised in letters, questions and petitions. 

Surveys of the EU Agency for Fundamental Rights show that racism and xenophobia 

continue to be a problem for many ethnic and religious minorities in the European 

Union and confirm the situation of exclusion of Roma people in Europe.  

EN 

22 

 
 
 
 
 
 
Non-discrimination 

The  Charter  prohibits  any discrimination  based  on  any ground  such  as  sex,  race, colour,  ethnic  or 
social origin, genetic features, language, religion or belief, political or any other opinion, membership 
of a national minority, property, birth, disability, age or sexual orientation. The Charter also prohibits 
discrimination  on  the  ground  of  nationality,  within  the  scope  of  application  of  the  Treaties  and 
without prejudice to any of their specific provisions. 

What  does  the  EU 
do  to  fight  against 
discrimination? 

Discrimination based on racial or ethnic origin is equally a violation of the principle of 
equal treatment and is prohibited in the workplace and outside the workplace. People 

are  protected  by  law  if,  for  instance,  employers 
refuse  promotion  or  training  because  of  a  person’s 
racial or ethnic origin. Outside the workplace, people 
are protected if, for example, they are refused access 
to  education  or  higher  education  institution  solely 
because of their racial or ethnic origin.  

Discrimination based on racial or ethnic origin 

A person wrote to the Commission complaining that 
the public electricity company cut the electricity supply 
to  all  people  in  a  district  which  was  predominantly  a 
Roma neighbourhood. This was done independently of 
whether the inhabitants had paid their bills.  

The  Commission  contacted  the  Member  States  to 
situation  was 

and 

information 
request 
subsequently resolved. 

In  the  area  of  employment  and  occupation,  EU  law 
prohibits  discrimination  on  grounds  of  religion  or 
belief, disability, age or sexual orientation. Employers 
must  base  job  classification  systems  for  determining 
pay  on  the  same  criteria,  regardless  of  religion  or 
belief,  disability,  age,  or  sexual  orientation.  They  must  also  ensure  reasonable  accommodation  to 
enable disabled people who are qualified to participate in training or paid labour. There are however 
treatment  are 
situations  where  differences 
authorised, 
occupational 
qualifications, differences in treatment on grounds of 
age, positive actions. These situations are limited and 
must be well justified.  

Discrimination on ground of disability 

have access to a museum.  

genuine 

such 

the 

as: 

in 

A  disabled  person  complained  that  she  could  not 

In  2010,  the  Commission  continued  to  follow  the 
negotiations in the Council on its proposal for a new 
intended  to  reduce 
anti-discrimination  Directive 
discrimination  on  grounds  of  religion  or  belief,  age, 
disability or sexual orientation beyond the workplace: access to goods and services such as banking, 
education, transport and health.  

EU  legislation  currently  provides  for  protection  on 
the  ground  of  disability  only 
field  of 
employment. The proposal for a new equal treatment 
Directive would cover these situations.  

the 

in 

EN 

23 

 
 
the  charge 

Discrimination  on  grounds  of  political  views  in 
employment 

A  complainant  brought  a  court  case  against  his 
employer  on 
that  he  had  been 
discriminated  and  harassed  at  work  because  of  his 
views  on  his  country's  asylum  system  (which  he 
claimed were protected as "belief").  

The Court of Justice referred to Article 21 of the Charter in the case Kücükdeveci36 with regard to 
discrimination  on  ground  of  age.  The  case  concerned the  notice  periods  which  an  employer  must 
comply  with 
in  the  case  of  dismissal.  German 
legislation  prescribed  that  notice  periods  increased 
progressively  according  to  the 
length  of  the 
employment  relationship.  However,  periods  of 
employment  completed  by  an  employee  before 
reaching the age of 25 are not taken into account for 
calculating  the  notice  period.  Ms  Kücükdeveci,  who 
started working in the company at the age of 18, was 
dismissed at the age of 28. The company calculated 
the  notice  period  as  if  she  had  only  three  years’ 
length  of  service,  although  she  had  worked  for  the 
employer for ten years. No account was taken of the 
periods  of  employment  completed  before  Ms 
Kücükdeveci  was  25.  She  brought  proceedings  to 
challenge her dismissal, claiming that the legislation 
constituted  discrimination  on  grounds  of  age, 
prohibited  by  European  Union  law.  In  her  view,  the 
notice 
longer, 
corresponding to ten years’ service and not to three 
years.  The  Court  found  that  the  German  rules  on 
dismissal  are  discriminatory  as  they  contain  a 
difference of treatment based on age, which cannot 
be justified.  

The  Commission  replied  that  it  agreed  with  the 
Austrian  Supreme  Court's  interpretation  that  political 
views  were  not  covered  by  EU  equal  treatment 
legislation. Since the case falls outside the scope of EU 
law, there could be no violation of the Charter.  

He  then  wrote  to  the  Commission  stating  that  the 
Supreme  Court  should  have  referred  to  the  Court  of 
Justice for an interpretation of the relevant EU law. He 
also  claimed  a  violation  of  his  rights  according  to  the 
Charter.  

The  Austrian  Supreme  Court  rejected  that  claim, 
stating  that  political  views  were  not  protected  by  EU 
and national equal treatment legislation.  

should 

period 

been 

have 

In  2010,  the  Commission  frequently  received  complaints  about  alleged  discrimination  on  a  ground 
that  is  covered  by  EU  law,  but  where  EU  law  has  been  correctly  transposed  in  the  Member  State 
concerned.  If  transposition  is  correct,  and  the  complaint  concerns  an  individual  case  of  wrong 
application  of  the  law,  the  individual  concerned 
should seek guidance from the national equality body 
or bring legal action at national level. 

Discrimination  on  grounds  of  sexual  orientation 
at work 

What  does  the  prohibition  of 
discrimination  on  ground  of 
sexual  orientation  mean 
in 
practice? 

The Commission is keen to see 
non-
the 
discrimination  on  the  basis  of 
sexual 
as 
the  Charter, 
enshrined 
applied  systematically  in  the  preparation,  adoption 
and implementation of EU law.  

orientation, 
in 

principle 

of 

An individual wrote to the Commission complaining 
that  he  had  been  harassed  at  work  because  of  his 
sexual  orientation,  and  that  he  subsequently  lost  his 
job for this reason. He asked the Commission to ensure 
that  the  behaviour  of  the  management  of  the 
company and of his co-workers is sanctioned.  

The  Commission  replied  that  the  relevant  EU  anti-
discrimination  rules  had  been  transposed  in  national 
law  of  that  Member  State.  The  complainant  should 
initiate  proceedings  before  national  courts.  The 
Commission  provided  references  to  existing  national 
case law relevant to his case, and contact details of the 
national Equality Body. 

EU citizens have the right to move and reside freely in 
another  Member  State,  together  with  their  families. 
The benefits of EU rules guaranteeing free movement 
and residence apply also to same-sex couples.  
In  its  judgment  Schalk  and  Kopf  v.  Austria37  the 
European  Court  of  Human  Rights  (which  is  not  an  institution  of  the  European  Union)  made  a 
reference to the Charter and to provisions of two EU Directives (on family reunification and free 
movement)  to  strengthen  the  right  to  respect  for  private  and  family  life  under  the  European 
Convention  of  Human  Rights  by  extending  the  notion  of  “family  life”  to  same-sex  couples.  The 
European Court of Human Rights considered it "artificial" to maintain the view that, in contrast to a 
different-sex couple, a same-sex couple cannot enjoy ‘family life’ for the purposes of Article 8 of the 
European Convention. 

36 
37 

ECJ, Case C-555/07, Kücükdeveci, 19.1.2010. 
Application no. 30141/04 of 24.6.2010. 

EN 

24 

 
                                                 
How can the EU contribute 
against 
fight 
the 
to 
homophobia? 

Homophobia is a mixture of negative attitudes and feelings towards lesbian, gay, 
bisexual,  and  transgender  people.  It  is  an  unacceptable  violation  of  human 
dignity and it is incompatible with the founding values of the EU.38 

The  EU  Agency  for  Fundamental  Rights  reports  that  LGBT  (lesbian,  gay,  bisexual  and  transgender) 
persons experience harassment, bullying and discrimination across the EU.39 According to this report, 
the majority of victims of homophobic crime do not complain to the police. Sometimes LGBT people 
face  violent  physical  attacks.  The  Agency  is  preparing  a  survey  on  discrimination  and  hate  crime 
towards LGBT people to be conducted in 2011. Hate speech on the Internet is a particularly worrying 
phenomenon and so is hate speech by public figures.40 An increasing number of known personalities, 
especially  in  sports,  have  stood  up  for  LGBT  rights  and  sent  encouragements  to  fight  against 
prejudices and stereotypes. 

Although  in  most  Member  States  LGBT  people  could  freely  exercise  their  right  to  freedom  of 
assembly,  the  Agency  reports  that  bans  or  administrative  obstacles  created  problems  for  the 
organisation  of  peaceful public  LGBT  demonstrations  in  some  Member States41  and that  organised 
attacks against such demonstrations have taken place in others42. 

38  

39 

40 
41 

42 

in 

the 

EU  Member 

On  17  May  2010,  on  the  occasion  of  the  International  Day  Against  Homophobia,  Herman  Van  Rompuy,  President  of  the 
European  Council,  Jerzy  Buzek,  President  of  the  European  Parliament,  and  Viviane  Reding,  Vice-president  of  the  European 
Commission  and  Commissioner  for  Justice,  Fundamental  Rights  and  Citizenship,  jointly  issued  messages  condemning 
homophobia. 
EU  Agency  for  Fundamental  Rights  Report  "Homophobia  and  Discrimination  on  Grounds  of  Sexual  Orientation  and  Gender 
Identity 
at: 
http://www.fra.europa.eu/fraWebsite/attachments/FRA_hdgso_report-part2_en.pdf 
See EU Agency for Fundamental Rights report above, section I.2. 
In Lithuania the 2010 Baltic Pride was threatened with cancellation at short notice, and in Latvia, the right to organise marches 
continues to be challenged by authorities. However, LGBT NGOs subsequently succeeded to organise their events in Poland, 
Romania  and  Bulgaria.  See  EU  Agency  for  Fundamental  Rights  report  on  "Homophobia,  Transphobia  and  Discrimination  on 
grounds  of 
at: 
Identity, 
2010  update", 
http://www.fra.europa.eu/fraWebsite/attachments/FRA-LGBT-report-update2010.pdf 
Czech Republic, Hungary, Italy and Sweden. See note 39. 

Situation",  March  2009, 

Sexual  Orientation 

and  Gender 

States:  Part 

September 

available 

available 

Social 

2010, 

The 

II 

– 

EN 

25 

 
 
 
 
                                                 
How  does  the  EU  promote 
gender  equality  and 
fight 
discrimination  on  grounds  of 
gender? 

The Charter prohibits any discrimination on grounds of gender and enshrines 
the right to equal treatment between men and women. 

Equality between women and men must be ensured in employment, work and 
pay. In the workplace, men and women are protected against harassment and 
sexual harassment, as this is contrary to the principle of equal treatment. Women are also protected 
against  any  discriminatory  practices  on  account  of  pregnancy.  Men  and  women  must  be  treated 
equally also as regard access to and supply of goods and services.  

In  2010,  the  Commission  reaffirmed  its  commitment  to  gender  equality  by  adopting  the  Women’s 
Charter43  and  a  Strategy  for  Equality  between  Women  and  Men  (2010-2015)44.  The  Commission 
pointed out that despite a general trend towards more equality in society and on the labour market, 
progress  in  eliminating  gender  inequalities  remains  slow.  It  defined  challenges  and  action  for  the 
following five priority areas: equal economic independence; equal pay for equal work and work of 
equal value; equality in decision-making; dignity, integrity and an end to gender-based violence; and 
gender equality outside the EU. Achieving progress in all these areas would offer genuine choices to 
many women and men. 

There  was  an  important  policy  development  with  the  adoption  of  a  proposal  of  the  Commission 
implementing the principle of equal treatment between women and men in self-employment. This 
proposal provides for a maternity allowance for female self-employed workers and female spouses 
and life partners, enabling them to interrupt their professional activities45.   

In 2010, the Commission received a number of complaints, which concerned claims of discrimination 
on the ground of gender in different areas. 

Discrimination  on  ground  of  gender 
employment 

in 

Discrimination  on  ground  of  gender  regarding 
refugee status 

A  British  national  complained  to  the  Commission 
that  he  is  discriminated  against  on  ground  of  sex.  He 
alleges  that  he  was  refused  access  to  employment 
because  he  is  a  male,  invoking  the  incompatibility  of 
gender equality legislation in Northern Ireland with EU 
rules.  

The  Commission  received  a  complaint  arguing  that 
the  children  of  women  with  displaced  person  status 
are  discriminated  against  by  the  Cypriot  authorities. 
Contrary  to  children  of  men  with  displaced  person 
status, they seem not to be entitled to refugee status 
and are therefore deprived of certain refugee benefits. 

The  Commission  is  investigating  this  case  and  has 

The  Commission  sent  a  request  for  information  to 

asked for information from national authorities. 

Cyprus. 

43 

44 

45 

Communication  from  the  Commission  A  Strengthened  Commitment  to  Equality  between  Women  and  Men  A  Women's 
Charter Declaration by the European Commission on the occasion of the 2010 International Women's Day in commemoration 
of  the  15th  anniversary  of  the  adoption  of  a  Declaration  and  Platform  for  Action  at  the  Beijing  UN  World  Conference  on 
Women and of the 30th anniversary of the UN Convention on the Elimination of All Forms of Discrimination against Women, 
COM(2010) 78 final, available at: http://eur-lex.europa.eu/LexUriServ/LexUriServ.do?uri=COM:2010:0078:FIN:EN:PDF 
COM(2010) 491 final, available at:  
http://eur-lex.europa.eu/LexUriServ/LexUriServ.do?uri=COM:2010:0491:FIN:EN:PDF 
Directive 2010/41/EU of the European Parliament and of the Council of 7 July 2010 on the application of the principle of equal 
treatment  between  men  and  women  engaged  in  an  activity  in  a  self-employed  capacity  and  repealing  Council  Directive 
86/613/EEC, OJ L 180, 15.7.2010, p. 1-6. 

EN 

26 

 
 
 
                                                 
What does the EU do to fight 
against  racism,  xenophobia 
of 
and 
intolerance? 

related 

forms 

Surveys  of  the  EU  Agency  for  Fundamental  Rights  show  that  racism  and 
xenophobia continue to be a problem for many ethnic and religious minorities 
in the European Union.46 

The  EU  Agency  for  Fundamental  Rights  reported  a  general  upward  trend  in 
recorded  racist  crime  in  10  out  of  12  Member  States,  which  collected  sufficiently  robust  criminal 
justice data.47 The number of antisemitic crimes rose in 2001-2008 in 5 out of 6 Member States, with 
adequate data in this field.48 Every tenth person with an immigrant or ethnic minority background 
interviewed for the EU-MIDIS survey in 2008 had been a victim of racist or xenophobic assault, threat 
or serious harassment in the past 12 months. Roma and Sub-Saharan Africans were reported to be 
particularly vulnerable to such crimes. 

The majority of the people with an immigrant or ethnic minority background interviewed for the EU-
MIDIS survey did not report to the police even though they had been victims of assaults or threats. 
The non-reporting of serious harassment was even higher – depending on the group, 75% to 90% of 
these  incidents  went  unreported.49  The  main  reason  for  non-reporting  was  the  victims'  lack  of 
confidence that the police could or would do anything in their case.50 

The EU has rules banning certain types of hate speech, for example rules requiring Member States to 
punish those who incite to violence or hatred in public on the basis of race, colour, religion, descent 
or national or ethnic origin.51 From 28 November 2010 the Member States had to comply with the 
EU  legislation  banning  racist  or  xenophobic  hate  speech. 
These  rules  ensure  that  the  same  racist  behaviour 
constitutes  a  crime  in  all  Member  States  and  prevent 
perpetrators  from  avoiding  prosecution  by  moving  to 
another  Member  State.  The  EU  has  also  adopted  rules 
requiring  Member  States  to  ensure  that audiovisual  media 
services 
(both  broadcasts  and  on-demand  services) 
originating in their territory do not contain any incitement 
to hatred based on race, sex, religion or nationality.52 If the 
Commission  receives  evidence  about  the  provision  of 
programmes  in  the  EU  with  such  content,  it  can  launch  an 
infringement procedure against the Member State. 

received  a  number  of 
complaints  regarding  incitement  to  hatred  on  the 
basis  of  religion,  nationality  or  race 
in  the 
programmes  broadcast  by  Al-Aqsa  TV.  The  TV 
channel was broadcast through a French operated 
satellite  and  was  accessible  to  viewers  in  the  EU. 
Such  incitement  to  hatred  is  prohibited  by  EU 
audiovisual rules. 

The  Commission 

Al-Aqsa TV 

2010, 

In 

Hate  crimes  are  criminal  acts  that  are  motivated  by 
intolerance  or  hatred  against  a  particular  group.  EU  rules 
require that the Member States impose a higher penalty for 
crimes committed with a racist or xenophobic motivation.53  

the  Commission  opened 

an 
infringement case against France. In June 2010, the 
French authorities requested that Al-Aqsa TV stops 
transmitting  in  EU,  which  it  did.  The  Commission 
closed  the  infringement  case  and  will  continue  to 
monitor  new  developments  in  close  cooperation 
with the national authorities. 

In  2010,  the  Commission  received  a  number  of  letters 
concerning  various  forms  and  manifestations  of  racism  and  xenophobia,  targeted  against  different 
groups  or  individuals  belonging  to  these  groups  (Jews,  Muslims,  Roma,  etc.).  The  Commission 
intervenes in cases of racism and xenophobia when the respect of EU law is in question, such as the 
EU  rules  banning  racist  or  xenophobic  hate  speech  in  TV  broadcasting54  or  those  prohibiting 
discrimination.  Several  letters  reporting  cases  of  racist  or  antisemitic  hate  speech  or  violence 
brought to the attention of the Commission incidents that can show whether Member States have 
rules. 
to 
adapted 

legislation 

conform 

national 

EU 

to 

46 

47 

48 

49 
50 
51 

52 

53 
54 

See  e.g.  The  EU  Fundamental  Rights  Agency's  Annual  Report  2010,  European  Union  Minorities  and  Discrimination  Survey. 
Main Results Report 2009 and Antisemitism summary overview of the situation in the European Union 2001-2009. 
EU Agency for Fundamental Rights Annual Report 2010, section 2.2. The 12 countries are Belgium, Czech Republic, Denmark, 
Germany, France, Ireland, Austria, Poland, Slovakia, Finland, Sweden and UK (England, Wales and Scotland).  
Ibidem. The 5 countries are Austria, France, The Netherlands, Sweden and the UK. Germany experienced a slight downward 
trend (-0,3%). 
Id. at 71-72. See also European Union Minorities and Discrimination Survey. Main Results Report 2009, p. 65 and 67. 
Id. at 74. 
Council Framework Decision 2008/913/JHA of 28 November 2008 on combating certain forms and expressions of racism and 
xenophobia by means of criminal law, OJ L 328 of 6.12.2008, p. 55. 
Article 6 of the Directive 2010/13/EU of the EP and the Council of 10 March 2010 on the coordination of certain provisions laid 
down  by  law,  regulation  or  administrative  action  in  Member  States  concerning  the  provision  of  audiovisual  media  services 
(Audiovisual Media Services Directive), OJ L 95. 15.4.2010, p.1. 
Article 4 of Framework Decision 2008/913/JHA, see above note 51. 
Framework Decision 2008/913/JHA and Audiovisual Media Services Directive, see above notes 51 and 52. 

EN 

27 

 
                                                 
How can the EU improve the 
situation of Roma? 

Between  10  and  12  million  Roma  live  in  Europe.  Many  of  them  endure 
poverty,  suffer  discrimination  and  do  not  enjoy  the  same  rights  and 
opportunities as other EU citizens. Roma people have lower life expectancy, 
often live in precarious housing and are more frequently unemployed. Roma children often do not 
finish  school.  The  reports  on  the  situation  of  Roma  published  by  the  EU  Agency  for  Fundamental 
Rights confirm the situation of exclusion of Roma people in Europe. 55 

strategies 

integration 

Expulsions of Roma  

The integration of Roma requires that Member States and the European Union work together. The 
Commission is supporting these efforts by providing model approaches for the social and economic 
integration of Roma.56 The European Union supports the Member States financially to help integrate 
Roma  communities  with  projects  on  housing,  education  and  employment.  The  Roma  Task  Force, 
established by the Commission, aims to assist Member States in using these funds in a more effective 
way to ensure the integration of Roma people. On 21 December 2010, the Task Force reported its 
initial  findings57.  It  noted  that  while  EU 
funds  offer  considerable  potential  for 
bolstering  Roma  inclusion,  bottlenecks  at 
national,  regional  and  local  levels  are 
limiting  their  effective  use  by  Member 
States. The Roma Task Force will continue 
its  work  in  identifying  concrete  ways  to 
enhance  the  funds’  uses.  The  results  will 
be  part  of  an  EU  framework  for  national 
the 
Roma 
Member  States  that  will  be  presented  by 
the  Commission 
for 
discussion  in  the  European  Parliament 
and  the  Council.  A  new  study  –  released 
by  the  Commission  on  21  December  – 
national 
analysed 
inclusion 
Roma 
measures 
in  18  EU  countries  and 
identified  a  series  of  successful  policy 
Integrated  policies  and 
approaches. 
projects addressing the multiple causes of 
social  exclusion  are  the  best  ways  to 
improve the situation of Roma in Europe, 
the study says. 

In  the  summer  of  2010,  the  French  authorities  proceeded  to 
dismantle  unauthorised  camps  on  their  territory  and  to  serve 
expulsion  orders  and  orders  to  leave  the  French  territory  to  the 
occupants of these camps, mostly Romanian and Bulgarian Roma. 
Due to the fact that they concerned expulsions of EU citizens, the 
Commission  examined  the  compatibility  of  these  measures  with 
EU rules on free movement. 

National  authorities  have  the  right  to  decide  to  expel  EU 
citizens  or  to  withdraw  their  right  of  residence  under  certain 
strict and clear conditions. The Commission has been looking into 
whether these operations had been carried out in full compliance 
with these EU rules, in particular with the right of EU citizens to 
move and settle down in another EU country and the right not to 
be discriminated for belonging to a specific nationality. 

Following  the  request  of  the  Commission,  the  French 
authorities are changing their rules in order to bring them fully in 
line  with  EU  rules  on  free  movement.  In  order  to  provide  legal 
certainty  to  Member  States  and  EU  citizens  it  is  important  that 
the  procedural  and  substantive  safeguards  included  in  EU  rules 
on  free  movement  are  fully  and  correctly  transposed  by  and  in 
the Member States.

When  it  comes  to  the  integration  of 
Roma,  funding  is  not  the  only  area  that 
requires  action.  The  rights  enshrined  in  EU  law  must  be  properly  enforced  at  national  level.  The 
Commission  closely  monitors  the  respect  of  the  relevant  EU  rules,  such  as  the  Free  Movement 
Directive58, the antidiscrimination law59 and the law against hate speech60. 

in  spring  2011, 

in 

55 

56 

57 

58 

59 

60 

(October  2009),  available  at: 

in  the  EU  –  Comparative  report 

Housing  conditions  of  Roma  and  Travellers 
http://www.fra.europa.eu/fraWebsite/attachments/ROMA-Housing-Comparative-Report_en.pdf  
The  situation  of  Roma  EU  citizens  moving  to  and  settling  in  other  EU  Member  States  (November  2009),  available  at: 
http://fra.europa.eu/fraWebsite/attachments/Roma_Movement_Comparative-final_en.pdf  
Communication  on  the  social  and  economic  integration  of  the  Roma  in  Europe,  COM(2010)133  final,  available  at:  
http://eur-lex.europa.eu/LexUriServ/LexUriServ.do?uri=COM:2010:0133:FIN:EN:PDF 
Roma Integration: First Findings of Roma Task Force and Report on Social Inclusion, MEMO/10/701, 21.12.2010, available at: 
http://europa.eu/rapid/pressReleasesAction.do?reference=MEMO/10/701&type=HTML 
Directive 2004/38/EC of the European Parliament and of the Council of 29 April 2004 on the right of citizens of the Union and 
their  family  members  to  move  and  reside  freely  within  the  territory  of  the  Member  States  amending  Regulation  (EEC)  No 
1612/68  and  repealing  Directives  64/221/EEC,  68/360/EEC,  72/194/EEC,  73/148/EEC,  75/34/EEC,  75/35/EEC,  90/364/EEC, 
90/365/EEC and 93/96/EEC, OJ L 158, 30.4.2004, p. 77–123. 
Council Directive 2000/43/EC of 29 June 2000 implementing the principle of equal treatment between persons irrespective of 
racial or ethnic origin, OJ L 180, 19.7.2000, p. 22–26. 
See above, note 51. 

EN 

28 

 
                                                 
What  does 
concerning 
linguistic minorities? 

the  EU  do 
and 

national 

In  2010,  the  Commission  received  a  number  of  letters  from  citizens  and 
associations  as  well  as  questions  from  the  European  Parliament  concerning 
the situation of persons belonging to minorities. They concerned issues such 
as:  the  use  of  regional  or  minority  languages  in  official  contacts,  spelling  of 
names of persons belonging to minorities in official documents and of street names in areas where 
minorities  are  present,  conditions  of  education  for  minorities  and  the  impact  of  electoral  laws  on 
minority voters. 

The  respect  for  the  rights  of  persons  belonging  to  minorities  is  one  of  the  founding values  of  the 
European Union, and is explicitly mentioned following the entry into force of the Lisbon Treaty.61 The 
Charter  explicitly  prohibits  discrimination  on  the  basis  of  membership  of  a  national  minority.  The 
Commission ensures that Member States, when implementing EU law, respect the principle of non-
discrimination provided in Article 21 of the Charter, which prohibits any discrimination. 
In  the  area  of  language  use,  the  Commission  has  developed  a  strategy62  to  promote  official, 
national, regional, minority and migrant languages in the EU. This strategy confirms the support of 
the Commission for all languages spoken in the European Union, including the languages spoken by 
minorities.  The  Commission  confirmed  that  a  concerted  effort  is  required  to  ensure  that,  within 
existing resources, multilingualism is taken into account across a series of EU policy areas, including 
lifelong  learning,  employment,  social  inclusion,  competitiveness,  culture,  youth  and  civil  society, 
research  and  the  media.  The  Strategy  pointed  out  that  a  successful  multilingualism  policy  could 
strengthen  life  chances  of  citizens:  it  may  increase  their  employability,  facilitate  access  to  services 
and rights and contribute to solidarity through 
enhanced 
intercultural  dialogue  and  social 
cohesion.  

Use of minority languages in the Member States 

It is important to remember that the Member 
States  maintain  general  powers  to  take 
decisions  about  minorities  and  the  use  of 
languages on their respective territories. There 
is no EU law regulating the use of languages in 
Member States. The right to use a regional or a 
minority language falls under the responsibility 
of the Member States. The Council of Europe, 
an 
in 
international  organisation  based 
Strasbourg, plays a key role in that respect63. 

An  association  representing  a  linguistic  minority  in  one 
Member State wrote to the Commission complaining about 
various obstacles for this minority to use its own language 
in that Member State. 

As  the  EU  has  no  power  to  adopt  laws  on  the  use  of 
minority  languages,  the  Charter  cannot  be  used  and  the 
Commission  was  not  able  to  give  any  follow-up  to  the 
complaint. 

The  association  may  seek  redress  elsewhere,  either 
through  national  authorities  or  the  European  Court  of 
Human Rights. 

Issues related to the recognition of the status 
of a minority fall under the responsibility of Member States, which must use all means available to 
them in order to guarantee that fundamental rights are effectively protected, in accordance with the 
national and international rules.  

61 
62 

63 

Article 2 of the Treaty on European Union, OJ C 115 , 9.5.2008, p. 1-388. 
Communication from the Commission to the European Parliament, the Council, the European Economic and Social Committee 
and  the  Committee  of  the  Regions  -  Multilingualism:  an  asset  for  Europe  and  a  shared  commitment,  COM(2008)  566  final, 
available at: http://eur-lex.europa.eu/LexUriServ/LexUriServ.do?uri=COM:2008:0566:FIN:EN:PDF 
The  European  Charter  for  Regional  or  Minority  Languages  (CETS  148)  and  the  Framework  Convention  for  the  Protection  of 
National Minorities are two instruments from the Council of Europe. 

EN 

29 

 
 
                                                 
Rights of the child 

The  Charter  guarantees  the right  to  such protection  and  care  as  is  necessary  for  the  well-being  of 
children  (Article  24  of  the  Charter).  This  Article  is  based  on  the  United Nations  Convention  on  the 
Rights of the Child, ratified by all 27 Member States. The Charter recognises children as bearers of 
autonomous  rights,  not  just  as  subjects  in  need  of  protection.  It  recognises  the  need  to  protect 
children  from  abuse,  neglect,  violations  of  their  rights  and  situations  which  endanger  their  well-
being.  

How  are  the  best  interests 
of  children  protected  in  EU 
legislation? 

The  Charter  provides  that  best  interests  of  the  child  must  be  a  primary 
consideration  in  all  actions  relating  to  children.  This  principle  applies  to  all 
actions concerning children. It includes children's right to maintain contact with 

freely  and 

for  their  views  to  be  taken 

both parents  in  case  of  a divorce,  the  right  to  express  their 
into 
views 
consideration on matters which concern them. An important 
principle  of  the  Charter  is  that  when  decisions  are  being 
made  on  what  is  in  the  best  interests  of  children,  children 
should have the opportunity to express their views and these 
views should be taken into account.  

to 

Right 
proceedings 

information 

in 

criminal 

The  Commission  adopted  in  2010  a  draft 
law  to  guarantee  the  right  of  suspects  to 
criminal 
receive 
proceedings.  

information 

during 

In  2010,  the  Commission  discussed  the  rights  of  the  child 
with a wide sample of children from all 27 Member States 
and from different backgrounds, including ethnic minorities. 
Children  with  special  needs  also  participated 
in  the 
discussions.64  

The  proposal  takes 

into  account  the 
children's best interests. It ensures that in the 
case of an arrest, children receive information 
about  their  rights  in  the  proceedings  in  a 
manner that they can understand.  

Some children are particularly vulnerable, and letters from the general public and questions from the 
European Parliament reflect this, in particular as regards children who live in poverty, children with 
special needs, children without parents and those living in care institutions, those who are trafficked 
or  sexually  abused,  children  from  ethnic  minorities,  such  as  Roma,  Sinti  or  traveller  children,  or 
children in migration need special protection. 

How  can  EU  rules  help 
in  cross-border  custody 
cases? 

In 2010, the issue of administrative decisions on the removal of the child from 
the custody of one or both parents was raised in a number of letters from the 
general  public  and  questions  from  the  European  Parliament.  Moreover,  EU 
rules65  make  it  easier  for  the  separating  parents  to  know  which  court  will  be 
deciding in case of dispute over the custody of their child. They also make it easier for the parents to 
have  court  decisions  recognised  in  another  Member  State,  for  example  the  decisions  concerning 
custody of the child and how often and under what conditions the other parent may visit the child. 
Finally, in cases when a parent who does not have custody rights takes the child to another Member 
State and breaches the decision of the court (this is also known as 'parental abduction'), these rules 
make it easier to seek the child's return back to the carer. The Commission is not in a position to re-
examine  the  merit  of  a  decision  made  by  a  national  court  in  individual  cases  concerning  custody 
arrangements.  These  decisions  can  be  appealed  against  in  front  of  the  competent  national  courts. 
The same can be said about national rules concerning custody of children.  

64 

65 

EN 

study 

Eurobarometer  Qualitative 
http://ec.europa.eu/public_opinion/archives/quali/ql_right_child_sum_en.pdf 
Council Regulation (EC) No 2201/2003 of 27 November 2003 concerning jurisdiction and the recognition and enforcement of 
judgments in matrimonial matters and the matters of parental responsibility, repealing Regulation (EC) No 1347/2000, OJ L 
338, 23.12.2003, p.1-29. 

available 

October 

Rights 

Child, 

2010, 

the 

the 

at: 

on 

of 

30 

 
                                                 
The  first  judgement  of  the  Court  of  Justice  (the  "Detiček  case")66  after  the  entry  into  force  of  the 
Treaty of Lisbon in which the Court applied the Charter concerned custody rights after the break up 
of a marriage between parents from two 
different Member States.  

The Detiček case  

The  divorce  court  in  Italy,  where  the  child  was  residing, 
awarded  temporary  custody  to  the  father.  The  mother  then 
took  the  child  to  Slovenia.  After  the  Italian  temporary  judicial 
decision was recognised in Slovenia, the mother requested that 
provisional  custody  is  awarded  to  her  by  the  Slovenian  court, 
arguing  that  the  child  had  now  settled  in  Slovenia  with  her 
mother and therefore circumstances had changed.  

The Court applied the Charter and stated that not respecting 
an already issued and recognised Italian judicial decision would 
be contrary to the child's best interest. The child's fundamental 
right to maintain on a regular basis a personal relationship and 
direct  contact  with  both  parents  guaranteed  by  the  Charter 
would also be violated. 

How  can  the  EU 
help when children 
go missing? 

Another area of concern in letters and parliamentary questions in 2010 was the issue 
of missing children. Children may go missing regardless of their age, gender or social 
status.  When  a  child  goes  missing  there  are  enormous  risks  involved;  risks  to  their 
safety,  mental  and  physical  health,  well-being  and  life.  They  can  suffer  violence  and 
abuse.  They  can  be  trafficked  or  exposed  to  begging  and  prostitution.  In  2010,  the  Commission 
received a number of letters and questions related to the problem of missing children.  

forcing  a  child 

In  2010,  sexual  exploitation  of  children 
and  child  pornography  were  raised  in  a 
number  of  questions  and  letters.  Sexual 
exploitation  of  children  can  take  many 
forms,  such  as 
into 
prostitution,  profiting 
from  such  acts, 
forcing  a  child  to  have  sex,  and  paying 
money  to  have  sex  with  children.  In  2010, 
the  Commission  proposed  new  rules  to 
fight  sexual  abuse  of  children  and  child 
pornography.  This  proposal  is  aimed  at 
prosecuting  offenders,  preventing  offences 
and protecting victims. It raises the level of 
protection and assistance provided to child 
victims,  ensures  that  children  have  easier 
justice  and  do  not  suffer 
access 
additional trauma in legal proceedings. 

to 

Dial 116 000: The European hotline for missing children
116  000  is  a  single  telephone  number  reserved  in  all 
Member  States  as  a  hotline  to  report  missing  children  and 
offer  emotional  help  and  support  to  the  parents  of  the 
missing  child.  At  the  end  of  2010,  two  years  after  the 
Commission reserved the number, the hotline was operational 
only in 13 Member States. 

In  2010,  the  Commission  in  the  Communication  Dial  116 
000:  The European  hotline  for  missing  children  identified  the 
following  obstacles  preventing  the  implementation  of  the 
116000 hotline: 

1) 

Lack  of  information  about  the  existence  of  the 
reserved 116 000 number; 

2) 

Cost of running the hotline. 

66 

ECJ, Case C-403/09 PPU, Detiček, 23.12.2009. 

EN 

31 

 
 
 
 
 
 
 
 
 
 
 
                                                 
How  does  the  EU  protect 
unaccompanied children? 

Thousands  of  children  who  are  non-EU  nationals  and  who  arrive  in  the  EU 
without  their  parents  or  guardians  (unaccompanied  children)  represent  one  of 
the  most  vulnerable  groups  of  children.  According  to  the  EU  Agency  for 
Fundamental  Rights  these  children,  even  when  under  State  care,  may 
in  unsuitable 
accommodation (including in detention, waiting for a decision on their application for asylum), lack 
quality  medical  care,  equal  access  to  appropriate  education  and  training.  They  can  be  victims  of 
discrimination or even mistreated, and they are often insufficiently informed about legal procedures 
and opportunities available to them.67 These children are particularly vulnerable to becoming victims 
of organised crime, such as human trafficking, prostitution, sexual abuse, illegal human organ trade, 
or  recruitment  to  engage  in  criminal  activities.  Based  on  a  proposal  by  the  Commission,  the  EU 
adopted in 2010 a plan68 to increase the protection of unaccompanied migrant children in the EU. 
This plan is based on the rights laid down in the Charter. 

live 

In  2010,  the  Commission  also  received  many  letters  and  questions  concerning  the  quality  of 
treatment  of  disabled  children  living  separated  from  their  parents  in  state  institutions.  The 
Commission  has  no  powers  under  the  Charter  to  intervene  in  this  area.  The  Commission  supports 
Member States in their efforts to provide institutional care and long-term care services to children 
with disabilities.69 

Prohibition  of  detention  of  unaccompanied 
children in asylum procedures 
in 
In  2010,  negotiations 

the  European 
Parliament and the Council continued on a number 
of legislative proposals in the area of asylum tabled 
by the Commission.  

The  Commission  proposals  provide  for  an 
the  detention  of 

absolute  prohibition  of 
unaccompanied children. 

EU action plan for unaccompanied children  

The plan, adopted in 2010, provides that unaccompanied 
children must be treated in accordance with the Charter. All 
actions  must  respect  the  best  interests  of  an  individual 
child.  

Children  should  be  protected  from  traffickers  and 
criminal  groups  and  all  forms  of  violence  or  exploitation. 
Every effort should be made to find the family of the child 
and to reunite the child with his or her family provided that 
this  is  the  best  solution  for  the  child  involved.  Every  child 
must have access to legal representation.  

A  decision  on  the  future  of  each  child  should  be  taken 
within the shortest time possible. Unaccompanied children 
should always be placed in an appropriate accommodation 
and treated in a way so that their physical and mental well-
being is preserved. 

67 

68 

69 

EU  Agency  for  Fundamental  Rights  Report  "Separated,  asylum-seeking  children  in  EU  Member  States",  November  2010, 
available at: http://www.fra.europa.eu/fraWebsite/attachments/FRA-fullreport-sep-asylum-conference-2010_EN.pdf 
Communication from the Commission on Action Plan on Unaccompanied Minors (2010 – 2014), COM(2010)213 final, available 
at: http://eur-lex.europa.eu/LexUriServ/LexUriServ.do?uri=COM:2010:0213:FIN:EN:PDF 
The financial support was provided from European Social Fund and European Regional and Development Fund. 

EN 

32 

 
 
 
 
 
                                                 
The rights of the elderly 

The Charter provides that the Union recognizes and respects the rights of the elderly to lead a life of 
dignity and independence and to participate in social and cultural life. 

The number of older people will rise rapidly over the coming years, notably as a result of the 'baby-
boom' cohorts reaching retirement age. This will make it increasingly difficult for Member States to 
ensure that the elderly can lead a life of dignity and independence and that they can participate in 
social  and  cultural  life.  The  Commission  proposed,  in  September  2010,  to  designate  2012  as 
European Year for Active Ageing. The aim of this European Year is to raise awareness of ageing and 
its implications and to encourage stakeholders at all levels to take new initiatives that will remove 
obstacles to older people playing an active role on the labour market and in society and to ensure 
that they can stay autonomous for as long as possible. EU will promote longer active life and higher 
social participation of the elderly to the society and the empowerment of elderly people (who can 
contribute to the society through their experience and voluntary work).  

EU  supports  research  on  the  prevention of  Alzheimer's  disease.  In  the  context  of  the Europe  2020 
strategy, under  the  Innovation  Union,  the EU has  launched  a pilot European  Partnership  on  Active 
and Healthy Ageing. 

Integration of persons with disabilities 

The Charter provides that the Union recognises and respects the right of persons with disabilities to 
benefit from measures designed to ensure their independence, social and occupational integration 
and participation in the life of the community. 

To  empower  women  and  men  with  disabilities  so  they  can  enjoy  their  full  rights  and  benefit  fully 
from  their  participation  in  society,  the  Commission  in  2010  launched the  Disability strategy70.  The 
Strategy identifies eight priority areas: accessibility, participation, equality, employment, education 
and training, social protection, health and external action. In December 2010, the EU became party 
to the UN Convention on the Rights of Persons with Disabilities (UNCRPD). The Strategy defines EU 
mechanisms to implement this convention, which will supplement national action. 

70 

Communication European Disability Strategy 2010-2020: A Renewed Commitment to a Barrier-Free Europe, COM(2010) 636 
final, available at: http://eur-lex.europa.eu/LexUriServ/LexUriServ.do?uri=COM:2010:0636:FIN:EN:PDF 

EN 

33 

 
 
 
                                                 
4. 

Solidarity 

Against the background of the current crisis with its grave socio-economic impacts, the 

Commission took action to apply EU instruments to the fundamental rights of workers. 

A number of important judgements of the Court of Justice used the Charter in order to 

clarify EU rules in this area.  

Charter rights and freedoms under this title are implemented through a number of EU 

legislative acts. Title Solidarity contains several provisions, which provide guidance to 

EU  institutions  when  drafting  EU  rules  and  to  Member  States  only  when  they  are 

implementing EU law. 

Workers' right to 
information and 
consultation within the 
undertaking 

Right of collective 
bargaining and action 

Right of access to 
placement services 

Protection in the event 
of unjustified dismissal 

Fair and just working 
conditions 

Prohibition of child 
labour and protection of 
young people at work 

Family and professional 
life 

Social security and social 
assistance 

Health care 

Access to services of 
general economic 
interest 

Environmental 
protection 
Consumer protection 

EN 

34 

 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
Workers' right to information and consultation 

The  Charter  provides  that  workers  or  their  representatives  must,  at  the  appropriate  levels,  be 
guaranteed  information  and  consultation  in  good  time  in  the  cases  and  under  the  conditions 
provided for by EU law and national 
laws and practices. 

A text message (SMS) to workers that the factory is going to 
close 

The  employees  of  a  shoe  factory  received  a  text  message  (SMS) 
while  on  holiday  stating:  ‘The  Company  will  close  on  Monday.  You 
will  receive  a  letter  informing  you  that  you  have  been  made 
redundant.' Upon their return, they found the factory closed.  

The Commission in these cases referred to EU law which provides 
for  employees'  representatives  to  be  informed  and  consulted  in 
good time and in any case before the employer takes a decision to 
close the undertaking or to effect collective dismissals. The Member 
State in question had transposed EU law correctly.  

Several  EU  Directives  guarantee  the 
right  of  workers  to  information  and 
consultation  at  work.  Against  the 
background of the current crisis with 
its  grave  socio-economic  impacts, 
the  Commission  deployed  efforts  in 
2010  to  enable  the  effective  use  of 
this  fundamental  right  by  workers 
affected  by  the  restructuring  or  the 
closure of the companies employing 
them.  The  Commission  launched  a 
"fitness  check"  aiming  at  ensuring 
'fit  for 
that  current  EU 
purpose'. 
is 
The 
focussing  on  the  three  EU 
laws 
providing for workers' right to information and consultation at national company level71 and aims to 
verify whether these laws are responsive to current and future challenges, taking also into account 
the current crisis, and to identify excessive burdens, gaps, inconsistencies and/or obsolete measures 
which may have appeared over time. This review closely associates governments and social partners, 
and  is  expected  to  produce  concrete  findings  by  2012  on  the  effectiveness,  efficiency  and  added 
value of existing EU rules, and on the need to take further action in this area. The Commission also 
supported best practices in the field of information and consultation of employees72. 

In this case, the competent national authorities, and in particular 
the  national  courts,  are  there  to  ensure  the  correct  and  effective 
application of the EU law on informing and consulting workers, and 
to guarantee that employers fulfill their duties. 

law 
is 
Commission 

71 
72 

Excluding the level of EU-scale undertakings which is regulated by the recently adopted European Works Council directive. 
Budget  heading  04.03.03.03  Information,  Consultation  and  Participation  of  representatives  of  undertakings,  available  at: 
http://ec.europa.eu/social/main.jsp?catId=157&langId=en&callId=242&furtherCalls=yes  
See also budget heading 04.03.03.01 and Progress programme. 

EN 

35 

 
 
 
                                                 
How  effective  is  the  right  to 
information and consultation of 
workers 
EU-scale 
in 
(multinational) undertakings? 

in  a  series  of 
In  2010,  shortcomings 
parliamentary  questions,  for  example  in  the  cases  of  job  losses  at  big 
automotive plants, of the closure of a plant with 1000 employees owned by 
a  company 
laws,  and  of  the 
reorganisation  of  financial  institutions.  The  Commission  assisted  Member 
States  in  the  implementation  process  of  the  new  legal  framework  for  European  Works  Councils 
adopted in 2009. The changes to be implemented by June 2011 aim to ensure the effectiveness of 
employees’ transnational information and consultation rights. 

invoking  United  States  bankruptcy 

in  this  area  were  reflected 

In  2010,  the  Commission  answered  several  parliamentary  questions  on  concrete  cases  where 
employees have allegedly not been properly informed and consulted in restructuring cases. 

As EU law currently stands, seagoing workers are excluded or may be excluded, if Member States so 
decide,  from  the  EU  Directives'  provisions  according  to  workers  the  right  to  information  and 
consultation. The Commission launched two consultations with the European social partners in 2010, 
and  is  currently  working  on  an  impact  assessment  on  the  various  options  available  with  a  view 
eventually to suppress this exclusion and extend to seagoing workers this fundamental right. 

Right of collective bargaining and action 

The  Charter  provides  that  workers  and  employers,  or  their  respective  organisations,  have,  in 
accordance  with  EU  law  and  national  laws  and  practices,  the  right  to  negotiate  and  conclude 
collective agreements at the appropriate levels and, in cases of conflicts of interest, to take collective 
action to defend their interests, including strike action. 

Right to take industrial action 

There is no specific EU law regulating the conditions and consequences of the exercise of these rights 
at national level73. Member States remain of course bound by the provisions of the Charter, including 
the  right  to  strike,  in  instances  where  they  implement  EU  law.  Examples  of  such  instances  can  be 
found  in  cases  brought  before  the  Court  of  Justice. 
The  Laval  case74  concerned  mainly  the  question  of 
whether  Swedish  trade  unions  may  exercise  the 
right  to  strike  in  order  to  force  a  Latvian  company 
providing  services  in  Sweden  to  negotiate  on  the 
working  conditions  of  its  posted  workers  including 
those which went beyond what was allowed by the 
EU Directive on posting of workers75. In the wake of 
the  Laval  and  other  judgments76,  the  Commission 
stepped  up  its  efforts  to  promote  debate  with 
stakeholders 
administrative 
cooperation  among  Member  States  in  cases  of 
posting  of  workers. 
to  have  a 
comprehensive and clear view of the issues at stake, 
the Commission carried out in 2010 major studies of 
the  legal  as  well  as  economic  and  social  effects  of 
the  posting  of  workers  Directive  with  a  view  to 
reviewing the legal framework in the context of the 
provision of services. 

A  Member  of  the  European  Parliament  brought  to 
the  attention  of  the  Commission  that  some  trade 
unions had reached an agreement with their employer 
to  continue  manufacturing  in  Italy,  preventing  the 
threatened closure of the factory and the subsequent 
lay-offs  of  thousands  of  workers,  in  exchange  for  a 
reduction  of  the  right  to  strike  (guaranteed  by  the 
Italian  Constitution).  The  exercise  of  this  right  would 
be  punishable  by  disciplinary  action,  the  ultimate 
sanction being dismissal.  

The Commission replied that, although the right to 
take 
industrial  action  must  be  recognised  as  a 
fundamental right which forms an integral part of the 
general principles of EU law, there did not seem to be 
any link with any EU legislative act in this case. It was 
therefore 
Italian  authorities, 
including  the  courts,  to  assess  the  legality  of  the 
restrictions on the exercise of the right to strike in this 
case,  and  to  enforce  the  relevant  national  legislation 
with  due  regard  for  the  applicable 
international 
obligations of the Member State. 

In  2010,  the  Commission  has  been  paying  special 
attention  to  transnational  company  agreements77. 
Transnational  company  agreements  are 
texts 
resulting 
transnational  negotiations  at 
corporate  level  covering  situations  located  in  the 

from 

for  the  competent 

In  order 

facilitate 

and 

73 
74 
75 

76 
77 

Article 153(5) of the Treaty on the Functioning of the EU (TFEU) stipulates that it does not apply to the right to strike. 
ECJ, Case C-341/05, Laval, 18.12.2007. 
Directive 96/71/EC of the European Parliament and of the Council of 16 December 1996 concerning the posting of workers in 
the framework of the provision of services, OJ L 018, 21.01.1997, p. 1-6. 
Compare: ECJ, Case C-346/06, Rüffert, 3.4.2008 and ECJ, Case C-319/06, Commission v Luxembourg, 19.6.2008. 
See: http://ec.europa.eu/social/main.jsp?catId=707&langId=en&intPageId=214  

EN 

36 

 
                                                 
different countries where the European/multinational companies operate or which are affected by 
corporate  decisions.  So  far,  the  Commission’s  services  have  recorded  some  200  transnational 
company  agreements  and  joint  texts  in  100  companies  employing  together  9.8  million  employees. 
These agreements usually deal with restructuring, reorganisation and anticipative measures, as well 
as with employment policy, mobility and training. They also deal with data protection, ethics, health 
and  safety  at  work,  working  conditions  and  equal  opportunities.  They  count  among  the  most 
innovative  actions  in  developing  socially  responsible  companies.  They  are  an  effective  tool  for 
promoting  the  respect  of  fundamental  rights  in  multinational  companies  and  among  their 
stakeholders. 

Access to placement services 

The Charter guarantees that everyone has the right of access to a free placement service. 

The  right  of  citizens  to  access  placement  services  is  implemented  in  the  EU  by  the  provision  of 
services  free  of  charge  to  jobseekers  (both  unemployed  and  job  changers)  by  Public  Employment 
Services  (PES).  In  its  Communication  on  'Youth  on  the  Move'  of  15  September  2010,  the 
Commission  called  upon  the  Member  States  to  ensure  that  all  young  people  are  in  a  job,  further 
education  or  activation  measures  within  four  months  of  leaving  school.  This  may  often  require 
extending the support of Public Employment Services.  

EURES, the co-operation network between the Commission and the Public Employment Services of 
the  EEA  Member  States  and  other  partner  organisations,  provides  information,  advice  and 
recruitment/placement (job-matching) services for the benefit of workers and employers as well as 
any citizen wishing to benefit from the principle of the free movement of persons. In 2010 the EURES 
network  further  developed  its  service  provision  in  the  area  of  placements  of  mobile  jobseekers 
and defined placement services to citizens as one of its strategic objective for the network. In 2010 
the EURES network had around 2 million contacts with clients in the fields of information, advice and 
placement. 

EN 

37 

 
 
 
Protection in the event of unjustified dismissal 

The Charter provides that every worker has the right to protection against unjustified dismissal, in 
accordance with EU law and national laws and practices. 

EU  legislation  prohibiting  discrimination  on  certain  grounds,  such  as  nationality,  gender,  racial  or 
ethnic origin, religion or belief, disability, age or sexual orientation, covers also cases of unjustified 
dismissals. Some EU Directives in the area of workers' information and consultation provide also for 
the protection of employees’ representatives, in particular where they are dismissed on grounds of 
their status or functions as an employees’ representative.  

individual  dismissals.  On  several  occasions, 

In  2010,  the  Commission  replied  to  several  letters  from  citizens  and  parliamentary  questions 
concerning 
it  clarified  that,  apart  from  the 
aforementioned  instances,  there  are  no  specific  EU  rules  prohibiting  employers  from  dismissing 
individuals without mentioning any reason. Nor are there, as indicated above, any specific EU rules 
regulating the timing, the method or the consequences of individual dismissals. Individuals affected 
by  a  dismissal  that  they  see  as  unjustified  must  take  this  matter  to  court  in  the  Member  State 
concerned. 

Fair and just working conditions 

The Charter guarantees that every worker has the right to working conditions which respect his or 
her health, safety and dignity. Every worker has the right to limitation of maximum working hours, to 
daily and weekly rest periods and to an annual period of paid leave 
There is a substantial body of EU law in this area concerning in particular health and safety at work78. 
The Commission continued to pay particular attention to the effective and correct implementation in 
the Member States of the Framework Health and Safety Directive, as this law determines the specific 
working conditions that should be ensured for every worker. 
In 2010, the Commission adopted a Report on the implementation of the Working Time Directive 79, 
accompanied  by  a  Staff  Working  Paper  setting  out  the  rules  and  rulings  of  the  Court  of  Justice 
regarding  organisation  of  Working  Time.  The  Commission  is  currently  undertaking  a  review  of  this 
Directive,  based  on  a  consultation  of  the  social  partners  at  EU  level  and  on  a  detailed  impact 
assessment, which is expected to lead to a proposal to amend the existing rules during 2011.  

In 2010, the Court of Justice issued several judgments clarifying further the EU rules on maximum 
weekly working time, rest periods and paid annual leave. In one case80 a fire-fighter was required to 
work an average of 54 hours per week instead of the maximum average of 48 hours per week under 
the  Directive. When  the  fire-fighter  insisted  on the 48-hour  limit,  he was  moved  to  a  different  job 
against his will, where the 48-hour limit applied. The Court ruled that national rules which obliged a 
worker  to  work  longer  than  48  hours  per  week  on  average  were  contrary  to  the  Working  Time 
Directive  and  therefore  unlawful,  and  that  national  rules  allowing  a  public  sector  employer  to 
transfer a worker compulsorily to another job for asking to work within the 48-hour limit were also 
unlawful. Although the Directive does not specifically lay down that a worker could not be penalised 
for insisting on their right not to exceed the Directive's limit to weekly working time, the Court based 
its reasoning upon Article 47 of the Charter which states that the law must give effective protection 
to legal rights.  
In  another  case81,  the  Court  decided  that  workers  employed  in  casual  work  in  holiday  and  leisure 
centres are entitled to periods of rest. It was not enough for French law to restrict this type of work 

78 

79 

80 
81 

The  central  piece  is  the  Council  Directive  89/391/EEC  of  12  June  1989  on  the  introduction  of  measures  to  encourage 
improvements in the safety and health of workers at work, OJ L 183, 29.6.1989, p. 1-8, which lays down general principles on 
the  protection  of  workers'  health  and  safety.  Several  specific  directives  cover  a  number  of  specific  risks,  e.g.  exposure  of 
workers  to  biological  and  chemical  agents  at  work,  noise,  work  at  the  construction  sites,  manual  handling  of  loads,  etc. 
Another  important  piece  of  legislation  covers  working  time  and  regulates  issues  such  as  minimum  daily  and  weekly  rest 
periods, breaks, maximum weekly working time, night work and annual leave. 
Directive 2003/88/EC of the European Parliament and of the Council of 4 November 2003 concerning certain aspects of the 
organisation of working time, OJ L 299, 18.11.2003, p. 9–19. 
ECJ, Case C-243/09 Fuss (I), 14.10.2010. 
ECJ, Case C-428/09 Isère, 14.10.2010. 

EN 

38 

 
                                                 
to  a  maximum  of  80  days  every  year  as  this  did  not  protect  the  workers'  health  and safety  during 
working hours. The Court specifically mentioned how important it is to have rest breaks every day to 
help workers recover from work but also to prevent risks to their health and safety.  
A third case82 dealt with the working conditions of part-time public servants in comparison to full-
time  workers.  The  Court  found  that  it  was  unlawful  to  reduce  the  amount  of  paid  annual  leave  a 
worker had been entitled to under a full-time job where he/she changes to a part-time job. 

Protection of young people at work 

The Charter provides that young people admitted to work must have working conditions appropriate 
to their age and be protected against economic exploitation and any work likely to harm their safety, 
health or physical, mental, moral or social development or to interfere with their education. 

In  2010,  the  Commission  services  produced  a  report  on  the  evaluation  and  impact  of  the 
application of the Directive on the protection of young people at work83. The Directive has played a 
role  in  helping  improve  the  legal  protection  afforded  to  young  people.  Young  people  would  have 
been at greater risk of suffering work accidents than older workers, without the special protection 
afforded by the Directive. According to available data, the standardised incidence rate of accidents at 
work  with  more  than  three  days  lost  for  young  workers  fell  from  more  than  3 %  in  1995  to 
approximately 2.5 % in 2000 and 1.9 % in 2004. Although, surprisingly, the rate increased in 2005 to 
almost 2.8 % (in the EU-15), it dropped again to about 2.5 % in 2007. The corresponding rate for the 
overall workforce was about 2.8 % and 3.8 % for workers in the 18 – 24 age group. The standardised 
incidence rate of fatal accidents  at work was also lower for young workers than that for the other 
two groups.  

Social security 

The  Charter  recognises  the  entitlement  to  social  security  benefits  and  social  services  providing 
protection in cases of maternity, illness, industrial accidents, dependency or old age, and in the case 
of loss of employment. Everyone residing and moving legally within the European Union is entitled to 
social  security  benefits  and  social  advantages  in  accordance  with  Union  law  and  national  laws  and 
practices. Member States are free to determine the details of their social security systems, including 
which benefits shall be provided, the conditions of  eligibility, how these benefits are calculated, as 
well as how much contribution should be paid. However, European rules ensure that the application 
of the different national legislations respects the basic principles of equality of treatment and non-
discrimination. They guarantee that migrant EU workers are treated alike with the national workers 
and  that  the  application  of  the 
different  national 
legislations 
does not adversely affect them. 

Family benefits for EU citizens working in another Member State 
The Commission received a request from a Polish national who lived 
with  her  children  in  Poland  while  her  husband  worked  and  lived  in 
Austria.  Her  husband’s  application  for  family  benefits  in  Austria  was 
refused on the ground that his children did not live with him under the 
same roof and were not part of the worker's household.  

the  Commission 
In  2010, 
continued 
the 
to  monitor 
application  of  the  EU  rules  on 
social  security  coordination  to 
that  people  moving 
ensure 
across borders within the EU do 
not  lose  their  entitlements  to 
benefits. For instance in case of 
rules 
the 
pensions, 
guarantee that in each Member 
State  the  insurance  record  is 
the  worker 
preserved  until 
age. 
reaches 
Similarly, when dealing with a claim for unemployment benefits, institutions must take into account 
periods of insurance completed in other Member States if this is necessary to the entitlement to the 
benefit. For people working and residing in different Member States, EU law determines where they 

The  Commission  considered  this  as  unacceptable  because  EU  law 
provides  that  if  children  are  mainly  dependent  on  the  worker  they 
should  be  considered  as  family  members  and  should  therefore  be 
entitled to the family benefits from the Member State of employment of 
the worker.  

Following  the  intervention  of  the  Commission  the  complainant  was 
granted  Austrian  family  benefits,  including  unpaid  benefits  from  the 
past.

pensionable 

EU 

82 
83 

ECJ, Case C-486/08, Zentralbetriebsrat der Landeskrankenhäuser Tirols, 22.4.2010. 
Council Directive 94/33/EC of 22 June 1994 on the protection of young people at work, OJ L 216, 20.08.1994, p. 12-20. 

EN 

39 

 
                                                 
have  to  pay  their  social  security  contributions  and  which  country  is  responsible  to  provide  them 
healthcare or pay family benefits. In 2010, the Commission replied to a large number of complaints 
coming from individuals and took action wherever necessary. 

Consumer protection  

The  Charter  provides  that  Union  policies  shall  ensure  a  high  level  of  consumer  protection.  This 
provision provides guidance to the EU institutions when drafting and applying EU legislation.  

The objective of ensuring a high level of consumer protection guided the ongoing negotiations in the 
Council  and  the  European  Parliament  on  the  proposed  Directive  on  Consumer  Rights  and  the 
Commission's  work  on  the  modernisation  of  the  Package  Travel  Directive.  Through  infringement 
proceedings,  the  Commission  made  sure  that  the  protection  granted  by  different  consumer 
protection directives, e.g. the Directive on the sale of consumer goods, is effectively guaranteed in 
national law.  

In 2010, the Commission received a number of letters from the general public regarding consumer 
protection  in  various  situations,  such  as  faulty  products,  time  share,  package  travel,  insurance, 
distance  (e.g.  online)  marketing  of  products  and  services  and  unfair  commercial  practices.  As  the 
Commission cannot intervene in disputes between 
consumers  and  operators,  it  informed  citizens  on 
the  EU  rules  and  referred  them  to  the  relevant 
national  authorities  and  European  Consumer 
Centres.  

Consumer protection regarding package travel 

An  EU  citizen  who  had  bought  a  package  holiday 
from  a  tour  operator  in  another  Member  State  did 
not  receive  a  full  refund  when  the  tour  operator 
became insolvent.  

the 

Following 

the  Commission 
complaint, 
contacted  that  Member  State,  which  subsequently 
amended  the  national  rules  transposing  the  EU's 
Package  Travel  Directive,  which  protects  consumers 
in such a situation. 

EN 

40 

 
 
 
 
 
 
 
5.  Citizens' rights 

Right to vote and to 
stand as a candidate at 
elections to the 
European Parliament 

Right to vote and to 
stand as a candidate at 
municipal elections 

Right to good 
administration 

Right of access to 
documents 

European Ombudsman 

Right to petition 

Freedom of movement 
and of residence 

Diplomatic and consular 
protection 

While  other  titles  of  the  Charter  contain  rights  that  benefit  everyone  in  the  EU, 

irrespective  of  their  nationality,  this  title  mainly  contains  rights  of  EU  citizens  - 

nationals of the Member States. Nevertheless, right to good administration, access to 

documents  and  freedom  of  movement  also  extend  to  non-EU  nationals  in  certain 

situations.  

Among the rights and freedoms under this title, freedom of movement and residence 

were  the  top  issues  in  2010,  in  terms  of  letters,  questions  and  petitions  to  the 

Commission.  

The  main  developments  on  EU  Citizenship  rights  since  the  entry  into  force  of  the 

Lisbon Treaty are detailed in the "EU Citizenship Report 2010 – Dismantling obstacles 

to EU citizens' rights", and the "Report on progress towards effective EU citizenship 

2007-2010", both published on 27 October 2010. 

EN 

41 

 
 
 
Right to vote and stand as a candidate at elections 

Voting in the Member State of residence 

The Charter guarantees the right of every EU citizen to vote in the European elections in whatever 
Member State they reside. The Charter also provides for the right of EU citizens to vote and to stand 
as  candidates  at  municipal  elections  in  the  Member  State  in  which  they  reside.  These  rights 
represent the cornerstone of democracy at the EU level. They are essential for connecting EU citizens 
with directly elected representatives at the EU level – Members of the European Parliament. They 
are also crucial in allowing EU citizens to influence the political environment at the local level – by 
voting or standing in the municipal elections when living in a Member State other than their own.  
The  report84  from  the  Commission  on  the 
2009 European  Parliament  elections  assessed 
the implementation of EU election rules85. The 
report  concludes  that  citizens  are  aware  of 
their electoral rights. While in 2007 only 54% 
of the respondents knew that EU citizens have 
the right to vote in European elections in the 
Member State of residence, awareness of this 
right  improved  to  69%  in  2010.  Increasing 
numbers  of  EU  citizens  residing  in  a  Member 
State  other  than  their  own  exercised  their 
right to vote. 

additional  requirements 
present an ID card issued by the country of residence.  

An  EU  citizen  wrote  to  the  Commission  complaining 
about the conditions for enrolling as a voter when residing 
in a Member State other than his own.  

He claimed his electoral rights were violated because of 
imposed  on  him,  namely  to 

The Commission contacted the Member State to ensure 
that  national 
impose  additional 
requirements on citizens from other Member States when 
registering to vote. The Member State agreed to amend its 
legislation. 

The report presented measures for improving 
participation  and  for  enforcing  EU  citizens' 
electoral  rights.  It  revealed  that  a  number  of  Member  States  only  allow  their  own  nationals  to 
become  members  of  political  parties  or  to  found  one.  This  means  that  EU  citizens  from  other 
Member States living there cannot fully participate in political life and exercise their electoral rights. 
The  Commission  has  been  looking  into  the  legislation  of  these  Member  States  and  is  taking 
appropriate measures to remedy this problem. 

legislation  does  not 

84 

85 

Report on the election of Members of the European Parliament (1976 Act as amended by Decision 2002/772/EC, Euratom) 
and on the participation of European Union citizens in elections for the European Parliament in the Member State of 
residence (Directive 93/109/EC), COM(2010) 605 final, available at: 
http://eur-lex.europa.eu/LexUriServ/LexUriServ.do?uri=COM:2010:0605:FIN:EN:PDF 
Council Directive 93/109/EC laying down detailed arrangements for the exercise of the right to vote and stand as a candidate 
in elections to the European Parliament for citizens of the Union residing in a Member State of which they are not nationals, 
OJ L 329, p. 34. 

EN 

42 

 
 
 
                                                 
The  Commission  analysed  how  Member  States  respect  EU  election  rules86  on  early  publication  of 
results  of  the  European  Parliament  elections.  It  will  now  take  measures  to  ensure  Member  States 
follow these rules.  

In 2010, the Commission finalised a comparative study on potential common EU principles regarding 
electoral arrangements. This study provides information on how EU electoral rules could be changed 
in the future. 

86 

The 1976 Act on the election of the members of the European Parliament by direct universal suffrage, as amended by Council 
Decision  of  25  June  2002  and  23  September  2002  amending  the  Act  concerning  the  election  of  the  representatives  of  the 
European Parliament by direct universal suffrage, annexed to Decision 76/787/ECSC, EEC, Euratom, OJ L 283, 21.10.2002, p. 1-
4. 

EN 

43 

 
 
 
                                                 
Right to good administration 

Every  person  has  the  right  to  have  his  or  her  affairs  handled  impartially,  fairly  and  within  a 
reasonable time by the Institutions, bodies and agencies of the Union. It also includes the right to be 
heard and to receive a reply. 

How  does  the  Commission 
put  into  practice  the  right  to 
good administration? 

A  huge  number  of  enquiries  is  addressed  by  citizens  to  the  Commission, 
whether by phone, e-mail or correspondence. The Commission commits itself 
to answer them in the most appropriate manner and as quickly as possible. 

The Commission receives a large number of letters from the general public. Efficiently managing this 
correspondence  can  have  a  positive  impact  on  the  right  to  good  administration.  The  general  rule 
applied in the Commission is that every letter is registered and, with the exception of those that are 
unreasonable, repetitive or abusive, should receive a reply within 15 working days from the date of 
receipt  of  the  letter.  At  the  end  of  2010,  all  Commission  services  had  migrated  to  one  common 
registering  tool,  called  ARES,  helping  services  to  interact  among  themselves  and  to  give  quicker 
follow-up to correspondence. The Commission also takes care that replies are sent in the language of 
the author of the correspondence, provided that it was written in one of the official language of the 
Union. 

For  complaints  and  enquiries  by  citizens  on  the  application  of  EU  law,  the  Commission  introduced 
CHAP  ("Complaint  Handling"),  an  IT  tool  for  registering  and  managing  this  specific  kind  of 
correspondence. In 2010, 4020 files were created in CHAP (83% complaints against 17% inquiries). 

CHAP  interoperates  with  ARES  and  with  EU  Pilot,  a  tool  developed  by  the  Commission  to  address 
enquiries and complaints by citizens on application of EU law through dialogue with Member States. 
In 2010, three additional Member States joined the EU Pilot, bringing the total number of Member 
States  participating  at  the  end  of  2010  to  18.  EU  pilot  allows  for  early  clarification  on  whether  an 
infringement  of  EU  law  exists  and  its  correction,  thus  avoiding  recourse  to  formal  infringement 
proceedings. It enables faster response to citizens' concerns and improves cooperation between the 
Commission and the Member States.  

What  is  the  impact  of  the 
right  to  good  administration 
on EU competition rules?

The right to good administration is relevant in different areas of EU law. One 
of  them  is  competition,  where  the  Commission  is  entrusted  with  making 
sure markets function properly (i.e. that competition in the internal market 
is not distorted because of anticompetitive agreements, abuses of dominant 
position  or  mergers).  To  achieve  this,  the  Commission  has  the  task  of 
preventing or correcting behaviour that would restrain or distort competition. It has a wide range of 
inspection and enforcement powers (e.g. to investigate businesses, impose fines and/or remedies). 
This  allowed  the  Commission  to  bring  successful  action  against  many  companies  because 
competition  was  distorted  and  harm  to  consumers  and  competitors  was  likely  or  had  already 
occurred.  In  2010,  the  Commission  sanctioned  several  agreements  between  companies  that  fixed 
prices,  over  products  as  diverse  as  bathroom  fittings  and  animal  feed.  Commission  action  saved 
consumers money by making sure they do not have to pay more for the same product, making a real 
difference to the daily lives of millions of Europeans. 

To provide transparency and better understanding in the light of the Right to good administration, 
the  Commission  in  2010  published  explanations  concerning  how  these  procedures  work  in 
practice.87  This  makes  it  easier  for  companies  under  investigation  to  understand  how  the 
investigation will proceed, what they can expect from the Commission and what the Commission will 
expect from them.88  

87 

88 

The explanations are outlined in three documents: Best Practices for antitrust proceedings, Best Practices for the submission 
of  economic  evidence  (both  in  antitrust  and  merger  proceedings)  and  Guidance  on  the  role  of  the  Hearing  Officers  in  the 
context of antitrust proceedings. 
The  Best  Practices  should  be  read  in  conjunction  with  the  relevant  legislative,  interpretative  and  administrative  measures 
which govern proceedings before the Commission. Proceedings concerning the application of Articles 101 and 102 TFEU are in 
particular  regulated  by  Regulation  1/2003  (OJ  L  1,  4.1.2003,  p.1)  and  the  Implementing  Regulation  773/2004  (OJ  L  123, 
27.4.2004,  p.18).  Also  the  Notices  on  access  to  file  (OJ  C  325,  22.12.2005,  p.7)  and  handling  of  complaints  (OJ  C  101, 

EN 

44 

 
                                                 
the  European 
How  does 
into 
Ombudsman 
practice  the  right  to  good 
administration? 

put 

In 2010, the European Ombudsman dealt with 164 cases, where the citizen 
alleged  that  the  administration  had  failed  to  reply  adequately  or  at  all. 

Right  to  be  heard  regarding  a  ban  on  entry  to 
Commission buildings 

A person wrote to the European Ombudsman that the 
Commission  imposed  a  ban  on  entry  to  Commission 
buildings  against  him  on  the  grounds  of  alleged 
harassment of EU staff.  

The European Ombudsman concluded that there had 
been  a  breach  of  the  right  to  be  heard  as  the 
complainant  had  not  been  given  the  possibility  to 
present  his  observations  before  an  entry  ban  was 
adopted.  

27.4.2004, p.65) as well as the Hearing Officers' Mandate (OJ L 162, 19.6.2001, p.21) contain numerous provisions that are 
relevant. 

EN 

45 

 
                                                                                                                                                         
Right of access to documents 

The  Charter  guarantees  that  any  EU  citizen  and  any  natural  or  legal  person  residing  or  having  its 
registered office in a Member State, has a right of access to documents of the EU institutions, bodies, 
offices and agencies. 

In 2010, the Commission received over 6.000 requests for access to documents, compared to about 
5.000 in 2008 and 2009. As in the past, 4 out of 5 requests were granted at the initial stage. In 2010, 
the  Commission  received  184  confirmatory  applications.  Such  applications  are  reassessed  by  case 
handlers acting independently from the ones that handled the initial application. This review has led 
to  wider  access  being  granted  in  around  half  the  cases.  In  2010,  the  European  Ombudsman  dealt 
with 22 cases concerning the fundamental right of access to documents. 
The Court of Justice delivered several judgements concerning access to documents. In the first case89 
the  Court  of  Justice  overruled  the  Court  of  First  Instance  in  a  case  where  access  to  a  Commission 
document containing names of individuals was sought.90 The Commission had refused to disclose the 
names of persons that had not given their consent to disclosure. The Court concluded that the EU 
rules  on  the  protection  of  personal  data91  become  applicable  in  their  entirety.  The  Commission 
therefore  had  rightly  verified  if  the  data  subjects  had  given  their  consent  to  the  disclosure  of 
personal data concerning them. The second case92 concerned access to Commission's administrative 
files  in  state-aid  cases.  The  Court  held  an  applicant  can  refute  the  general  presumption  of 
inaccessibility. An applicant can rebut the presumption and demonstrate that a particular document 
should  not  be  covered  by  it  or  that  there  is  an  overriding  public  interest  in  disclosure.  The  third 
case93  concerned  access  to  Commission  submissions  in  Court  cases.  The  Court  held  that  there  is  a 
general presumption that disclosure of written submissions in pending Court cases would undermine 
the protection of the Court proceedings. In the three rulings, the Court interpreted the exceptions 
set out in EU rules on access to documents in relation with other relevant provisions: rules on state-
aid, the Statute of the Court and the rules of procedure as well as  rules on protection of personal 
data. 

Right  of  access  to  clinical  study  reports  on 
drugs 

Researchers wrote to the European Ombudsman 
that  the  European  Medicines  Agency  (EMA)  denied 
their request for access to clinical study reports for 
two anti-obesity drugs.  

disagreed  with 

The  Ombudsman 

EMA's 
assessment  that  the  disclosure  would  undermine 
the  drug  producers'  commercial  interests  and  EMA 
then agreed to provide public access.  

Right of access to data on absences on medical 
grounds  by  Members  of 
the  European 
Parliament 

A  journalist  wrote  to  the  European  Ombudsman 
regarding the refusal by the European Parliament to 
provide  statistics  on  absences  of  Members  of  the 
European Parliament on medical grounds.  

The  European  Ombudsman  consulted 

the 
Supervisor,  who 
European  Data  Protection 
considered 
the 
that 
European  Parliament  might  be  identified  from  the 
data requested.  

individual  Members  of 

The Ombudsman concluded that if the European 
Parliament undertook this data processing, it would 
infringe  the  rules  on  data  protection  and  that  the 
European  Parliament  was  entitled  to  refuse  the 
complainant's request. 

89 
90 

91 

92 
93 

ECJ, Case C-28/08P, Commission v The Bavarian Lager Co Ltd, 29.6.2010. 
Regulation  (EC)  No  1049/2001  of  the  European  Parliament  and  of  the  Council  of  30  May  2001  regarding  public  access  to 
European Parliament, Council and Commission documents, OJ L 145, 31.05.2001, p.43-48. 
Regulation  (EC)  No  45/2001  of  the  European  Parliament  and  of  the  Council  of  18  December  2000  on  the  protection  of 
individuals  with  regard  to  the  processing  of  personal  data  by  the  Community  institutions  and  bodies  and  on  the  free 
movement of such data, OJ L 008, 12.01.2001, p. 1-22. 
ECJ, Case C-139/07P, Commission v Technische Glaswerke Ilmenau GmbH, 29.10.2010. 
ECJ, Joined cases C-514/07P, C-528/07P and C-532/07P, Commission/Association de la Presse internationale, 21.9.2010. 

EN 

46 

 
 
 
                                                 
Right to refer to the European Ombudsman 

The  Charter  provides  that  any  EU  citizen  and  any  natural  or  legal  person  residing  or  having  its 
registered  office  in  a  Member  State,  has  the  right  to  refer  to  the  European  Ombudsman  cases  of 
maladministration  in  the  activities  of  the  EU  institutions,  bodies,  offices  and  agencies,  with  the 
exception  of  the  Court  of  Justice  acting  in  its  judicial  role.  In  2010,  2 667  individuals  invoked  their 
right to refer to the Ombudsman. 

A  complaint  within  the  competence  of  the 
national ombudsperson 

A  Czech  living  in  Ireland  and  receiving  jobseeker 
benefits  got  permission  to  travel  to  the  Czech 
Republic to attend a course. While there, he sat for 
examinations  on  the  day  set  for  his  return  to 
Ireland.  As  a  result  of  his  delayed  return,  the  Irish 
Department  of  Social  Protection  decided  that  he 
was not eligible for jobseeker benefits or even for a 
jobseeker allowance.  

transferred 

The  European  Ombudsman 

the 
complaint  to  the  Irish  Ombudsman,  who  drew 
attention  to  the  relevant  EU  rules.  Irish  authorities 
jobseeker 
its  decision  and  paid  the 
reviewed 
benefits arrears for the period in question and until 
his  entitlement  ran  out.  They  also  promised  to  re-
examine his entitlement to a jobseeker allowance. 

In  2010,  the  European  Ombudsman  received  a 
number  of  letters  from  citizens  in  relation  to 
problems  they  encounter  with  the  Member 
States.  Complaints  against  public  authorities  of 
the Member States are not within the European 
Ombudsman’s  mandate. 
European 
Ombudsman  co-operates  with  national  and 
regional  ombudsmen  in  the European Network 
of  Ombudsmen  to  ensure  that  complaints  are 
dealt  with  quickly  and  effectively.  In  a  number 
of cases, the European Ombudsman transferred 
a  complaint  he  had  received,  or  advised  the 
complainant  to  turn  to,  a  member  of  the 
Network. 

The 

EN 

47 

 
 
 
 
 
 
 
 
 
Freedom of movement and residence 

The  Charter  guarantees  the  right  of  every  EU  citizen  to  move  and  reside  freely,  in  the  respect  of 
certain  conditions,  within  the  territory  of  the 
Member  States.  This  fundamental  right  is  also 
included in the Treaty on the Functioning of the 
EU.94  The  EU  has  adopted  legislation  that  puts 
the  freedom  of  movement  and  residence  into 
practice.  Member  States  must  adapt  national 
rules  to  this  EU  legislation  and  the  Commission 
monitors whether they have done so. 

Does a third-country national, who is married to an 
EU citizen, need a visa to travel to another Member 
State? 

An  EU  citizen  lived  in  another  Member  State  together 
with his wife, who is a third-country national. They wanted 
to  go  on  holidays  to  another  Member  State  and  they 
wanted to know, if the wife would need a visa for this. 

In 2010, the Commission undertook a structured 
dialogue  with  each  Member  State  to  examine 
their  national  rules  and  to  make  sure  these 
respect  EU  rules  on  freedom  of  movement  and 
residence95  adopted  in  2004.  The  Commission 
also  assisted  the  Member  States  in  adapting 
their national legislations by conducting multilateral meetings of experts to exchange views, know-
how  and  best  practices,  including  on  fighting  against  abuses  and  fraud  regarding  the  right  to  free 
movement and residence. 

Her  residence  card  is  sufficient.  According  to  the  Free 
Movement Directive, EU citizens' family members holding 
a  residence  card  do  not  need  a  visa  to  travel  to  another 
Member State in the Schengen area. 

The Commission received a number of complaints regarding the conditions of entry and residence of 
third-country  family  members  of  EU  citizens.  Therefore,  in  order  to  assist  Member  States  with 
adapting  national  legislation  to  EU  rules  and,  by  the  same  token,  to  ease  the  identification  of  the 
appropriate solutions to individual cases in a consistent way, the Commission adopted a handbook 
for the implementation of the Schengen Visa Code96 with a chapter dedicated to processing of visa 
applications from family members of EU citizens.  

A  permanent  residence  card  for  third-country 
nationals,  who  are  married  to  EU  citizens  living  in 
another Member State 

To improve knowledge of EU citizens' rights, the 
Commission  also  published  a  reader-friendly 
guide  for  EU  citizens  on  freedom  to  move  and 
live  in  Europe97.  The  web  portal  Your  Europe 
was  also  launched  as  a  one-stop-shop  to  help 
EU  citizens  easily  find  information  about  their 
rights  and  to  provide  them  with  practical  tips 
when moving around the European Union. 

from 

information 

The Commission received a number of complaints by EU 
citizens  who  had  been  living  for  five  years  or  more  in 
another  Member  State  with  their  spouse,  a  third  country 
national.  The  EU  citizen  had  already  acquired  the  right  of 
permanent residence in the host country, but the national 
authorities  refused  the  right  of  permanent  residence  to 
the spouse. 

In  2010,  the  Commission  received  requests 
regarding  the  blocking  of  the  Greek  port  of 
Piraeus  due  to  a  strike.  The  Commission 
requested 
the  Greek 
authorities  as  regards  the  industrial  action  and 
the  way  it  was  carried  out.  As  the  strike  might 
have  made  it  more  difficult  for  EU  tourists  to 
reach their destinations, the blocking of the port 
raised  concerns  of  compliance  with  EU  law  on 
free  movement  of  EU  citizens,  goods  and 
services.  The  Charter  contains  both  the  right  to  free  movement  for  EU  citizens  and  the  right  of 
workers  and  their  organisations  to  take  collective  action  to  defend  their  interests,  including  strike 
action.  National  authorities  must  ensure  that  exercise  of  one  fundamental  right  does  not  restrict 
another fundamental right in an unjustified manner. To provide guidance in similar situations of port 

As  the  condition  of  five  years  of  continuous  residence 
with  an  EU  citizen  was  fulfilled,  following  contacts 
between  the  Commission  and  the  Member  States,  the 
them  with  permanent 
national  authorities 
residence cards.

issued 

94 
95 

96 
97 

EN 

Articles 20(2), 21 and 45 TFEU. 
Regulation  (EEC)  1612/68  on  freedom  of  movement  for  workers  within  the  Community,  OJ  L  257,  p.  2  and  Directive 
2004/38/EC on the right of citizens of the Union and their family members to move and reside freely within the territory of 
the Member States, OJ L 158, p. 77. 
Decision establishing the Handbook for the processing of visa applications, 19 March 2010, COM(2010) 1620 final. 
Freedom 
http://ec.europa.eu/justice/policies/citizenship/docs/guide_free_movement.pdf 

rights  as  an  EU  citizen,  available  at: 

in  Europe  –  A  Guide 

to  move  and 

to  your 

live 

48 

 
                                                 
or border blockades, the EU adopted rules98 requiring the national authorities to determine whether 
a  blockade  may  be  an  obstacle  to  free  movement  and  whether  such  an  obstacle  is  justified  and 
proportionate. In case of unjustified or disproportionate restrictions, national authorities must take 
all necessary and proportionate measures to prevent any obstacles to free movement caused by the 
actions of private individuals.  

98 

Council  Regulation  (EC)  No  2679/98  of  7  December  1998  on  the  functioning  of  the  internal  market  in  relation  to  the  free 
movement of goods among the Member States, OJ L 337, 12.12.1998, p. 8-9. 

EN 

49 

 
 
 
                                                 
Diplomatic and consular protection 

EU citizens travelling to a non-EU country in which their own country does not have an embassy or 
consulate have the right to turn for help to that of any other EU country and receive help under the 
same conditions as nationals of that country. 

Every day EU citizens travel on business or leisure to countries outside the EU. More than 30 million 
EU  citizens  permanently  live  in  non-EU  countries.  Sometimes  EU  citizens  find  themselves  in  a 
situation where they need assistance from an embassy or consulate. There are only three countries 
in the world where all Member States are represented: the United States, China and Russia. Several 
recent  crises  in  non-EU  countries  directly  affected  EU  citizens  in  non-EU  countries  (e.g.  Egypt, 
earthquakes in Haiti and Chile, volcanic ash cloud).  

The  Charter  guarantees  the  right  of  unrepresented  EU  citizens  to  seek  diplomatic  or  consular 
protection from embassies or consulates of other Member States in third countries under the same 
conditions  as  nationals.  EU  citizens  must  be  able  to  rely  effectively  on  this  right  when  travelling 
abroad.  One  of  the  ways  of  making  this  right  effective  is  through  providing  information  to  the 
officials in representations in non-EU countries. In 2010, the Commission developed a training kit for 
consular officials informing them about EU rules on consular protection.  

The Commission is building a website on consular protection dedicated to the citizen, providing the 
addresses  of  all  the  available  embassies/consulates  in  the  world  and  travel  advice  from  Member 
States. It is preparing a legislative proposal on coordination and cooperation measures under the 
framework of the Lisbon Treaty to render this entitlement more effective. 

Union citizenship 

According  to  EU  law99,  every  person  holding  the  nationality  of  a  Member  State  is  a  citizen  of  the 
Union. Citizenship of the Union is additional to national citizenship and does not replace it.  

Union  citizenship  does  not  compromise  the 
principle  of  international  law  that  States 
have  the  power  to  lay  down  the  conditions 
for the acquisition and loss of nationality.  

Acquisition and loss of nationality 

A  national  of  a  non-EU  country  applied  to  obtain  the 
nationality of a EU country, of which his father had been a 
national, but his application was rejected.  

The  national  authorities  refused  to  exempt  him  from 
taking  a  language  test  despite  his  medically  recognised 
disability.  

The Court of Justice of the EU has confirmed 
this principle in its case law. The Court ruled 
that, when exercising their power regarding 
nationality,  Member  States  must  have  due 
regard  to  EU  law.  In  its  judgment  in  the 
Rottmann  case100,  the  Court  ruled  that 
national  rules  on  nationality,  if  they  affect 
rights  protected  by  EU  rules,  are  open  to 
judicial  review  in  the  light  of  EU  law.  It 
concluded  that  a  decision  on  withdrawing 
naturalisation, which has as a consequence not only loss of the nationality of the Member State of 
naturalisation  but  also  the  loss  of  citizenship  of  the  Union,  should  be  scrutinised  by  the  national 
courts by reference to the principle of proportionality in the light of EU law.101 

The  Commission  replied  that  it  had  no  power  to 
intervene  in  his  case,  explaining  that  each  EU  country  is 
free to define the conditions for acquiring nationality and 
that  it  was  for  the  national  authorities  to  decide  on  his 
application in accordance with national law. 

99 
100 
101 

Article 20(1) of the TFEU. 
ECJ, Case C-135/08, Rottman, 2.3.2010. 
The content and implications of this judgment are presented in more detail in the Report under Article 25 On progress 
towards effective EU citizenship 2007-2010, COM(2010) 602 final, available at: 
http://ec.europa.eu/justice/policies/citizenship/docs/com_2010_602_en.pdf 

EN 

50 

 
                                                 
6. 

Justice 

Most letters, questions and petitions handled by the Commission in this area concerned 

access to justice. 

In 2010, key draft EU laws have been proposed or adopted to strengthen the right to a

fair  trial  wherever  citizens  are  in  the  EU,  to  make  it  easier  for  international  couples

wishing to divorce, and to facilitate access to justice for businesses and consumers.  

Right to an effective 
remedy and to a fair 
trial 

Presumption of 
innocence and right of 
defence 

Principles of legality and 
proportionality of 
criminal offences and 
penalties 

Right not to be tried or 
punished twice in 
criminal proceedings for 
the same criminal 
offence 

EN 

51 

 
 
 
 
 
 
 
 
 
 
 
 
 
 
Right to an effective remedy  

What  does  the  right  to  an 
effective  remedy  mean  in 
practice? 

The Charter provides that when EU rules give a right to a person, he or she can 
go before a court in case this right is violated. This protection is called a right 
to  an  effective  remedy,  because  it  provides  to  individuals  a  legal  solution 
decided by a tribunal when an authority used EU law in a wrong way. The right 
to  effective  remedy  guarantees  judicial  protection  against  violations  of  any  EU  rule  which  grants 
rights to people. It plays therefore a key role for ensuring the effectiveness of all EU law. 

In  2010,  a  number  of  judgements  from  the  European  Court  referred  to  the  right  to  effective 
remedy in a variety of areas such as social policy102, telecommunication and consumer protection103, 
competition104, common foreign and security policy105 and legal aid106. 

Dissatisfaction with national procedures 

In  2010,  the  Commission  received  a  number  of 
letters 
the  general  public  expressing 
dissatisfaction  with  procedures  before  national 
authorities in areas outside EU law. 

from 

The  Commission  explained  that  the  right  to  an 
effective  remedy  only  applies  in  situations,  falling 
within EU competence. In cases, which fall outside 
EU  law,  the  national  authorities,  including  the 
courts, guarantee the right to an effective remedy 
in accordance with national rules. 

The right to an effective remedy concerning 
legal aid  

A  German  company  sued 

the  German 
government  for  not  implementing  EU  directives 
but  was  lacking  funds  to  make  the  necessary 
advance  payment  of  court  costs  and  to  hire  a 
lawyer.  DEB  applied  for  legal  aid  in  order  to 
cover  the  costs,  but  it  was  refused  because 
German  law  provided  for  a  condition  of  public 
interest. 

The  Court  of  Justice,  in  a  ruling,  stated  that 
judicial  protection 

the  principle  of  effective 
applies also to companies seeking legal aid.  

102 
103 
104 
105 
106 

ECJ, Case C-243/09, Günter Fuß v Stadt Halle, 14.10.2010. 
ECJ, Joined Cases C-317/08, C-318/08, C-319/08 and C-320/08, Alassini and others, 18.3.2010. 
ECJ, Case C-407/08 P, Knauf Gips v European Commission, 1.7.2010. 
ECJ, Case T-49/07, Sofiane Fahas v Council, 7.12.2010. 
ECJ, Case C-279/09 DEB Deutsche Energiehandels- und Beratungsgesellschaft, 22.12.2010. 

EN 

52 

 
 
 
 
 
 
                                                 
When  doing  business,  travelling  or  living  in  another  Member  State  than  their  own,  individuals  or 
companies  should  not  be  discouraged  from  exercising  their  rights  and  should  have  appropriate 
access to justice. 

citizens 
get 

How 
can 
businesses 
judgements  recognised 
other Member States? 

and 
court 
in 

Under the current EU rules, a judgment given in one Member State does not 
automatically take effect in another Member State. In order to be enforced in 
another country, a court in that country first has to validate the decision and 
declare  it  enforceable.  This  is  done  in  a  special  procedure  that  takes  place 
after  the  judgment  has  been  obtained  and  before  concrete  measures  of 

from  one  Member  State 

enforcement  can  be  taken.  This  makes  cross-
border 
litigation  more  cumbersome,  time-
consuming  and  costly  than  national  litigation. 
In  2010,  the  Commission  proposed107  to  do 
bureaucratic 
unnecessary 
away  with 
procedures,  such  as  the  intermediary  court 
proceedings  that  are  still  needed  before  a 
judgement 
is 
recognised  in  another,  so  as  to  ensure  easier 
and  more  efficient  access  to  justice.  The 
abolition  of  the  "exequatur"  will  lead  to  a 
situation where judgements issued in another 
Member State in civil and commercial matters 
will  be  treated  like  domestic  judgements.  The 
Commission  also  proposed  to  improve  access 
to  justice  before  the  courts  in  Europe  even 
when  defendants  are  situated  outside  the 
Union. 

Legal  action 
defendant located outside the EU  

in  national  courts  against  a 

A  UK  consumer  signs  a  contract  for  a  time-share 
apartment on the Turkish Riviera while on holiday. He then 
returns  home  and  decides  that  he  cannot  afford  the 
apartment and decides to end the contract.  

Under  the  EU’s  Time  Share  Directive,  consumers  can 
end contracts within  14  days.  However,  the  Turkish  seller 
refuses to reimburse the consumer. Under English law, no 
court  in  England  has  jurisdiction  to  hear  the  case.  The 
consumer’s  rights  to  be  protected  under  the  Time  Share 
Directive  are  denied  because  of  the  lack  of  jurisdiction  of 
English courts. The reformed "Brussels I" Regulation would 
give citizens and companies the same possibilities to sue in 
national  courts  when  a  defendant  is  located  outside  the 
EU.

What 
border divorces? 

about 

cross-

In  2010,  the  EU  adopted  a  Commission  regulation  that  defines  which  laws 
apply in cases of cross-border divorces108, where partners come from different 
Member  States.  These  rules  aim  at  bringing  legal  certainty  to  international 
couples wishing to divorce. The new legislation will give a choice as to which country's rules apply in 
case  of  divorce  for  couples  with  different  nationalities,  those  living  apart  in  different  countries  or 
those living together in a country other than their home country. Although this regulation does not 
directly concern access to justice, it can contribute to facilitating access to justice by improving legal 
certainty  through  defining  which  rules  apply  in  such  cases.  This  regulation  aims  to  reduce  "forum 
shopping"  and  to  protect  weaker  partners  during  divorce  disputes.  Couples  will  be  able  to  agree 
during the marriage which law would apply to their divorce. This will give them more legal certainty, 
predictability and flexibility and will help to protect spouses and their children from complicated and 
drawn-out  procedures.  International  couples  will  have  more  control  over  their  separation  and 
protect weaker spouses from being put at an unfair disadvantage in divorce proceedings. Courts will 
have  a  common  formula  for  deciding  which  country's  law  applies  when  couples  cannot  agree 
themselves. It has no effect on Member States' ability to define marriage. This regulation in limited 
situations  permits  Member  States  to  disregard  EU  rules  on  divorce  by  quoting  concerns  regarding 
public  order  (exception  of  public  order).  In  the  application  of  rules  on  divorce,  including  the 
exception of public order, any discrimination based on any ground such as sex, race, colour, ethnic or 
social origin, genetic features, language, religion or belief, political or any other opinion, membership 
of a national minority, property, birth, disability, age or sexual orientation, shall be prohibited. 

107 

108 

Proposal for a Regulation of the European Parliament and of the Council on jurisdiction and the recognition and enforcement 
of judgments in civil and commercial matters, COM/2010/748, available at: 
http://ec.europa.eu/justice/policies/civil/docs/com_2010_748_en.pdf  
Council Regulation implementing enhanced cooperation in the area of the law applicable to divorce and legal separation, OJ L 
343, 29.12.2010, p. 10-16; this regulation however implements enhanced cooperation between Belgium, Bulgaria, Germany, 
Spain, France, Italy, Latvia, Luxembourg, Hungary, Malta, Austria, Portugal, Romania and Slovenia and is therefore at present 
applicable only in those Member States, any other Member State having the possibility to join in at a later stage. 

EN 

53 

 
                                                 
How  can  access 
justice  be  put 
practice? 

to 
into 

In  order  to  put  in  practice  the  "right"  to  effective  remedy,  the  Commission  is 
developing  a  number  of  initiatives  to  facilitate  the  access  to  justice.  To  help  EU 
citizens, in 2010 the Commission introduced the European e-Justice Portal- a new 
direct  service  to  citizens,  accessible  via  the  European  e-justice  Portal.  The  Portal  contains 
information that enables EU citizens to become more aware of their rights and help them to make 
use of those rights (legal aid, mediation, translation, etc.). In 2011, the European e-Justice Portal will 
provide information on legal remedies in cases of  alleged violations of fundamental rights. The EU 
also  promotes  training  programmes  on  EU  law  for  members  of  the  judiciary  in  the  EU  (European 
Judicial Training Network109). Members of the judiciary in Member States need to be familiar with 
EU rules, so they can apply them in concrete situations and safeguard fundamental rights. 

Right to a fair trial and right of defence 

The right to a fair trial guarantees that everyone is entitled to a fair and public hearing, which must 
take  place  within  a  time  frame  by  an  independent  and  impartial  tribunal.  When  an  individual  is 
involved in criminal proceedings, one of his fundamental rights is the guarantee of an independent 
and impartial tribunal. The right to a fair trial includes the right to a fair and public hearing within a 
reasonable time. Everyone is entitled to these rights, regardless of his nationality or what language 
they speak. The Charter also guarantees respect for the rights to a defence of anyone who has been 
charged.  It  guarantees  in  particular  that  the  suspect  understands  the  criminal  proceedings  against 
him, if he or she does not speak the language of the procedure.  

How  to  reinforce  the  right 
to  a  fair  trial  and  the  right 
of defence? 

To  put  these  rights  into  practice,  the  EU  is  adopting  common  minimum 
standards  in  criminal  procedure,  taking  into  account  the  differences  among 
Member  States  in  the  area of  criminal  law.  In  2010  the  EU  adopted  rules  on 
the  right  to  interpretation  and  to  translation  in  criminal  proceedings.110  
These rules aim to improve the rights of suspects and accused persons who do 
not  understand  or  speak  the  language  of  the  proceedings.  They  provide  common  minimum 
standards  throughout  the  EU.  The  rules  grant  suspects  the  right  to  interpretation  during  criminal 
proceedings.  They  also  grant  suspects  the  right  to  be  provided  with  written  translations  of  all 
documents  which  are  essential  to  defend  themselves  and  to  safeguard  the  fairness  of  the 
liberty,  the 
proceedings.  Essential  documents 
charge/indictment  and  any  judgment.  The  Commission's  proposal  was  brought  in  parallel  to  an 

include  decisions  depriving  a  person  of  his 

109 
110 

Available at: http://www.ejtn.net/en/  
Directive 2010/64/EU of the European Parliament and of the Council of 20 October 2010 on the right to interpretation and 
translation in criminal proceedings, OJ L 280, 26.10.2010, p. 1–7. 

EN 

54 

 
 
                                                 
initiative tabled by a group of Member States. As the Commission's proposal was more ambitious, 
these elements were in the end integrated in the adopted proposal. 

Suspects  in  criminal  proceedings  must  know  what  their  rights  are  in  order  to  be  able  to  exercise 
them. For this reason, in 2010 the Commission proposed rules requiring that suspects of a criminal 
offence must be informed of their rights in a language they understand.111 Anyone arrested either 
for  a  criminal  offence  or  under  a  European  Arrest  Warrant  must  be  informed  in  writing,  in  a 
document called a Letter of Rights, of their basic rights at the time of arrest and of what they are 
suspected. The Commission's proposal provides a model in all official EU languages. This will provide 
consistency  for  people  crossing borders  and  limit  translation  costs  as  each  Member  State  may use 
the Commission model. 

The Commission is working on a third measure, on access to a lawyer, and undertook an extensive 
consultation exercise in the last part of 2010. 

111 

EN 

Proposal  for  a  Directive  on  the  right  to 
http://ec.europa.eu/justice/news/intro/doc/com_2010_392_3_en.pdf  

information 

in  criminal  proceedings,  COM(2010)  392/3,  available  at: 

55