REPORT FROM THE COMMISSION TO THE EUROPEAN PARLIAMENT, THE COUNCIL, THE EUROPEAN ECONOMIC AND SOCIAL COMMITTEE AND THE COMMITTEE OF THE REGIONS 2012 Report on the Application of the EU Charter of Fundamental Rights
Date: 2013-05-08
Institutions: European Commission
Subjects: Court of Justice of the European Union, EU Charter of Fundamental Rights, France, Hungary, Malta, application of EU law, common foreign and security policy, data protection, gender equality, human rights, intellectual property, personal data

EUROPEAN 
COMMISSION 

Brussels, 8.5.2013  
COM(2013) 271 final 

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

2012 Report on the Application of the EU Charter of Fundamental Rights 

{SWD(2013) 171 final} 
{SWD(2013) 172 final} 

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

2012 Report on the Application of the EU Charter of Fundamental Rights 

1. 

INTRODUCTION 

In its Strategy for the effective implementation of the Charter of Fundamental Rights by the 
European Union (‘the Charter’), the Commission announced that it will report each year on 
the concrete steps undertaken for the effective implementation of the Charter1. Through these 
reports,  the  Commission  meets  the  longstanding  and  legitimate  expectations  of  placing 
fundamental  rights  at  the  heart  of  EU  policies,  which  have  been  voiced  in  particular  by  the 
European Parliament2. A systematic implementation of the Charter calls not only for rigorous 
legal scrutiny, but equally for political scrutiny to ascertain the impact of all EU initiatives on 
fundamental rights.  

This annual report is the basis for the necessary dialogue between all the EU institutions and 
Member States on the implementation of the Charter. It therefore forms part of the process of 
political  dialogue  and  scrutiny  to  ensure  that  the  Charter  remains  a  reference  point,  to 
integrate fundamental rights into all EU legal acts and when Member States apply EU law. It 
also presents how a fundamental rights culture is being developed in the EU by setting new 
legislation, where the EU has competence to act, and through the jurisprudence of the Court 
of Justice of the European Union (‘the Court’). Given the key role to be played by Member 
States’ courts in scrutinising the respect of the Charter when Member States apply EU law, 
this report also provides an overview for the first time of the case law of national courts on the 
Charter.  

The  staff  working  document  annexed  to  this  report  provides  detailed  information  on  the 
application of the Charter and illustrates concrete problems faced by individuals (see Annex 
I).  Progress  in  the  implementation  of  the  Strategy  for  Equality  between  Women  and  Men 
(2010-2015) is presented in a second separate staff working document (see Annex II).  

2. 

EU ACTIONS TO PROMOTE THE EFFECTIVE IMPLEMENTATION OF THE CHARTER 

The Charter is addressed, first and foremost, to the EU institutions. It is therefore the primary 
responsibility  of  the  EU  institutions  to  ensure  respect  for  fundamental  rights  as  a  legal 
requirement based on the binding Charter.  
The Commission's strategy is aimed at giving practical effect to the legally binding Charter3. 
The concrete steps to implement the Charter have fostered a fundamental rights reflex when 
the  Commission  prepares  new  legislative  and  policy  proposals.  This  approach  is  essential 
throughout  the  EU  decision  making  process,  including  when  the  European  Parliament  and 
Council  make  amendments  to  proposals  prepared  by  the  Commission.  All  EU  acts  are  also 
subject  to  the  scrutiny  of  the  Court.  This  is  the  ultimate  guarantee  for  the  respect  of 
fundamental rights in the EU's legislative work and all other acts of the EU. 

1 

2 
3 

Communication adopted by the Commission on 19.10.2010 – Strategy for the effective implementation 
of the Charter of Fundamental Rights by the European Union – COM (2010) 573 final. 
Voggenhuber Report of the European Parliament – Document ref: A6-0034/2007. 
See footnote 1. 

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Fundamental rights are promoted through all EU policies. The Commission's policy of giving 
substance  to  the  status  of  Union  citizenship  is  complementary  to  the  promotion  of 
fundamental  rights  within  the  EU.  Most  fundamental  rights  enshrined  in  the  Charter  do  not 
only apply to EU Citizens, but are of great importance for the protection of all people living in 
the EU, whether they are Union Citizens or not. 

2.1. 

Strengthening the protection of fundamental rights through EU legislation 

A true fundamental rights culture consists not only of ensuring compliance of legislation with 
the  Charter.  Where  the  EU  has  competence  to  act,  the  Commission  can  also  propose  EU 
legislation  that  gives  concrete  effect  to  the  rights  and  principles  of  the  Charter.  This  is  a 
crucial step for citizens to exercise their rights under the Charter.  

In order to give full effect to the Charter in the digital age, the Commission has proposed a 
major  reform  of  the  EU's  rules  on  the  protection  of  personal  data4.  Europe's  historical 
experience  has  led  to  a  common  understanding  in  Europe  that  privacy  is  an  integral  part  of 
human  dignity  and  personal  freedom.  This  is  why  the  Charter  recognises  both  the  right  to 
private life (Article 7) and the right to the protection of personal data (Article 8). The Treaty 
(Article  16,  TFEU)  gives  the  EU  complementary  legislative  competence  to  establish 
harmonised EU data protection laws.  

The  Commission's  proposals  update  and  modernise  the  principles  enshrined  in  the  1995 
Directive  to  guarantee  the  right  of  personal  data  protection  in  the  future5.  This  reform 
provides for increased responsibility and accountability for those processing personal data and 
strengthens  independent  national  data  protection  authorities.  It  introduces  the  ‘right  to  be 
forgotten’,  which  will  help  people  better  manage  data  protection  risks  online.  The  reform 
extends  general  data  protection  principles  and  rules  to  national  police  and  criminal  justice 
authorities. The new rules have been drafted to ensure a careful balance with all fundamental 
rights they may affect, such as freedom of expression. A meaningful example of this is that 
specific safeguards have been introduced in the proposal for data that is processed solely for 
journalistic purposes.  

In  2012,  the  Commission  took  a  pro-active  approach  to  accelerate  progress  towards  a 
better  gender  balance  on  the  corporate  boards  of  European  companies  listed  on  stock 
exchanges6. The Commission's legislative proposal is a milestone in EU legislation on gender 
equality. It reconciles, on the one hand, the requirement of equality of treatment, and on the 
other hand, the possibility to take positive action - by promoting the under-represented sex - 
in order to bring about de facto equality. 

4 

5 

6 

for 

(2012)  09 

final.  Available 

the  21st  Century,  COM 

a)  Communication  on  Safeguarding  Privacy  in  a  Connected  World  –  A  European  Data  Protection 
at:  http://eur-
Framework 
lex.europa.eu/LexUriServ/LexUriServ.do?uri=CELEX:52012DC0009:en:NOT;  b)  Proposal 
for  a 
Regulation of the European Parliament and of the Council on the protection of individuals with regard 
to  the  processing  of  personal  data  and  on  the  free  movement  of  such  data,  COM  (2012)  11  final. 
Available  at:  http://eur-lex.europa.eu/LexUriServ/LexUriServ.do?uri=COM:2012:0011:FIN:EN:DOC 
c)  Proposal  for  a  Directive  on  the  protection  of  individuals  with  regard  to  the  processing  of  personal 
data by competent authorities for the purposes of prevention, investigation, detection or prosecution of 
criminal  offences  or  the  execution  of  criminal  penalties,  and  the  free  movement  of  such  data,  COM 
http://eur-
final. 
(2012) 
lex.europa.eu/LexUriServ/LexUriServ.do?uri=COM:2012:0010:FIN:EN:DOC 
Directive 95/46/EC on the protection of individuals with regard to the processing of personal data and 
on the free movement of such data, OJ L 281, 23.11.1995, p. 31-50. 
Proposal for a Directive on improving the gender balance among non-executive directors of companies 
listed  on  stock  exchanges  and  related  measures,  COM  (2012)  614  final.  Available  at:  http://eur-
lex.europa.eu/LexUriServ/LexUriServ.do?uri=COM:2012:0614:FIN:en:PDF. 

Available 

10 

at: 

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The  proposal  sets  an  objective  of  40%  for  the  minimum  share  of  the  under-represented  sex 
among  non-executive  board  members  of  such  companies  by  2020  (by  2018  for  listed 
companies which are public undertakings). In order to meet the 40% objective it obliges listed 
companies  with  a  lower  percentage  of  the  under-represented  sex  among  non-executive 
directors to make appointments to those positions on the basis of a comparative analysis of the 
qualifications  of  each  candidate.  This  will  be  achieved  by  applying  pre-established,  clear, 
neutrally formulated and unambiguous criteria; and in case of equal qualifications by giving 
preference to the candidate of the under-represented sex.  

Safeguarding procedural rights remains a priority for the EU. The Directive on the right 
to  information  in  criminal  proceedings,  adopted  on  22  May  2012,  requires  that  anyone 
arrested  is  informed  about  their  rights  in  a  language  that  they  understand7.  In  addition,  the 
new  Directive  establishing  minimum  standards  on  the  rights,  support  and  protection  of 
victims  of  crime,  adopted  on  25  October  2012,  ensures  that  victims  are  given  non-
discriminatory minimum rights across the EU, irrespective  of their nationality  or country of 
residence8. It guarantees that victims are recognised and treated with respect when they come 
into contact with the police, prosecutors and the judiciary. It also gives them the procedural 
rights to be informed, supported and protected and ensures that they can actively participate in 
criminal proceedings. The Directive focuses on the support and protection of victims who are 
vulnerable to secondary or repeat  victimisation or intimidation during criminal proceedings. 
These vulnerable groups include children and victims of gender-based violence, violence in a 
close-relationship, sexual violence or exploitation, hate crime and victims with disabilities. 

EU policies and EU legislation need to be based on objective, reliable and comparable data 
on  the  respect  of  fundamental  rights  in  the  EU.  The  EU  Agency  for  Fundamental  Rights 
(‘the Agency’) has been established to provide such data. Following the entry in to force of 
the Lisbon Treaty, it should be able to perform its tasks in all areas of EU competences where 
fundamental  rights  are  at  stake.  To  achieve  this,  the  Commission  proposed  that  the  Agency 
could  work  in  the  areas  of  police  cooperation  and  judicial  cooperation  in  criminal  matters9. 
The Council did not endorse this approach and decided to exclude these two major fields of 
competence  of  the  Union  from  the  Agency's  Multiannual  framework,  which  determines  the 
thematic areas on  which it  can work during the period 2013-2017. The good functioning of 
the Agency was further put  at  risk  due  to the delay in the adoption of the new  Multiannual 
framework. As a consequence, the Agency was not in a position to carry out its tasks under 
normal conditions and had recourse, for carrying out its tasks, to an ad hoc request, adopted 
by  the  Council  at  the  end  of  2012.  The  Council  proceeded  with  the  adoption  of  the  new 
Multiannual framework on 11 March 2013, after the United Kingdom lifted its parliamentary 
reservation10.  

2.2. 

The fundamental rights dimension of the EU external actions 

The  Charter  applies  to  all  actions  of  the  European  Union,  including  in  the  field  of  external 
relations.  

7 
8 

9 

10 

Directive 2012/13EU on the right to information in criminal proceedings, OJ L 142, 1.6.2012, p. 1-10. 
Directive 2012/29/EU establishing minimum standards on the rights, support and protection of victims 
of crime, and replacing Council Framework Decision 2001/220/JHA, OJ L 315, 14.11.2012, p. 57-74.  
Proposal for a Council Decision establishing a Multiannual Framework for the European Union Agency 
for  Fundamental  Rights 
at: 
http://eurlex.europa.eu/LexUriServ/LexUriServ.do?uri=COM:2011:0880:FIN:EN:HTML.  
Council  Decision  establishing  a  Multiannual  Framework  for  2013-2017  for  the  European  Union 
Agency 
at: 
adopted 
http://register.consilium.europa.eu/pdf/en/12/st10/st10449.en12.pdf  

2013-2017,  COM 

final.  Available 

11  March. 

Fundamental 

Available 

Rights, 

(2011) 

880 

for 

for 

on 

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Building  on  a  joint  Commission/EEAS  Communication,  the  Council  adopted  a  Strategic 
Framework on Human Rights and Democracy and an Action Plan designed to improve 
the effectiveness and consistency of EU human rights policy as a whole in the next years11. As 
one of the first actions under the new EU Strategic Framework and Action Plan, the Council 
appointed Mr Stavros Lambrinidis as EU Special Representative (EUSR) for Human Rights12. 

In  a  case  concerning  the  freezing  of  assets  of  a  company  and  its  majority  shareholder, 
decided by the Council in the framework of common foreign and security policy, the Court 
annulled  the  measures  taken  on  the  grounds  that  the  Council  produced  no  information  or 
evidence.  In  doing  so,  the  Court  upheld  that  the  principle  of  effective  judicial  protection 
(Article  47  of  the  Charter),  means  that  the  ground  for  a  restrictive  measure  must  be 
communicated  to  the  entity  and  person  concerned13.  This  is  necessary  both  to  enable  the 
addressees  to  defend  their  rights  and  also  to  put  the  Court  in  a  position  to  review  the 
lawfulness of the measure in question. This judicial review extends to the assessment of the 
facts  and  circumstances  relied  on  as  justifying  it,  and  to  the  evidence  and  information  on 
which that assessment is based.  
On 4th July 2012, the European Parliament rejected the draft Anti-Counterfeiting Trade 
Agreement  (ACTA)  which  aimed  at  improving  global  standards  for  the  enforcement  of 
intellectual property rights to more effectively combat trade in counterfeit and pirated goods. 
In doing so the European Parliament used the Charter when exercising its new prerogatives on 
international  trade  agreements14.The  EP  referred  in  particular  to  the  need  for  an  appropriate 
balance in the draft trade agreement between freedom of expression and information and the 
right to property. The Commission was also attentive to these concerns and had already asked 
the  Court  to  assess  whether  the  ACTA  agreement  was  compatible  with  the  Charter.  The 
Commission withdrew its request for an opinion of the Court, after the European Parliament 
made clear it could not accept the draft agreement. 

2.3. 

The Court's control of EU acts for compliance with the Charter 

The rulings delivered by the Court in 2012 that concerned the compliance of EU acts with the 
Charter, gave guidance on how to take into account fundamental rights in the EU's legislative 
work and all other acts of the EU, which have legal effects. 

The Court made clear that the Charter must be taken into account when the legislator decides 
to delegate powers to the Council or to the Commission. It annulled a Council implementing 
decision on surveillance of the external sea borders of the EU on the basis that the adoption of 
rules conferring enforcement powers on border guards entails political choices falling within 
the responsibilities of the European Union legislature and that these rules were likely to affect 
personal  freedom  and  fundamental  rights  to  such  an  extent  that  the  involvement  of  the 
European Union legislature is required 15. 

The Court also examined whether the EU institutions actually respect the principle of non-
discrimination  in  their  recruitment  policy.  The  Court  annulled  the  notices  of  several  open 
competitions to become a civil servant of EU institutions which have been published in full 

11 

12 

13 
14 
15 

886 

COM 

(2011) 

effective 

approach, 

Joint Communication on Human rights and democracy at the heart of EU external action – towards a 
more 
http://eur-
lex.europa.eu/LexUriServ/LexUriServ.do?uri=COM:2011:0886:FIN:EN:PDF.  Strategic  Framework 
and Action plan on Human Rights and Democracy Council Document n°11417/12 EXT 1 of 28.6.2012. 
Available at: http://register.consilium.europa.eu/pdf/en/12/st11/st11417-ex01.en12.pdf 
Council Decision 2012/440/CFSP of 25.7.2012 appointing the European Union Special Representative 
for Human Rights, OJ L 200, p. 21-23 
CJEU, Case T-439/10 and T-440/10, Fulmen and F. Mahloudian v Council, 21.3.2012. 
Recommendation of the European Parliament, document ref: A7-0204/2012 of 22.6.2012. 
CJEU, Case C-355/10, European Parliament v. Council of EU, 5.9.2012. 

final.  Available 

at: 

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only  in  three  official  languages16.  The  Court  found  that  a  potential  candidate  whose  mother 
tongue was not one of the languages of full publication of the contested competition notices 
was at a disadvantage compared to a candidate whose mother tongue was one of those three 
languages.  That  disadvantage  was  the  consequence  of  a  disproportionate  difference  in 
treatment on the ground of language, prohibited by Article 21 of the Charter. 

The Court also controlled the application of the principle of good administration by the EU 
institutions (Article 41 of the Charter). It annulled the decision of the Commission to reject an 
offer  in  the  context  of  an  invitation  to  tender  for  public  service  procurement,  because  the 
Commission did not provide sufficient justification for its decision17. The Court established a 
link between Article 41 (good administration) and Article 47 (access to justice) of the Charter, 
insofar as the reasons given by the administration are necessary for the person concerned to 
decide whether to challenge the decision before the relevant courts. 

Several  rulings  given  by  the  Court  in  the  past  years  triggered  adaptations  to  EU 
legislation.  In  this  respect,  the  European  Parliament,  the  Council  and  the  Commission 
incorporated  the  Court's  case  law  when  negotiating  on  the  new  ‘Dublin  Regulation’  on  the 
conditions for the transfer of asylum seekers in the EU18. As a result, under the newly agreed 
rules, asylum seekers cannot be sent back to a Member State where there is a serious risk of 
violation  of  their  fundamental  rights.  Instead,  the  responsibility  to  give  quick  access  to  an 
asylum procedure should be exercised by another Member State. 

The Commission also incorporated the Court's case law when preparing its modified proposal 
on  the  publication  of  the  beneficiaries  of  European  agricultural  funds19.  The  new  proposed 
rules are based on a revised detailed justification, centred on the need for public control of the 
use  of  European  agricultural  funds  in  order  to  protect  the  Union's  financial  interests.  They 
require more detailed information to be given on the nature and description of the measures 
for  which  the  funds  are  disbursed.  However,  below  a  minimum  threshold  the  name  of  the 
beneficiary  will  not  be  published.  This  provision  follows  proportionality  considerations, 
namely  between  the  objective  of  the  public  control  of  the  use  of  public  funds,  on  the  one 
hand, and the beneficiaries’ right to respect for their private life in general and to protection of 
their personal data on the other hand. 

3. 

IMPLEMENTATION OF THE CHARTER IN THE MEMBER STATES 

Within the EU, the protection of fundamental rights is ensured by a two-layered system: the 
national  system  based  on  Member  States'  constitutions  and  international  legal  obligations, 
such as the European Convention on Human Rights (ECHR); and the EU system based on the 
Charter,  which  comes  into  operation  only  in  relation  to  actions  by  EU  institutions,  or  when 
Member  States  implement  EU  law.  The  Charter  complements  existing  systems  for  the 
protection of fundamental rights, it does not replace them.  

16 
17 
18 

19 

CJEU, Grand Chamber, Case C-566/10 P, Italian Republic v Commission, 27.11.2012. 
CJEU, Case T-183/10, Sviluppo Globale GEIE v Commission, 10.10.2012.  
CJEU,  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. Proposal for a Regulation establishing the 
criteria and mechanisms for determining the Member State responsible for examining an application for 
international  protection  lodged  in  one  of  the  Member  States  by  a  third-country  national  or  a  stateless 
http://eur-
person, 
lex.europa.eu/LexUriServ/LexUriServ.do?uri=COM:2008:0820:FIN:EN:PDF 
CJEU, joined Cases C-92/09 and C-93/09, Volker und Markus Schecke GbR & Hartmut Eifert v. Land 
Hessen&  Bundesanstalt 
the 
Commission  proposal  COM  (2011)  628  final/2  for  a  Regulation  on  the  financing,  management  and 
monitoring  of 
final.  Available  at: 
http://ec.europa.eu/agriculture/funding/regulation/amendment-com-2012-551_en.pdf.  

für  Landwirtschaft  und  Ernährung,  10.11.2010.  Amendment 

the  common  agricultural  policy,  COM 

(2012)  551 

Available 

(2008) 

COM 

final. 

820 

at: 

to 

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The limits of the scope of application of the Charter have been underlined by the Court. 
It  declared  inadmissible  a  preliminary  reference  from  a  Bulgarian  Administrative  Court 
concerning the right to a judicial remedy in respect of decisions imposing criminal sanctions 
for certain breaches of road traffic regulations, referring to settled case law, which is that the 
requirements flowing from the protection of fundamental rights are binding on Member States 
whenever they implement EU law20. 

The  provisions  of  the  Charter  are  addressed  to  the  Member  States  only  when  they  are 
implementing EU law and neither the Charter nor the Treaty creates any new competence for 
the  EU  in  the  field  of  fundamental  rights.  Where  the  national  legislation  at  stake  does  not 
constitute a measure implementing EU law or is not connected in any other way with EU law, 
the jurisdiction of the Court is not established21. 

The  important  implications  of  the  Charter  are  to  be  seen  in  the  increasing  number  of 
requests  for  a  preliminary  ruling  of  national  jurisdictions  received  by  the  Court.  For 
example, in the field of asylum the Court upheld that whenever an application for asylum is 
lodged  at  the  border  or  in  the  territory  of  a  Member  State,  that  Member  State  is  obliged  to 
grant the minimum conditions for reception of asylum seekers laid down in EU law regardless 
of whether a Member State is responsible for examining the application for asylum under EU 
law22.  In  particular,  the  need  to  uphold  fundamental  principles  of  human  dignity  (Article  1) 
and the right to asylum (Article 18) means that, the obligation under EU law23 to provide an 
asylum seeker with housing, food, clothes and a daily expenses allowance, and the subsequent 
financial  onus,  are  to  be  borne  by  the  requesting  Member  State  until  the  asylum  seeker  is 
transferred to the Member State responsible for examining their application. 

3.1. 

Actions  taken  by  the  Commission  to  ensure  the  respect  of  the  Charter  by  the 
Member States 

The Commission also makes sure that the Charter is respected in its role as guardian of the 
Treaties and is determined to intervene to this effect where necessary when it has the power to 
do so. For the first time, in 2012, the Commission was called upon to take infringement cases 
to  the  Court  of  Justice,  which  concerned  the  non-compliance  of  a  Member  State  with  key 
provisions of the Charter. 

Over the past years, Hungary adopted several laws – some of them so-called cardinal laws 
adopted  directly  under  its  new  constitution  –  which  raised  important  fundamental  rights 
concerns and also came under the scrutiny of the Council of Europe. The Commission carried 
out its legal analysis on those points where there was a link with EU law, in accordance with 
the scope of application of the Charter (Article 51) and the Commission's role as guardian of 
the Treaties. Following first warning letters in the end of 2011, the Commission decided on 
7th  June  2012  to  bring  infringement  procedures  before  the  Court.  The  Commission  firstly 
challenged interferences with the independence of the Hungarian data protection authority, on 
the  ground  that  the  “complete  independence”  of  national  data  protection  authorities  is  a 
requirement under the 1995 Data Protection Directive and is recognised explicitly in Article 
16  TFEU  as  well  as  in  Article  8  of  the  Charter.  In  a  second  infringement  proceeding,  the 
Commission  contested  the  early  retirement  of  around  274  judges  and  public  prosecutors  in 
Hungary  caused  by  a  sudden  reduction  of  the  mandatory  retirement  age  for  this  profession 

20 
21 
22

23 

CJEU, Case C-27/11, Vinkov, 7.6.2012 
See also CJEU, Case C 370/12, Pringle v Ireland, 27.11.2012 
CJEU,  Case  C-179/11  Cimade  and  Groupe  d’information  et  de  soutien  des  immigrés  (GISTI)  v. 
Ministre de l’Intérieur, de l’Outre-mer, des Collectivités territoriales et de l’Immigration, 27.09.2012 
Council Directive 2003/9/EC laying down minimum standards for the reception of asylum seekers, OJ 
L 31, 6.2.2003, p. 18 – 25. 

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from  70  to  62.  The  basis  for  the  Commission's  action  was  Directive  2000/78/EC  on  equal 
treatment in employment which prohibits discrimination at the workplace on grounds of age. 
This also covers the dismissal for age related reasons without an objective justification. This 
case thus helps to implement the general prohibition of discrimination, including on grounds 
of  age,  as  guaranteed  by  Article  21  of  the  Charter.  The  Court's  ruling  of  6  November  2012 
upheld  the  Commission's  assessment  according  to  which  the  mandatory  retirement  age  for 
judges, prosecutors and notaries within a very short transitional period is incompatible with 
EU equal treatment law. Hungary will have to change these rules to comply with EU law24.  

Media  freedom  and  pluralism  also  formed  the  basis  of  the  discussions  between  the 
Commission  and  the  Hungarian  authorities  on  the  new  media  legislation  as  regards  the 
obligation of balanced coverage and the rules on offensive content. Some modifications were 
also agreed between the Commission and the Hungarian authorities on other provisions which 
could  otherwise  constitute  an  infringement  of  the  Audio-visual  Media  Services  Directive 
and/or the rules on free circulation of services and establishment. 

As  regards  the  issue  of  judicial  independence  in  Hungary  more  generally,  the  Commission 
expressed  its  concerns  in  a  number  of  letters  in  2012,  in  particular  the  powers  of  the 
Hungarian  President  of  the  National  Judicial  Office  to  reallocate  cases  from  one  court  to 
another and to transfer a judge against his or her will. The Commission pointed out that these 
measures could affect the effective application of Union law in Hungary and the fundamental 
rights  of  citizens  and  businesses  to  an  effective  remedy  by  an  independent  court  in  cases 
based on Union law, as guaranteed by Article 47 of the Charter. Discussions have also taken 
place  between  the  Council  of  Europe  (in  particular  the  Venice  Commission)  and  the 
Hungarian authorities. The Commission keeps the matter under close review, in particular to 
verify compliance with the right to an effective remedy. 

Likewise, immediately upon having been made aware, in August 2012, about developments 
in France on the dismantling of Roma settlements and about returns of Roma to their home 
country, the Commission wrote to the French authorities and discussions took place enabling 
to clarify the facts and the legal framework. The situation has changed considerably in the last 
few  years.  Further  to  the  Commission's  action  in  2010  to  guarantee  the  application  of  free 
movement  directive  by  all  Member  States,  and  to  put  in  place  a  European  Framework  for 
National  Roma  Integration  Strategies,  France  modified  its  law  to  guarantee  full  compliance 
with  the  free  movement  directive,  notably  as  concerns  procedural  safeguards  related  to 
expulsions of EU citizens, and adopted its national Roma Integration Strategy. On the basis of 
this new Strategy, close cooperation and enhanced efforts on Roma inclusion is taking place 
with the active participation of France.  

In  2012,  the  Commission  also  launched  infringement  proceedings  against  Malta  on  the 
grounds  of  its  failure  to  correctly  implement  the  EU  free  movement  rules  and  more 
particularly  the  right  of  same-sex  spouses  or  registered  partners  to  join  EU  citizens  in 
Malta  and  reside  there  with  them.  As  a  result  of  the  Commission's  action,  the  Maltese 
legislation was modified and is now compatible with EU rules on the rights of EU citizens to 
free movement and non-discrimination. 

3.2. 

Development  of  national  case  law  on  the  application  of  the  Charter  by  the 
Member States 

The  community  of  law,  on  which  the  Union  is  based,  relies  on  national  courts.  Only  if 
national judges fully exercise their powers, can the rights that Union law grants to citizens be 

24 

CJEU, Case C 286/12, European Commission v. Hungary, 6.11.2012 

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effectively  guaranteed.  The  national  constitutional  and  supreme  courts  have  a  special 
responsibility for cooperating with the Court to ensure effective application of the Charter.  

Data  gathered  by  the  Association  of  Councils  of  States  and  of  Supreme  Administrative 
Courts (ACA) show that the Charter has by now been referred to in numerous judgements by 
administrative courts in EU Member States25. The provisions of the Charter most frequently 
mentioned  in  the  reports  are  respect  for  private  and  family  life  (Article  7),  freedom  of 
expression and information (Article 11), right to property (Article 17), right to asylum (Article 
18), prohibition of collective expulsion and non-refoulement (Article 19), rights of the child 
(Article 24), right to good administration (Article 41) and right to an effective remedy and to a 
fair trial (Article 47).  

The branch of law in which the Charter has been referred to most to date is immigration and 
asylum26.  The  analysis  provided  by  the  EU  Agency  for  Fundamental  Rights  on  information 
provided by some Member States on case law on the Charter also shows that the implications 
of the Charter go well beyond this area, and concern very diverse areas such as regulations on 
financial markets, labour law, consumer protection, environment law and children's custody27.  

The analysis of court rulings referring to the Charter further suggests that national judges use 
the Charter to support their reasoning, including when there is not necessarily a link with EU 
law.  There  is  also  some  evidence  of  an  incorporation  of  the  Charter  in  the  national 
systems of fundamental rights protection. The Austrian Constitutional Court handed down 
a landmark decision regarding the application of the Charter in the frame of domestic judicial 
review of constitutionality28. It recognised the very special role of the Charter within the EU 
legal system, and its different nature compared to the body of rights and principles which the 
Court of Justice of the EU has been developing throughout the years. It took the view that the 
Charter is enforceable in the proceedings brought before it for the judicial review of national 
legislation, and therefore individuals can rely upon the rights and the principles recognised in 
the  Charter  when  challenging  the  lawfulness  of  domestic  legislation.  The  Austrian 
Constitutional  Court  identified  strong  similarities  between  the  role  played  by  the  Charter  in 
the EU legal system and that played by the ECHR under the Austrian Constitution, according 
to which the ECHR has force of constitutional law. 

4. 

ACCESSION OF THE EU TO THE EUROPEAN CONVENTION ON HUMAN RIGHTS 

The Treaty of Lisbon has imposed a clear obligation on the EU to accede to the ECHR. All 
Member States agreed to this when they ratified the Treaty of Lisbon. 

Negotiations on the accession agreement were stalled in the first half of the year, as certain 
Member States had expressed doubts and raised questions on the draft agreement, drawn up at 
technical level in June 2011. Eventually agreement was reached in the Council in April 2012 
so  negotiations  could  resume  in  June  2012  in  a  47  +  1  format  (47  Members  of  Council  of 
Europe and the Commission on behalf of the EU).  

25 

26 

27 

28 

for 

the 

details 

reports 

to  ACA 

Europa.  Available 

See 
europe.eu/en/colloquiums/colloq_en_23.html 
Apart from Spain, Hungary and Austria, the Charter has been referred to in this branch of law in every 
country.  
See  in  particular:  The  Protection  of  Fundamental  Rights  Post  Lisbon:  the  Interaction  between  the 
Charter  of  Fundamental  Rights  of  the  European  Union,  the  European  Convention  on  Human  Rights 
and  National  Constitutions  Vol  I,  ed.  Laffranque,  Julia,  Reports  of  the  FIDE  Congress  Tallinn  2012, 
University of Tartu 
Austrian Constitutional Court, Cases U 466/11 and U 1836/11, 14.3.2012 

http://www.aca-

at: 

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In parallel, work has been undertaken on the core elements of the internal rules intended to 
govern  the  participation  of  the  EU  and  Member  States  in  proceedings  before  the  Court  of 
Strasbourg in situations where Union law is called into question.  

Against  this  background,  the  unanimity  required  for  the  conclusion  of  the  accession 
agreement  to  the  ECHR  and  its  accompanying  measures  should  not  serve  as  an  excuse  to 
delay the process, which is a clear and mandatory objective enshrined in the Treaty.  

5. 

CONCLUSION 

After  just  three  years  in  force  as  primary  law,  the  take  up  of  the  Charter  by  national  courts 
when  EU  law  is  involved  can  be  seen  as  a  positive  sign.  The  increasing  reference  to  the 
Charter gives a first indication of an effective, decentralised application of the Charter within 
the  national  constitutional  orders.  This  is  an  important  step  on  the  road  to  a  more  coherent 
system  for  the  protection  of  fundamental  rights  which  guarantees  equal  levels  of  rights  and 
protection in all Member States whenever EU law is being implemented.  

The 2012 State of the Union address of President Barroso underlined that the foundations on 
which our Union is built - the respect of fundamental rights, the rule of law and democracy - 
must continuously be protected and strengthened29. That is why the Commission is committed 
to  lead  by  example  in  ensuring  that  all  EU  acts  comply  with  the  Charter.  The  Commission 
remains determined to take decisive steps to give concrete effect to the Charter when it has 
the  competence  to  do  so.  Likewise,  the  Commission  is  committed  to  intervene  where 
necessary  when  Member  States  implement  EU  law  in  order  to  ensure  the  effective 
implementation of the Charter, as in the action it brought before the Court contesting the early 
retirement of judges and public prosecutors in Hungary. 

The  Commission  will  keep  the  development  of  fundamental  rights  protection  in  the  EU, 
including  the  evolving  case-law  on  the  application  of  the  Charter  both  at  Union  and  at 
national level30, under close review and calls upon the European Parliament and the Council 
of Ministers to discuss the present report in detail. 

29 
30 

Available at: http://europa.eu/rapid/press-release_SPEECH-12-596_en.htm  
Speech  of  Vice-President  Viviane  Reding  at  the  XXV  Congress  of  FIDE  (Fédération  Internationale 
pour 
le  Droit  Européen)  Tallinn,  31  May  2012.  Available  at:  http://europa.eu/rapid/press-
release_SPEECH-12-403_en.htm?locale=en  

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