COMMISSION STAFF WORKING DOCUMENT on the  Application of the EU Charter of Fundamental Rights in 2011
Date: 2012-04-16
Institutions: European Commission
Subjects: EU Charter of Fundamental Rights, application of EU law, area of freedom, security and justice, equal treatment, fundamental rights, right to justice

EUROPEAN COMMISSION 

Brussels, 16.4.2012  
SWD(2012) 84 final 

COMMISSION STAFF WORKING DOCUMENT 

on the  Application of the EU Charter of Fundamental Rights in 2011 

Accompanying the document 

Report from the Commission to the European Parliament, the Council, the European 
Economic and Social Committee and the Committee of the Regions  

2011 Report on the application of the EU Charter of Fundamental Rights 

{COM(2012) 169 final} 
{SWD(2012) 85 final} 

 
 
 
 
  
 
 
INTRODUCTION 

After  the  entry  into  force  of  the  EU  Charter  of  Fundamental  Rights1,  the  Commission  adopted  a 
Strategy  on  the  effective  implementation  of  the  Charter2  setting  as  an  objective  that  the  EU  is 
exemplary  as  regard  the  respect  of  fundamental  rights,  in  particular  when  it  legislates.  The 
Commission  further  committed  to  preparing  annual  reports  to  better  inform  citizens  on  the 
application  of  the  Charter  and  to  measure  progress  in  its  implementation.  This  Report  covers  the 
year 2011 and 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. In covering the full range of Charter 
provisions  on  an  annual  basis,  the  annual  reports  aim  to  track  where  progress  is  being  made,  and 
where new concerns are arising.   

The Annual Report is based on the actions taken by the EU institutions as well as on the analysis of 
letters  from  the  general  public  and  questions  and  petitions  from  the  European  Parliament.  The 
Member States are bound by the Charter when they implement EU law. However, there is not yet 
enough information on the efforts made to ensure the effective implementation of the Charter. The 
Commission  will  seek  in  its  forthcoming  Annual  Reports  on  the  Application  of  the  Charter  to 
document progress in that respect. 

Protection of Fundamental Rights in the EU 

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

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

The  Charter  applies  to  Member  States  when  they  implement  EU  law.  The  factor  connecting  an 
alleged violation of the Charter with EU law will depend on the situation in question. For example, a 
connecting  factor  exists:  when  national  legislation  transposes  an EU Directive  in  a  way  contrary  to 
fundamental  rights,  when  a  public  authority  applies  EU  law  in  a  manner  contrary  to  fundamental 
rights, or when a final decision of a national court applies or interprets EU law in a way contrary to 
fundamental rights. 

If  a  national  authority  (administration  or  court)  violates  fundamental  rights  set  out  in  the  Charter 
when  implementing  EU  law,  the  Commission  can  take  the  matter  to  the  Court  of  Justice  of  the 
European Union. The Commission is not a judicial body or a court of appeal against the decisions of 
national  or  international  courts.  Nor  does  it,  as  a  matter  of  principle,  examine  the  merits  of  an 
individual  case,  except  if  this  is  relevant  to  carry  out  its  task  of  ensuring  that  the  Member  States 
apply EU law correctly. In particular, if it detects a wider 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. 

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

1 Available at: http://eur-lex.europa.eu/LexUriServ/LexUriServ.do?uri=OJ:C:2010:083:0389:0403:en:PDF  
2 Available at: http://ec.europa.eu/justice/news/intro/doc/com_2010_573_en.pdf  

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The Commission cannot examine complaints which concern matters outside the scope of EU Law. 
This  does  not  necessarily  mean  that  there  has  not  been  a  violation  of  fundamental  rights.  If  a 
situation does not relate to EU law, it is for the Member States alone to ensure that their obligations 
regarding  fundamental  rights  are  respected.  Member  States  have  extensive  national  rules  on 
fundamental rights, which are guaranteed by national judges and constitutional courts. Accordingly, 
complaints need to be directed to the national level in the first instance.  

In  addition, all  EU  countries  have  made commitments  under  the  European  Convention  on  Human 
Rights (ECHR), independently of their obligations under EU law. Therefore, as a last resort and after 
having exhausted all legal remedies available at national level, individuals may bring an action before 
the  European  Court  of  Human  Rights  in  Strasbourg  for  a  violation  by  a  Member  State  of  a  right 
guaranteed  by  the  ECHR.  The  European  Court  of  Human  Rights  has  designed  an  admissibility 
checklist  in  order  to  help  potential  applicants  work  out  for  themselves  whether  there  may  be 
obstacles to their complaints being examined by the Court3.  

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

Among the letters from the general public on fundamental rights issues received by the Commission 
in  2011,  45%  concerned  situations  where  the  Charter  could  apply.  In  a  number  of  cases,  the 
Commission  requested  information  from  the  Member  States  concerned  or  explained  to  the 
complainant  the  applicable  EU  rules.  In  other  cases,  the  complaints  should  in  fact  have  been 
addressed  to  the  national  authorities  or  to  the  European  Court  of  Human  Rights  in  Strasbourg. 
Where  possible,  complainants  were  redirected  to  other  bodies  for  more  information  (such  as 
national data protection authorities). 

3 Available at: http://www.echr.coe.int/ECHR/EN/Header/Applicants/Apply+to+the+Court/Checklist/   

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Among  the  questions  and  petitions  from  the  European  Parliament approximately  70%  concerned 
issues within EU competence. In a number of cases, the Commission contacted the Member States 
to  obtain  clarifications  on  alleged  violations.  The  replies  given  by  the  Commission  explained  or 
clarified the relevant policies and ongoing initiatives.  

Overview of the decisions of the Court of Justice of the European Union referring to Charter 

The Court of Justice of the European Union has increasingly referred to the Charter in its decisions 
(see Annex I for an overview of all relevant rulings): the number of decisions quoting the Charter in 
its reasoning rose by more than 50% as compared to 2010, from 27 to 42.  

EN 

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National  courts  when  addressing  questions  to  the  Court  of  Justice  (preliminary  rulings)  have  also 
increasingly  referred  to  the  Charter:  in  2011,  such  references  rose  by  50%  as  compared  to  2010, 
from 18 to 27.  

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Overview of enquiries with the Europe Direct Contact Centres  

The  figures  collected  by  the  Europe  Direct  Contact  Centres  (EDCC)  confirm  that  there  is  a  high 
degree  of  interest  among  citizens  on  justice,  citizenship  and  fundamental  rights.  For  the  last  6 
months of 2011, the EDCC replied to 3107 enquiries from citizens on topics such as free movement 
of persons and judicial cooperation.  

Enquiries received by the Europe Direct Contact Centres 
 on justice, fundamental rights and citizenship July – December 2011) 

Free movement of persons

Judicial cooperation

Fundamental rights and citizenship

Consumer rights

Anti-dis crimination and fundamental social rights

Funding: fundamental rights, justice, drugs

Data protection

Disability is sues

Equality between women and men

Jus tice and other related policies

Protection of consumers' economic & legal interests

Drugs coordination

The structure of the Report 

-

200

400

600

800

1,000

1,200

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 institutions and, where relevant, the Member States have applied the 

Charter in 2011;  

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

received in 2011 focusing on fundamental rights issues; 

•  Relevant case-law of the Court of Justice of the European Union; 

•  Data gathered by the EU Agency for Fundamental Rights throughout 2011.  

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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 

(cid:131)  Member  States  wishing  to  deploy  security  scanners  must  comply  with 
minimum conditions set by the new EU rules to safeguard fundamental rights. 
Most importantly, passengers are entitled to opt out from the security scanner 
procedure  and  to  be  checked  by  alternative  screening  methods.  Passengers 
must be informed of the possibility to opt out of the scanner technology used 
and of the conditions associated with its use. 

(cid:131) 

(cid:131) 

(cid:131) 

(cid:131) 

The Commission proposed to strengthen the protection of fundamental rights 
in  the  EU  rules  on  border  control,  which  provide  common  standards  and 
procedures  on  controls  and  surveillance  at  the  external  borders  of  the 
Schengen area.  

The EU adopted new rules on preventing and combating trafficking in human 
beings  and  protecting  its  victims.  These  rules  seek  to  achieve  more  effective 
prosecution by national authorities of human traffickers across borders.  

The Court of Justice of the European Union issued a ruling on the application 
of  EU  rules on  patents  in  the  area  of  biomedicine. The  Court  considered 
that researchers cannot  declare  patents  on 
imply  the 
destruction  of any  human  cell having  the  potential  of  developing into  human 
being, including  in  the  case when  human  cells  are  created  via  therapeutic 
cloning.  

inventions  which 

The  Court  of  Justice  of  the  European  Union  clarified  the  conditions  for  the 
transfer  of  asylum  seekers  in  the  application  of  the  EU  Dublin  Regulation.  
The Court forbid the transfer of asylum seekers to Member States where there 
are  systemic  deficiencies  in  the  asylum  procedure  and  in  the  reception 
conditions of asylum seekers which would amount to a real risk of the asylum 
seeker being subject to inhuman or degrading treatment as enshrined in Article 
4 of the Charter 

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Human dignity  

Human dignity is the basis of all fundamental rights. It guarantees the protection of human persons 
from  being  treated  as  a  mere  object  by  the  State  or  by  his/her  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. 

The  European  Union  strongly  opposes  the  death  penalty  and  has  consistently  backed  its  universal 
abolition, and continues to work towards this goal. In 2011, the Commission amended4 existing EU 
rules on trade in certain goods which could be used for capital punishment or torture by imposing 
export  control  on  certain  chemicals  which  could  be  used  for  capital  punishment  (e.g.  sodium 
thiopental, and other short and intermediate acting barbiturates), by broadening the ban on trade in 
electric-shock  devices  (such  as  electric  shock  sleeves  and  cuffs)  which  have  the  same  impact  as 
electric-shock  belts    and  by  imposing  an  export  ban  on  spiked  batons.  The  Commission  has  also 
provided  guidance5  on  the  application  of  EU  rules  regarding  the  control  of  exports  to  all  third 
countries of chemicals of listed barbiturates (or medicinal products).  

Guaranteeing  the  security  of  travellers  in  the  field  of  aviation  security  includes  the  use  of  new 
technologies that can detect unsafe objects at airports, such as security scanners. Some technologies 
of  security  scanners  can  reveal  a  detailed  display  of  the  human  body,  including  possible  medical 
conditions, and could violate the right to the respect of human dignity which requires that people are 
treated as subjects and not as objects. The EU adopted new rules on the use of security scanners6 
providing  an  optional  use  at  EU  airports  of  security  scanners  that  do  not  use  X-ray  radiation  for 
screening passengers. The different preparation phases in the adoption of the legislation took into 
account the impact of different policy options on fundamental rights, in particular on human dignity, 

4  Commission  implementing  regulation  (EU)  No  1352/2011  of  20  December  2011  amending  Council  Regulation  (EC)  No  1236/2005 
concerning trade in certain goods which could be used for capital punishment, torture or other cruel, inhuman or degrading treatment or 
punishment, OJ L 338, 21.12.2011, p. 31-34. 
5 Staff Working Paper, SEC(2011)1624 
6 Commission Regulation 1141/2011 supplementing the common basic standards on civil aviation security as regards the use of security 
scanners at EU airports, OJ L 293, 11.11.2011, p. 22-23; and Commission Implementing Regulation N 1147/2011 implementing the common 
basic standards on civil aviation security as regards the use of security scanners at EU airports, OJ L 294, 12.11.2011, p. 7-11. 

EN 

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private  and  family  life,  data  protection,  the  rights  of  the  child,  freedom  of  religion  and  the 
prohibition of discrimination. Adopted EU rules reflect this preparatory work and contain safeguards 
that ensure the legislation is in compliance with the Charter. For example, passengers are entitled to 
opt out from a security scanner procedure and to be checked by alternative screening methods. In 
addition, detailed conditions are laid down to ensure that the right to the protection of personal data 
and private life is respected, for instance, the obligation that security scanners shall not store, retain, 
copy, print or retrieve images. As far as health considerations are concerned, only scanners that do 
not use ionising radiation are allowed as a method for screening persons.  

The entitlement of passengers to opt out from a security scanner procedure 

Member  States  and  airports  wishing  to  deploy  security  scanners  must  comply  with  minimum 
conditions  set  by  the  EU's  new  rules  to  safeguard  fundamental  rights.  Most  importantly, 
passengers  are  entitled  to  opt  out  from  the  security  scanner  procedure  and  to  be  checked  by 
alternative  screening  methods.  Passengers  must  be  informed  of  the  possibility  to  opt  out  of  the 
scanner technology used and of the conditions associated with its use. 

The  Court  of  Justice  of  the  European  Union  referred  to  human  dignity  in  a  case  concerning  the 
patentability  of  human  embryos  created  through  therapeutic  cloning.7  The  Court  has  pointed  out 
that relevant EU rules emphasise that patent law must be applied so as to respect the fundamental 
principles  safeguarding  the  dignity  and  integrity  of  the  person  and  established  EU  legislation 
intended to exclude any possibility of patentability where respect for human dignity could thereby 
be affected. The Court considered that researchers cannot declare patents on inventions which imply 
the destruction of any human cell having the potential of developing into human being, including in 
the  case when  human  cells  are  created  via  therapeutic  cloning.  The Court  further  specified  that 
researchers cannot declare patents on the use of human embryos for research purposes. This means 
the researcher cannot ask for a patent on a research method which requires the use of embryos. 

The  Commission  proposed  a  legal  framework  for  the  research  funding  programme  Horizon  2020. 
When  preparing  its  proposal,  the  Commission  paid  particular  attention  to  the  aspects  relating  to 
biomedical research with the use of embryonic stem cells in order to ensure the compliance of the 
funding  programme  with  the  Charter.  The  Commission  submitted  it  legislative  proposal  only  after 
making  sure  that  it  did  not  raise  concerns  from  the  perspective  of  the  principle  of  the  respect  of 
human  dignity  (Article  1  of  the  Charter)  and  the  right  to  integrity  of  the  person  (Article  3  of  the 
Charter). The proposed programme will not finance any research intended to create embryos for the 
purpose  of  embryonic  stem  cell  procurement.  The  proposed  programme  allows  the  financing  of 
embryonic stem cells research on the condition of an ethical review and checks and only in Member 
states,  where  such  research  is  allowed  by  law  and  where  the  legislation  establishes  appropriate 
mechanisms of evaluation, control and licensing. 

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  for  controls  and  surveillance  at  the  external 
borders  of  the  Schengen  area8.  These  rules  guarantee  respect  for  the  fundamental  rights  of  all 
travellers.  In  particular,  the  Schengen  Borders  Code9,  which  lays  down Member States'  obligations 
concerning  external  border  management,  provides  that  border  guards  must  fully  respect  human 
dignity,  should  act  in  a  proportionate  manner  and  should  not  discriminate  against  travellers  on 

7 ECJ, C-34/10, Brüstle v. Greenpeace, 18.10.2011. 
8 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. 
9 Regulation (EC) No 562/2006 of the European Parliament and of the Council of 15 March 2006 establishing a Community Code 
on the rules governing the movement of persons across borders (Schengen Borders Code), OJ L 105, 13.4.2006. 

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grounds  of  sex,  racial  or  ethnic  origin,  religion  or  belief,  disability,  age  or  sexual  orientation.  The 
Schengen Border Code also specifies that border guards should be properly trained professionals. In 
2011,  the  Commission  proposed  amendments10  that  further  strengthen  the  protection  of 
fundamental rights by requiring training on the protection of unaccompanied minors and victims of 
trafficking. The proposal provides third country nationals with full access to international protection 
in accordance with EU law at joint border crossing points between Member States and neighbouring 
third countries, operated through bilateral agreements.  

The EU borders agency (FRONTEX) plays a key role in coordinating the actions of Member States. In 
2011,  the  EU  amended  the  rules  governing  FRONTEX.  The  amendments  require  that  all  persons 
participating in border control activities undertake training in fundamental rights, that any incidents 
during  operations,  including  in  relation  to  fundamental  rights,  must  be  reported  to  the  national 
authorities  and  followed  up,  and  that  FRONTEX  develop  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). The tasks of FRONTEX have also been revised, and now include possible 
assistance to Member States in situations that may involve humanitarian emergencies and rescue at 
sea.  The  office  of  a  Fundamental  Rights  Officer  will  be  created  in  the  Agency  to  assist  in  matters 
having  implications  for  fundamental  rights.  A  code  of  conduct  will  set  out  the  fundamental  rights 
standards  to  be  respected  during  FRONTEX  operations,  and  a  Consultative  Forum  on  Fundamental 
Rights  will  be  created 
international  organisations  and  non-governmental 
organisations.  The  amendments  provide  that  the  Member  State  hosting  a  FRONTEX-coordinated 
operation  must  provide  for  appropriate  disciplinary  or  other  measures  in  a  case  of  fundamental 
rights violations during the course of a joint operation. FRONTEX operations must be suspended or 
terminated if such violations are of a serious nature or are likely to persist. 

involving  relevant 

The Commission proposed setting up a European border surveillance system (EUROSUR).11 The aim 
of  EUROSUR  is  to  reinforce  control  of  Schengen  external  borders,  particularly  at  the  southern 
maritime and eastern land borders, in order to bring down the number of irregular migrants entering 
the EU undetected, reduce the loss of lives of migrants at sea and prevent cross-border crime. It aims 
to  do  so  by  allowing  national  authorities  in  charge  of  border  surveillance  (border  guards,  coast 
guards,  police,  customs  and  navies)  to  share  and  exchange  operational  information  and  cooperate 
with each other, with Frontex and with neighbouring third countries. The proposal guarantees that 
whenever  data  sharing  includes  personal  data,  the  data  protection  rules  apply  and  must  be  fully 
respected. The proposal also explicitly prohibits any exchange of data with a third country who could 
use this information to identify persons or groups of persons who are under a serious risk of being 
subjected to torture, inhuman and degrading treatment or punishment or any other violation of their 
fundamental rights. 

The  Court  of  Justice  of  the  European  Union  clarified  the  conditions  for  the  transfer  of  asylum 
seekers  in  application  of  the  EU  Dublin  Regulation.  In  the  ruling  N.S.  and  others12  the  Court  of 
Justice  considered  that Member  States,  including  the  national  courts,  must not  transfer  an  asylum 
seeker to the Member State indicated as responsible where it is such that they cannot be unaware of 
systemic  deficiencies  in  the  asylum  procedure  and  in  the  reception  conditions  of  asylum  seekers 
amounting to substantial grounds for believing that the asylum seeker would face a real risk of being 
subjected to inhuman or degrading treatment. When a transfer to the Member State responsible is 
impossible,  the  Member  State  where  the  applicant  is  present  must  examine  whether  another 
Member  State  can  be  identified  as  responsible  for  the  examination  of  the  asylum  application  or  if 
necessary, examine the application itself.  

10 Proposal for a Regulation amending Regulation (EC) No 562/2006 of the European Parliament and of the Council establishing a 
Community Code on the rules governing the movement of persons across borders (Schengen Borders Code) and the Convention 
implementing the Schengen Agreement, 10.03.2011, COM 2011(118) final, available at:  
http://eur-lex.europa.eu/LexUriServ/LexUriServ.do?uri=COM:2011:0118:FIN:en:PDF    
11 Proposal for a Regulation establishing the European Border Surveillance System (EUROSUR), 12.12.2011, COM(2011) 873 final, available 
at: http://eur-lex.europa.eu/LexUriServ/LexUriServ.do?uri=COM:2011:0873:FIN:EN:PDF  
12  ECJ  joined  cases  C-411/10  and  C-493/10,  N.S.  v  Secretary  of  State  for  the  Home  Department  and  M.E.  e.a.  v  Refugee  Applications 
Commissioner, 21.12.2011. 

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This  case  clarifies  certain  issues  within  the  framework  of  EU  legislation  that  were  raised  by  the 
European  Court  of  Human  Rights  in  the  case  M.S.S.  v  Greece  and  Belgium13.  The  applicant,  an 
Afghan national, entered the European Union through Greece. The application for asylum lodged by 
the applicant in Belgium was not examined and the applicant was transferred to Greece pursuant to 
the Dublin Regulation. The Court found violations of Article 3 of the ECHR (prohibition of inhuman 
and  degrading  treatments)  and  Article  13  of  the  ECHR  (effective  remedy)  both  by  Belgium  and 
Greece,  due  to  the  structural  failures  of  the  asylum  system  in  Greece  (reception  conditions, 
detention conditions, access to the asylum procedure) and the lack of access to effective remedy. 

Fundamental  rights  situation  of  persons  irregularly  entering  the  EU's  external  border 
between Greece and Turkey 

The  EU  Agency  for  Fundamental  Rights  reported  on  the  fundamental  rights  situation  of 
persons  irregularly  entering  the  EU's  external  border  between  Greece  and  Turkey,  based 
on  findings  of  a  field  study  carried  out  January  201114.  The  Agency's  report  stressed  that 
conditions  in  detention  centres  raise  serious  concerns  for  the  enjoyment  of  fundamental 
rights,  including basic  problems  of over-crowding,  and inadequate  heating  and  sanitation 
facilities.  The  Agency  further  identified  factors  contributing  to  the  current  crisis,  in 
particular,  the  practice  of  systematically  detaining  all  those  found  crossing  the  border 
irregularly  (including  children),  a  lack  of  coordination  in  the  Evros  region,  and  the 
inadequate response to the humanitarian crisis, which would warrant the declaration of the 
state of emergency.  

The  findings  of  the  Agency  confirmed  the  serious  concerns  expressed  by  the  Commission  on 
conditions in which irregular migrants and asylum seekers are being detained in Greece, in particular 
in  the  Evros  region,  and  the  humanitarian  situation  in  these  places  of  detention.  The  Commission 
reiterated that third-country nationals held in detention for whatever reason should always be treated 
in a humane and dignified manner and in full respect of fundamental rights. The Commission already 
took  a  number  of  actions  in  that  respect  and  intervened,  by  launching  an  infringement  procedure 
against Greece in 2010, on the inappropriate reception conditions for asylum seekers detained in the 
Evros region.  

The Commission is engaged in substantial efforts towards assisting Greece, together with the Member 
States,  FRONTEX,  EASO,  UNHCR  and  other  partners.  This  support  combines  significant  financial  and 
practical assistance for the reform of the national asylum system, border and return management, a 
more efficient use of the relevant EU funds for migration management and better cooperation with 
neighbouring countries, in particular Turkey.  

Prohibition of trafficking in human beings 

Trafficking  in  human  beings  is  a  form  of  slavery  that  violates  human  dignity.  The  Charter  explicitly 
prohibits  trafficking  in  human  beings.  Preventing  and  combating  trafficking  in  human  beings  is  a 
priority for the Union and the Member States. 

The  EU  Directive  on  prevention  and  combating  trafficking  in  human  beings  and  protecting  its 
victims  entered  into  force  in  201115.  The  Directive  takes  a  human  rights  and  gender-specific 
approach.    It  seeks  to  achieve  more  effective  prosecution  by  national  authorities  of  human 
traffickers  across  borders.  It  establishes  uniform  definitions  and  common  standards  on  sanctions, 
liability  and  jurisdiction.  The  definition  of  trafficking  for  the  first  time  explicitly  includes  forms  of 
exploitation  like  begging,  criminal  activities  or  removal  of  organs.  The  Member  States  must  put  in 
place mechanisms for the early identification of victims, as well as for the early provision of support 

13 ECtHR, MSS v Belgium and Greece, application no. 30696/09, 21.01.2011. 
14  EU  Agency  for  Fundamental  Rights  Report,  "Detention  of  third-country  nationals  in  return  procedures",  November  2011,  available  at: 
http://fra.europa.eu/fraWebsite/research/publications/publications_per_year/pub_detention_en.htm  
15  Directive  2011/36/EU  on  preventing  and  combating  trafficking  in  human  beings  and  protecting  its  victims,  and  replacing  Council 
Framework Decision 2002/629/JHA, OJ L 101, 15.04.2011, p. 1-11.  

EN 

11 

 
 
                                                 
to  victims.  Victims  would  also  receive  free  legal  counselling  and  legal  representation.  Special 
protection measures are envisaged for child victims, e.g. to protect them from the negative effects of 
court procedures by defining how to conduct interviews with child victims, or by setting out the rules 
for extended support to unaccompanied children (see also the section on Rights of the child and the 
section on newly proposed rules on victims rights). When adopting laws on this issue, Member States 
must take into account the rights of defence of those accused in criminal procedures.  

To  further  streamline  EU  actions  in  the  field  of  trafficking  in  human  beings,  the  Commission 
appointed  an  EU  Anti-trafficking  Coordinator.  The  Commission  also  launched  a  new  EU  anti-
trafficking  website16,  which  includes  information  on  EU  and  national  policy  and  legislation, 
Commission funded projects and publications. 

16 Available at: http://ec.europa.eu/anti-trafficking  

EN 

12 

 
                                                 
2. Freedoms 

Right to liberty and 
security 

Respect for private and 
family life 

Protection of personal 
data 

(cid:131) 

The  Commission  prepared  a  reform  of  the  EU  legal  framework  on  data 
protection. Individuals continue to be concerned about keeping control of their 
personal data, not only in social networks but in many different areas of their 
daily  life.  Negotiations  started  with  the  United  States  on  an  agreement  to 
protect personal data exchanged in the context of fighting crime and terrorism. 
The Commission applied the requirement to protect personal across a range of 
policies in the preparation of new legislative proposals.  

Right to marry and right 
to found a family 

(cid:131) 

The  Common  European  Sales  Law  proposed  by  the  Commission  would 
facilitate  the  exercise  of  the  freedom  to  conduct  a  business  by  removing 
obstacles resulting from divergences between national contract laws.  

(cid:131)  Citizens  and  Members  of  the  European  Parliament  voiced  concern  over  the 
respect of freedom of expression and media freedom and pluralism. The High 
Level Group on Media Freedom and Pluralism created by the Commission will 
draw recommendations for the respect, protection, support and promotion of 
pluralism and freedom of the media in Europe.   

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 

13 

 
 
 
 
Respect for private and family life  

The Charter guarantees the right of everyone to the respect of their 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 as well as for third-country nationals who are member of the family of an EU citizen.  

The  Commission  launched  a  public  debate  on  the  right  to  family  reunification  of  third-country 
nationals living in the EU17. The outcome of this consultation will shape whether any concrete policy 
follow up is necessary (e.g. modification of the rules, interpretative guidelines or status quo).   

The  Commission  proposed  new  regulations  on  matrimonial  property  regimes  and  on  property 
regimes  for  registered  partnerships18.  The  regulations  take  into  account  the  right  to  respect  for 
private and family life and the right to marry and to found a family according to national laws . There 
is no differentiation introduced in the legislation on the basis of sexual orientation.  

German Youth Welfare Office (Jugendamt) 

In November  2011,  the  European  Parliament's Petitions  Committee  carried  out  its  second  fact-
finding visit  to  Germany to  enquire  about  the  functioning  of  the  German  Youth Welfare  Office 
(Jugendamt).  According  to  the  complainants  and  petitioners  the  Welfare  Office's  decisions  and 
interventions  allegedly  discriminate  against  non-German  parents,  for  example, by  obliging  non-
German parents to communicate with their children only in German during visits supervised by 
the Welfare Office.  The findings of the fact-finding mission have not yet been made public. 

17 Public consultation by the Commission on the right to family reunification, available at:  
http://ec.europa.eu/home-affairs/news/consulting_public/consulting_0023_en.htm  
18 Proposal for a Council Regulation on jurisdiction, applicable law and the recognition and enforcement of decisions regarding the property 
consequences of registered partnerships, COM(2011) 127/2, available at:  
http://ec.europa.eu/justice/policies/civil/docs/com_2011_127_en.pdf  

EN 

14 

 
 
 
 
 
                                                 
Data protection  

The  Charter  guarantees  the  protection  of  personal  information.  Everyone  has  the  right  to  the 
protection of their personal data. Such data must be processed fairly for specified purposes and on a 
legitimate basis laid down by law. In the European Union, compliance with these rules is subject to 
control by independent authorities in Member States.  

The Commission took concrete steps to update EU rules on data protection in 2012, based on the 
numerous replies it received during the consultation process carried out in 2011. 

The Court of Justice of the European Union declared in its landmark Scarlet ruling19 that obliging an 
internet service provider to install a filtering system such as the one at stake in order to prevent an 
infringement of intellectual property rights would infringe the freedom of the provider to conduct its 
business, as well as its customers' rights to the protection of their personal data and to receive or 
impart  information.  The    contested  filtering  system  would  not  respect  the  requirement  that  a  fair 
balance be struck between the right to intellectual property, on the one hand, and the freedom to 
conduct  business,  the  right  to  protection  of  personal  data  and  the  freedom  to  receive  or  impart 
information,  on  the  other.  In  particular,  concerning  the  protection  of  personal  data  such  filtering 
system  may  infringe  that  right  as  it  would  involve  a  systematic  analysis  of  all  content  and  the 
collection  and  identification  of  users’  IP  addresses  from  which  unlawful  content  on  the  network  is 
sent;  those  addresses  are  protected  personal  data  because  they  allow  those  users  to  be  precisely 
identified.  This  ruling  underlines  the  importance  of  taking  into  account  all  the  fundamental  rights 
involved by a given measure and to ensure its compliance with all these rights. 

The  Court  of  Justice  of  the  European  Union  provided  guidance  on  the  interpretation  of  the 
provision  in  EU  law  on  the  processing  of  data20.  The  Court  confirmed  that  the  provision  on  the 
criteria  which  make  data  processing  legitimate  has  direct  effect  before  national  courts.  The  Court 
further ruled that this provision provides an exhaustive list of legitimate legal basis for a processing 
activity upon which Member States cannot impose additional requirements.  

Several  data  protection  supervisory  authorities  in  Member  States  concluded  the  investigations 
launched in 2010 into social networking sites. Many investigations had been triggered by complaints 
launched  after  the  change  of  the  privacy  policies  by  social  network  providers.  With  these  changes 
the  social  networking  sites  took  the  liberty  of  making  broader  use  of  the  personal  data  it  had 
collected  under  more  restrictive  policies.  The  social  networking  sites  had  not  given  users  full 
information  about  the  change,  and  had  not  obtained  their  consent.  Furthermore,  new  features 
introduced in the meantime on one particular site caused new complaints and further investigations. 
This concerns a new function allowing the automatic identification of persons in photos uploaded to 
the  site  (facial  recognition)  and  the  use  of  cookies  and  web  scripts  to  collect  data  about  user 
behaviour,  e.g.  with  the  help  of  the  so-called  'Like-Button',  without  the  user's  knowledge  and 
control. 

The Irish Data Protection Commissioner, who is the competent supervisory authority to monitor the 
application  of  EU  data  protection  rules,  received  a  complaint  against  a  social  network  from  an 
Austrian  non-governmental  organisation  which  had  prepared  22  elaborate  charges  on  privacy 
violations. The investigation also included on-site audits at the premises of the social network site in 
Ireland, the headquarters of the company managing the site. The Irish Data Protection Commissioner 
published its audit report on 22 December 2011. The report contains a number of observations and 
corresponding recommendations for improvements of the privacy policies and functions of the social 
network site in question. They concern for instance issues such as privacy related information which 
is  not  complete,  not  clear  and  difficult  to  understand,  excessive  retention  of  data  and  the  lack  of 
effective  possibilities  for  the  users  to  delete  their  data  from  the  site.  The  social  networking  site 
agreed  to  implement  some  of  the  recommendations.    The  Irish  Data  Protection  Commissioner  will 
review progress in July 2012. 

19 ECJ, Case C-70/10, Scarlet v SABAM, 24.11.2011. 
20  ECJ,  Joined  Cases  C-468/10  and  469/10,  Asociación  Nacional  de  Establecimientos  Financieros  de  Crédito  (ASNEF)  et  Federación  de 
Comercio Electrónico y Marketing Directo (FECEMD) v. Administración del Estado, 24.11.2011.  

EN 

15 

 
                                                 
Geo-location  service  providers  were  also  subject  to  investigations.  A  notable  example  is  the 
agreement  reached  by  the  Dutch  data  protection  authority  with  a  provider,  by  which  a  technical 
solution  was  established  which  allows  citizens  and  organisations  that  operate  wireless  LAN  access 
points  to  ensure  that  these  access  points  will  not  be  used  for  location  service.  The  solution  is 
expected to be scrutinized by other service providers and privacy authorities' world wide. 

The  Commission  continues  to  monitor  the  situation  in  the  Member  States,  where  doubts  exist 
about the compliance of national rules with EU rules on data protection.  In 2011, the Commission 
dealt  with  thirteen  infringement  cases  for  alleged  violation  of  EU  laws  on  data  protection.  Four 
infringement cases concerned Finland and were closed after Finland notified the Commission that it 
had repealed the offending legislative provision which had been restricting the scope of its national 
data protection legislation. One infringement case was closed against the United Kingdom, further to 
the clarifications made on the compliance of it national legislation with EU rules on data protection.  

The  European  Commission  evaluated  the  implementation  and  application  of  EU  rules  on  Data 
Retention and outlined its impact on economic operators and consumers as well as its implications 
on the protection of fundamental rights and freedoms vis-à-vis the protection of personal data. The 
report  concluded  that,  on  the  one  hand,  data  retention  is  a  valuable  tool  for  law  enforcement 
purposes.  On  the  other  hand,  the  report  identified  areas  that  need  to  be  improved  following  the 
uneven  transposition  of  the  rules  by  Member  States.  In  particular,  the  Commission  should  ensure 
more harmonisation in specific areas, such as: the measures ensuring the respect for fundamental 
rights  and  freedoms,  including  the  data  retention  periods,  the  purpose  limitations,  as  well  as  the 
necessary safeguards to access retained data and protect personal data. 

The European Commission opened negotiations with the United States on an agreement to protect 
personal  data  exchanged  in  the  context  of  fighting  crime  and  terrorism,  on  28  March  2011.  The 
European Commission aims to ensure a high level of protection of personal data exchanged between 
the  EU  and  the  US.  The  Council  gave  its  green  light  for  the  conclusion  of  the  new  EU-Australia 
Passenger Name Record agreement which will replace the agreement in place since July 2008.  The 
Council  also  gave  its  green  light  for  the  signature  of  the  new  EU-US  Passenger  Name  Record 
agreement  which  will  replace  the  existing  one  -  provisionally  applied  since  2007  -  improving  data 
protection whilst providing an efficient tool to  fight serious transnational crime and terrorism. The 
European  Parliament  has  been  asked  to  give  its  consent  to  the  US  agreement,  which  is  necessary 
before the Council can adopt its decision on the conclusion of the agreement.  

The European Commission presented a proposal for an EU Passenger Name Record Directive21 to 
fight  serious  crime  and  terrorism,  in  February.  The  proposal  obliges  air  carriers  to  provide  EU 
Member  States  with  data  on  passengers  entering  or  departing  from  the  EU.  In  this  proposal,  the 
Commission  lays  down  common  rules  for  EU  Member  States  to  set  up  national  PNR  systems.  The 
proposal aims to create a coherent EU wide system which ensures close cooperation between law 
enforcement authorities within the EU. It contains rules on the protection of personal data involving 
a number of safeguards for the protection of personal data. 

Upon  request  of  the  European  Parliament,  which  is  discussing  the  Commission's  proposal  and 
preparing a report on it, the EU Agency for Fundamental Rights presented an expert opinion on the 
proposal22.  

The  Commission  adopted  a  Communication  on  a  European  terrorist  finance  tracking  system23 
("European TFTS") presenting the different options on the possible introduction of such a system  as 
a follow-up to the agreement signed between the EU and the US on the processing and transfer of 
financial messaging data for the purpose of the Terrorist Financing Tracking Programme on 28 June 

21 Proposal for a Directive of the European Parliament and of the Council on the use of Passenger Name Record data for the prevention, 
detection, investigation and prosecution of terrorist offences and serious crime, COM(2011) 32 final,  2.2.2011. Available at:  
http://ec.europa.eu/home-affairs/news/intro/docs/com_2011_32_en.pdf  
22  Opinion  of  the  EU  Agency  for  Fundamental  Rights  on  the  Proposal  for  a  Directive  on  the  use  of  Passenger  Name  Record  (PNR)  data  
Available at: http://fra.europa.eu/fraWebsite/research/opinions/op-passenger-name-record_en.htm.   
23 Communication from the Commission on a European terrorist finance tracking system, COM(2011) 429 final. 

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16 

 
                                                 
2010.  The  Commission  specified  in  its  analysis  that  the  European  TFTS  should  have  two  main 
objectives. First, the system should contribute to limiting the amount of personal data transferred to 
the US. Second, it should contribute significantly to efforts to cut off terrorists' access to funding and 
materials and follow their transactions. The Commission further indicated that the key issues which 
need  to  be  decided  upon  before  such  a  system  can  be  established.  This  includes  the  need  to  fully 
respect  the  fundamental  rights  of  individuals,  in  particular  data  protection  (Article  8  of  the  EU 
Charter) and judicial redress (Article 47 of the Charter), data security issues, the operational scope of 
the  system,  as  well  as  costs.  To  that  end,  the  Commission  has  indicated  that  it  will  follow  the 
guidance  provided  in  the  strategy  for  the effective  implementation  of  the  Charter  of  Fundamental 
rights for the evaluation of the different options considered.  

The Commission applied the requirement to protect personal data across a range of policies. In this 
regard,  the  Commission  proposal  for  a  regulation  on  insider  dealing  and  market  manipulation 
(market  abuse)24  makes  it  clear  that  any  processing  of  personal  data  carried  out  by  financial 
supervisory authorities will have to comply with EU rules on data protection. Similar provisions are 
also  included  in  the  proposals  for  a  regulation  on  statutory  audit  of  public-interest  entities,  and 
markets in financial instruments.  

In  the  area  of  recognition  of  professional  qualifications  in  medical  and  health  professions25,  the 
Commission proposed to introduce an alert mechanism on professionals who have been prohibited 
by national authorities or courts from pursuing their profession, even temporarily, on the territory of 
that  Member  State.  The  proposal  requires  specific  conditions  to  be  fulfilled  for  issuing  alerts, 
including the obligation to inform the individual concerned at the time of issuing the alert so as to 
enable  him  to  make  an  appeal  to  national  courts  against  the  decision  or  apply  for  rectification  of 
such  decisions  and  to  have  access  to  remedies  in  respect  of  any  damage  caused  by  false  alerts  to 
other Member States. 

The  Commission  adopted  a  communication  on  smart  grids  which  sets  policy  directions  to  drive 
forward  the  deployment  of  future  European  electricity  networks26.  Smart  meters,  which  are  an 
inherent part of a smart grid, and which record the consumption of electric energy and communicate 
that information to the consumer, to the grid operator and energy supplier will be installed in each 
household  following  a  positive  cost  benefit  analysis  in  all  EU  Member  States.  The  communication 
recognizes that consumer privacy and the protection of personal data need to be addressed to gain 
the consumer's trust and make the rolling out of smart grids a success for all stakeholders. 

In the area of consumer protection enforcement cooperation, the Commission adopted guidelines27 
for  the  implementation  of  data  protection  rules  in  the  Consumer  Protection  Cooperation  System 
(CPCS)28 in order to ensure that these rules are respected when personal data is processed through 
the CPCS.  

The  Visa  Information  System  (VIS)  started  operations  in  Schengen  States'  consulates  in  North 
Africa on 11 October 2011. With this system, Schengen State's visa authorities will be able to register 
data  on  short-stay  visa  applicants,  including  their  digital  photograph  and  fingerprints,  and  on  the 
decisions taken on the applications or subsequently. The duly authorised staff of the border, asylum, 

24  Proposal  for  a  Regulation  of  the  European  Parliament  and  of  the  Council  on  insider  dealing  and  market  manipulation  (market  abuse) 
criminal sanctions for insider dealing and market abuse, COM (2011) 654 final, available at:  
http://ec.europa.eu/internal_market/securities/docs/abuse/COM_2011_651_en.pdf 
25 Proposal for a Directive of the European Parliament and of the Council amending Directive 2005/36/EC on the recognition of professional 
qualifications  and  Regulation  on  administrative  cooperation  through  the  Internal  Market  Information  System,  COM(2011)  883  final, 
available at:  
http://ec.europa.eu/internal_market/qualifications/docs/policy_developments/modernising/COM2011_883_en.pdf    
26 Commission Communication: Smart Grids: from innovation to deployment, COM (2011) 202 final, available at:  
http://eur-lex.europa.eu/LexUriServ/LexUriServ.do?uri=CELEX:52011DC0202:EN:HTML:NOT  
27 Commission Recommendation  2011/136/EU on guidelines for the implementation of data protection rules in the Consumer Protection 
Cooperation System (CPCS), OJ L 57, 2.3.2011, p.44 – 53.. 
28 The aim of the CPCS is to enable public enforcement authorities - which are part of the EU-wide network established by Regulation (EC) 
No 2006/2004 of the European Parliament and of the Council of 27 October 2004 on cooperation between national authorities responsible 
for  the  enforcement  of  consumer  protection  laws  (the  Regulation  on  consumer  protection  cooperation)  –  to  exchange  information  on 
possible breaches of consumer protection laws within a safe and secure environment. 

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17 

 
                                                 
and immigration authorities will also have access to the VIS for the performance of their task.  At a 
later stage, Europol and Schengen States' authorities responsible for the prevention, detection and 
investigation  of  terrorist  or  other  serious  criminal  offences  will  be  able  to  request  access  to  data 
registered  in  the  VIS  under  restrictive  conditions.   Data  processing  in  the  VIS  is  subject  to  specific 
data protection rules. Any person has the right to receive the data related to him/her registered in 
the  system,  to  request  the  correction  of  inaccurate  data,  and  to  request  the  deletion  of  data 
recorded unlawfully as well as to lodge a complaint with the national data protection authorities in 
order to ensure the respect of his/ her rights. The European Data Protection Supervisor and Member 
States data protection authorities are competent to supervise the compliance with data protection 
rules applicable.  

Freedom of expression 

The Charter guarantees the right to freedom of expression for everyone. This right includes freedom 
to  hold  opinions  and  to  receive  and  impart  information  and  ideas  without  interference  by  public 
authority and regardless of frontiers.  

Members  of  the  European  Parliament  addressed  the  issue  of  media  freedom,  pluralism  and 
independent governance in several questions to the Commission.  The Commission replied that media 
pluralism is an essential condition for preserving the right to information and freedom of expression 
that underpins the democratic process. In this respect, the Commission created a High Level Group on 
Media  Freedom  and  Pluralism.  The  objective  of  this  independent  group,  chaired  by  the  former 
is  to  draw  up  a  public  report  with 
President  of  Latvia  (Professor  Vaira  Vīķe-Freiberga), 
recommendations for the respect, protection, support and promotion of pluralism and freedom of the 
media in Europe. The Commission has also initiated a Centre for Media Pluralism and Media Freedom 
within  the  Robert  Schuman School  of  the European  University  Institute  to  reflect  and  advise  on  the 
underlying issues.  

Revision of the Hungarian Media Law  

Following  the  Commission's  intervention,  using  the  full  extent  of  its  legal  powers,  the 
Hungarian government agreed to amend its national media law so that it complies with the 
concerns  raised  by  the  Commission  on  four  points  that  concern  EU  law,  namely:  the 
obligation  of  balanced  coverage,  ii)  country  of  origin  principle,  iii)  registration 
requirements and iv) offensive content. In taking this action the Commission acted in line 
with  the  Treaty  by  focusing  its  intervention  on  areas  subject  to  EU  law.  National  courts 
and,  if  necessary,  the  European  Court  of  Human  Rights,  could  review  issues  of  national 
competence.  

A  further  examination  of  the  Law  by  the  Hungarian  Constitutional  Court  introduced 
further amendments as regards the provisions which unconstitutionally limited freedom of 
expression  of  the  written  press.  This  concerned inter alia limitations  to  the  protection  of 
sources,  restrictions  on  content  for  the  written  press  and  the  provisions  on  the  Media 
Ombudsman. The Commission urged the Hungarian authorities to respect this court ruling, 
and to implement it with the same speed and efficiency they applied to the Commission’s 
assessment on the EU law aspects of this media law29. 

The  Commission  received  parliamentary  questions  and  letters  from  citizens  in  relation  to  an  Italian 
draft law on the use of wiretapping, which allegedly contained sanctions in the event of publication in 
the  media  of  information  obtained  through  taps.  There  is  no  EU  legislation  harmonising  the  use  of 
wiretapping  in  the  framework  of  investigations  and  criminal  proceedings.  The  data  protection 
directive  provides  for  a  derogation  for  the  processing  of  personal  data  carried  out  solely  for 
journalistic  purposes  only  if  they  are  necessary  to  reconcile  the  right  to  privacy  with  the  rules 

29  Vice-President  Kroes  has  expressed  her  concerns  both  in  letters  to  the  Hungarian  authorities  and  in  a  bilateral  meeting  with  the 
responsible  Minister  of  Justice.  Ruling  of  the  Hungarian  Constitutional  Court,  19  December  2011,  1746/B/2010,  available  at: 
www.mkab.hu/admin/data/file/1146_1746_10.pdf  

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18 

 
                                                 
governing  freedom  of  expression30.  The  compatibility  of  the  draft  law  with  these  provisions  would 
have to be ensured, if the draft law would come before the Italian parliament for adoption.  

In its landmark Scarlet ruling (see section on data protection), the Court of Justice of the European 
Union  found  that  obliging  an  internet  service  provider  (ISP)  to  install  the  contested  filtering  system 
could  potentially  undermine  freedom  of  information  since  that  system  might  not  distinguish 
adequately between unlawful content and lawful content, with the result that its introduction could 
lead  to  the  blocking  of  lawful  communications.  The  reply  to  the  question  whether  a  transmission  is 
lawful  also  depends  on  the  application  of  statutory  exceptions  to  copyright  which  vary  from  one 
Member  State  to  another.  Moreover,  in  some  Member  States  certain  works  fall  within  the  public 
domain or can be posted online free of charge by the authors concerned. 

Freedom to conduct a business 

The  Charter  recognises  the  freedom  to  conduct  a  business  in  accordance  with  Union  law  and 
national laws and practices. The freedom to conduct a business was taken into account in different 
areas  of  EU  policy,  including:  new  legislation  on  market  in  financial  instruments,  insurance 
mediation, credit ratings Agency31 and on recording equipment for road transport (tachographs)32. 

The freedom to conduct a business was also a key consideration in the preparation of the Common 
European  Sales  Law33  proposal  aimed  at  removing  obstacles  resulting  from  divergences  between 
national  contract  laws.  This  Commission  proposal  offers  a  single  set  of  contract  law  rules  which 
businesses  can  choose  to  apply  to  any  of  their  cross-borders  transactions  throughout  the  EU.  For 
example, the Common European Sales Law could be used when companies feel that differences in 
contract laws, such as remedies for faulty products, create considerable costs and are an important 
barrier to their sales to another country.  

The negotiations in the European Parliament and in the Council on the proposed amendments to EU 
rules  on  jurisdiction  and  the  recognition  and  enforcement  of  judgments  in  civil  and  commercial 
matters continue34. If these amendments are adopted judgements issued in another Member State 
in civil and commercial matters will be treated like domestic judgements. This would in effect make 
cross-border litigation much less cumbersome, time-consuming and costly then it is today. 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 ("exequatur") 
that  takes  place  after  the  judgment  has  been  obtained  and  before  concrete  measures  of 
enforcement can be taken. 

Negotiations  in  the  European  Parliament  and  in  the  Council  on  the  amendments  to  EU  rules  for 
protecting information systems against attacks continue. The Council adopted a general approach 
on  the  proposal  in  2011  and  the  European  Parliament  is  expected  to  vote  on  it  in  early  2012. The 

30 Article 9 of Directive 95/46/EC of the European Parliament and of the Council of 24 October 1996 on the protection of individuals with 
regard to the processing of personal data and on the free movement of such data.  
31  Proposal  for  a  Regulation  of  the  European  Parliament  and  of  the  Council  amending  Regulation  (EC)  n°1060/2009  on  credit  rating 
agencies, COM(2011) 747 final, available at:  
http://ec.europa.eu/internal_market/securities/docs/agencies/COM_2011_747_en.pdf  
Proposal  for  a  Directive  of  the  European  Parliament  and  of  the  Council  amending  Directive  2009/65/EC  on  the  coordination  of  laws, 
regulations and administrative provisions relating to undertakings of collective investment in transferable securities (UCITS) and Directive 
2011/61/EU  on  Alternative  Investment  Funds  Managers  in  respect  of  the  excessive  reliance  on  credit  ratings,  COM(2011)  746  final, 
available at: http://ec.europa.eu/internal_market/securities/docs/agencies/COM_2011_746_en.pdf  
32 Proposal for a Regulation of the European Parliament and of the Council amending Council Regulation (EEC) No 3821/85 on recording 
equipment in road transport and amending Regulation (EC) n° 561/2006 of the European Parliament and the Council, 2011/0196 (COD), 
available at: 
http://eur-lex.europa.eu/LexUriServ/LexUriServ.do?uri=COM:2011:0451:FIN:EN:PDF  
33  Proposal  for  a  Regulation  of  the  European  Parliament  and  of  the  Council  on  a  Common  European  Sales  Law,  COM(2011)  635  final, 
available at: 
http://eur-lex.europa.eu/LexUriServ/LexUriServ.do?uri=COM:2011:0635:FIN:EN:PDF  
34  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  

EN 

19 

 
                                                 
amendments propose making the use of tools for committing offences and the illegal interception of 
information systems a crime and improving European criminal justice and police cooperation. They 
also contain measures on the 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 
tools for cyber attacks available was worded carefully in order not to criminalise lawful behaviour, 
such as the use of these tools by ICT security companies to test the effectiveness of their products or 
by  organisations  and  competent  authorities  to  test  and  ensure  the  security  of  networks  and 
information  systems  under  their  responsibility.  Criminalisation  of  such  acts  would  violate  the 
freedom to conduct a business, enshrined in the Charter.  

In its landmark Scarlet ruling (see section on data protection), the Court of Justice of the European 
Union found that obliging an internet service provider (ISP) to install a filtering system such as the 
one at stake would result in a serious infringement of the freedom of the ISP concerned to conduct 
its  business  since  it  would  require  that  ISP  to  install  a  complicated,  costly,  permanent  computer 
system at its own expense. The Court noted in particular the characteristics of the contested filtering 
system involved monitoring all the electronic communications made through the network of the ISP 
concerned  in  the  interests  of  those  right  holders,  it  had  no  limitation  in  time,  was  directed  at  all 
future infringements and was intended to protect not only existing works, but also future works that 
had not yet been created at the time when the system was introduced.  

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. The Charter also guarantees the protection of intellectual 
property.  

Cross-border debt recovery in civil and commercial matters 

The  Commission  proposed  legislation  to  facilitate  cross-border  debt  recovery  in  civil  and 
commercial  matters35.  The  proposal  will  establish  a  new  uniform  European  procedure 
which will enable a creditor to prevent the withdrawal or transfer of funds standing to the 
credit of his debtor in any bank account located in the EU. The order will be of a protective 
nature i.e. it will only block the debtor's account. The procedure ensures both the right of a 
creditor to secure effective enforcement of its claim and the protection of the defendant's 
rights, particularly the right to redress, privacy and to data protection.  

The  Commission  adopted  a  comprehensive  strategy  to  review  the  legal  framework  in  which 
Intellectual  Property  Rights  operate36.  The  Commission  announced  that  such  review  will  require 
assessing  the  impact,  not  only  on  the  right  to  property,  but  also  on  the  rights  to  private  life, 
protection of personal data, freedom of expression and information and to an effective remedy and 
it underlined that it will ensure that its proposal complies with all the fundamental rights involved.  

In  its  landmark  Scarlet  ruling  (see  section  on  data  protection)  relating  to  the  injunction  for  an 
internet  service  provider  to  install  a  filtering  system,  the  Court  of  Justice  of  the  European  Union 
declared that the protection of the right to intellectual property is enshrined in Article 17(2) of the 
Charter but there is, however, nothing in the wording of that provision or in the Court’s case-law to 
suggest  that  that  right  is  inviolable  and  must  for  that  reason  be  absolutely  protected.  The  Court 
added that in the context of measures adopted to protect copyright holders, national authorities and 

35 Proposal for a Regulation of the European Parliament and of the Council Creating a European Account Preservation Order to facilitate 
cross-border debt recovery in civil and commercial matters, COM(2011) 445 final, available at: 
http://ec.europa.eu/justice/civil/files/comm-2011-445_en.pdf  
36  Communication  from  the  Commission:  A  single  market  for  intellectual  property  rights  boosting  creativity  and  innovation  to  provide 
economic growth, high quality jobs and first class products and services in Europe, COM(2011) 287 final, available at: 
 http://ec.europa.eu/internal_market/copyright/docs/ipr_strategy/COM_2011_287_en.pdf  

EN 

20 

 
                                                 
courts  must  strike  a  fair  balance  between  the  protection  of  copyright  and  the  protection  of  the 
fundamental rights of individuals who are affected by such measures.  

The  European  Commission  presented  a  proposal  for  a  unitary  patent  protection.  This  proposal, 
which was introduced through the special voluntary procedure (so-called "enhanced cooperation") 
would  ensure  that  holders  of  European  patents  can  apply  for  one  single  patent  protection  at  the 
European Patent Office (EPO) for the entire territory of the 25 participating Member States.  

The  Commission  has  been  in  contact  with  the  Spanish  authorities  in  view  of  the  number  of 
complaints  received  from  non-Spanish  citizens  on  the  Spanish  coastal  law.  This  legislation  aims  to 
protect the coast from abusive constructions. It applies to private projects which run the risk of being 
demolished  as  they  are  located  in  areas  regulated  by  the  coastal  law.  It  resulted  from  the 
Commission's  assessment  that  the  enforcement  of  the  Spanish  coastal  law  affects  both  Spanish 
nationals and nationals from other Member States.  

The European Parliament continued to pay attention to the application of the Spanish coastal law. In 
particular the Petition's Committee dealt with a number of petitions filed by affected proprietors. In 
addition, a seminar on property rights in the EU was organized in the European Parliament37.  

The Spanish coastal law does not provide for a financial compensation for the property loss resulting 
from  the  demarcation  of  the  maritime-terrestrial  public  domain.  It  provides  instead  for  a  special 
form  of  compensation  consisting  of  the  granting  of  an  administrative  concession.  The  Commission 
has no power to address the adequacy of this compensation mechanism as a sufficient connection 
with EU law has not been identified. The question of whether this special form of compensation is in 
line with the case law of the European Court of Human Rights should be examined by national courts 
and, after having exhausted domestic legal remedies, by the Strasbourg Court itself.   

The  provision  of  appropriate  information  to  all  interested  parties  throughout  the  chain  of  parties 
involved (cadastre, notaries, real estate services, etc.) is crucial, in particular for EU citizens having 
exercised the right to free movement across the EU and having transferred funds to acquire property 
potentially affected by the coastal law. The interconnection of land registers across the EU, such as 
through the European Land Information Service (EULIS), can contribute to improving the situation in 
that  respect.  The  Commission  will  intensify  its  efforts  in  the  Council  working  party  on  e-Law  (e-
Justice)  so  that  the  European  e-Justice  portal  provides  access  to  land  information  stored  in  land 
registers of the different Member States of the EU. 

37 "EU Property Rights and Wrongs", Seminar organized by ALDE MEPs Diana Wallis and Ramón Tremosa I Bacells, 14 June 2011. 

EN 

21 

 
 
                                                 
Right to asylum  

The right to asylum is guaranteed by the Charter.  

New rules were adopted on 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. The new provisions of the Qualification directive need to be transposed into national law 
within  two  years38.  The  amendments  set  standards  for  the  identification  of  people  in  need  of 
international protection in the EU either as refugees or as beneficiaries of subsidiary protection. The 
text  also  ensures  a  minimum  level  of  benefits  and  rights  for  both  categories  of  beneficiaries  of 
international protection throughout the EU. Member states that wish to do so can provide for more 
favourable rules for beneficiaries of international protection. 

Negotiations continued in the European Parliament and the Council to amend some of the existing 
rules  of  the  Common  European  Asylum  System,  with  the  aim  of  ensuring  higher  standards  of 
protection  and  a  more  uniform  treatment  of  asylum  seekers  in  Member  States.  The  Commission 
presented  modified  proposals  on  reception  conditions  for  asylum  seekers39  as  well  as  on  asylum 
procedures40. The proposals aim to reduce room for administrative error in asylum procedures, thus 
ensuring  a  better  respect  for  the  principle  of  non-refoulement.  If  adopted,  the  new  rules  will 
contribute to enhancing gender equality and promoting the best interests of the child principle in the 
asylum  procedures  and,  in  addition,  to  reinforcing  the principle  of non-discrimination.  The  right  to 
liberty will also be enhanced in particular by underlining that a person shall not be detained for the 
sole  reason  that  he/she  has  registered  an  application  for  international  protection;  similarly,  it  is 
foreseen that detention should only be allowed in exceptional cases and only if it is in line with the 
principles  of  necessity  and  proportionality  with  regard  both  to  the  manner  and  to  the  purpose  of 
such detention. Access to an effective remedy is also ensured. 

The European Asylum Support Office (EASO) became fully operational. Its legal basis foresees that 
the EASO must respect fundamental rights and observe the principles recognised by the EU Charter. 
In particular, EASO's missions must be carried out in accordance with the right to asylum. The first 
EASO asylum support teams were deployed in Greece in May 2011. The support teams will provide 
expertise relating to interpreting services, information on countries of origin and knowledge of the 
handling and management of asylum cases. The aim is to support the establishment of a functioning 
asylum  system 
in  the 
implementation of EU asylum legislation. 

in  Greece  and  to  ensure  full  compliance  with  fundamental  rights 

Protection in the event of removal, expulsion or extradition  

The Charter prohibits the removal, expulsion or extradition to a State where there is a serious risk 
that  a  person  would  be  subjected  to  the  death  penalty,  torture,  or  other  inhuman  or  degrading 
treatment or punishment.  

The  Commission  published  a  large  scale  evaluation  of  the  negotiation  and  conclusion  of 
readmission agreements by the Union41. These are treaties which establish obligations, criteria and 
procedures  for  third  countries  to  readmit  their  own  nationals,  found  to  reside  irregularly  in  a 
Member  State,  as  well  as  stateless  persons  and  nationals  of  other  third  countries,  who  have 

38 Directive on standards for the qualification of third-country nationals or stateless persons as beneficiaries of international protection, for 
a  uniform  status  for  refugees  or  for  persons  eligible  for  subsidiary  protection,  and  for  the  content  of  the  protection  granted,  PE-CONS 
50/11, available at: http://register.consilium.europa.eu/pdf/en/11/pe00/pe00050.en11.pdf  
39  Amended  proposal  for  a  Directive  of  the  European  Parliament  and  of  the  Council  laying  down  standards  for  the  reception  of  asylum 
seekers (Recast), COM(2011) 320 final, available at: 
http://eurlex.europa.eu/Notice.do?val=574273:cs&lang=en&list=577916:cs,574273:cs,&pos=2&page=1&nbl=2&pgs=10&hwords=&checkt
exte=checkbox&visu=#texte 
40 Amended proposal for a Directive of the European Parliament and of the Council on common procedures for granting and withdrawing 
international protection status (Recast), COM(2011) 319 final, available at:  
http://eurlex.europa.eu/Notice.do?val=574274:cs&lang=en&list=574274:cs,&pos=1&page=1&nbl=1&pgs=10&hwords=&checktexte=check
box&visu=#texte  
41 Communication from the Commission: Evaluation of EU Readmission Agreements, COM(2011) 76 final, available at:  
http://ec.europa.eu/home-affairs/news/intro/docs/COMM_PDF_COM_2011_0076_F_EN_COMMUNICATION.pdf  

EN 

22 

 
                                                 
transited  through  their  territory  on  the  way  to  the  European  Union.  A  considerable  number  of 
recommendations  came  out  of  the  Commission's  evaluation,  including  with  regard  to  the  further 
strengthening of fundamental rights protection and the international protection of refugees during 
readmission  procedures.    Amongst  other  measures,  the  Commission  argued  the  necessity  of 
introducing provisions that commit to respecting fundamental rights, especially in consideration of 
third countries which are not party to the relevant international conventions. In case of persistent 
human  rights  violations  in  a  third  country  in  general,  the  Commission  would  be  in  favour  of  a 
possibility of suspending the agreement. Also, the Commission announced its intention of launching 
a pilot project, aimed at monitoring the wellbeing of persons after they have been readmitted to a 
third country, with a view to establishing a so called "post-return monitoring mechanism". 

The  Court  of  Justice  of  the  European  Union  delivered  two  rulings  on  the  compatibility  of 
criminalising irregular stays under national law with the EU rules on return of irregular migrants42. 
The Court found that these rules preclude national law from imposing a prison term on an irregularly 
staying third-country national who does not comply with an order to leave the national territory.  In 
a further case, the Court found that EU rules preclude national legislation imposing a prison sentence 
on  an  irregularly  staying  third-country  national  during  the  return  procedure.  However,  the  Court 
specified that such prison sentences could be applied to third-country nationals to whom the return 
procedure has been applied and staying irregularly with no justified grounds for non-return. 

The EU Agency for Fundamental Rights issued a report on the detention of third-country nationals 
in  return  procedures43.  This  report  examined  law  and  practice  on  the  deprivation  of  liberty  of 
irregular  migrants  pending  their  removal  against  the  applicable  international  human  rights  law 
framework in all EU Member States.  

42 ECJ, Case C-61/11, El Dridi,  28.4.2011 & Case C-329/11, Achughbabian, 6.12.2011.  
43  EU  Agency  for  Fundamental  Rights  Report,  "Detention  of  third-country  nationals  in  return  procedures",  November  2011,  available  at: 
http://fra.europa.eu/fraWebsite/research/publications/publications_per_year/pub_detention_en.htm  

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23 

 
                                                 
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 

(cid:131)  Major  progress  has  been achieved  on  the development of  a  common EU  approach  in 
tackling  the  exclusion  of  Roma.  Member States  supported  the  Commission's  proposal 
for an EU Framework for national Roma integration strategies up to 2020. Four priority 
fields of integration have been identified: education, employment, health and housing.  

(cid:131) 

(cid:131) 

The  Commission  adopted  an  EU  Agenda  on  the  Rights  of  the  Child,  which  sets  out 
priorities  and  key  actions  to  make  these  rights  effective  in  practice.  New  EU  rules  on 
combating the sexual abuse and sexual exploitation of children and child abuse material 
have been adopted that will make it easier to fight crimes against children.  

The EU is bound by the UN Convention on the Rights of Persons with Disabilities since 
22 January 2011. This implies that the rights enshrined therein need to be implemented 
and respected by the EU in its legislative actions as well as in its policy-making, to the 
extent of its competence.  

(cid:131)  Citizens,  members  of  the  European  Parliament  and  civil  society  representatives 
expressed  concern  about  various  forms  and  manifestations  of  xenophobia.  Racism, 
xenophobia  and  related  intolerance  are  contrary  to  EU  principles  of  human  dignity, 
equality and respect for fundamental rights, including the rights of persons belonging to 
minorities.   

EN 

24 

 
 
 
 
 
 
 
Non-discrimination 

The Charter prohibits any discrimination based on any grounds such as sex, race, colour, ethnic or 
social origin, genetic features, language, religion or belief, political or any other opinion, membership 
of a national minority, property, birth, disability, age or sexual orientation. The Charter also prohibits 
discrimination on grounds of nationality, within the scope of application of the Treaties and without 
prejudice  to  any  of  their  specific  provisions.  Discrimination  based  on  racial  or  ethnic  origin  is  a 
violation  of  the  principle  of  equal  treatment  and  is  prohibited  in  the  workplace  and  outside  the 
workplace.  In  the  area  of  employment  and  occupation,  EU  legislation  prohibits  discrimination  on 
grounds of religion or belief, disability, age or sexual orientation.  

Discussions  in  the  Council  have  continued  on  the  Commission's  proposal  for  new  rules  on  Equal 
Treatment44.  The  discussions  in  the  Council  focussed  on  provisions  on  the  duty  to  provide 
reasonable accommodation for people with disabilities45 and the issue of age. In accordance with the 
EU Treaty, unanimity is required in the Council to adopt the new rules on Equal Treatment. While 
many Member States generally support the draft Directive, a few other Member States continue to 
voice more fundamental objections.  

The Court of Justice of the European Union declared invalid as from 21 December 2012 a 
derogation  contained  in  EU  gender  equality  legislation46  that  enables  insurers  under 
certain conditions to differentiate between men and women in individuals' premiums and 
benefits47.  The  derogation  was  found  incompatible  with  the  objective  of  that  piece  of 
legislation  in  the  insurance  field  which  concerns  unisex  pricing,  and  therefore  with 
Articles  21  and  23  of  the  Charter.  On  22  December  2011,  the  Commission  issued 
guidelines48 aimed at facilitating the implementation of the ruling at national level. 

The EU Agency for Fundamental Rights reported on the exclusion and discrimination of migrants, 
minorities  in  employment49.  The  Agency  reported  that  the  total  number  of  complaints  of 
discrimination  has  increased  as  a  direct  consequence  of  the  implementation  of  the  Equality 
Directives  in  the  EU  Member  States.  However,  according  to  the  Agency's  findings  there  are  still 
barriers for victims that need to be overcome.  

In another report, the EU Agency for Fundamental Rights examined the legal protection of persons 
with mental health problems under non-discrimination law50. According to the report's findings almost 
all  EU  Member  States  provide  for  the  protection  of  persons  with  mental  health  problems  in 
non-discrimination legislation. In most cases persons with mental health problems also benefit from 
reasonable  accommodation  measures,  or  other  protection  measures,  in  the  employment  context. 

44  Proposal  for  a  Council  Directive  on  implementing  the  principle  of  equal  treatment  between  persons  irrespective  of  religion  or  belief, 
disability, age or sexual orientation, COM(2008) 426 final, 2.7.2008, available at: 
http://eur-lex.europa.eu/LexUriServ/LexUriServ.do?uri=CELEX:52008PC0426:EN:NOT  
45 Reasonable accommodation means ad-hoc measures to accommodate a disabled person's individual needs (as opposed to accessibility 
which needs to be provided in an anticipatory manner). 
46 Article  5(2) of Council Directive  2004/113/EC  of 13  December  2004 implementing the  principle of equal  treatment between men and 
women in the access to and supply of goods and services, OJ L 373 of 21.12.2004. 
47 ECJ, Case C-236/09, Test-Achats, 30.4.2011 
48 Communication from the Commission: Guidelines on the application of Council Directive 2004/113/EC to insurance, in the light of the 
judgment  of  the  Court  of  Justice  of  the  European  Union  in  Case  C-236/09  (Test-Achats),  COM(2011)  9497  final,  available  at: 
http://ec.europa.eu/justice/gender-equality/files/com_2011_9497_en.pdf   
49  EU  Agency  for  Fundamental  Rights  Report  –  "Migrants,  minorities  and  employment  -  Exclusion  and  discrimination  in  the  27  Member 
States of the European Union (Update 2003-2008)", July 2011, available at: 
http://fra.europa.eu/fraWebsite/research/publications/publications_per_year/2011/pub_migrants-minorities-employment_en.htm  
50  EU  Agency  for  Fundamental  Rights  Report  –  "The  legal  protection  of  persons  with  mental  health  problems  under  non-discrimination 
law", October 2011, available at:  
http://fra.europa.eu/fraWebsite/research/publications/publications_per_year/2011/pub-legal-protection-persons-mental-health-
problems_en.htm  

EN 

25 

 
 
                                                 
The  report  concludes  by  presenting  examples  where  legislation  extends  the  duty  to  provide 
reasonable accommodation to other areas. 

European Agenda for the Integration of Third-Country Nationals 

Strong guarantees for the fundamental rights of migrants as well as the need for a positive attitude 
to diversity and equal treatment are promoted in the "European Agenda for the Integration of Third-
Country  Nationals",  which  the  Commission  presented  on  20  July  2011.51  Efforts  to  fight  against 
discrimination and to give migrants instruments to become acquainted with the fundamental values 
of the EU and its Member States need to be strengthened. 

Common EU framework for tackling the exclusion of Roma 

The EU made a major step forward in promoting the social and economic integration of Roma with 
the Commission's communication on the "EU framework for national Roma integration strategies up 
to 202052". This EU Framework calls upon Member States to prepare or revise their national Roma 
integration strategies in the light of the EU goals defined in the framework, and to present them to 
the  Commission  by  the  end  of  December  2011.  The  EU  Framework  was  also  endorsed  by  the 
European Council53 and welcomed by the European Parliament.  

Commitment to apply the prohibition of discrimination on the ground of sexual orientation 
in practice  

Homophobia is an unacceptable violation of human dignity that is incompatible with the founding 
values  of  the  EU54.  The  Commission  is  using  all  the  powers  at  its  disposal  to  fight  against  such 
phenomena.  In  particular,  the  Commission  followed-up  petitions  and  parliamentary  questions  on 
discriminatory  practices  on  grounds  of  sexual  orientation,  when  they  concerned  matters  falling 

51 Communication from the Commission: European Agenda for the Integration of Third-Country Nationals, COM(2011) 455 final, available 
at: http://ec.europa.eu/home-affairs/news/intro/docs/110720/1_EN_ACT_part1_v10.pdf  
52  Communication  from  the  Commission:  An  EU  Framework  for  National  Roma  Integration  Strategies  up  to  2020,  COM(2011)  173  final, 
available at: http://ec.europa.eu/justice/policies/discrimination/docs/com_2011_173_en.pdf  
53 European Council Conclusions, 24 June 2011, http://www.consilium.europa.eu/uedocs/cms_data/docs/pressdata/en/ec/123075.pdf.  
54  Statement  of  Vice-President  Viviane  Reding  on  the  International  Day  Against  Homophobia  and  Transphobia  (IDAHO),  available  at: 
http://europa.eu/rapid/pressReleasesAction.do?reference=MEMO/11/303&format=HTML&aged=0&language=EN&guiLanguage=en  

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26 

 
 
                                                 
within EU competence. One case concerned the refusal of Polish authorities to issue certificates on 
civil status to citizens who wish to marry or conclude a registered partnership with a person of the 
same sex in a Member State where this is possible.  

The Commission intervened with the Polish authorities on the basis that this practice is incompatible 
with  the  respect  of  private  and  family  life  (Art.  7  of  the  Charter),  the  prohibition  of  non-
discrimination on the basis of sexual orientation (Art. 21 of the Charter) and EU rules guaranteeing 
free  movement  and  residence.  Further  to  the  Commission's  intervention,  the  Polish  authorities 
informed  that  steps  would  be  undertaken  to  abolish  the  practice  of  asking  the  sex  of  the  future 
spouse or partner.   

Medical test to assess asylum applications based on allegations of persecution on grounds of 
sexual orientation  

A  report  from  the  EU  Agency  for  Fundamental  Rights  revealed  the  use  by  the  Czech 
authorities  of a  specific medical  test  in  order  to  assess  asylum  applications  based  on 
allegations of persecution on grounds of sexual orientation in the country of origin55.  

The Commission intervened against the practice of “phallometric testing56” on the basis of 
its incompatibility with EU instruments regarding the grant of international protection and 
notably  the  Charter,  in  particular  Articles  4  and  7,  concerning  the  prohibition  of  torture 
and  inhuman  or  degrading  treatment  and  respect  for  private  and  family  life.  The  test 
constitutes a strong interference with the person’s private sphere and dignity, in particular 
for asylum seekers who have been persecuted due to their sexual orientation.  

Further  to  the  Commission's  intervention,  the  Czech  authorities  confirmed  that  the 
contested practice would no longer be used in the assessment of asylum applications.  

New  EU  rules  on  asylum  qualification  (see  Protection  in  the  event  of  removal,  expulsion  or 
extradition) strengthen the reasons of protection when granting the refugee status to Lesbian, Gay, 
Bi-sexual and Transgender (LGBT) persons and introduce an explicit reference to gender identity as a 
protected ground for the first time. 

The  Court  of  Justice  of the European  Union  confirmed in  a  ruling  on equal  treatment  for  married 
couples and registered partners that a registered partner in a same sex German life partnership was 
entitled  to  receive  a  supplementary  retirement  pension  under  an  occupational  pension  scheme  in 
the  same  way  a  married  partner  is.  The  Court  stated  that  this  applied  if  the  life  partner  is  in  a 
situation that is legally and factually comparable to that of a married person as regards pensions57. 

The Commission asked the EU Agency for Fundamental Rights to conduct a specific survey on hate 
crimes and discrimination against LGBT persons in all Member States and Croatia. The survey will 
complement existing studies published by the Agency58 and ask in particular LGBT persons a series of 
questions  about  whether  they  have  experienced  discrimination,  violence,  verbal  abuse  or  hate 
speech on the grounds of their sexual orientation or gender identity. It will also ask participants to 
identify the context in which such incidents took place, and their nature.   

In  addition,  the  Strategy  on  equality  between  women  and  men  2010-2015  foresees  a  study  on 
specific issues pertaining to sex discrimination in relation to gender identity. The work for launching 

55 EU Agency for Fundamental Rights Report, "Homophobia, transphobia and discrimination on grounds of sexual orientation and gender 
identity 2010 Update", November 2010, available at:  
http://fra.europa.eu/fraWebsite/research/publications/publications_per_year/pub-lgbt-2010-update_en.htm   
56 The practice of 'phallometric testing' consists of verifying the physical reaction to heterosexual pornographic material of gay men who 
have filed a claim for asylum on the basis of homosexual orientation.  
57 ECJ, Case C-147/08, Jürgen Römer v. City of Hamburg, 10.5.2011.  
58 EU Agency for Fundamental Rights Report, "Homophobia, transphobia and discrimination on grounds of sexual orientation and gender 
identity in the EU Member States", November 2011, available at:  
http://fra.europa.eu/fraWebsite/research/publications/publications_per_year/pub-lgbt-2010-update_en.htm  

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27 

 
                                                 
this study has been completed. When the results of this study are available, the Commission will look 
at the appropriate follow-up.  

How are the rights of persons belonging to minorities safeguarded in the EU? 

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.  The 
Charter  explicitly  prohibits  discrimination  on  the  basis  of  membership  of  a  national  minority. 
However, Member States maintain general powers to take decisions about minorities and the use of 
languages on their respective territories.  

In  2011,  the  Commission  received  several  parliamentary  questions  and  letters  concerning  the 
amendments to the Lithuanian Law on Education, alleging that they considerably reduce the scope 
of teaching in national minority languages in primary and secondary schools in Lithuania. The Polish 
pupils  should  be  the  most  affected  by  these  legislative  changes.  The  Commission  explained  that 
there is no Union law on the regime governing the use of regional or minority languages or the rules 
on  languages  of  instruction  in  schools  and  these  matters  remain  the  sole  responsibility  of  the 
Member States which must ensure the protection of rights of minorities living in their territory.   

A  number  of  EU  legislation  and  programmes  contributed  to  improving  the  situation  of  persons 
belonging  to  minorities.  These  instruments  address  certain  difficulties  which  are  likely  to  affect 
them.  In  particular,  in  application  of  the  powers  that  it  has  under  the  Treaties,  the  EU  has  put  in 
place  a  legal  framework  to  fight  discrimination  and  hate  speech  against  the  persons  belonging  to 
minorities. 

In 2011, a report of the EU Agency for Fundamental Rights examined in a report59 what the Treaty 
of Lisbon means for the protection of minorities and the policies the EU has recently adopted in this 
field. The report further provides evidence of the persistent phenomenon of discrimination found in 
many areas of life, including employment, housing, healthcare and education. 

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

The  Commission  pursued  its  efforts  to  ensure  the  conformity  of  national  laws  with  EU  legislation 
against  racism  and  xenophobia.  These  rules  have  to  be  introduced  by  Member  States  into  their 
penal legislation in order to allow citizens to benefit from them, and courts to apply them. By the 
end of the year, twenty-two Member States had communicated to the Commission the national laws 
intended  to  penalise  racist  and  xenophobic  hate  speech  and  to  provide  for  an  aggravating 
circumstance for crimes having a racist or xenophobic motivation.  

The Commission received an important number of letters and parliamentary questions concerning 
various forms and manifestations of racism and xenophobia, targeted against different groups or 
individuals  belonging  to  these  groups,  in  particular  against  Roma.  Racist  and  xenophobic  attitudes 
expressed by opinion leaders were of particular concern as they contribute to a social climate that 
condones  racism  and  xenophobia  and  may  therefore  propagate  more  serious  forms  of  racist 
conduct,  such  as  racist  violence.  Reluctance  to  react  to  any  incidents  of  racism  or  xenophobia 
contributes to understating the seriousness of these phenomena.  

The  Fifth  Annual  Seminar  between  the  European  Commission  and  the  State  of  Israel  on  the  Fight 
against Racism, Xenophobia and anti-Semitism enabled effective sharing of experiences, practices 
and methodologies relating to racist data and trends; access to justice and effective redress against 
racist  discrimination;  fight  against  racist  hate  speech;  and  the  prevention  of  racism  through 
education, training and remembrance activities.   

59 EU Agency for Fundamental Rights Report, "Respect for and protection of persons belonging to minorities 2008-2010", September 2011, 
available at:   
http://fra.europa.eu/fraWebsite/research/publications/publications_per_year/2011/pub-respect-protection-minorities_en.htm ,  

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28 

 
                                                 
Data  collected  by  the  EU  Agency  for  Fundamental  Rights60  shows  that  few  Member  States  have 
official data and statistics on anti-Semitic incidents. Even where data exist, they are not comparable, 
since  they  are  collected  using  different  definitions  and  methodologies.  Furthermore,  in  many  EU 
Member States Jewish organisations or other civil society organisations do not collect data on anti-
Semitic incidents in a systematic way, as there is no complaints mechanism in place to receive and 
investigate allegations. Where such data exists, usually as lists of cases, they are collected ad hoc by 
civil  society  organisations  or  are  based  on  media  reports  with  varying  degrees  of  validity  and 
reliability. 

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.  

The Charter further provides that the 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 both parents in case of a divorce, the right to express their 
views freely and for their views to be taken into 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.  

The EU Agenda for the Rights of the Child61 adopted by the Commission aims to put in practice the 
rights of the child enshrined in the Charter and the UN Convention on the Rights of the Child through 
a  comprehensive  programme  of  actions  for  the  years  2011-2014.  The  EU  Agenda  identified  11 
concrete actions which will contribute to the effectiveness of the rights of the child. This aim is an 
integral  part  of  the  Charter Strategy  and,  for  this  reason  the  impact  of EU  legislative  initiatives  on 
these rights is thoroughly assessed. 

The  public  consultation  on  the  right  of  family  reunification,  launched  by  the  Commission  in 
November 2011 tries to explore how the best interests of the child can be facilitated and ensured in 
practice62. 

To raise awareness among children about their rights and facilitate their participation in matters that 
concern them, a new website for children and teenagers specifically dedicated to children's rights 
was  launched  in  all  EU  languages.  It  contains  child-friendly  texts,  games  and  quizzes  informing 
children  about  their  rights63.  The  Commission  is  also  preparing  a  strategy  for  a  Better  Internet  for 
Children, to empower and protect them, so that they can fully enjoy the Internet and benefit from it.  

New  rules  on  combating  the  sexual  abuse  and  sexual  exploitation  of  children  and  child  abuse 
material64  adopted  by  the  EU  will  make  it  easier  to  fight  crimes  against  children  by  acting  on 
different  fronts.  A  wide  range  of  situations  of  sexual  abuse  and  exploitation  will  be  criminalised, 
covering  new  phenomena  helped  by  the  Internet,  such  as  child  grooming,  webcam  abuse  or  web 
viewing of child abuse material. More detailed provisions on levels of penalties will ensure greater 

60  EU  Agency  for  Fundamental  Rights  Report,  "Antisemitism  -  Overview  of  the  situation  in  the  European  Union  2001-2010",  June  2011, 
available at:  http://fra.europa.eu/fraWebsite/research/publications/publications_per_year/2011/pub-antisemitism-update-2011_en.htm  
61 Commission Communication: An EU Agenda for the Rights of the Child, COM(2011) 60 final, available at: 
http://eur-lex.europa.eu/LexUriServ/LexUriServ.do?uri=CELEX:52011DC0060:en:NOT 
62  Commission  Green  paper  on  the  right  to  family  reunification  of  third-country  nationals  living  in  the  European  Union  (Directive 
2003/86/EC), COM(2011) 735 final, available at:  
http://eur-lex.europa.eu/LexUriServ/LexUriServ.do?uri=COM:2011:0735:FIN:EN:PDF  
63 Available at: http://ec.europa.eu/0-18  
64 Directive on combating the sexual abuse  and sexual exploitation of children and  child pornography, and replacing Council Framework 
Decision 2004/68/JHA, available at: http://register.consilium.europa.eu/pdf/en/11/pe00/pe00051.en11.pdf  

EN 

29 

 
                                                 
consistency with the severity of the offence and among Member State laws. It will also be possible to 
prosecute offences after child victims have reached the age of majority; confidentiality rules will not 
prevent  professionals  working  with  children  from  reporting  offences;  and  special  police  units  to 
identify child victims (especially  of child abuse material) will be set up and provided with effective 
investigative tools.  The new legal framework includes also measures to combat "child sex tourism" 
and child abuse material on the Internet. Member States will be obliged to ensure prompt removal 
of child abuse material pages and take action to have them removed if hosted outside the European 
Union.  In  addition,  Member  States  may  block  access  to  such  web  pages  following  transparent 
procedures  and  providing  safeguards.  The  new  rules  reinforce  the  protection  of  child  victims, 
provide for preventive measures with regard to convicted offenders and facilitate background checks 
prior to employment involving contact with children.    

In  the  area  of  justice,  newly  proposed  rules  on  victim  rights65  guarantee  that  children's  special 
needs  for  protection  and  support  are  met  throughout  the  proceedings  to  ensure  their  active 
participation and avoid of additional trauma. Children should be presumed to be vulnerable victims 
and authorities would have to determine which special measures should be provided to them. These 
measures  could  encompass  adaptation  of  the  interview  rooms  to  children's  needs,  use  of 
communication  technologies  and  video  to  avoid  contact  between  the  child  and  the  offender. 
Children  will  also  be  entitled  to  receive  information  in  a  way  they  can  understand.  As  regards 
procedural  rights,  a  new  set  of  rules  foresees  that  in  case  a  child  is  arrested,  the  child’s  legal 
representative  or  another  adult,  depending  on  the  interest  of  the  child,  is  informed  about  it.  As 
regards  the  rights  of  juvenile  prisoners,  the  Commission  carried  out  a  public  consultation  to  find 
more information on detention issues, including on the situation of children in pre-trial detention.  

Case law on custody rights and the return of abducted children 

The  Court  of  Justice  of  the  European  Union  confirmed  that  a  child  should  have  an 
opportunity to be heard in custody proceedings in a case concerning the custody rights and 
the return of an abducted child66. This is however not an absolute obligation for the court, 
as the court must first determine whether it is in line with the best interests of the child in 
each  individual  case.  The  Court  of  Justice  further  confirmed  that  it  is  up  to  the  national 
courts of the Member State where the child used to live to assess whether the child had an 
opportunity  to  be  heard.  Courts  of  other  Member  States  must  respect  the  results  of  this 
assessment when deciding on the return of the child.  

The  European  Court  of  Human  Rights  clarified  that  when  issuing  an  order  to  return  an 
abducted  child,  the  courts  must  duly  assess  whether  the  return  of  the  child  would  not 
cause psychological trauma to the child67. Finally, the courts must consider whether there 
are any alternative solutions to ensure contact between the child and the parent requesting 
the  return.  The  European  Court  of  Human  Rights  confirmed  the  obligation  of  the  state 
authorities to facilitate the reunion of the parent with the child in one other case68.  

The Commission has also continued to promote cross-border cooperation between Member States 
in cases of criminal abductions of children through child alert systems. They are designed to provide 
a quick response in cases of a criminal abduction of a child by disseminating relevant information to 
the  public  within  hours  of  the  disappearance  of  a  child.  The  Commission's  objective  is  that  such  a 
system be put in place in all EU Member States. At the end of 2011, such systems were operational 
in 10 EU Member States. There are some differences in the functioning of the systems, but in most 

65  Proposal  for  a  Directive  of  the  European  Parliament  and  the  Council  establishing  minimum  standards  on  the  rights,  support  and 
protection of victims of crime, COM(2011) 275 final, available at:  
http://ec.europa.eu/justice/policies/criminal/victims/docs/com_2011_275_en.pdf  
66 ECJ, Case C-491/10, Aguirre Zarraga, 22.12.2010. 
67 ECtHR, Šneersone and Kampanella v. Italy, Application no. 14737/09) 
68 ECtHR, Shaw v. Hungary, Application no. 6457/09 

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30 

 
                                                 
cases  they  are  run  through  NGO  co-operation  with  public  authorities  and  law  enforcement.69  The 
Commission's objective is that such a system is put in place in all EU Member States.  

The Commission also continued discussions with Member States to ensure that the 116 000 hotline 
for  missing  children  becomes  operational  in  all  Member  States.  This  hotline,  which  offers  help, 
support and a potential lifeline for missing children and their parents, is currently operational in only 
17 Member States.  

The Hague Convention on the Civil Aspects of International Child Abduction entered into force in 
Russia on 1st October. In addition, Japan took steps in view of its accession to the same Convention. 
These  developments  contribute  to  the  protection  of  children  in  the  EU  in  case  of  abductions.  The 
Commission  submitted  proposals  to  ensure  consistency  in  the  application  of  the  Convention 
between the EU and the third States which have acceded to it in recent years70.  

The Commission prepared a report to better assess what has already been done to protect children 
in  the  digital  world  and  identify  what  further  steps  might  be  necessary71.  The  report  found  that 
Member States and industry are increasingly making efforts to respond to these challenges, but that 
the measures taken are not sufficient and not applied in a consistent way throughout the EU.  

The  EU  Youth  Strategy72  points  out  how  the  prospects  of  young  people  are  determined  by  the 
opportunities which they were - or were not - offered in their childhood. The Council expressed its 
support for encouraging new and effective forms of participation of all young people in democratic 
life in Europe73   

The Commission took a number of measures to promote a high quality of social protection provided 
to  children  in  child  care  institutions.  This  included  amongst  other  things  the  promotion  of  mutual 
knowledge  between  the  Member  States  on  this  issue  as  well  as  funding  several  initiatives  to 
promote  the  de-institutionalisation  process.  This  does  not,  however,  replace  the  responsibility  of 
Member States, which have sole responsibility for the administration of child-care institutions.  

69  These  Member  States  are:  Belgium,  the  Czech  Republic,  France,  Greece,  Ireland,  Italy,  the  Netherlands,  Portugal,  Romania,  and  the 
United Kingdom. In addition, there is a type of child alert system in place in Germany, but it is operated solely by an NGO. 
70 The Commission submitted a Proposal on the accession of the Russian Federation. See: COM(2011) 911 final, available at:  
http://eur-lex.europa.eu/Result.do?T1=V5&T2=2011&T3=911&RechType=RECH_naturel&Submit=Search. In addition, the Commission also 
prepared proposal on the accession of other countries which joined the Hague Convention in recent years, see:  COM(2011)916( Morocco) 
;  COM(2011)  912  final  (Albania);  COM(2011)  915  final  (Singapore);  COM(2011)  917  final  (Armenia)  COM(2011)  909  final  (Seychelles); 
COM(2011) 908 final (Andorra); COM(2011) 904 final. 
71 Report from the Commission: Application of the Council Recommendation of 24 September 1998 concerning the protection of minors 
and human dignity and of the Recommendation of the European Parliament and of the Council of 20 December 2006 on the protection of 
minors and human dignity and on the right of reply in relation to the competitiveness of the European audiovisual and online information 
services industry - protecting children in the digital world, COM(2011) 556 final, available at:  
http://eur-lex.europa.eu/LexUriServ/LexUriServ.do?uri=CELEX:52011DC0556:EN:NOT  
72 Communication from the Commission: An EU Strategy for Youth – Investing and Empowering: A renewed open method of coordination 
to address youth challenges and opportunities, COM(2011) 200 final, available at: 
http://eur-lex.europa.eu/LexUriServ/LexUriServ.do?uri=COM:2009:0200:FIN:EN:PDF 
73  Resolution  of  the  Council  and  of  the  Representatives  of  the  Governments  of  the  Member  States,  meeting  within  the  Council,  on 
encouraging  new  and  effective  forms  of  participation  of  all  young  people  in  democratic  life  in  Europe,  2011/C  169/01,  available  at: 
http://eur-lex.europa.eu/LexUriServ/LexUriServ.do?uri=OJ:C:2011:169:0001:0005:EN:PDF  

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31 

 
                                                 
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. 

The EU is bound by the UN Convention on the Rights of Persons with Disabilities since 22 January 
2011. This is the first time that the EU has become party to an international human rights treaty. This 
implies  that  the  rights  enshrined  therein  need  to  be  implemented  and  respected  by  the  EU  in  its 
legislative actions as well as its policy-making, to the extent of its competences.  

The  Commission  continued  the  preparation  of  the  setting  up  of  the  EU  framework  for  promoting, 
protecting  and  monitoring  the  rights  in  the  Convention  by  consulting  relevant  stakeholders  and 
organised  a  Work  Forum  on  the  implementation  of  the  UN  Convention  in  the  EU,  providing  for 
exchanges of good practices between the Member States.  

The  European  Parliament74  and  the  Council75  endorsed  the  European  Disability  Strategy76,  which 
empowers women and men with disabilities so they can enjoy their full rights and benefit fully from 
their participation in society. The Strategy sets out the framework of action for the Commission in 
the field of disability and also represents the framework to implement the UNCPRD at EU level.  

Progress  was  made  in  ensuring  that  disability  rights  are  reflected  in  legislative  acts.  Measures  in 
favour of persons with disabilities and with reduced mobility are included in the new Regulations on 
passenger  rights  covering  maritime  and  inland  waterways  transport  and  bus  &  coach  transport. 
Moreover, disability issues are also present in some of the most important legislative proposals of 
the  Multi  Annual  Financial  Framework  for  2014-2020  such  as  the  new  Rights  and  Citizenship 
Program77  and  the  new  Programme  for  future  Structural  Funds78.  The  Charter  provides  that  the 

74 European Parliament Report: Mobility and inclusion of people with disabilities and the European Disability Strategy 2010-2020, available 
at: http://www.europarl.europa.eu/sides/getDoc.do?type=REPORT&reference=A7-2011-0263&language=EN  
75 Council conclusions: Support of the implementation of the European Disability Strategy 2010-2020, 17.6.2011, available at:  
http://www.consilium.europa.eu/uedocs/cms_data/docs/pressdata/en/lsa/122819.pdf  
76  Communication  from  the  Commission:  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  
77 Proposal for a Regulation establishing for the period 2014 to 2020 the Rights and Citizenship Programme, COM (2011) 758 final, available 
at: http://ec.europa.eu/justice/newsroom/files/1_en_act_part1_v5_frc_en.pdf 
78 Information is on the EU Cohesion Policy 2014-2020 is available at: http://ec.europa.eu/regional_policy/what/future/proposals_2014_2020_en.cfm   

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32 

 
 
                                                 
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. 

Access City Award 

The Austrian city of Salzburg won the European prize for making cities more accessible to 
people  with  disabilities.  The  annual  honour  recognises  efforts  to  improve  accessibility  in 
the  urban  environment  and  to  foster  equal  participation  of  people  with  disabilities.  The 
European  Commission  commended  Salzburg's  long-standing  commitment,  coherent 
approach  and  excellent  results  in  improving  accessibility,  achieved  with  the  direct 
participation of people with disabilities. 

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33 

 
 
4. Solidarity 

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 

(cid:131)  New  rules  on  European  Works  Councils  increased  the  effectiveness  of  employees’ 

transnational information and consultation rights. 

(cid:131)  New  legislation  was  adopted  on  the  application  of  patients’  rights  in  cross-border 
healthcare.  This  clarifies  the  rights  of  the  patients  to  reimbursement  of  healthcare 
received in another Member State. 

(cid:131)  Citizens,  Members  of  the  European  Parliament  and  representatives  of  trade  unions 
expressed concern over the relocation or restructuring of companies. Such decisions fall 
primarily within the managerial prerogative, which should fully respect the requirements 
provided  for  by  EU  law  to  inform  and  consult  employees'  representatives  in  good  time 
and in any case before the employer takes a decision to close the undertaking or to effect 
collective dismissals.  

The  protection  of  consumers  was  strengthened  through  the  adoption  of  new  rules  on 
online  purchases.  The  Commission  pursues  a  rigorous  enforcement  policy  to  make  sure 
that  the  protection  granted  by  different  EU  rules  on  consumer  protection  is  effectively 
guaranteed in national laws.     

Fair and just working 
conditions 

(cid:131) 

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. 

The new legal framework for European Works Councils entered into force for Member States79. The 
changes  aim  to  ensure  increased  effectiveness  of  employees’  transnational  information  and 
consultation  rights.  After  having  assisted  Member  States  in  the  implementation  process,  the 
Commission opened infringement proceedings against the Member States which did not adopt the 
required  transposing  measures  within  the  determined  deadline.  The  Commission  also  issued 
information material to promote awareness about the rights and opportunities created by the new 
framework.  

The  Commission  set  up  an  ad-hoc  working  group  which  brings  together  representatives  of 
governments  and  social  partners  and  commissioned  a  study  to  assess,  in  both  quantitative  and 
qualitative  way,  the  social  and  economic  benefits  and  costs  related  to  EU  rules  on  employees' 
information and consultation at national company level.  

Seagoing  workers  are  excluded  or  may  be  excluded,  if  Member  States  so  decide,  from  the  EU 
provisions that grant workers the right to information and consultation. Following the consultation 
of the European social partners on this matter, the Commission is now assessing the economic and 
social impacts of different policy options, including the suppression of the exclusions. 

Relocation or restructuring of a company  

The  Commission  received  several  parliamentary  questions  and  inquiries  from  MEPs, 
citizens and trade unions on the relocation or restructuring of a company. The decision to 
relocate  or  restructure  a  company  falls  primarily  within  the  managerial  prerogative. 
However,  employers  have  to  respect  the  requirements  provided  for  by  EU  law  that 
provides in particular 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. It is for the competent national authorities and in particular the 
courts to ensure the correct and effective application of these provisions and to guarantee 
that employers fulfil their duties in each particular case. 

79 Directive 2009/38/EC of the European Parliament and of the Council of 6 May 2009 on the establishment of a European Works Council or 
a procedure in Community-scale undertakings and Community-scale groups of undertakings for the purposes of informing and consulting 
employees, OJ L 122, 16.5.2009, p. 28–44.   

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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.  There  is  no  specific  EU  law  regulating  the 
conditions  and  consequences  of  the  exercise  of  these  rights  at  national  level80.  Member  States 
remain, of course, bound by the provisions of the Charter, including the right to strike, in instances 
where they implement EU law.  

The  Commission  is  currently  preparing  the  revision  of  the  legislative  framework  on  the  posting  of 
workers  in  the  context  of  the  provision  of  services.  In  line  with  the  Single  Market  Act81,  the 
Commission will present two legislative proposals: a Directive aimed at improving and reinforcing the 
transposition,  implementation  and  enforcement  in  practice  of  the  Posting  of  Workers  Directive, 
which will include measures to prevent and sanction any abuse and circumvention of the applicable 
rules, together with a Regulation aimed at clarifying the exercise of freedom of establishment and 
the freedom to provide services alongside fundamental social rights.  

The  Commission  launched  a  searchable  database  on  transnational  company  agreements  and 
worked  with  Member  States  and  social  partners  to  secure  a  more  frequent  use  of  such  types  of 
agreements.  These  agreements  are  the  fruit  of  transnational  negotiations  at  corporate  level  and 
cover  situations  located  in  the  different  countries  where  the  European/multinational  companies 
operate  or  which  are  affected  by  corporate  decisions.  So  far,  the  Commission’s  services  have 
recorded some 215 transnational company agreements and joint texts in 138 companies employing 
together over 10 million employees.  

Competences of the Commission as regards strike actions 

80 Article 153(5) of the Treaty on the Functioning of the EU (TFEU) stipulates that it does not apply to the right to strike. 
81 Communication from the Commission: Single Market Act, Twelve levers to boost growth and strengthen confidence, Working together to 
create new growth", COM(2011) 206 final, available at: http://ec.europa.eu/internal_market/smact/docs/20110413-communication_en.pdf   

EN 

36 

 
 
 
 
                                                 
The  Commission  received  several  complaints  alleging  that  the  measures  taken  by  the 
Spanish government with regard to air traffic controllers flagrantly violated their right to 
collective  bargaining  and  action.  In  particular,  following  unsuccessful  negotiations 
between the competent social partners in view of the renewal of a collective agreement, 
Spain  adopted  a  law  regulating  the  working  conditions  of  the  Spanish  air  traffic 
controllers. Confronted with a strike, it declared a state of emergency to break it.  

The  Commission  replied  that  there  is  no  EU  law  which  prohibits  Member  States  from 
introducing,  through  national  laws,  changes  to  practices  previously  applied  under 
collective agreements. Nor is there any specific EU law regulating the right of association 
or the right to strike. In these circumstances, there did not seem to be any link with any 
EU  legislation  in  that  case.  It  is  therefore  for  the  competent  authorities,  including  the 
courts,  to  assess  the  legality  of  the  eventual restrictions on  the exercise  of  these  rights, 
and  to  enforce  the  relevant  national  legislation  with  due  respect  to  the  applicable 
international obligations of the Member States.  

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 a 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 
work82. This framework was further enhanced with the Commission's proposal for new EU rules on 
the minimum health and safety requirements regarding the exposure of workers to the risks arising 
from physical agents (electromagnetic fields)83.  

The  Commission  published  a  Report  on  the  implementation  of  the  Working  time  Directive84  and 
reviewed  in  a  separate  document  implementing  legislation  taking  into  account  the  social  partners 
rules and rulings of the Court of Justice regarding organisation of Working Time85. On 15 November 
2011, the social partners at European level decided to negotiate amongst themselves with the aim of 
reviewing  the  aforementioned  Directive,  in  accordance  with  Article  155  of  the  Treaty  on  the 
Functioning of the European Union86.  

Case law on working time 

The  European  Court  of  Justice  explicitly  referred  to  the  EU  Charter,  which  states  that 
every worker is entitled to an annual period of paid leave, in deciding that airline pilots are 

82 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. 
83 Proposal for a Directive of the European Parliament and of the Council on the minimum health and safety requirements regarding the 
exposure of workers to the risks arising from physical agents (electromagnetic fields), COM(2011) 0348 final, available at: 
http://eur-lex.europa.eu/smartapi/cgi/sga_doc?smartapi!celexplus!prod!DocNumber&lg=EN&type_doc=COMfinal&an_doc=2011&nu_doc=0348   
84 Report of the Commission: on implementation by Member States of Directive 2003/88/EC (‘The Working Time Directive’), COM(2010) 
802 final, available at: http://www.ec.europa.eu/social/BlobServlet?docId=6420&langId=en    
85 Commission Staff Working Paper: Detailed report on the implementation by Member States of Directive 2003/88/EC concerning certain 
aspects  of 
final,  available  at 
http://www.ec.europa.eu/social/BlobServlet?docId=6426&langId=en  
86 They enjoy autonomy in these negotiations, for which 9 months is allowed by the Treaty, and will inform the Commission of the results 
achieved by early September 2012.  

(‘The  Working  Time  Directive’),  SEC(2010)  1611 

the  organisation  of  working 

time 

EN 

37 

 
 
                                                 
entitled to be paid at their normal rate of remuneration during the 4 weeks' minimum paid 
annual  leave  required  by  EU  rules87.  The  case  focused  on  whether  airplane  pilots  are 
entitled, during their annual leave, only to the maintenance of their basic salary or also to 
other components, such as the supplementary payment for the time spent away from base. 

Citizen enquiries on maximum working time 

Citizens submitted complaints to the Commission alleging that national laws or practices 
excluded  certain  workers  from  the  protection  of  the  limits  to  maximum  working  time, 
minimum daily and weekly rests, or minimum periods of paid annual leave. In some cases, 
the Commission asked Member States to explain how their laws or practices complied with 
EU  law.  Several  Member  States  informed  the  Commission  that  they  were  changing  their 
national law so as to comply with EU law; in other cases the Commission warned that it 
would refer a case to the Court of Justice if the Member State did not do so.  

The EU Agency for Fundamental Rights examined the legal and practical challenges facing EU Member 
States  as  they  strive  to  guarantee  migrants’  fundamental  rights  and  proposes  ways  to  incorporate 
those  rights  into  the  policies,  laws  and  administrative  practices  that  affect  migrants  in  irregular 
situations88. The Agency reported that an estimated 1.9 to 3.8 million irregular migrants were staying 
in the EU in 2008, according to the European Commission-funded Clandestino project. Because of their 
irregular migration status they are vulnerable to exploitation and abuse in the workplace. They also 
often face legal and practical barriers in getting access to basic services, such as healthcare, education 
and access to justice.    

Social security and social assistance 

The Charter recognises citizens' 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.    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. 

The Commission continued to monitor the application of EU rules on social security coordination to 
ensure that people moving across borders within the EU do not lose their entitlements to benefits. 
For  instance  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  for  the 
entitlement  to  the  benefit.  For  people  working  and  residing  in  different  Member  States,  EU  law 
determines  where  they  have  to  pay  their  social  security  contributions  and  which  country  is 
responsible to provide them healthcare or pay family benefits. 

Further discussion in the context of the negotiations on the proposals for Directives on third-country 
seasonal  workers  and  intra-corporate  transferees  took  place  in  the  Council  and  in  the  European 
Parliament.  The  Commission  continues  to  defend  the  right  of  third-national  seasonal  workers  to 
equal treatment with nationals of the admitting Member State in respect of social security rights. as 
well  as  fair  treatment  of  intra-corporate  transferees  and  their  family  members.  In  particular,  the 
Commission  made  the  point  that  Member  States  cannot  restrict  third  country  nationals'  right  to 

87 ECJ, Case C-155/10, Williams v British Airways, 15.9.2011. 
88 EU Agency for Fundamental Rights Report – "Fundamental rights of migrants in an irregular situation in the European Union", November 2011, 
available at:  http://fra.europa.eu/fraWebsite/research/publications/publications_per_year/2011/pub-migrants-in-an-irregular-situation_en.htm  

EN 

38 

 
                                                 
receive social security benefits that are based on contributions made as this would be contrary to the 
right to property.  

A new Directive was adopted on migrant workers granting equal treatment to legally residing third-
country workers in a number of fields in particular working conditions, social security, recognition of 
diplomas, tax benefits, education but also freedom of association89.   

The  European  Court  of  Human  Rights  delivered  its  ruling  in  a  case  that  concerned  the  refusal  of 
Austria to grant an old-age pension from the pension fund for lawyers90. The Court stated that, even 
though the right to a pension is not, as such, guaranteed by the Convention, the right to a pension 
which is based on employment can in certain circumstances be assimilated to a property right. The 
Court held that entitlement to a social benefit is linked to the payment of contributions, and, when 
such contributions have been made, an award cannot be denied to the person concerned.   

Health care 

The Charter recognises that everyone has the right to access preventive health care and the right to 
benefit  from  medical  treatment  under  the  conditions  established  by  national  law  and  practices.  A 
high level of human health protection shall be ensured in the definition and implementation of the 
Union's policies and activities.  

New legislation was adopted on the application of patients’ rights in cross-border healthcare. The 
new rules clarify the rights of patients to reimbursement of healthcare received in another Member 
State91. 

The  EU  Agency  for  Fundamental  Rights  Report    documented  the  legal,  economic  and  practical 
obstacles that migrants in an irregular situation face in accessing healthcare in 10 EU Member States 
and proposes a number of ways to improve this access92. The Agency found in particular that the risk 

89 Directive2011/98/EU on a single application procedure for a single permit for third-country nationals to reside and work in the territory 
of  a  Member  State  and  on  a  common  set  of  rights  for  third-country  workers  legally  residing  in  a  Member  State,  available  at:  
http://eurlex.europa.eu/LexUriServ/LexUriServ.do?uri=OJ:L:2011:343:0001:0009:EN:PDF 
90 ECJ, Austria vs. Klein, application n° 57028/00, 3.3.2011. 
91  Directive  2011/24/EU  on 
lex.europa.eu/LexUriServ/LexUriServ.do?uri=OJ:L:2011:088:0045:0065:EN:PDF  
92 EU Agency for Fundamental Rights Report,  "Migrants in an irregular situation: access to healthcare in 10 European Union Member States", October 
2010, available at: http://fra.europa.eu/fraWebsite/research/publications/publications_per_year/2011/pub_irregular-migrants-healthcare_en.htm  

in  cross-border  healthcare,  available  at:  http://eur-

the  application  of  patients’ 

rights 

EN 

39 

 
 
                                                 
of  detection  and  deportation  prevents  migrants  in  an  irregular  situation  from  seeking  healthcare, 
even  in  those  countries  where  it  is  legally  available,  and  suggests  disconnecting  healthcare  from 
immigration control policies. 

Consumer protection  

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

The  protection  of  consumers  was  strengthened  through  the  adoption  of  new  EU  rules  on  online 
purchases93,  which  require  that  consumers  must  be  given  essential  information  before  they  order 
goods or services in particular during a visit of a sales representative at their home or place of work 
or by a means of distance communication, such as online purchases. In addition, consumers have the 
right  to  withdraw  from  such  contracts  within  14  days.  The  new  EU  rules  on  consumer  rights 
furthermore  ban  pre-ticked  boxes,  internet  cost  traps  and  charges  of  which  the  consumer  are  not 
informed in advance.  

The  Common  European  Sales  Law,  proposed  by  the  Commission  in  October  2011,  sets  out  an 
optional  sales  law  regime  based  on  a  high  level  of  consumer  protection  when  purchasing  goods, 
digital  content  and  related  services  across  borders  on  the  basis  of  this  optional  law  regime.  For 
example, the Commission proposal would afford consumers a free choice of remedies in case they 
buy a defective product – even several months after a purchase. Thus, consumers would be able to 
request  the  repair  or  replacement  of  the  product,  to  withhold  payment,  to  reduce  the  price,  to 
terminate the contract and/or to claim damages.  

The Commission pursued a rigorous enforcement policy to make sure that the protection granted by 
different consumer protection directives is effectively guaranteed in national laws. Several Member 
States  improved  their  rules  on  the  sale  of  consumer  goods  following  intervention  by  the 
Commission. The Commission opened infringement proceedings against Member States which were 
late in transposing EU legislation on timeshares. Further to this, the large majority of Member States 
adopted the necessary implementing measures.  

Specific complaints in the area of consumer protection 

The Commission received numerous letters from the general public regarding for example 
faulty  products,  timeshare,  package  travel,  insurance,  online  marketing  of  products  and 
services as well as unfair commercial practices in a number of sectors. As the Commission 
cannot intervene in disputes between consumers and operators, it informed citizens on the 
applicable  EU  rules  and  referred  them  to  the  relevant  national  authorities,  European 
Consumer Centres or consumer protection organizations. Where there were doubts about 
the  compliance  of  national  law  with  EU  legislation  on  consumer  protection  or  the 
adequacy of its enforcement, the Commission contacted the relevant Member States.  

93 Directive 2011/83/EU on consumer rights, amending Council Directive 93/13/EEC and Directive 1999/44/EC of the European Parliament 
and  of  the  Council  and  repealing  Council  Directive  85/577/EEC  and  Directive  97/7/EC  of  the  European  Parliament  and  of  the  Council, 
available at:  http://eur-lex.europa.eu/LexUriServ/LexUriServ.do?uri=OJ:L:2011:304:0064:0088:EN:PDF    

EN 

40 

 
                                                 
5. Citizens' rights 

(cid:131)  The Commission initiated action such that EU citizens can become members of 

or found a political party in whichever Member State they reside. 

(cid:131) 

 This is an important dimension for the effective application of the right to stand 
as a candidate in elections for the European Parliament and at municipal level.    

(cid:131)  The rigorous enforcement policy pursued by the Commission to achieve the full 
and correct transposition and application of the EU free movement rules across 
the  European  Union  produced  substantial  results.  The  majority  of  Member 
States amended their legislation or announced amendments aimed at ensuring 
full  compliance  with  these  rules.  The  Commission  continued  working  with  the 
remaining  countries  to  tackle  outstanding 
infringement 
proceedings where needed.  

launching 

issues, 

(cid:131)  Concrete step were made to ensure that EU citizens can benefit from diplomatic 
and  consular  protection  when  they  travel  abroad.  The  Commission  proposed 
new EU rules and launched a dedicated website on consular protection.  

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 

EN 

41 

 
 
Right to vote and stand as a candidate at elections 

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.  

Negotiations  were  resumed  at  the  request  of  the  Commission  with  a  view  to  amending  EU 
legislation on the participation of EU citizens in European elections. The objective is to make it less 
burdensome for EU citizens to stand as candidates in the next European Parliament elections.  

The Commission initiated action with a view to ensuring that EU citizens can become members of or 
found  a  political  party  in  whichever  Member  State  they  reside.  An  EU  citizen  who  is  limited  as 
regards  the  possibility  to  get  fully  involved  in  activities  of  political  parties  suffers  a  disadvantage 
when standing in elections, compared to national citizens who enjoy that right.   

Reform of the Finnish electoral legislation  

The  Commission  engaged  a  dialogue  with  the  Finnish  authorities  concerning  the 
implementation of the right of EU citizens to vote and stand in municipal and in European 
elections in whichever Member State they reside, under the same conditions as nationals of 
that State.  

Further to this dialogue, the Finnish authorities announced that they would annul the legal 
requirement to collect the signed support from at least 5 000 Finnish nationals to found a 
political party.   

EN 

42 

 
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.    

A huge number of enquiries are addressed by citizens to the Commission, whether by phone, e-mail 
or  correspondence.  The  Commission  commits  itself  to  answering  them  in  the  most  appropriate 
manner and as quickly as possible. 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. 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 uses (“Complaint Handling”), an IT tool for registering and 
managing this specific kind of correspondence. 

25 Member States are now using the operational EU Pilot application, which was put in place by the 
Commission  in  2008  to  provide  quicker  and  better  answers  to  questions  raised  by  citizens  or 
businesses and solutions to those problems arising in the application of EU law.   

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.  The  European 
Commission adopted a package of measures aimed at increasing interaction with parties in antitrust 
proceedings  and  strengthening  the  mechanisms  for  safeguarding  parties'  procedural  rights94.  They 
give  parties  a  clear  picture  of  what  to  expect  at  different  stages  of  an  antitrust  investigation  and 
increase their ability to interact with the Commission services. If parties have a dispute about their 
procedural  rights  they  can  refer  the  matter  to  the  competition  Hearing  Officer,  who  will  have  an 
enhanced role throughout the entirety of antitrust proceedings. Parties will also be able to call upon 
the Hearing Officer in the investigative phase of antitrust investigations if they feel that they should 
not be compelled to reply to questions that might force them to admit to an infringement.     

Right of access to documents 

Article 42 of 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.  This  right  is  also  guaranteed  in  the  Treaty  on  the 
functioning of the European Union and has been implemented through Regulation 1049/2001, which 
defines the principles and limits governing the right of access to documents. 

In  2011,  the  Commission  received  almost  6500  requests  for  access  to  documents,  compared  to 
about 6000 in 2010. As in the past, 4 out of 5 requests were granted at the initial stage. In 2011, the 
Commission  received  162  confirmatory  applications,  leading  to  a  new  assessment  and  a  final 
decision of the Commission. 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  2011,  the  European  Ombudsman  closed  17  complaints  concerning  the  right  of  access  to 
Commission documents, making a critical or a further remark in eight cases.  

94 Commission Notice on Best Practices in proceedings concerning articles 101 and 102 TFEU, OJ C 308, 20.10.2011, available at: http://eur-
lex.europa.eu/LexUriServ/LexUriServ.do?uri=OJ:C:2011:308:0006:0032:EN:PDF  ;  Terms  of  Reference  of  the  Hearing  Officer,  OJ  L  275, 
21.10.2011,  available  at:  http://eur-lex.europa.eu/LexUriServ/LexUriServ.do?uri=OJ:L:2011:275:0029:0037:EN:PDF  ;  Best  Practices  on 
submission 
at: 
http://ec.europa.eu/dgs/competition/economist/neven_deconinck_best_practices.pdf  

the  Website 

Commission, 

published 

economic 

evidence; 

European 

available 

the 

on 

of 

of 

EN 

43 

 
                                                 
In  the  past  year,  the  Court  of  Justice  of  the  European  Union  delivered  an  important  judgment  on 
access to internal documents, including legal opinions. The ruling concerned a non-legislative matter, 
where the relevant procedure had already been closed95.  

The  General  Court  handed  down  six  judgments,  three  of  which  are  worth  mentioning:  the 
Batchelor96 and IFAW97 cases concerning access to documents originating from Member States and 
the LPN98  regarding access to documents in ongoing infringement proceedings. 

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.  

Over 22 000 individuals were helped directly by the European Ombudsman in 2011. More then 80% 
of  the  enquiries  could  be  handled  through  an  interactive  guide  available  on  the  website  of  the 
European  Ombudsman.  As  regards  the  other  enquiries,  some  were  handled  by  a  member  of  the 
European Network of Ombudsmen99 (about 1300 cases) or by the European Ombudsman (about 700 
cases),  when  the  complaints  concerned  maladministration  in  the  institutions  and  bodies  of  the 
European Union.    

Freedom of movement and residence 

95 ECJ, Case C-506/08, Kingdom of Sweden v European Commission and MyTravel Group, 21.07.2011.  
96 GC, Case T-250/08, Batchelor v. Commission, 24.5.2011. 
97 GC, Case T-362/08, IFAW v. Commission, 13.1.2011. 
98 GC, Case T-29/08, LPN v. Commission; 9.9.2011. 
99  The  European  Network  of  Ombudsmen  consists  of  over  90  offices  in  32  European  countries.  The  Network  includes  the  national  and 
regional ombudsmen and similar bodies of the Member States of the European Union, the candidate countries for EU membership, and 
certain other European countries, as well as the European Ombudsman and the Committee on Petitions of the European Parliament. The 
national  ombudsmen  and  similar  bodies  in  the  Network  have  each  appointed  a  liaison  officer  to  act  as  a  point  of  contact  for  other 
members of the Network. 

EN 

44 

 
 
                                                 
 
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.  

The rigorous enforcement policy pursued by the Commission with a view to achieving the full and 
correct  transposition  and  application  of  the  EU  free  movement  rules  across  the  European  Union 
produced  substantial  results.  The  majority  of  Member  States  amended  their  legislation  or 
announced  amendments  aimed  at  ensuring  full  compliance  with  these  rules.  The  Commission 
continued working with the remaining countries to tackle outstanding issues, launching infringement 
proceedings where needed to ensure that all European citizens and their family members can make 
full use of their right to free movement in all 27 Member States.  

The main issues raised in those 12 infringement proceedings included the incorrect or incomplete 
transposition and implementation of provisions in EU law regarding the rights of entry and residence 
for  family  members  of  Union  citizens,  including  same-sex  partners,  the  conditions  for  issuance  of 
visas  and  residence  cards  for  third-country  national  family  members  and  the  safeguards  against 
expulsions. 

The  Commission  further  pursued  an  intensive  dialogue  with  the  Dutch  authorities  regarding  the 
plans announced by the latter in April 2011 on labour migration. In a letter of 18 May 2011 to the 
Dutch authorities, the Commission raised a number of concerns as to the compatibility of some of 
the planned measures with EU law on the free movement of EU citizens and workers in combination 
with  the  non-discrimination  principle.  Several  bilateral  exchanges  and  the  reply  of  the  Dutch 
authorities of 14 November 2011 allowed for the clarification of a significant number of issues. The 
Commission is pursuing its dialogue with the Dutch authorities on the outstanding issues with a view 
to ensuring that any planned measures will be fully compatible with EU law.  

The  Commission  engaged  in  a  dialogue  with  the  Danish  authorities  regarding  their  plans  to 
strengthen customs controls at the Danish borders with a view to fighting cross-border crime. The 
intention of the Danish government was to set up permanent customs presence at the borders, build 
new  facilities  and  use  comprehensive  video  surveillance  and  police  assistance.  The  Commission 
made  it  clear  that  Member  States  may  not  carry  out  systematic  controls  of  goods  and  persons  at 
their internal borders. The Commission was particularly concerned that these strengthened border 
controls  may  result  in  obstacles  to  the  free  movement  of  EU  citizens  within  the  European  Union. 
These  plans  were  eventually  withdrawn  by  the  new  government  that  took  office  in  Denmark  in 
October 2011.  

The Commission also contacted the Danish authorities regarding amendments to the Danish Aliens' 
Act  that  entered  into  force  in  July  2011.  These  aim  to  introduce  stricter  rules  on  the  expulsion  of 
aliens,  including  EU  citizens,  and  raise  serious  concerns  of  compatibility  with  the  Free  Movement 
Directive.  The Commission will not hesitate to make use of the powers conferred to it by the Treaty 
should the Danish reply be deemed unsatisfactory. 

Conditions of entry and residence of third-country national family members of EU citizens 
having exercised their right to free movement  

The Commission received several complaints on this issue. In some cases, which appeared 
to be isolated instances of incorrect application of the EU rules, the Commission suggested 
that  the  individuals  address  themselves  to  the  SOLVIT  network,  which  is  designed  to 
provide quick and efficient assistance in such cases. Other cases were solved following the 
Commission's bilateral contacts with Member States on the transposition of the EU rules on 
free  movement,  whilst  a  number  of  them  were  raised  in  the  context  of  the  global 
infringement procedures launched by the Commission in the course of the year.  

Principle of non-discrimination 

EN 

45 

 
The  Commission  dealt  with  a  number  of  complaints  from  EU  citizens  residing  in  Malta 
who alleged that they could not benefit from reduced water and electricity tariffs available 
to  Maltese  citizens,  in  violation  of  the  non-discrimination  principle  on  grounds  of 
nationality. The Commission has contacted the Maltese authorities with a view to resolving 
this issue.   

The Commission launched a discussion to identify political options which would prevent EU citizens 
from  losing  their  political  rights  as  a  consequence  of  exercising  their  right  to  free  movement100. 
According to the legislation of several Member States, their nationals are disenfranchised if they live 
in another Member State for a certain period of time, with the consequence that they are not able to 
participate in any national elections, neither in the Member State of origin nor in the Member State 
of  residence,  and  are  not  represented  in  national  parliaments  or  in  the  Council  of  the  European 
Union.  This  puts  citizens  who  have  exercised  their  right  to  free  movement  in  a  less  favourable 
position than those staying in their home countries.  

In  June  2011, the  Commission  wrote  letters  to  the Member  States  concerned  and  invited  them  to 
contribute to a common reflection. On the basis of the replies received, the Commission intends to 
promote a broad debate on how to strengthen the rights to democratic participation of EU citizens 
exercising their right to free movement within the EU.       

Diplomatic and consular protection 

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.  

The Commission proposed new EU rules on consular protection101 for citizens of the Union abroad, 
further  to  previous  analysis  of  the  state  of  play  in  this  area102.  The  Commission  proposal  includes 
measures  to  give  concrete  meaning  to  this  right  by  clarifying  its  scope  of  application,  easing 
cooperation between consular authorities, including on financial matters, and also providing for cost-

100  Disenfranchisement  was  identified  as  an  obstacle  encountered  by  EU  citizens  as  political  actors  in  the  EU  Citizenship  report  2010 
“Dismantling obstacles to EU citizens’ rights" of 27 October 2010 (COM/2010/603)-  action 20. 
101 Proposal for a Council Directive on consular protection for citizens of the Union abroad, COM(2011) 881 final, available at: 
http://eur-lex.europa.eu/LexUriServ/LexUriServ.do?uri=COM:2011:0881:FIN:EN:PDF   
102 Communication from the Commission: Consular protection for EU citizens in third countries: State of play and way forward, COM (2011) 
149 final, available at: http://ec.europa.eu/justice/citizen/files/com_2011_149_en.pdf  

EN 

46 

 
 
                                                 
effectiveness  by  exploiting  synergies  with  existing  EU  tools  and  resources.  The  proposal  enhances 
the fundamental right to consular protection under the same conditions as for nationals, by clarifying 
the content of this right, by facilitating the necessary cooperation and coordination procedures and 
by ensuring effective implementation and compliance. The inclusion of non-EU family members in its 
scope  of  application  strengthens  the  right  to  family  life  as  well  as  the  rights  of  the  child.  Clearer 
responsibilities  and  improved  burden-sharing  in  crisis  situations  would  ensure  non-discrimination 
also  in  times  of  crisis  when  fundamental  rights  are  at  stake.  Furthermore,  the  principles  of  non-
discrimination, life and integrity of the person and the right of defence and to a fair trial are being 
reinforced. 

One  of  the  ways  of  making  the  right  to  consular  protection  effective  is  through  providing 
information.  The  Commission  launched  a  dedicated  website  on  consular  protection103  –  the  one-
stop shop, in the 23 official EU languages, on the basic information for the citizens of the Union on 
consular  protection  in  third  countries.  The  website  provides  the  addresses  of  the  consular  or 
diplomatic missions in non-EU countries to which citizens may turn to for protection, access to the 
travel  advice  services  of  the  EU  Member  States  and  to  EU  legal  background  information  on  the 
matter.   

Union citizenship 

According  to  EU  law,  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.  

The Commission proposed to designate 2013 as the European Year of Citizens104. The objective of 
the year will be to raise Union citizens' awareness about the rights granted  to them by the treaty, 
including their right to participate in the democratic life of the Union. In addition, it will raise Union 
citizens'  awareness  on  how  they  can  benefit  from  EU  rights  and  policies,  including  by  stimulating 
their  participation  in  civic  fora  on  Union  policies  and  issues.  The  European  Year  will  also  seek  to 
launch  a  debate  about  the  impact  and  potential  of  the  right  to  free  movement,  as  an  inalienable 
aspect  of  Union  citizenship,  in  particular  in  terms  of  strengthening  societal  cohesion  and  mutual 
understanding between Union citizens and the bond between citizens and the Union.  

 The Court of Justice of the EU ruled that Member States are not allowed to take measures depriving 
Union citizens of the genuine enjoyment of the substance of their rights as Union citizens. The Court 
held that an irregular migrant in a Member State whose minor dependent children are nationals of 
that country must be allowed to reside and work there105. In its reasoning the Court explained that a 
refusal to do so would deprive children of the genuine enjoyment of the substance of their rights as 
Union citizens, because it would force them to leave the territory of the European Union. The Court 
further explained that this even applies when the children have never  exercised their right to free 
movement within the territory of the Member States.  

In  another  case106,  the  Court  highlighted  the  specific  and  exceptional  nature  of  the  situations  in 
which  this  rule  can  apply.  The  Court  clarified  that  it  applies  only  where  the  EU  citizen  is  forced  to 
leave the territory of the Union as a whole (and not only the territory of the Member State of which 
he/she is a national).  Moreover, merely the fact that the EU citizen wishes to reside together with a 
third-country national family member is not sufficient to accept that he/she will be forced to leave 
the Union territory if the family member is not granted a residence right. The national authorities or 
courts should assess in every case whether a refusal to grant a residence right would undermine the 
right  to  protection  of  family  life  -  in  light  of  Article  7  of  the  Charter  of  Fundamental  rights,  in 
situations  covered  by  Union  law,  and  in  light  of  Article  8  of  the  European  Convention  on  Human 
Rights, where Union law is not applicable.  

103 Available at: http://ec.europa.eu/consularprotection   
104 The proposal stems from the 2010 EU Citizenship Report (action 23) which underlined the importance to strengthen citizens' awareness of their 
EU citizenship status, their rights and their meaning in their daily lives. Proposal for a Decision of the European Parliament and of the Council on the 
European Year of Citizens (2013), COM(2011) 489 final, available at: http://ec.europa.eu/citizenship/pdf/1_en_act_part1_v5.11.08.11.pdf  
105 ECJ, Case C-34/09, Ruiz Zambrano,  8.3.2011. 
106 ECJ, Case C-256/11, Dereci and others, 15.11.2011. 

EN 

47 

 
                                                 
EN 

48 

 
 
6. Justice 

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 

(cid:131) 

(cid:131) 

(cid:131) 

(cid:131) 

The  Commission  proposed  new  laws  establishing  minimum  standards  on  the  rights, 
support and protection of victims of crime. This proposal would guarantee that victims 
are  treated  with  respect,  for  example  during  the  investigation  phase  and  that  police, 
prosecutors and judges are trained in how to properly deal with them. 

The  Commission  set  clear  and  ambitious  targets  for  expanding  training  for  legal 
practitioners in Europe on how to apply European law, including fundamental rights.  An 
independent, well-trained and efficient judiciary is essential for a functioning justice area 
and single market in Europe. 

The  procedural  rights  of  suspects  have  been  strengthened.  New  EU  rules  ensure  that 
suspects  of  a  criminal  offence  are  informed  about  their  rights  in  a  language  that  they 
understand.  The  Commission  also  proposed  to  strengthen  the  procedural  safeguard  on 
access  to  lawyer,  as  of  the  first  stage  of  police  questioning  and  throughout  criminal 
proceedings. 

The  Commission  started  work  to  put  in  place  a  coherent  and  consistent  EU  Criminal 
Policy  by  setting  out  how  the  EU  should  use  criminal  law  to  ensure  the  effective 
implementation of EU policies.  

EN 

49 

 
 
 
 
 
 
 
 
 
Right to an effective remedy and right to a fair trial 

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, 
ranging from social policy, to asylum legislation, competition, agriculture, etc.  

The right to an effective remedy was the most quoted rights in the decisions of the Court of Justice 
referring to the Charter. It has been mentioned in a third of these decisions and different fields of EU 
law, such as: competition, freedom of establishment, agriculture and fisheries, asylum.  

The  Commission  paid  particular  attention  to  the  developments  related  to  the  new  Hungarian 
Constitution  and  its  implementation.  In  the  June  plenary  session  of  the  European  Parliament,  the 
Commission underlined that the constitution of every Member State should reflect and comply with 
the  European  values  of  freedom,  democracy,  equality,  rule  of  law,  human  dignity  and  respect  of 
human rights, including the rights of persons belonging to minorities, without discrimination, as laid 
down in Article 2 of the Treaty. 

On  12  December,  the  Commission107  expressed  its  concerns  to  the  Hungarian  Minister  of  Justice 
regarding certain provisions of the draft legislation implementing the new Constitution which could 
affect  the  independence  of  the  judiciary.  The  letter  also  explained  that  the  principle  of  judicial 
protection  enshrined  in  Article  47  of  the  Charter  of  Fundamental  Rights  of  the  EU  guarantees  the 
right  to  an  effective  remedy  before  a  ‘court’  or  a  ‘tribunal’  as  defined  in  Union  law.  The  Court  of 
Justice  stressed  in  this  context  that  independence  and  impartiality  are  amongst  key  criteria  which 
must be satisfied by the body concerned in order to be considered as 'tribunal'.  

The  Hungarian  authorities  adopted  the  legislation  on  the  judiciary  without  taking  into account  the 
Commission's  legal  concerns.  The  Commission  decided,  as  guardian  of  the  Treaties,  to  take  action 
against  a  number  of  new  provisions  in  Hungarian  legislation,  namely  on  the  independence  of  the 
data  protection  authority  and  on  the  discriminatory  impact  of  the  mandatory  retirement  age  for 
judges,  prosecutors  and  notaries.  The  Commission  also  sent  an  administrative  letter  requesting 

107 Vice-President Reding sent a letter to the Hungarian Minister of Justice. 

EN 

50 

 
 
                                                 
further information on certain aspects of the new legislation which could affect the independence of 
the judiciary108.  

The  Commission  proposed  new  laws  establishing  minimum  standards  on  the  rights,  support  and 
protection  of  victims  of  crime109.  This  proposal  would  guarantee  that  victims  are  treated  with 
respect,  for  example  during  the  investigation  phase  and  that  police,  prosecutors  and  judges  are 
trained  in  how  to  properly  deal  with  them.  Victims  would  be  entitled  to  get  information  on  their 
rights and their case in a way that they understand and Member States would have an obligation to 
set-up  victim  support  services.  The  proposal  pays  special  attention  to  vulnerable  victims,  such  as 
children  or  victims  of  rape.  To  help  protect  victims  of  violence  from  any  further  harm  by  their 
attacker, the Commission is also proposing rules to ensure that victim who is guaranteed protection 
from the attacker can rely on this protection if he or she travels or moves to another EU country. 

Member States that take part in the Rome III Regulation on cross-border divorces adopted in 2010 
have pursued their preparations in view of its entry into force on 21 June 2012. 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. 

The  Commission  set  clear  and  ambitious  targets  for  expanding  training  for  legal  practitioners  in 
Europe  on  how  to  apply  European  law,  including  fundamental  rights110.    An  independent,  well-
trained and efficient judiciary is essential for a functioning justice area and single market in Europe. 
It  caters  for good and prompt  judicial  decisions  strengthening  predictability  and  legal  certainty.  As 
European law is part of everyday life, citizens and businesses want to know that they can count on a 
knowledgeable and well-trained judiciary across the Union enabling them to exercise their rights and 
get  justice  in  a  coherent  manner,  ensuring  respect  of  their  fundamental  rights  across  the  Union. 
Judges,  lawyers  and  other  legal  practitioners  need  to  know  the  rules  to  be  able  to  apply  EU  law 
effectively.  

The obligation laid down in the Visa Code111 to motivate the refusal of a visa by a Member State 
and  the  right  of  appeal  directly  relate  to  the  right  to  an  effective  remedy  and  to  a  fair  trial.  The 
Commission  closely  monitors  the  correct  implementation  by  Member  States  of  these  provisions, 
which became applicable as from 5 April 2011, in particular by collecting and analysing information 
on 
for  appeal  of  decisions  on 
refusal/revocation/annulment of a visa.  

States'  procedures  put 

the  Member 

in  place 

Detention conditions 

The  Commission  received  a  number  of  letters  from  the  general  public  on  poor  detention 
conditions  due  to  prison  overcrowding  in  national  prisons  or  the  placement  of  pre-trial 
detainees together with convicted prisoners.  

While  national  governments  are  solely  responsible  for  detention  issues  and  prison 
management, it is the Commission's role to make sure judicial cooperation in the EU works 
and fundamental rights are respected when EU mutual recognition instruments – such as 
the European Arrest Warrant – are implemented.  

108  Press release of 17 January 2012 (IP 12/24). Available at: 
http://europa.eu/rapid/pressReleasesAction.do?reference=IP/12/24&format=HTML&aged=0&language=EN&guiLanguage=fr 
109  Proposal  for  a  Directive  of  the  European  Parliament  and  the  Council  establishing  minimum  standards  on  the  rights,  support  and 
protection of victims of crime, COM(2011) 275 final, available at:  
http://ec.europa.eu/justice/policies/criminal/victims/docs/com_2011_275_en.pdf  
110  Commission  Communication:  Building  trust  in  EU-wide  justice,  a  new  dimension  to  European  judicial  training,  COM(2011)  551  final, 
available at: http://ec.europa.eu/justice/criminal/files/2011-551-judicial-training_en.pdf  
111 Regulation (EC) No 810/2009 of the European Parliament and of the Council of 13 July 2009 establishing a Community Code on Visas 
(Visa Code),  OJ L 243, 15.9.2009 

EN 

51 

 
                                                 
With  regard  to  detention,  Europeans  must  have  confidence  that  they  will  be  treated  to 
similar standards of protection no matter where they are in the European Union. For this 
reason, the Commission presented a Green Paper asking 10 questions on how to strengthen 
mutual  trust  in  the  field  of  detention112.  Detention  conditions  and  periods  vary  widely 
between EU countries.  

Presumption of innocence and right of defence 

The Charter provides that everyone who has been charged shall be presumed innocent until proven 
guilty according to the law. It further specifies that respect for the rights of the defence of anyone 
who has been charged shall be guaranteed.  

Procedural  rights  of  suspects  have  been  strengthened,  in  particular  as  regards  the  right  to  an 
effective  remedy  and  to  a  fair  trial  and  the  rights  of  defence.  More  particularly,  the  European 
Parliament  and  the  Council  adopted  a  new  set  of  rules  ensuring  that  the  suspects  of  a  criminal 
offence are informed about their rights in a language that they understand113. Anyone arrested will 
have to be informed about their rights by a document called a Letter of Rights.  

The  Commission  submitted  a  proposal  securing  access  to  a  lawyer  from  the  first  stage  of  police 
questioning and throughout criminal proceedings. The proposal also grants the accused or suspected 
the  right  to  contact  their  embassy  or  consulate  as  well  as  their  family  or  employer114.  While  the 
responsibility  for  conducting  the  investigation  and  any  questioning  will  of  course  remain  with  the 
police, the lawyer ought to be able to attend any questioning by the police or other authorities and 
to ask questions or request clarification whenever needed. Authorities would have to guarantee the 
confidentiality of meetings between the lawyer and the suspect.  

Upon  request  of  the  European  Parliament,  the  EU  Agency  for  Fundamental  Rights  addressed  the 
issue of fundamental rights standards for an instrument involving mutual recognition of investigation 

112 Commission Green Paper: Strengthening mutual trust in the European judicial area – A Green Paper on the application of EU criminal 
justice legislation in the field of detention, COM(2011) 327, available at:  
 http://ec.europa.eu/justice/policies/criminal/procedural/docs/com_2011_327_en.pdf  
113 Directive on the right to information in criminal proceedings, [OJ], [date], available at: []   
114  Proposal  for  a  Directive  on  the  right  of  access  to  a  lawyer  in  criminal  proceedings  and  on  the  right  to  communicate  upon  arrest, 
COM(2011) 326 final, available at: http://eur- lex.europa.eu/LexUriServ/LexUriServ.do?uri=COM:2011:0326:FIN:EN:PDF  

EN 

52 

 
 
                                                 
orders115.  It  provides  an  overview  of  existing  European  standards,  with  particular  emphasis  on 
elements of fair trial, based on the Court of Justice of the European Union and the European Court of 
Human Rights case law. 

Principles of legality and proportionality of criminal offences and penalties 

Criminal law measures are fundamental rights-sensitive. They unavoidably interfere with individual 
rights,  be  it  those  of  the  suspect,  of  the  victim  or  of  witnesses.  Ultimately,  they  can  result  in 
deprivation  of  liberty  and  therefore  require  particular  attention  by  the  legislator.  This  is  why  the 
Charter of Fundamental Rights provides important limits for EU action in this field.  

The  Commission  set  out  the  legal  framework  under  the  Lisbon  Treaty  for  the  adoption  of  EU 
criminal law measures116. This is a first step in the efforts to put in place a coherent and consistent 
EU  Criminal  Policy  by  setting  out  how  the  EU  should  use  criminal  law  to  ensure  the  effective 
implementation of EU policies. In this respect, the Commission issued a first proposal on EU rules on 
criminal sanctions for insider dealing and market abuse117. Furthermore, preparations in view of new 
EU legislation on EU financial interests by criminal law are ongoing. 

The Commission pursued a rigorous enforcement policy in respect of the transposition by Member 
States of EU rules on criminal sanctions for environmental offences and the legislation on criminal 
sanctions for pollution from ships. Infringement procedures were initiated against Member States 
who had not transposed this legislation on time. Failure by Member States to implement these EU 
wide rules into their national law makes it impossible to have common minimum criminal law rules 
for serious breaches of EU legislation on the protection of the environment and against ship-source 
pollution. Such EUwide rules are essential to prevent loopholes which could otherwise be exploited 
by perpetrators of environmental crimes. 

115  EU  Agency  for  Fundamental  Rights,  "Opinion  on  the  draft  Directive  regarding  the  European  Investigation  Order  (EIO)",  available  at: 
http://fra.europa.eu/fraWebsite/research/opinions/op-eio_en.htm  
116 Commission Communication: Towards an EU Criminal Policy - ensuring the effective implementation of EU policies through criminal law, 
COM(2011) 573 final, available at: http://ec.europa.eu/justice/newsroom/files/com_2011_573_en.pdf ,  
117 Proposal for a Regulation of the European Parliament and of the Council on insider dealing and market manipulation (market abuse) , 
COM (2011) 654 final, available at: http://ec.europa.eu/internal_market/securities/docs/abuse/COM_2011_651_en.pdf 

EN 

53 

 
 
 
                                                 
 
Appendix 

 Overview of 2011 ECJ case law which directly quotes 
 the Charter or mentions it in its reasoning: 

Name of the parties 

Case 

Date 

Subject matter 

Charter 
Title  

Charter right 

Grand 
Chamber? 

Skareby v 
Commission 

F-95/09 

08/02/2011 

Employment - EU Civil 
Service Tribunal 

Justice 

Right to an effective 
remedy and fair trial 

Association belge 
des Consommateurs 
Test-Achats 
and Others 

Areva and Others v 
Commission 

C-236/09 

01/03/2011  Discrimination - services 

Equality 

T-117/07 

03/03/2011 

Competition 

Justice 

Equality between 
men and women 

Right to an effective 
remedy and fair trial 

Peñarroja Fa 

C-372/09 

17/03/2011 

Freedom of 
establishment 

Justice 

Right to an effective 
remedy and fair trial 

AJD Tuna 

C-221/09 

17/03/2011 

Agriculture and fisheries 

Justice 

ThyssenKrupp 
Nirosta v 
Commission 

C-352/09 
P 

29/03/2011 

Competition 

Justice 

Italy v EESC 

T-117/08 

31/03/2011 

Discrimination - 
employment 

Equality 

Right to an effective 
remedy and fair trial 

Principles of legality 
and proportionality 
of criminal offences 
and penalties 

Cultural, religious 
and linguistic 
diversity 

Visa Europe and 
Visa International 
Service v 
Commission 

T-461/07 

14/04/2011 

Competition 

Citizens' 
rights 

Right to good 
administration 

Deutsche Telekom 

C-543/09 

05/05/2011 

Communications 

Freedoms 

Protection of 
personal data 

McCarthy 

C-434/09 

05/05/2011 

Freedom of movement 

Citizens' 
rights 

Freedom of 
movement and of 
residence 

N 

Y 

N 

N 

N 

Y 

N 

N 

N 

N 

Runevič-Vardyn and 
Wardyn 

Arkema France v 
Commission 

Elf Aquitaine v 
Commission 

C-391/09 

12/05/2011 

Freedom of movement 

Equality 

Non-discrimination 

N 

T-343/08 

17/05/2011 

Competition 

Justice 

T-299/08 

17/05/2011 

Competition 

Justice 

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

Presumption of 
innocence and right 
of defence 

N 

N 

EN 

54 

 
 
Name of the parties 

Case 

Date 

Subject matter 

Charter 
Title  

Charter right 

Grand 
Chamber? 

Fuji Electric v 
Commission 

General Technic-Otis 
v Commission 

T-132/07 

12/07/2011 

Competition 

Justice 

T-141/07 

13/07/2011 

Competition 

Justice 

Fuchs 

C-159/10 

21/07/2011 

Discrimination - 
employment 

Freedoms 

Beneo-Orafti 

C-150/10 

21/07/2011 

Agriculture and fisheries 

Justice 

Right to an effective 
remedy and fair trial 

Presumption of 
innocence and right 
of defence 

Freedom to choose 
an occupation and 
right to engage in 
work 

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

Kelly 

C-104/10 

21/07/2011 

Discrimination - 
employment 

Freedoms 

Protection of 
personal data 

Nagy 

C-21/10 

21/07/2011 

Agriculture and fisheries 

Equality 

Equality before the 
law 

Kingdom of Sweden 
v European 
Commission and 
MyTravel Group 

C-506/08 

21/07/2011  

Competition 

Citizens' 
rights 

Right of access to 
documents 

Samba Diouf 

C-69/10 

28/07/2011 

Social policy - asylum 

Justice 

Patriciello 

C-163/10 

06/09/2011 

Criminal law - EU 
immunity 

Freedoms 

Right to an effective 
remedy and fair trial 

Freedom of 
expression and 
information 

Hennings 

C-297/10 

08/09/2011 

Prigge and Others 

C-447/09 

13/09/2011 

Discrimination - 
employment 

Discrimination - 
employment 

Equality 

Non-discrimination 

Equality 

Non-discrimination 

Williams and Others 

C-155/10 

15/09/2011 

Employment 

Solidarity 

Gueye 

C-483/09 

15/09/2011 

Criminal law - victims 

Freedoms 

Evropaïki Dynamiki v 
EIB 

T-461/08 

20/09/2011 

Communications 

Justice 

Fair and just 
working conditions 

Respect for private 
and family life 

Right to an effective 
remedy and fair trial 

De Nicola v EIB 

F-55/08 
DEP 

27/09/2011 

Employment - EU Civil 
Service Tribunal 

Justice 

Right to an effective 
remedy and fair trial 

N 

N 

N 

N 

N 

N 

N 

N 

Y 

N 

Y 

N 

N 

N 

N 

EN 

55 

 
 
 
Name of the parties 

Case 

Date 

Subject matter 

Charter 
Title  

Charter right 

Grand 
Chamber? 

Association belge 
des consommateurs 
test-achats 
Commission 

T-224/10 

12/10/2011 

Competition 

Solidarity 

Consumer protection 

N 

Solvay v Commission  C-109/10 P 

25/10/2011 

Competition 

Citizens' 
rights 

Right of access to 
documents 

Aragonesas 
Industrias y Energía 
v Commission 

T-348/08 

25/10/2011 

Competition 

Justice 

Garenfeld 

C-405/10 

10/11/2011 

Environment 

Justice 

Right to an effective 
remedy and fair trial 

Principles of legality 
and proportionality 
of criminal offences 
and penalties 

Dereci and Others 

C-256/11 

15/11/2011 

Freedom of 
movement 

Freedoms 

Respect for private 
and family life 

Lindner 

C-327/10 

17/11/2011 

Civil law 

Justice 

KHS 

C-214/10 

22/11/2011 

Employment 

Solidarity 

Right to an effective 
remedy and fair trial 

Fair and just working 
conditions 

Sison v Council 

T-341/07 

23/11/2011 

Common foreign and 
security policy - 
terrorism 

Justice 

Right to an effective 
remedy and fair trial 

Asociación Nacional 
de Establecimientos 
Financieros de 
Crédito 

C-468/10 

24/11/2011 

Data protection 

Freedoms 

Protection of 
personal data 

Scarlet Extended 

C-70/10 

24/11/2011 

Communications 

Freedoms 

Right to property 

Painer 

C-145/10 

01/12/2011 

Civil law 

Freedoms 

KME Germany 
and Others v 
Commission 

Chalkor v 
Commission 

KME and Others v 
Commission 

Nycomed Danmark v 
EMA 

C-389/10 P 

08/12/2011 

Competition 

Justice 

C-386/10 P 

08/12/2011 

Competition 

Justice 

C-272/09 P 

08/12/2011 

Competition 

Justice 

T-52/09 

14/12/2011 

Regulatory powers 

Freedoms 

Freedom of 
expression and 
information 

Right to an effective 
remedy and fair trial 

Right to an effective 
remedy and fair trial 

Right to an effective 
remedy and fair trial 

Freedom to conduct 
a business 

Cicolav Regione 
Siciliana 

C-482/10 

21/12/2011 

National 
administrative law 

Citizens' 
rights 

Right to good 
administration 

X 

C-507/10 

21/12/2011 

Criminal justice 

Justice 

Right to an effective 
remedy 

Y 

N 

N 

Y 

N 

Y 

N 

N 

N 

N 

N 

N 

N 

N 

N 

N 

N.S. and others 

EN 

European 
Commission v. 
Austria 

C-411/10  
&  
C-493/10 

21/12/2011 

Asylum 

Dignity 

Prohibition of torture 

Y 

C-28/09 

21/12/2011 

Environment 

Freedoms 

56 

Respect for private 
and family life 

Y 

 
EN 

57