COMMISSION STAFF WORKING DOCUMENT Staff Working Document on the Application of the EU Charter of Fundamental Rights in 2015 Accompanying the document Report from the Commission to the European Pariliament, the Council, the European Economic and Social Committee and the Committee of the Regions 2015 Report on the Application of the EU Charter of Fundamental Rights
Date: 2016-05-19
Institutions: Directorate-General for Justice and Consumers, European Commission
Subjects: European Convention on Human Rights, European security, anti-discriminatory measure, application of EU law, data protection, fundamental rights, human rights, illegal migration, terrorism

EN 

   EN 

   EUROPEAN COMMISSION  Brussels, 19.5.2016  SWD(2016) 158 final   COMMISSION STAFF WORKING DOCUMENT Staff Working Document on the Application of the EU Charter of Fundamental Rights in 2015 Accompanying the document Report from the Commission to the European Pariliament, the Council, the European Economic and Social Committee and the Committee of the Regions 2015 Report on the Application of the EU Charter of Fundamental Rights {COM(2016) 265 final}  
 
 
Introduction 

After the entry into force of the EU Charter of Fundamental Rights1 (the Charter), in December 2009, 
the Commission adopted a Strategy on the effective implementation of the Charter2 setting as an 
objective that the EU is beyond reproach as regard the respect of fundamental rights, in particular 
when it legislates. The Commission further committed to preparing Annual Reports to better inform 
citizens on the application of the Charter and to measure progress in its implementation. The reports 
are  intended  to  serve  as  a  factual  basis  for  the  continuing  informed  dialogue  between  all  EU 
institutions and Member States on the implementation of the Charter.  

This Report covers the year 2015 and informs the public about situations in which they can rely on 
the Charter and on the role of the European Union in the field of fundamental rights. In covering the 
full range of Charter provisions on an annual basis, the Annual Report aims to track where progress is 
being made, where further efforts are still necessary and where new concerns are arising.  

The Annual Report is based on the actions taken by the EU institutions, on the analysis of letters and 
petitions  from  the  general  public  and  questions  from  the  European  Parliament.  In  addition,  the 
report covers key developments as regards the jurisprudence of the Court of Justice of the European 
Union (CJEU), and provides information on the case law of national courts on the Charter, based on  
analysis carried out by the EU Agency for Fundamental Rights (FRA). 

Protection of Fundamental Rights in the EU 

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

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

The Charter applies to Member States only when they implement EU law. Hence it does not replace 
national  fundamental  rights  systems  but  complements  them.  The  factor  connecting  an  alleged 
violation  of  the  Charter  with  EU  law  will  depend  on  the  situation  in  question.  For  example,  a 
connecting  factor  exists:  when  national  legislation  transposes  an  EU  Directive  in  a  way  contrary  to 
fundamental  rights,  when  a  public  authority  applies  EU  law  in  a  manner  contrary  to  fundamental 
rights, or when a final decision of a national court applies or interprets EU law in a way contrary to 
fundamental rights. 

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. 

2 

 
 
 
 
 
                                                            
If  a  national  authority  (administration  or  court)  violates  fundamental  rights  set  out  in  the  Charter 
when  implementing  EU  law,  the  Commission  can  take  the  matter  to  the  CJEU  and  start  an 
infringement procedure against the Member State in question. The Commission is not a judicial body 
or a court of appeal against the decisions of national or international courts. Nor does it, as a matter 
of principle, examine the merits of an individual case, except if this is relevant to carry out its task of 
ensuring  that  the  Member  States  apply  EU  law  correctly.  In  particular,  if  it  detects  a  wider,  e.g. 
structural,  problem,  the  Commission  can  contact  the  national  authorities  to  have  it  solved,  and 
ultimately it can take a Member State to the CJEU. The objective of these infringement procedures is 
to ensure that the national law in question - or a practice by national administrations or courts  - is 
aligned with the requirements of EU law. 

Where  individuals  or  businesses  consider  that  an  act  of  the  EU  institutions  directly  affecting  them 
violates  their  fundamental  rights  as  enshrined  in  the  Charter,  they  can  bring  their  case  before  the 
CJEU, which, subject to certain conditions, has the power to annul the act in question. 

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

Therefore, where the Charter is not applicable in certain situations within an EU Member State, two 
other sources of protection for fundamental rights exist: Individuals may have recourse to national 
remedies  and,  after  having  exhausted  them,  they  can  lodge  an  application  to  the  European 
Convention on Human Rights (ECHR), in accordance with that convention. 

In  fact,  all  EU  Member  States  are  bound  by  the  commitments  they  have  made  under  the  ECHR, 
independent of their obligations under EU law. Therefore, as a last resort and after having exhausted 
all  legal  remedies  available  at  national  level,  individuals  may  bring  an  action  before  the  European 
Court of Human Rights in Strasbourg for a violation by a Member State of a right guaranteed by the 
ECHR. The European Court of Human Rights (ECtHR) has designed an admissibility checklist in order 
to  help  potential  applicants  work  out  for  themselves  whether  there  may  be  obstacles  to  their 
complaints being examined by the ECtHR.3  

Furthermore, the interpretation of the Charter rights which correspond to rights guaranteed by the 
ECHR must correspond to the interpretation of the latter by the ECtHR.   

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

3 

 
 
 
                                                            
EU accession to the European Convention of Human Rights 

The Treaty of Lisbon has imposed an obligation on the EU to accede to the ECHR. In April 2013, the 
draft agreement on accession of the EU to the ECHR was finalized. The opinion of the Court of Justice 
of December 2014, by which the Court declared the 2013 draft Accession Agreement incompatible 
with the Treaties, raised legally and politically complex issues. After a reflection period during which 
the  Commission  has  examined  the  best  way  forward,  in  both  legal  and  political  terms,  the 
Commission,  in  its  capacity  as  EU  negotiator,  is  now  consulting  with  the  special  committee 
designated by the Council on concrete solutions for the different issues raised in the opinion of the 
Court of Justice. 

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

During  2015,  the  Commission  received  almost  2200  letters  from  the  general  public  concerning 
fundamental  rights  issues  as  well  as  930  questions  from  the  European  Parliament  concerning 
fundamental rights issues.  

4 

 
 
 
 
 
 
 
It  has  also  received  916  petitions  from  the  European  Parliament,  187  of  which  concerned 
fundamental rights.4 

Among the letters from the general public on fundamental rights issues received by the Commission 
in 2015, 895 concerned issues within EU competence.  

In a number of cases, the Commission requested information from the Member States concerned or 
explained to  the complainant the applicable EU rules. In other cases, the complaints should in fact 
have been addressed to the national authorities or to the ECtHR. Where possible, complainants were 
redirected to other bodies for more information (such as national data protection authorities).  

Among the questions from the European Parliament, 570 concerned issues within EU competence. 

4 See also below under Article 44 on the right to petition. 

5 

 
 
  
 
                                                            
Among 187 petitions, 106 concerned issues within EU competence. 

In  a  number  of  cases,  the  Commission  contacted  the  Member  States  to  obtain  clarifications  on 
alleged  violations.  The  replies  given  by  the  Commission  explained  or  clarified  the  relevant  policies 
and on-going initiatives.  

Overview of the decisions of the Court of Justice of the European Union 
(Court of Justice, General Court and Civil Service Tribunal) referring to 
the Charter 

The European Union Courts have increasingly referred to the Charter in their decisions. The number 
of decisions of these Courts quoting the Charter in their reasoning developed from 43 in 2011 to 87 
in  2012.  In  2013,  the  number  of  these  decisions  quoting  the  Charter  amounted  to  113,  which  is 
almost a triple of the number of cases of 2011. In 2014, this number rose even higher to 210 cases 
while in 2015 it settled at 167 (see Appendix I for an overview of all relevant rulings). 

6 

 
 
 
 
 
 
 
 
Overview of CJEU case law which directly quotes the Charter or mentions it in 
its reasoning 

250

200

150

100

50

0

General provisions

Justice

Solidarity

Citizens' rights

Equality

Freedoms

Dignity

6 

81 

15 

49 

20 

37 

2 
2014

1 

70 

12 

37 

25 

22 
0 
2015

1 

59 

10 
4 
14 

25 
1 
2013

3 

30 

23 

10 
8 
12 
1 
2012

0 
8 
1 
2 
8 
8 
0 
2010

0 
5 
0 
0 
1 
0 
0 
2009

0 
20 
4 
3 
6 
10 
0 
2011

s
g
n

i
l

u
r

f
o
r
e
b
m
u
N

Source: European Commission 

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

7 

 
 
 
 
 
 
 
 
Requests for preliminary rulings which mention the Charter 

8 

7 

2 

8 

16 

0 
2012

13 

4 

5 

9 

6 

4 

2013

14 

2 

6 

7 

14 

0 
2014

12 

2 

7 

5 

9 

0 
2015

7 

1 
4 

6 

8 

1 
2011

8 

1 
2 
2 

6 
0 
2010

1 
0 
1 
0 
0 
0 
2009

Justice

Solidarity

Citizens' rights

Equality

Freedoms

Dignity

50

45

40

35

30

25

20

15

10

5

0

s
g
n

i
l

u
r
y
r
a
n
m

i

i
l

e
r
p
f
o
r
e
b
m
u
N

Source: European Commission 

8 

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

When focusing on the different articles of the Charter referred to in cases before the EU Courts the 
articles that featured prominently were the ones on the right to an effective remedy and a fair trial, 
the right to good administration and the scope and interpretation of rights and principles. 

Percentage of references to particular articles of the 
Charter in decisions of the Court of Justice of the 
Europan Union 2015 

Other rights

9 
3% 

8 
2% 

9 
3% 

13 
4% 

14 
4% 

18 
6% 

21 
6% 

34 
10% 

74 
23% 

Art 47 right to an effective remedy
and to a fair trial

Art 41 right to good
administration

Art 52 scope and interpretation of
rights and principles

Art 17 right to property

Art 21 non-discrimination

Art 7 right to private life

54 
17% 

72 
22% 

Art 20 equality before the law

Art 48 presumption of innocence
and right of defence

Art 51 field of application

Art 16 freedom to conduct a
business

Source: European Commission 

9 

 
 
 
 
 
Note: The basis  for  this  pie chart is  the  case  law  as  referred  to  in Appendix  I.  The total  number of 
judgments  analysed  amounted  to  167,  and  the  total  number  of  references  to  different  Charter 
articles amounted to 326, as several judgments referred to more than one article. The percentages 
were calculated on the basis of these 326 references. The category 'Other rights' refers to all rights 
for which the percentage amounts to less than 2 %, i.e. less than 8 references. 

The rights  mostly  referred  to  in decisions  of  national  courts in  2015  were  the right  to  an  effective 
remedy, the right to private and family life and the right to protection of personal data. 

References to Charter Articles in national courts' decisions by article (% of 
total Charter references in decisions analysed) 2015 

Effective remedy and fair trial – Art. 47 

18 
15% 

37 
31% 

13 
11% 

12 
10% 

4 
3% 

5 
4% 

5 
4% 

11 
9% 

7 
6% 

9 
7% 

Respect for private and family life – Art. 7 

Protection of personal data – Art. 8 

Scope and interpretation of rights and 
principles – Art. 52 

Field of application of the Charter – Art. 
51 

Non-discrimination – Art. 21 

 Right to good administration – Art. 41 

Right to property – Art. 17 

Prohidition of torture and inhuman or 
degrading 
treatment or punishment –  Art. 4 

Other Charter rights – refered to in less 
than 4 decisions 

10 

 
 
 
 
Source: European Union Agency for Fundamental Rights (FRA)  

Note: The data for this graph is based on up to three court decisions per EU Member State where the 
Charter was used in the courts’ reasoning (cases where the courts simply refer to the fact that parties 
invoked the Charter were not taken into account). 68 court decisions from 26 Member States were 
analysed. Just as last year, no relevant case was identified for Denmark. Also for Croatia no case was 
communicated. The percentages are based on the total number of references made to the Charter 
(121),  rather  than  the  number  of  courts’  decisions  (68),  as  some  courts'  decisions  contained 
references to more than one Charter articles.  

Overview of enquiries with the Europe Direct Contact Centres  

The figures collected by the Europe Direct Contact Centres (EDCC) confirm that there is a high degree 
of interest among citizens on justice, citizenship and fundamental rights. In 2015, the EDCC replied to 
9,199 enquiries from citizens. Most Enquirires concerned topics such as: free movement of persons, 
consumer policy and judicial cooperation and fundamental rights and citizenship. 

Enquiries received by the European Direct Contact Centre on justice, fundamental rights and 
citizenship (2015)  

Protection of consumers'' economic and legal interests

Corporate governance

Equality between women and men

Justice and other related policies

Funding

Anti-discrimination and fundamental social rights

Data protection

EU family members and residence

Fundamental rights and citizenship

Judicial cooperation

Consumer policy

Free movement of persons

Source: European Commission 

,0

500,0

1000,0 1500,0 2000,0 2500,0 3000,0 3500,0

Methodology and Structure of the Staff Working Document  

The Staff Working Document annexed to the Annual Report does not look at the Charter only as a 
legally binding source of law. It rather  aims also to render account, from a broader perspective, of 
the different ways the Charter was invoked and contributed to the progress made in respecting and 
promoting  fundamental  rights  in  a  number  of  areas  during  2015.  As  a  consequence,  the  Staff 

11 

 
 
 
 
 
 
Working Document refers to the Charter as a legally binding instrument as well as a policy objective 
depending on the areas concerned. Furthermore, accounts given under the different chapters of the 
report vary in breadth as well depth. 

Hence, some chapters may show how certain legislative measures are interacting with fundamental 
rights  by  promoting  them  or  by  finding  the  right  balance  in  complying  with  them,  including 
references  to  the  relevant  case  law  of  the  CJEU.  Other  chapters  contain  little  of  both  and/or  may 
concentrate  on  policy  rather  than  legislative  measures.  To  illustrate  the  growing  impact  of  the 
Charter, the Staff Working Document - on the margins of the page where relevant - includes national 
court decisions which refer to the Charter, irrespective of whether EU law in those national cases was 
applicable or not. 

Some measures  and  cases  may  have  an  impact  on  different  articles  of  the  Charter.  Hence,  while  a 
measure  and/or  case  are  explained  in  a  more  detailed  manner  under  one  chapter  (the  heading  of 
one article) it may be referred to under a different one as well. 

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

 

Legislation: 

o  Examples of EU institutions (proposed or adopted) legislation promoting the Charter 

rights; 

o  Examples  of  how  the  EU  institutions  and  the  Member  States  ensured  compliance 
with  and  have  applied  the  Charter  in  2015  within  other  (proposed  or  adopted) 
legislation; 

  Policy: 

o  Examples  of  how  the  EU  institutions  and  the  Member  States  ensured  compliance 
with  and  have  applied  the  Charter  in  2015  within  policy  areas,  e.g.  through 
recommendations and guidelines and best practices;  

  Case-law:  

o  Relevant jurisprudence of the CJEU; 
o  Case-law of national courts referring to the Charter (be it within or outside the scope 

of EU law); 

  Application by Member States: 

o  Follow-up:  infringement  procedures  launched  by  the  Commission  against  Member 

States for not or wrongly implementing relevant legislation; 

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

received in 2015 focusing on main fundamental rights issues; 

  Data gathered by the EU Agency for Fundamental Rights throughout 2015. 

12 

 
 
 
 
 
 
 
Dignity 

In  May  2015  the  European  Ombudsman  closed  its  enquiry  concerning  the  means  through  which 
Frontex ensures respect for fundamental rights in joint return operations. Specific fundamental rights 
safeguards were later included in the proposal for a Regulation on the European Border and Coast 
Guard with a view to ensuring compliance with the specific provisions of the Charter, including the 
right to dignity and the prohibition of inhuman and degrading treatment. 

Council Decisions adopted in November 2015 authorised the Member States to ratify, in the interests 
of the European Union, the Protocol of 2014 to the Forced Labour Convention of the International 
Labour Organisation. The Protocol obliges the State Parties to prevent the use of forced labour, in 
particular in the context of trafficking in human beings, to improve the protection of victims, and to 
provide access to compensation.  

13 

 
 
Title I 

Dignity 

Article 1 – Human Dignity 

Human  dignity,  as  protected  in  Article  1  of  the  Charter,  is  the  basis  of  all  fundamental  rights.  It 
guarantees the protection of human beings from being treated as a mere objects by the State or by 
his/her  fellow  citizens.  It  is  not  only  a  right  in  its  own  but  also  part  of  the  very  substance  of  each 
right. Thus it needs to be respected when any of these rights are restricted. All subsequent rights and 
freedoms under the title Dignity, such as the right to life, and the prohibition of torture and slavery 
add specific protection against infringements of dignity. They must equally be respected in order to 
allow enjoyment of other rights and freedoms in the Charter, for example freedom of expression and 
freedom of association. None of the rights laid down in the Charter may be used to harm the dignity 
of another person.  

Legislation 

Human dignity issues arose in several instances in  2015. In the area of migration, in May 2015 the 
European  Ombudsman  closed5  its  enquiry  concerning  the  means  through  which  Frontex  ensures 
respect  for  fundamental  rights  in  joint  return  operations  (JRO).  The  Ombudsman  commended 
Frontex' work to date. However, she called on the agency to ensure that families with children and 
pregnant women are seated separately from other returnees. Frontex should also promote common 
rules  on  the  use  of  restraint,  publish  more  information  on  JROs,  including  monitors'  reports,  and 
require the Member States to improve complaints procedures. The Ombudsman expressed concern 
about the refusal of Frontex to establish its own complaints mechanism.6 

forward 

in  answering 

important  step 

The proposal for a Regulation on the European Border and Coast Guard7 adopted in December 2015, 
represents  an 
the  European  Ombudsman's 
recommendations.  The  proposal  which  is  intended  to  ensure  the  implementation  of  the  European 
integrated border management in line with the principle of shared responsibility, aims at establishing 
a number of fundamental rights safeguards to ensure compliance with fundamental rights8, first and 
foremost  the  right  to  human  dignity.  The  proposal  envisages,  in  particular,  that  the  financing  of  a 
joint  operation  or  a  rapid  border  intervention  may  be  withdrawn  and  that  such  operations  and 
interventions  may  be  suspended  or  terminated  in  case  of  a  breach  of  fundamental  rights.  A 

to 

of 

the 

5  Decision  of  the  European  Ombudsman  closing  her  own-initiative  inquiry  OI/9/2014/MHZ  concerning  the 
European  Agency  for  the  Management  of  Operational  Cooperation  at  the  External  Borders  of  the  Member 
States 
at: 
European 
http://www.ombudsman.europa.eu//cases/decision.faces/en/59740/html.bookmark  
6 See below Article 43 
7 Proposal for a Regulation of the European Parliament and of the Council on the European Border and Coast 
Guard  and  repealing  Regulation  (EC)  No  2007/2004,  Regulation  (EC)  No  863/2007  and  Council  Decision 
2005/267/EC, COM (2015) 671, 15.12.2015, available at: http://eur-lex.europa.eu/procedure/EN/2015_310 
8 See also below Articles 4 and 19 

(Frontex), 

available 

Union 

14 

 
 
 
                                                            
Fundamental Rights Officer shall have the task to monitor the respect of fundamental rights by the 
Agency, and a complaint mechanism will be available to any person who considers him or herself to 
have been subject of a breach of fundamental rights during activities carried out by the Agency, or 
any third party intervener. Finally, it is envisaged that the Agency shall draw up a Fundamental Rights 
Strategy aimed at guaranteeing the protection of fundamental rights in the performance of its tasks, 
including  a  specific  focus  on  persons  in  need  of  international  protection  and  other  persons  in  a 
particularly  vulnerable  situation.  Codes  of  Conduct  to  be  developed  by  the  Agency  will  ensure 
respect for fundamental rights in all border control and return operations. 

Policy 

On  18  March  2015,  a  new  international  framework,  the  Sendai  Framework  for  Disaster  Risk 
Reduction 2015-20309, was agreed and signed by 187 UN Member States in Sendai,  Japan. The EU 
has taken a leading role in building a robust, ambitious and enhanced framework. The Commission 
played a cooperation and coordination role in the process, organising regular coordination meetings 
with Member States and preparing common positions.   

The new framework outlines seven global 'qualitative' targets to be achieved over the next 15 years 
including a  substantial reduction  in global  disaster  mortality,  a substantial reduction  in numbers  of 
affected people, a reduction in economic losses in relation to global GDP, a substantial reduction in 
disaster  damage  to  critical  infrastructure  and  disruption  of  basic  services  (including  health  and 
education  facilities),  an  increase  in  the  number  of  countries  with  national  and  local  disaster  risk 
reduction  strategies  by  2020,  enhanced  international  cooperation  and  increased  access  to  multi-
hazard early warning systems and disaster risk information and assessments. 

The  EU  has  strongly  supported  a  framework  addressing  vulnerabilities  and  needs,  harnessing  the 
potential of civil society and integrating gender, age, and disabilities into disaster risk management. 
The  actions  ensure  compliance  with  the  principles  of  dignity  and  equality  recognised  under  the 
Charter. 

The  implementation  of  the  EU  Aid  Volunteers  initiative  started  in  January  2015  aiming  at  a  first 
deployment of volunteers in early 2016. The EU Aid Volunteers initiative is based on Regulation (EU) 
No 375/2014  establishing  the  European  Voluntary  Humanitarian  Aid  Corps  ("EU  Aid  Volunteers 
initiative")10. The objective is to contribute to strengthening the Union’s capacity to provide needs-
based  humanitarian  aid  and  to  strengthening  the  capacity  and  resilience  of  vulnerable  or  disaster-
affected  communities  in  third  countries,  while  giving  the  European  citizens  an  opportunity  to  be 
involved in humanitarian action in third countries. 

The initiative aims at preventing and alleviating human suffering and maintaining human dignity, in 
line with Article 1 of the Charter. The actions under the initiative, namely the certification of sending 
and  hosting  organisations  and  deployment  of  volunteers,  ensure  equal  opportunities  and  non-

for  Disaster  Risk  Reduction  2015-2030 

9  Sendai  Framework 
http://www.unisdr.org/we/coordinate/sendai-framework    
10 Regulation (EU) No 375/2014 of the European Parliament and of the Council of 3 April 2014 establishing the 
European Voluntary Humanitarian Aid Corps (‘EU Aid Volunteers initiative’), OJ L 122, 24.4.2014, p. 1. 

(Sendai  Framework),  available  at: 

15 

 
 
                                                            
discrimination in the identification and selection process, in compliance with the principle of equality 
(Art. 20 and 21 of the Charter). 

Finally, in the field of migration, the Commission provided guidelines for the Member States on the 
obligation  to  take  fingerprints11,  setting  out  best  practices  to  follow  in  order  to  ensure  that  the 
obligations under the Eurodac Regulation12 are fulfilled in line with the provisions of the Charter. In 
particular, the guidance highlights the legal parameters of using any necessary force and detention in 
cases where third-country nationals refuse to have their fingerprints taken and stresses the need for 
Member States to have full regard to persons’ dignity and physical integrity.  

Application by Member States 

In  2014  the  Commission  had  identified  a  possible  violation  of  fundamental  rights  in  a  temporary 
detention centre for irregular migrants, which was confirmed by the Court of Auditors. Rental costs 
for the centre had been included in a national programme under the External Borders Fund and the 
Commission  had  not  accepted  the  corresponding  costs  when  the  programme  closed.  The  Court  of 
Auditors found that the Member State had not complied with the prohibition of degrading treatment 
and  the  principle  of  human  dignity  due  to  the  bad  conditions  in  which  irregular  migrants  were 
detained.  During  2015,  the  corresponding  financial  corrections  were  effectively  implemented  and 
accepted by the Member State concerned. 

Questions from Members of the European Parliament 

In March and April 2015, Members of the European Parliament contacted the Commission regarding 
the approved UK “Human Fertilisation and Embryology (Mitochondrial Donation) Regulations13”. The 
regulations  allow  a  new  technique,  by  means  of  which  the  resulting  embryo  receives  the 
mitochondrial  DNA  from  a  third  egg  donor.  Members  of  the  European  Parliament  put  forward, 
among others, that the regulations are in breach of the EU Charter of Fundamental Rights, Articles 1, 
2,  3  and  21.  In  its  replies,  the  Commission  indicated  that  by  allowing  the  mitochondrial  transfer 
procedures, the UK does not implement EU law, in particular Directive 2001/20 on clinical trials, and 
therefore Charter does not apply. 

11 Commission Staff Working Document on Implementation of the Eurodac Regulation as regards the obligation 
to take fingerprints,  SWD(2015) 150 final, 27.5.2015 
12  Regulation  (EU)  No  603/2013  of  the  European  Parliament  and  of  the  Council  of  26  June  2013  on  the 
establishment of 'Eurodac' for the comparison of fingerprints for the effective application of Regulation (EU) No 
604/2013  establishing  the  criteria  and  mechanisms  for  determining  the  Member  State  responsible  for 
examining an application for international protection lodged in one of the Member States by a third-country 
national or a stateless person and on requests for the comparison with Eurodac data by Member States' law 
enforcement  authorities  and  Europol  for  law  enforcement  purposes,  and  amending  Regulation  (EU)  No 
1077/2011  establishing  a  European  Agency  for  the  operational  management  of  large-scale  IT  systems  in  the 
area of freedom, security and justice, OJ L 180, 29.6.2013, p. 1.  
13 Regulation 2015 No. 572. 

16 

 
 
 
                                                            
Article 2 – Right to life 

According  to  Article  2  everyone  has  the  right  to  life  and  no  one  shall  be  condemned  to  the  death 
penalty, or executed. 

The European Court of  Human  Rights  has  ruled since 1989  that  the exposure to  the  pervasive  and 
growing  fear  of  execution  -  the  so  called  “death  row  phenomenon”  –  was  in  violation  of  the 
European Convention on Human Rights. The ECtHR also held that the implementation of the death 
penalty  could  be  considered  inhuman  and  degrading  and,  as  such,  contrary  to  Article  3  of  the 
European Convention on Human Rights.14  

In  a  press  interview  of  28  April  2015  Hungarian  Prime  Minister  Orbán  launched  a  debate  on  the 
reintroduction  of  the  death  penalty.  This  led  to  strong  criticism  from  EU  institutions,  including  by 
President Juncker, FVP Timmermans as well as by the President of the European Parliament, Martin 
Schulz.  

On 30 April 2015, President Juncker declared his opposition to the death penalty and recalled that 
the  Charter  of  Fundamental  Rights  of  the  European  Union  prohibits  the  death  penalty.15  First  Vice 
President Timmermans declared on 19 May 2015  that there is  no doubt that the reintroduction of 
capital punishment would be contrary to the EU's fundamental values. A reintroduction of the death 
penalty by a Member State would therefore lead to the application of Article 7 TEU. The mechanisms 
of Article 7 TEU relate to the values referred to in Article 2 TEU, including human dignity and respect 
for human rights.16  

The  Commission  noted  that  Hungary  had  in  the  meantime  clarified  that  it  had  no  intention  to 
introduce  the  death  penalty.  Accordingly,  no  legal  action  was  required  by  the  Commission  at  this 
stage.  

In the field of migration, the budget of the Joint Operation Triton, launched off the coast of Italy on 1 
November 2014, was tripled and the new Triton Operational Plan, agreed between Frontex and Italy 
and  presented  on  27  May  201517,  expanded  both  the  number  of  deployed  assets  and  the 
geographical scope of the operation, in order to allow Frontex to fulfil its dual role of coordinating 
operational  border  support  to  Member  States  under  pressure  and  helping  to  save  the  lives  of 
migrants at sea, thus contributing directly to the respect of the right to life.   

14  ECtHR,  judgement  of  2  March  2010  in  case  Al-Saadoon  &  Mufdhi  v.  the  United  Kingdom,  application  no. 
61498/08. 
15Available at: http://ec.europa.eu/avservices/video/player.cfm?sitelang=en&ref=I102614   
16 Available at: http://europa.eu/rapid/press-release_SPEECH-15-5010_en.htm    
17Available at: http://frontex.europa.eu/news/frontex-expands-its-joint-operation-triton-udpbHP  

17 

 
 
                                                            
Article 3 – Right to the integrity of the person 

The right to physical and mental integrity of the person (Article 3 (1) of the Charter) on the one hand 
protects  from  infringements  by  public  authorities.  On  the  other  hand  it  also  puts  them  under  an 
obligation to promote such protection, e.g. by concrete legislation. 

Legislation  

The Victims' Rights Directive18 entered into application in the Member States on 16 November 2015. 
It  lays  down  a  set  of  rights  for  victims  of  crime,  including  a  right  to  protection  during  the  criminal 
proceedings  and  trial.  The  Directive  requires  inter  alia  that  the  national  authorities  apply  specific 
protection measures relevant to victims' individual needs.19 

The new Directive replaces the 2001 Framework Decision and reaffirms the existing minimum on the 
rights to access information, support, protection and basic procedural rights in criminal proceedings. 
However,  the  Directive  brings  significant  added  value  compared  to  the  previous  legal  framework 
since  it  contains  more  concrete  and  comprehensive  rights  for  victims  and  clearer  obligations  for 
Member States. 

New rights and obligations:  

• Access to victim support – Member States must ensure access for victims and their family members 
to  general  victim  support  and  specialist  support,  in  accordance  with  their  needs.  The  Directive 
specifies the basic level of services that need to be provided. Support is not dependent on the victim 
having  reported  the  crime.  Member  States  must  facilitate  referrals  from  police  to  victim  support 
organisations. 

•  Specialist  support  services  must  as  a  minimum  provide  shelters  and  targeted  and  integrated 
support  for  victims  with specific needs,  such as  victims  of  sexual  violence,  victims  of  gender  based 
violence and victims of violence in close relationships, including trauma support and counselling. 

• Individual assessment to identify vulnerability and special protection measures – All victims will be 
individually assessed to determine whether they are vulnerable to secondary or repeat victimisation 
or  intimidation  during  criminal  proceedings.  If  they  have  specific  needs,  a  whole  range  of  special 
measures will be put in place to protect them. 

The  Commission  has  proposed20  the  EU  accession  to  the  Council  of  Europe's  Istanbul  Convention, 
which  offers  a  comprehensive  approach  to  combatting  violence  against  women,  and  which  could 

18  Directive  2012/29/EU  of  the  European  Parliament  and  of  the  Council  of  25  October  2012  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. 
19 See below Article 48. 
20 COM(2016)111 final and COM(2016)109 final: http://eur-lex.europa.eu/legal-
content/EN/HIS/?uri=COM:2016:111:FIN and http://eur-lex.europa.eu/legal-
content/EN/HIS/?uri=COM:2016:109:FIN 

18 

 
 
 
                                                            
strengthen  the  EU's  efforts  in  promoting  its  fundamental  values  of  human  rights  and  equality 
between  men  and  women.  The  European  Commission  published  a  roadmap  on  a  possible  EU 
accession to the Convention in October 2015, as a first, concrete step.21 

Case-law 

The ECtHR judgment in case of Y v. Slovenia22 clarified the scope of the state's obligations regarding 
protection  of  victims  during  the  criminal  proceedings.  The  case  concerned  a  young  woman’s 
complaint  about  the  criminal  proceedings  brought  against  a  family  friend,  whom  she  accused  of 
repeatedly  sexually  assaulting  her  while  she  was  a  minor,  alleging  that  the  proceedings  were 
excessively  long  and  traumatic  for  her.  The  ECtHR  found  that  long  breaks  between  the  hearings  in 
cases involving charges on sexual assault against a minor were not justified and that this amounted 
to inhuman and degrading treatment of the victim.  

The  Court  held  that  there  had  been  a  violation  of  Article  3  (prohibition  of  inhuman  or  degrading 
treatment) and of Article 8 (right to respect for private and family life) of the European Convention 
on  Human  Rights.  The  Court  found  that  the  Slovenian  authorities  had  failed  to  protect  the  alleged 
victim’s  personal  integrity  during  the  criminal  investigation  and  trial.  The  Court  noted  that  the 
proceedings  had  been  marked  by  long  periods  of  complete  inactivity. The police had  submitted an 
incident report of Y.’s complaint to the prosecutor only a full year after their investigation had been 
concluded and upon being urged by the prosecutor to do so. Also, they should have prevented the 
alleged assailant from using offensive and humiliating remarks while cross-examining her during the 
trial. 

Rulings of Maltese courts 

In Malta the Charter has been referred to by national courts in order to argue for the award 
of compensation in contexts where an entitlement for such compensation is not established 
by national law. In a 2015 decision, the Civil Court explicitly excluded the applicability of the 
Charter, but mentioned that lower courts have used Article 3 of the Charter on the right to 
the  integrity  of  the  person  –  for  which  there  is  no  corresponding  provision  in  the  Maltese 
constitution - to argue for the possibility of claiming moral damages. (Malta, Civil Court, case 
no 33/2014 of 15 January 2015) 

21 Available at: http://ec.europa.eu/smart-
regulation/roadmaps/docs/2015_just_010_istanbul_convention_en.pdf   
22 ECtHR, judgment of 28 May 2015 in case of Y v. Slovenia, application no. 41107/10. 

19 

 
 
 
 
 
                                                            
Article 4 – Prohibition of torture and inhuman or degrading treatment 

or punishment 

Article 4 of the Charter provides that no one shall be subjected to torture or to inhuman or degrading 
treatment or punishment. The respect of Article 4 requires particular vigilance in the field of border 
controls, immigration and asylum issues. 

Legislation 

The proposal for a Regulation on the European Border and Coast Guard adopted in December 2015, 
intended to ensure the implementation of the European integrated border management in line with 
the principle of shared responsibility, aims at establishing a number of fundamental rights safeguards 
to  ensure  compliance  with  fundamental  rights,  including  the  prohibition  of  torture  and  degrading 
treatment.23  

Policy 

In  the  field  of  return,  a  Return  Handbook24  was  published  by  the  European  Commission  to 
accompany  the  Action  Plan  on  return25  adopted  in  September  2015,  with  a  view  to  providing 
concrete  guidance  for  national  authorities  in  charge  of  return  and  contains  detailed  common 
guidelines,  best  practices  and  recommendations  on  how  to  ensure  that  any  return  operation  fully 
complies with fundamental rights.26 This includes detailed guidelines on standards to be taken into 
account whenever Member States impose detention for the purpose of removal, in order to ensure 
detention  conditions  that  comply  with  the  prohibition  of  inhuman  or  degrading  treatment  under 
Article 4 of the Charter. 

Following  the  release,  in  December  2014,  of  the  "Study  of  the  Central  Intelligence  Agency's  (CIA) 
detention  and  interrogation  program"  by  the  US  Senate  Select  Committee  on  Intelligence,  the 
European Parliament adopted on 11 February 2015 a resolution "on the US Senate report on the use 
of  torture  by  the  CIA"  27 .  The  Parliament  welcomed  the  publication  of  the  report,  recalled  its 
absolute  condemnation  of  torture,  called  on  Member  States  to  investigate  fully  recent  allegations 

23 See above Article 1 and below Article 19. 
24  Commission  recommendation  establishing  a  common  "Return  Handbook"  to  be  used  by  Member  States' 
competent  authorities  when  carrying  out  return  related  tasks,  C(2015)  6250  final,  1.10.2015,  available  at: 
http://ec.europa.eu/dgs/home-affairs/what-we-do/policies/european-agenda-migration/proposal-
implementation-
package/docs/commission_recommendation_establishing_a_return_handbook_for_member_states_compete
nt_authorities_to_deal_with_return_related_tasks_en.pdf. 
25  Communication  from  the  Commission  to  the European Parliament  and  to  the  Council  –  EU Action  Plan on 
return,  COM(2015)  453 
final,  9.9.2015,  available  at:  http://ec.europa.eu/dgs/home-affairs/what-we-
do/policies/european-agenda-migration/proposal-implementation-
package/docs/communication_from_the_ec_to_ep_and_council_-_eu_action_plan_on_return_en.pdf. 
26 See also below Article 19.  
27: European Parliament resolution of 11 February 2015 on the US Senate report on the use of torture by the 
CIA , available at: http://www.europarl.europa.eu/sides/getDoc.do?pubRef=-
%2f%2fEP%2f%2fTEXT%2bTA%2bP8-TA-2015-0031%2b0%2bDOC%2bXML%2bV0%2f%2fEN&language=EN 

20 

 
 
                                                            
that  illegal  rendition,  detention  and  torture  took  place  on  their  territory  and  to  prosecute  those 
responsible and instructed several of its committees to resume its inquiry on ‘alleged transportation 
and illegal detention of prisoners in European countries by the CIA’ and to report to plenary within a 
year. 

Article 5 – Prohibition of slavery and forced labour 

Slavery  violates  human  dignity.  Trafficking  in  human  beings  is  one  form  of  slavery.  The  Charter 
explicitly prohibits trafficking in human beings in Article 5 (3). Both slavery and forced labour are the 
forms of exploitation covered by the definition of trafficking in human beings as stipulated in Article 
2 of Directive 2011/36/EU on preventing and combating trafficking in human beings and protecting 
its victims. Preventing and combating it is a priority for the Union and the Member States. 

Policy 

As part of the EU’s strategy on eradicating trafficking in human beings, the European Commission 
organised, in cooperation with the Luxembourg Presidency of the Council of the European Union, a 
high-level  conference  to  mark  the  Ninth  EU  Anti-Trafficking  Day  on  20  October  2015.  The 
conference  focused  on  the  implementation  of  the  ambitious  EU  legal  and  policy  framework  to 
address trafficking in human beings that is anchored in human rights, victims centred, gender-specific 
and  child sensitive.  The EU Anti trafficking  Day  -  instituted  for  18th  October  in  2007  -  serves  as  an 
occasion to reinvigorate Europe-wide commitment for eradicating trafficking in human beings. 

On the occasion of the Ninth EU Anti-trafficking Day, the Commission published a series of relevant 
studies  including  the  Study  on  case  law  on  trafficking  in  human  beings  for  the  purpose  of  labour 
exploitation, the Study on prevention initiatives on trafficking  in human beings and the Study on 
high  risk  groups  focusing  on  children.28  Furthermore,  on  the  same  occasion,  the  European  Union 
Agency for Fundamental Rights (FRA), in close cooperation with the European Commission, published 
the report “Guardianship  systems for  children  deprived of parental care  in the  European  Union”, 
which explores the key features of guardianship systems across all EU Member States that have been 
established to meet the needs of children without parental care, including those at risk of becoming 
victims  of  human  trafficking  or  other  forms  of  violence  and  exploitation.  This  comparative  report 
complements  the  handbook  on  guardianship  for  children  deprived  of  parental  care,  which  is  a 
deliverable of the EU anti-trafficking strategy.29 

Council  Decisions  authorizing  Member  States  to  ratify,  in  the  interests  of  the  European  Union,  the 
Protocol of 2014  to  the  Forced  Labour  Convention  of the  International Labour  Organisation  (ILO) 
were adopted in November 2015.30 The Protocol was adopted by the assembly of the ILO, together 

28 Available at: https://ec.europa.eu/anti-
trafficking/publications/_en?solrsort=ds_field_publication_date%20desc  
29 Available at: https://ec.europa.eu/anti-trafficking/node/4085  
30 Council Decision (EU) 2015/2037 of 10 November 2015 authorising Member States to ratify, in the interests 
of  the  European  Union,  the  Protocol  of  2014  to  the  Forced  Labour  Convention,  1930,  of  the  International 
Labour Organisation  with  regard  to  matters  relating  to  social  policy,  OJ  L  298,  14.11.2015,  p.  23  and  Council 
21 

 
 
 
                                                            
with a Recommendation on Forced Labour, in June 2014. Countries ratifying the ILO Protocol agree 
to prevent the use of forced labour, in particular in the context of trafficking in human beings, to 
improve  the  protection  of  victims  ensuring  their  identification,  release,  protection,  recovery  and 
rehabilitation,  and  to  provide  access  to  remedies,  including  compensation,  to  all  victims  and  to 
ensure that competent authorities are  entitled not  to prosecute them for unlawful activities which 
they have been compelled to commit.  

Wide implementation  of  the  Protocol  to  the  Forced Labour  Convention  is  of  particular relevance 
for  the  EU,  which  is  committed  to  promoting  human  rights  and  decent  work  conditions  and  to 
eradicating  trafficking  in  human  beings,  both  internally  and  in  its  external  relations.  Of  particular 
importance in the context of the Protocol is also the commitment of the EU to the promotion of the 
protection  of  the  rights  of  the  child  and  gender  equality,  notably  as  children  and  women  are 
particularly vulnerable to some forms of forced labour.  Strengthening victims' rights in the EU has 
also  been  a  strategic  priority  of  the  Commission  over  the  past  few  years.  The  horizontal  Victims' 
Rights Directive31 ensures that victims of crime benefit from common minimum standards of rights 
during police investigations and court proceedings. The Protocol should be seen as part of this work 
and  its  ratification  by  EU  Member  States  sends    an  important  signal  on  the  coherence  of  the  EU’s 
policy in addressing forced labour and trafficking in human beings in a more effective, coordinated 
and coherent manner.  

Another  key  instrument  in  this  area  is  the  ILO  Domestic  Workers  Convention  (Convention  No. 
189)32, adopted in 2011. Two years after the adoption of the Council Decision33 authorising Member 
States to ratify this Convention, the Commission invited EU Member States on 15 December 2015 for 
an expert meeting to exchange views on national experiences, and discuss with ILO and Commission 
experts on the legal implications of the Convention and how to best implement it. A large consensus 
emerged among EU Member States during this meeting, on the need to protect domestic workers, 
predominantly women, and to improve their working conditions. Six EU Member States have ratified 
this  Convention  and  many  Member  States  have  reported  continuing  exchanges  with  their  social 
partners  and  stakeholders  to  advance  ratification.  The  ratification  by  all  EU  Member  States  would 
complement the EU acquis on issues such as on working conditions and contribute to the EU efforts 
to promote ratification and application of up to date ILO conventions throughout the world.     

Another relevant policy initiative was the adoption, in the area of migration, of the  EU Action Plan 
against  migrant  smuggling  on  27  May  2015.  The  plan  recognises  fundamental  rights  protection  as 

Decision  (EU)  2015/2071  of  10  November  2015  authorising  Member  States  to  ratify,  in  the  interests  of  the 
European  Union,  the  Protocol  of  2014  to  the  Forced  Labour  Convention,  1930,  of  the  International  Labour 
Organisation as regards Articles 1 to 4 of the Protocol with regard to matters relating to judicial cooperation in 
criminal matters, OJ L 301, 18.11.2015, p. 47. 
31 Directive 2012/29/EU of the European Parliament and of the Council of 25 October 2012 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. 

32 Available at: http://www.ilo.org/dyn/normlex/en/f?p=NORMLEXPUB:12100:0::NO::P12100_ILO_CODE:C189    
33Council Decision 2014/51/EU of 28 January 2014 authorising Member States to ratify, in the interests of the 
European  Union,  the  Convention  concerning  decent  work  for  domestic  workers,  2011,  of  the  International 
Labour Organisation (Convention No 189), OJ L 32, 1.2.2014, p. 32.   

22 

 
 
                                                                                                                                                                                          
 
one of its guiding principles and contains several elements that show the Commission's commitment 
on this point. Among the actions mentioned in the Action Plan, a Commission proposal for a revision 
of the existing EU legal framework on migrant smuggling is expected by the end of 2016. The purpose 
of  the  review  of  the  legislation  is,  among  others,  to  reinforce  the  existing  penal  framework  while 
avoiding  punishment  of  those  individuals  who  provide  assistance  for  humanitarian  reasons  to 
migrants  in  distress.  The  Commission  also  announced  the  revision  of  Directive  2004/81/EC  on 
residence  permits  issued  to  victims  of  trafficking  in  human  beings  and  to  smuggled  migrants  who 
cooperate with authorities with the aim to improve protection and assistance to the victims of such 
forms  of  crimes.  Finally,  the  Action  Plan  envisages  a  specific  role  for  the  EU  Fundamental  Rights 
Agency in the implementation of this policy framework as regards in particular the development of 
the fundamental rights dimension, specifically in the field of protection of smuggled migrants,  and as 
regards EU-wide mapping of training needs in this field.  

23 

 
 
 
24 

 
 
 
                       
25 

 
 
 
 
Title II 

Freedoms 

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

The  Commission  also  continued  to  negotiate  with  its  U.S.  counterparts  on  the  Data  Protection 
Umbrella agreement in order to protect personal data transferred between the EU and the U.S. for 
law enforcement purposes as well as the conditions of a safe harbour successor regime as regards 
data transfers to the US for commercial purposes. The latter negotiations became even more topical 
after the CJEU in the Max Schrems case annulled the Commission's adequacy decision of 2000.   

The  European  Agenda  for  Migration  and  its  subsequent  implementation  packages  are  of  direct 
relevance to the enjoyment of the fundamental right to asylum. The Commission activated, for the 
first  time  in  2015,  the  emergency  mechanism  foreseen  in  the  Treaties  proposing  a  temporary 
distribution  mechanism  for  persons  in  clear  need  of  international  protection  within  the  EU.  The 
Commission also adopted a proposal for a Regulation establishing a Crisis Relocation Mechanism and 
amending the Dublin III Regulation, and a proposal for a Regulation establishing an EU common list of 
safe  countries  of  origin.  Finally,  as  part  of  the  immediate  action  to  assist  frontline  Member  States 
which  are  facing  disproportionate  migratory  pressures  at  the  EU’s  external  borders,  the  European 
Commission proposed to develop the so-called "hotspot approach".  

In  2015,  the  Commission  initiated  several  infringement  decisions  for  failing  to  fully  implement 
legislation making up the Common European Asylum System.  

26 

 
 
 
 
Article 6 – Right to liberty and security 

Article  6  of  the  Charter  guarantees  the  right  of  everyone  to  liberty  and  security  of  person.  These 
rights correspond to the rights guaranteed in Article 5 of the ECHR. This means in particular that a 
person's liberty can only be limited under strict legal conditions.  

Case law  

In the Lanigan case34, the CJEU referred to the fundamental right to liberty and security in the light of 
implementation  of  the  European  Arrest  Warrant.  Here  the  Court  held  that  the  expiry  of  the  time-
limits to take a decision on the execution of a European arrest warrant did not preclude, in itself, the 
continued holding of the requested person in custody. However, the Court noted that in accordance 
with the fundamental right to liberty and security the requested person must be released, together 
with measures necessary to prevent him from absconding, if the duration of the custody is excessive. 

Article 7 – Respect for private and family life 

Article 7 of the Charter guarantees the right of everyone to respect of their private and family life as 
well as home and communications.  
The  right  to  private  life  includes  the  protection  of  privacy  in  relation  to  any  information  about  a 
person.  Where  legislation,  policy  or  case  law  refer  to  this  right  in  connection  to  the  protection  of 
personal data, this report will refer to them under Article 8 below. 

Legislation  

In  2015,  the  Directive  on  the  coordination  and  cooperation  measures  to  facilitate  consular 
protection  for  unrepresented  citizens  of  the  Union  in  third  countries35  was  adopted.  Amongst 
others the Directive clarifies when and how third country family members of EU citizens can receive 
protection with a view to ensuring the effectiveness of the right to consular protection36, and of the 
right to respect for private and family life recognised in Article 7 of the Charter.37 

Case Law 

In  the  case  Deutsche  Bahn38  the  CJEU  reviewed  the  investigative  powers  of  the  Commission  in  the 
context of  enforcing EU competition  law.  The Court  ruled on whether  an  inspection  carried  out by 
the Commission without prior judicial authorisation constituted an infringement of the right to the 
inviolability  of  the  private  premises,  as  laid  down  by  Article  7  of  the  Charter.  The  Court,  after 
reiterating  its  case  law  that  in  principle  Article  7  may  also  protect  businesses  premises,  concluded 

34 CJEU judgement of 16 July 2015 in the Case C-237/15 PPU Minister for Justice and Equality v Francis Lanigan. 
35Council  Directive  2015/637/EU  on  the  coordination  and  cooperation  measures  to  facilitate  consular 
protection  for unrepresented citizens  of  the  Union  in  third  countries and  repealing Decision  95/553/EC, OJ  L 
106, 20.04.2015, p. 1. 
36 See below Article 46. 
37 See above Article 7.  
38 CJEU judgment of 18 June 2015 in the Case C-583/13 P, Deutsche Bahn and Others v Commission.  

27 

 
 
 
                                                            
that there was no such infringement in this case, given that the Commission’s powers of investigation 
were  strictly  defined  and  there  was  an  effective  legal  remedy  ex  post,  which  constituted  a 
fundamental  guarantee  in  order  to  ensure the  compatibility  of  the inspection  measure  in  question 
with Article 7 of the Charter as well as Article 8 of the ECHR. The later had already been ruled upon 
by the ECtHR.3940  

As regards the right to respect for family life, and in particular the right to family reunification, the 
Court of Justice ruled in K and A41 that the right to family reunification as guaranteed by EU law to 
third  country  nationals  residing  lawfully  in  the  territory  of  the  Member  States  does  not  prevent 
Member States from requiring third country nationals to pass a civic integration examination prior 
to family reunification, provided that the exercise of the right to reunification is not, as a result of 
this  examination,  made  impossible  or  excessively  difficult.  Such  an  assessment  should  take  into 
account specific individual circumstances, such as the age, level of education, economic situation or 
health of the applicants, as well as the cost of the examination. It is on those grounds that the Court 
found  that  the  national  provisions  at  stake,  in  so  far  as  they  did  not  consider  the  special 
circumstances objectively forming an obstacle to the applicants passing the examination and in so far 
as they set the fees relating to such an examination at too high a level, could be regarded as making 
the exercise of the right to family reunification impossible or excessively difficult. 

Ruling of the Lithuanian Supreme Court 

In Lithuania the Supreme Court interpreted national law in line with the Charter against the 
background of the EU data protection directive (Directive 95/46). The case concerned a legal 
dispute  between  two  joint  owners  of  a  house.  One  of  the  owners  had  decided  to  install 
surveillance cameras on his part of the building without asking the permission of the second 
owner, who brought a case against the co-owner seeking the removal of the cameras. The 
Court made reference to the respect for private and family life (Article 7) and the protection 
of personal data (Article 8), emphasising that the exception of “purely” private use of data 
laid down in the EU directive and the Lithuanian law implementing it should be interpreted 
narrowly  and  decided  in  favour  of  the  claimant.  (Lithuania,  Supreme  Court,  case  no  3K-3-
430-415/2015 decision of 26 June 2015) 

39  ECtHR  judgment  of  2  October  2014  in  the  Case  Delta  Pekárny  a.s.  v.  the  Czech  Republic,  application  no. 
97/11, paragraphs 83, 87 and 92. 
40 The CJEU in this case, however annulled two Commission inspections decisions in so far as they breached the 
complainants’ rights to defence, see below Article 48. 

41 CJEU judgement of 9 July 2015 in the Case C‑153/14, Minister van Buitenlandse Zaken v K, A. 

28 

 
 
 
 
 
 
                                                            
Ruling of the Portuguese Constitutional Court 

In  Portugal,  the  President  of  the  Republic  made  use  of  the  possibility  provided  by  the 
Constitution  to  seek  an  ex-ante  evaluation  from  the  Constitutional  Court  of  the 
constitutionality  of  a  provision  in  a  Parliamentary  Decree  that  had  been  passed  by  the 
Parliament  and  submitted  to  him  for  promulgation.    The  decree  was  about  the  Republic’s 
Information  System  that  would  allow  officials  of  the  Security  Information  Service  and  the 
Strategic Defence Information Service,  under determined  circumstances, access to banking 
and tax data, data on communication traffic, locality or other data. The Court declared the 
relevant  provision  unconstitutional  referring  amongst  others  to    Article  7  of  the  Charter 
(respect for private and family life) and Article 8 of the Charter (protection of personal data). 
(Portugal, Constitutional Court, case no 773/15, judgement no 403/2015 of 27 August 2015).  

Article 8 – Protection of personal data 

The  fundamental  right  of  everyone  to  the  protection  of  personal  data  is  explicitly  recognised  by 
Article 8 of the Charter. It is furthermore stated in Article 16 of the Treaty on the Functioning of the 
European Union. It aims at the protection of an individual's free decision on the use of his or her own 
personal data. This right is gaining increasing importance in view of the explosion of the collection, 
use and distribution of personal data within our digital society. 

Legislation 

The significant advancements of the data reform package constitute the cornerstone of EU legislation 
efforts on the protection  of personal data in 2015,  thereby further substantiating the fundamental 
right  to  protection  of  personal  data.  Already  in  January  2012  the  Commission  had  published  its 
proposals for a General Data Protection Regulation and a Data Protection Directive for Police and 
criminal  justice  authorities.42  These  measures  are  aimed  at  replacing  the  existing  1995  Data 
Protection  Directive  95/46/EC  and  the  Framework  Decision  2008/977/JHA.  This  package  is  a  key 
element for the completion of the Digital Single Market, and for the protection of the fundamental 
rights of individuals in the face of rapid technological change. The European Parliament had adopted 
its  position  in  first  reading  on  12  March  2014,  confirming  its  strong  support  for  the  Commission's 

, 

11 

COM(2012) 

42 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  (General  Data  Protection 
Regulation) 
http://eur-lex.europa.eu/legal-
content/EN/TXT/PDF/?uri=CELEX:52012PC0011&from=EN  and  Proposal  for  a  Directive  of  the  European 
Parliament and of the Council 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/2012/010  final, 
http://ec.europa.eu/justice/data-
25.1.2012, 
protection/document/review2012/com_2012_10_en.pdf.     

25.1.2012, 

available 

available 

final, 

at: 

at: 

29 

 
 
 
 
                                                            
 
data  protection  reform.43  On  15  December  2015  the  Council  reached  an  agreement  with  the 
European Parliament on the Regulation and on the Police Directive thereby meeting the objective set 
by  the  European  Council  and  by  the  political  guidelines  of  President  Juncker.44  Currently  work  is 
ongoing to prepare the agreed texts for the formal adoption by the Parliament and the Council. The 
Regulation and the Police Directive will become applicable two years after publication. The new EU 
data  protection  rules  will  apply  not  only  to  European  companies,  but  also  to  foreign  companies 
offering goods and services to EU citizens, or monitoring their behaviour. In other words, the same 
rules  will  apply  to  all  companies  operating  in  the  EU  regardless  of  where  they  come  from.  For 
example,  start-ups  from  other  world  regions  will  have  to  play  by  the  same  rules  as  start-ups  from 
Europe.  

Further legislative activities of the EU relevant for fundamental rights to private life (Article 7) as well 
as for the protection of personal data (Article 8 of the Charter) were aimed at furthering concrete EU 
policies while at the same maintaining a high level of protection of these fundamental rights. Such 
policies in particular concerned public or policy interests (e.g. in the field of fisheries, external border 
control, tax information or insolvency) as well as the advancement of digital technologies. 

Under  the  Common  Fisheries  Policy,  the  Commission  submitted  two  proposals  for  regulations 
foreseeing  the  collection  of  data  in  the  fisheries  sector.  The  Proposal  for  a  Regulation  on  a 
framework for the collection, management and use of data in the fisheries sector45 aims to be the 
main  legal  instrument  by  which  Member  States  are  to  provide  any  data  in  the  fisheries  sector 
necessary  to  data  users  (end-users  and  other  interested  parties),  whatever  the  source  of  the  legal 
obligation  under  which  data  are  collected,  unless  other  legal  instruments  already  provide  for  the 
availability of the data (e.g. most statistical regulations). In this context, no generic measures should, 
a  priori,  restrict  the  access  to  data,  whether  by  scientific  users  or  by  other  interested  parties. 
However,  where  the  protection  of  personal  data  is  at  stake,  the  proposal  would  ensures  that 
appropriate  safeguards  be  taken  by  the  Member  States.  Thus,  a  higher  level  of  aggregation  or 
anonymisation  of  data  must  be  achieved,  if  the  latter  include  information  relating  to  identified  or 
identifiable natural persons.  

– 

43  European  Parliament  legislative  resolution  of  12  March  2014  on  the  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 (General Data Protection Regulation) (COM(2012)0011 – 
at: 
2012/0011(COD)), 
C7-0025/2012 
http://www.europarl.europa.eu/sides/getDoc.do?pubRef=-//EP//TEXT+TA+P7-TA-2014-
0212+0+DOC+XML+V0//EN  
44  See  European  Commission  press  release  Agreement on  Commission's  EU  data protection  reform  will  boost 
Digital Single Market , available at: http://europa.eu/rapid/press-release_IP-15-6321_en.htm. 
45 Proposal for a Regulation of the European Parliament and of the Council concerning the establishment of a 
Union  framework  for  the  collection,  management  and  use  of  data  in  the  fisheries  sector  and  support  for 
scientific advice regarding the Common Fisheries Policy (recast), COM(2015)_294 final, 18.6.2015 – 2015/0133 
(COD), available at http://eur-lex.europa.eu/procedure/EN/2015_133 . 

P7_TA(2014)0212, 

available 

30 

 
 
                                                            
The proposal for a regulation on the sustainable management of fishing fleets46 aims at allowing the 
Union to better monitor its external fishing fleet. It follows upon the new Common Fisheries Policy, 
which is enshrined in the 'Basic Regulation'.47 The latter promotes, amongst others, European Union 
fishing activities outside Union waters that shall be sustainable and based on the same principles and 
standards  as  those  applicable  under  Union  law  in  European  waters.  One  of  the  core  principles  of 
good  governance  promoted  by  the  Basic  Regulation  in  its  Article  3,  is  transparency  of  data.  In  the 
light of the above, Article 34 of the Proposal aims to institute a Union fishing authorisation register 
which  gathers  'all  information'  related  to  the  fishing  authorisations  issued  under  the  Regulation.  It 
will be used  for  data  and  information  exchange  between the Commission and the  Member  States. 
Article 34 aims to provide for both a public and a 'secure' part. The first should 'at least' contain the 
name and flag of the vessel, the type of authorisation, as well as the time and place of activity. The 
second, on the other hand, would include, among others, personal data related to the operator and 
the captain (name, address, contact details, nationality), which are considered necessary to establish 
responsibilities pursuant to existing legislation (mostly the Control Regulation (EC) No 1224/2009 and 
the  IUU  Regulation  (EC)  No  1005/2008).  Where  the  register  includes  personal  data,  its  processing 
should comply with Regulation (EC) No 45/2001, Directive 95/46 and implementing national rules, as 
set out in Article 36 of the Proposal. 

In  the  area  of  external  border  controls  the  European  Commission’s  proposal  for  a  Regulation 
amending  Regulation  No  562/2006  (EC)  as  regards  the  reinforcement  of  checks  against  relevant 
databases at external borders (Schengen Borders Code)48 intends to oblige Member States to carry 
out systematic checks on persons enjoying the right of free movement under Union law when they 
cross the external border against databases on lost and stolen documents as well as in order to verify 
that  those  persons  do  not  represent  a  threat  to  public  order  and  internal  security.  Since  the 
consultation of databases’ functions on the basis of a hit/no-hit basis and the mere consultation of 
the  database  is  therefore  neither  registered  nor  further  processed,  the  respect  of  the  rights  to 
respect of private and family life (Article 7) and to the protection of personal data (Article 8) would 
be ensured. 

Regarding  tax  transparency,  on  18  March  2015  the  European  Commission  adopted  a  legislative 
proposal for a Directive amending Directive 2011/16/EU as part of the Tax Transparency Package49 

46 Proposal for a Regulation of the European Parliament and of the Council on the sustainable management of 
fishing fleets, repealing Council Regulation (EC) No 1006/2008, COM(2015)636 final, 10.12.2015, available at:  
http://eur-lex.europa.eu/legal-content/EN/TXT/?uri=COM:2015:636:FIN.. 
47 Regulation (EU) No 1380/2013 of the European Parliament and of the Council of 11 December 2013 on the 
Common  Fisheries  Policy,  amending  Council  Regulations  (EC)  No  1954/2003  and  (EC)  No  1224/2009  and 
repealing Council Regulations (EC) No 2371/2002 and (EC) No 639/2004 and Council Decision 2004/585/EC, OJ 
L 354, 28.12.2013, p. 22. 
48 Proposal for a Regulation of the European Parliament and of the Council amending regulation no 562/2006 
(ec)  as  regards  the  reinforcement  of  checks  against  relevant  databases at  external borders,  COM/2015/0670 
final, 15.12.2015, available at: http://eur-lex.europa.eu/legal-content/EN/TXT/?uri=CELEX%3A52015PC0670  
49 Proposal for a Council Directive amending Directive 2011/16/EU as regards mandatory automatic exchange 
of 
final),  18.3.2015,  available  at: 
http://ec.europa.eu/taxation_customs/resources/documents/taxation/company_tax/transparency/com_2015
_135_en.pdf  

(COM(2015)  135 

information 

field  of 

taxation, 

the 

in 

31 

 
 
                                                            
which  the  Council  adopted  in  December  2015.  The  purpose  of  the  amendment  is  to  ensure  that 
Directive  2011/16/EU  provides  for  comprehensive  and  effective  administrative  co-operation 
between tax administrations. To this end it envisages mandatory automatic exchange of information 
regarding advance cross-border rulings and advance pricing arrangements which is a particular type 
of advance cross border ruling used in the area of transfer pricing. The Directive does not generally 
concern personal data but, at the same time, contains data protection safeguards that would apply 
to the limited extent that personal data might be exchanged. 

With  view  to  an  EU-wide  on-line  interconnection  of  national  electronic  insolvency  registers 
Regulation  (EU)  2015/848  of  the  European  Parliament  and  of  the  Council  on  insolvency 
proceedings  (recast)  was  adopted  on  20  May  2015.  As  the  Regulation  is  particularly  aimed  at 
promoting the protection of personal data50 the adopted Regulation contains detailed provisions on 
data protection in compliance with Directive 95/46/EC and Regulation (EC) No 45/2001.51 These rules 
clarify the responsibilities of the Member States and of the Commission with regard to the system of 
interconnection.  Furthermore,  the  new  rules  clarify  that  no  personal  data  relating  to  data  subjects 
shall  be  stored  in  the  European  e-Justice  Portal;  all  such  data  shall  be  stored  in  the  national 
databases operated by the Member States or other bodies. Consequently, the time of accessibility of 
personal  data  via  the  European  e-Justice  Portal  will  correspond  to  the  retention  period  of  the 
relevant data in the national registers under the respective national laws. In addition, for the purpose 
of  satisfying  the  requirement  of  proportionality,  the  Regulation  establishes  a  regime  of 
conditionality,  which  Member  States  may  apply  in  terms  of  requests  on  information  concerning 
natural person debtors not pursuing an economic activity. 

Furthermore, the Commission’s policies respond to issues, which arise in the nexus between financial 
regulations on the one hand, and data protection and cyber-security/crime issues on the other. Thus, 
on  23  December  2015,  Directive  2015/2366  on  payment  services  in  the  internal  market52  was 
published in the Official Journal. It opens the EU payment market to new service providers offering 
more  choice  for  consumers  or  businesses.  Citizens  will  also  be  better  served  as  a  result  of  the 
introduction  of  a  number  of  requirements  to  protect  their  rights,  in  particular  new  provisions  to 
better protect the personal data of payers and payees when using payment services but also strict 
security requirements for the initiation and processing of electronic payments, enhanced consumers’ 
rights  as  well  as  better  defined  out-of-court  redress  procedures  to  enforce  their  rights  under  the 
Directive. 

Also,  on  9  September  2015,  the  European  Parliament  and  the  Council  adopted  a  Regulation  on 
mutual  administrative  assistance53  in  the  area  of  customs  and  agriculture,  which  reinforces  the 

50 Regulation 2015/848/EU of the European Parliament and of the Council on insolvency proceedings (recast), 
OJ L 141, 20.05.2015, p.19, recital 83. 
51 In particular in Articles 78-83, recital 84. 
52 Directive (EU) 2015/2366 of the European Parliament and of the Council of 25 November 2015 on payment 
services in the internal market, amending Directives 2002/65/EC, 2009/110/EC and 2013/36/EU and Regulation 
(EU) No 1093/2010, and repealing Directive 2007/64/EC (Text with EEA relevance), OJ L 337, 23.12.2015, p. 35 . 
53 Regulation (EU) 2015/1525 of the European Parliament and of the Council  of 9 September 2015 amending 
Council Regulation (EC) No 515/97 on mutual assistance between the administrative authorities of the Member 
32 

 
 
                                                            
fundamental  right  of  protection  of  personal  data  enshrined  in  Article  8  of  the  Charter.54  The  new 
Regulation  strengthens  the  collaboration  between  the  two  bodies  currently  responsible  for 
supervising  data  protection  in  the  area:  the  European  Data  Protection  Supervisor  (EDPS)  and  the 
Customs  Joint  Supervisory  Authority  (CJSA)  thereby  contributing  to  improved  coherence  of  their 
audit  recommendations.  The  new  Regulation  also  clarifies  the  responsibility  for  data  protection 
supervision  with  regard  to  the  technical  systems  of  data  exchange  (e.g.  CIS)  established  by  the 
Commission on the basis of this Regulation and assigns this responsibility to the EDPS. The Regulation 
introduces  a  maximum  retention  period  of  ten  years  for  data  stored  in  the  CIS,  stipulating 
additionally that in cases where personal data are stored for a period exceeding five years, the EDPS 
should  be  informed  accordingly.  Finally,  in  order  to  safeguard  the  rules  governing  data  protection, 
specific provisions are introduced on the security of processing.  

Finally,  the  on-going  implementation  of  a  Digital  Single  Market  (DSM)  as  envisaged  in  the 
Commission's  work  programme  needs  to  be  pointed  out  in  this  context.  Ensuring  a  general 
acceptance  of  the  Digital  Single  Market  requires  the  citizens'  trust  and  confidence  in  a  new  digital 
environment.  This  includes  strong  and  efficient  protection  of  fundamental  rights  online.  In  this 
context  a  number  of  legislative  measures  on  EU  level  were  initiated  and/or  adopted  to  ensure 
widespread access and use of digital technologies while at the same time guaranteeing a high level of 
fundamental rights protection, namely of the right to private life and to protection of personal data 
as enshrined in Articles 7 and 8 of the Charter. 

Thus on 25th November 2015 the European Parliament and the Council adopted rules on the open 
internet55  protecting  the  right  of  every  individual  in  the  EU  to  access  Internet  content  without 
discrimination, following the Commission legislative proposal of 11 September 2013. Recitals of the 
Regulation explicitly refer to the EU Charter,56 notably the protection of personal data, but also the 
freedom of expression and information, the freedom to conduct a business, non-discrimination and 
consumer protection. For the first time it enshrines the principle of net neutrality into EU law: users 
will be free to access the content of their choice, they will not be unfairly blocked or slowed down 
anymore.57 The Regulation entered into force on 29 November 2015..58 

States and cooperation between the latter and the Commission to ensure the correct application of the law on 
customs and agricultural matters, OJ L 243, 18.9.2015, p. 1.  
54 See in particular Articles 18a, 18d, 37 and 38.  
55 Regulation (EU) 2015/2120 of the European Parliament and of the Council of 25 November 2015 laying down 
measures concerning open internet access and amending Directive 2002/22/EC on universal service and users’ 
rights  relating  to  electronic  communications  networks  and  services  and  Regulation  (EU)  No  531/2012  on 
roaming on public mobile communications networks within the Union (Text with EEA relevance). 
56 See in particular: Recitals 13 and 33, 80.  
57 Therefore see also: Chapter on Equality below. 
58  Open internet rules will apply from 30 April 2016. 

33 

 
 
                                                                                                                                                                                          
 
Furthermore,  the  European Commission  has  been  continuously  working on  the proposed  Directive 
on  Network  and  Information  Security.59    Improving  cyber  security  is  a  necessary  precondition  to 
promote  and  ensure  effective  protection  of  personal  data  within  the  meaning  of  Article  8  of  the 
Charter. The Network and Information Security Directive – proposed by the Commission in 2013 and 
which moved to the final stages of negotiations between the European Parliament and the Council in 
2015 – aims to ensure a high common level of cyber security in the EU, by improving Member States' 
national cyber security capabilities, by improving cooperation between Member States and between 
public and private sectors and by requiring companies in critical sectors to adopt risk management 
practices and report major incidents to the national authorities. 

On  23  June  2015,  a  European  Commission  Delegated  Regulation  on  real-time  traffic  information 
services  was  published.60  The  Delegated  Regulation  establishes  the  specifications  necessary  to 
ensure  accessibility,  exchange,  re-use  and  update  of  road  and  traffic  data  in  order  to  support  the 
interoperability,  compatibility  and  continuity  for  the  provision  of  real-time  traffic  information 
services in the European Union. With view to personal data the Regulation requires that where data 
is  to  be  processed,  it  should  be,  irreversibly  anonymised  where  possible.  Moreover,  it  should  be 
processed  in  accordance  with  European  Union  law,  e.g.  in  particular,  Directive  95/46/EC  and 
Directive 2002/58/EC as well as with national legislations thereto.  

Agreements 

In 2015,  the  Commission continued  to  negotiate with its  U.S.  counterparts  on the  Data  Protection 
Umbrella agreement in order to protect personal data transferred between the EU and the U.S. for 
law enforcement purposes as well as the conditions of a  safe harbour successor regime as regards 
data transfers to the US for commercial purposes. The latter negotiations became even more topical 
after  the  CJEU  on  6  October  2015  in  its  decision  in  the  Max  Schrems61  case  annulled  the 
Commission's  adequacy  decision  of  2000,  on  the  basis  that  it  contained  no  findings  as  to  the 
limitations and safeguards applicable under U.S. law with regard access to transferred data by U.S. 
public  authorities  for  law  enforcement  and  national  security  purposes.  In  this  judgment,  the  CJEU 
also  clarified  that  the  relevant  standard  is  that  the  third  country's  legal  order  and  international 
commitments provide a level of data protection that is "essentially equivalent" to the one prevailing 
in  the  EU.  Immediately  thereafter  the  Commission  as  well  as  the  Working  Party  29  (EU  Member 
States Data Protection Authorities) 62 issued communications that pointed to alternative tools that in 

59 Proposal for a Directive of the European Parliament and of the Council concerning measures to ensure a high 
common level of network and information security across the Union, COM(2013) 48 final, 7.2.2013, available 
at: http://eur-lex.europa.eu/legal-content/EN/TXT/?uri=CELEX%3A52013PC0048.  
60 European Commission Delegated Regulation (EU) 2015/962 of 18 December 2014 supplementing Directive 
2010/40/EU of the European Parliament and of the Council with regard to the provision of EU-wide real time 
traffic information services, OJ L 157, 23.6.2015, p. 21. 
61 C-362/14 Maximillian Schrems v Data Protection Commission; see below this section under "case law". 
62 The Article 29 Data Protection Working Party was set up under the Directive 95/46/EC and is composed by a 
representative of the supervisory authority designated by each EU country; a representative of the authority 
established for the EU institutions and bodies; a representative of the European Commission. It has advisory 
status and acts independently. 

34 

 
 
                                                            
the  meantime  could  be  used  for  data  transfers  to  the  U.S.,63  namely  standard  contractual  clauses 
(SCC) and Binding Corporate Rules (BCR). The WP 29 announced that it would assess whether these 
tools  could  indeed  continue  to  provide  a  sufficient  legal  basis  for  such  transfers  and  would  decide 
accordingly  by  31  January  2016  whether  to  take  enforcement  measures  to  prevent  transfers  if  it 
deemed SCR and BCR to be deficient in the light of the requirements of the CJEU. In September 2015, 
the Commission finalised negotiations on the EU-US Data Protection ‘Umbrella Agreement’. This will 
ensure data protection safeguards for any transfer of personal data between the EU and the US in 
any police or judicial cooperation in criminal matters.64 Under the agreement, if their personal data 
are  transferred  to  US  law  enforcement  authorities  and  these  data  are  incorrect  or  unlawfully 
processed,  EU  citizens  non-resident  in  the  US    their  personal  data  are  transferred  to  US  law65  This 
constitutes a significant improvement of the situation concerning judicial redress in the US. 

Furthermore,  in  order  to  fight  tax  fraud  and  evasion  the  European  Commission  is  working  with 
Member  States  on  the  implementation  of  the  OECD  global  standard  for  automatic  exchange  of 
financial  account  information.66    In  this  context  the  Commission  was  given  a  mandate  in  2014  to 
negotiate EU level agreements with Andorra, Liechtenstein, Monaco, San Marino and Switzerland for 
the  automatic  exchange  between  these  countries  and  the  Member  States  of  financial  account 
information (such as account balances, interest, dividends, and sales proceeds from financial assets). 
These agreements, most of which were concluded in 2015,67 contain the necessary data protection 
safeguards, taking into account that Switzerland's data protection framework has been recognised as 
adequate, while Liechtenstein applies Directive 95/46/EC68 as a Member of the EEA. The Agreement 
with  San  Marino  includes  an  additional  specific  annex  detailing  the  data  protection  rules  and 
safeguards applying to the exchanges of information, as there is no adequacy decision in place with 

63  See:  Communication  from  the  Commission  to  the  European  Parliament  and  the  Council  on  the  Transfer  of 
Personal Data from the EU to the United States of America under Directive 95/46/EC following the Judgment by 
in  Case  C-362/14  (Schrems)  available  under:  http://ec.europa.eu/justice/data-
the  Court  of  Justice 
protection/international-transfers/adequacy/files/eu-us_data_flows_communication_final.pdf  and  Statement 
on the implementation of the judgement of the Court of Justice of the European Union of 6 October 2015 in the 
Maximilian 
under: 
http://ec.europa.eu/justice/data-protection/article-29/press-material/press-
release/art29_press_material/2015/20151016_wp29_statement_on_schrems_judgement.pdf . 

Commissioner 

(C-362-14), 

Protection 

v  Data 

available 

Schrems 

case 

64 On 2 February 2016, the European Commission and the US agreed a new framework for transatlantic data 
flows: the EU-US Privacy Shield. The Commission presented a draft adequacy decision, taking account of the 
requirements set out in the Schrems ruling, on 29 February 2016.  

65 These rights will be granted to EU citizens in accordance with the US Judicial Redress Act of 2015 (H.R.1428) 
enacted on 24 February 2016 and due to enter into force 90 days thereafter. 

66 This has started within the EU as from 1 January 2016. 

67 The agreements with Switzerland and Liechtenstein were signed in May and October 2015, respectively. The 
Agreement with San Marino was signed on 8 December 2015. The Agreement with Andorra has been initialled 
and  is  expected  to  be  signed  soon.  As  regards  the  Agreement  with  Monaco,  the  negotiations  have  been 
finalised, and the initialling should take place in the first months of 2016. 
68 Directive 95/46/EC of the European Parliament and of the Council of 24 October 1995 on the protection of 
individuals with regard to the processing of personal data and on the free movement of such data, OJ L 281 , 
23/11/1995 p.31. 

35 

 
 
                                                            
 
 
 
San  Marino.  The  initialled  Agreement  with  Andorra  has  similar  language  on  data  protection  to  the 
Agreement  with  Switzerland,  given  the  adequacy  decision  adopted  by  the  Commission  on  its  data 
protection  framework.  The  data  protection  provisions  in  the  draft  Agreement  with  Monaco  follow 
the model of the San Marino Agreement given the lack of an adequacy decision for this jurisdiction. 

Policy 

Policy work of the European Commission touching upon the right to protection of personal data in 
2015 particularly evolved around new developments in the digital environment. 

Thus,  in  2015,  the  Commission  continued  to  work  on  the  Network  and  Information  Security  NIS 
public-private  Platform.  The Platform is  part  of  the  Cybersecurity  Strategy  of  the  European Union, 
which calls on the Commission to set up a public-private platform to identify and develop incentives 
to adopt good cyber security practices and promote the development and the adoption of secure ICT 
solutions.  The  adoption  of  adequate  security  measures  is  essential  in  order  to  ensure  effective 
protection of personal data within the meaning of Article 8 of the Charter. The NIS Platform met for 
its  5th  Plenary  on  27  May  2015,  and  finalised  guidance  documents  on  cyber  security  risk 
management approaches and voluntary information sharing.  

An industry-led code of conduct working group within the realm of mHealth was established at a first 
mHealth stakeholder event, held at the end of March 2015. The aim of this subgroup is to produce a 
code of conduct on mobile health apps, covering privacy and security, and possibly to submit it to the 
Article 29 Working Party for approval. The European Commission is a facilitator in this process. This 
code of conduct is aimed at increasing citizens' trust in mHealth apps, facilitating compliance with EU 
data  protection  rules  for  industry,  and  mHealth  app  developers  in  particular,  and  providing  a 
competitive advantage for those who are signatory to the code. 

Also, the Commission has in 2015 been working on a Staff working Document in the field of Internet 
of Things (IoT). Bearing in mind the relevance of new developments in this field for the fundamental 
rights to a  private life and protection of personal data the Commission is analysing the existing EU 
legislative packages that may apply to IoT (Data protection directive, e-Privacy Directive, Consumers' 
rights  Directive,  e-Commerce  directive)  in  order  to  draw  a  gap  analysis  and  identify  aspects  that 
might need further regulatory intervention. The Working Party set up under Article 29 in its Opinion 
8/2014 on Recent Developments on the Internet of Things presented the main data protection risks 
that  lie  within  the  ecosystem  of  the  IoT,  and  already  identified  certain  risks  related  to  citizen 
acceptability, notably in terms of data privacy, security, liability, ethics. Apart from the road mapping 
exercise  in  the  field  of  IoT,  the  Commission  is  taking  further  the  concept  of  "Charter-friendly 
alternative" when designing its funding instruments under Horizon 2020. 

As  regards  the  European  energy  policy  a  communication  on  a  Framework  Strategy  for  a  Resilient 
Energy Union with a Forward-Looking Climate Change Policy69 delineates an Energy Union strategy 
with five mutually-reinforcing and closely interrelated dimensions designed to bring greater energy 
security,  sustainability  and  competitiveness.  The  dimensions  are  directly  relevant  to  the  right  to 

69  Communication  on  a  Framework  Strategy  for  a  Resilient  Energy  Union  with  a  Forward-Looking  Climate 
http://eur-lex.europa.eu/legal-
Change 
content/EN/TXT/?uri=COM:2015:0080:FIN 

COM(2015)80 

25.2.2015, 

available 

Policy, 

final, 

at: 

36 

 
 
                                                            
private life and the protection of personal data. In developing synergies between the Energy Union 
and  the  Digital  Single  Market  agenda,  the  Commission  envisages  to  propose  measures  aimed  at 
ensuring  privacy  protection  and  cyber-security.  The  reference  to  smart  technologies  in  the  energy 
field and to the protection of personal data can also be found in the communication on the Digital 
Single Market.70 

New  developments  with  an  impact  on  the  right  to  data  protection  and  privacy  are  manifested  by 
Cooperative Intelligent Transport Systems (C-ITS) which use technologies to allow road vehicles to 
communicate  with  other  vehicles,  with  traffic  signals  and  roadside  infrastructure  as  well  as  with 
other  road  users.  The  systems  are  also  known  as  vehicle-to-vehicle  communications,  or  vehicle-to-
infrastructure  communications.  A  stakeholder  platform71  for  the  Deployment  of  Cooperative 
Intelligent  Transport  Systems  in  the  European  Union  (C-ITS  Platform)  in  its  first  phase,  essentially 
covering  the  year  of  2015  (November  2014  –  January  2016),  delivered  its  contribution  towards  a 
shared vision on the topic. As C-ITS equipped vehicles are making use of messages that are constantly 
broadcasting data, including e.g. their speed and location, this could raise potential concern as how 
to  guarantee  privacy  and  data  protection  in  line  with  Article  8  of  the  Charter.  After  various 
consultations,  in  particular  with  the  EDPS  and  privacy  experts,  the  C-ITS  platform  considers  these 
messages as “personal data” because of their potential of indirect identification of users. Therefore, 
it  has  been  recommended  to  use  principles  laid  down  by  Directive  95/46/EC  to  process  data 
exchanged  with  the  C-ITS,  namely  informed  consent,  vital  interests  and  public  interest  in  cases  of 
lacking (express) consent. 

Case Law 

The year 2015 saw a number of important decisions by the CJEU concerning the right to protection of 
personal  data.  The  decision  in  the  case  of  Max  Schrems72  recalled  the  EU  institutions’  and  the 
Member  States’  authorities’  obligations  to  protect  fundamental  rights  under  the  Charter  when 
implementing  EU  law.  Here  the  CJEU  declared  the  Commission's  so-called  Safe  Harbour  Decision 
invalid.  The  latter  constituted  an  adequacy  decision  under  Article  25(6)  of  the  Data  Protection 
Directive.73  This  decision had allowed  transfer  of  personal  data  to  a  third  country,  here the  United 
States, as it found that there was an adequate level of protection by reason of its domestic law or its 
international commitments by the United States. This adequacy finding and the transfer of personal 
data to servers in the US by Facebook's Irish subsidiary had been challenged by an individual before 
national  courts,  in  particular  in  the  light  of  revelations  on  mass  surveillance  by  intelligence 
authorities within the US in 2013. 

70 Communication from the commission to the European Parliament, the Council, the European Economic and 
Social Committee and the Committee of the Regions A Digital Single Market Strategy for Europe COM(2015)192 
final,  at  p.  14  and  the  accompanying  SWD(2015)100  final,  at  p.  84  ff.  (section  on  e-energy),  available  at: 
http://eur-lex.europa.eu/legal-content/EN/TXT/?qid=1447773803386&uri=CELEX:52015DC0192 
71 The C-ITS Platform gathers public and private stakeholders representing public authorities, vehicle 
manufacturers, suppliers, service providers, telecomm companies etc. 
72 CJEU, judgment of 6 October 2015 in Case C-362/14 Maximillian Schrems v Data Protection Commission. 
73  Directive  95/46/EC  of  24  October  1995  on  the  protection  of  individuals  with  regard  to  the  processing  of 
personal data and on the free movement of such data, OJ L 281 , 23.11.1995, p. 31. 

37 

 
 
                                                            
The CJEU found that an  adequacy decision  was  conditional  on  a  finding by  the  Commission that in 
the  third  country  concerned  there  is  a  level  of  protection  of  personal  data  which,  while  not 
necessarily  identical,  is  "essentially  equivalent"  to  that  guaranteed  within  the  EU  by  virtue  of  the 
Directive  read  in  the  light  of  the  Charter  of  Fundamental  Rights.  Regarding  specifically  the  Safe 
Harbour  Decision  in  question  the  Court  held  that  it  did  not  contain  sufficient  findings  by  the 
Commission on the limitations as regards access by U.S. public authorities to data transferred under 
that  decision  and  on  the  existence  of  effective  legal  protection  against  such  interference.  In 
particular,  the  Court  clarified  that  legislation  permitting  public  authorities  to  have  access  on  a 
generalised  basis  to  the  content  of  electronic  communications  must  be  regarded  as  compromising 
the  essence  of  the fundamental  right  to  respect for  private life.  Furthermore,  the  Court  confirmed 
that  even  where  there  is  an  adequacy  decision  under  Article  25(6)  of  Directive  95/46/EC,  the 
Member States' Data Protection Authorities (DPAs)  remain empowered  to examine, with complete 
independence, whether data transfers to a third country comply with the requirements laid down by 
Directive  95/46/EC,  read  in  the  light  of  Articles  7,  8  and  47  of  the  Charter  of  Fundamental  Rights. 
However,  the  Court  also  affirmed  that  only  the  Court  of  Justice  can  declare  an  EU  act,  such  as  a 
Commission adequacy decision, invalid. Thus, where a claim is lodged with the national supervisory 
authorities, such as a data protection authority, they may, even where the Commission has adopted 
a  decision  finding  that  a  third  country  affords  an  adequate  level  of  protection  of  personal  data, 
examine whether the transfer of a person’s data to the third country complies with the requirements 
of the EU legislation on the protection of that data and, in the same way as the person concerned, 
bring the matter before the national courts, in order that the national courts make a reference for a 
preliminary ruling for the purpose of examination of that decision’s validity. 

In the case of Weltimmo74, a company formally registered in Slovakia, running a real estate website 
focused on the Hungarian market, was the data controller of the personal data of advertisers on that 
website. Weltimmo ignored requests for deletion from those advertisers and was therefore fined by 
the Hungarian DPA. Weltimmo complained, arguing that it was established in Slovakia and therefore 
could not be fined by the Hungarian DPA and under Hungarian law. The CJEU found that the notion 
of establishment needs to be interpreted in light of the objectives of the Data Protection Directive 
95/46/EC.  To  be  established  on  a  territory  of  a  Member  State,  the  real  and  effective  exercise  of 
activity through stable arrangements is enough, notwithstanding the formal place of establishment. 
In  this  case,  Weltimmo  had  a  real  and  effective  exercise  of  its  entire  business  activity  in  Hungary. 
Hence, Hungarian law was applicable and the Hungarian DPA was competent to impose fines. 

In its judgment delivered on 16 April 2015, (reference for preliminary ruling in several joined cases 
including Willems75) the Court of Justice ruled that the provisions of Regulation (EC) No 2252/200476 
on  standards  for  security  features  and  biometrics  in  passports  and  travel  documents  issued  by 
Member States, as amended by Regulation (EC) No 444/2009, must be interpreted as meaning that 

74 CJEU judgment of 1 October 2015 in Case C-230/14, Weltimmo. 
75 CJEU, judgment of 16 April 2015 in joined Cases C-446/12 W. P. Willems v Burgemeester van Nuth, C-447/12 
H.  J.  Kooistra  v  Burgemeester  van  Skarsterlân,  C-448/12  M.  Roest  v  Burgemeester  van  Amsterdam  and  C-
449/12 L. J. A. van Luijk v Burgemeester van Den Haag. 
76  Council  Regulation  (EC)  No  2252/2004  of  13  December  2004  on  standards  for  security  features  and 
biometrics in passports and travel documents issued by Member States, OJ L 385, 29.12.2004, p. 1. 

38 

 
 
                                                            
that  Regulation  is  not  applicable  to  identity  cards  issued  by  a  Member  States  to  its  nationals, 
regardless of the period of validity and the possibility of using them for the purposes of travel outside 
that State. They must also be interpreted as meaning that they do not require the Member States to 
guarantee,  in  their  legislation,  that  biometric  data  collected  and  stored  in  accordance  with  that 
regulation  will  not  be  collected,  processed  and  used  for  purposes  other  than  the  issue  of  the 
passport  or  travel  document,  since  that  is  not  a  matter  which  falls  within  the  scope  of  that 
regulation. 

In the case of Ms Smaranda Bara77 and numerous other Romanian citizens who were self-employed 
workers  (for  the  purposes  of  Directive  95/46/EC  –  data  subjects)  the  Romanian  tax  authority 
transmitted data relating to their declared income to the National Health Insurance Fund. The latter 
then required the payment of arrears of contributions to the health insurance regime. The persons 
concerned contested, before national courts the lawfulness of that transmission under the Directive. 
They submitted that their data were used for purposes other than those for  which those data had 
initially  been  communicated  to  the  tax  authority,  without  their  prior  explicit  consent  and  without 
their  having  previously  been  informed.  Under  National  Law,  public  bodies  were  empowered  to 
transfer  personal  data  to  the  health  insurance  funds  so  that  the  latter  may  determine  whether  an 
individual qualifies as an insured person. The data concerned the identification of persons (surname, 
first  name,  personal  identity  card  number,  address)  but  did  not  include  data  relating  to  income 
received.  The  question  of  the  referring  court  to  the  CJEU  was  whether  EU  law  precluded  a  public 
administrative  body  from  transferring  personal  data  to  another  public  administrative  body  for  the 
purpose  of  their  subsequent  processing,  without  the  data  subjects  being  informed  of  that  transfer 
and  processing.  The  CJEU  held  that  the  requirement  of  fair  processing  of  personal  data  required  a 
public  administrative  body  to  inform  the  data  subjects  of  the  fact  that  their  data  would  be 
transmitted to another public administrative body for the purpose of their processing by the latter in 
its capacity as recipient of those data. The Directive expressly required that any restrictions on the 
requirement  to  provide  information  were  to  be  imposed  by  legislative  measures.  The  Court 
concluded  that  the  combined  reading  of  Articles  10,  11  and  13  of  Directive  95/46/EC  (right  to 
information and restrictions) prohibited national measures such as those contested by the applicants 
which allow transmission of data between public authorities, without the data subjects having been 
informed of that transfer or processing. 

In the case  of  WebMindLicenses78,  a  Hungarian  company  operating a  website  providing interactive 
erotic  services  was  required  by  the  Hungarian  tax  authority  to  make  a  substantial  VAT  payment  in 
Hungary, following a tax investigation. The authority also imposed a fine on WML and obliged it to 
pay interests. In its decision the authority had used as evidence data that had secretly been compiled 
in  the  course  of  a  parallel  criminal  investigation.  WML  challenged  the  decision,  which  led  to  a 
preliminary ruling request by the national court.  Questions raised concerned, inter alia, the legality 
of using, in an administrative (tax) procedure, evidence collected within a criminal procedure, in view 
of  the  guarantee  of  person's  fundamental  rights  to  good  administration,  to  an  effective  remedy,  a 
fair  trial  and  his  or  her rights  of  defence,  and  consequences of  breach of  a  Charter's  rights  for  the 

77 CJEU, judgment of 1 October 2015 in Case C-201/14, Bara and Others. 
78 CJEU, judgment of 17 December 2015 in Case C-419/14, WebMindLicenses. 

39 

 
 
                                                            
validity of the decision, if such breach is established. The CJEU stated that EU law did not preclude 
using  the  evidence  obtained  in  the  context  of  a  parallel  criminal  procedure,  provided  that  the 
obtaining  of  such  evidence  and  its  use  did  not  infringe  the  rights  guaranteed  by  EU  law  (and  in 
particular the rights to privacy and protection of personal data, Article 7 and 8 of the Charter). The 
national  court  had  to  assess whether  secret  gathering  of  evidences  were  means  of  investigation 
provided for by law and were necessary in the context of the criminal procedure and whether their 
use by the tax authorities was also authorised by law and necessary. It was also for the national court 
to  verify  whether,  in  accordance  with  the  general  principle  of  observance  of  the  rights  of  the 
defence, the person concerned was granted, in the context of the administrative procedure, access 
to that evidence and was being heard concerning it.  If the national court were to find that this was 
not  the  case,  or  that  that  evidence  was  obtained  or  used  in  breach  of  Article  7  of  the  Charter,  it 
would be obliged to disregard that evidence and annul the decision if, as a result, the latter had no 
basis. That evidence also had to be disregarded if the national court is not empowered to carry out 
such review. 

German legislative proposal  

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

Article 9 – Right to marry and right to found a family 

This  Article  is  based  on  Article  12  of  the  ECHR,  which  reads  as  follows:  ‘Men  and  women  of 
marriageable  age  have  the  right  to  marry  and  to  found  a  family  according  to  the  national  laws 
governing the exercising of this right.’ The wording of the Article has been modernised to cover cases 
in which national legislation recognises arrangements other than marriage for founding a family. This 
Article  neither  prohibits  nor  imposes  the  granting  of  the  status  of  marriage  to  unions  between 
people of the same sex. This right is thus similar to that afforded by the ECHR, but its scope may be 
wider when national legislation so provides. 

Dutch legislative proposal 

Scrutinising  a  Dutch  draft  law  against  forced  marriages,  which,  amongst  others,  did  not 
in  other  countries  under  any 
recognise  a  marriage  between  cousins  concluded 
circumstances,  the  National  Commission  for  International  Private  Law  found  that  this 

40 

 
 
 
 
 
provision  violates  the  right  to  marry  as  protected  by  Article  9  of  the  Charter.  This  opinion 
was  taken  into  account  in  the  law,  as  adopted.  Article  41a  of  the  law  allows  for  the 
recognition of a marriage between cousins if, before the marriage, they have filed a certified 
declaration that the marriage is concluded with mutual free consent. (Netherlands, Minister 
of Security and Justice (Minister van Veiligheid en Justitie),'Motie Van Oosten c.s.', Wet van 7 
oktober 2015 tot wijziging van Boek 1 en Boek 10 van het Burgerlijk Wetboek betreffende de 
huwelijksleeftijd,  de  huwelijksbeletselen,  de  nietigverklaring  van  een  huwelijk  en  de 
erkenning van in het buitenland gesloten huwelijken (Wet tegengaan huwelijksdwang)) 

Article 10 – Freedom of thought, conscience and religion 

The right guaranteed in paragraph 1 of Article 10 of the Charter corresponds to the right guaranteed 
in Article 9 of the ECHR. Besides the freedom of adhering to a chosen religious belief and practising 
it, the right protects actions of conscience such as for example those of conscientious objectors. 

Policy 

A  2015  Eurobarometer  survey79  on  discrimination  looked  into  attitudes  and  perceptions  of 
Europeans  towards  discrimination  based  on  different  grounds  including  religion  or  beliefs  and 
citizens'  opinions  on  different  policy  measures  to  combat  discrimination.  The  survey  explored  the 
social acceptance of specific groups belonging to ethnic and religious minorities. 

Statistics  published  in  the  survey  show  that:  50%  of  Europeans  believe  discrimination  based  on 
religion or beliefs is widespread (up from 39% in 2012); 33% believe that expressing a religious belief 
can  be  a  disadvantage  when  applying  for  a  job  (up  from  23%  in  2012);  Muslims  suffer  from  the 
lowest levels of social acceptance among religious groups, with only 61% of respondents stating that 
they  would  be  fully  comfortable  with  a  colleague  at  work  being  Muslim,  and  only  43%  being  fully 
comfortable if their adult children had a relationship with a Muslim person. 

Reflecting  these  results,  the  majority  of  respondents  thought  that  new  measures  need  to  be 
introduced  to  raise  the  level  of  protection  for  groups  at  risk  of  discrimination.  They  were  also  in 
favour of information about diversity being provided at school.   

The  EU  Fundamental  Rights  Agency  survey80  on  discrimination  and  hate  crime  against  Jews  shows  
rising Antisemitism in Europe; 73% of respondents felt that Antisemitism online has become worse 
over the last five years81. 

Application by Member States 

79 Special Eurobarometer 437, DISCRIMINATION IN THE EU IN 2015, available at: 
http://ec.europa.eu/COMMFrontOffice/PublicOpinion/index.cfm/Survey/getSurveyDetail/instruments/SPECIAL
/surveyKy/2077 . 
80 FRA Report: Antisemitism - Overview of data available in the European Union 2004–2014, October 2015, 
available at: 
http://fra.europa.eu/sites/default/files/fra_uploads/fra-2015-antisemitism-update_en.pdf . 
81 See also below under Article 11 and particularly Article 21 (policy). 

41 

 
 
 
 
                                                            
Council  Regulation  1099/200982  on  the  protection  of  animals  at  the  time  of  killing  establishes  the 
general  principle  that  animals  shall  only  be  killed  after  stunning.  At  the  same  time,  the  EU  must 
respect freedom of religion as enshrined in Article 10 of the EU Charter of Fundamental Rights. The 
Regulation thus contains an exception to the stunning requirement for animals subject to particular 
methods  of  slaughter  prescribed  by  religious  rites,  provided  that  the  slaughter  takes  place  in  a 
slaughterhouse.  Derogation  from  stunning  is  therefore  justified  for  religious  reasons  in  the  case  of 
slaughter under the Jewish rite (for Kosher meat) or Muslim rites (for Halal meat).  

In  view  of  the  above  mentioned  Council  Regulation  1099/2009  on  protection  of  animals,  Member 
States define themselves to what extent exemptions from the stunning requirement for animals due 
to religious reasons are applicable and notify the Commission. Several Parliamentary questions were 
raised  on  slaughter  without  stunning  in  2015  and  on  the  respective  legislation  in  specific  Member 
States.  The  Commission  is  currently  assessing  the  relevant  national  laws.  Petitions  received  on 
slaughter  without  stunning  suggested  that  such  slaughter  should  not  be  authorised  at  EU  level.  In 
reply, the Commission highlighted that such proposal would not respect the freedom of religion and 
the right to practice it.    

Case law  

a) ECtHR 

The  judgment  in  Karaahmed  v.  Bulgaria83  concerned  a  demonstration  outside  a  mosque  during 
regular  Friday  prayers  and  an  official  investigation  into  clashes  that  erupted  in  the  grounds  of  the 
mosque. There were some 100 to 150 demonstrators, all members and supporters of a political party 
who were protesting against what they referred to as “howling” emanating during the calls to prayer 
from  the  loudspeakers  installed  on  the  capital’s  only  mosque.  The  demonstration  got  out  of  hand. 
Muslim worshippers, including the applicant, were insulted and this was followed by acts of violence 
and the throwing of objects. The police intervened to stop the violence. The Court found a violation 
of Article 9. The authorities had been aware of the tensions that existed and the risks to which the 
planned  demonstration  gave  rise.  However,  they  had  not  taken  any  measures  to  ensure  that  the 
rights  of  the  demonstrators  and  of  the  worshippers  received  equal  protection.  The  police  actions 
were  confined  to  simply  limiting  the  violence.  Ultimately,  the  right  to  demonstrate  had  been 
accorded  precedence  to  the  detriment  of  the  right  to  practise  one’s  religion  peacefully.  The 
subsequent investigations had not produced any effective response to the impugned events either. 

The judgment in Ebrahimian v. France84 concerned the question of reconciling a hospital employee’s 
freedom of religion with the duty of neutrality owed by health professionals in public hospitals. The 
applicant, of the Muslim faith, was employed as a social assistant in the psychiatric department of a 
public  hospital.  The  authorities  refused  to  renew  her  contract  when  she  refused,  after  receiving  a 
warning,  to  remove  her  veil  (covering  her  hair,  ears  and  neck)  at  her  place  of  work.  The  domestic 
courts  upheld  the  decision,  which  they  considered  justified  by  the  need  to  ensure  respect  for  the 
constitutional  principles  of  secularism  and  equality  before  the  law,  and  the  derived  duty  of  civil 

82 Council Regulation 1099/2009 on the protection of animals at the time of killing, OJ L 303, 18.11.2009, p. 1. 
83 ECtHR, judgement of 24 February 2015 in case Karaahmed v. Bulgaria, application no. 30587/13. 
84ECtHR, judgment of 25 November 2015 in case Ebrahimian v. France, application no. 64846/11.  

42 

 
 
                                                            
servants  to  display  neutrality  when  it  came  to  the  manifestation  of  their  religious  beliefs  in  their 
dealings with the users of public services. In the Convention proceedings, the applicant claimed that 
the decision had breached her Article 9 right to freedom of religion. The Court found otherwise. The 
judgment is noteworthy in view of the Court’s analysis of the weight to be given to the principles of 
secularism,  equality  and  neutrality  when  examining  whether  the  interference  pursued  a  legitimate 
aim and was necessary. 

b) Preliminary rulings pending before the CJEU 

In  2015  the  Belgian  and  French  Supreme  Courts  (Cour  de  Cassation)  submitted  to  the  CJEU  two 
preliminary  rulings  requesting  it  to  interpret  Directive  2000/78/EC85.  The  two  cases  are  similar  in 
certain  regards.  Both concern dismissals  of  female Muslim workers  (a receptionist  and  a  computer 
engineer respectively) by private companies because they were wearing Islamic headscarves at work. 
However, there are also some differences in the facts. In the Belgian case, the prohibition on wearing 
a headscarf at the workplace was proclaimed in the company's regulations, applied in all situations 
and  concerned  all  outward  signs  of  political,  philosophical  and  religious  beliefs.  In  contrast,  in  the 
French  case,  the  prohibition  was  not  proclaimed  in  any  formal  text  issued  by  the  company, 
concerned basically the Islamic headscarf, and was only applied in the relations with clients (it was 
imposed  following  a  client's  request).  The  two  cases  raise  important  and  complex  issues  involving 
several fundamental rights and will give the CJEU the opportunity to clarify the interpretation of EU 
law prohibiting discrimination at the workplace.  

Ruling of the Dutch Supreme Court 

In a Dutch case, parents argued that compulsory education without exemption for children 
whose parents change their religious persuasion is in conflict inter alia with the Charter. The 
parents  claimed  they  should  be  free  to  act  in  line  with  their  persuasion  by  removing  their 
child from school. The Supreme Court stated that no Union law was being implemented in 
that  case,  thus  the  Charter  did  not  apply.  (The  Netherlands,  Supreme  Court,  case  no 
NL:HR:2015:1338 of 27 May 2015). 

Ruling of the Spanish Constitutional Court  

In a case before the Constitutional Court in Spain, the Charter was referred to by a dissenting 
judge who stressed that the majority vote of the court was in her view misinterpreting the 
reach of the right to conscientious objection – a right that is mentioned in the Charter but 
not  in  Spanish  constitutional  law.  The  case  concerned  a  co-owner  of  a  pharmacy  who 
refused,  based  on  conscientious  objection,  to  sell  condoms  and  the  ‘day-after  pill’  in  his 
establishment.  In  his  defence  he  had  relied  amongst  others  on  the  provision  of  the 
Spanish Constitution guaranteeing ideological and religious freedom. The Court affirmed the 

85 Belgian Court of cassation referral decision of 9 March 2015 (C-157/15, Achbita); French Court of cassation 
referral decision of 9 April 2015 (C-188/15, Bougnaoui). 

43 

 
 
 
                                                            
claimant’s  right  to  conscientious  objection.  However,  the  dissenting  judge  argued  that  the 
right  to  freedom  of  thought,  conscience  and  religion  (Article 10  of  the  Charter)  and  the 
preparatory works of the Charter (Article 52(7)) imply that only the legislator may establish 
how the right to conscientious objection can be exercised in practice. (Constitutional Court, 
dissenting opinion by judge Adela Asua Batarrita, case no STC 145/2015 of 25 June 2015) 

Article 11 – Freedom of expression and information 

The  right  to  freedom  of  expression  is  guaranteed  by  Article  11(1)  of  the  Charter  and  includes  the 
freedom to hold opinions and to receive and impart information and ideas without interference by 
public authorities and regardless of frontiers. Article 11(2) ensures respect for freedom and pluralism 
of the media. In line with Article 52(3) of the Charter, the EU's approach to this right and its limits 
takes inspiration from the case law of the ECtHR and is enshrined in its EU human rights Guidelines 
on freedom of expression online and offline86. The Guidelines address a host of issues including, inter 
alia,  the  safety  of  journalists,  the  promotion  of  media  freedom  and  pluralism,  defamation  laws, 
blasphemy laws and laws addressing incitement to racial hatred and violence.  

The attacks on the offices of  Charlie Hebdo ensuing in the murder of cartoonists and journalists in 
January  2015  emphasised  the  paramount  significance  of  freedom  of  expression  in  a  democratic 
society; a freedom that extends to information and ideas that may offend, shock or disturb the state 
or  any  sector  of  the  population.  This  may  include  criticism  of  religion,  ideology,  beliefs  and 
institutions  and  all  forms  of  satire.  At  the  same  time  freedom  of  expression  will  not  protect  hate 
speech, as emphasised by the decision of the ECtHR in the case of M'Bala87 as described below. 

Legislation 

The  EU's  Audiovisual  Media  Services  Directive  2010/13/EU88  (AVMSD)  governs  EU-wide 
coordination of national legislation on all audiovisual media, both traditional TV broadcasts and on-
demand  services.  The  European  Commission  carried  out  a  public  consultation  between  July  and 
September 2015   with the aim of seeking the views of interested parties on the functioning of the 
current  audiovisual  framework  (so-called  REFIT  evaluation)  as  well  as  policy  options  for  its  future. 
The evaluation and review of the AVSMD is part of the Commission's Digital Single Market strategy.89 
The Commission has identified a number of issues to be considered in the evaluation and review of 

86 Available at: 
http://eeas.europa.eu/delegations/documents/eu_human_rights_guidelines_on_freedom_of_expression_onli
ne_and_offline_en.pdf.  
87 ECtHR, judgement of 10 November 2015 in case M’Bala v. France, application no. 25239/13. 
88  Directive  2010/13/EU  of  the  European  parliament  and  of  the  Council  on  the  coordination  of  certain 
provisions laid down by law, regulation or administrative action in Member States concerning the provision of 
audiovisual media services (Audiovisual Media Services Directive), OJ L 95, p.1.   
89  Available  at:  https://ec.europa.eu/digital-agenda/en/news/commission-seeks-views-europes-audiovisual-
media-rules  

44 

 
 
 
 
 
                                                            
the AVMSD. Issues relating to fundamental rights include: an optimal level of consumer  protection 
(Art.  38),  user  protection  (in  particular  children)  and  prohibition  of  hate  speech  and  discrimination 
(Articles  21,  24  and  38),  promoting  European  audiovisual  content  (Article  22)  and  strengthening 
media  freedom  and  pluralism,  access  to  information  and  accessibility  to  content  for  people  with 
disabilities  (Articles  11,  25  and  26).  The  Commission is  currently  analysing  the replies  to  the public 
consultation.90  

Policy 

Several  policy  projects  of  the  European  Commission  in  2015  aimed  at  fostering  freedom  of 
expression and information as well as media freedom and pluralism, as can be seen below.  

On 1 May 2015 the Commission launched two new independent pilot projects in the field of media 
freedom  and  pluralism.91  They  are  part  of  the  European  Centre  for  Press  and  Media  Freedom 
(ECPMF) and have the support of the European Parliament. The new projects are coordinating some 
of  Europe's  media  freedom  community  and  mapping  media  freedom  violations  in  the  EU  and 
neighbouring countries and will run until April 2016.  

The Media Pluralism Monitor tool is another EU-financed pilot project. It is run independently by the 
European  University  Institute  in  Florence  (Centre  for  Media  Pluralism  and  Media  Freedom)  to 
identify potential risks to media pluralism in Member States. It is based on a European Commission 
funded study published in 2009.92 The first phase of the project – based on a sample of nine Member 
States  –  resulted  in  a  final  report  published  in  January  2015.93  In  2015,  the  European  University 
Institute in Florence has applied the tool to the remaining Member States.94 

As regards the independence of the audiovisual regulatory bodies, in 2015 the European Regulators 
Group's for Audiovisual Media Services (ERGA) sub-group on independence95 continued its work on 
analysing the characteristics of independence in the light of the existing studies and the experiences 
of regulatory authorities.  On 15 December ERGA adopted the Report on independence of National 
Regulatory Authorities. The Report provides recommendations on the characteristics of independent 
regulatory  authorities  and  calls  on  the  Commission  to  revise  the  AVMSD  in  order  to  ensure  the 
independence  of  audiovisual  regulatory  bodies.  The  independence  of  regulatory  authorities  for 
audiovisual  media  services  is  considered  essential  for  the  preservation  of  a  free  and  pluralistic 
media.96  The  replies  to  the  2015  Public  consultation  on  the  AVMSD  showed  that  a  majority  of 
respondents  (63%)  consider  that  there  is  a  need  to  reinforce  the  independence  of  audiovisual 

90 A possible legislative proposal to review the AVMSD is expected in 2016. 
91 Available at: https://ec.europa.eu/digital-agenda/en/media-freedom-pilot-projects#Article . 
92 Available at: https://ec.europa.eu/digital-agenda/en/media-pluralism-monitor-mpm.  
93 Available at: http://ec.europa.eu/digital-agenda/news-redirect/20149.  
94  The  results  of  this  second  phase  were  published  in  March  2016,  available  at:  http://ec.europa.eu/digital-
agenda/en/media-pluralism-monitor-mpm (under "Second phase"). 
95 Further information available at: https://ec.europa.eu/digital-agenda/en/avmsd-audiovisual-regulators.  
96 Further information available at: https://ec.europa.eu/digital-agenda/news-redirect/28179 . 

45 

 
 
                                                            
regulatory bodies. The review of the AVMSD will consider solutions to strengthen the independence 
of audiovisual regulators.   

The Commission remains committed to a vision of an open and free Internet in which all rights and 
freedoms  that  people  have  offline  also  apply  online  as  presented  in  the  Communication  "Internet 
Policy  and  Governance  Europe's  role  in  shaping  the  future  of  Internet  Governance"97  and  has 
published a report on the implementation of this Communication in 2015. In this context, the project 
for a Global Internet Policy Observatory is also being implemented. To that end, the Commission had 
successfully included the reaffirmation to protect human rights online in the outcome document of 
the World Summit on the Information Society (WSIS+10) review in December 2015.  In addition, the 
Commission-funded  project  for  a  Global  Internet  Policy  Observatory  is  also  being  implemented  to 
promote capacity building on Internet policies. 

The  annual  meeting  of  the  EU  Media  Literacy  Expert  Group  took  place  on  1  December  2015  in 
Brussels.  Its  main  topics  included  among  others:  media  freedom  and  pluralism,  media  ethics, 
technical verification tools in the EU, tools for decoding propaganda, media literacy beyond borders 
and  questions  of  whether  media  have  a  moral  imperative  to  create  informed  citizens  and  support 
democracy.  Furthermore,  the  development  of  a  new  toolkit  by  the  EU  Agency  for  Fundamental 
Rights and the European broadcasting Union for media to increase accuracy of reporting on diversity 
related-issues and combat entrenched prejudices was also announced at the meeting.  

Application by Member States 

On  10  July  2015,  the  Commission  adopted  a  decision  on  the  compatibility  with  EU  law  of  certain 
measures  which  Lithuania  had  adopted  under  Article  3(2)  of  the  Audiovisual  Media  Services 
Directive.  These  measures  concerned  the  temporary  suspension  of  the  retransmission  of  the 
television  broadcast  RTR  Planeta  in  the  territory  of  Lithuania  for  a  period  of  three  months.  The 
temporary  suspension  was  based  on  the  grounds  that,  according  to  the  Lithuanian  authorities, 
certain broadcasts on RTR Planeta infringed the prohibition of incitement to hatred. 

When assessing the compatibility of these measures with EU law, the Commission took into account 
Article  11  of  the  Charter  (freedom  of  expression).  The  Commission  found  that  the  effects  of  the 
suspension on the freedom  of  expression did  not  go  beyond  those  which are intrinsically  linked  to 
the suspension of retransmission of the broadcast, possible under Article 3(2) AVMSD. In its decision, 
the Commission also highlighted the importance of respecting the broadcaster's right to be heard.98 

Case law  

In 2015 the ECtHR decided two important cases in the area of freedom of expression which are also 
relevant for the interpretation of the Charter.  

97 Communication from the Commission to the European Parliament, the Council, the European Economic and 
Social Committee and the Committee of the Regions Internet Policy and Governance Europe's role in shaping 
the future of Internet Governance (Text with EEA relevance), COM/2014/072, 12.2.2014, available at: 
http://eur-lex.europa.eu/legal-content/EN/TXT/PDF/?uri=CELEX:52014DC0072&from=EN.  
98Available at: http://ec.europa.eu/newsroom/dae/itemdetail.cfm?item_id=24517&newsletter_id=0&lang=en  

46 

 
 
                                                            
In the Delfi case,99 in which the ECtHR had been called upon to examine a complaint about liability of 
an  Internet  news  portal  for  user-generated  comments,  the  Court  held  that  there  had  been  no 
violation  of  Article  10  (freedom  of  expression)  of  the  European  Convention  on  Human  Rights.  The 
applicant company, Delfi AS, which runs a news portal run on a commercial basis, complained that it 
had been held liable by the national courts for the offensive comments posted by its readers below 
one of its online news articles about a ferry company. At the request of the lawyers of the owner of 
the  ferry  company,  Delfi  removed  the  offensive  comments  about  six  weeks  after  their  publication. 
The case therefore concerned the duties and responsibilities of Internet news portals which provided 
on a commercial basis a platform for user-generated comments on previously published content and 
some  users  –  whether  identified  or  anonymous  –  engaged  in  clearly  unlawful  hate  speech  which 
infringed the personality rights of others. The Delfi case  did not concern other fora on the Internet 
where  third-party  comments  could  be  disseminated,  for  example  an  Internet  discussion  forum,  a 
bulletin  board  or  a  social  media  platform.  The  question  before  the  Court  was  not  whether  the 
freedom of expression of the authors of the comments had been breached but whether holding Delfi 
liable for comments posted by third parties had been in breach of its freedom to impart information. 
The  Court  found  that  the  Estonian  courts’  finding  of  liability  against  Delfi  had  been  a  justified  and 
proportionate  restriction  on  the  portal’s  freedom  of  expression,  in  particular,  because:  the 
comments in question had been extreme and had been posted in reaction to an article published by 
Delfi on its professionally managed news portal run on a commercial basis; the steps taken by Delfi to 
remove the offensive comments without delay after their publication had been insufficient; and the 
320 euro fine had by no means been excessive for Delfi, one of the largest Internet portals in Estonia. 

In the case of M’Bala100 the ECtHR declared that Article 10 ECHR (freedom of expression) could not 
be invoked to protect negationist and anti-Semitic performances. Here Mr M’Bala, a comedian with 
political activities, had been convicted for public insults directed at a person or group of persons on 
account  of  their  origin  or  of  belonging  to  a  given  ethnic  community,  nation,  race  or  religion, 
specifically in this case persons of Jewish origin or faith. The Court found that during the offending 
scene  the  performance  could  no  longer  be  seen  as  entertainment  but  rather  resembled  a  political 
meeting, which, under the pretext of comedy, promoted negationism and a degrading portrayal of 
Jewish deportation victims. In the Court’s view, this was not a performance which, even if satirical or 
provocative,  fell  within  the  protection  of  Article  10  (freedom  of  expression)  of  the  European 
Convention on human rights, but was in reality, in the circumstances of the case, a demonstration of 
hatred and anti-Semitism and support for Holocaust denial. Disguised as an artistic production, it was 
in fact as dangerous as a head-on and sudden attack, and provided a platform for an ideology which 
ran  counter  to  the  values  of  the  European  Convention.  The  Court  thus  concluded  that  M’Bala  had 
sought to deflect Article 10 from its real purpose by using his right to freedom of expression for ends 
which were incompatible with the letter and spirit of the Convention and which, if admitted, would 
contribute to the destruction of Convention rights and freedoms. 

99 ECtHR, judgment of 16 June 2015 in case Delfi AS v. Estonia, application no 64569/09. 
100 ECtHR, judgement of 10 November 2015 in case M’Bala v. France, application no. 25239/13. 

47 

 
 
 
                                                            
Article 12 – Freedom of assembly and of association 

The  Right  to  freedom  of  peaceful  assembly  and  to  freedom  of  association  at  all  levels  including 
political,  trade  union  and  civic  matters  is  protected  in  Article  12  of  the  Charter.  It  corresponds  to 
Article  11  of  the  ECHR.  Its  scope,  however,  is  wider  since  it  applies  to  all  European  levels. 
Furthermore  unlike  Article  11  ECHR,  it  specifically  mentions  the  special  contribution  of  political 
parties to the expressing the citizens' political will.  

This right is also based on Article 11 of the Community Charter of the Fundamental Social Rights of 
Workers. 

Case Law 

In  Case  C-396/13  Sähköalojen  ammattiliitto  ry  v  Elektrobudowa  Spółka  Akcyjna,  the  CJEU  was 
requested to clarify the concept of ‘minimum rates of pay’ for posted workers. One of the questions 
referred to the CJEU was whether it follows from the principle of effective legal protection flowing 
from Article 47 of the Charter and Articles 5, second paragraph, and 6 of Directive 96/71, interpreted 
in conjunction with the freedom of association in trade union matters protected by Article 12 of the 
Charter, in proceedings concerning claims which have become due for the purposes of that directive 
in  the  State  where  the  work  is  performed  (in  this  case  Finland),  that  the  national  court  must  not 
apply a provision of the labour code of the workers’ home State (in this case Poland) which prevents 
the assignment of a pay claim to a trade union of the State in which the work is performed. 

The  Posted  Workers  Directive101  provides  that,  as  regards  minimum  rates  of  pay,  the  terms  and 
conditions  of  employment  guaranteed  to  posted  workers  are  to  be  defined  by  the  law  of  the  host 
Member  State  and/or,  in  the  construction  industry,  by  collective  agreements  which  have  been 
declared ‘universally applicable’ in the host Member State. Finnish law on posted workers provides 
that  the  minimum  wage  is  to  be  determined  on  the  basis  of  a  universally  applicable  collective 
agreement.  Elektrobudowa  Spółka  Akcyjna  (‘ESA’),  a  Polish  company,  concluded  employment 
contracts,  in  Poland  and  under  Polish  law,  with  186  workers  before  posting  those  workers  to  its 
Finnish branch. The workers claimed that ESA had not paid them the minimum remuneration due to 
them under the universally applicable Finnish collective agreements for the electricity sector and the 
building  technology  sector.  They  individually  assigned  their  wage  claims  to  the  Finnish  trade  union 
for the electricity sector so that it could recover those claims. 

The Finnish trade union had argued that the collective agreements provide for employees’ minimum 
pay  to  be  calculated  on  the  basis  of  criteria  that  are  more  favourable  to  employees  than  those 
applied by ESA. Those criteria concern, amongst other things, the method of categorising employees 
by pay groups, of determining pay (on the basis of time or piecework) and of granting employees a 
holiday allowance, a daily allowance and compensation for travelling time as well as the coverage of 
their accommodation costs. ESA contended, in particular, that the Finnish trade union does not have 
standing to bring proceedings on behalf of the posted workers, given that Polish law prohibits the 
assignment of claims arising from an employment relationship. 

101  Directive 96/71/EC of the European Parliament and of the Council of 16 December 1996 concerning the 
posting of workers in the framework of the provision of services, OJ 1997, L 18, p. 1. 

48 

 
 
 
                                                            
In its  judgment, the Court  found  that  the  standing  of  the  Finnish trade  union to  bring  proceedings 
before  the  referring  court  is  governed  by  Finnish  procedural  law  and  that  the  Posted  Workers 
Directive makes clear that questions concerning minimum rates of pay are governed, whatever the 
law applicable to the employment relationship, by the  law of the host Member State, in this case, 
Finland. The Court noted that nothing in the case at issue gave any ground for calling into question 
the action which the Finnish trade union has brought before the Finnish court or, therefore, the right 
to an effective remedy guaranteed by the Charter, interpreted in conjunction with the freedom of 
association in trade union matters protected by Article 12 of the Charter. 

The Court then recalled that the Directive pursues a dual objective: first it seeks to ensure a climate 
of  fair  competition  between  national  undertakings  and  undertakings  which  provide  services 
transnationally  and,  secondly,  it  aims  to  ensure  that  a  nucleus  of  mandatory  rules  of  the  host 
Member State on minimum protection will apply to posted workers. The Court points out, however, 
that the Directive has not harmonised the material content of those rules, although it provides some 
information in that respect. 

Accordingly, the Court observed that the Directive expressly refers to the national law or practice of 
the host Member State for the purpose of defining minimum rates of pay, in so far as that definition 
does not have the effect of impeding the freedom to provide services between Member States. The 
Court concluded that the method of calculating rates of pay and the criteria used in that regard are 
also a matter for the host Member State. 

The  CJEU  thus  concluded  that  the  Posted  Workers  Directive,  read  in  the  light  of  Article 47  of  the 
Charter, prevents a rule of the Member State of the seat of the undertaking that has posted workers 
to  the  territory  of  another  Member  State —  under  which  the  assignment  of  claims  arising  from 
employment relationships is prohibited — from barring a trade union, from bringing an action before 
a  court  of  the  second  Member  State,  in  which  the  work  is  performed,  in  order  to  recover  for  the 
posted  workers,  pay  claims  which  relate  to  the  minimum  wage,  within  the  meaning  of  this 
Directive.102 

Ruling of the Czech Constitutional Court 

In the Czech Republic, the Constitutional Court had to rule whether it was legitimate to ban 
the  meeting  of  an  anti-abortion  association  on  a  square  near  an  elementary  school.  The 
meeting included an exhibition of real photos of aborted human embryos and Nazi symbols, 
as abortions were compared to the Nazi genocide. The municipality had banned the event in 
order to protect the children against shocking photos – a ban that the Constitutional Court 
considered  in  line  with  the  Constitution  in  a  judgement  weighing  the  right  to  freedom  of 
assembly  against  the  rights  of  the  child  by  reference  also  to  the  Charter.  (Czech  Republic, 
Constitutional Court, case no CZ:US:2015:2.US.164.15.1 of 5 May 2015) 

102 See also Article 31(2) for regarding the question of holiday pay and Article 47 for a more detailed analysis 
about the right to effective legal protection. 

49 

 
 
 
                                                            
Article 13 – Freedom of the arts and sciences 

Article 13 of the Charter ensures that arts and scientific research are free of constraint. This does not 
mean that restrictions of the former are not possible, but that they are only possible under the strict 
conditions of Article 52 (1) of the Charter.103  

Policy 

The  Commission  within  its  research  and  innovation  policy  projects  not  only  furthers  scientific 
research but also ensures that other fundamental rights are respected in this context.  

The  Commission's  coordinated  actions  to  embed  ethics  into  EU  policymaking  in  particular  by  the 
European  Group  on  Ethics  in  Science  and  New  technologies  (EGE)104  in  2015  included  the  EGE's 
Opinion  on  the  Ethics  of  New  Health  Technologies  and  Citizen  Participation105,  providing  policy 
guidance  in  relation  to,  among  others,  health  innovation,  digital  health  technologies  and  so-called 
'citizen science'. The Opinion investigates the ethical implications of technological and societal shifts 
that are changing individuals' relationship to their health and healthcare. The Group's analyses and 
recommendations  draw  upon  the  Charter  of  Fundamental  Rights  as  the  cornerstone  of  the  EU's 
ethical framework, making particular reference to Article 13 but also to human dignity, the right to 
the integrity of the person, respect for private and family life, protection of personal data, freedom 
of expression and information, non‑discrimination and the right to healthcare.   

In December 2015, FRAME published its second Policy Brief.106 FRAME is a large-scale, collaborative 
research project funded under the EU’s Seventh Framework Programme (FP7), which focuses on the 
contribution  of  the  EU’s  internal  and  external  policies  to  the  promotion  of  human  rights 
worldwide.107  The  first  Policy  Brief,  published  in  October  2014,  had  summarised  the  initial  nine 
FRAME  reports.  In  2015  FRAME  has  entered  a  more  evaluative  phase.  The  December  2015  Policy 
Brief  provides  a  snapshot  of  the  latest  research  and  offers  recommendations  by  reference  to  the 
principles  and  strategic  areas  of  action  in  the  Action  Plan  on  Human  Rights  and  Democratisation 
(2015-2019).  The  Policy  Brief  identifies  five  cross-cutting  issues  which  mirror  the  strategic  areas 
identified  by  the  new  Action  Plan:  Strengthening  human  rights  engagement  and  empowering  local 
actors; Targeting the most urgent human rights challenges; Ensuring a comprehensive human rights 
approach  to  conflicts  and  crises;  Fostering  better  coherence  and  consistency;  Deepening  the 
effectiveness and results culture in human rights and democracy. 

Article 14 – Right to education 

The right to education and access to vocational and continuing training is enshrined in Article 14 of 

103 For further explanations see below Article 52. 
104 The EGE is an independent, multi-disciplinary body appointed by the President which advises on all aspects 
of Commission policies and legislation where ethical, societal and fundamental rights dimensions intersect with 
the development of science and new technologies, see: https://ec.europa.eu/research/ege/index.cfm . 
105 European Group on Ethics in Science and New technologies (2015), The Ethical Implications of New Health 
Technologies and Citizen Participation: https://ec.europa.eu/research/ege/index.cfm . 
106 http://www.fp7-frame.eu/policy-brief-2/ 
107 http://www.fp7-frame.eu/ 

50 

 
 
 
 
 
                                                            
the Charter. It is based on the common constitutional traditions of Member States and on Article 2 of 
the Protocol to the ECHR. 

Policy 

EU policy cooperation arrangements and funding programmes, starting from or ongoing in 2015, aim 
at promoting  and enacting the right to education 

In  their  Joint  2015  Report  on  progress  in  the  implementation  of  the  Education  and  Training  2020 
in  education  and  training  (ET2020)108,  the 
Strategic  Framework  for  European  cooperation 
Commission and the Member States agreed a new set of priority areas for work until 2020 which are 
largely  aligned  to  the  "Paris  Declaration".109   In  this  context,  six  new  Working  Groups,  involving 
experts  from  the  Member  States,  were  set  up  to  contribute  to  the  implementation  of  the  new 
priorities. 

In  November  2015,  the  Youth  Council  adopted  the  joint  report  on  European  cooperation  in  the 
youth field. It called for European youth policy to focus on the inclusion of young people in society, 
allowing  all  young  people  to  become  active  and  engaged  members  of  society.  Special  attention 
should be given to those most at risk of social exclusion: young people neither in employment nor 
education  or  training  (NEETs),  youngsters  from  a  migrant  background,  and  those  at  risk  of 
marginalisation and radicalisation.  

Article  15  –  Freedom  to  choose  an  occupation  and  right  to  engage  in 
work 

The Charter in its Article 15 (1) protects the right to engage in work and to pursue a freely chosen or 
accepted occupation. 

Legislation 

On  6  October  2015,  the  European  Commission  held  an  orientation  debate  on  the  economic  and 
social  dimension  of  the  Single  Market  and  announced  a  new  Labour  Mobility  Package  aimed  at 
guaranteeing fair rules for the free movement of workers in the Single Market. The Labour Mobility 
Package will include action to support labour mobility, a targeted review of the Posting of Workers 
Directive, as well as a proposal for improving the coordination of social security systems in Europe.110 

Case law 

108 http://eur-lex.europa.eu/legal-
content/EN/TXT/?uri=uriserv:OJ.C_.2015.417.01.0025.01.ENG&toc=OJ:C:2015:417:TOC 
109 See also Article 22 below; the declaration is available at: 
http://ec.europa.eu/education/news/2015/documents/citizenship-education-declaration_en.pdf 
110 Further information available at: http://europa.eu/rapid/press-release_IP-15-5763_en.htm .    

51 

 
 
 
 
                                                            
On 7 October 2015 the General Court rendered a judgement in the field of agricultural quality policy, 
in the  case  of  Zentralverband  des  Deutschen  Bäckerhandwerks  e.V.  c/  Commission111  touching on 
several  fundamental  rights  including  the  right  to  choose  an  occupation.  In  this  case,  the  Central 
Association  of  German  bakers  tried  to  have  Commission  Implementing  Decision  2013/663/EU112 
annulled.  Its  background  was  the  rejection  of  a  cancellation  request  of  the  Polish  name  'Kołocz 
śląski/kołacz śląski' registered as a protected geographical indication (PGI) under Regulation (EU) No 
1151/2012.113  The  applicant's  members  produced  and  marketed  a  product  named  'Schlesischer 
Streuselkuchen'. The applicant claimed an unjustified interference in the economic existence of the 
German  bakers  that  he  represented,  caused  by  the  registration  of  the  name  'Kołocz  śląski/Kołacz 
śląski'  as  PGI,  which  allegedly  constituted  a  violation  of  the  fundamental  right  to  choose  an 
occupation, to conduct a business and the right to property, enshrined in the Charter of Fundamental 
Rights. The General Court acknowledged that the registration of name 'Kołocz śląski/Kołacz śląski' as 
PGI  did  not  imply  the  impossibility  for  the  German  bakers  to  produce  and  market  'Schlesischer 
Streuselkuchen' throughout Germany, since these products were not covered by the registration in 
question. As the applicant did not invoke that the impossibility for German bakers to use the name 
'Kołocz śląski/Kołacz śląski' for their products represented a restriction of their freedom to choose an 
occupation, their freedom to conduct a business and their right to property, the General Court did 
not find any violation of these fundamental rights in this case. 

Article 16 – Freedom to conduct a business 

Article 16 of the Charter recognises the freedom to conduct a business in accordance with Union law 
and  national  laws  and  practices.  The  impact  on  the  freedom  to  conduct  a  business  is  frequently 
assessed in EU action in policy areas where measures could interfere in the economic activity of the 
operators concerned.  

Legislation 

An example the rules having the promotion of the freedom to conduct a business as one of their core 
objectives  is  Regulation  (EU)  2015/848  on  insolvency  proceedings.114  It  contains  provisions  on  EU-
wide recognition of national hybrid and pre-insolvency proceedings will positively affect the freedom 
to conduct businesses for companies, as these proceedings will  be recognised by all their creditors 
EU-wide. 

111  CJEU,  judgment  of  7  October  2015  in  Case  T-49/14,  Zentralverband  des  Deutschen  Bäckerhandwerks  v 
Commission. 
112  Commission  Implementing  Decision  2013/663/EU  of  14  November  2013  concerning  the  rejection  of  a 
request to cancel a name entered in the register of protected designations of origin and protected geographical 
indications  provided  for  in  Regulation  (EU)  No  1151/2012  of  the  European  Parliament  and  of  the  Council 
(Kołocz śląski/kołacz śląski (PGI)), OJ L 306, 16 November 2013, p. 40. 
113  Regulation  (EU)  No  1151/2012  of  the  European  Parliament  and  of  the  Council  of  21  November  2012  on 
quality schemes for agricultural products and foodstuffs, OJ L 343, 14.12.2012, p. 1. 
114  Regulation  (EU)  2015/848  of  the  European  Parliament  and  of  the  Council  of  20  May  2015  on  insolvency 
proceedings OJ L 141, 5.6.2015, p. 19. 

52 

 
 
 
 
                                                            
In line with the objectives established in the Digital Single Market Strategy, the Commission on the 
9th of December 2015 adopted two proposals: one on the supply of digital content (e.g. streaming 
music)  and  one  on  the  online  sale  of  goods  (e.g.  buying  clothes  online).115  These  Proposals  are 
designed  to  impact  positively  a  number  of  rights  protected  under  the  EU  Charter  of  Fundamental 
Rights, including the freedom to conduct a business. More in particular, the proposed rules will fully 
harmonise  several  key  consumer  contractual  rights,  thus  preventing  fragmentation  of  the  digital 
single market and removing existing barriers in the online environment. By allowing traders to rely 
on  a  set  of  uniform  key  contract  law  rules  in  their  transactions  concluded  with  consumers,  the 
Commission  proposals  aim  at  enhancing  the  legal  certainty  for  businesses.  When  selling  to 
consumers from other Member States, traders would no longer face contract law obstacles, such as 
the  costs  of  complying  with  different  national  laws.  Traders  would  be  able  to  build  shares  in  new 
markets and expand their businesses. 

Petitions 

In 2015 the Commission assessed two petitions116 contesting the point system introduced by the EU 
rules  establishing  a  Community  control  system  for  ensuring  compliance  with  the  rules  of  the 
Common Fisheries Policy (CFP).117 According to these rules, points for serious infringements of CFP 
rules, assigned to the holder of the fishing licence, should be transferred to any future licence holder 
for  the  vessel  concerned.  The  petitioner  challenged  the  compatibility  of  this  system  with  the  EU 
Charter  of  Fundamental  Rights  and  with  the  European  Convention  on  Human  Rights,  including  the 
right  to  a  fair  trial,  the freedom  to  conduct  business,  the right  to  property  and  the right  not  to  be 
tried twice or punished twice for the same offence. 

In its replies the Commission recalled that according to Article 128 of the Implementing Regulation to 
the contested EU rules118, in the case of transfer of ownership a potential buyer of a fishing vessel 
has to be informed in advance by the holder of a fishing licence of the number of points which are 
still  assigned  to  the  vessel.  This  prior  notification  allows  the  potential  buyer  to  take  an  informed 

115  Proposal  for  a  Directive  of  the  European  Parliament  and  of  the  Council  on  certain  aspects  concerning 
contracts  for  the  supply  of  digital  content  COM(2015)  634  final,  9.12.2015,  available  at,  http://eur-
lex.europa.eu/legal-content/EN/TXT/?qid=1450431933547&uri=CELEX:52015PC0634  and  Proposal 
for  a 
Directive of the European Parliament And of the Council on certain aspects concerning contracts for the online 
and other distance sales of goods COM(2015) 635 final, 9.12.2015, available at http://eur-lex.europa.eu/legal-
content/EN/TXT/?qid=1450431933547&uri=CELEX:52015PC0635 . 
116 Petition No 1057/2014 by Bruno Dachicourt (French) on behalf of Association of French fishermen, on Common 
Fisheries Policy; Petition No 1042/2014 by O.L., on behalf of the French Fishermen's association, on discriminatory 
aspects of Regulation 1224/2009. 
117 Council Regulation (EC) No 1224/2009 of 20 November 2009 establishing a Community control system for 
ensuring compliance with the rules of the common fisheries policy, amending Regulations (EC) No 847/96, (EC) 
No  2371/2002,  (EC)  No  811/2004,  (EC)  No  768/2005,  (EC)  No  2115/2005,  (EC)  No  2166/2005,  (EC)  No 
388/2006,  (EC)  No  509/2007,  (EC)  No  676/2007,  (EC)  No 1098/2007,  (EC)  No  1300/2008, (EC)  No  1342/2008 
and repealing Regulations (EEC) No 2847/93, (EC) No 1627/94 and (EC) No 1966/2006, OJ L 343, 22.12.2009, p. 
1. 
118 Commission Implementing Regulation (EU) No 404/2011 of 8 April 2011 laying down detailed rules for the 
implementation  of  Council  Regulation  (EC)  No  1224/2009  establishing  a  Community  control  system  for 
ensuring compliance with the rules of the Common Fisheries Policy, OJ L 112, 30.4.2011, p. 1. 

53 

 
 
                                                            
decision in terms of accepting the risks involved, in exchange for a reduced price of the vessel. While 
it is true that the transfer of points may restrict, in particular, the freedom to conduct a business or 
enjoyment  of  property,  should  the  licence  be  suspended  on  account  of  points  accumulated  by  the 
previous  owner,  it  should  be  recalled  that  these  rights,  albeit  fundamental,  are  not  absolute. 
Pursuant  to  Article  52  (1)  of  the  EU  Charter,  limitations  to  the  exercise  of  rights  and  freedoms 
recognised  therein  are  allowed  under  condition  that  they  are  provided  by  law,  proportionate  and 
necessary  to  protect  objectives  of  general  interest.  The  interference  of  the  point  system  with  the 
fundamental rights of the new licence holder fulfils the conditions mentioned in Article 52 (1) of the 
Charter since it is provided by law, proportionate and necessary for public policy reasons.  

Case law 

Case C-157/14, Neptune Distribution concerns a request for preliminary ruling on whether EU law, in 
particular  Directive  2009/54/EC  on  the  exploitation  and  marketing  of  natural  mineral  waters119, 
infringes  a.o.  Article  16  of  the  Charter  (as  well  as  Article  11)  when  laying  down  conditions  which 
should be complied with by manufacturers and distributors of mineral waters when placing on labels 
and advertising material indications regarding the low salt content or sodium chloride content.  The 
Advocate  General  in  his  Opinion  of  9  July  2015120  found  that  the  provisions  which  regulate  the 
voluntary  use  by  operators  of  statements  on  the  beneficial  properties  of  these  products  do  not 
violate  the  essence  of  the  freedom  of  expression  and  information  and  the  freedom  to  conduct  a 
business,  such  provisions  were  proportionate  to  attain  the  objectives  of  ensuring  a  high  level  of 
consumer  protection  (enshrined  in  Article  38  of  the  Charter)  and  fair  commercial  practices  among 
operators. Thus, the AG supported the Commission's argumentation and confirmed that the freedom 
of expression and information and the freedom to conduct a business are not absolute rights. These 
rights  can  be  limited  by  the  Union  legislators  provided  that  the  restrictions  are  laid  down  in  law, 
respect  the  essence  of  those  freedoms,  are  necessary  and  genuinely  meet  objectives  of  general 
interest recognised by the Union or the need to protect the rights and freedoms of others.  

Ruling of the German Federal Court of Justice  

The  Federal  Court  of  Justice  ruled  on  a  dispute  between  the  Stokke  company,  that  sells  baby  high 
chairs,  and  the  internet  trading  platform  eBay.  Stokke  claimed  that  offers  by  competitors  are 
displayed as hits when eBay visitors use trademark labels registered by Stokke as search words. The 
Court described the complex interaction of the protection of personal data (Article 8), the freedom to 
conduct a business (Article 16) and the right to an effective remedy and a fair trial (Article 47) and 
is  required  to  perform  supervisory  duties  with  regard  to  trademark 
concluded  that  eBay 
infringements  on  its  online  trading  platform  if  notified  by  trademark  holders  about  violations. 
(Germany, Federal Court of Justice, case no I ZR 240/12 of 5 February 2015). 

119 Directive 2009/54/EC of the European Parliament and of the Council of 18 June 2009 on the exploitation and 
marketing of natural mineral waters (Recast), OJ L 164, 26.6.2009, p. 45. 
120  CJEU,  Conclusions  of  the  Advocate  General,  M.  Niilo  Jääskinen  of  9  July  2015  in  Case  C-157/14,  Neptune 
Distribution. 

54 

 
 
 
                                                            
Article 17 – Right to property 

Article 17 of 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.  

Legislation 

As  already  indicated  above  under  article  16,  Regulation  (EU)  2015/848  on  insolvency  proceedings 
(recast) was adopted121 on 20 May 2015. Recital 83 of the Regulation underlines that "this Regulation 
respects the fundamental rights and observes the principles recognised in the Charter of Fundamental 
Rights  of  the  European  Union.  In  particular,  this  Regulation  seeks  to  promote  the  application  of 
Articles 8, 17 and 47 concerning, respectively, the protection of personal data, the right to property 
and the right to an effective remedy and to a fair trial". 

The recast Regulation expands its scope to new national insolvency schemes which until now were 
not  covered  by  the  current  rules  (debtor-in-possession  proceedings,  pre-insolvency  and  personal 
insolvency schemes). Such national proceedings affect the right to property of creditors compared to 
liquidation procedures, because these schemes are all based on some form of arrangement between 
the debtor and a majority of creditors. In these schemes, dissenting creditors can be overruled by the 
majority. This impact on the right to property is considered to be proportionate to the objective of 
rescuing businesses and saving jobs, not the least since it has been shown that the median recovery 
rate for creditors may be significantly higher in case of restructuring as compared to liquidation.  

On the other hand, the clarifications in the recast Regulation should lead to a reduction in abusive 
forum-shopping, which is combined with a right for all creditors to a judicial review of the jurisdiction 
of the court. This will improve the protection of the creditor's right to property because there will be 
fewer cases where his claim will be lost or diminished in value due to an abusive shift of his debtor's 
centre of main interests another country. 

On  9  December  2015  the  European  Commission  unveiled  its  vision  to  modernise  the  EU  copyright 
rules, as part of the Digital Single Market Strategy adopted by the Commission on 6 May 2015.122 As a 
first  step,  the  Commission  adopted  a  legislative  proposal  on  cross-border  portability  of  online 
content  services  in  the  internal  market,  which  is  designed  to  ensure  that  subscribers  to  online 
content services can continue using them while temporarily present in another Member State.123 The 
explanatory memorandum to the proposal outlines that while the proposed measures would have a 

121  Regulation  (EU)  2015/848  of  the  European  Parliament  and  of  the  Council  of  20  May  2015  on  insolvency 
proceedings, OJ L 141, 5.6.2015, p. 19. 
122  A  Digital  Single  Market  Strategy  for  Europe  -  COM(2015)  192  final,  6.5.2015,  available  at:  http://eur-
lex.europa.eu/legal-content/EN/TXT/?qid=1447773803386&uri=CELEX%3A52015DC0192. 
123  Proposal  for  a  Regulation  of  the  European  Parliament  and  of  the  Council  on  ensuring  the  cross-border 
portability  of  online  content  services  in  the  internal  market,  adopted  on  9  December  2015,  COM(2015)  627 
http://eur-lex.europa.eu/legal-
final, 
content/EN/TXT/?uri=COM:2015:0627:FIN. 

2015/0284 

9.12.2015, 

available 

(COD), 

at: 

55 

 
 
 
 
                                                            
limited impact on copyright as property right or on the freedom to conduct a business, as recognised 
in the European Charter of Fundamental Rights (Articles 16 and 17) these measure would be justified 
in view of the Treaty fundamental freedom to provide and receive services across borders.  

Following  the  Paris,  Copenhagen  and  Thalys  train  terror  attacks  in  2015,  the  Commission  tabled  in 
November  2015  a  proposal  to  amend  the  existing  EU  legislation  on  acquisition  and  possession of 
firearms.124  The  Commission  proposal  is  designed  to  lay  down  the  minimum  requirements  that 
Member States should impose as regards the acquisition and possession of the different categories 
of firearms, depending on the potential danger they represent, and regulates the conditions for the 
transfer of firearms across the EU, while granting more flexible rules for hunting and target shooting. 
It covers the life cycle of a firearm from production to trade, ownership and possession, deactivation 
and  destruction.  The  proposal  also  seeks  to  improve  consistency  with  international  standards.  In 
view  of  its  purpose  and  the  conditions  put  on  the  acquisition  and  possession  of  firearms,  this 
measure  would  introduce  limitations  on  the  right  to  property  in  line  with  the  limitations  to 
fundamental rights allowed under Article 52 (1)of the Charter. 

Policy 

The  Commission  adopted  on  9  December  2015  a  Communication  on  the  modernisation  of  the 
European Copyright Framework.125 The Communication underlines that the respect for copyright, as 
for any other intellectual property right, is essential to promote creativity and innovation and create 
trust  in  the  market  place.  Rights  that  cannot  be  effectively  enforced  have  little  economic  value, 
particularly  when  infringements  occur  on  a  commercial  scale  that  free-rides  on  the  work  and 
investment of creators, the creative industries and legal distribution services. Such commercial-scale 
infringements are currently very frequent and harmful, not only to right holders but also to the EU 
economy as a whole. An effective and balanced civil enforcement system, which takes full account of 
fundamental  rights,  is  required  to  reduce  the  costs  of  fighting  infringements,  particularly  for  small 
businesses, and keep up with their increasing cross-border nature. The Commission's action plan is 
built on four complementary pillars: 

1. Widening online access to content across the EU, including in the light of the results of the review 
of the Satellite and Cable Directive; 

2.  Adapting  exceptions  to  copyright  rules  to  a  digital  and  cross-border  environment,  focussing  in 
particular on those exceptions and limitations which are key for the functioning of the digital single 
market and the pursuit of public policy objectives (such as those in the area of education, research - 
including text and data mining - and access to knowledge); 

124  Proposal  for  a  Directive  of  the  European  Parliament  and  of  the  Council  amending  Council  Directive 
91/477/EEC on control of the acquisition and possession of weapons, COM/2015/0750 final - 2015/0269 (COD), 
18.11.2015, available at: http://eur-lex.europa.eu/legal-content/EN/TXT/?uri=COM%3A2015%3A750%3AFIN.   
125 Communication from the Commission to the European Parliament, the Council, the European Economic and 
Social  Committee  and  the  Committee  of  the  Regions:  Towards  a  Modern,  More  European  Copyright 
Framework, 
http://ec.europa.eu/digital-
9.12.2015, 
agenda/en/news/towards-modern-more-european-copyright-framework-commission-takes-first-steps-and-
sets-out-its. 

COM(2015) 

available 

final, 

626 

at: 

56 

 
 
                                                            
3.  Creating  a  fair  marketplace,  including  as  regards  the  role  of  online  intermediaries  when  they 
distribute copyright-protected content; 

4. Strengthening the enforcement system. 

Application by Member States 

In June 2015 the Commission sent a reasoned opinion to Hungary regarding certain contractual rights 
for the use of agricultural land (usufruct rights). In the Commission's view, the Hungarian legislation 
restricts the rights of cross-border investors in a way that may violate EU laws on free movement of 
capital and freedom of establishment. Neither is it in line with the right to property as enshrined in 
the EU Charter of Fundamental Rights. A Hungarian law that was passed on 1 May 2014 terminated 
some  usufruct  contracts  held  by  foreign  investors,  shortening  the  transitional  period  for  investors 
from 20 years to only four and a half months. Investors had expected to continue using the land on 
the basis of the earlier transitional period and had made their investment decisions accordingly. The 
new  law  therefore  deprived  the  affected  parties  of  their  acquired  rights  and  of  the  value  of  their 
investments.  The  Commission  is  also  contesting  a  second  provision  of  the  same  law,  which  allows 
land lease contracts that were concluded before July 1994 to be unilaterally terminated.126  

Article 18 – Right to asylum 

The right to asylum is guaranteed by Article 18 of the Charter. 

Policy and Legislation 

A  number  of  measures  contained  in  the  European  Agenda  for  Migration127  and  its  subsequent 
implementation  packages  are  of  direct  relevance  to  the  enjoyment  of  the  fundamental  right  to 
asylum. 

In June 2015, the Commission adopted a Recommendation on a European resettlement scheme128 
international  protection.  The 
to  resettle,  within  two  years,  20  000  people 
Recommendation  was  followed  by  the  Conclusions  of  the  Member  States  agreeing  to  resettle, 
together  with  the  Dublin  associated  States  (Iceland,  Norway,  Liechtenstein,  Switzerland),  20  504 
people in need of international protection. Resettlement to the EU means the transfer of displaced 
persons  in  clear  need  of  international  protection,  on  request  of  the  United  Nations  High 
Commissioner for Refugees (UNHCR), from a third country to a Member State. It enables an orderly, 

in  need  of 

126 Further information available at: http://europa.eu/rapid/press-release_MEMO-15-5162_en.htm 
127 Communication from the Commission to the European Parliament, the Council, the European Economic and 
Social Committee and the Committee of the Regions – A European Agenda on Migration, COM(2015) 240 final, 
13.5.2015, 
at: 
http://ec.europa.eu/lietuva/documents/power_pointai/communication_on_the_european_agenda_on_migrat
ion_en.pdf. 
128 Commission Recommendations on a European resettlement scheme, C(2015) 3560 final, 8.6.2015, available 
at: 
http://ec.europa.eu/dgs/home-affairs/e-
library/documents/policies/asylum/general/docs/recommendation_on_a_european_resettlement_scheme_en
.pdf. 

available 

57 

 
 
 
 
                                                            
managed,  safe  and  dignified  arrival  of  such  persons  in  place  of  dangerous  and  irregular  migration. 
This first joint EU resettlement effort is to be achieved by the Member States with the EU financial 
assistance. By the end of the year 2015, 779 people were resettled in the framework of the scheme. 
While  this  was  an  important  milestone,  there  are  still  large  divergences  between  Member  States 
regarding the procedural rules and the status granted to persons admitted as well as the numbers of 
persons admitted.  

In light of the challenges faced by Turkey, currently hosting more than two and a half million persons 
displaced by the conflict in Syria, the EU and Turkey decided to step up their cooperation on support 
of  Syrians  under  temporary  protection  in  Turkey  and  on  migration  management  in  a  coordinated 
effort  to  address  the  crisis  created  by  the  situation  in  Syria.  To  this  end,  on  15  October  2015,  the 
Commission  presented  to  the  European  Council  the  EU  Joint  Action  Plan  with  Turkey.129  At  the 
Summit  of  29  November  2015,  the  EU  and  Turkey  activated  the  Joint  Action  Plan.  The  Action  Plan 
tries  to  address  the  current  crisis  situation  in  a  spirit  of  cooperation  and  burden  sharing  by 
addressing  the  root  causes  leading  to  the  massive  influx  of  Syrians;  by  supporting  Syrians  under 
temporary  protection  and  their  host  communities  in  Turkey;  and  by  strengthening  cooperation  to 
prevent irregular migration flows to the EU. Commitments undertaken by Turkey in the framework of 
that  increased  cooperation  on  migration  must  not  undermine  in  any  way  the  respect  for  human 
rights  of  migrants  and  asylum  seekers,  which  remain  core  conditions  and  are  non-negotiable. 
Violation of human rights would go against the spirit of the EU cooperation with Turkey.  

In December 2015, the Commission also adopted a recommendation for a voluntary humanitarian 
admission  scheme  with  Turkey,  aimed  at  creating  a  system  of  solidarity  and  responsibility  sharing 
with Turkey for the protection of persons displaced by the conflict in Syria to Turkey. Humanitarian 
admission is an expedited process by which countries admit displaced persons, based on a limited set 
of  criteria,  from  third  countries  to  provide  them  with  protection.  The  proposed  humanitarian 
admission scheme is an important flanking measure of the mutual commitments to jointly manage 
the Syrian refugee crisis contained in the Joint Action Plan with Turkey. In addition, the EU created a 
coordination mechanism, the Facility for Refugees in Turkey, within the legal framework presented 
by  the  Commission  on  24  November  2015,  in  order  to  assist  Turkey  in  addressing  the  immediate 
humanitarian  and  development  needs  of  the  refugees  and  their  host  communities.  The  overall 
objective  of  the  Facility  is  to  coordinate  and  streamline  actions  to  be  financed  from  the  Union's 
budget  and  bilateral  contributions  from  Member  States  in  order  to  enhance  the  efficiency  and 
complementarity of support provided to refugees and their host communities in Turkey. 

As part of the efforts made in order to assist Member States faced with a sudden  influx of asylum 
seekers and reduce the strain put on their asylum systems in line with the principles of solidarity and 
burden sharing,  and with a view to ensure effective access to asylum, the Commission activated for 
the first time in 2015 the emergency mechanism foreseen in the Treaties130 proposing a temporary 
relocation  mechanism  for  persons  in  clear  need  of  international  protection  within  the  EU,  which 

130 Article 78(3) TFEU 

58 

 
 
                                                            
 
resulted in in a plan to relocate 160,000 people from Greece and Italy over a two year period.131 In 
September  2015,  the  Commission  also  adopted  a  proposal  for  a  Regulation  establishing  a  Crisis 
Relocation  Mechanism  and  amending  Regulation  (EU)  No  604/2013  (the  Dublin III  Regulation).132 
The  overall  objective  is  to  ensure  that  the  Union  has  at  its  disposal  a  robust  crisis  relocation 
mechanism to structurally deal with situations of crisis in the asylum area in an effective manner. The 
mechanism  should  be  rapidly  triggered  in  respect  of  any  Member  State  that  experiences  crisis 
situations of such a magnitude as to put under significant strain even well prepared and functioning 
asylum  systems,  also  taking  into  account  the  size  of  the  Member  State  concerned.  The  proposal  is 
currently subject to the ordinary legislative procedure. 

The  second  implementation  package  of  the  European  Agenda  for  Migration,  adopted  by  the 
Commission  in  September  2015,  also  included  a  proposal  for  a  Regulation  establishing  an  EU 
common list of safe countries of origin133, as agreed by the European Council. Currently EU law does 
not contain an EU common list of safe countries of origin; only some Member States have adopted 
national lists of safe countries of origin. The Commission proposal aimed at establishing such an EU 
common list, on the basis of the common criteria set in the Asylum Procedures Directive, as it would 
facilitate the use by all Member States of the procedures linked to the application of the safe country 
of origin concept and will also reduce the existing divergences between Member States’ national lists 
of safe countries of origin, thereby facilitating convergence in the procedures and equal treatment of 
applicants for international protection. The list has been drawn up in light of reports by the European 
External  Action  Service  as  well  as  information  from  Member  States,  the  European  Asylum  Support 
Office, the Council of Europe, the United Nations High Commissioner for Refugees and other relevant 
international  organisations.  The  Commission  proposal  is  clear  insofar  as  the  inclusion  of  a  specific 
third country cannot establish an absolute guarantee of safety for nationals of that country and will 
not  dispense  therefore  with  the  need  to  conduct  an  appropriate  individual  examination  of  their 
applications for international protection, so as to fully ensure respect of the right to asylum and the 
protection against refoulement : where an applicant shows that there are serious reasons to consider 
the country not to be safe in his or her particular circumstances, the designation of the country as 
safe can no longer be considered relevant for him or her.  

131  Council  Decision  (EU)  2015/1523  of  14  September  2015  establishing  provisional  measures  in  the  area  of 
international  protection  for  the  benefit  of  Italy  and  of  Greece  and  Council  Decision  (EU)  2015/1601  of  22 
September  2015  establishing  provisional  measures  in  the  area  of  international  protection  for  the  benefit  of 
Italy and Greece.  
132  Proposal  for  a  Regulation  of  The  European  Parliament  And  Of  The  Council  establishing  a  crisis  relocation 
mechanism and amending Regulation (EU) No 604/2013 of the European Parliament and of the Council of 26 
June  2013  establishing  the  criteria  and  mechanisms  for  determining  the  Member  State  responsible  for 
examining an application for international protection lodged in one of the Member States by a third country 
national  or  a  stateless  person,  COM(2015)450  final,  9.9.2015,  available  at:  http://eur-lex.europa.eu/legal-
content/EN/TXT/?uri=CELEX%3A52015PC0450 . 
133 Proposal for a Regulation Of The European Parliament And Of The Council establishing an EU common list of 
safe  countries  of  origin  for  the  purposes  of  Directive  2013/32/EU  of  the  European  Parliament  and  of  the 
Council on common procedures for granting and withdrawing international protection, and amending Directive 
http://eur-lex.europa.eu/legal-
final, 
COM(2015) 
2013/32/EU, 
content/EN/TXT/?uri=CELEX:52015PC0452 . 

9.9.2015, 

available 

452 

at: 

59 

 
 
                                                            
Finally,  as  part  of  the  immediate  action  to  assist  frontline  Member  States  which  are  facing 
disproportionate  migratory  pressures  at  the  EU’s  external  borders,  the  European  Commission 
proposed  to  develop  the  so-called  "hotspot  approach".  By  the  end  of  2015,  two  hotspots  were 
operational  in  Italy  (in  Trapani  and  Lampedusa)  and  one  in  Greece  (in  Lesbos).  Hotspots  have  the 
potential to assist Member States in better translating fundamental rights safeguards into practice134, 
including  when  it  comes  to  ensuring  quick  and  effective  access  to  asylum  procedures.  However, 
shared efforts shall be made in order to ensure that adequate resources and staff are put in place to 
fully implement all necessary measures. The Commission closely monitors the achievements of the 
involved authorities, stakeholders and agencies in that regard. 

Case-law 

In  its  judgment  in  the  case  Tall135,  the  CJEU  ruled  that  the  Asylum  Procedures  Directive  read  in 
conjunction with Article 47 of the Charter, did not preclude national legislation that did not confer 
suspensory  effect  on  an  appeal  brought  against  a  decision  such  as  the  one  at  issue  in  the  main 
proceedings, in particular a decision not to further examine a subsequent application for asylum. 
Such a situation is different in comparison to a return decision which, if enforced, could expose the 
person concerned to a serious risk of being subjected to inhuman or degrading treatment, in view of 
the requirements of Article 19(2) and Article 47 of the Charter.  

In  Sheperd136  the  CJEU  ruled  on  a  request  for  a  preliminary  ruling  concerning  the  interpretation  of 
Article  9(2)(b),  (c)  and  (e)  of  the  old  Qualifications  Directive.137  The  Court  established  that  this 
provision  must  be  interpreted  to  cover  situations  in  which  the  military  service  performed  would 
itself include, in a particular conflict, the commission of war crimes, including situations in which 
the applicant for refugee status would participate only indirectly in the commission of such crimes. 
This  should  not  be  interpreted  to  exclusively  concern  situations  in  which  it  is  established  that  war 
crimes  have  already  been  committed,  or  are  such  as  to  fall  within  the  scope  of  the  International 
Criminal  Court’s  jurisdiction,  but  also  those  in  which  the  applicant  for  refugee  status  can  establish 
that it is highly likely that such crimes will be committed.  

In H. T.138 the Court was requested to interpret Article 21(2) and (3) and Article 24(1) and (2) of the 
old Qualifications Directive in relation to the possible revocation by a Member State of the residence 
permit of a refugee on grounds of security reasons. The Court established that a residence permit, 
once granted to a refugee, may be revoked, either pursuant to Article 24(1) of that Directive, where 
there  are  compelling  reasons  of  national  security  or  public  order  within  the  meaning  of  that 
provision,  or  pursuant  to  Article  21(3)  of  that  Directive,  where  there  are  reasons  to  apply  the 

134 See also below Article 19. 
135  CJEU  judgement  of  17  December  2015  in  Case  C-239/14  Abdoulaye  Amadou  Tall  v  Centre  public  d’action 
sociale de Huy. 
136  CJEU  judgement  of  26  February  2015  in  Case  C-472/13,  Andre  Lawrence  Shepherd  v  Bundesrepublik 
Deutschland. 
137  Council  Directive  2004/83/EC  on  minimum  standards  for  the  qualification  and  status  of  third  country 
nationals or stateless persons as refugees or as persons who otherwise need international protection and the 
content of the protection granted, OJ L 304, 29.4.2004, p.12. 
138 CJEU judgment of 24 June 2015 in Case C-373/13,  H. T. v Land Baden-Württemberg. 

60 

 
 
                                                            
derogation from the principle of non-refoulement laid down in Article 21(2) of the same Directive. At 
the same time, the Court clarified that, in order to be able to revoke a residence permit granted to a 
refugee on the ground that that refugee supports a terrorist organisation, the competent authorities 
are  nevertheless  obliged  to  carry  out,  under  the  supervision  of  the  national  courts,  an  individual 
assessment of the specific facts concerning the actions of both the organisation and the refugee in 
question.  Where  a  Member  State  decides  to  expel  a  refugee  whose  residence  permit  has  been 
revoked, but suspends the implementation of that decision, it is incompatible with that Directive to 
deny  access  to  the  benefits  guaranteed  by  Chapter  VII  of  the  same  Directive,  unless  an  exception 
expressly laid down in the Directive applies. 

Application by Member States 

Following  up  on  the  second  implementation  package  of  the  European  Agenda  on  Migration,  the 
European Commission stepped up its efforts to ensure the full application of EU law in the area  of 
migration and asylum. The pieces of legislation concerned focus on fairer, quicker and better quality 
asylum  decisions  (the  Asylum  Procedures  Directive139);  ensuring  that  there  are  humane  physical 
reception conditions (such as housing) for asylum seekers  across the EU (the Reception Conditions 
Directive140);  and  clarifying  the  grounds  for  granting  international  protection  (the  Qualification 
Directive141). 

On 10 December 2015, the European Commission also initiated an infringement procedure against 
Hungary concerning the compliance of Hungarian legislation adopted as a response to the migration 
crisis.142  Grievances  raised  included  the  compatibility  of  the  new  Hungarian  rules  on  asylum 
procedures with provisions of the recast Asylum  Procedures Directive, in particular as it concerns 
the right to an effective remedy against negative asylum decisions. 

In  another  case  opened  by  the  Commission  regarding  deficiencies  in  the  asylum  procedures  and 
inadequate reception conditions for asylum seekers, especially those in detention centres, in Greece, 
the  Commission  sent  in  September  2015  an  additional  letter  of  formal  notice  raising  some  points 
which were not solved yet. These points included reception capacities for applicants for international 
protection  and  failure  to  put  in  place  arrangements  to  ensure  that  all  applicants  for  international 
protection are ensured a standard of living adequate to the health status of applicants and capable 
of  ensuring  their  subsistence;  material  reception  conditions,  in  particularly  for  those  with  special 
reception needs and vulnerable persons; treatment of unaccompanied children. 

139  Directive  2013/32/EU  of  the  European  Parliament  and  of  the  Council  of  26  June  2013  on  common 
procedures for granting and withdrawing international protection (recast), OJ L 180, 29.6.2013, p. 60. 
140 Directive 2013/33/EU of the European Parliament and Council of 26 June 2013 laying down standards for 
the reception of applicants for international protection (recast), 29 June 2013, OJ L. 180, 29.6.2013, p.96. 
141  Council  Directive  2011/95/EU  of  the  European  Parliament  and  of  the  Council  of  13  December  2011  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 (recast), OJ L337, 20.12.2011, p.9. 
142 See below Articles 47 and 48. 

61 

 
 
                                                            
The  Commission  also  provided  training  to  the  public  authorities  of  Member  States  who  are 
responsible  for  the  management  of  the  Asylum,  Migration  and  Integration  Fund  (AMIF)  and  the 
Internal  Security  Fund  (ISF)  at  the  AMIF-ISF  Committee  meeting  of  June  2015.  The  training 
concentrated on the practical implications of the Charter provisions for the implementation of AMIF 
and ISF during the programming period 2014-2020.  

Article 19 – Protection in the event of removal, expulsion or extradition 

Article 19 of the Charter incorporates the same right as afforded by Article 4 of protocol No.4 to the 
ECHR as well as case law of the ECtHR on Article 3 of the ECHR. It prohibits from collective expulsions 
and  protects  individuals  from  being  removed,  expelled  or  extradited  to  a  state  where  there  is  a 
serious risk of death penalty, torture or other inhuman or degrading treatment or punishment. 

Legislation and Policy 

In  the  field  of  return,  a  Return  Handbook143  was  published  by  the  European  Commission  to 
accompany  the  Action  Plan  on  return144  adopted  in  September  2015,  with  a  view  to  providing 
concrete  guidance  for  national  authorities  in  charge  of  return.  It  contains  detailed  common 
guidelines,  best  practices  and  recommendations  on  how  to  ensure  that  any  return  operation  fully 
complies  with  fundamental  rights  and  the  principle  of  non-refoulement,  including  as  regards  the 
granting of suspensive effect to return decisions in cases in which there are substantial grounds for 
believing that the person, if returned, will be exposed to a real risk of ill-treatment.145 

At the operational level, the so called hotspot approach developed by the Commission also has the 
potential  to  contribute  to  ensuring  better  protection  against  refoulement  in  the  context  of  large 
migrant inflows at the EU external borders.146 

The proposal for a Regulation on the European Border and Coast Guard adopted in December 2015, 
intended to ensure the implementation of the European integrated border management in line with 

143  Commission  recommendation  establishing  a  common  "Return  Handbook"  to  be  used  by  Member  States' 
competent  authorities  when  carrying  out  return  related  tasks,  C(2015)  6250  final,  1.10.2015,  available  at: 
http://ec.europa.eu/dgs/home-affairs/what-we-do/policies/european-agenda-migration/proposal-
implementation-
package/docs/commission_recommendation_establishing_a_return_handbook_for_member_states_compete
nt_authorities_to_deal_with_return_related_tasks_en.pdf. 
144 Communication from the Commission to the European Parliament and to the Council – EU Action Plan on 
  COM(2015)  453  final,  9.9.2015,  available  at:  http://ec.europa.eu/dgs/home-affairs/what-we-
return, 
do/policies/european-agenda-migration/proposal-implementation-
package/docs/communication_from_the_ec_to_ep_and_council_-_eu_action_plan_on_return_en.pdf.. 
145 See also above Article 4.  
146 See above Article 18. 

62 

 
 
 
 
                                                            
the  principle  of  shared  responsibility,  establishes  a  number  of  fundamental  rights  safeguards  that 
aim to ensure compliance with fundamental rights, including the principle of non-refoulement.147  

The  importance  of  respecting  fundamental  rights,  including  the  principle  of  non-refoulement,  in 
border  surveillance  operations,  as  provided  in  Regulation  656/2014148,  was  also  underlined  when 
establishing the Joint Operation Triton, launched off the coast of Italy in order to reduce the loss of 
lives at sea.149  

Case law 

In  Celaj150,  the  Court  of  Justice  clarified  that  the  Return  Directive151  does  not  preclude  penal 
sanctions  being  imposed,  following  national  rules  and  in  observance  of  fundamental  rights, 
including  the  principle  of  non-refoulement,  on  third-country  nationals  to  whom  the  return 
procedure  has  been  applied  and  who  are  staying  illegally  without  any  justified  ground  for  non-
return,  or  to  third-country  nationals  who  unlawfully  re-enter  the  territory  of  a  Member  State  in 
breach  of  an  entry  ban  issued  against  them,  provided  that  this  is  not  liable  to  jeopardise  the 
attainment of the objectives pursued by that directive. 

Petitions  

A  number  of  members  of  the  European  Parliament  as  well  as  citizens  and  non-governmental 
organisations raised concerns related to alleged push-back of migrants at external borders by several 
Member  States  and  possible  violations  of  Article  19  of  the  Charter.  Most  of  the  parliamentary 
questions  and  letters  from  citizens  and  non-governmental  organisations  asked  whether  the 
Commission is aware of the alleged push-back and which measures it is expected to take to ensure 
that  the  relevant  Member  States  act  in  full  compliance  with  the  Charter  and  other  relevant 
international and European legislation. The right to protection in the event of removal, expulsion or 
extradition is often mentioned in close relation with the right to asylum. 

In its replies the Commission indicated that it  is aware of reports of alleged ‘push-backs’ of migrants 
at the EU's borders. It has raised this issue with the relevant Member States' authorities on several 
occasions and will continue to monitor the situation. 

147 See also above Articles 1 and 4.  
148 Regulation (EU) No 656/2014 of the European Parliament and of the Council of 15 May 2014 establishing 
rules for the surveillance of the external sea borders in the context of operational cooperation coordinated by 
the European Agency for the Management of Operational Cooperation at the External Borders of the Member 
States of the European Union, OJ L 189, 27.6.2014, p. 93. 
149 See also above Article 2. 
150 CJEU judgment of 1 October 2015 in Case C-290/14 Skerdjan Celaj. 
151  Directive  2008/115/EC  of  the  European  Parliament  and  of  the  Council  of  16  December  2008  on  common 
standards  and  procedures  in  Member  States  for  returning  illegally  staying  third-country  nationals,  OJ  L  348, 
24.12.2008, p. 98. 

63 

 
 
                                                            
64 

 
 
 
 
 
65 

 
 
 
66 

 
 
 
 
 
Equality 

In 2015, the European Commission set up a High Level Group on Non-Discrimination, Equality and 
Diversity  which  brings  together  representatives  from  the  Member  States  and  EEAS  countries  and 
deals with non-discrimination, equality and diversity issues.  

The Commission published the results of the Eurobarometer on Discrimination in the EU. This survey 
provides a comprehensive, updated and methodologically rigorous data set on citizens' attitudes to 
discrimination in the EU.  

Having  acquired  the  power  to  oversee  the  application  of  Framework  Decisions  in  2014,  the 
Commission  in  2015  held  bilateral  dialogues  with  the  Member  States  on  remaining  gaps  in  their 
transposition and practical implementation of this legislation with a view to ensuring full and correct 
transposition and implementation of the Framework Decision on racism and xenophobia. 

The Commission has also made explicit its commitment to combat discrimination by publishing the 
List of Actions by the Commission to advance LGBTI Equality to be implemented during the period 
2016-2019. 

In  the  field  of  equality  between  women  and  men,  the  Commission  adopted  a  Report  on  the 
application  of  Council  Directive  2004/113/EC  implementing  the  principle  of  equal  treatment 
between men and women in the access to and supply of goods and services. 

The  9th  European  Forum  on  the  rights  of  the  child  gathering  representatives  of  a  wide  range  of 
organisations  involved  in  the  national  child  protection  systems  of  all  Member  States,  as  well  as 
Members of the European Parliament and NGOs. The Forum focused on integrated child protection 
systems.   

In its landmark judgment Chez Razpredelenie, the first CJEU case on Roma discrimination, the CJEU 
held that the installation of electricity meters at an inaccessible height in a district densely populated 
by Roma is liable to constitute discrimination on the grounds of ethnic origin when such meters are 
installed in other districts at a normal height. 

In the Léger case, the CJEU issued a preliminary ruling regarding a French Decree which provided a 
permanent contraindication to blood donation for men who have had sexual relations with another 
man. The Court held that such a limitation may be justified as it meets a genuine objective of general 
interest recognised by the EU, as the aim of the limitation is to minimise the high risk of transmitting 
an infectious disease to recipients.  

67 

 
 
 
Title III 

Equality 

Article 20 – Equality before the law 

Article  20  stipulates  that  everyone  is  equal  before  the  law.  The  article  corresponds  to  a  general 
principle of law which is included in all European constitutions and has also been recognised by the 
CJEU as a basis principle of Union law.  

Case law 

In case T-544/13 Dyson v. Commission152, the applicant challenged the Regulation No 665/2013 on 
the energy labelling of vacuum cleaners on the ground that the testing techniques in the Regulation 
discriminated in favour of bagged vacuum cleaners to the disadvantage of bagless vacuum cleaners 
or  vacuum  cleaners  based  on  ‘cyclonic’  technology.  The  General  Court  of  the  CJEU  ruled  out  a 
violation of the equal treatment principle on the grounds that there was an objective justification for 
applying the same testing methods to different situations.  

Ruling of the French Council of State 

The  French  Council  of  State  ruled  on  the  withdrawal  of  the  French  nationality  of  a  dual 
Moroccan-French  citizen, on the  grounds that  he had been convicted for participating in a 
criminal association for the preparation of an act of terrorism. The Court referred to Articles 
20 and 21 of the Charter and, taking into account the criteria developed in the case law of 
the  CJEU  (judgment  C-135/08  of  2  March  2010),  concluded  that  the  withdrawal  was 
compatible with  EU law. (France, Conseil d'Etat, case FR:CESSR:2015:383664.20150511 of 1 
May 2015). 

Article 21 – Non-discrimination 

The  Charter  prohibits  any  discrimination  based  on  any  ground  such  as  sex,  race,  colour,  ethnic  or 
social origin, genetic features, language, religion or belief, political or any other opinion, membership 
of a national minority, property, birth, disability, age or sexual orientation. The Charter also prohibits 
discrimination on 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 

152 CJEU, judgment of 11 November 2015 in Case T-544/13, Dyson v. Commission. 

68 

 
 
 
 
 
 
 
                                                            
workplace.  In  the  area  of  employment  and  occupation,  EU  legislation  prohibits  discrimination  on 
grounds of religion or belief, disability, age or sexual orientation. 

1. General Non-Discrimination issues 

Legislation 

The  Commission  proposal  for  a  horizontal  anti‑discrimination  directive153,  aiming  to  extend  the 
protection  against  discrimination  found  in  the  employment  equality  directive  to  areas  outside 
employment  (social  protection,  education  and  access  to  goods  and  services,  including  housing)  is 
being discussed in the Council. President Juncker has deemed the adoption of this Directive a priority 
for this Commission and the Commission continues to push for the necessary unanimity in Council. 

Policy 

In  2015,  the  European  Commission  set  up  a  High  Level  Group  on  Non-Discrimination,  Equality  and 
Diversity  (HLG)  directly  linked  to  thematic  priorities  of  the  Presidency  of  the  Council.  It  brings 
together  representatives  from  all  EU  Member  States  and  EEAS  countries  dealing  with  non-
discrimination, equality and diversity issues and meets twice a year (one meeting per EU Presidency).  

The first meeting of the HLG was held in Brussels on 19-20 May 2015 under the Latvian Presidency of 
the  Council.  The  second  HLG  was  held  in  Luxembourg  on  27  October  2015  and  was  hosted  by  the 
Luxembourgish  Presidency  of  the  Council.    The  agenda  focused  mostly  on  LGBTI  policies  and  the 
Commission presented the results of its 2015 Eurobarometer on discrimination.154 Furthermore, the 
HLG  agreed  on  the  organisation  of  two  good  practice  exchange  seminars  by  the  European 
Commission  in  2016  with  the  titles  "Effective  mainstreaming  of  Equality  and  Non-discrimination  in 
policy making and impact assessment " and "Legislation for transgender people".   

On  2  October  2015,  the  Commission  published  a  special  Eurobarometer  on  Discrimination  in  the 
EU155  2015.  This  survey  comprises  one  of  the  most  comprehensive,  updated  and  methodologically 
rigorous data set which has been compiled on citizen's attitudes to discrimination in the EU. For the 
first  time,  the  survey  explores  the  social  acceptance  of  specific  groups  belonging  to  ethnic  and 
religious minorities.  Also, for the first time the survey is looking into social acceptance and citizens’ 
views on the rights of lesbian, gay, bisexual and transgender people. Such data help the Commission 
to develop effective and better targeted equality policies for various actions needed to be taken at 
an EU level in promoting specific anti-discrimination policies. 

153 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=COM:2008:0426:FIN:EN:HTML.  
154 Special Eurobarometer 437 “ Discrimination in the EU in 2015” Available at: 
http://ec.europa.eu/COMMFrontOffice/PublicOpinion/index.cfm/Survey/getSurveyDetail/instruments/SPECIAL
/surveyKy/2077. 
155 
at: 
http://ec.europa.eu/COMMFrontOffice/PublicOpinion/index.cfm/Survey/getSurveyDetail/instruments/SPECIAL
/surveyKy/2077. 

“  Discrimination 

2015”  Available 

Eurobarometer 

Special 

437 

the 

EU 

in 

in 

69 

 
 
 
                                                            
While EU equality directives do not require Member States to collect equality data, the collection and 
analysis  of  such  data  is  a  key  tool  in  fighting  discrimination  by  providing  clear  evidence  of 
discrimination and quantifying it.  To help address this gap, the European Commission has launched a 
comparative study on the equality data collection practices of 28 Member States in 2015.156  The 
aim of the study is to analyse in depth the policy and legal framework of equality data collection in 
Europe  and  examine  how  Member  States  collect  data  on  equality  issues.    The  frequency  of  the 
collection  of  the  data  and  how  the  data  is  used  by  national  authorities  will  also  be  explored.    The 
study will include a detailed mapping, handbook and catalogue of good practices. 

The European Commission supports diversity at the workplace including all society groups not only 
through legislation, but also by encouraging voluntary initiatives from businesses. It does so through 
the EU Platform of Diversity Charters, a network funded by the Commission. Concrete actions of the 
Platform include joint publications to promote the business case of diversity and organisation of an 
annual  event  bringing  together  diversity  actors  from  all  Europe.  The  last  Diversity  Charters  Annual 
Forum  was  co-organised  with  the  Luxembourgish  Presidency  of  the  Council  on  28  October  2015, 
focusing  on  the  role  of  public  authorities  and  the  media  in  promoting  diversity.  The  Commission 
announced at this Forum specific follow up activities focused on diversity in the media157. 

As  regards  funding,  for  the  period  2014-2020  the  Rights,  Equality  and  Citizenship  programme 
supports national and transnational projects on non-discrimination on the grounds of sex, racial or 
ethnic origin, religion or belief, disability, age or sexual orientation. Based on the 2015 annual work 
programme of the Rights, Equality and Citizenship Programme, the Commission made available EUR 
2.765.000 for supporting national and transnational projects on training and cooperation of relevant 
professionals,  mutual  learning,  exchange  of  good  practices,  dissemination  and  awareness  raising 
activities  to  better  prevent  and  respond  to  non-discrimination.  The  Commission  also  supports 
financially the work of EU NGOs actively working on non-discrimination on all the grounds. 

Case Law 

The  CJEU  delivered  a  preliminary  ruling158  upon  request  from  a  Spanish  court  on  the  question  of 
discrimination on the basis of age. In the case  Perez159, the applicant before the Spanish court had 
challenged the city council's decision of 7 March 2013 approving the specific requirements laid down 
in a notice of competition intended to fill 15 local police officer posts. One of these requirements was 
that  the  candidate  police  officer  should  not  be  older  than  30  years.  According  to  Mr  Perez,  this 
requirement  constituted discrimination on the basis of age. In the request for a preliminary ruling, 
the referring court asked the CJEU to provide guidance on the interpretation of both Article 21 of the 
Charter and the provisions of Directive 2000/78. 

156 The study will be ready by the second half of 2016. 
157 http://ec.europa.eu/justice/discrimination/files/hle2015_report_en.pdf 
158 Even though the ruling dates November 2014, it was still included in the 2015 annual report as it was not 
covered in the 2014 annual report. 
159 CJEU, judgment of 13 November 2014 in case C-416/13 Mario Vital Perez v Ayuntamiento de Oviedo. 

70 

 
 
 
                                                            
The CJEU held in its judgement that the age requirement provided for in the Spanish Law was based 
on  the  training  requirements  of  the  post  in  question  and  the  need  for  a  reasonable  period  of 
employment before retirement or transfer to another activity. These objectives were thus capable of 
justifying  a  difference  in  treatment  on  grounds  of  age  ‘objectively  and  reasonably’  and  ‘within  the 
context of national law’, as provided for in Article 6(1) of Directive 2000/78. However, the CJEU held 
that  no  evidence  had  been  submitted  to  the  Court  to  show  that  the  age  limit  for  recruitment  was 
appropriate and necessary in the light of the objective of ensuring training of the officers concerned. 
According to the information provided by the referring court, the age of retirement for local police 
officers is fixed at 65 years of age. Although the referring court also referred to transfer to another 
activity at the age of 58, this was merely an option offered to local police officers at their request and 
had  no  bearing  on  retirement  age.  Against  this  background  the  CJEU  concluded  that  national 
legislation such as that at issue in the main proceedings, which fixes a maximum recruitment age of 
30 for local police officers, could not be considered necessary in order to ensure that those officers 
have  a  reasonable  period  of  employment  before  retirement  for  the  purposes  of  point  (c)  of  the 
second subparagraph of Article 6(1) of Directive 2000/78. 

In  2015  the  Belgian  and  French  Supreme  Courts  (Cour  de  Cassation)  submitted  to  the  CJEU  two 
in  cases  C-157/15  Achbita160  and  C-188/15  Bougnaoui161, 
requests  for  preliminary  rulings 
respectively,  requesting  the  CJEU  to  interpret  Directive  2000/78/EC.  The  two  cases  both  concern 
dismissals of female Muslim workers (a receptionist and a computer engineer respectively) by private 
companies because they were wearing Islamic headscarves at work162.  

2. Manifestations of intolerance, racism and xenophobia in the EU 

Policy  

While  the  effective  application  of  provisions  criminalising  hate  speech  is  first  and  foremost 
dependent on a robust system of application and enforcement of criminal law sanctions against the 
individual  perpetrator  of  hate  speech,  this  policy  must  be  complemented with measures  geared  at 
ensuring that hate speech online is expeditiously removed by online intermediaries, and social media 
platforms.  The  Commission's  concern  with  the  surge  of  hate  speech  online  was  reflected  in  the 
Annual  Colloquium  on  Fundamental  Rights  "Tolerance  and  respect:  preventing  and  combating 
Antisemitic  and  anti-Muslim  hatred  in  Europe"  which  took  place  on  1-2  October  2015.  The 
participants  to  the  Colloquium  underlined  the  importance  of  stepping  up  action  to  prosecute 
instances  of  online  hate  speech  and  cooperating  with  IT  companies  and  the  media  to  combat 
manifestly illegal hate speech and promote counter-narratives emanating from civil society.  

Since then, the Commission has initiated a dialogue with major IT companies representing different 
business models from operating systems, to social networking platforms and hosts of user generated 

160 CJEU, application of 5 June 2015 in case C-157/15 Achbita, judgment pending. 
161 CJEU, application of 19 June 2015 in case C-188/15 Bougnaoui, judgment pending. 
162 See above under Article 10.  

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content as well as microblogs. The work ties in with the Digital  Single  Market Strategy launched in 
May 2015 and is conducted in full synergy with the 'EU IT Forum' on cooperation with the industry on 
tackling terrorism which was launched on 3 December 2015.. 

As  regards  funding,  for  the  period  2014-2020  the  Rights,  Equality  and  Citizenship  programme 
supports  the  development  of  efficient  monitoring  and  reporting  mechanisms  for  racist  and 
xenophobic hate speech on the internet and on hate crime. The Commission made available under 
the  Rights,  Equality  and  Citizenship  Programme  €5.4  million  to  support  projects  of  national 
authorities  and civil society  on  training and  capacity  building,  exchanging  best  practices to  prevent 
and combat racism and xenophobia, and empowering and supporting victims of hate crime and hate 
speech.  

Furthermore,  in  an  informal  meeting  in  Paris  in  March  2015,  the  Education  Ministers  adopted  a 
Declaration  on  promoting  citizenship  and  the  common  values  of  freedom,  tolerance  and  non-
discrimination  through  education163.  They  identified  a  number  of  actions  at  national  and  European 
level to promote freedom of thought and expression, social  inclusion and intercultural dialogue; to 
prevent  and  tackle  marginalisation,  intolerance,  racism,  radicalisation  and  discrimination  in  all  its 
forms; and to preserve a framework of equal opportunities for all.  

In  May  2015,  the  Ministers  responsible  for  Youth  adopted  Conclusions  on  youth  work  and  cross-
sectorial  policy  cooperation  highlighting  the  contribution  of  youth  policy  to  the  social  inclusion  of 
young  people  and  the  prevention  of  their  marginalisation, 
including  those  with  fewer 
opportunities164.  

In its Conclusions adopted in May 2015, the Culture Council underlined the potential of cultural and 
creative  cross-overs  to  improve  social  inclusion  and  community  life  through  cultural  and  creative 
activities. 

In  May  2015,  the  Ministers  for  Sport  endorsed  Conclusions  on  the  role  of  grassroots  sport  in 
developing  transversal  skills,  especially  among  young  people165.  The  text  underscores  that  sport 
contributes  to  the  development  of  social  competences  and  positive  attitudes  and  can  support  the 
fight against intolerance and promote an open-minded society. 

Application by Member States 

In accordance with Protocol no. 36 to the Lisbon Treaty, as from 1 December 2014, the Commission 
acquired  the  power  to  oversee  under  the  control  of  the  Court  of  Justice,  the  application  of 
Framework  Decisions,  including  the  Framework  Decision  2008/913/JHA166.  On  that  basis,  the 

163 Available at: http://ec.europa.eu/education/news/2015/documents/citizenship-education-
declaration_en.pdf. See also below Article 14 
164 Council conclusions on enhancing cross-sectorial policy cooperation to effectively address socio-economic 
challenges facing young people, OJ C 172, 27.5.2015, available at: http://eur-lex.europa.eu/legal-
content/EN/TXT/?uri=CELEX%3A52015XG0527(01) 
165 Council conclusions on maximising the role of grassroots sport in developing transversal skills, especially 
among young people, OJ C 172, 27.5.2015, p. 8. 
166 Council Framework Decision 2008/913/JHA of 28 November 2008 on combating certain forms and 
expressions of racism and xenophobia by means of criminal law, OJ L 328, 6.12.2008, p.55. 

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Commission in 2015 entered into bilateral dialogues with thirteen Member States on remaining gaps 
in their transposition and practical implementation of this legislation with a view to ensuring full and 
correct transposition and implementation of the Framework Decision on racism and xenophobia.167  

At  the  same  time,  the  Commission  has  worked  together  with  the  Member  States  and  other  key 
actors, including key civil society organisations and relevant international monitoring bodies, to make 
a real difference on the ground through the establishment of Experts' fora and platforms facilitating 
the exchange of best practices (Commission Experts' Group). This is particularly important in the area 
of combating hate crime and hate speech since it remains for the national authorities to determine, 
according  to  the  circumstances  and  context  of  each  situation,  whether  the  case  amounts  to 
incitement to racist or xenophobic violence or hatred.  

Case Law 

An  important  judgment168  was  delivered  by  the  European  Court  of  Human  Rights  for  failure  to 
conduct an effective investigation by the national authorities as regards a racist attack. In  Balázs v 
Hungary the Hungarian authorities decided to discontinue due to lack of evidence the investigations 
aimed  at  unmasking  the  bias  motivation  of  the  offense  committed  by  a  penitentiary  officer.  The 
claimant  relying  on  Article  14  of  the  ECHR  (prohibition  of  discrimination)  read  in  conjunction  with 
Article  3  of  the  ECHR  (prohibition  of  inhuman  or  degrading  treatment),  complained  that  the 
authorities  failed  to  conduct  an  effective  investigation  into  the  racist  attack  against  him,  and  in 
particular that they did not take sufficient action to establish a possible racist motive for the assault. 
The ECtHR upheld the claimant's position stating that the failure to identify the racist motive in the 
face of powerful hate crime indicators impaired the adequacy of the investigation to an extent that is 
irreconcilable with the State’s obligation to conduct vigorous investigations in this field and found a 
breach on Article 14 of the ECHR read in conjunction with Article 3 of the ECHR. 

3. EU Framework for National Roma Integration Strategies 

Legislation and Policy 

In  the  context  of  the  EU  Framework  for  National  Roma  Integration  Strategies  up  to  2020,  the 
European  Council  Conclusions  on  23  June  2011,  and  the  Council  Recommendation  on  Roma 
Integration  adopted  on  9  December  2013169,  the  issues  Roma  are  facing  have  remained  a  high 
priority for the Member States, the European Institutions and civil society in the year 2015. 

Discrimination of Roma and Anti-Gypsyism were discussed at this year's European Platform for Roma 
inclusion (16-17 March 2015). The debates at the Platform fed the following overall conclusions: 

167 The Commission will continue this exercise with the remaining Member States throughout 2016 and may if 
necessary proceed to the initiation of infringement procedures. 
168 ECtHR, judgement of 20 October 2015 in case of Balázs v Hungary, application no 15529/12.  
169 Available at: http://ec.europa.eu/justice/discrimination/roma/index_en.htm  

73 

 
 
 
                                                            
•  There  is  wide  recognition  among  stakeholders  that  discrimination  and  racism  against  Roma  are 
structural  barriers  which  are  in  conflict  with  the  core  values  of  the  European  Union  and  which 
hamper the process of Roma integration and there was consensus that promoting equal rights and 
opportunities for Roma is the way forward. 

• It was  agreed that  the fight  against  the increasing  level of  intolerance against  Roma  should start 
already  in  education  and  would  require  inclusive  reform  of  mainstream  education  systems. 
Education  in  this  respect  should  be  seen  in  a    wider  perspective,  starting  with  teachers,  future 
educators, mainstreaming awareness in the general population about who the Roma are; including 
facts about Roma history (Roma Holocaust) and culture in school curriculum, promoting diversity and 
equality in education, as well as educating on the forms of discrimination and anti-Gypsyism. The role 
of Roma civil society and Roma themselves as key actors in this process is of outmost importance. 

•  The  need  for  structured  dialogue  at  EU  level  among  all  stakeholders  was  reconfirmed.  The 
European Platform for Roma Inclusion brings a clear added value. 

• Participants agreed that it is important to build trust among  stakeholders of Roma integration at 
national and local levels. To this end national Roma platforms should be set up with support by the 
Commission to bring together all stakeholders from the national, regional and local levels. As a first 
step, documents could be drafted in the national context defining participation and responsibilities 
of  all  those  taking  part  in  the  national  platform.  National  platforms  should  be  understood  as 
networks linking actors of change from various institutions in permanent dialogue and cooperation 
on  implementation  and  monitoring  of  National  Roma  Integration  Strategies.  National  Roma 
platforms should feed the thematic preparation of the European Platform. 

•  The  European  Platform  for  Roma  inclusion  should  focus  on  key  thematic  issues  (e.g.  inclusive 
education, employment, antidiscrimination) and should be closely linked to the European policy cycle 
on monitoring NRIS by showcasing inputs by Member States and civil society to feed the assessment 
by the Commission of the implementation of the EU Framework and the Council Recommendation 
on effective Roma integration measures in the Member states. 

• A reflection should take place on how to ensure inclusive open participation of all stakeholders in 
national Roma Platforms and in the European Platform and how the link between national platforms 
and the European platform is ensured by participants. 

The Commission  welcomed and  strongly  supported  the  European Parliament  resolution of  15  April 
2015  on  Anti-Gypsyism  in  Europe  and  EU  recognition  of  the  memorial  day  of  the  Roma  genocide 
during the Second World War 

In  June  2015,  the  Commission  published  the  2015  report  on  the  implementation  of  the  EU 
Framework  for  National  Roma  Integration  Strategies170.  The  report  shows  that  the  Member  States 
continue making progress in Roma integration, but further efforts are still needed. Progress is made 

170 Communication from the Commission to the European Parliament, the Council, the European Economic and 
Social Committee and the Committee of the Regions Report on the implementation of the EU Framework for 
National Roma Integration Strategies 2015, COM(2015) 299 final, 17.6.2015, available at: 
http://ec.europa.eu/justice/discrimination/files/roma_communication2015_en.pdf.  

74 

 
 
                                                            
in  the  areas  of  funding,  monitoring  and  reporting  as  well  as  in  developing  coordination  structures 
involving  various  stakeholders.  There  are,  however,  many  worrying  developments  that  require 
further  action  from  Member  States,  such  as  fighting  discrimination  and  segregation,  anti-Gypsyism 
and elimination of hate speech and hate crime.  

The Commission has strengthened its dialogue with the EU Member States on Roma.  A network of 
the Member States’ National Contact Points for Roma integration which was set up in October 2012 
has  become  a  key  interactive  forum,  where  Member  States  can  openly  express  their  positions, 
exchange their views and cooperate among each other. 

Moreover,  the  Commission  has  continued  organising  bilateral  visits  to  the  Member  States  bringing 
together  the  relevant  national  authorities  as  well  as  representatives  of  national  civil  society 
organisations to discuss the progress made in the implementation of the national Roma integration 
strategies.  In  addition,  in  the  framework  of  the  European  Semester,  dialogues  with  the  Member 
States regarding the implementation of the Country Specific Recommendations related to Roma took 
place.  Five  countries  received  Country  Specific  Recommendations  related  to  Roma  in  education  in 
2015171,  especially  as  regard  inclusive  education,  access  to  good  quality  early  childhood  education 
and care, early school leaving and desegregation. 

ROMED172,,  a  programme  jointly  run  by  the  Commission  and  the  Council  of  Europe,  is  a  training 
programme for mediators in the field of education, healthcare, access to employment and housing 
and other public services. Its objective is to increase the inclusion of Roma communities, especially 
with regard to access to and completion of school education, with a holistic perspective towards the 
specific challenges of the communities. The programme was initiated  in 2011 and after  having laid 
the  foundations  for  quality  mediation  in  Europe,  the  second  phase  of  ROMED  (ROMED2),  which 
started  in  2013,  focuses  on  local  contexts  and  in  particular  on  how  mediation  can  stimulate  the 
participation of Roma communities for a more inclusive and democratic governance. 

The  ROMACT173  Joint  Programme  of  the  European  Commission  and  the  Council  of  Europe  aims  at 
building the capacity of local authorities to design and implement strategies and policies which are 
inclusive of all, including Roma, and to use ESIF funds for that purpose.. 

Regarding  the  use  of  ESI  Funds  in  tackling  educational  and  spatial  segregation,  the  Commission 
released a 'Guidance for Member States on the use of European Structural and Investment Funds in 
tackling  educational  and  spatial  segregation'174  which  provides  useful  indications  for  managing 
authorities  to  design  and  implement  non-segregation  and  desegregation  interventions.  ESI  Funds 
investments, which may contribute to the extension of segregated educational and housing facilities, 
are strongly discouraged. 

171 Further information available at http://europa.eu/epic/docs/inv-children-csrs-2015.pdf 
172 Further information available at: http://romed.coe-romact.org/ 
173 http://coe-romact.org/ 
174European  Commission,  Guidance  for  Member  States  on  the  use  of  European  Structural  and  Investment 
Funds 
in  tackling  educational  and  spatial  segregation,  EGESIF_15-0024-01,  11.11.2015,  available  at: 
http://ec.europa.eu/regional_policy/sources/docgener/informat/2014/thematic_guidance_fiche_segregation_
en.pdf. 

75 

 
 
                                                            
The  EU's  7th  Framework  Programme  for  Research,  Technological  Development  and  Demonstration 
Activities (in particular Theme 8 - Social Sciences and the Humanities) financed a research project on 
"The  Immigration  of  Romanian  Roma  to  Western  Europe:  Causes,  effects,  and  future  engagement 
strategies"  (MIGROM).  It  provides  policy  recommendations  and  is  piloting  new  schemes  for  public 
engagement  and  outreach  in  the  Roma  community.  175  In  2015  an  Extended  Survey  was  finalized 
among communities of Romani migrants in France, Italy, Spain and the United Kingdom, and in their 
origin communities in Romania. Results are summarized in a policy brief.176 Moreover, during 2015 
the  project  worked  in  the  framework  of  the  formal  agreements  signed  with  the  City  Council  of 
Granada, Lucena (Córdoba) and Bormujos (Seville), and the Spanish Red Cross in Andalusia. the work 
with local authorities consisted mainly in developing a continuous exchange of information, analysis 
and opinions. The group of social workers that participated in the First Authorities Local Workshop 
became  a  stable  working  group  for  the  reflexive  analysis  of  the  daily  social  services  related  with 
Roma population. 

Case Law 

In its landmark judgment of 16 July 2015, the first CJEU case on Roma discrimination, case  C-83/14 
Chez  Razpredelenie177,  the  Court  confirmed  that  the  scope  of  the  Race  Equality  Directive 
(2000/43/EC)  cannot  be  defined  restrictively  –  notably  in  view  of  the  fact  that  the  Directive  is  an 
expression,  within  the  area  under  consideration,  of  the  principle  of  equality,  which  is  one  of  the 
general principles of EU law, as recognised in Articles 20 and 21 of the Charter. 

More  concretely,  the  CJEU  held  in  this  case  that  the  installation  of  electricity  meters  at  an 
inaccessible height in a district densely populated by Roma is liable to constitute discrimination on 
the grounds of ethnic origin when such meters are installed in other districts at a normal height. 

In  its  reasoning,  the  Court  also  referred,  inter  alia,  to  Article  21  of  the  Charter  to  find  that  the 
prohibition of discrimination on the grounds of ethnic origin in Directive 2000/43 applies, not only to 
persons who have a certain ethnic origin, but also to those who, although not themselves a member 
of  the  ethnic  group  concerned,  suffer,  together  with  the  former,  less  favourable  treatment  or  a 
particular disadvantage on account of a discriminatory measure. 

Finally,  the  Court  referred  to  Article  21  of  the  Charter  to  interpret  the  concept  of  direct 
discrimination based on race or ethnic origin. The Court pointed out that the presence in the district 
at  issue  of  inhabitants  who  are  not  of  Roma  origin  does  not  in  itself  rule  out  that  the  contested 
practice  was  imposed  on  account  of  the  ethnic  origin  shared  by  most  of  that  district’s  inhabitants 
(namely Roma ethnic origin). It will nevertheless be for the Bulgarian court to take account of all the 
circumstances surrounding that practice in order to determine whether it has in fact been imposed 
for such a reason of an ethnic nature and thus constitutes direct discrimination under the directive. 

175http://migrom.humanities.manchester.ac.uk/ 
176 http://migrom.humanities.manchester.ac.uk/wp-content/uploads/2015/08/Policy_Briefing_June2015.pdf . 
177 CJEU, judgment of 16 July 2015 in case C-83/14, CHEZ Razpredelenie Bulgaria AD v Komisia za zashtita ot 
diskriminatsia.  

76 

 
 
 
                                                            
The  evidence  which  may  be  taken  into  consideration  in  this  connection  includes,  in  particular,  the 
fact that the practice at issue has been established only in districts which have Bulgarian nationals of 
Roma  origin  as  the  majority  of  their  population.  Also,  the  fact  that  the  electricity  distribution 
undertaking has asserted before the Bulgarian Commission for Protection against Discrimination that 
the  damage  and  unlawful  connections  are  mainly  due  to  persons  of  Roma  origin  is  capable  of 
suggesting that the contested practice is based on ethnic stereotypes or prejudices. 

The  CJEU  noted  that  the  Bulgarian  court  will  also  have  to  take  account  of  the  compulsory, 
widespread and lasting nature of the practice complained of. That practice affects without distinction 
all  the  inhabitants  of  the  district  concerned,  irrespective  of  whether  their  individual  meters  have 
been  the  subject  of  abuse  and,  as  the  case  may  be,  who  has  committed  that  abuse.  Thus,  the 
practice at issue may be perceived as suggesting that the inhabitants of that district are, as a whole, 
considered  to  be  potential  perpetrators  of  unlawful  conduct.  In  this  context,  the  Court  stated  that 
the practice amounts to unfavourable treatment to the detriment of the inhabitants  concerned on 
account of both its offensive and stigmatising nature and the fact that it is extremely difficult or even 
impossible  for  them  to  check  their  electricity  meters  for  the  purpose  of  monitoring  their 
consumption. 

Application by Member States 

In April 2015 the Commission launched infringement proceedings concerning discrimination of Roma 
children  in  education  in  breach  of  Directive  2000/43/EC  implementing  the  principle  of  equal 
treatment  between  persons  irrespective  of  racial  or  ethnic  origin  against  a  second  Member  State, 
after infringement proceedings against a first Member State had been launched in September 2014. 
The Commission is currently also assessing the situation in other Member States.  

4. Fight against homophobia 

Legislation and Policy 

In  December  2015,  the  Commission  has  made  explicit  its  commitment  to  combat  discrimination, 
when  defining  and  implementing  all  its  policies  and  activities  (as  enshrined  in  Article  10  TFEU),  by 
defining  a  List  of  Actions  to  advance  LGBTI  Equality  to  be  implemented  during  the  period  2016-
2019.178   

Furthermore, in the first half of 2015 the Commission has launched a study on the business case of 
diversity for enterprises, cities and regions with focus on sexual orientation and gender identity.179  
The  study  includes  the  production  of  a  publication  on  the  business  case  for  LGBTI  inclusion  in 
companies as well as the benefits of LGBTI diversity for cities and regions.  Moreover, it will explore 
the economic case of LGBTI non-discrimination and inclusion. 

178 This includes an awareness-raising campaign in 2016 to improve social acceptance of LGBTI people. The 
Commission will provide regular feedback to the Council, the European Parliament, the Member States and civil 
society organisations on progress made in the implementation of the actions. 
179 The study is expected to be completed by the first half of 2016. 

77 

 
 
 
 
                                                            
Case law 

On 29 April 2015, the CJEU issued a preliminary ruling in case  Geoffrey Léger180 regarding a French 
Decree  which  provided  a  permanent  deferral  from  blood  donation  for  men  who  have  had  sexual 
relations with another man. The French law was based on a high prevalence of HIV infections in this 
group of potential donors in France and the high risk of acquiring severe infectious diseases that can 
be transmitted by blood. 

The request for a preliminary ruling concerned the issue whether such permanent deferral could be 
considered  compatible  with  Directive  2004/33/EC  on  certain  technical  requirements  for  blood  and 
blood components181, according to which persons whose sexual behaviour puts them at a high risk of 
contracting severe infectious diseases that can be transmitted by blood are subject to a permanent 
deferral from blood donation.  

After  having  maintained  that,  first  of  all,  it  should  be  determined  whether  available  medical  and 
scientific knowledge on the epidemiological situation in France can lead to conclude that, in France, 
men who have had sexual relations with other men are at a high risk of acquiring severe infectious 
diseases  such  as  HIV  that  can  be  transmitted  by  blood,  the  Court  focussed  on  the  issue  whether, 
provided that this is the case,  the permanent contraindication to blood donation should be regarded 
as consistent with fundamental rights and, in particular, with the principle of non-discrimination on 
the basis of sexual orientation reaffirmed by Article 21 of the Charter.  

The  Court  maintained  that,  although  the  permanent  deferral  provided  for  in  French  law  helps  to 
minimise the risk of transmitting an infectious disease to recipients and, therefore, contributes to the 
general EU objective of ensuring a high level of human health protection as recognised by the EU in 
Article 152 EC [now Article 168 TFEU], it constitutes a restriction on fundamental rights which may 
not  be  consistent  with  the  principle  of  proportionality.  This  would  be  the  case  where  effective 
techniques for detecting severe diseases that can be transmitted by blood or, in the absence of such 
techniques, less onerous methods for ensuring a high level of health protection for recipients other 
than  permanent  deferral  from  blood  donation  existed  –  something  which  the  Court  left  for  the 
national judge to determine. 

Currently,  men  who  have  had  sex  with  men  are  considered  by  all  Member  States  as  being  at  an 
increased risk of being infected with HIV and are therefore subject to either temporary or permanent 
deferrals,  also  in  light  of  figures  compiled  by  the  European  Centre  for  Disease  Prevention  and 
Control.  The  Commission  will  continue  its  discussions  with  Member  States  on  the  practical 
implications of this important judgment. 

Parliamentary Questions and letters 

180  CJEU  judgment  of  29  April  2015  in  case  C-528/13  Geoffrey  Léger  v  Ministre  des  affaires  sociales  et  de  la 
santé. 
181 Commission  Directive 2004/33/EC of 22 March 2004 implementing Directive 2002/98/EC of the European 
Parliament and of the Council as regards certain technical requirements for blood and blood components, OJ L 
091 30.3.2004, p. 25. 

78 

 
 
 
                                                            
The  Commission  received  a  considerable  number  of  parliamentary  questions  on  its  policies  on 
LGBTI182 people. In its responses, the Commission highlighted its commitment to fight discrimination 
on  the  grounds  of  sexual  orientation  and  gender  identity,  the  importance  of  the  adoption  of  the 
proposed  Equal  Treatment  Directive  by  the  Council  and  the  non-legislative  activities  that  the 
Commission carries to support this group, including peer learning initiatives between Member States, 
awareness raising, data collection and financial support to civil society.   

A  number  of  parliamentary  questions183  concerned  the  ban  for  men  who  had  had  sexual  relations 
with  other  men  from  giving  blood  and  they  inquired  accordingly  about  the  Commission’s  position 
regarding CJEU ruling in Case C-528/13 Geoffrey Léger v Ministre des affaires sociales et de la santé 
of 29 April 2015. The Commission replied that Directive 2004/33/EC184 lays down deferral criteria for 
blood  donors  including  deferrals  of  persons  whose  sexual  behaviour  puts  them  at  risk  of  acquiring 
infectious diseases. Most Member States apply either temporary or permanent deferrals of men who 
have  had  sex  with  men  to  protect  recipients.  This  approach  is  supported  by  data  compiled  by  the 
European Centre for Disease Prevention and Control which shows that in 2013 in the EU 54% of HIV 
diagnoses  in  men  were  transmitted  through  sex  between  men.  While  testing  methods  have 
improved  in  recent  years,  the  risk  of  under-detection  has  not  been  completely  removed  and  the 
Commission  continues  to  encourage  all  Member  States  to  collect  more  data  on  incidence  of  such 
diseases in specific population groups and supports the ongoing work of the Council of Europe to this 
end. 

The Commission also received an Inquiry by the Danish National Organisation for Gay Men, Lesbians, 
Bisexual  and  Transgender  Persons  concerning  a  case  of  a  HIV-positive  gay  man  and  a  woman  who 
wish  to  have  a  child  together.  They  were  denied  a  sperm  donation  on  the  basis  of  Commission 
Directive  2006/17/EC  which  implements  Directive  2004/23/EC185  as  regards  certain  technical 
requirements for the donation, procurement and testing of human tissues and cells.186  

In  Denmark  the  medically  assisted  reproduction  -  sperm  donation  is  provided  to  opposite  gender 
couples  (i.e.  couples  which  have  an  intimate  physical  relationship)  where  the  man  is  HIV  positive.  
However,  where  the  mother  and  farther  are  not  partners  (they  do  not  have  an  intimate  physical 
relationship)  and  the  man  is  HIV  positive,  sperm  donation  is  denied  on  the  basis  of  health 
considerations  and  Commission  Directive  2006/17/EC  which  states  in  its  Article  1  b  that  "partner 
donation’ means the donation of reproductive cells between a man and a woman who declare that 
they have an intimate physical relationship". The organisation inquired about the compatibility of the 

182 Lesbian, Gay, Bisexual, Transgender, Intersex 
183 Questions E - 006958/15; E - 007026/15; E- 007052/14; E - 007104/15; E -  007504/15; E - 011959/15. 
184 Commission  Directive 2004/33/EC of 22 March 2004 implementing Directive 2002/98/EC of the European 
Parliament and of the Council as regards certain technical requirements for blood and blood components, OJ L 
091 30.3.2004, p. 25. 
185 Directive 2004/23/EC of the European Parliament and of the Council of 31 March 2004 on setting standards 
of quality and safety for the donation, procurement, testing, processing, preservation, storage and distribution 
of human tissues and cells, OJ L 102, 7.4.2004, p.48 
186 Commission Directive 2006/17/EC of 8 February 2006 implementing Directive 2004/23/EC of the European 
Parliament  and  of  the  Council  as  regards  certain  technical  requirements  for  the  donation,  procurement  and 
testing of human tissues and cells, OJ L 038, 9.2.2006, p.40 

79 

 
 
                                                            
refusal with the prohibition of discrimination on the grounds of sexual orientation. The Commission 
replied  that  Directive  2004/23/EC  and  Directive  2006/17/EC  do  not  discriminate  against  donors 
based on their sexual orientation. Article 3 of Directive 2006/17/EC sets out the selection criteria for 
donors  of  reproductive  cells.  Pursuant  to  Annex  III  to  the  Directive,  these  selection  criteria  are 
different  for  donations  by  partners  and  for  donations  by  persons  other  than  partners.  Recital  5 
clarifies that the different treatment between partner and non-partner donations is justified, taking 
into account that “the risk for the recipient is considered less than for donation from third parties”. 
The differentiation in treatment is not based on sexual orientation, but on medical risks – in line with 
the EU’s mandate to ensure high quality and safety standards in the tissues and cells sector. 

80 

 
 
   
 
Article 22 – Cultural, religious and linguistic diversity 

Article 22 stipulates that the Union shall respect cultural, religious and linguistic diversity. 

Policy 

Article 17(3) TFEU stipulates that the Union shall maintain an open, transparent and regular dialogue 
with  churches  or  religious  associations  or  communities  and  philosophical  and  non-confessional 
organisations.187  This  dialogue  takes  place  at  various  levels  in  the  form  of  written  exchanges, 
meetings  or  specific  events.  Interlocutors  are  invited  to  contribute  to  the  EU  policymaking  process 
through  the  various  written  consultation  processes  launched  by  the  European  Commission.  The 
dialogue contributes to the promotion of religious diversity. 

On  17th  of  March  2015,  following  the  terrorist  attacks  in  Paris  and  Copenhagen,  the  EU  education 
ministers  and  the  EU  Commissioner  for  education,  training,  youth  and  sport  agreed  to  strengthen 
their action in the field of education and  signed the "Declaration on promoting citizenship and the 
common values of freedom, tolerance and non-discrimination  through  education".  The Declaration 
links inclusive education for all children and young people with the promotion of citizenship, mutual 
respect, fundamental values, diversity and gender equality.188   

In  June  the  sixth  annual  high-level  meeting  with  representatives  from  philosophical  and  non-
confessional organisations from across Europe was held on the topic "Living together and disagreeing 
well".  It  was  followed  two  weeks  later  by  the  eleventh  annual  high-level  meeting  with  religious 
leaders, on the same subject.   

In  the  context  of  the  Article  17  dialogue,  on  2  December  the  Commission  held  a  dialogue  seminar 
with  50  representatives  from  COMECE,  CEC  and  respective  faith-based  NGOs  on  the  question: 
"Beyond the refugee crisis: Integration of migrants in society and the labour market". It showed the 
serious  and  substantial  involvement  of  church  organisations  in  the  current  refugee  crisis.  The 
Commission  also  held  a  dialogue  seminar  with  religious  interlocutors  on  "Common  actions  to  fight 
trafficking in human beings" and a dialogue seminar with the Association Européenne de la Pensee 
Libre - AEPL, on the Transatlantic Trade and Investment Partnership (TTIP) agreement. 

On 1-2 October the Commission hosted the first Annual Colloquium on Fundamental Rights, on the 
subject "Tolerance and respect: preventing and combating Antisemitic and anti-Muslim hatred in 
Europe".  The  Colloquium  gathered  all  relevant  stakeholders  including  religious  and  community 
leaders. The following key actions were identified from the discussions:  

  Empower those active at local level to build a culture of tolerance and respect, in particular 

through education; 

  Fight hate speech by working with IT companies, civil society and the media; 
  Ensure  implementation  of  hate  crime  laws  and  new  EU  rules  on  protecting  the  rights  of 

victims of crime and improve recording and data collection of hate crime incidents; 

  Promote diversity and enforce and strengthen non-discrimination rules. 

187 See also above under Article 10 on freedom of thought, conscience and religion. 
188 See also above under Article 21, section 2. 

81 

 
 
 
                                                            
It was held that Community leaders are a vaccine to misconceptions and need to be supported in the 
breaking of stereotypes and the developing of counter narratives, reaching out to public at large and 
breaking indifference. 

As a direct follow-up to the Colloquium on Fundamental Rights and the Paris Declaration of Ministers 
of  Education  in  March,  the  Commission  is  prioritising  funds  in  order  to  support  Member  States 
fostering inclusive education and mutual understanding amongst children and young people, as well 
as  for  projects  and  initiatives  in  the  area  of  inclusive  tolerance,  racism,  xenophobia  and  non-
discrimination.  To  help  ensure  coordination  of  European  efforts  on  Antisemitic  and  anti-Muslim 
hatred, taking into account the specific features of each phenomenon, the Commission nominated 
two coordinators, one for anti-Semitism and one for Islamophobia. 

Furthermore, in light of the unprecedented numbers of refugees and asylum seekers arriving in the 
EU, in November 2015, national Ministers for culture agreed to create a new policy working group on 
intercultural  dialogue  with  a  special  focus  on  the  integration  of  migrants  and  refugees  in  societies 
through  the  arts  and  culture.  This  takes  the  form  of  a  series  of  meetings  of  experts  nominated  by 
national governments, under the Open Method of Coordination.   

The EU Work  Plan for  Culture (2015-2018),  agreed  by  the  European  Ministers  for  culture,  foresees 
actions to protect and promote the diversity of cultural expressions - in line with the 2005 UNESCO 
Convention on the Protection and Promotion of the Diversity of Cultural Expressions, to which the EU 
is a party; and to foster the contribution of culture to social inclusion.  In 2015, the EU continued to 
work with UNESCO to implement the 2005 Convention, within the European Union and with partner 
countries, and celebrated its 10th anniversary with a high-level event in Brussels in June. 

In  2015,  the  €1.46  billion  Creative  Europe  programme,  in  support  of  the  culture  and  audio-visual 
sectors,  supported  actions  under  the  EU  Work  Plan  for  Culture.  This  included  transnational  policy 
cooperation  in  the  EU  and  beyond,  that  promote  openness  towards  other  cultures  and  the 
integration of refugees and migrants. 

Article 23 – Equality between women and men 

According  to  Article  23  equality  between  women  and  men  must  be  ensured  in  all  areas,  including 
employment, work and pay. The principle of equality shall not prevent the maintenance or adoption 
of measures providing for specific advantages in favour of the under-represented sex. 

Policy 

In May 2015, the Commission adopted a Report on the application of Council Directive 2004/113/EC 
implementing  the  principle  of  equal  treatment  between  men  and  women  in  the  access  to  and 
supply  of  goods  and  services.  The  report  covers  in  particular  the  implementation  in  the  Member 
States of the ruling in Test-Achats189, where the CJEU invalidated Article 5(2) of the Directive, which 

189 CJEU, judgment of 1 March 2011 in case C-236/09 Test-Achats. 

82 

 
 
 
 
                                                            
permitted  the  maintenance  of  sex-based  differentiations  in  the  provision  of  insurance  services 
(provided that it was based on relevant and accurate actuarial and statistical data), as incompatible 
with Articles 21 and 23 of the Charter. The unisex rule now applies without derogation in relation to 
the calculation of individuals' premiums and benefits in new contracts.  

Within  the  framework  of  the  Common  Fisheries  Policy,  gender  balance  in  the  fisheries  sector,  in 
particular  the  developing  role  of  women,  is  a  topic  to  which  the  Commission  is  paying  increased 
attention. The European Maritime and Fisheries Fund (EMFF) Regulation No 508/2014190 includes a 
number  of  provisions  supporting  women's  involvement  in  the  sector.  In  particular  during  the  
negotiations of the EMFF Operational Programmes in 2015, the Commission closely monitored how 
Member  States  integrate  gender  mainstreaming  and  how  they  implement  the  gender  specific 
indicators the Commission has defined for its continuous monitoring and evaluation exercises.191  

The November 2015 Joint Report of the Council and the Commission  on the implementation of the 
Strategic  Framework  for  European  cooperation  in  education  and  training  (ET  2020)  underlines  the 
need  to  address  gender  gaps  and  unequal  opportunities  for  women  and  men  in  education  and 
training and to promote gender equality in study subject choices and careers192. 

Case law 

In the case C-222/14 Maïstrellis193, the Court referred to Article 33(2) of the Charter to interpret the 
provisions  of  the  Parental  Leave  Directive  (96/34/EC)194  and  the  Gender  Equality  (Recast)  Directive 
(2006/54/EC)195. Article 33 deals with family and professional life and its second paragraph stipulates 
that everyone shall have the right to parental leave following the birth of or adoption of a child. The 
CJEU ruled that the provisions of the two above mentioned directives precluded national provisions 
under which a male civil servant is not entitled to parental leave in a situation where his wife does 
not work or exercise any profession unless it is considered that due to a serious illness or injury his 
wife is unable to meet the needs related to the upbringing of the child.  

190  Regulation  (EU)  No  508/2014  of  the  European  Parliament  and  of  the  Council  of  15  May  2014  on  the 
European  Maritime  and  Fisheries  Fund  and  repealing  Council  Regulations  (EC)  No  2328/2003,  (EC)  No 
1198/2006 and (EC) No 791/2007 and Regulation (EU) No 1255/2011 of the European Parliament and of the 
Council, OJ L 149, 20.5.2014, p. 1.  
191 MEP question E-010915/2015. 
192 Adopted on 23 November 2015. See: http://europa.eu/rapid/press-release_IP-15-5568_en.htm 

193 CJEU, judgment of 16 July 2015 in Case C-222/14 Maïstrellis. 
194 Directive 96/34/EC on parental leave has been replaced by Directive 2010/18/EU on parental leave. Council 
Directive  2010/18/EU  of  8  March  2010  implementing  the  revised  Framework  Agreement  on  parental  leave 
concluded  by  BUSINESSEUROPE,  UEAPME,  CEEP  and  ETUC  and  repealing  Directive  96/34/EC,  OJ  L  68, 
18.3.2010, p. 13. 
195 Directive 2006/54/EC of the European Parliament and of the Council of 5 July 2006 on the implementation 
of the principle of equal opportunities and equal treatment of men and women in matters of employment and 
occupation (recast), OJ L 204, 26.7.2006, p. 23. 

83 

 
 
 
                                                            
Article 24 – The rights of the child 

Article 24 of the Charter recognises that children are independent and autonomous holders of rights 
and prescribes that children have the right to protection and care necessary for their well-being. It 
codifies their right to participation, by emphasizing that children may express their views freely, and 
that such views shall be taken into consideration on matters which concern them in accordance with 
their age and maturity. Article 24 also stipulates that in all actions relating to children, whether taken 
by public authorities or private institutions, the child's best interest must be a primary consideration. 
Lastly,  Article  24  prescribes  that  every  child  shall  have  the  right  to  maintain  on  a  regular  basis  a 
personal relationship and direct contact with his or her parents, unless that is contrary to his or her 
interests. In line with Article 3(3) of the Treaty on European Union rights of the child are a priority for 
the Commission.  

Legislation  

In 2013, the European Commission had tabled a proposal for a directive on procedural safeguards 
for children suspected or accused in criminal proceedings196, to contribute to creating a more child-
friendly  justice  system.  This  directive  proposes  a  number  of  safeguards  for  children,  including 
assistance  by  a  lawyer  and  specific  treatment  of  children  deprived  of  liberty.  In  2015,  trilogue 
discussions continued, further to the Council general approach of June 2014.197 In December 2015, 
the Council and the European Parliament agreed on a final text.198  

Policy  

The  9th  European  Forum  on  the  rights  of  the  child199  focused  on  integrated  child  protection 
systems, as a follow-up to previous discussions in 2012 and 2013 and a  public consultation held in 
2014, as well as a mapping of national child protection systems conducted in 2014 by the EU Agency 
for  Fundamental  Rights.  A  reflection  paper200  on  coordination  and  cooperation  in  integrated  child 
protection  systems  formed the  basis  of discussions  and  proposed 10  principles  for  integrated child 
protection systems.  Representatives of a wide range of organisations involved in the national child 
protection  systems  of  all  Member  States,  including  justice,  social  affairs,  health  and  education 

196 Proposal for a Directive of the European Parliament and of the Council on procedural safeguards for children 
suspected  or  accused  in  criminal  proceedings,  COM(2013)  822  final,  27.11.2013,  available  at  http://eur-
lex.europa.eu/LexUriServ/LexUriServ.do?uri=CELEX:52013PC0822:en:NOT.  
197Further information available at: 
http://www.europarl.europa.eu/meetdocs/2014_2019/documents/libe/dv/hearing_council_general_approach
_/hearing_council_general_approach_en.pdf 
198 http://www.consilium.europa.eu/en/press/press-releases/2015/12/16-procedural-safeguards-for-children-
in-criminal-proceedings/; http://www.europarl.europa.eu/news/en/news-room/20160303IPR16952/MEPs-
strengthen-rights-of-children-in-criminal-proceedings; see also below under Art.48. It should enter into force in 
2016, http://eur-lex.europa.eu/legal-content/EN/TXT/PDF/?uri=CONSIL:ST_15272_2015_INIT&from=EN. 
199  Further  information  available  at:  http://ec.europa.eu/justice/fundamental-rights/rights-child/european-
forum/ninth-meeting/index_en.htm 
200 Available at: http://ec.europa.eu/justice/fundamental-rights/files/2015_forum_roc_background_en.pdf 

84 

 
 
 
 
                                                            
authorities,  as  well  as  Members  of  the  European  Parliament,  NGOs,  experts  and  professionals 
working with and for children exchanged good practices and provided input to the 10 principles set 
out  in  the  reflection  paper.  While  maintaining  the  need  for  a  comprehensive  approach  to  child 
protection,  the  Forum  featured  specific  sessions  on  the  prevention  of  violence  against  children; 
identification,  reporting  and  referral;  investigation,  treatment,  follow-up  and  judicial  involvement; 
and effective procedures.  

Application by the Member States 

A  number  of  Member  States  have  adopted  new  legislation  to  complete  the implementation of  the 
child  sexual  abuse  directive  2011/93/EU,  which  improves  the  protection  of  child  victims  of  sexual 
abuse, the prosecution of offenders and the prevention of the crimes. 

The Commission in 2015 pursued with Reasoned Opinions the infringement procedures open against 
seven  Member  States  for  failure  to  notify  complete  implementation  of  the  child  sexual  abuse 
directive 2011/93/EU.  

Policy 

The final results of a  study to collect existing data on children's involvement in criminal, civil and 
administrative  judicial  proceedings201  were  published  in  2015.  The  first  part  on  children's 
involvement in criminal judicial proceedings was published in 2014, and the second part on children's 
involvement in civil justice and in administrative judicial proceedings was published in June 2015. The 
study  gathers  all  available  data,  identifies  gaps  in  data  and  procedural  safeguards,  and  provides 
examples of good practices in the 28 Member States. It also provides a contextual narrative overview 
per Member State describing the legal and policy situation as at 1 June 2012 (and summarised for the 
EU as a whole) with regard to children's involvement in judicial proceedings.  The overview describes 
when and how children are involved before, during and after judicial proceedings and aims to ensure 
that data can be interpreted correctly. A policy brief presents the voluminous findings of the three 
strands of the study, examining the extent to which children are guaranteed effective access to, and 
adequate treatment in, criminal, civil and administrative judicial proceedings across the EU, focusing 
on 10 key safeguards.202  

The  results  of  the  study  to  evaluate  legislation,  policy  and  practice  on  child  participation  in  the 
EU203 were published in June 2015. The evaluation provides a comprehensive overview of the legal 
and policy framework for child participation at Member State and EU levels; particular structures and 
approaches, and the impact of child participation. The results provide a baseline for the participation 
of  children  in  the  development  and  implementation  of  actions  and  policies  that  affect  them,  for 

at: 

Reports 

available 

201 Available at: http://ec.europa.eu/justice/fundamental-rights/rights-child/friendly-justice/index_en.htm 
202 
administrative-judicial-proceedings-in-the-28-member-states-of-the-eu-
pbDS0415479/?CatalogCategoryID=Vhiep2OwweYAAAFOlgAi8_Kp 
www.childreninjudicialproceedings.eu  
203 http://bookshop.europa.eu/en/evaluation-of-legislation-policy-and-practice-of-child-participation-in-the-
eu-pbDS0614240/ 

http://bookshop.europa.eu/en/children-s-involvement-in-criminal-civil-and-

available 

Data 

; 

at: 

85 

 
 
                                                            
individual children, groups of children and children as a group.  In addition to the main report204 and 
research  summary205,  deliverables  included  a  child-friendly  summary206,  and  a  report  for  each 
Member  State207,  analysing  its  particular  situation  and  pointing  to  good  practice.  A  resource 
catalogue208 of child participation tools, methodology and materials was also produced to facilitate 
efforts to ensure respect of the child's participation rights. 

The European Union's research programmes (FP7 and Horizon 2020) have been supporting research 
on  Children  and  Youth  participation  as  well  as  on  children  well-being209.These  projects  provide 
evidence  for  policy  making  but  also  examples  of  contribution  of  children  and  young  people  to 
research processes. As an example, the FP7 project MYWEB  – Measuring youth well-being - during 
2015 engaged directly with children and young people to explore their understandings of well-being, 
in  particular  to  inform  how  a  survey  might  best  approach  the  subject.  A  socio-demographically 
contrasting  sample  of  440  children  aged  from  9  to  18  were  included  in  semi-structured  interviews 
and focus groups. 

Further to the 2013 Recommendation on Investing in Children210, the European Commission issued 
Country-Specific  Recommendations  in  2015  to  14  Member  States)  relating  to  children,  covering, 
amongst others, education and skills and poverty and social inclusion.211  

In the context of the EU2020 Strategy and the European Semester in 2015, two EU Member States 
received  country-specific  recommendations  which  aim  to  improve  accessibility,  affordability  and 
quality of early childhood education and care. In addition, two Member States were invited to step 
up their efforts in the field of early school leaving; and six Member States received recommendations 
to improve social inclusion in education and to cater for the needs of the disadvantaged, including 
the Roma.  

Fostering generalised, equitable access to affordable high-quality early childhood education and care, 
especially for the disadvantaged, and taking forward the Quality Framework in this area, was one of 

204 Available at: http://bookshop.europa.eu/en/evaluation-of-legislation-policy-and-practice-of-child-
participation-in-the-european-union-eu--pbDS0514101/ 
205  Available at: http://bookshop.europa.eu/en/evaluation-of-legislation-policy-and-practice-of-child-
participation-in-the-eu-pbDS0614240/?CatalogCategoryID=cOwKABstC3oAAAEjeJEY4e5L 
206  Available at: http://bookshop.europa.eu/en/evaluation-of-children-s-participation-2012-2014-eu-study-
pbDS0714077/?CatalogCategoryID=cOwKABstC3oAAAEjeJEY4e5L 
207 Available at: http://bookshop.europa.eu/en/evaluation-of-legislation-policy-and-practice-of-child-
participation-in-the-european-union-eu--
pbDS0514101/related/?PublicationKey=DS0514101&CatalogCategoryID=cOwKABstC3oAAAEjeJEY4e5L 
208 Available at: http://bookshop.europa.eu/en/evaluation-of-legislation-policy-and-practice-of-child-
participation-in-the-eu-pbDS0614241/?CatalogCategoryID=cOwKABstC3oAAAEjeJEY4e5L 
209http://ec.europa.eu/research/social-
sciences/pdf/project_synopses/kina27205enc.pdf#view=fit&pagemode=none 
210 Commission Recommendation 2013/112/EU, Investing in children: breaking the cycle of disadvantage, OJ L 
59,  2.3.2013, p. 5. Available at: http://eur-lex.europa.eu/legal-content/EN/ALL/?uri=CELEX:32013H0112 
211 Available at: http://ec.europa.eu/europe2020/making-it-happen/country-specific-
recommendations/index_en.htm 

86 

 
 
                                                            
the concrete issues identified in the Joint Council-Commission report on the implementation of the 
"Education and Training 2020"212  framework on which cooperation should be promoted. 

 On 28 and 29 October 2015, the Commission organised the Safer Internet Forum 2015 with a theme 
of 'Breaking down barriers for a better internet'. The Forum, amongst others, focused on rights of the 
child online, with keynote speakers on the Convention on the rights of the child as well as a separate 
session on realising children's rights online.213  

The  protection  of  the  human  rights  of  children  in  migration  is  a  cross-cutting  priority  for  the 
Commission  and  the  EU  as  a  whole.  In  June  2015,  the  European  Migration  Network  (EMN)214 
published  its  study  on  policies,  practices  and  data  on  unaccompanied  children/minors  in  the  EU 
Member States and Norway. This study is an update of a previous EMN Study carried out in 2008-
2009  and  aims  to  provide  a  comparative  analysis  of  (Member)  States’  policies  and  practices  to 
safeguard  unaccompanied  children  in  the  EU,  from  the  moment  they  arrive  at  the  border  or  are 
intercepted on EU territory until a durable solution is found. A synthesis report215 with accompanying 
annexes216,  as  well  as  national  reports217  detailing  specific  (Member)  States’  policies  and  practices 
has  been  published.  Key  findings  and  messages  from  the  Study  are  also  available  in  a  short  EMN 
Inform.218 

In the 2015 Joint Report on the implementation of the ET 2020 strategic framework for cooperation 
in  education  and  training,  the  Commission  and  the  Member  States  advocated  effective  action  to 
provide  inclusive  education  and  training  for  all  learners,  focusing  on  disadvantaged  groups  such  as 
newly arrived migrants and people with a migration background219.  

at: 

Further 

available 

information 

http://ec.europa.eu/dgs/home-affairs/what-we-

212 2015 Joint Report of the Council and the Commission on the implementation of the strategic framework for 
European cooperation in education and training (ET 2020), OJ  C 417, 15.12.2015, p.25. 
213 https://www.betterinternetforkids.eu/web/portal/policy/safer-internet-forum 
214 
do/networks/european_migration_network/index_en.htm 
215 European Migration Network, Synthesis Report for the EMN Focussed Study 2014 Policies, practices and 
data on unaccompanied minors in the EU Member States and Norway, Synthesis Report, May 2015, Available 
at:  http://ec.europa.eu/dgs/home-affairs/what-we-
do/networks/european_migration_network/reports/docs/emn-
studies/emn_study_policies_practices_and_data_on_unaccompanied_minors_in_the_eu_member_states_and
_norway_synthesis_report_final_eu_2015.pdf  
216 European Migration Network, Synthesis Report for the EMN Focussed Study 2014 Policies, practices and 
data on unaccompanied minors in the EU Member States and Norway, Annexes to the Synthesis Report, May 
2015, Available at:  http://ec.europa.eu/dgs/home-affairs/what-we-
do/networks/european_migration_network/reports/docs/emn-
studies/emn_study_policies_practices_and_data_on_unaccompanied_minors_in_the_eu_member_states_and
_norway_annexes_to_the_synthesis_report_eu_2015.pdf 
217 Available at: http://ec.europa.eu/dgs/home-affairs/what-we-
do/networks/european_migration_network/reports/studies/results/unaccompanied-
minors/2014/index_en.htm 
218 Available at: http://ec.europa.eu/dgs/home-affairs/what-we-
do/networks/european_migration_network/reports/informs/results/unaccompanied-minors/index_en.htm 
219 See above under Article 23 

87 

 
 
 
                                                            
Case law 

In the Bradbrooke case220, on parental responsibility, the Court paid consideration to Article 24 of the 
Charter. The main question referred to the Court was to ascertain to what extent the provisions  of 
Regulation  (EC)  2201/2003  are  intended  to  govern  the  allocation  of  domestic  jurisdiction  between 
the  courts  of  the  Member  State  where  the  wrongfully  removed  child  was  habitually  resident,  in  a 
situation  where  a  non-return  order  has  been  adopted  in  the  Member  State  where  the  child  is 
present. For such situations Regulation "Brussels IIa" contains specific rules in Articles 11(6)-(8). The 
Court concluded that these special provisions of the Regulation do not preclude, as a general rule, a 
Member State from allocating to a specialised court the jurisdiction to examine questions of return 
or custody with respect to a child in the context of the procedure set out in those provisions, even 
where proceedings on the substance of parental responsibility with respect to the child have already, 
separately,  been  brought  before  a  court  or  tribunal.  But  the  Court  also  set  as  a  standard  the 
following:  "However,  it  must  be  ensured  that,  in  circumstances  such  as  those  of  the  main 
proceedings,  such  an  allocation  of  jurisdiction  is  compatible  with  the  child’s  fundamental  rights  as 
stated  in  Article  24  of  the  Charter  and,  in  particular,  with  the  objective  that  procedures  should  be 
expeditious".221 

The Bohez case222 concerns the issue of cross-border enforcement of a decision ordering a penalty 
payment  which  the  court  of  the  Member  State  of  origin  that  gave  judgment  on  the  merits  with 
regard to rights of access has imposed in order to ensure the effectiveness of those rights. The Court 
declared that such judicial decisions are to be recognized and enforced in another Member State in 
accordance with the rules of Regulation (EC) No 2201/2003 ("Brussels IIa"). In its judgment the Court 
underlined that "the importance of rights of access, which are essential for the protection of the right 
of a child to maintain a personal relationship and direct contact with both his or her parents, which is 
laid down in Article 24(3) of the Charter, prompted the EU legislature to provide for a specific scheme 
in order to facilitate enforcement of judgments concerning rights of access. That scheme is based on 
the principle of mutual trust between Member States in the fact that their respective national legal 
systems  are  capable  of  providing  an  equivalent  and  effective  protection  of  fundamental  rights, 
recognised at EU level, in particular, in the Charter (judgment in  Aguirre Zarraga223), and precludes 
any review of the judgment given by the court of the State of origin".  

Ruling of the Greek Council of State 

In Greece, the Council of State referred to Article 24 of the Charter in a case concerning the 
request for annulment of the decision of the Deputy Minister of Education on the merging of 
primary  schools,  even  though  the  case  did  not  fall  into  the  scope  of  application  of  the 
Charter. (Greece, Council of State, case no 239/2015 of 28 January 2015) 

220 CJEU, judgment of 9 January 2015 in Case C-498/14 PPU Bradbrooke. 
221 CJEU, judgment of 9 January 2015 in Case C-498/14 PPU Bradbrooke, para. 52. 
222 CJEU judgment of 9 September 2015 in Case C-4/14 Bohez. 
223 CJEU, judgment of 22 December 2010 in Case C–491/10 PPU, Joseba Andoni Aguirre Zarraga v Simone Pelz, 
para. 70 

88 

 
 
 
                                                            
Article 25 – The rights of the elderly 

Article 25 of the Charter provides that the European Union recognizes and respects the rights of the 
elderly  to  lead  a  life  of  dignity  and  independence  and  to  participate  in  social  and  cultural  life. 
Whereas most of the policies directly affecting the realisation of these rights are in the competences 
and  responsibilities  of  the  individual  member  states,  the  European  Union  is  committed  to  respect 
and promote these rights in relevant EU law, policies and programs. 

In  recent  years,  there  have  been  significant  advocacy  efforts  calling  for  enhanced  international 
thinking and action on the human rights of older persons. Various stakeholders have called for more 
visibility and increased use of international human rights standards to address the situation of older 
persons.  Multiple-discrimination  appears  as  an  essential  component  of  any  analysis,  particularly 
when  considering  that  age-related  discrimination  is  often  compounded  by  other  grounds  of 
discrimination, such as sex, socio-economic status, ethnicity, or health status. 

Legislation 

In order to cover equal treatment between persons irrespective of religion or belief, disability, age or 
sexual orientation also outside the labour market, the European Commission had in 2008 proposed 
the equal treatment directive. While supported by the European Parliament, the proposal is blocked 
in the Council because of subsidiarity and cost concerns expressed mainly by one Member State.  

Policy 

The  2015  Eurobarometer  survey  on  discrimination224  studied  perceptions  of  Europeans  towards 
discrimination  based  on  different  grounds  including  age.  The  survey  studied  i.a.  factors  that  are 
perceived to put applicants for a job at a disadvantage and found that (older) age (over 55) is most 
widely  seen  as  a  factor  that  could  put  job  applicants  at  a  disadvantage  compared  to  all  other 
discrimination grounds.   

Article 26 – 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.  

Legislation  

Special 

Eurobarometer 

224 
at: 
http://ec.europa.eu/COMMFrontOffice/PublicOpinion/index.cfm/Survey/getSurveyDetail/instruments/SPECIAL
/surveyKy/2077..  

“  Discrimination 

2015”  Available 

437 

the 

EU 

in 

in 

89 

 
 
 
 
  
 
                                                            
On  2  December,  the  European  Commission  adopted  the  European  Accessibility  Act225,  an  internal 
market proposal for a directive aiming to establish common accessibility requirements across the EU 
for  certain  key  products  and  services  and  using  the  same  requirements  to  further  describe 
accessibility  obligations  existing  in  other  EU  legislation.  The  European  Accessibility  Act  aims  at 
helping people with disabilities at EU level to participate fully in society and facilitate the work of the 
industry by having common EU rules on accessibility. It intends to use the internal market potential 
to increase the availability of better accessible products and services and at more competitive price 
for consumers, notably consumers with disabilities and older consumers. 

International Agreements 

In  2015,  the  UN  Committee  on  the  Rights  of  Persons  with  Disabilities  (the  UN  CRPD  Committee) 
examined for the first time how the EU has been implementing the UN Convention on the Rights of 
Persons with Disabilities (UNCRPD). The EU concluded the UNCRPD in 2010.226 

The  UNCRPD  is  the  first  international  legally  binding  human  rights  instrument  setting  minimum 
standards for a range of civil, political, social, economic and cultural rights for people with disabilities 
around the world.227 It is also the first human rights treaty to which the EU is a party. All 28 Member 
States have signed the UNCRPD and 25 of these have ratified it, while the remaining three (Finland, 
Ireland and the Netherlands) are advancing towards ratification.  

In June 2014, as a first step of this review process, the Commission had published a report to the UN 
on how the EU is giving effect to the UNCRPD in areas of EU competence, showing a tangible impact 
on the ground.228 To prepare for the second phase - the dialogue, the UN CRPD Committee issued a 
list of questions in April 2015229 and the Commission replied in writing in June 2015.230 

at: 

615 

and 

final, 

services, 

available 

2.12.2015, 

COM(2015) 

225 Proposal for a Directive of the European Parliament and of the Council on the approximation of the laws, 
regulations and administrative provisions  of the Member States as regards the accessibility requirements for 
http://eur-
products 
lex.europa.eu/resource.html?uri=cellar:202aa1e4-99a0-11e5-b3b7-
01aa75ed71a1.0021.02/DOC_1&format=PDF. 
226  Council  Decision  of  26  November  2009  concerning  the  conclusion,  by  the  European  Community,  of  the 
United  Nations  Convention  on  the  Rights  of  Persons  with  Disabilities,  2010/48/E,  OJ  L  23,  27.1.2010,  p.  35, 
available at: http://eur-lex.europa.eu/legal-content/EN/TXT/PDF/?uri=CELEX:32010D0048&rid=1. 
227 Available at: http://www.un.org/disabilities/. 
228 Commission Staff Working Document, Report on the implementation of the UN Convention on the Rights of 
Persons  with  Disabilities  (CRPD)  by  the  European  Union,  SWD(2014)  182  final,  5.6.2014  available  at: 
http://ec.europa.eu/justice/discrimination/files/swd_2014_182_en.pdf. 
229 List of issues in relation to the initial report of the European Union, CRPD/C/EU/Q/1, 17 April 2015 available 
at http://ec.europa.eu/social/BlobServlet?docId=13870&langId=en. 
230 Reply of the European Union to the list of issues in relation to the initial report of the European Union on 
the implementation of the UN Convention on the Rights of Persons with Disabilities, SWD(2015) 127 final, 
19.6.2015 available at: 
http://ec.europa.eu/social/main.jsp?langId=en&catId=1138&newsId=2242&furtherNews=yes  

90 

 
 
                                                            
During the dialogue meeting on 27 and 28 August in Geneva, the UN CRPD Committee engaged in 
question and answer sessions with the EU delegation led by the European Commission as focal point 
for the EU.  

issued 

its  concluding  observations  and  made 
On  3  September,  the  UN  CRPD  Committee 
recommendations  for  follow-up.  The  final  version  of  the  Concluding  Observations  was  adopted  in 
October  2015.231  Reporting  within  a  year 
implementation  of  three 
recommendations,  namely  the  adoption  of  the  European  Accessibility  Act;  the  update  of  the  EU 
declaration  of  competences  under  the  CRPD;  and  a  third  recommendation  on  removing  the 
Commission from the independent monitoring framework, and on ensuring that the framework has 
adequate  resources  to  perform  its  functions.  The  Committee  also  recommends  that  the  European 
Union  consider  the  establishment  of  an  inter-institutional  coordination  mechanism  and  the 
designation of focal points in each European Union institution, agency and body.  

is  required  on  the 

On 26 October, a meeting was organised with 15 EU level NGOs working on disability to discuss the 
concluding  observations.  The  NGOs  gave  concrete  suggestions  on  how  to  follow-up  the  UN 
recommendations. 

To  promote  the  implementation  of  the  UNCRPD  in  the  EU  and  the  Member  States,  the  European 
Commission  organised  on  29  April  2015  the  6th  Work  Forum  bringing  together  the  mechanisms 
responsible for implementation and monitoring at national and EU level as well as civil society and 
organisations  of  persons  with  disabilities.232  The  meeting  discussed  how  to  improve  synergies 
between the EU and the national level in the implementation of the UNCRPD focussing on statistics 
and  data  collection,  and  the  EU  Structural  and  Investment  Funds.  The  Forum  also  gave  an 
opportunity to civil society organisations to present their alternative reports to the UN and to make 
proposals for improvement. 

On 30 April the EU monitoring Framework for the UNCRPD233 hosted the third meeting with national 
monitoring  mechanisms  established  under  the  UNCRPD  in  the  Member  States.  These  mechanisms, 
required  by  the  UNCRPD,  are  responsible  for  promoting,  protecting  and  monitoring  the 
implementation  of  the  UN  Convention  at  national  level  in  the  countries  that  have  ratified  the 
UNCRPD.  They  can  take  various  forms,  such  as  national  equality  bodies,  Ombudspersons,  National 
Human  Rights  Institutions,  or  monitoring  committees  with  the  participation  of  representatives  of 
organisations concerned with the rights of persons with disabilities. 

The meeting discussed how to improve the synergies and the communication between the EU and 
national  level  for  an  effective  promotion,  protection  and  monitoring  of  the  rights  enshrined  in  the 
UNCRPD within the EU's sphere of activity. 

Policy  

231 UN, Concluding observations on the initial report of the European Union, CRPD/C/EU/CO/1, 2 October 2015. 
232 
http://ec.europa.eu/social/main.jsp?langId=en&catId=88&eventsId=1038&furtherEvents=yes  
233 Further information available at: http://ec.europa.eu/social/main.jsp?catId=1189&langId=en  

information 

available 

Further 

at: 

91 

 
 
                                                            
The overall framework for the implementation by the EU of its obligations under the UNCRPD is the 
European disability strategy 2010–2020.234 Its aim is to create a barrier-free Europe that allows for 
the full and equal participation of persons with disabilities in line with the UNCRPD and Article 26 of 
the Charter.  

On  22  December,  the  Commission  launched  a  public  consultation  on  the  mid-term  review  of  the 
European Disability Strategy 2010-2020 to gather opinions on what has been achieved so far in each 
of the eight main areas for action, the challenges faced by people with disabilities and how the EU 
should  address  them.  The  Commission  also  launched  a  public  consultation  using  "easy  to  read" 
language and targeted to persons with intellectual disabilities. 

Each  year,  the  European  Commission  raises  awareness  of  the  disability  challenges,  through  a 
conference  celebrating  the  International  Day  of  Persons  with  Disabilities  that  it  organises  with  the 
European Disability Forum.235 The 2015 conference on 7 and 8 December focused on children with 
disabilities and on inclusive education. The conference brought together a wide range of participants 
representing people with disabilities, disability rights organisations, policy-makers from the Member 
States,  social  partners,  service  providers,  disability  and  accessibility  experts  and  the  European 
institutions.  

FRA presented its new report on targeted violence and hostility against children with disabilities.236 
It includes data on legislative and policy instruments across the 28 EU Member States. It also looks at 
Member  States’  responses  to  such  violence  focusing  in  particular  on  good  practices  that  can  be 
shared.  

The European Commission in 2015 organised, in partnership with the European Disability Forum, the 
2016 Access City Award which recognises accessibility initiatives improving equal access to city life 
for people with disabilities.237 ON 8 December 2015 Milan (Italy) was awarded the 2016 Access City 
Award  not  only  because  of  its  excellent  and  consistent  accessibility  efforts,  but  also  for  its 
commitment to promote employment of people with disabilities and independent living. Wiesbaden 
(Germany), Toulouse (France), Vaasa (Finland) and Kaposvár (Hungary) were also awarded for their 
efforts to improve accessibility for people with disabilities and the elderly. 

As  announced  in  the  EU  Citizenship  Report  2013,  the  European  Commission  had  started  in  2013  a 
Project  Working  Group  with  Member  States  and  civil  society  organisations  to  develop  a  mutually 
recognised  EU  model  of  disability  card  that  would  facilitate  the  freedom  of  movement  of  persons 
with disabilities within the EU allowing those who travel to another EU country to be treated in the 
same way as nationals, when it comes to access to culture, tourism,  leisure, sports and transport. In 

234 Communication from the Commission to the European Parliament, the Council, the European Economic and 
Social  Committee  and  the  Committee  of  the  Regions,  European  Disability  Strategy  2010-2020:  A  Renewed 
Commitment  to  a  Barrier-Free  Europe,  COM(2010)  636  final,  15.11.2010,  available  at:  http://eur-
lex.europa.eu/LexUriServ/LexUriServ.do?uri=COM:2010:0636:FIN:en:PDF  
235 
http://ec.europa.eu/social/main.jsp?langld=en&catld=88&eventsld=1069&furtherEvents=yes 
236 Available at: http://fra.europa.eu/en/project/2012/children-disabilities-targeted-violence-and-hostility  
237 More information available at: http://ec.europa.eu/social/main.jsp?catId=1141&langId=en   

information 

available 

More 

at: 

92 

 
 
                                                            
July 2015 the Commission launched a call for proposals to support national projects on a mutually 
recognised European Disability Card and associated benefits.238 8 members (out of 17) of the Project 
Working Group participated in the call and were awarded the grant..239  

The  European  Commission  through  the  Rights,  Equality  and  Citizenship  (REC)  programme  (2014-
2020)240  has  made  available  for  2015-2017  up  to  EUR  3  million  each  year  to  support  the  running 
costs of EU-level NGOs promoting the rights of persons with disabilities. In 2015 a partnership was 
leading  EU-level  NGOs  representing  a  diversity  of  disabilities  and 
established  with  eight 
stakeholders.241 Their work programmes support the implementation and monitoring of the UNCRPD 
at  national  and  EU  level.  The  work  programmes  of  these  NGOs  addresses  a  wide  variety  of 
fundamental  rights  issues,  such  as  independent  living  and  the  transition  to  community-based 
services,  inclusive  education,  participation  in  policy-making,  accessibility  to  goods  and  services, 
equality  before  the  law  and  access  to  justice.242  In  addition,  2  other  EU-level  NGOs  working  on 
disability are supported from the EU Programme for Employment and Social Innovation (EaSI). 243  

Within the European Semester, the European Commission raised disability-related issues to Member 
States,  most  notably  in  the  fields  of  employment,  pension  reform  and  long-term  care.  A  disability 
perspective was included in most country analyses for 2015-2016. 

The  European  Academic  Network  of  European  Disability  experts,  funded  by  the  European 
Commission, published a report on the situation of persons with disabilities in accessing health care 
and related services and on their health condition, including country reports.244 It further published a 
report on the disability perspective of the European Semester, including country reports. 245  

As  regards  accessibility  of  audiovisual  media  services,  Article  7  of  the  Audiovisual  Media  Services 
Directive  (AVMSD)  encourages  provision  of  accessibility  services  to  people  with  visual  or  hearing 
disability.  The  European  Commission  regularly  monitors  transposition  and  implementation  of  this 
Article by Member States and has encouraged Member States and audiovisual regulatory authorities 
to transpose and enforce this provision. 

238 Available at: http://ec.europa.eu/social/main.jsp?catId=629&langId=en&callId=456&furtherCalls=yes  
239 Selected projects will be implemented in 2016-17 (duration of 18 months). First results will be presented 
during the 2016 European Day of Persons with Disabilities conference. 

   240  Regulation  (EU)  No  1381/2013  of  the  European  Parliament  and  of  the  Council  of  17  December  2013 
establishing a Rights, Equality and Citizenship Programme for the period 2014 to 2020 (‘REC Programme’), OJ L 
354, 28.12.2013, p. 62. 
241 Award decision available at: 
http://ec.europa.eu/justice/grants1/files/2014_spob_og_netw/award_decision_disabilities_en.pdf  
242  Call  for  proposals  JUST/2014/SPOB/OG/NETW  for  the  establishment  of  three-year  framework  partnership 
agreements  with 
at: 
http://ec.europa.eu/justice/grants1/calls/just_2014_spob_netw_en?htm. 
243 Call for proposals for the establishment of 4-year framework partnership agreements with EU-level NGO 
networks active in the promotion of social inclusion and poverty reduction or active in the promotion of 
microfinance and social enterprise finance at: 
http://ec.europa.eu/social/main.jsp?catId=629&langId=en&callId=383&furtherCalls=yes. 
244 Available at: http://www.disability-europe.net/theme/health . 
245 Available at: http://www.disability-europe.net/theme/eu2020. 

operating 

networks 

available 

EU-level 

grants 

2015, 

for 

& 

93 

 
 
                                                            
The  replies  to  the  2015  Public  Consultation  on  AVMSD  showed  that  the  views  on  whether  to 
introduce  an  explicit  obligation  of  accessibility  of  audiovisual  content  in  the  AVMSD  are  split.  The 
review of the AVMSD will explore the possibility to reinforce the current rules in alignment with the 
European Accessibility Act. 

The  EU's  7th  Framework  Programme  for  Research,  Technological  Development  and  Demonstration 
Activities (in particular Theme 8 - Social Sciences and the Humanities) financed a research project on 
"Making  Persons  with  Disabilities  Full  Citizens"  (DISCIT).  Ended  in  January  2016,  it  provides  policy 
lessons and recommendations to support active citizenship for persons with disabilities.  246 The final 
conferences  held  in  Brussels  in  November  2015  presented  the  main  findings  and  discussed  the 
results and their practical implications with a wide range of stakeholders. Results are summarized in 
working papers and policy briefs addressing several specific issues.247 

The Union Civil Protection Mechanism also caters for the rights of persons with disabilities. In March 
2015,  the  Council  adopted,  in  close  consultation  with  the  Commission,  Conclusions  on  disability-
inclusive  disaster  management.248  The  Conclusions  call  for  measures  for  addressing  the  needs  of 
people  with  disabilities  in  case  of  disaster,  for  strengthening  their  resilience  to  disasters  and  self-
reliance as well as for raising public awareness regarding the action to be taken to assist persons with 
disabilities in the case of a disaster. The needs of people with disabilities are considered among the 
main priorities of the Union Civil Protection Mechanism activities under its Annual Work Programme 
2016.249  

Enhancing  access  to  quality  and 
inclusive  education  and  training  for  young  people  with 
disabilities/special  needs,  is  a  priority  issue  for  European  cooperation  agreed  between  the  Council 
and the Commission in their 2015 Joint Report on the implementation of the Education and Training 
2020 strategic framework.250 

In  2015  the  Commission  continued  its  cooperation  with  (and  financial  support  to)  the  European 
Agency  for  Special  Needs  and  Inclusive  Education.  The  Agency  works  closely  with  education 
ministries  and  supports  policy  reform  with  evidence  and  information  about  inclusive  education 
across Europe, recommendations for policy and practice and tools to monitor progress. 

In  2015,  the  Erasmus+  programme  provided  specific  provisions  for  the  participation  of  disabled 
people  in  individual  learning  mobility  activities. The  programme  also  supported  transnational 
collaborative projects aiming to improve aspects of inclusive education policy and practice. 

246https://blogg.hioa.no/discit. 
247 https://blogg.hioa.no/discit/publications/. 
248  Council  of  the  European  Union,  Draft  Council  conclusions  on  disability-inclusive  disaster  management  – 
at: 
Adoption, 
http://register.consilium.europa.eu/doc/srv?l=EN&f=ST%206450%202015%20INIT 
249 In particular, the Commission foresees to organise in 2016 Civil Protection Mechanism exercises and to co-
finance preparedness projects taking into consideration the needs of persons with disabilities. 
250 Adopted on 23 November 2015. See: http://europa.eu/rapid/press-release_IP-15-5568_en.htm 

February 

available 

2015, 

27 

94 

 
 
 
                                                            
95 

 
 
 
 
96 

 
 
 
 
 
 
Solidarity 

In  the  field  of  consumer  protection,  the  new  Directive  on  package  travel  and  linked  travel 
arrangements  brings  the  EU  package  travel  legislation  into  the  digital  age  while  the  Directive  on 
payment  services  in  the  internal  market  opens  the  EU  payment  market  to  new  service  providers 
offering  thereby more  choice  for  consumers  and  businesses.  Moreover,  the  Insurance  Distribution 
Directive imposes more stringent rules on all providers of insurance products, so that consumers are 
better informed about the different insurance products available on the market and obtain products 
that really meet their demands and needs. 

The Commission adopted in 2015 two proposals dealing with the supply of the digital content and, 
respectively,  the  online  and  other  distance  sales  of  goods.  The  proposed  rules  aim  to  fully 
harmonise  key  contractual  rights  and  provide  consumers  a  very  high  level  of  consumer  protection 
when  buying  online.  Finally,  the  Commission  adopted  a  proposal  for  a  Regulation  on  energy 
efficiency  labelling  which  is  designed  to  promote  consumers'  information  by  helping  them 
distinguish the most efficient products more easily. 

In 2015, the European Ombudsman, following the opening of its own initiative inquiry, has called on 
the  Commission  to  be  transparent  about  its  meetings  with  the  tobacco  industry  and  to  publish 
online all  meetings  with tobacco  lobbyists,  or  their  legal representatives,  as  well as  the minutes  of 
those meetings. 

The case  Fenoll concerned the interpretation of  the Working Time Directive  and the  EU Charter of 
Fundamental  Rights  on  a  worker's  right  to  a  minimum  four  weeks'  paid  annual  leave.  The  CJEU 
established  that  a  person  performing  activities  within  a  work  rehabilitation  centre  may  qualify  as 
'worker' within the meaning of the Directive.  

97 

 
 
 
Title IV 

Solidarity 

Article  27  –  Workers'  right  to  information  and  consultation  within  the 
undertaking 

The  Charter  in  Article  27  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. 

Legislation 

On  6  October  2015  the  EU  legislators  adopted  Directive  2015/1794251  including  seafaring  workers 
within the personal scope of application of a number of labour law Directives (the European Works 
Council Directive252, the insolvency Directive253, the collective redundancies Directive254, the transfer 
of  undertakings  Directive255  and  the  information  and  consultation  Directive256).  Seafarers  could 
previously be excluded from the scope of application of those Directives. The aim of the Directive is 
in  particular  to  ensure  that  seafaring  workers  enjoy  rights  to  information  and  consultation  (as 
protected under Article 27 of the Charter) in similar ways as the other workers. The Directive must 
respect  and  be  implemented  in  accordance  with  the  relevant  rights  enshrined  in  the  Charter  and 
cannot  lead  to  a  diminution  in  the  protection  of  seafaring  workers.  Member  States  are  under  an 
obligation to comply with this Directive by 10 October 2017.  

Ruling of the Romanian Constitutional Court 

251  Directive  2015/1794/EU  of  the  European  Parliament  and  of  the  Council  of  6  October  2015  amending 
Directives  2008/94/EC,  2009/38/EC  and  2002/14/EC  of  the  European  Parliament  and  of  the  Council,  and 
Council Directives 98/59/EC and 2001/23/EC, as regards seafarers, OJ L 263 of 8.10.2015, p. 1. 
252 Directive 2009/38/EC 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. 
253 Directive 2008/94/EC on the protection of employees in the event of the insolvency of their employer, OJ L 
283, 28.10.2008, p. 36. 
254  Directive  98/59/EC  on  the  approximation  of  the  laws  of  the  Member  States  relating  to  collective 
redundancies, OJ L 225, 12.8.1998, p. 16. 
255 Directive 2001/23/EC on the approximation of the laws of the Member States relating to the safeguarding of 
employees’ rights in the event of transfers of undertakings, businesses or parts of undertakings or businesses, 
OJ L 82, 22.3.2001, p. 16. 
256 Directive 2002/14/EC on the establishing of a general framework for informing and consulting employees in 
the European Community, OJ L 80, 23.3.2002, p. 29. 

98 

 
 
 
 
 
                                                            
The Romanian law on the insolvency procedure allowed exceptionally for dismissals without 
the  need  to  undergo  the  collective  redundancies  procedure,  whereby  employees  would 
receive  only  15  days'  notice.    The  Constitutional  Court  declared  the  bypassing  of  the 
collective  redundancies  procedure  unconstitutional  but  accepted  the  15  days'  notice.  The 
Court  referred  explicitly  to  Article  27  of  the  Charter  on  workers'  right  to  information  and 
consultation within the undertaking. (Romania, Constitutional Court, case no 64/2015 of 24 
February 2015). 

Article 28 – Right of collective bargaining and action 

Article  28  of  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  level.257  Member  States 
remain bound by the provisions of the Charter, including the right to strike, in instances where they 
implement EU law.  

Article 29 – Right of access to placement services 

According to Article 29 of the Charter everyone has the right of access to a free placement service.  

This Article is based on Article 1(3) of the European Social Charter and point 13 of the Community 
Charter of the Fundamental Social Rights of Workers. 

Article 30 – Protection in the event of unjustified dismissal 

According  to  Article  30  every  worker  has  the  right  to  protection  against  unjustified  dismissal,  in 
accordance with Union law and national laws and  practices. This Article draws on Article 24 of the 
revised  Social  Charter.  It  is  given  effect  by  means  of  Directive  2001/23/EC  on  the  safeguarding  of 
employees'  rights  in  the  event  of  transfers  of  undertakings,  and  Directive  2008/94/EC  on  the 
protection of employees in the event of the insolvency of their employer, as amended by Directive 
2002/74/EC. 

257 Article 153(5) of the Treaty on the Functioning of the EU (TFEU) stipulates that it does not apply to the right 
to strike. 

99 

 
 
 
 
 
 
 
 
                                                            
Article 31 – Fair and just working conditions 

Article  31  guarantees  that  every  worker  has  the  right  to  working  conditions  which  respect  their 
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 work.  

Legislation 

Discussions by the EU institutions continued in 2015 on the Commission proposal for a decision of 
the  European  Parliament  and  of  the  Council  on  establishing  a  European  platform  to  enhance 
cooperation in the prevention and deterrence of undeclared work.258 The Parliament's Employment 
Committee adopted its report on the proposal in May 2015. The Council and Parliament are currently 
discussing  the  proposal.  Undeclared  work  has  negative  impacts  on  employment,  productivity  and 
working  conditions,  skills  development  and  lifelong  learning.  Preventing  and  deterring  undeclared 
work  contributes  to  better  enforcement  of  EU  and  national  law,  including  as  regards  fundamental 
rights in the areas of employment, labour law, health and safety and coordination of national social 
security  systems.  The  proposal  foresees  to  improve  cooperation  at  EU  level  between  the  Member 
States in tackling undeclared work more effectively. The objective is to bring together Member State 
enforcement  bodies,  such  as  the  labour  inspectorates  and  the  social  security,  tax  and  migration 
authorities.  

Directive  2014/112/EU259  on  working  time  for  mobile  workers  in  commercial  inland  waterway 
transport,  which  was  adopted  by  the  Council  on  11  December  2014,  entered  into  force  in  January 
2015.  The  Directive  implements  the  EU  social  partner  agreement  concluded  on  the  same  issue.  It 
contains specific working time rules for mobile workers working on crafts in the EU Member States in 
commercial  inland  waterway  transport.  This  will  provide  flexibility  for  the  operators  while  at  the 
same time maintaining the protection of health and safety for workers. The Member States will need 
to transpose the Directive in their national legislation before 31 December 2016.  

Policy  

In  2015,  the  Commission  has  initiated  an  evaluation  of  the  social  legislation  in  the  area  of  road 
transport. Article 31 on fair and just working  conditions is of particular relevance in the context of 
the  social  legislation  in  this  area  as  the  social  legislation  relates  in  particular  to  limits  of  working 
time260  and  driving  and  rest  time.  The  objectives  of  the  social  legislation  in  road  transport  are:  (1) 
improving working conditions of drivers, (2) enhancing road safety by averting driver's fatigue and (3) 

258 Proposal for a decision of the European Parliament and of the Council on establishing a European platform 
to enhance cooperation in the prevention and deterrence of undeclared work, COM(2014) 221 final, 9.4.2014 , 
available at: http:// eur-lex.europa.eu/legal-content/EN/TXT/?uri=CELEX:52014PC0221   
259  Council  Directive  2014/112/EU  of  19  December  2014  implementing  the  European  Agreement  concerning 
certain aspects of the organisation of working time in inland waterway transport, concluded by the European 
Barge Union (EBU), the European Skippers Organisation (ESO) and the European Transport Workers' Federation 
(ETF), OJ L 367 of 23.12.2014, p.86. 
260 Directive 2002/15/EC of the European Parliament and of the Council of 11 March 2002 on the organisation 
of the working time of persons performing mobile road transport activities (OJ L 80, 23.3.2002, p. 35). 

100 

 
 
 
                                                            
ensuring  undistorted  competition  among  companies.261  The  Charter,  under  its  Article  52,  also  sets 
the  conditions  under  which  limitations  to  fundamental  rights  (here  the  right  to  limitation  of 
maximum working hours and to daily and weekly rest periods) may be allowed. The interactions with 
the Charter, among other aspects, are currently analysed in the framework of the ex-post evaluation 
of the social legislation in road transport and will be fully taken into account for the upcoming impact 
assessment  for  the  enhancement  of  social  rules.  Furthermore,  the  Commission  encourages  and 
supports the dialogue between the EU social partners in the road transport sector.  

Case law  

The case Fenoll262 concerned the interpretation of the Working Time Directive 2003/88/EC and the 
EU Charter of Fundamental Rights on a worker's right to a minimum four weeks' paid annual leave, in 
the context of a person placed in a work rehabilitation centre. The referring court raised questions as 
concerns  the  issue  of  who  constitutes  a  'worker'  for  the  purposes  of  Article  7  of  Directive 
2003/88/EC263 and of Article 31 of the Charter. It also inquired whether Article 31 of the Charter can 
be relied on directly in proceedings between individuals. The CJEU stressed that for the purposes of 
the application of Directive 2003/88, the term 'worker' may not be interpreted according to national 
law but has its own independent meaning in EU law. It concluded that a person performing activities 
within  a  work  rehabilitation  centre  may  qualify  as  'worker'  within  the  meaning  of  Article  7  of 
Directive 2003/88 and Article 31(2) of the Charter. The Court also considered that Article 31(2) of the 
Charter  could  not  apply  to  the  specific  case  rationae  temporis,  the  case  at  stake  referring  to  the 
period between 2003 and 2005 and the Charter having come into force in 2009.  

The case Sähköalojen ammattiliitto ry264 concerned locus standi, and in particular the compatibility 
with  relevant  provisions  of  the  Posted  Workers  Directive265,  read  in  the  light  of  Article  47  of  the 
Charter266,  of  national  rules  of  the  Member  State  of  the  seat  of  the  undertaking  barring  a  trade 
union from bringing an action before a court of the host Member State where workers are posted, 
in order to recover for the posted workers minimum wage pay claims. The Court stated that under 
Article 31(2)  of  the  Charter,  every  worker  has  the  right  to  an  annual  period  of  paid  leave. 
Accordingly, the Directive must be interpreted as meaning that the minimum holiday pay which the 
posted  worker  must  receive  for  the  minimum  period  of  paid  annual  leave  corresponds  to  the 
minimum wage to which he is entitled during the reference period.  

261  Regulation  (EC)  No  561/2006  of  the  European  parliament  and  of  the  Council  of  15  March  2006  on  the 
harmonisation of certain social legislation relating to road transport and amending Council Regulations (EEC) 
No 3821/85 and (EC) No 2135/98 and repealing Council Regulation (EEC) No 3820/85 (OJ L 102, 11.4.2006, p.1). 
262  CJEU,  judgment  of  26  March  2015  in  Case  C-316/13,  Gérard  Fenoll  v  Centre  d’aide  par  le  travail «La 
Jouvene», Association de parents et d’amis de personnes handicapées mentales (APEI) d’Avignon. 
263 Directive 2003/88/EC of the European Parliament and of the Council of 4 November 2003 concerning certain 
aspects of the organisation of working time, OJ L 299, 18.11.2003, p.1. 

264  CJEU  judgement  of  12  February  2015  in  Case  C‑396/13,  Sähköalojen  ammattiliitto  ry  v  Elektrobudowa 
Spółka Akcyjna. 
265  Directive  96/71/EC  of  the  European  Parliament  and  of  the  Council  of  16  December  1996  concerning  the 
posting of workers in the framework of the provision of services, OJ L 018 , 21.01.1997, p. 1. 
266 The case is discussed more in detail under Article 12 on freedom of assembly and association and under 
Article 47 for the aspects related to the right to an effective remedy and a fair trial. 

101 

 
 
 
                                                            
Article  32  –  Prohibition of  child  labour and  protection of  young  people 
at work 

Article  32  states  that  the  employment  of  children  is  prohibited.  The  minimum  age  of  admission  to 
employment may not be lower than the minimum school-leaving age, without prejudice to such rules 
as  may  be  more  favourable  to  young  people  and  except  for  limited  derogations.  Young  people 
admitted  to  work must have working conditions  appropriate to  their  age  and  be protected against 
economic exploitation and any work likely to harm their safety, health or physical, mental, moral or 
social development or to interfere with their education. 

This Article is based on Directive 94/33/EC on the protection of young people at work, Article 7 of the 
European  Social  Charter  and  points  20  to  23  of  the  Community  Charter  of  the  Fundamental  Social 
Rights of Workers. 

Article 33 – Family and professional life 

Article  33  stipulates  that  the  family  shall  enjoy  legal,  economic  and  social  protection.  To  reconcile 
family and professional life, everyone shall have the right to protection from dismissal for a reason 
connected with maternity and the right to paid maternity leave and to parental leave following the 
birth or adoption of a child. 

Policy  

The  Commission  has  published  in  2015  a  Roadmap267  setting  out  policy  options  to  address  the 
challenges  of  work-life  balance  faced  by  working  families.  This  represents  a  new  start  after  the 
Commission previously confirmed it would withdraw the 2008 draft Maternity Leave Directive, given 
the  lack  of  progress  by  the  co-legislators  and  despite  the  Commission's  continuous  and  intensive 
efforts to facilitate an agreement. The new initiative aims to allow parents with children or workers 
with dependent relatives  to  better  balance caring and professional  responsibilities,  by  modernising 
the current EU legal and policy framework and adapting it to today's labour market. This would also 
help improve labour market participation of both parents. The Roadmap outlines the Commission's 
ideas for a fresh approach, setting out a range of policy options to achieve these objectives. 

Case law 

In its judgment of 16 July 2015 in the case C-222/14 Maïstrellis268, the Court referred to Article 33(2) 
of the Charter to interpret the provisions of the Parental Leave Directive (96/34/EC) and  the Gender 
Equality (Recast) Directive (2006/54/EC). 

Observing  that  the  Framework  Agreement  implemented  through  the  Parental  Leave  Directive  is 
designed  to  facilitate  the  reconciliation  of  parental  and  professional  responsibilities  for  working 

267 Available at: http://ec.europa.eu/smart-regulation/roadmaps/docs/2015_just_xxx_maternity_leave.en.pdf  
268 CJEU judgement of 16 July 2015 in Case C-222/14, Konstantinos Maïstrellis v Ypourgos Dikaiosynis; see also 
above under Article 24. 

102 

 
 
 
 
 
                                                            
parents,  the  Court  concluded  that  the  right  to  parental  leave  was  included  in  Article 33(2)  of  the 
Charter which provides that, in order to reconcile family and professional life, everyone has the right, 
inter alia, to parental leave following the birth or adoption of a child. As a result of the above, each 
parent is entitled to parental leave, which means that Member States cannot adopt provisions – such 
as  the  one  at  issue  in  the  question  referred  to  the  Court  -  under  which  a  father  exercising  the 
profession of civil servant is not entitled to parental leave in a situation where his wife does not work 
or exercise any profession. 

Article 34 – Social security and social assistance 

Article 34 of 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.  

Legislation 

In  his  State  of  the  Union  address  in  the  European  Parliament  on  9  September  2015,  Commission 
President  Juncker  announced  the  establishment  of  a  "European  Pillar  of  Social  Rights".  Taking  into 
account  the  changing  realities  of  the  world  of  work,  it  could  serve  as  a  compass  for  the  renewed 
convergence within the euro area. The European pillar of social rights should complement what has 
already  been  achieved  when  it  comes  to  the  protection  of  workers  in  the  EU  and  social  partners 
should  play  a  central  role  in  this  process.  This  initiative  would  begin  within  the  euro  area,  while 
allowing other EU Member States to join in if they wanted to do so.269 

On  6  October  2015,  the  European  Commission  held  an  orientation  debate  on  the  economic  and 
social dimension of the Single Market and announced a new "European pillar of social rights". The 
Commissioners  discussed  ways  to  strengthen  Europe's  social  dimension  through  an  integrated 
approach,  by  modernising  existing  legislation  and  considering  new  measures  in  support  of  greater 
convergence over time. 270 

Article 35 – Health care 

Article 35 of the Charter provides 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.  

269More information available at: http://ec.europa.eu/news/2015/09/20150909_2_en.htm    
270  This  initiative  should  come  to  fruition  during  the  first  Semester  of  2016.  More  information  available  at: 
http://europa.eu/rapid/press-release_IP-15-5763_en.htm    

103 

 
 
 
 
 
                                                            
Legislation 

As  regards  child  health,  the  Regulation  (EU)  No  609/2013  on  food  intended  for  infants  and  young 
children, food for special medical purposes and total diet replacement for weight control271 requires 
the Commission to lay down specific requirements for infant formula and follow-on formula. There is 
scientific  consensus  that  breast  milk  is  the  preferred  food  for  healthy  infants.  A  draft  Commission 
delegated  Regulation  supplementing  Regulation  (EU)  No  609/2013  adopted  in  2015  as  regards  the 
specific compositional and information requirements for infant formula and follow-on formula and as 
regards requirements on information relating to infant and young child feeding272 lays down specific 
restrictions  on  advertising  and  other  marketing  techniques  for  infant  formula  and  specific 
requirements on information on infant and young child feeding in order to ensure an adequate use 
of  the  products  in  question  and  not  undermine  the  promotion  of  breastfeeding.  In  so  doing,  the 
Commission strikes a fair  balance between the freedom of expression and information (recognised 
by Article 11 of the Charter) and the freedom to conduct a business (recognised by Article 16 of the 
Charter) on one side, and the need to protect the rights of the child (enshrined in Article 24 of the 
Charter)  and  to  ensure  a  high  level  of  human  health  protection  (enshrined  in  Article  35  of  the 
Charter) in its policies, on the other.  

Concerning  tobacco  packaging,  in  the  context  of  the  notification  procedure  under  Directive 
98/34/EC273  pursuant  to  which  Member  States  must  inform  the  Commission  of  any  draft  technical 
regulation before its adoption, on 7 May 2015 the French authorities notified the Commission of a 
draft  Decree  on  the  conditions  of  neutrality  and  standardisation  for  the  packaging  and  paper  of 
cigarettes  and  rolling  tobacco  (‘plain  packaging’  Decree)  –  notification  2015/241/F.274  The 
Commission, after examination of the proposal and considering that the French draft was legitimate, 
proportionate and suitable to attain the public health objectives pursued did not deliver any reaction 
objecting to  the envisaged legislation.  This  position  is  consistent  with the Commission’s  position  in 
similar  notifications 
in  2014  on  standardised  tobacco  packaging  from  Ireland  (notification 
2014/277/IRL) and the United Kingdom (notification 2014/427/UK).  

271  Regulation  (EU)  No  609/2013  of  the  European  Parliament  and  of  the  Council  of  12  June  2013  on  food 
intended  for  infants  and  young  children,  food  for  special  medical  purposes,  and  total  diet  replacement  for 
weight  control  and  repealing  Council  Directive  92/52/EEC,  Commission  Directives  96/8/EC,  1999/21/EC, 
2006/125/EC  and  2006/141/EC,  Directive  2009/39/EC  of  the  European  Parliament  and  of  the  Council  and 
Commission Regulations (EC) No 41/2009 and (EC) No 953/2009, OJ L 181, 29.6.2013, p. 35. 
272  A  Commission  delegated  regulation  supplementing  Regulation  (EU)  No  609/2013  of  the  European 
Parliament  and  of  the  Council  as  regards  the  specific  compositional  and  information  requirements  for  infant 
formula and follow-on formula and as regards requirements on information relating to infant and young child 
feeding 
at:. 
http://ec.europa.eu/transparency/regdoc/rep/3/2015/EN/3-2015-6478-EN-F1-1.PDF  
273  Directive 98/34/EC of the European Parliament and of the Council of 22 June 1998 laying down a procedure 
for the provision of information in the field of technical standards and regulations and of rules on Information 
Society services, OJ L 204, 21.7.1998, p. 37. 
274Available 
databases/tris/en/search/?trisaction=search.detail&year=2015&num=241 

http://ec.europa.eu/growth/tools-

25.9.2015, 

available 

Brussels, 

C(2015) 

6478 

final, 

at: 

104 

 
 
                                                            
In  the  area  of  nutrition  and  health  claims,  during  2015,  the  Commission  has  adopted  several 
implementing  Regulations  based  on  the  principles  laid  down  in  Regulation  (EC)  No  1924/2006275 
which  set  up  the  framework  authorising  claims  that  are  scientifically  substantiated  and  not 
ambiguous or misleading for consumers.276  

Policy   

In  response  to  the  high  influx  of  refugees  and  migrants,  the  Commission  has  amended  its  annual 
work  plan  for  2015  under  the  3rd  EU  Health  Programme  (2014-2020)277  to  help  address  health 
related  issues.  A  direct  grant  was  given  to  the  International  Organisation  for  Migration  to  support 
Member  States  under  particular  migratory  pressure  in  their  response  to  health  related  challenges. 
This  action  will  contribute  to  improved  capacity  of  EU  Member  States  under  particular  migratory 
pressure to help address health-related issues of arriving migrants, while responding to cross-border 
health  threat,  in  particular  at  designated  hotspots  and  reception  facilities  for  refugees  and  other 
migrants.  

The EU Health Programme (2014-2020) is also funding three other related projects. The project ‘The 
European Refugees - Human Movement and Advisory Network’ aims at  enhancing the capacity of EU 
Member States accepting migrants and refugees to address their health needs, safeguard them from 
risks,  and  minimize  cross-border  health  risks.  This  initiative  will  focus  on  addressing  both  the  early 
arrival period and longer-term settlement of refugees in European host countries.  

The  project  ‘Supporting  health  coordination,  assessments,  planning,  access  to  health  care  and 
capacity building in Member States under particular migratory pressure’ aims to support EU Member 
States  under  particular  migratory  pressure  in  their  response  to  health  related  challenges.  Target 
countries are Bulgaria, Croatia, Greece, Hungary, Italy, Romania, Slovakia, Slovenia (first arrival and 
transit  countries);  Austria,  Belgium,  Denmark,  France,  Germany,  Malta,  Sweden,  The  Netherlands 
(traditional  destination  countries);  and  Portugal,  Poland,  Spain  (new  destination  countries).  The 
ultimate beneficiaries are registered and unregistered refugees asylum seekers and other migrants, 
while direct beneficiaries are the health systems of each EU MS and their health workers.  

275  Regulation  (EC)  No  1924/2006  of  the  European  Parliament  and  of  the  Council  of  20  December  2006  on 
nutrition and health claims made on foods, OJ L 404, 30.12.2006, p. 9. 
276 Regulation (EC) No 2015/7 of 6 January 2015 authorising a health claim made on foods, other than those 
referring to the reduction of disease risk and to children's development and health and amending Regulation 
(EU)  No  432/2012,  OJ  L  3,  7.1.2015,  p.3;  Commission  Regulation  (EU)  2015/8  of  6  January  2015  refusing  to 
authorise certain health claims made on foods, other than those referring to the reduction of disease risk and 
to children's development and health, OJ L 3, 7.1.2015, p. 6; Commission Regulation (EU) 2015/391 of 9 March 
2015 refusing to authorise certain health claims made on foods and referring to children's development and 
health, OJ L 65, 10.3.2015, p.15; Commission Regulation (EU) 2015/402 of 11 March 2015 refusing to authorise 
certain  health  claims  made  on  foods,  other  than  those  referring  to  the  reduction  of  disease  risk  and  to 
children's development and health, OJ L 67, 12.3.2015, p. 1. 
277  Regulation  (EU)  No  282/2014  of  the  European  Parliament  and  of  the  Council  of  11  March  2014  on  the 
establishment  of  a  third  Programme  for  the  Union's  action  in  the  field  of  health  (2014-2020)  and  repealing 
plan: 
Decision  No 
http://ec.europa.eu/health/programme/events/adoption_workplan_2015_en.htm). 

1350/2007/EC,  OJ 

2015  work 

21.3.2014, 

(see 

86, 

p. 

1. 

L 

105 

 
 
                                                            
 
 
The project ‘8 NGOs for migrants/refugees' health needs in 11 countries’ supports NGOs from which 
will  support  the  health  authorities  of  11  EU  Member  States  in  providing  adequate  and  accessible 
health  services  to  newly  arrived  migrants  with  a  specific  focus  on children,  unaccompanied minors 
and pregnant women.   

Case law 

On 29 April 2015, the Court of Justice issued a preliminary ruling regarding a French Decree which 
provided a permanent contraindication to blood donation for men who had sexual relations with 
other  men.278  The  French  law  was  based  on  a  high  prevalence  of  HIV  infections  in  this  group  of 
potential  donors  in  France  and  the  high  risk  of  acquiring  severe  infectious  diseases  that  can  be 
transmitted by blood.279 

On 23 December 2015, the Court of Justice delivered a preliminary ruling280 requested by a UK court 
on  the  compatibility  with  EU  law  of  national  legislation  imposing  a  minimum  retail  price  of 
alcoholic  beverages  to  tackle  health  harm  caused  by  excessive  alcohol  consumption,  in  particular 
the  consumption  of  drinks  that  are  high  in  alcohol  content  and  sold  relatively  cheaply.  The  Court 
considered under which circumstance the introduction of minimum price for a unit of alcohol could 
be justified on the grounds of protection of health and life of humans as stated in Article 35 of the 
TFEU.   

The Advocate General delivered opinions281 in 2015 on a number of cases that were referred for a 
preliminary ruling and which concerned fundamental rights in the context of health protection. Two 
cases  concerned  the  implementation  of  the  Tobacco  Products  Directive  2014/40/EU.282  The  first 
case concerned the interpretation and validity, in whole or in part, of the Tobacco Products Directive 
2014/40/EU.283 The referring court posed a number of questions, inter alia, regarding the validity  of 
the legal basis of the Directive (Article 114 TFEU), the proportionality of its provisions and respect of 
fundamental  rights,  in particular  the  ban  on  non-misleading  advertising and  the compliance  of  this 
prohibition with the freedom of expression (Article 11 of the Charter). The second case concerns the 
validity  of  Article  20  of  the  Tobacco  Products  Directive  2014/40/UE,  which  regulates  electronic 
cigarettes  and  imposes  certain  restrictions  on  their  marketing.284  The  question  referred  is  whether 
this  Article  infringes  the  rights  of  manufacturers  or  retailers  under  Articles 16  and/or  17  of  the 

278 CJEU, judgement of 29 April 2015 in Case C-528/13 Geoffrey Léger v Ministre des affaires sociales et de la 
santé (Blood donation). 
279 The case is discussed above under Article 20 on non-discrimination, section 4. Fight against homophobia. 
280 CJEU, judgement of 8 July 2014 in Case C-333/14, Scotch Whisky Association and Others v Lord Advocate. 

281 Opinion of Advocate General Kokott delivered on 23 December 2015 (1), Case C‑547/14, Philip Morris 
Brands SARL and Others; Opinion of Advocate General Kokott delivered on 23 December 2015 (1); Case C‑
477/14, Pillbox 38 (UK) Limited. 
282 Directive 2014/40/EU of the European Parliament and of the Council of 3 April 2014 on the approximation 
of  the  laws,  regulations  and  administrative  provisions  of  the  Member  States  concerning  the  manufacture, 
presentation  and  sale  of  tobacco  and  related  products  and  repealing  Directive  2001/37/EC,  OJ  L  127, 
29.4.2014, p. 1. 
283 CJEU, judgement of 1st December 2014 in Case C-547/14, Philip Morris Brands SARL and Others. 
284 CJEU, judgement of 23 December 2014 in Case C-477/14, Pillbox 38(UK) Limited. 

106 

 
 
                                                            
Charter. In her Opinions, the Advocate General referred to Article 35 of the Charter and noted that 
this case (and parallel cases on this subject before the Court) concerns the extent to which the EU 
objectives  regarding  a  high  level  of  human  health  protection  justifies  certain  restrictions  in  the 
internal market.285 In particular, the AG found that the legal basis of the Directive - Article 114 TFEU -  
cannot  be  called  into  question  solely  because  the  Directive  also  pursues  a  high  level  of  health 
protection  which  is  consistent  with  the  EU  objectives:  in  respect  of  various  restrictions  in  the 
Directive,  the  AG  stressed  that  a  high  level  of  health  protection  justified  such  restrictions  or 
prohibitions,  the  protection  of  human  health  has  considerably  greater  importance  in  the  value 
system under EU law than economic interests and that certain economic interests must be secondary 
to the protection of human health.  

Article 36 – Access to services of general economic interest 

Article  36  of  the  Charter  provides  that  the  Union  recognises  and  respects  access  to  services  of 
general  economic  interest  as  provided  for  in  national  laws  and  practices,  in  accordance  with  the 
Treaties, in order to promote the social and territorial cohesion of the Union.  

Reference to services of general economic interest (SGEI) is also made in Articles 14 and 106 TFEU. 
Protocol  n.  26  TFEU  refers  to  the  broader  notion  of  services  of  general  interest.  No  definition  is 
provided in the EU Treaties or in secondary EU law. In its Communication on A Quality Framework for 
Services of General Interest in Europe286, the Commission stated: 

"SGEI are  economic activities  which  deliver  outcomes  in the overall  public good that would not  be 
supplied  (or  would  be  supplied  under  different  conditions  in  terms  of  quality,  safety,  affordability, 
equal  treatment  or  universal  access)  by  the  market  without  public  intervention.  The  PSO  [public 
service obligation] is imposed on the provider by way of an entrustment and on the basis of a general 
interest criterion which ensures that the service is provided under conditions allowing it to fulfil its 
mission." 

Policy 

The communication on A Framework Strategy for a Resilient Energy Union with a Forward-Looking 
Climate  Change  Policy287  delineates  an  Energy  Union  strategy  designed  to  bring  greater  energy 
security, sustainability and competitiveness. Its aim is to empower consumers to fully exploit all the 
opportunities  offered  by  the  Single  Energy  Market,  while  at  the  same  time  giving  consumers  in 

285 Opinion of Advocate General Kokott delivered on 23 December 2015 (1), Case C‑547/14, Philip Morris 
Brands SARL and Others, paras. 57, 149, 159, 179, 193, 204, 233, 263;  Opinion of Advocate General Kokott 
delivered on 23 December 2015 (1); Case C‑477/14, Pillbox 38 (UK) Limited; paras. 57, 67, 130, 190. 
286  Communication  from  the  Commission  on  A  Quality  Framework  for  Services  of  General  Interest  in  Europe 
COM 
http://eur-lex.europa.eu/legal-
content/EN/TXT/?uri=CELEX%3A52011DC0900. 
287 Communication from the Commission on A Framework Strategy for a Resilient Energy Union with a Forward-
Looking  Climate  Change  Policy,  COM(2015)  80  final,  25.02.2015,  available  at  http://eur-lex.europa.eu/legal-
content/EN/TXT/?uri=celex%3A52015DC0080. 

20.12.2011, 

available 

(2011) 

900, 

at 

107 

 
 
 
                                                            
vulnerable situations and/or facing energy poverty targeted and effective assistance. Article 36 of the 
Charter  on  access  to  services  of  general  economic  interest  is  relevant  in  this  context  in  order  to 
contribute to the protection of vulnerable consumers.  

Article 37 – Environmental protection 

The  Charter  in  Article  37  establishes  that  a  high  level  of  environmental  protection  and  the 
improvement of the quality of the environment must be integrated into the policies of the union and 
ensured in accordance with the principle of sustainable development.  

Policy 

The  communication  "A  Framework  Strategy  for  a  Resilient  Energy  Union  with  a  Forward-Looking 
Climate  Change  Policy"288  delineates  an  Energy  Union  strategy  designed  to  bring  greater  energy 
security,  sustainability  and  competitiveness.  From  the  point  of  view  of  the  goal  of  ensuring  a  high 
level of environmental protection and the improvement of environmental quality, the most relevant 
dimension  is  the  one  related  to  the  decarbonisation  of  the  economy.  The  communication  lists  15 
action points, including the initiatives to be developed as part of the Energy Union strategy.  

Application by Member States 

One of the aims of Directive 2013/30/EU of the European Parliament and of the Council of 12 June 
2013 on the safety of offshore oil and gas operations289 is to put in place a set of rules in order to 
help prevent accidents which might cause environmental damages as well as respond promptly and 
efficiently should one occur, including organizing the full liability of companies for damages caused to 
protected marine species and natural habitats. The transposition deadline for this Directive expired 
on  19  July  2015  and  since  then,  the  Commission  has  initiated  infringements  proceedings  against 
Member States which have not yet adopted and/or notified any transposition measures.  

Ombudsman inquiries  

On  28  April  2015,  the  European  Ombudsman  closed  an  inquiry  against  the  European  Commission. 
The  complaint  was  related  to  the  Commission's  public  consultation  on  the  list  of  projects  to  be 
considered  as  potential  Projects  of  Common  Interest  in  energy  infrastructure.  The  complainant 
argued  that  the  Commission  failed  to  ensure  that  the  public  could  give  their  views  on  the 
Commission's proposal and that, by restricting the language of its website on the public consultation 
to  English  only,  the  Commission  disenfranchised  many  citizens  in  countries  where  the  energy 
infrastructure projects may be built. The European Ombudsman did not find maladministration with 

288 Communication from the Commission on A Framework Strategy for a Resilient Energy Union with a Forward-
Looking  Climate  Change  Policy,  COM(2015)  80  final,  25.02.2015,  available  at  http://eur-lex.europa.eu/legal-
content/EN/TXT/?uri=celex%3A52015DC0080 
289  Directive  2013/30/EU  of  the  European  Parliament  and  of  the  Council  of  12  June  2013  on  the  safety  of 
offshore oil and gas operations and amending Directive 2004/35/EC, OJ L 178, 28.06.2013, p. 66. 

108 

 
 
 
                                                            
regard  to  consultation  procedures,  but  did  find  maladministration  with  regard  to  the  lack  of 
translation of all the consultation documents.290  

Article 38 – Consumer protection 

Article  38  of  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. 

Legislation 

In line with the objectives established in the Digital Single Market Strategy, the Commission adopted 
on  the  9th  of  December  two  proposals  dealing  with  the  supply  of  the  digital  content291  and,  the 
online and other distance sales of goods, respectively.292 The two proposals are designed to impact 
positively  on  a  number  of  rights  protected  under  the  Charter.  The  proposed  rules  would  fully 
harmonise  key  contractual  rights  and  provide  consumers  a  very  high  level  of  consumer  protection 
when buying online. For digital content (such as, for instance, software, videos, games, movies, etc.), 
where no specific EU-wide rules for faulty digital content exist, EU consumers would acquire rights in 
cases of faulty content and have clarity on how to exercise them. For goods - purchased online or by 
other distance sales means - the different national mandatory rules have led to fragmentation in the 
online  trade  and  contributed  to  consumers'  mistrust  in  the  digital  environment.  By  acquiring  a 
uniform level of protection across the EU, consumers would be encouraged to confidently engage in 
the  online  commerce.  They  would  overall  enjoy  enhanced  rights,  such  as  a  longer  reversal  of  the 
burden of proof in cases of faulty products.  

The  new  Directive  on  package  travel  and  linked  travel  arrangements293,  replacing  the  Package 
Travel  Directive  from  1990294,  was  adopted  by  the  Council  on  18  September  and  by  the  European 
Parliament on 27 October 2015. This reform responds to a fundamental transformation of the travel 
market  since  1990:  citizens  are  increasingly  purchasing  tailor-made  combinations  of  travel  services 
on the internet rather than choosing a ready-made package from a brochure. This reform will bring 
the EU package travel legislation into the digital age. An additional 120 million consumers who buy 

290 Complaint 240/2014/FOR 
291  Proposal  for  a  Directive  of  the  European  Parliament  and  of  the  Council  on  certain  aspects  concerning 
contracts  for  the  supply  of  digital  content,  COM(2015)  643  final,  9.12.2015,  available  at  http://eur-
lex.europa.eu/legal-content/EN/TXT/?uri=CELEX%3A52015DC0633  
292 Communication from the Commission to the European Parliament, the Council and the European Economic 
and Social Committee – Digital contracts for Europe – Unleashing the potential of e-commerce (2015) 633 final, 
09.12.2015, 
http://eur-lex.europa.eu/legal-
content/EN/TXT/?qid=1455042337190&uri=CELEX:52015DC0633 
293 Directive (EU) 2015/2302 of the European Parliament and of the Council of 25 November 2015 on package 
travel and linked travel arrangements, amending Regulation (EC) No 2006/2004 and Directive 2011/83/EU of 
the European Parliament and of the Council and repealing Council Directive 90/314/EEC, OJ L 326, 11.12.2015, 
p.1. 
294 Council Directive 90/314/EEC on package travel, package holidays and package tours, OJ L 158, 23.06.1990, 
p. 1. 

available 

at 

109 

 
 
 
                                                            
customised  travel  arrangements  will  be  protected  by  the  Directive.  Consumers  will  benefit  from 
increased  legal  certainty  and  enhanced  protection.  Member  States  have  to  transpose  the  new 
Directive into their national laws by 1 January 2018. The Directive will be fully applicable as of 1 July 
2018.  

On  1  July  2015,  the  Commission  adopted  an  Implementing  Regulation  on  the  modalities  for  the 
exercise  of  the  functions  of  the  online  dispute  resolution  platform,  under  Regulation  (EU)  No 
524/2013 on online dispute resolution for consumer disputes (Regulation on consumer ODR).  

The Commission also continued playing an important role in ensuring that national authorities and 
stakeholders respect consumer safety rules (General Product Safety Directive in particular) and that 
they cooperate in order to keep unsafe products from reaching and harming consumers. The  Rapid 
Alert System for dangerous non-food products collected information exchanges between European 
countries and the Commission about detected dangerous products and measures taken with respect 
to risks identified. Since 2004, over 20.000 alerts for dangerous products were circulated in Europe, 
of which 2.072 in 2015 alone. Particular attention is given to children related products. A quarter of 
all alerts sent by national authorities concerned safety issues with toys. 

On  15  July  2015  the  Commission  adopted  a  proposal  for  a  Regulation  on  energy  efficiency 
labelling295  which promotes  consumers'  information  by  helping  them  distinguish  the  most efficient 
products more easily.  

On  23  December  2015,  Directive  2015/2366  on  payment  services  in  the  internal  market296  was 
published in the Official Journal. This Directive (known as "PSD2") opens the EU payment market to 
new service providers offering thereby more choice for consumers or businesses. Citizens will also be 
better  served  as  a  result  of  the  introduction  of  strict  security  requirements  for  the  initiation  and 
processing of electronic payments. The Directive also contains new provisions to better protect the 
personal  data  of  payers  and  payees  when  using  payment  services,  enhanced  consumers’  rights  in 
numerous  areas,  e.g.  reduced  liability  for  non-authorised  payments  and  an  unconditional  ("no 
questions asked") refund right for direct debits in euro, as well as better defined out-of-court redress 
procedures to enforce their rights under the directive.  

Finally,  on  24  November  2015,  the  European  Parliament  adopted  new  rules  on  the  distribution  of 
insurance products, which mainly aims to improve the level of consumer protection. The Insurance 
Distribution Directive297 is a recast of the Insurance Mediation Directive. It imposes more stringent 
rules  on  all  providers  of  insurance  products,  so  that  consumers  are  better  informed  about  the 

295  Proposal  for  a  Regulation  of  the  European  Parliament  and  of  the  Council  setting  a  framework  for  energy 
efficiency  labelling  and  repealing  Directive  2010/30/EU,  COM(2015)  341  final,  15.07.2015,  available  at 
http://eur-lex.europa.eu/legal-content/EN/TXT/?qid=1442564964643&uri=CELEX:52015PC0341 
296 Directive 2015/2366/EU of the European Parliament and of the Council of 25 November 2015 on payment 
services in the internal market, amending Directives 2002/65/EC, 2009/110/EC and 2013/36/EU and Regulation 
(EU) No 1093/2010, and repealing Directive 2007/64/EC, OJ L 337, 23.12.2015, p. 1. 
297  Directive  (EU)  2016/97  of  the  European  Parliament  and  of  the  Council  of  20  January  2016  on  insurance 
distribution (recast)Text with EEA relevance, OJ L 26, 2.2.2016, p. 19. 

110 

 
 
                                                            
different  insurance  products  available  on  the  market  and  obtain  products  that  really  meet  their 
demands and needs. 

Policy 

On 6 July 2015 the Commission launched a public consultation on the current framework regulating 
Europe's audiovisual media landscape (the so-called Audiovisual Media Services Directive - AVMSD) 
which has already been mentioned above.298 The public consultation among others also focused on 
ensuring  a  level  playing  field  for  audiovisual  media  services  and  providing  for  an  optimal  level  of 
consumer protection.   

On  15  July  2015  the  Commission  adopted  the  Communication  entitled  "Delivering  a  New  Deal  for 
Energy  Consumers".299  The  aim  is  to  empower  consumers  to  fully  exploit  all  the  opportunities 
offered  by  the  Single  Energy  Market,  while  at  the  same  time  giving  consumers  in  vulnerable 
situations  and/or  facing  energy  poverty  targeted  and  effective  assistance.  These  goals  are  clearly 
aligned with the objective to ensure a high level of consumer protection.  

On  10  December  2015  the  Commission  adopted  a  Green  Paper  on  retail  financial  services.300  The 
Green  Paper  invites  in  particular  individuals  and  consumers  of  financial  services,  such  as  retail 
banking  and  current  accounts,  payment  services,  credit  cards,  mortgages  and  different  kinds  of 
insurance (e.g. life, travel, motor, health or home insurance) on how to improve choice, transparency 
and  competition  in  retail  financial  services  and  how  to  facilitate  true  cross-border  supply  of  these 
services.  It  includes  important  questions  related  to  the  fundamental  rights  of  citizens,  e.g.  how  to 
ensure  that  digitalisation  of  financial  services  does  not  result  in  increased  financial  exclusion,  in 
particular of those digitally illiterate. 

On 4 July 2015, the Commission published a Communication concerning interpretative guidelines on 
Regulation (EC) 1371/2007 on the rights of passengers travelling by rail.301 The guidelines underline 
that  Member  States  and  railway  operators  should  implement  the  Regulation  with  the  objective  of 
achieving  a  high  level  of  consumer  protection  within  the  Union.  The  guidelines  recall  the  principle 
that  rail  tickets  must  be  offered  on  a  non-discriminatory  basis  and  in  particular  that  passengers 
cannot  be  directly  or  indirectly  discriminated  on  grounds  of  nationality  (see  also  Article  21  of  the 
Charter). Finally, with regards to persons with disabilities or reduced mobility, the guidelines include 
recommendations  to  railway  undertakings,  station  managers,  ticket  vendors  and  tour  operators 
concerning non-discrimination, improvement of accessibility, including the provision of information 

15.07.2015, 

298 See above Article 11. 
299  Communication  from  the  Commission  on  Delivering  a  New  Deal  for  Energy  Consumers,  COM(2015)  339 
final, 
at 
available 
https://ec.europa.eu/energy/sites/ener/files/documents/1_EN_ACT_part1_v8.pdf 
300 Communication from the Commission on Green Paper on Retail Financial Services in the Single Market COM 
(2007) 
http://eur-lex.europa.eu/legal-
content/EN/TXT/?uri=CELEX%3A52007DC0226 
301 Communication from the Commission on Interpretative Guidelines on Regulation (EC) No 1371/2007 of the 
European Parliament and of the Council on rail passengers' rights and obligations, OJ C 220, 4.7.2015, p. 1. 

30.04.2007, 

available 

final, 

226 

at 

111 

 
 
                                                            
in accessible format, as well as assistance to facilitate the travel of persons with disabilities (see also 
Article 26 of the Charter). 

Case law 

In 2015 the CJEU further developed its case-law on procedural guarantees for consumers stemming 
from EU consumer law, based on the principles of ex officio control by national courts, equivalence 
and effectiveness. While this case-law has been predominantly developed on the basis of the Unfair 
Contract Terms Directive302 and has also been applied in relation to the Consumer Credit Directive303  
and in relation to the right of withdrawal for doorstep-selling contracts304, the CJEU, in its ruling of 4 
June 2015 in Case C-497/13 Faber, extended it to the Sales and Guarantees Directive.305 In Faber the 
CJEU inter alia ruled that the Sales and Guarantees Directive must be interpreted as meaning that a 
national court is required to determine whether the purchaser may be classified as a consumer even 
if the purchaser has not relied on that status. This principle  applies as soon as that court has at its 
disposal the matters of law and of fact that are necessary for that purpose or may have them at its 
disposal simply by making a request for clarification.306 The CJEU also decided that Article 5 (3) of the 
Directive, which provides that, within six months of the delivery, the trader has to prove that a lack 
of conformity did not exist at the time of delivery, is a provision of equal standing to a national public 
policy rule and that national courts, therefore, must apply it of their own motion.307 

In  addition,  the  CJEU  handed  down  several  decisions  on  the  Unfair  Contract  Terms  Directive 
confirming or expanding on its case law, for instance, on the transparency of contract terms in credit 
contracts308  as  well  as  on  the  ex  officio  control  of  unfair  contract  terms  by  national  courts  and  on 
procedural  guarantees  stemming  from  the  effectiveness  principle  in  relation  to  enforcement 
proceedings309, including mortgage enforcement.310 

302  Council Directive 93/13/EEC of 5 April 1993 on unfair terms in consumer contracts, OJ L 95, 21.04.1993, p. 
1. 
303  Council  Directive  87/102/EEC  of  22  December  1986  for  the  approximation  of  the  laws,  regulations  and 
administrative provisions of the Member States concerning consumer credit, OJ L 42, 12.2.1987, p. 48, in the 
meantime replaced by Directive 2008/48/EC. 
304  Council  Directive  85/577/EEC  of  20  December  1985  to  protect  the  consumer  in  respect  of  contracts 
negotiated  away  from business  premises, OJ  L 372  ,  31.12.1985 p.31, in  the  meantime  replaced  by  Directive 
2011/83/EC on consumer rights. 
305 Directive 1999/44/EC of the European Parliament and of the Council of 25 May 1999 on certain aspects of 
the sale of consumer goods and associated guarantees, OJ L 171, 07.07.1999, p. 1. 
306 Paragraph 48 and point 1 of the enacting terms. 
307 Point 2 of the enacting terms. 
308  E.  g.  CJEU,  judgement  of  26  February 2015  in  Case C-43/13 Matei,  and  CJEU  judgement  of  9  July  2015  in 
Case C-348/14 Bucura. 
309 E.g. CJEU, Case C-348/14 Bucura. 
310 E.g. CJEU judgement of 29 October 2015 in Case C-8/14 BBVA, which follows up on the ruling of 14 March 
2013 in Case C-415/11 Aziz, CJEU judgment of 1 October 2015 in Case C-32/14 ERSTE Bank Hungary, and CJEU 
judgement of 21 January 2015 in Joined Cases C‑482/13, C‑484/13, C‑485/13 and C‑487/13, Unicaja Banco SA 
(C‑482/13),  Caixabank  SA  v  Manuel  María  Rueda  Ledesma  and  Rosario  Mesa  Mesa  (C‑484/13),  José  Labella 
112 

 
 
                                                            
Application by Member States 

In  2015  the  Commission  continued  several  infringement  proceedings  and  EU-pilot  investigations 
regarding the implementation of the requirement, under Article 7 of the Package Travel Directive311 
that organisers of packages and/or retailers selling packages have to provide evidence of security for 
the payments they receive and the repatriation of consumers in the event of their insolvency. This 
led to legislative changes in two Member States, and changes have been announced by two further 
Member States. 

In 2015, the Commission also worked actively to ensure the full and correct implementation of other 
consumer  protection  directives.  After  ensuring  that  the  Consumer  Rights  Directive312  started 
applying in all Member States in 2014, the Commission examined the quality of the transposition in 
2015.  As  a  consequence  of  those  checks,  the  Commission  launched  a  dialogue  with  20  Member 
States raising certain questions and concerns. 

Regarding  the  correctness  of  the  transposition  of  the  Unfair  Commercial  Practices  Directive313,  12 
infringement proceedings are still pending.  At the same time, many Member States made legislative 
changes  or  are  still  in  the  process  of  making  such  changes  so  as  to  bring  their  legislation  into 
conformity with the Directive.  1 infringement case and 2 cases of dialogue between the Commission 
and the Member States were closed as a consequence of adequate legislative amendments.  

As  to  the  correct  transposition  of  the  Timeshare  Directive314,  one  infringement  and  one  case  of 
dialogue between  the Commission and a  Member  State were  closed,  following  legislative  changes, 
but three infringement cases and one dialogue case are still pending.  

On  9  July  2015,  the  implementation  deadline  for  Directive  2013/11/EU  on  alternative  dispute 
resolution for consumer disputes (Directive on consumer ADR)315 expired. The transposition check is 

Crespo, Rosario Márquez Rodríguez, Rafael Gallardo Salvat and Manuela Márquez Rodríguez (C‑485/13), and 
Alberto Galán Luna and  Domingo Galán Luna (C‑487/13).   
311 Council Directive 90/314/EEC on package travel, package holidays and package tours, OJ L 158, 23.06.1990, 
p. 1. 
312 Directive 2011/83/EU of the European Parliament and of the Council of 21 May 2013 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, OJ L 304, 22.11.2011, p. 1. 
313  Directive  2005/29/EC  of  the  European  Parliament  and  of  the  Council  of  11  May  2005  concerning  unfair 
business-to-consumer commercial practices in the internal market and amending Council Directive 84/450/EEC, 
Directives 97/7/EC, 98/27/EC and 2002/65/EC of the European Parliament and of the Council and Regulation 
(EC) No 2006/2004 of the European Parliament and of the Council (‘Unfair Commercial Practices Directive’), OJ 
L 149, 11.06.2005, p. 1. 
314 Directive 2008/122/EC of the European Parliament and of the Council of 14 January 2009 on  the protection 
of  consumers  in  respect  of  certain  aspects  of  timeshare,  long-term  holiday  product,  resale  and  exchange 
contracts, OJ L 33/10, 03.02.2009, p. 1. 
315 Directive 2013/11/EU of the European Parliament and of the Council of 21 May 2013 on alternative dispute 
resolution  for  consumer  disputes  and  amending  Regulation  (EC)  No  2006/2004  and  Directive  2009/22/EC 
(Directive on consumer ADR), OJ L 165/63, 18.06.2013, p. 1. 

113 

 
 
                                                                                                                                                                                          
ongoing.  On  23  September  2015,  the  Commission  issued  Letters  of  Formal  Notice  for  non-
communication of implementing measures to 16 Member States.  

Rulings of Hungarian Courts 

The  Budapest-Capital  Regional  Court  denied  the  applicability  of  the  Charter  in  a  case 
concerning  clauses  in  foreign  currency  loan  agreements  that  allowed  for  unilateral 
modification  despite  the  fact  that  the  case  appeared  to  fall  within  the  scope  of  an  EU 
Directive on consumer protection. In a later similar case, the Hungarian Supreme Court held 
the Charter applicable – but did not identify a violation of its provisions (Hungary, Budapest-
Capital  Regional  Court,  case  no  G.40240/2015/7  of  18  February  2015  and  Curia  (Supreme 
Court), case no. Pfv.VI.20.453/2015/4, decision of 14 April 2015) 

114 

 
 
 
 
 
 
 
115 

 
 
 
 
 
 
Citizens' rights 

The  Commission  launched,  on  14  September  2015,  a  public  consultation  on  European  Citizenship, 
targeting  EU  citizens,  organisations,  businesses,  national/regional/local  authorities  and  other 
stakeholders interested in EU citizenship. The objective was to obtain a better insight of EU citizens' 
experiences in cross-border situations and gather their ideas about what can be done to simplify the 
exercise of their EU citizenship rights,  promote common values  and democratic participation.  

In case Delvigne, the Court of Justice clarified that Member States , when making provision in their 
national  laws  for  defining  who  are  entitled  to  vote  in  elections  to  the  European  Parliament,  must 
comply with the Charter of Fundamental Rights, including Article 39(2) which guarantees EU citizens’ 
right to vote in European elections. The CJEU considered that the ban at stake in the Delvigne case, 
which  precluded  persons  convicted  of  a  serious  crime  from  voting  in  elections  to  the  European 
Parliament, is proportionate in so far as it takes into account the nature and gravity of the criminal 
offence committed and the duration of the penalty.  

116 

 
 
 
 
 
 
Title V 

Citizens' rights 

Article  39  –  Right  to  vote  and  stand  as  a  candidate  at  elections  to  the 
European Parliament 

Article 39 of the Charter and Article 20 (2) b of the Treaty on the Functioning of the European Union 
(TFEU)  guarantee  the  right  of  every  EU  citizen  to  vote  in  the  European  elections  in  whichever 
Member State they reside. Both articles also provide for the right of EU citizens to vote and to stand 
as candidates at municipal elections in the Member State in which they reside. 

Policy 

On 8 May 2015, the Commission published a report on the 2014 European Parliament elections316, 
assessing  the  conduct  of  these  elections  across  Europe,  including  the  measures  taken  by  political 
parties  and  Member  States  to  enhance  the  democratic  conduct  and  European  dimension  of  these 
elections. The report identified as a key new element of the 2014 elections the direct link that was 
established  between  the  election  results  and  the  choice  of  the  European  Commission  President. 
Voters could thus more easily make the link between a vote cast for a national party and the impact 
of  their  vote  on  the  political  direction  of  the  EU  and  could  make  an  informed  choice  between 
alternative  political  platforms  for  Europe.  This  novelty  reinforced  the  democratic  legitimacy  of  the 
Commission,  and  has  the  potential  to  enhance  public  interest  and  strengthen  accountability  in  the 
future. 

The report also assessed the exercise by citizens of their electoral rights and action taken by Member 
States and EU institutions in this respect. Amongst others, the report found that, while still low, the 
number of mobile EU citizens who stood as candidates in their Member State of residence more than 
doubled, from 81 in 2009 to 170 in 2014.This could be attributed to the new simplified procedures 
introduced by Directive 2013/1/EU, which ensures that mobile EU citizens can exercise their political 
rights more effectively.317  

Case-law 

The  Delvigne  judgement318  delivered  on  6  October  2015,  concerned  a  French  national  who  was 
convicted by a final judgment of a serious crime in France. On the basis of the criminal law in force at 
that time, he was automatically permanently deprived of his civic rights. Mr Delvigne could therefore 
no longer vote in France, including in elections to the European Parliament. 

316 http://ec.europa.eu/justice/citizen/files/report_european_parliament_elections_2014_en.pdf 
317  Candidates  no  longer  have  to  provide  proof  that  they  have  not  been  deprived  of  their  electoral  rights  in 
their home Member State, but only have to make a declaration to that effect, to be verified by the authorities 
in the host Member State. 
318 CJEU, judgment of 6 October 2015 in Case C-201/13, Delvigne. 

117 

 
 
 
 
                                                            
The  Court  of  Justice  was  asked  whether,  taking  into  account  the  right  of  EU  citizens  to  vote  in 
elections to the European Parliament, a Member State may make provision for a general, indefinite 
and automatic ban on exercising civil and political rights in a case such as that of Mr Delvigne. 

The Court of Justice found first of all that Member States , when making provision in their national 
laws for defining who are entitled to vote in elections to the European Parliament, must comply with 
the Charter of Fundamental Rights, including Article 39(2) which guarantees EU citizens’ right to vote 
in European elections. Therefore, the deprivation of the right to vote to which Mr Delvigne is subject 
represents a limitation of the exercise of the right of EU citizens to vote in elections to the European 
Parliament,  as  guaranteed  in  the  Charter.  The  Court  noted  that  limitations  may,  however,  be 
imposed on the exercise of fundamental rights, in line with Article 52 of the Charter provided, inter 
alia, that they are proportionate. 

In this case, the Court considered that the ban to which Mr Delvigne was subject was proportionate 
in  so  far  as  it  took  into  account  the  nature  and  gravity  of  the  criminal  offence  committed  and  the 
duration  of  the  penalty.  The  ban  in  question  applied,  at  the  time,  only  to  persons  convicted  of  a 
criminal offence punishable by at least five years’ imprisonment. Furthermore, French law allows a 
person in Mr Delvigne’s situation to apply for, and obtain, reinstatement of the civic rights lost. The 
Court concluded that it is possible to maintain a ban which, by operation of law, precludes persons 
convicted of a serious crime from voting in elections to the European Parliament. 

Application by Member States 

The Commission is monitoring the situation to ensure that legislation restricting mobile EU citizens' 
rights as voters and candidates is removed across the EU. 

The  Commission  has  continued 
its  dialogue  with  a  number  of  Member  States  on  their 
implementation of European electoral law. Issues under examination include the right of European 
citizens to found and/or become members of political parties under the same conditions as nationals 
of their country of residence, the practical arrangements at polling stations for ensuring the secrecy 
of the ballot and the transposition of Directive 2013/1/EU319 as regards the five working-day deadline 
for Member States to respond to requests for information on their own nationals who are standing 
for election in another Member State. 

Ruling of the Czech Constitutional Court 

The Czech law on the elections to the European Parliament set a 5% electoral threshold, the 
legality  of  which  was  contested  before  the  Constitutional  Court.  This  Court  pointed  to  the 
fact that 14 out of the 28 EU Member States have an electoral threshold and concluded that 
the  right  to  vote  and  to  stand  as  a  candidate  at  elections  to  the  European  Parliament, 

319  Council  Directive  2013/1/EU  of  20  December  2012  amending  Directive  93/109/EC  as  regards  certain 
detailed  arrangements  for  the  exercise  of  the  right  to  stand  as  a  candidate  in  elections  to  the  European 
Parliament  for  citizens  of  the  Union  residing  in  a  Member  State  of  which  they  are  not  nationals,  OJ  L  26, 
20.12.2012, p.27. 

118 

 
 
 
                                                            
enshrined  in  Article  39  of  the  Charter,  does  not  exclude  the  use  of  thresholds.  (Czech 
Republic, Constitutional Court, case no CZ:US:2015:Pl.US.14.14.1 of 19 May 2015) 

Article  40  –  Right  to  vote  and  to  stand  as  a  candidate  at  municipal 
elections 

According to Article 40, every citizen of the Union has the right to vote and to stand as a candidate at 
municipal  elections  in  the  Member  State  in  which  he  or  she  resides  under  the  same  conditions  as 
nationals of that State. 

Article 41 – Right to good administration 

According to Article 41 of the Charter, every person has the right to have his or her affairs handled 
impartially, fairly and within a reasonable timeframe by the Institutions, bodies and agencies of the 
Union. It also includes the right to be heard and to receive a reply. 

Legislation 

In  the  field  of  customs,  the  Commission  adopted  delegated320  and  implementing321  acts  for  the 
Union's  Customs  Code  which  aims  to  promote  the  right  to  good  administration.  The  right  to  good 
administration is promoted through provisions on time limits for the taking of a decision by customs 
authorities; on the right of the applicant to be heard before a decision which would affect him or her 
is  taken;  on  the  right  of  appeal  against  a  customs  decision  and  on  the  recognition  of  Union-wide 
validity of customs decisions. 

Policy  

The phenomenon of staff leaving the EU institutions to take up positions in the private sector, or staff 
joining  the  institutions  from  the  private  sector,  often  referred  to  as  the  "revolving  doors" 
phenomenon,  can  raise  concerns  because  of  the  risk  that  conflicts  of  interests  may  arise,  thus 
undermining citizens' trust in the independence and objectivity of EU institutions. Transparency on 
"revolving door" cases thus contributes to better guaranteeing the right to good administration, as 
enshrined in Article 41. 

This issue was in the centre of an investigation by the Ombudsman of two complaints in which the 
Commission was  accused  of  not  properly  implementing  rules  on  ex-officials  taking  up  employment 
elsewhere.  This  inquiry  revealed  maladministration  in  the  implementation  of  some  aspects  of  the 
Commission's  approach  to  the  "revolving  doors"  phenomenon.  The  Ombudsman  therefore  made 

320  Regulation  2015/2446    of  28  July  2015  supplementing  Regulation  (EU)  No  952/2013  of  the  European 
Parliament  and  of  the  Council  as  regards  detailed  rules  concerning  certain  provisions  of  the  Union  Customs 
Code, OJ L 343, 28.7.2015, p.1 
321 Regulation 2015/2447 of 24 November 2015 laying down detailed rules for implementing certain provisions 
of Regulation 952/2013 of the European Parliament and of the Council, OJ L 343, 24.11.2015, p.558. 

119 

 
 
 
 
 
                                                            
specific recommendations to the Commission322  aimed at strengthening its review processes for so-
called "revolving door" cases.  

In response, the Commission published323 on 4 December 2015 the names of certain senior officials 
who  leave  the  European  Commission  for  new  jobs,  including  positions  in  the  private  sector.  It  will 
also publish the details of previous duties of the senior officials concerned, their new role outside the 
Commission,  and  its  own  assessment  of  possible  conflicts  of  interest.  The  move,  outlined  in  the 
Commission's reply324 to the Ombudsman, is in line with recommendations325 the Ombudsman issued 
in  September  2014,  and  follows  the  new  EU  Staff  Regulations  in  place  since  January  2014.These 
specify  that  all  officials  leaving  EU  employment  must  inform  their  institution  of  any  proposed  new 
employment during the two years after leaving their institution.. 

Administrative review by the Commission 

The  Commission  assessed326  the  compliance  of  the  procedures  at  the  European  Food  Safety 
Authority (EFSA) with the Charter, Article 41 and Article 20 (right to equality before law).327 

In 2014 an undertaking had submitted to the Commission a request for administrative review of the 
scientific opinion on the safety and efficacy of a certain feed additive. The applicant alleged that its 
procedural right to be heard, the right to equal treatment and the right to protection of legitimate 
expectations set out in Articles 20 and 41 of the Charter were infringed in the proceedings before the 
EFSA. The Commission found no violation of these rights as it was established that the applicant was 
always kept informed of the status of the assessment throughout the evaluation process, it had been 
given  the  opportunity  to  be  heard  on  several  occasions,  to  comment  on  the  findings  in  the  EFSA’s 
opinion and to present and explain its scientific arguments directly to experts involved in preparing 
the opinion. 

available 

322 Ombudsman press release no. 18/2014, 23.9.2014, available at: 
http://www.ombudsman.europa.eu/en/press/release.faces/en/56332/html.bookmark  
323 Communication of the Commission on the Publication of Information Concerning  Occupational Activities of 
Senior  Officials  after  Leaving  the  Service  (Article  16  (3)  and  (4)  of  the  Staff  Regulations),  COM(2015)  8473, 
4.12.2015, 
at: 
http://ec.europa.eu/civil_service/docs/c_2015_8473_f1_communication_from_commission_to_inst_en_v4_p1
_834004.pdf  
324  Follow-up  of  the  Commission  on  the  European  Ombudsman's  draft  recommendation  -  Two  joined 
complaints  by  Corporate  Europe  Observatory,  Greenpeace  EU  Unit,  LobbyControl  and  Spinwatch  (ref. 
at: 
2077/2012/TN) 
http://www.ombudsman.europa.eu/en/cases/correspondence.faces/en/61641/html.bookmark  
325 Draft recommendation of the European Ombudsman in the inquiry based on complaints 2077/2012/TN and 
1853/2013/TN 
at: 
European 
http://www.ombudsman.europa.eu/en/cases/draftrecommendation.faces/en/56216/html.bookmark  
326  Commission  Decision  C(2015)  3409  final  of  20  May  2015  on  the  administrative  review  of  the  scientific 
opinion on a certain feed additive, adopted by the European Food Safety Authority (EFSA) on 1 July 2014, not 
yet published. 
327 See above Article 20  

1853/2013/TN), 

Commission 

available 

available 

Friends 

Europe 

against 

Earth 

(ref. 

and 

the 

the 

of 

120 

 
 
 
 
 
 
                                                            
Case law 

The same applicant as in the above decision sought the annulment of the Implementing Regulation 
suspending the authorisations of the feed additive328 concerned and alleged a violation of the right 
to be heard, the right to fair proceedings and principle of proportionality (i.e. lack of an opportunity 
to  sufficiently  present  observations)  –  principles  concerned  by  Article  41  of  the  Charter.  In  its 
judgment  of  21  May  2015329,  the  General  Court  established  that  there  was  no  violation  of  those 
principles  and  that  the  applicant  had  been  given  an  opportunity  to  present  its  arguments  and 
observations relevant to the assessment of the feed additive to the EFSA and the Commission. 

In another case330 brought before the General Court, certain food business operators contested the 
proceedings leading to the adoption of Commission Regulation (EU) No 432/2012 establishing a list 
of permitted health claims made on foods, other than those referring to the reduction of disease risk 
and to children’s development and health.331 They alleged that the Commission failed to adequately 
inform  and  consult  the  various  interested  parties  when  preparing  the  Regulation.  The  Court 
confirmed  that  the  right  to  be  heard  in  an  administrative  procedure  affecting  a  specific  person 
cannot be transposed to the context of a legislative process leading to the adoption of general laws.   

In the field of competition law, the General Court considered whether the case law of the European 
Courts  concerning  the  required  content  of  the  statement  of  objections  of  the  Commission  (in 
particular  regarding  the  legal  elements  which  are  relevant  for  the  calculation  of  the  fine)  is 
superseded  by  Articles  41  and  48  of  the  Charter  regarding  the  right  to  be  heard  and  the  rights  of 
defence. According to the General Court's judgement in Orange Polska332 the principles set out in the 
case  law  were  not  affected  by  the  entry  into  force  of  the  Lisbon  Treaty  incorporating  the  Charter. 
This case law forms part of the content of the right to a fair trial, which derives inter alia from Article 
6 ECHR and is recognised at EU level as a general principle of EU law. The applicant had initially also 
alleged  a  breach  of  Article  47  of  the  Charter  but  the  General  Court  considered  that  claim  to  be 
withdrawn  as  the  applicant  had  declined  to  answer  a  question  by  the  Court  as  to  the  appropriate 
conclusions  to  be  drawn  from  the  judgments  of  the  Court  of  Justice  in  Chalkor333  and  Schindler334 
according to which the EU's antitrust enforcement system is fully compatible with that provision of 

328 Commission Implementing Regulation (EU) No 288/2013 of 25 March 2013 concerning the suspension of the 
authorisations of the preparation of Bacillus cereus var. toyoi (NCIMB 40112/CNCM I-1012) as provided for by 
Regulations  (EC)  No 256/2002,  (EC)  No 1453/2004,  (EC)  No 255/2005,  (EC)  No 1200/2005,  (EC)  No 166/2008 
and (EC) No 378/2009, OJ L 86 25.03.2013, p.15 
329 CJEU, judgment of 21 May 2015 in T-201/13, Rubinum SA v Commission. 
330 CJEU, judgement of 12 June 2015 in Case T- 296/12 Health Food Manufacturers' Association and Others v 
Commission. 
331  Commission  Regulation  (EU)  No  432/2012  of  16  May  2012  establishing  a  list  of  permitted  health  claims 
made on foods, other than those referring to the reduction of disease risk and to children’s development and 
health, OJ L 136, 25.5.2012, p. 1. 
332GC, judgement of the 17 December 2015 in Case T-486/11, Orange Polska. 
333 CJEU, judgement of 8 December 2011 in Case C-386/10 P, Chalkor v Commission. 
334 CJEU, judgement of 18 July 2013 in Case C-501/11 P, Schindler Holding and Others v Commission. 

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the  Charter.  Furthermore,  in  the  appeal  case  of  Deutsche  Bahn335  the  CJEU  reviewed  investigative 
powers,  in  particular  inspection  decisions,  of  the  Commission  in  the  context  of  enforcing  EU 
Competition law. Here while generally holding that inspection decisions as such did not constitute a 
violation  of  the  right  under  Article  7  of  the  Charter  (inviolability  of  the  home,  or  rather:  business 
premises in the concrete case), the Court annulled two inspection decisions on the ground that they 
had breached the complainant's rights of defence. The Court held that during the first inspection the 
Commission had collected evidence that had not been strictly covered by the first inspection decision 
and which then had led to two subsequent inspection decisions in a different matter. The Court held 
that  the  rights  of  defence  would  be  seriously  endangered  if  the  Commission  were  able  to  rely  on 
evidence against undertakings which was obtained during an investigation but was not related to the 
subject-matter or purpose thereof. While the Commission was generally not barred from initiating an 
inquiry in order to verify or supplement information which it happened to obtain during a previous 
investigation,  the  concrete  case  differed  in  so  far  as  the  Commission  had  already  had  the  relevant 
information before the first inspection.  

Moreover,  in  Ellinikos  Chrysos336  the  General  Court  clarified  that  the  recipient  of  State  aid  has  no 
special  role  in  the  procedure  for  reviewing  such  aid  as  it  is  not  brought  against  it.  The  recipient  in 
essence  only  has  a  role  as  an  information  source  for  the  Commission.  Consequently,  the  General 
Court found no breach of the principle of good administration laid down in Article 41 of the Charter 
due to the failure of the Commission to disclose the identity of the complainant, as the Commission 
is  under  no  duty  to  reveal  the  complainant’s  identity  or  any  source  of  information  to  interested 
parties. 

Ruling of an Italian Regional Administrative Tribunal 

In Italy, the Lazio Regional Administrative Tribunal, ruling over a complaint filed by a lawyer 
who was not admitted to the oral test of the bar examinations, found that the decision made 
by  the  Ministry  of  Justice  did  not  comply  with  the  minimum  conditions  of  transparency, 
interpreted  in  the  light  of  Article  41  of  the  Charter,  as  regards    the  obligation  to  state 
reasons as an aspect of the right to good administration. (Italy, Lazia Regional Administrative 
Tribunal, case no. 201509411 of 14 July 2015) 

Article 42 – Right of access to documents 

The Charter, in Article 42, 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 

335  CJEU  judgement  of  18  June  2015  in  Case  C-583/13  P,  Deutsche  Bahn  and  Others  v  Commission,  see  also 
above under Article 7. 
336  GC,  judgement  of  9  December  2015  in  Cases  T-233/11  and  T-262/11,  Hellenic  Republic  v  European 
Commission. 

122 

 
 
 
 
 
                                                            
institutions, bodies, offices and agencies. This right is subject to certain exceptions.337 In particular, 
the  institutions  refuse  access  where  disclosure  would  undermine  the  protection  of  the  public 
interest.  

In 2015, the European Commission registered 6752 initial requests for access to documents, which 
represents an increase by more than 8% in terms of number of applications. Full or partial access was 
granted  at  the  initial  stage  in  more  than  84%  of  the  cases.  In  2015,  the  Commission  received  284 
confirmatory applications, representing a slight decrease compared to the 300 applications received 
in 2014. 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 more than 41% of 
the cases. 

Policy 

In 2015, the European Commission sought to increase transparency towards its citizens by improving 
the traceability of documents and consequently the access by the public to documents held by the 
institution.  To  this  effect,  it  improved  its  document  management  in  order  to  ensure  that  all 
documents held by the Commission, including e-mails, are properly registered, filed and can easily be 
retrieved. 

The decision  the new  Commission took in  November  2014338  to  publish  information  about interest 
representatives  who  meet  its  political  leaders  and  senior  officials  led  to  an  easier  access  to 
Commission  documents  in  2015,  as  this  publication  triggered  requests  by  the  public  for  access  to 
minutes of meetings or other related documents. 

In 2015,  the  Commission also  started the  implementation  of  the  PublicAccess.eu pilot  project.  The 
main objective of the pilot project is to enable easier online access to a wider range of unclassified 
documents held by EU institutions thereby enhancing transparency. The work in 2015  concentrated 
on the implementation of three specific project strands: 

  Enriching EUR-Lex with new categories of documents. In 2015 a number of new document 
types,  most  of  which  concern  the  preparatory  stage  of  the  decision-making  process  within 
the  Commission,  were  identified  in  view  of  being  included  in  EUR-Lex  and  shown  in 
connection with the relevant legal texts.339  

  The Project will bring together the complete legislative cycle together with a range of related 
non-legislative  documents  for  a  few  selected  legal  acts.  It  provides  an  environment  for 
testing experimental ideas for displaying legal information, while exploring at the same time 

337  Under  Regulation  (EC)  No  1049/2001  regarding  public  access  to  European  Parliament,  Council  and 
Commission documents, OJ L 145, 31.5.2001, p. 43. 
338  Commission  decisions  C(2014)  9051  and  C(2014)  9048  of  25  November  2014  on  the  publication  of 
information on meetings held between Members and Directors-General of the Commission and organisations 
or  self-employed  individuals,  available  at  http://ec.europa.eu/news/2014/docs/c_2014_9051_en.pdf  and 
http://ec.europa.eu/news/2014/docs/c_2014_9048_en.pdf. 
339 The transmission of the first documents will start in 2016. 

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the potential of gathering all publicly available information  concerning specific legal acts in 
one place for easy access.340  

  The  study  on  ensuring  integrated  access  to  publicly  available  documents  from  EU 
institutions, agencies and bodies aims to provide a wider insight into how to bring together 
different  types  of  documents  from  different  EU  institutions,  agencies  and  bodies,  display 
them  in  a  single  place  in  view  of  ensuring  easy  and  seamless  access,  and  make  them 
searchable, for the benefit of various stakeholders interested in EU documents and citizens 
at large.341 

Case law 

A number of interesting rulings were issued in 2015 on the right of access to documents. 

In Unión de Almacenistas de Hierros de España342 the Court ruled on the right to access to documents 
as regards access to information exchanged between the Commission and a national competition 
authority  in  the  context  of  proceedings  related  to  an  infringement  of  competition  rules.  In  its 
ruling, the General Court took the view that such documents are not, in principle, accessible to the 
public, since a general presumption does exist according to which the disclosure of those documents 
could in fact undermine the protection of the commercial interests of the undertakings concerned as 
well as the protection of the purpose of investigations. The Court also clarified that the presumption 
applies  independently  of  the  question  whether  the  request  for  access  concerns  an  investigation 
procedure that is already closed or one that is pending and that nothing in the regulation states that 
the protection of the confidentiality of the information exchanged must end after the final closure of 
the investigation that has allowed this information to be gathered.  

Finally, ClientEarth v Commission343 concerned the right of access to impact assessment reports. The 
applicant, a non-profit organisation whose aim is the protection of the environment, applied to the 
Commission  for  access  to  two  impact  assessments  connected  with  EU  environmental  policy.  The 
Commission  refused  to  grant  access,  stating  inter  alia  that,  in  view  of  the  fact  that  the  impact 
assessments  were  intended  to  help  with  the  preparation  of  legislative  initiatives  in  respect  of 
environmental  matters,  the  disclosure  of  those  documents  could  seriously  undermine  its  decision-
making processes. The General Court recognised in this case that, in the context of the preparation 
and  development  of  policy  proposals  (and,  where  appropriate,  proposals  for  legislative  acts),  the 
Commission may  rely  on grounds  of  a  general  nature  relating  to  the  need  to  preserve  its  ‘thinking 
space’,  room  for  manoeuvre,  and  independence,  the  need  to  preserve  the  atmosphere  of  trust 
during  discussions,  and  the  risk  of  external  pressures  liable  to  affect  the  conduct  of  the  ongoing 
discussions  and  negotiations.  Therefore,  it  concluded  that  the  Commission  can  rely  in  such  cases, 
without carrying out a specific and individual examination of each of the documents connected with 

340 It will go live in April 2016. 
341 The study will be delivered in April 2016. 
342GC, judgement of 12 May 2015 in Case T‑623/13, Unión de Almacenistas de Hierros de España v European 
Commission. 
343 GC, judgment of 13 September 2013 in Case T-111/11, ClientEarth v European Commission. 

124 

 
 
 
                                                            
an impact assessment, on a general presumption of overriding public interest for as long as it has 
not made a decision on the policy proposal.344 

Article 43 – 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 on cases of 
maladministration  in  the  activities  of  the  EU  institutions,  bodies,  offices  and  agencies,  with  the 
exception of the CJEU acting in its judicial role. 

In 2015, the European Ombudsman  was able to help 17 033 citizens. This includes individuals who 
complained directly to the European Ombudsman (2 007 complaints), those who received a reply to 
their request for information (1060), and those who obtained advice through the interactive guide on 
the European Ombudsman’s website (13 966). 

About  512  complaints  fell  within  the  competence  of  a  member  of  the  European  Network  of 
Ombudsmen of which 470 fell within the competence of a national / regional ombudsman or similar 
body and 42 were referred to the EP's Committee on Petitions.  

707 complaints fell within the European Ombudsman’s mandate. 

A prominent example of the Ombudsman's work is the investigation launched at the end of 2014345 
concerning the means through which Frontex ensures respect for fundamental rights in joint return 
operations  (JRO).  A  number  of  detailed  questions  were  asked  and  the  Ombudsman  carried  out  an 
inspection of Frontex JRO files at its headquarters in Warsaw. As many national ombudsmen have a 
role  to  play  in  JROs,  either  as  monitoring  bodies  or  dealing  with  complaints,  the  European 
Ombudsman asked members of the European Network of Ombudsmen for their input.  

In  its  opinion,  Frontex  explained  that  each  participating  Member  State  is  responsible  for  its  own 
contingent of returnees in a JRO. It pointed out that, to date, only three critical situations have been 
reported,  including  in  relation  to  the  use  of  force.  Frontex  also  highlighted  the  practical  problems 
resulting from diverging national regulations on the use of restraint.  

After  receiving  Frontex's  comments,  the  Ombudsman  launched  a  targeted  consultation  of  public 
institutions and civil society organisations active in protecting migrants' rights. 

344 The judgement was subject to appeal which led to the CJEU judgement of 16 July 2015 in Case C-612/13 P, 
ClientEarth v European Commission. In its ruling, the CJEU dismissed the appeal except for the refusal, on the 
basis of a general presumption, of full access to certain studies relating to the compatibility of the legislation of 
various Member States with EU environmental law which, on the date when that decision was adopted, had 
not  led  the  Commission  to  send  a  letter  of  formal  notice  to  the  Member  State  concerned,  under  the  first 
paragraph of Article 258 TFEU, and had not therefore been placed in a file pertaining to the pre-litigation stage 
of infringement proceedings. 
345  Decision  of  the  European  Ombudsman  closing  her  own-initiative  inquiry  OI/9/2014/MHZ  concerning  the 
means through which Frontex ensures respect for fundamental rights in joint return operations (JRO), available 
at http://www.ombudsman.europa.eu/en/cases/correspondence.faces/en/58135/html.bookmark . 

125 

 
 
 
 
                                                            
 
Finally,  in  May  2015  the  Ombudsman  adopted  a  decision346  and  closed  its  investigation.  The 
Ombudsman commended Frontex' work to date. However, she called on the agency to ensure that 
families  with  children  and  pregnant  women  are  seated  separately  from  other  returnees.  Frontex 
should  also  promote  common  rules  on  the  use  of  restraint,  publish  more  information  on  JROs, 
including monitors' reports, and require the Member States to improve complaints procedures. The 
Ombudsman  expressed  concern  with  the  refusal  of  Frontex  to  establish  its  own  complaints 
mechanism. 

The  Ombudsman  suggested  several  amendments  to  Frontex's  JRO  Code  of  Conduct,  including 
provisions  on  the use  of  coercive measures,  timely  medical  examinations  of  returnees,  and  human 
rights training for escorts, with a focus on people with disabilities, women and children. 

Following the Ombudsman's decision, Frontex replied347 to its recommendations. This was taken into 
account when a Regulation on the European Border and Coast Guard was proposed.348 This proposal 
establishes  a  European  Border  and  Coast  Guard  bringing  together  the  European  Border  and  Coast 
Guard  Agency  built  from  Frontex  and  the  national  border  management  authorities  of  the  Member 
States,  including  coastguards  to  the  extent  that  they  carry  out  border  control  tasks.  The  European 
Border  and  Coast  Guard  would  ensure  the  implementation  of  the  European  integrated  border 
management in line with the principle of shared responsibility. Given the stronger role and enhanced 
operational tasks  of  the Agency,  the proposal  aims at  establishing  a  number  of  fundamental  rights 
safeguards that aim to ensure compliance with specific Articles of the Charter.349  

Article 44 – Right to petition 

All  EU  citizens,  as  well  as  any  natural  or  legal  person  residing  or  having  its  registered  office  in  a 
Member State, have the right to petition the European Parliament on matters which come within the 
Union's fields of activity and which affect the petitioner directly. 

The  petition  may  present  an  individual  request,  a  complaint  or  observation  concerning  the 
application  of  EU  law  or  an  appeal  to  the  European  Parliament  to  adopt  a  position  on  a  specific 
matter.  Such  petitions  give  the  European  Parliament  the  opportunity  of  calling  attention  to 
infringements  of  citizens'  rights.  A  petition's  portal  was  created  to  help  citizens  to  submit  their 
petitions easily: http://www.petiport.europarl.europa.eu/petitions/en/main.  

of 

the 

Union 

346  Decision  of  the  European  Ombudsman  closing  her  own-initiative  inquiry  OI/9/2014/MHZ  concerning  the 
European  Agency  for  the  Management  of  Operational  Cooperation  at  the  External  Borders  of  the  Member 
at: 
European 
States 
http://www.ombudsman.europa.eu//cases/decision.faces/en/59740/html.bookmark  
347  Decision  of  the  European  Ombudsman  closing  her  own-initiative  inquiry  OI/9/2014/MHZ  and  the 
conclusions, 
at: 
http://www.ombudsman.europa.eu//cases/correspondence.faces/en/61415/html.bookmark  
348 Proposal for a Regulation of the European Parliament and of the Council on the European Border and Coast 
Guard  and  repealing  Regulation  (EC)  No  2007/2004,  Regulation  (EC)  No  863/2007  and  Council  Decision 
2005/267/EC, COM (2015) 671, 15.12.2015, available at: http://eur-lex.europa.eu/procedure/EN/2015_310  
349 See above Articles 1, 4, 18 and 19. 

documents) 

(Frontex), 

(including 

available 

available 

related 

126 

 
 
                                                            
As  already  mentioned  above  in  the  introduction,  the  European  Commission,  in  2015,  received  916 
petitions, 187 of which concerned fundamental rights. 

Citizens' initiatives 

Another instrument in the hands of EU citizens is the possibility of registering a citizens' initiative. A 
European  citizens'  initiative  is  an  invitation  to  the  European  Commission  to  propose  legislation  on 
matters where the EU has competence to legislate. A citizens' initiative has to be backed by at least 
one million EU citizens, coming from at least 7 out of the 28 member states. A minimum number of 
signatories is required in each of those 7 member states. 

In  2015,  six  citizens'  initiatives  were  registered:  "On  the  wire",  "Fair  transport  Europe  –  equal 
treatment for all transport workers", "Stop plastic in the sea", "Vi vill att WHO:s rekommendationer 
efterföljs.Cannabis  ska  bli  avkriminaliserat  med  reglering",  "Wake  up  Europe!  Taking  action  to 
safeguard the European democratic project", "Mum, Dad & Kids - European Citizens" and "European 
Asylum Initiative" 

Finally,  it  is  worth  mentioning  that  the  General  Court,  in  case  Anagnostakis  v  Commission350, 
confirmed that the European citizens’ initiative seeking to allow cancellation of the onerous public 
debt of countries in a state  of necessity such as Greece could  not be registered since the subject 
matter of such an initiative did not have any basis in the Treaties. 

Article 45 – Freedom of movement and of residence 

The  Charter  guarantees  the  right  of  every  EU  citizen  to  move  and  reside  freely,  whilst  respecting 
certain conditions, within the territory of the Member States. This fundamental right is also included 
in the Treaty on the Functioning of the EU. 

Case law 

In McCarthy351, the Court found that where third-country nationals hold a ‘residence card of a family 
member  of  a  Union  citizen’,  the  Member  States  cannot  require  them  to  first  obtain  a  visa  before 
entering  their  territory.  Even  if  Member  States  are  faced  with  a  high  number  of  cases  of  abuse  of 
rights or fraud, the adoption of measures of "general prevention" are not justified without a specific 
assessment of the conduct of the person concerned. The family members of EU citizens who fulfil the 
conditions  laid  down  in  the  Free  Movement  Directive352  enjoy  the  rights  granted  by  this  Directive 
without  constraints  due  to  the  mere  fact  that  they  belong  to  a  particular  group  of  persons  (third-
country  nationals).  Measures  that  automatically  impose  additional  conditions  disregard  the  very 

350GC, judgment of 30 September 2015 in Case T-450/12, Alexios Anagnostakis v European Commission. 
351 CJEU, judgment of 18 December 2014 in Case C-202/13, McCarthy. 
352  Council  Directive  2004/83/EU  on  minimum  standards  for  the  qualification  and  status  of  third  country 
nationals or stateless persons as refugees or as persons who otherwise need international protection and the 
content of the protection granted, OJ L 304, 29.04.2004, p. 20. 

127 

 
 
 
 
                                                            
substance  of  the  primary  and  individual  right  of  EU  citizens  to  move  and  reside  freely  within  the 
territory of the Member States. 

Application by Member States 

The  European  Commission's  action  to  promote  the  freedom  of  movement  resulted  in  several 
changes  to  national  legislation.  In  Sweden,  holders  of  Swedish  identity  cards  were  prevented  from 
travelling  to  an  EU  country  outside  the  Schengen  area  on  the  basis  of  this  document  (to  leave  the 
country  they  needed  a  passport  according  to  the  law).  Following  the  Commission's  intervention,  a 
new law was adopted which entered into force on 1 July 2015 and enables Swedish citizens to leave 
the country with only their national ID card. 

The  Commission  further  continued  its  dialogue  with  a  number  of  Member  States  on  their 
transposition and implementation of the EU acquis on free movement of EU citizens and their family 
members, including substantial and procedural safeguards (Articles 21 and 45 of the Charter). As a 
result of infringement proceedings against one Member State and a dialogue with another Member 
State, these two Member States respectively adopted legislative amendments aiming to address the 
Commission's concerns in November and December 2015, respectively. 

Article 46 – Diplomatic and consular protection 

Article  46  of  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. 

Legislation 

The Commission had adopted on 14 December 2011 a proposal for a Directive on consular protection 
for citizens of the Union abroad in a bid to clarify and streamline the implementation of EU citizens' 
right to receive equal protection.  

On  this  basis,  the  Council  adopted,  on  20  April  2015,  the  Directive  on  the  coordination  and 
cooperation measures to facilitate consular protection for unrepresented citizens of the Union in 
third  countries.353  The  aim  of  the  Directive  is  to  further  facilitate  cooperation  and  coordination 
between consular authorities and to strengthen citizens' right to consular protection. The Directive 
clarifies when and how EU citizens in distress in a country outside the EU have the right to receive 
assistance from other EU countries' embassies and consulates.354 

353  Council  Directive  2015/637/EU  on  the  coordination  and  cooperation  measures  to  facilitate  consular 
protection  for unrepresented citizens  of  the  Union  in  third  countries and  repealing Decision  95/553/EC, OJ  L 
106, 20.04.2015, p. 1. 
354 See above Article 7.  

128 

 
 
 
 
                                                            
In  addition,  in  order  to  give  full  effect  to  the  right  of  unrepresented  EU  citizens  to  a  non-
discriminatory  consular  protection,  consular  protection  clauses  are  currently  being  negotiated  in  a 
number of in bilateral agreements. By means of these clauses, third countries expressly authorise the 
represented Member State(s) to provide consular protection to any unrepresented EU citizen in their 
territory. 

129 

 
 
 
 
130 

 
 
 
 
 
 
Title VI 

Justice 

The  adopted  recast  Regulation  on  insolvency  proceedings  improves  the  situation  with  respect  to 
creditors’  rights  to  an  effective  remedy  and  fair  trial.  It  ensures,  in  particular,  that  creditors  in 
another  Member  State  have  the  possibility  of  judicial  review  of  the  decision  opening  insolvency 
proceedings. 

In 2015, agreement has been reached between European Parliament and Council on a new Directive 
on the presumption of innocence and the right to be present at trial, and on a Directive on special 
safeguards  for  children  in  criminal  proceedings.  The  negotiations  on  the  proposed  Directive  on 
provisional legal aid and legal aid in European Arrest Warrant proceedings are on-going. 

An  infringement  procedure  against  Hungary  was  launched  by  the  European  Commission  in  2015 
concerning the compliance of Hungarian legislation adopted as a response to the migration crisis. A 
number of issues raised concern the compatibility of the new Hungarian rules on asylum procedures 
with  provisions  on  the  right  to  an  effective  remedy  contained  in  the  recast  Asylum  Procedures 
Directive read in light of the requirements stemming from Article 47 of the Charter.  

131 

 
 
 
 
 
Article 47 – Right to an effective remedy and to a fair trial 

Article 47 of the Charter provides that when EU rules give a right to a person, he or she has the right 
to an effective remedy before a tribunal in case this right is violated. This protection is called right to 
an effective remedy, because it provides to individuals a legal solution decided by a tribunal when an 
authority  applied  EU  law  in  an  incorrect  way.  The  right  to  an  effective  remedy  guarantees  judicial 
protection against violations of any EU rule which grants rights to people. It therefore plays a key role 
in  ensuring  the  effectiveness  of  all  EU  provisions,  ranging  from  social  policy,  to  asylum  legislation, 
competition, agriculture, etc.  

Closely related to the right to an effective remedy is the provision, also guaranteed by Article 47, that 
legal  aid  shall  be  made  available  to  those  who  lack  sufficient  resources,  in  so  far  as  such  aid  is 
necessary to ensure effective access to justice. This means that the right to effective access to justice 
cannot be hampered by the fact that a person cannot afford to take a lawyer. 

Article 47 of the Charter does not only provide a right to an effective remedy, but it also stipulates 
that, in all judicial proceedings which relate to the interpretation or the validity of EU rules, everyone 
shall have the right to a fair trial. This right encompasses the right to a fair and public hearing, the 
right  to  have  one’s  case  adjudicated  within  a  reasonable  time,  the  principles  of  independence  and 
impartiality of the tribunal as well as the right to be advised, defended and represented. 

Legislation 

A  number  of  developments  can  be  reported  on  legislative  measures  or  proposals  linked  to  the 
implementation of the right to an effective remedy and to a fair trial in the field of  EU civil justice 
policies.  

The  recast Regulation  on  insolvency  proceedings  was  adopted  on  20  May  2015.355  As  stated  in its 
preamble, the Regulation seeks to promote, inter alia, the application of Article 47 of the Charter, by 
improving  the  situation  with  respect  to  creditors’  rights  to  an  effective  remedy  and  fair  trial.356  It 
ensures, in particular, that creditors in another Member State have the possibility of judicial review 
of the decision opening insolvency proceedings.  

In  addition,  the  European  Parliament  and  the  Council  adopted,  on  the  basis  of  the  Commission’s 
proposal,  Regulation  (EU)  2015/2421  amending  the  Regulation  on  European  Small  Claims 
Procedure  and  the  Regulation  on  the  European  Order  for  Payment  Procedure.357  The  Regulation 
extends the scope of the European Small Claims Procedure on the claims of a value up to EUR 5.000, 
puts electronic service of documents on an equal footing with a postal service and enhances use of 
distance  means  of  communication  for  the  purpose  of  conducting  the  hearings  and  taking  of 
evidence.  These  and  other  changes  that  will  make  a  European  Small  Claims  Procedure  faster  and 

355 Regulation 2015/848/EU of the European Parliament and of the Council on insolvency proceedings (recast), 
OJ L 141, 20.05.2015, p.19. 
356 See above Articles 8 and 17.  
357 Regulation (EU) 2015/2421 of the European Parliament and of the Council of 16 December 2015 amending 
Regulation  (EC)  No  861/2007  establishing  a  European  Small  Claims  Procedure  and  Regulation  (EC)  No 
1896/2006 creating a European order for payment procedure has been published in the Official Journal on 24 
December 2015, OJ L 341 of 24.12.2015, p. 1.   

132 

 
 
                                                            
cheaper tool for enforcement of consumer rights and for a cross-border debt recovery for Small and 
Medium Enterprises will enter into application on 14 July 2017. 

In the field of consumers’ and users’ rights in the digital environment, the Commission adopted on 9 
December  2015,  in  line  with  the  objectives  established  in  the  Digital  Single  Market  Strategy,  two 
proposals dealing with the supply of the digital content358 and, respectively, the online and other 
distance sales of goods.359 The proposed rules are designed to impact positively on the enjoyment of 
a number of rights protected under the Charter, including the right to an effective remedy, as they 
would provide consumers with clear contractual remedies when a good or a digital content is faulty 
and clarify the remedies available in case of disputes.  

Case law 

Some  relevant  rulings  were  delivered  by  the  Court  of  justice  concerning  the  issue  of  the  cost  of 
proceedings. Orizzonte Salute360 concerned the compatibility with relevant provisions of  EU law on 
review procedures to the award of public procurement contracts361, read in light of Article 47 of the 
Charter  and  the  principles  of  effectiveness  and  equivalence,  of  national  legislation  providing  for 
elevated fees for access to justice in the field of public procurement. The CJEU ruled that relevant 
EU provisions, interpreted in light of Article 47 of the Charter and the principles of equivalence and 
effectiveness, do not preclude provisions of national law which set out a scale of standard court fees 
applicable only in administrative proceedings relating to public procurement provided that the level 
of  the  court  fee  does  not  constitute  a  barrier  to  the  access  to  a  court  or  render  exercise  of  public 
procurement  judicial  review  rights  excessively  difficult.  Similarly,  national  legislation  charging 
multiple court fees to an individual who brings several court actions concerning the same award of a 
public  contract  or  obliging  that  individual  to  pay  additional  court  fees  in  order  to  be  able  to  raise 
supplementary  pleas  concerning  the  same  award  of  a  public  contract  do  not  raise  issues  of 
compatibility  with  the  right  to  an  effective  remedy  or  the  principle  of  effectiveness.  However,  the 
national court shall be required  to  relieve  that individual  of  the obligation  to  pay  cumulative  court 
fees  if  the  subject-matter  of  the  actions  submitted  by  an  individual  or  the  pleas  raised  by  that 
individual  within  the  same  proceedings  are  not  separate  or  do  not  amount  to  a  significant 
enlargement of the subject-matter of the pending dispute.  

358  Proposal  for  a  Directive  of  the  European  Parliament  and  of  the  Council  on  certain  aspects  concerning 
contracts  for  the  supply  of  digital  content,  COM(2015)  634  final,  9.12.2015,  available  at:  http://eur-
lex.europa.eu/legal-content/EN/TXT/?uri=CELEX%3A52015PC0634. See also above under Article 38.  
359  Proposal  for  a  Directive  of  the  European  Parliament  and  of  the  Council  on  certain  aspects  concerning 
contracts  for  the  online  and  other  distance  sales  of  goods,  COM(2015)  635  final,  9.12.2015,  available  at: 
http://eur-lex.europa.eu/legal-content/EN/TXT/?uri=COM%3A2015%3A635%3AFIN.  
360  CJEU  judgment  of  6  October  2015  in  Case  C-61/14,  Orizzonte  Salute  -  Studio  Infermieristico  Associato  v 
Azienda Pubblica di Servizi alla persona San Valentino - Città di Levico Terme and Others. 
361  Council  Directive  89/665/EEC  of  21  December  1989  on  the  coordination  of  the  laws,  regulations  and 
administrative  provisions  relating  to  the  application  of  review  procedures  to  the  award  of  public  supply  and 
public works contracts, OJ 1989 L 395, p. 33, as amended by Directive 2007/66/ΕC of the European Parliament 
and of the Council of 11 December 2007, OJ 2007 L 335, p. 31. 

133 

 
 
                                                            
In  another  ruling  in  the  field  of  consumer  protection362,  where  the  applicants  had  challenged  the 
referral  of  their  case  before  the  county  court  competent  under  national  law,  claiming  that 
proceedings before that court would result in higher costs than those brought before the local court, 
the Court of Justice provided guidance on the criteria to be taken into account when assessing the 
compatibility of national rules with the principle of effectiveness of judicial protection, in light of 
possible  procedural  difficulties  that  would  arise  from  the  costs  of  the  proceedings  or  the 
geographical location of the court designed as competent. 

The  CJEU  also  delivered  a  judgement  concerning  the  interpretation  of  the  Regulation  on  the 
European Order for Payment Procedure as it concerns the rights of defaulting defendants in case of 
deficient  service  of  a  payment  order.363  The  case  concerned  a  situation  where  European  payment 
orders  were  not  or  were  not  effectively  served  on  the  defendants  because  they  had  moved  their 
domicile. The Court ruled that the Regulation must be interpreted as meaning that the procedures 
laid  down  in  Articles  16  to  20  of  the  Regulation,  which  aim  at  protecting  defendants  in  cases  of 
default, are not applicable where it appears that a European order for payment has not been served 
in a manner consistent with the minimum standards laid down in Articles 13 to 15 of the Regulation. 
If  such  an  irregularity  is  exposed  only  after  a  European  order  for  payment  has  been  declared 
enforceable,  the  defendant  must  have  the  opportunity  to  raise  that  irregularity  and  obtain,  if  it  is 
duly established, the invalidation of the declaration of enforceability. This however shall be regulated 
by national law.  

Alpha Bank Cyprus Ltd364 concerned the right of an  addressee of a judicial document to be served 
from abroad to refuse service on the basis that the document is not drawn up in or translated into 
an appropriate language as foreseen in the Regulation on service of documents.365 The Court stated 
that  the  Regulation  establishes  the  principle  of  direct  transmission  of  judicial  and  extrajudicial 
documents  between  the  Member  States,  which  has  the  effect  of  simplifying  and  accelerating  the 
procedures. However, the Court reminded that those objectives cannot be attained by undermining 
in any way the rights of the defence of the addressees, which derive from the right to a fair hearing, 
enshrined in the second paragraph of Article 47 of the Charter. Therefore, the Court established that 
it is important not only to ensure that the addressee of a document actually receives the document 
in question, but also that he is able to know and understand effectively and completely the meaning 
and scope of the action brought against him abroad, so as to be able effectively to assert his rights in 
the Member State of transmission. With this in mind the Court concluded that the receiving agency is 
required, in all circumstances and without it having a margin of discretion in that regard, to inform 
the addressee of a document of his right to refuse to accept that document, by using systematically 
for that purpose the standard form set out in Annex II to that Regulation.  

362  CJEU  judgement  of  of  12  February  2015  in  Case  C  567/13  Nóra  Baczó  and  János  István  Vizsnyiczai  v 
Raiffeisen Bank Zrt. 

363 CJEU judgement of 4 September 2014 in Joined Cases C‑119/13 Eco cosmetics and C‑120/13 Raiffeisenbank 
St. Georgen. 
364 CJEU, judgment of 16 September 2015 in Case C-519/13,  Alpha Bank Cyprus Ltd.  
365  Article  8  of  Regulation  (EC)  1393/2007  the  service  in  the  Member  States  of  judicial  and  extrajudicial 
documents in civil or commercial matters (service of documents), OJ L 324, 10.12.2007, p.79. 

134 

 
 
                                                            
In  Emesa-Trefileria366,  the  General  Court  carried  out  an  assessment  of  whether  the  Commission 
proceedings in cartel cases, and their judicial review by the General Court and Court of Justice fulfil 
the criteria of Article 47 of the Charter on the right to an effective remedy and a fair trial. Making 
reference  to  earlier  jurisprudence367,  the  General  Court  stated  that  such  procedures  are  fully 
compatible with the Charter. 

Furthermore,  a  ruling368  by  the  CJEU  was  issued  on  appeals  of  decisions  taken  by  National 
Regulatory Authorities (NRAs) in the context of the application of EU rules for the internal market in 
natural gas.369 The case concerned in particular the right of gas operators to appeal NRA's decisions 
not addressed to them. In its judgement, the CJEU held that relevant EU provisions, read in light of 
Article  47  of  the  Charter,  give  a  gas  operator  the  possibility  to  appeal  before  a  national  court  or 
tribunal a NRA decision relating to the gas network code. 

Sähköalojen ammattiliitto ry370 also concerned locus standi, and in particular the compatibility with 
relevant provisions of the Posted Workers Directive371, read in the light of Article 47 of the Charter, 
of national rules of the  Member State of the seat of the undertaking from barring  a trade union 
from  bringing  an  action  before  a  court  of  the  host  Member  State  where  workers  are  posted,  in 
order to recover for the posted workers minimum wage pay claims. The Court ruled in this case in 
favour  of  the  applicants,  maintaining  that  the  relevant  provisions  of  the  Posted  Workers  Directive 
prevent a rule of the Member State of the seat of the undertaking that has posted workers to the 
territory  of  another  Member  State  —  under  which  the  assignment  of  claims  arising  from 
employment  relationships  is  prohibited  —  from  barring  a  trade  union  to  bring  an  action  before  a 
court  of  the  second  Member  State,  in  which  the  work  is  performed,  in  order  to  recover  for  the 
posted workers' pay claims which relate to the minimum wage, and which have been assigned to it in 
conformity with the law in force in the second Member State.372 

Another relevant judgement was rendered in the field of  asylum373, where the CJEU ruled that the 
Asylum  Procedures  Directive  read  in  conjunction  with  Article  47  of  the  Charter,  did  not  preclude 

366 GC, judgement of 15 July 2015 in Case T‑406/10, Emesa-Trefilería SA and  Industrias Galycas SA v European 
Commission. 
367 CJEU judgement of 18 July 2013 in Case C-501/11, Schindler Holding Ltd and Others v European Commission. 
368 CJEU judgment of 19 March 2015 in Case C-510/13, E.ON Földgáz Trade Zrt. v Magyar Energetikai és Közmű-
szabályozási Hivatal. 
369 Directive 2009/73/EC of the European Parliament and of the Council of 13 July 2009 concerning common 
rules for the internal market in natural gas and repealing Directive 2003/55/EC, OJ L 211, 14.8.2009, p. 94–136, 
Directive 2003/55/EC of the European Parliament and of the Council of 26 June 2003 concerning common rules 
for  the  internal  market  in  natural  gas  and  repealing  Directive  98/30/EC,  OJ  L  176,  15.7.2003,  p.  57–78  and 
Regulation  (EC)  No  1775/2005  of  the  European  Parliament  and  of  the  Council  of  28  September  2005  on 
conditions for access to the natural gas transmission networks, OJ L 289, 3.11.2005, p. 1. 

370  CJEU  judgement  of  12  February  2015  in  Case  C‑396/13,  Sähköalojen  ammattiliitto  ry  v  Elektrobudowa 
Spółka Akcyjna. 
371  Directive  96/71/EC  of  the  European  Parliament  and  of  the  Council  of  16  December  1996  concerning  the 
posting of workers in the framework of the provision of services, OJ L 018 , 21.01.1997, p. 1. 
372 The case is also discussed more in detail under Article 12 above. 
373  CJEU  judgement  of  17  December  2015  in  Case  C-239/14  Abdoulaye  Amadou  Tall  v  Centre  public  d’action 
sociale de Huy. 

135 

 
 
                                                            
national legislation that did not confer suspensory effect on an appeal brought against a decision 
not to further examine a subsequent application for asylum.374  

In the field of environmental legislation, of particular interest are joint cases C-404/12 P, C-405/12 
P375 and joint cases C-401/12 P, C-403/12 P376 on access to justice in environmental matters and the 
question  whether  private  parties  can  rely  on  Article  9(3)  of  the  Aarhus  Convention  in  order  to 
challenge  the  legality  of  EU  acts  before  the  General  Court  or  the  Court  of  Justice.  The  judicial 
proceedings  concerned  two  actions  brought  against  the  Commission  for  having  refused  to  initiate 
administrative  reviews  under  Regulation  1367/2006377,  which  grants  to  qualifying  NGOs  the 
possibility  to  request  a  EU  institution  that  has  adopted  an  administrative  act  under  environmental 
law  or,  in  case  of  an  alleged  administrative  omission,  should  have  adopted  such  an  act,  to  do  an 
internal  review  of  that  act  or  of  that  omission.  In  both  cases,  the  General  Court  had  originally 
annulled  the  Commission’s  decisions  not  to  initiate  an  administrative  review,  finding  that  the 
limitation  set  by  Regulation  1367/2006  that  only  measures  of 
individual  scope  can  be 
administratively reviewed was too restrictive and contrary to Article 9(3) of the Aarhus Convention. 
In its two rulings of 13 January 2015, the Court of Justice, however, concluded that Article 9(3) of the 
Aarhus Convention could be invoked by individuals to challenge the legality of EU acts, on grounds 
that this provision does not contain any unconditional and sufficiently precise obligation capable of 
directly regulating the legal position of individuals. Without assessing the case in light of Article 47 of 
the  Charter,  the  Court  found  that  Regulation  1367/2006  could  not  be  regarded  as  intended  to 
implement specific obligations under the Aarhus Convention and concluded that the General Court 
was  not  entitled  to  review  the  legality  of  Regulation  1367/2006  in  light  of  the  Union's  obligations 
under the Convention. 

Finally, in East Sussex County Council378, the CJEU was asked for a preliminary ruling inter alia on the 
question  whether  Article  6  (“Access  to  justice”)  of  Directive  2003/4/EC379  must  be  interpreted  as 
precluding  a  limited  administrative  and  judicial  review  as  provided  for  in  English  law.  In  that 
context, the CJEU recalled that Article 47 of the EU Charter enshrines the right to an effective remedy 
before an impartial tribunal. The CJEU found that Article 6 of Directive 2003/4/EC is not precluding 
such a limited review, provided, notably, that it is carried out on the basis of objective elements. 

Application by Member States 

On  10  December  2015,  the  European  Commission  initiated  an  infringement  procedure  against 
Hungary concerning the compliance of Hungarian legislation adopted as a response to the migration 

374 See above under Article 18. 
375  CJEU,  judgement  of  13  January  2015  in  joint  Cases  C-404/12  P  and  C-405/12  P,  Council  of  the  European 
Union and European Commission v Stichting Natuur en Milieu and Pesticide Action Network Europe. 
376 CJEU, judgement of 13 January 2015 in joint Cases C-401/12 P to C-403/12 P, Council of the European Union 
and Others v Vereniging Milieudefensie and Stichting Stop Luchtverontreiniging Utrecht. 
377  Regulation  (EC)  No  1367/2006of  the  European  Parliament  and  of  the  Council  on  the  application  of  the 
provisions  of  the  Aarhus  Convention  on  Access  to  Information,  Public  Participation  in  Decision-making  and 
Access to Justice in Environmental Matters to Community institutions and bodies, OJ L 264, 06.09.2006, p.13. 
378 CJEU, judgment of 6 October 2015 in Case C-71/14, East Sussex County Council v Information Commissioner. 
379 Directive 2003/4/EC of the European Parliament and of the Council of 28 January 2003 on public access to 
environmental information and repealing Council Directive 90/313/EC, OJ L 41, 14.2.2003, p. 26. 

136 

 
 
                                                            
crisis.380 A number of issues raised concern the compatibility of the new Hungarian rules on asylum 
procedures  with  provisions  on  the  right  to  an  effective  remedy  contained  in  the  recast  Asylum 
Procedures Directive381, as well as with Article 47 of the Charter. These issues pertain, in particular, 
to  the  restricted  scope  and  effectiveness  of  appeals  procedures  and  the  potential  lack  of  judicial 
independence. 

Rulings of the UK court of Appeal 

A  case  before  the  UK  Court  of  Appeal  concerned  the  fact  that  Google  had  tracked  private 
information  about  the  claimants’  internet  usage  without  their  knowledge  or  consent  by 
using  cookies  and  given  that  information  to  third  parties,  while  Google’s  publicly  stated 
position is that such activity would not be performed without users’ consent. The claimants 
sought  damages  under  the  UK  Data  Protection  Act  for  distress  while  not  having  suffered 
pecuniary  loss.  The  court  held  that  “damage”  could  include  moral  non-pecuniary  damage 
such  as  distress.  The  court  further  held  that  it  was  important  that  there  was  an  effective 
remedy available for a distressing invasion of privacy as Articles 7 and 8 of the Charter make 
specific provision for the protection of personal data and that the Data Protection Act, when 
interpreted  literally  as  “damage”  being  pecuniary  loss,  had  not  effectively  transposed 
Directive  95/46  into  domestic  law.  The  Court  concluded  that  Article  47  applies  directly 
between the parties and that the national norms creating obstacles to the access to effective 
judicial  remedies  in  violation  of  the  Charter  can  be  simply  set  aside,  with  the  result  that 
compensation would be recoverable for any damage suffered. (UK, Court of Appeal, case no 
A2/2014/0403 of 27 March 2015) 

A  further  case  before  the    UK  Court  of  Appeal  concerned  employment  claims  by  two 
employees of the embassies of Sudan and Libya in the UK which had been turned down in 
first instance on the basis of the UK State Immunity Act 1978. Taking into account that the 
Charter  was  applicable  as  some  of  the  claims  concerned EU  law  issues  (the Racial  Equality 
and  Working  Time  Directives),  the  Court  ruled  that  its  Article  47  could  be  relied  on 
horizontally  (between  private  parties)  as  it  reflected  general  principles  of  EU  law.  On  this 
basis, the Court held that invoking state immunity for these employment claims amounted 
to a breach of Article 47 of the Charter, which guarantees access to the courts, and thus set 
aside  the  relevant  provision  of  the  State  Immunity  Act  (UK,  Court  of  Appeal,  case  
Benkharbouche v Sudan and Janah v Libya no A2/2014/0403 of 27 March 2015). 

380 See also above under Article 18 and below under Article 48. 
381  Directive  2013/32/EU  of  the  European  Parliament  and  of  the  Council  of  26  June  2013  on  common 
procedures for granting and withdrawing international protection (recast), 29 June 2013, OJ L 180, 29.6.2013, 
p. 60, Article 46. 

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Ruling of the Czech Constitutional Court  

In  the  Czech  Republic,  the  Ministry  of  Education,  Youth  and  Sport  had  decided  to  stop 
funding a project co-financed by the EU Operational Programme Research and Development 
for  Innovations  as  it  claimed  that  the  Technical  University  of  Ostrava  had  broken  financial 
rules.  The  case,  including  the  question  whether  there  should  be  at  all  judicial  review, 
reached the Constitutional Court, which concluded that the absence of judicial review would 
probably be contrary to Article 47 of the Charter. (Czech Republic, Constitutional Court, case 
no CZ:US:2015:Pl.US.12.14.2 of 16 June 2015) 

Article 48 – Presumption of innocence and right of defence 

Article 48 of 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 right to defence of 
anyone who has been charged shall be guaranteed. 

Legislation 

The  European  Union  has  set  itself  an  ambitious  legislative  programme  on  procedural  rights  for 
suspects and accused persons which directly contributes to strengthen citizens' fundamental rights, 
notably the right to a fair trial as protected by Article 6 of the European Convention on Human Rights 
and by Articles 47 and 48 of the Charter of Fundamental Rights of the European Union. Since 2009 
considerable  progress  has  been  made  with  the  adoption  of  three  Directives  on  the  right  to 
interpretation  and  translation382;  on  the  right  to  information383;  and  on  the  right  of  access  to  a 
lawyer.384   In  2015  agreement  was  reached  between  European  Parliament  and  Council385  on  27 
October on a new Directive on the presumption of innocence and the right to be present at trial386, 

382  Directive  2010/64/EU  of  the  European  Parliament  and  of  the  Council  of  20  October  2010  on  the  right  to 
interpretation and translation in criminal proceedings, OJ L280, 20.10.2010, p.1 
383  Directive  2012/13/EU  of  the  European  Parliament  and  of  the  Council  of  22  May  2012  on  the  right  to 
information in criminal proceeds, OJ L 142, 22.5.2012, p.1. 
384  Directive  2013/48/EU  of  the  European  Parliament  and  of  the  Council  of  22  October  2013  on  the  right  of 
access  to  a  lawyer  in  criminal  proceedings  and  in  European  arrest  warrant  proceedings,  and  on  the  right  to 
have  a  third  party  informed  upon  deprivation  of  liberty  and  to  communicate  with  third  persons  and  with 
consular authorities while deprived of liberty, OJ L 291, 22.10.2013, p.1. 
385 See Press Release, http://europa.eu/rapid/press-release_IP-16-291_en.htm ; Press Release by European 
Parliament: Fair trials: civil liberties MEPs back new EU rules on presumption of innocence, 10 November 2015, 
available at: http://www.europarl.europa.eu/news/en/news-room/20151109IPR01741/Fair-trials-civil-
liberties-MEPs-back-new-EU-rules-on-presumption-of-innocence ; Press Release by Council: Council confirms 
the agreement found with EP , 4 November 2015, available at: 
http://www.consilium.europa.eu/en/press/press-releases/2015/11/04-presumption-of-innocence/ . 
386  Directive  (EU)  2016/343  of  the  European  Parliament  and  of  the  Council  on  the  strengthening  of  certain 
aspects  of  the  presumption  of  innocence  and  of  the  right  to  be  present  at  trial  in  criminal  proceedings, 
available at: http://eur-lex.europa.eu/legal-content/EN/TXT/?qid=1459339817759&uri=CELEX:32016L0343 . 

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and  on  15  December  on  a  Directive  on  special  safeguards  for  children  in  criminal  proceedings.387 
The negotiations on the proposed Directive on provisional legal aid and legal aid in European Arrest 
Warrant proceedings388 are on-going.  

The  Victims'  Rights  Directive389  entered  into  application  in  the  Member  States  on  16  November 
2015. The new EU rules provide for  a set of rights for victims, including the right to be recognised 
and  treated  in  a  respectful,  sensitive,  tailored,  professional  and  non-discriminatory  manner.  To 
minimise the risk of being hurt again, the Directive also introduces a right to individual assessment of 
a victim’s protection needs.390  

Of  particular  importance  for  Article  48  is  that  family  members  of  deceased  victims  are  defined  as 
victims and benefit from all rights in the Directive and that family members of surviving victims have 
the  right  to  support  and  protection.  Family  members  are  widely  defined  and  include  also  non-
married  intimate  partners.  Moreover,  all  communication  with  victims  must  be  made  in  a  way  that 
is  made  on  child-sensitive 
victims  understand  (linguistically  or  otherwise);  an  emphasis 
communication.  Victims  have  the  right  to  be  informed  about  a  decision  not  to  proceed  with 
prosecution of the offender and will also have the entirely new right to have such decision reviewed. 

Application by Member States 

Among  the  issues  raised  in  the  context  of  the  infringement  procedure  initiated  on  10  December 
2015  by  the  European  Commission  against  Hungary  concerning  the  compliance  of  Hungarian 
legislation adopted as a response to the migration crisis391, was the fact that the Hungarian law on 
fast-tracked criminal proceedings for irregular border crossings does not respect provisions of the 
Directive  on  the  right  to  interpretation  and  translation  in  criminal  proceedings392,  which  ensures 
that every suspect or accused person who does not understand the language of the proceedings is 
provided with a written translation of all essential documents, including any judgment. 

387 Proposal for a Directive of the European Parliament and of the Council on procedural safeguards for children 
suspected  or  accused  in  criminal  proceedings,  COM  (2013)  822  final,  27.11.2013,  available  at:  http://eur-
lex.europa.eu/procedure/EN/2013_408;http://www.consilium.europa.eu/en/press/press-
releases/2015/12/16-procedural-safeguards-for-children-in-criminal-proceedings/; 
http://www.europarl.europa.eu/news/en/news-room/20160303IPR16952/MEPs-strengthen-rights-of-
children-in-criminal-proceedings; see also above under Article 24. 
388 Proposal for a Directive of the European Parliament and of the Council on provisional legal aid for suspects 
or accused persons deprived of liberty and legal aid in European arrest warrant proceedings, COM (2013) 824 
final, 27.11.2013, available at: http://eur-lex.europa.eu/legal-content/EN/TXT/?uri=CELEX%3A52013PC0824  
389  Directive  2012/29/EU  of  the  European  Parliament  and  of  the  Council  of  25  October  2012  establishing 
minimum standards on the rights, support and protection of victims of crime, and replacing Council Framework 
Decision 2001/220/JHA, OJ L 315, 25.10.212, p.57. 
390 See above under Article 3.  
391 See above under Articles 18 and 47. 
392 Directive 2010/64/EU on the right to interpretation and translation in criminal proceeds to be transposed by 
27 October 2013. 

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Lithuanian legislative proposal 

A draft law stipulated amongst others that an alien's request for a residence permit should 
not be considered if a competent institution had received information that the alien is 
suspected of committing a crime abroad. The Ministry of Justice in its opinion pointed out 
that such a provision might be contrary to the presumption of innocence enshrined in 
Article 48 of the Charter. The provision at issue was not included in the law as adopted. 
(Lithuania, Art. 26(1) of the Law on the Legal Status of Aliens (Įstatymas „Dėl užsieniečių 
teisinės padėties“)) 

Article  49  –  Principles  of  legality  and  proportionality  of  criminal 
offences and penalties 

Some fundamental rights are guaranteed in absolute terms and cannot be subject to any restrictions. 
Interferences with other rights may be justified if, subject to the principle of proportionality, they are 
necessary and genuinely serve to meet objectives of general interest recognised by the Union.  

Legislation 

Among the package of measures adopted in December 2015 by the European Commission to step up 
the fight against terrorism, the proposal for a Directive on Terrorism393 highlights the importance of 
respecting  fundamental  rights  in  transposing  criminal  law  provisions  into  national  law.  It  aims  to 
protect the fundamental rights of victims and potential victims. It would criminalise preparatory acts, 
such as training and travel abroad, for terrorist purposes, aiding or abetting, inciting and attempting 
terrorist acts, and terrorist financing. It also seeks to ensure that any limits on fundamental rights of 
suspects and accused do not go further than what is strictly necessary, thus upholding the principles 
of legality and proportionality of criminal offences and penalties (Article 49 of the Charter).  

Article  50  –  Right  not  to  be  tried  or  punished  twice  in  criminal 
proceedings for the same criminal offence  

The ne bis in idem principle is one of the cornerstones of criminal law and is based on the principle 
that no one shall be held liable to be tried or punished again in criminal proceedings for an offence 
for which he or she has already been finally acquitted or convicted. Article 50 provides that criminal 
laws should respect this. 

Ruling of the Greek Council of State 

Referring to CJEU case law (C-617/10, Akerberg Fransson), the Greek Council of State found 
that  a  double  penalty  (monetary  administrative  fine  and  penal  sentence)  imposed  for 

393  Proposal  for  a  Directive  of  the  European  Parliament  and  of  the  Council  on  combating  terrorism  and 
replacing Council Framework Decision 2002/475/JHA on combating terrorism, COM(2015) 625 final, 2.12.2015, 
available at: https://ec.europa.eu/transparency/regdoc/rep/1/2015/EN/1-2015-625-EN-F1-1.PDF  

140 

 
 
 
 
 
                                                            
smuggling  was  not  contrary  to  Article  50  of  the  Charter  (Greece,  Council  of  State,  case  no 
1741/2015 of 8 May 2015). 

141 

 
 
 
 
 
142 

 
 
 
 
Title VII 

General provisions governing the interpretation and 
application of the Charter 

An example for justifying limitations of fundamental rights in accordance with  Article 52 (1) of the 
Charter  is  the  EU  proposal  to  amend  the  existing  EU  legislation  on  acquisition  and  possession  of 
firearms.  The  Commission  proposal  lays  down  the  minimum  requirements  that  Member  States 
should  impose  as  regards  the  acquisition  and  possession  of  the  different  categories  of  firearms, 
depending on the potential danger they represent, and regulates the conditions for the transfer of 
firearms across the EU, while granting more flexible rules for hunting and target shooting. In view of 
its purpose and the conditions put on the acquisition and possession of firearms, this measure would 
introduce  limitations  on  the  right  to  property  in  line  with  the  limitations  to  fundamental  rights 
allowed under Article 52 (1)of the Charter. 

143 

 
 
 
 
Article 51 – Field of application  

The scope of applicability of the Charter is defined in Article 51. It clearly states that it is addressed to 
all EU institutions, bodies, offices and Agencies and to the Member States in so far as the latter are 
implementing EU law. It further clarifies that the Charter cannot extend the field of application of EU 
law or any competences of the EU as defined in the Treaties. 

Ruling of the Supreme Court of Cyprus 

Ruling  on  the  national  data  retention  law  transposing  the  Data  Retention  Directive,  the 
Supreme  Court  of  Cyprus  concluded  that,  although  the  national  law  states  in  its  preamble 
that it purports to transpose the Data Retention Directive, its ambit is wider than that of the 
directive  as  it  seeks  to  regulate  access  to  data  in  addition  to  the  duty  to  retain  data. 
Therefore,  the  Charter  was  held  not  to  be  applicable.  (Cyprus,  Supreme  Court,  case  no 
216/14 and 36/2015 of 27 October 2015). 

Article 52 – Scope and interpretation of rights and principles 

Article 52 lays down main general provisions on the scope and interpretation of rights and principles. 
In  its  first  paragraph  it  defines  the  strict  conditions  under  which  the  rights  of  the  Charter  can  be 
limited.  It  also  explains  the  relation  of  the  Charter  to  the  ECHR  aiming  at  the  highest  level  of 
fundamental rights protection possible (paragraph 3). It also clarifies that the principles named in the 
Charter  may  be  implemented  by  the  EU  institutions  in  their  legislative  and  executive  acts  –  and 
similarly  by  the Member  States  where  they implement  EU  law  (paragraph  5).  Yet  they  can  only  be 
invoked in court in view of the interpretation of such acts. This means that these principles do not 
confer subjective rights on the individual. 

Legislation 

As mentioned above under Article 17 on the right to property, following the Paris, Copenhagen and 
Thalys train terror attacks in 2015, the Commission tabled in November 2015 a proposal to  amend 
the  existing  EU  legislation  on  acquisition  and  possession  of  firearms.394  The  Commission  proposal 
aims  to  lay  down  the  minimum  requirements  that  Member  States  should  impose  as  regards  the 
acquisition and possession of the different categories of firearms, depending on the potential danger 
they represent, and regulates the conditions for the transfer of firearms across the EU, while granting 
more  flexible  rules  for  hunting  and  target  shooting.  It  covers  the  life  cycle  of  a  firearm  from 
production  to  trade,  ownership  and  possession,  deactivation  and  destruction.  The  proposal  also 
seeks to improve consistency with international standards. In view of its purpose and the conditions 

394  Proposal  for  a  Directive  of  the  European  Parliament  and  of  the  Council  amending  Council  Directive 
91/477/EEC on control of the acquisition and possession of weapons, COM/2015/0750 final - 2015/0269 (COD), 
18.11.2015, available at: http://eur-lex.europa.eu/legal-content/EN/TXT/?uri=COM%3A2015%3A750%3AFIN.   

144 

 
 
 
 
 
 
                                                            
put on the acquisition and possession of firearms, this measure introduces limitations on the right to 
property in line with the limitations to fundamental rights allowed under Article 52 (1)of the Charter. 

Case law 

Another  example  concerning  justified  limitations  of  fundamental  rights  is  provided  by  the  General 
Court's  decision  the  case  of  Zentralverband  des  Deutschen  Bäckerhandwerks  e.V.  c/  Commission 
mentioned above.395 In this case, the Central Association of German Bakers alleged a violation of the 
fundamental  rights  of  its  members,  in  particular  of  the  freedom  to  choose  an  occupation,  the 
freedom  to  conduct  a  business  and  the  right  to  property,  and  tried  to  annul  Commission 
Implementing  Decision  2013/663/EU.  The  General  Court  recalled  that  Article  52(1)  of  the  Charter 
acknowledges that limitations may be imposed on the exercise of the rights and freedoms recognized 
by the Charter, provided that such limitations are provided for by law, respect the essence of those 
rights and freedoms and, in accordance with the principle of proportionality, are necessary and meet 
objectives of general interest recognized by the Union or the need to protect the rights and freedoms 
of others. 

Danish legislative proposal 

An amendment of the Danish Security Intelligence Service Act and Customs Act provided for 
access  by  the  Danish  Security  and  Intelligence  to  information  recorded  by  the  airline 
companies of passengers and crew when travelling to and from Denmark (PNR-information). 
The  preparatory  works  for  this  draft  bill  contained  an  assessment  of  its  compatibility  with 
the Charter, in the light of relevant CJEU case law. The conclusion was that the limitation of 
the rights as protected by Articles 7 and 8 of the Charter was justified, in line with Article 52 
of  the  Charter.  (Denmark,  Bill  no.  204  of  5  May  2015  amending  the  Act  on  the  Danish 
Security Intelligence Service (PET) and the Customs Act) 

395 CJEU, judgment of 7 October 2015 in Case T-49/14, Zentralverband des Deutschen Bäckerhandwerks e.V. c/ 
Commission, see above under Article 15. 

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Article 53 – Level of protection 

Article 53 ensures that nothing in the Charter will be interpreted as restricting or adversely affecting 
human  rights  and  fundamental  freedoms  as  recognised  by  Union  law,  international  law  and 
international agreements to which the Union or all the Member States are party, including the ECHR. 
Its main aim is thus to provide the minimum standard of fundamental right protection allowing for 
wider protection under instruments other than the Charter where they are applicable. 

Article 54 – Prohibition of abuse of rights 

Furthermore Article 54 provides for a safeguard against an abuse of the Charter rights. It states that 
nothing in the Charter can be interpreted as implying any right to engage in activities aimed at the 
destruction of rights or freedoms recognised in the Charter or at their limitation beyond its extent as 
envisaged in the Charter. 

146