COMMISSION STAFF WORKING DOCUMENT on the Application of the EU Charter of Fundamental Rights in 2016 Accompanying the document Communication from the Commission to the European Parlament, the Council, the European Economic and Social Committee and the Committee of the Regions on 2016 Report on the Application of the EU Charter of Fundamental Rights
Date: 2017-05-18
Institutions: Directorate-General for Justice and Consumers, European Commission
Subjects: EU Charter of Fundamental Rights, European Convention on Human Rights, anti-discriminatory measure, application of EU law, data protection, fundamental rights, human rights, political rights, right of asylum, social rights

EN 

   EN 

   EUROPEAN COMMISSION  Brussels, 18.5.2017  SWD(2017) 162 final   COMMISSION STAFF WORKING DOCUMENT on the Application of the EU Charter of Fundamental Rights in 2016 Accompanying the document Communication from the Commission to the European Parlament, the Council, the European Economic and Social Committee and the Committee of the Regions on 2016 Report on the Application of the EU Charter of Fundamental Rights {COM(2017) 239 final}  
 
 
Introduction 

After the entry into force of the EU Charter of Fundamental Rights1 in December 2009, the European Commission 
adopted a strategy on the effective implementation of the Charter,2 which sets as an objective that the EU should 
be  beyond  reproach  in  upholding  fundamental  rights,  in  particular  when  it  legislates.  The  Commission  also 
committed itself to preparing annual reports to inform citizens and measure progress on the implementation of the 
Charter. These are intended to serve as a factual basis for ongoing informed dialogue between all EU institutions and 
Member States. 

This report, for 2016, 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 Commission’s reports aim to track where progress is being made, where further efforts are still necessary and 
where new concerns are arising. 

The report contains an account of action taken by the EU institutions and analysis of letters and petitions from the 
general public and questions from the European Parliament. In addition, it 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 an 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 action taken by the EU institutions (including the European Parliament and the Council), 
which 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 where: 

  national legislation transposes an EU directive; 

  a public authority applies EU law; or 

  a national court applies or interprets EU law. 

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

1  
2  

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

2 

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

Matters outside the scope of EU law 

The  Commission  cannot  pursue  complaints  which  concern  matters  outside  the  scope  of  EU  law.  This  does  not 
necessarily mean that fundamental rights have not been violated. 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 upheld by national including in many Member States, 
constitutional courts. Accordingly, complaints in this context need to be addressed at the national level. 

Therefore,  where  the  Charter  is  not  applicable  in  certain  situations  within  a  Member  State,  individuals  seeking  to 
respond  to  a  violation  by  a  Member  State  of  a  right  guaranteed  by  the  European  Convention  on  Human  Rights 
(ECHR) may:  

  have recourse to national remedies; and (after having exhausted them) 

  bring an action before the European Court of Human Rights (ECtHR) in Strasbourg for a violation of a right 

guaranteed by the European Convention on Human Rights (ECHR). 

All  Member  States  are  bound  by  the  commitments  they  have  made  under  the  ECHR,  independently  of  their 
obligations under EU law. The ECtHR has designed an admissibility checklist to help potential applicants work out for 
themselves whether there may be obstacles to it examining their complaints.3 

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  

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  imposed  an  obligation  on  the  EU  to  accede  to  the  ECHR.  EU  accession  to  the  Convention 
remains  a  priority for  the  Commission,.  It will  improve  the  effectiveness  of  EU  law  and  enhance  the  coherence  of 
fundamental  rights  protection  in  Europe.  However,  the  CJEU’s  opinion  of  December  2014,  by  which  the  Court 
declared  the  2013  draft  Accession  Agreement  incompatible  with  the  Treaties,  raised  a  number  of  significant  and 
complex questions. As a result, the draft Accession Agreement will have to be re-negotiated on a series of points. In 
its  capacity  as  EU  negotiator,  the  Commission  continues  to  consult  with  the  relevant  Council  working  party  on 
solutions to address the various objections raised by the Court. This work is making good progress. 

Overview of letters and questions to the Commission on fundamental rights 

In  2016,  the  Commission  received  3 347  letters  from  the  general  public  and  809  questions  from  the  European 
Parliament  on  fundamental  rights  issues.  Of  the  751  petitions  it  received  from  the  European  Parliament,  118 
concerned fundamental rights.4 

Letters 

... no specific 
follow-up  
36% 

... with specific 
follow-up 
10% 

Outside EU 
competence 
54% 

Among the letters from the general public, 1 543 concerned issues within EU competence. 

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

4  

See also section on Article 44 below. 

4 

 
 
                                                            
Questions 

... no specific 
follow-up  
57% 

Outside EU 
competence 
29% 

... with specific 
follow-up 
14% 

Among the questions from the European Parliament, 571 concerned issues within EU competence. 

Petitions 

... no specific 
follow-up  
44% 

Outside EU 
competence 
53% 

... with specific 
follow-up 
3% 

Among the 118 petitions relating to fundamental rights, 57 concerned issues within EU competence. 

In a number of cases, the Commission contacted the Member States to obtain clarification on alleged violations. Its 
replies explained or clarified the relevant policies and ongoing initiatives. 

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

The  EU  courts  have  increasingly  referred  to  the  Charter  in  their  decisions.  The  number  of  decisions  quoting  the 
Charter  in  their  reasoning  rose  from  43  in  2011  to  87  in  2012  and  then  to  113  in  2013  and  210  in  2014.  After  a 
decrease to 167 in 2015, it rose again to 221 in 2016. Overall this reflects a general increase of decisions quoting the 
Charter (see Appendix I for an overview of all relevant rulings). 

5 

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

6 

81 

15 

49 

20 

37 

2 
2014

4 

92 

14 

55 

13 

40 

1 

70 

12 

37 

25 

22 
0 
2015

3 
2016

General provisions

Justice

Solidarity

Citizens' rights

Equality

Freedoms

Dignity

1 

59 

10 
4 
14 

25 
1 
2013

3 

30 

23 

10 
8 
12 
1 
2012

0 
20 
4 
3 
6 
10 
0 
2011

0 
8 
1 
2 
8 
8 
0 
2010

250

200

150

100

50

0

s
g
n

i
l

u
r

f
o
r
e
b
m
u
N

Source: European Commission 

When addressing questions to the CJEU (requests for preliminary rulings), national courts often refer to the Charter. 
Of those requests submitted by judges in 2016, 60 contained a reference to the Charter, as compared with 36 in 
2015 (See Appendix II for an overview). 

6 

 
 
 
 
 
70

60

50

40

30

20

10

0

Requests for preliminary rulings which mention the Charter 

Justice

Solidarity

Citizens' rights

Equality

Freedoms

Dignity

8 

7 

2 

8 

16 

0 
2012

13 

4 

5 

9 

6 

4 

2013

14 

2 

6 

7 

14 

0 
2014

26 

6 

5 

4 

16 

12 

2 

7 

5 

9 

0 
2015

3 

2016

7 

1 
4 

6 

8 

1 
2011

8 

1 
2 
2 

6 
0 
2010

1 
0 
1 
0 
0 
0 
2009

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 

References to Charter rights in CJEU and national court decisions 

Charter  articles  referred  to  prominently  in  cases  before  the  EU  courts  were  those  on  the  right  to  an  effective 
remedy, the right to good administration, the scope and interpretation of rights and the right to property. 

7 

 
 
 
 
 
 
Percentage of references to particular articles of the Charter 
in decisions of the Court of Justice of the European Union 
2016  

21% 

3%  4% 

7% 

4% 

9% 

6% 

17% 

3% 

6% 

20% 

Art 7 right to private life

Art 16 freedom to conduct a business

Art 17 right to property

Art 21 non-discrimination

Art 41 right to good administration

Art 47 right to an effective remedy and to a
fair trial
Art 48 presumption of innocence and right
of defence
Art 49 legality and proportionality of
criminal offences
Art 51 field of application

Art 52 scope and interpretation of rights
and principles
Other rights

Source: European Commission 

Note: The basis for this pie chart is the case-law referred to in Appendix I. The total number of judgments analysed 
was 221 and the total number of references to Charter articles was 441, as several judgments referred to more than 
one article. The percentages were calculated on the basis of these references. The category ‘Other rights’ refers to all 
rights for which the percentage amounts to less than 3 %, i.e. fewer than 14 references. 

8 

 
 
 
 
As regards decisions by national courts in 2016, the Charter provisions referred to most concerned the right to an 
effective remedy (Article 47), the field of application of the Charter (Article 51) and the scope of guaranteed rights 
(Article 52). 

National courts: Number of references to Charter articles in selected high court decisions, 2016 

Source: European Union Agency for Fundamental Rights (FRA) 

Note: The data for this graph is based on up to four court decisions per Member State where the Charter was used in 
the courts’ reasoning. 70 court decisions from 27 Member States were analysed. No relevant case was identified for 
Malta. Decisions may refer to more than one Charter article. 

9 

 
 
 
 
Overview of enquiries with the Europe Direct Contact Centres 

The figures collected by the Europe Direct Contact Centres (EDCCs) confirm a high degree of interest among citizens 
on  justice,  citizenship  and  fundamental  rights.  In  2016,  the  EDCCs  replied  to  6 491  enquiries  from  citizens.  Most 
concerned topics such as consumer policy, EU family members and residence and justice and other related polices. 

Enquiries received by the European Contact Centre on justice, fundamental rights and 
citizenship in 2016 

Corporate governance
Equality between women and men
Funding
Data protection
Fundamental rights and citizenship
Judicial cooperation
Anti-discrimination and fundamental social rights

Protection of consumers economic and legal…

Free movement of persons
Justice and other related policies
EU family members and residence
Consumer policy

0

200

400

600

800

1000

1200

1400

Source: European Commission 

Methodology and structure of the staff working document 

The staff working document attached to the annual report does not treat the Charter only as a legally binding source 
of  law.  It  also  aims  to  give  an  account,  more  broadly,  of  the  various  ways  in  which  the  Charter  was  invoked  and 
contributed  to  progress  on  respecting  and  promoting  fundamental  rights  in  a  number  of  areas  in  2016.  As  a 
consequence,  it  refers  to  the  Charter  as  a  legally  binding  instrument  and/or  a  policy  objective,  depending  on  the 
areas  concerned.  The  accounts  given  in  the  different  chapters  of  the  report  vary  in  breadth  as  well  as  depth, 
depending  on  the  progress  made  in  specific  policy  areas,  such  as  migration,  asylum,  digital  single  market,  the 
European  Energy  Union,  reflecting  the  10  policy  areas  identified  as  priorities  by  President  Juncker  in  his  opening 
statement to the European Parliament in 2014.5  

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

Some measures and cases may relate to 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 also be referred to in 
another. 

5  

President  Juncker’s  political  guidelines,  A  new  start  for  Europe:  my  agenda  for  jobs,  growth,  fairness  and  democratic 
change – political guidelines for the next European Commission (15 July 2014); 
https://ec.europa.eu/commission/sites/beta-political/files/juncker-political-guidelines-speech_en_0.pdf 

10 

 
 
                                                            
 
The  structure  of  the  SWD  reflects  the  six  headings  of  the  Charter  itself:  Dignity,  Freedoms,  Equality,  Solidarity, 
Citizens’ rights and Justice. Each of the six chapters of the SWD 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; and 

o  examples of how the EU institutions and the Member States ensured compliance with and applied 

the Charter in 2016 within other (proposed or adopted) legislation; 

  policy: 

o  examples of how the EU institutions and the Member States ensured compliance with and applied 
the  Charter  in  2016  within  policy  areas,  e.g.  through  recommendations  and  guidelines  and  best 
practices; 

 

case-law: 

o 

relevant CJEU jurisprudence; and 

o  national courts’ case-law referring to the Charter (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 failure 
(correctly) to implement relevant legislation; 

  questions and petitions from the European Parliament and letters from the general public received in 2016 

focusing on main fundamental rights issues; and 

  data gathered by the EU Agency for Fundamental Rights in 2016. 

11 

 
 
 
Title I 

Dignity 

In September 2016, the European Parliament and the Council adopted Regulation (EU) 2016/1624 on the European 
Border and Coast Guard to ensure European integrated boder management at the external borders with a view to 
managing the crossing of the external borders efficiently.6 Given the stronger role and enhanced operational tasks of 
this  Agency,  the  Regulation  establishes  a  number  of  fundamental  rights  safeguards  that  aim  to  protect  human 
dignity and the right to life and to prohibit torture and inhuman or degrading treatment or punishment. 

In 2016, the Commission launched a year of focused action to eradicate violence against women, which aimed to 
draw attention to the issue, mobilise, connect and support all relevant stakeholders in combating the problem, and 
ensure the dissemination of good practices across the EU. In addition, it adopted proposals for the EU’s accession to 
the  Council  of  Europe’s  Istanbul  Convention  on  combating  and  preventing  violence  against  women  and  gender-
based violence. 

Following a Commission proposal in January 2014, the EU further strengthened the Union rules on exports of goods 
that could be used for capital punishment or torture, adopting (on 23 November 2016) an important amendment to 
Council  Regulation  (EC)  No 1236/2005  (the  Anti-Torture  Regulation).7  The  aim  of  the  Regulation  is  to  prevent  EU 
exports from contributing to human rights violations in other countries. 

Article 1 — Human dignity 

Human dignity, as protected under Article 1 of the Charter, is the basis of all fundamental rights. It guarantees the 
protection of human beings from being treated as mere objects by the state or by their fellow citizens. It is a right 
per se, but also part of the essence of all other rights. Thus it must be respected when any other rights are restricted. 
All  subsequent rights  and  freedoms  relating  to  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  upheld  in  order  to  protect 
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. 

6  

7  

Regulation (EU) 2016/1624 of the European Parliament and of the Council of 14 September 2016 on the European Border 
and  Coast  Guard  and  amending  Regulation  (EU)  2016/399  of  the  European  Parliament  and  of  the  Council  and  repealing 
Regulation (EC) No 863/2007 of the European Parliament and of the Council, Council Regulation (EC) No 2007/2004 and 
Council Decision 2005/267/EC (OJ L 251, 16.9.2016, p. 1-76). 
Regulation  (EU)  2016/2134  of  the  European  Parliament  and  of  the  Council  of  23  November  2016  amending  Council 
Regulation (EC)  No 1236/2005  concerning  trade  in  certain  goods  which could  be  used  for capital punishment,  torture  or 
other cruel, inhuman or degrading treatment or punishment (OJ L 338, 13.12.2016, p. 1). 

12 

 
 
 
                                                            
Legislation and policy 

A number of legislative measures adopted or proposed in the course of 2016 in the area of migration are relevant for 
the protection of human dignity. 

The European Parliament and the Council adopted the Regulation on the European Border and Coast Guard8 on 14 
September  2016.  It  establishes  a  European  Border  and  Coast  Guard  bringing  together  the  European  Border  and 
Coast  Guard  Agency  consisting  of  Frontex  and  the  Member  States’  border  management  authorities,  including 
coastguards to the extent that they carry out border control tasks. Given the stronger role and enhanced operational 
tasks  of  the  Agency,  the  Regulation  establishes  a  number  of  fundamental  rights  safeguards  that  aim  to  ensure 
compliance  with  the  Charter.9  This  includes  an  obligation  on  the  Agency  to  develop  various  codes  of  conduct, 
including one on returns that will set out common standardised procedures to assure the return of migrants in full 
respect for fundamental rights, in particular the right to human dignity.10 The Agency will also develop common core 
curricula  for  the  training  of  border  guards  to  provide  EU-level  training  for  instructors  of  Member  States’  border 
guards. 

In the area of asylum, the proposal for a recast Reception Conditions Directive11 needs to be pointed out. 

The Commission’s proposal for an Asylum Qualification Regulation12 contains a specific recital encouraging Member 
States to use methods to assess applicants’ credibility when evaluating their application for international protection 
in  a  manner  that  respects  their  individual  rights  as  guaranteed  by  the  Charter,  in  particular  the  right  to  human 
dignity.  

The proposal on the revision of the Eurodac system,13 which the Commission put forward to support the practical 
implementation  of  the  reformed  Dublin  Regulation,14  reaffirms  the  obligation  on  Member  States  to  ensure  that 
procedures for taking fingerprints and a facial image are determined and applied in accordance with the safeguards 
laid down in the Charter. This includes full respect of the right to human dignity, in particular when the procedures 
concern minors.15  

8  

Regulation (EU) 2016/1624 of the European Parliament and of the Council of 14 September 2016 on the European Border 
and  Coast  Guard  and  amending  Regulation  (EU)  2016/399  of  the  European  Parliament  and  of  the  Council  and  repealing 
Regulation (EC) No 863/2007 of the European Parliament and of the Council, Council Regulation (EC) No 2007/2004 and 
Council Decision 2005/267/EC, OJ L 251, 16.9.2016, p. 1–-76. 
See sections below on Articles 2, 4, 8, 19 and 24. 

9  
10   Article 35 of Regulation (EU) 2016/1624. 
11   Proposal  for  a  Directive  of  the  European  Parliament  and  of  the  Council  laying  down  standards  for  the  reception  of 

applicants for international protection (recast), COM(2016) 465, 13.7.2016. 

12   Proposal for a Regulation of the European Parliament and of the Council 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  and  amending  Council  Directive 
2003/109/EC  of  25  November  2003  concerning  the  status  of  third-country  nationals  who  are  long-term  residents 
(COM(2016) 466 final, 13.7.2016). 

13   Proposal  for  a  Regulation  of  the  European  Parliament  and  of  the  Council  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], for identifying an illegally staying 
third-country national or stateless person and on requests for the comparison with Eurodac data by Member States’ law 
enforcement authorities and Europol for law enforcement purposes (recast) (COM(2016) 272, 4.5.2016). 
See sections below on Articles 6, 7, 18 and 24;    
Proposal  for  a  Regulation  of  the  European  Parliament  and  of  the  Council  establishing  the  criteria  and  mechanisms  for 
determining the Member State responsible for examining an application for international protection lodged in one of the 
Member States by a third-country national or a stateless person (recast) (COM(2016) 270 final, 4.5.2016). 
See section below on Article 24. 

15  

14  

13 

 
                                                            
The  right  to  human  dignity  was  also  at  the  core  of  EU  legislation  and  policy  measures  adopted  in  the  field  of 
humanitarian  protection.  In  particular,  the  Emergency  Support  Regulation16  adopted  in  2016  provides  a  needs-
based  emergency  response  aimed  at  preserving  life,  preventing  and  alleviating  human  suffering,  and  maintaining 
human dignity wherever the need arises as a result of a disaster, in line with Article 1 of the Charter.  

Emergency support was activated for a period of three years particularly for the management of the humanitarian 
impact of the refugee and migration crisis. On this basis, in Greece, the Commission funded access to primary health, 
psycho-social  activities,  non-formal  education,  child-friendly  spaces,  better  accommodation,  water  and  sanitation 
facilities, protection of the refugee population and cash transfers to cover basic needs.  

Protection  of  human  dignity  was  also  one  of  the  key  elements  reflected in  the  Commission’s  policy  in  the field  of 
humanitarian action, as outlined in its May 2016 SWD on Humanitarian protection: improving protection outcomes 
to reduce risks for people in humanitarian crises,17 and in its approach to forced displacement, aimed at enabling 
forcibly  displaced  to  live  in  dignity  as  an  integral  part  of  their  host  societies,  as  outlined  in  an  April  2016 
Communication on forced displacement and development.18  

Article 2 — Right to life 

Under Article 2 of the Charter, everyone has the right to life and no-one may be condemned to the death penalty or 
executed. 

The  ECtHR  has  ruled  since  1989  that  exposure  to  the  pervasive  and  growing  fear  of  execution  (the  ‘death  row 
phenomenon’) is in violation of the ECHR. It has also held that the death penalty could be considered inhuman and 
degrading, and thus contrary to Article 3 ECHR.19 

16   Council  Regulation  (EU)  2016/369  of  15  March  2016  on  the  provision  of  emergency  support  within  the  Union  (OJ  L  70, 

16.3.2016, p. 1-6). 

17   Commission staff working document, Humanitarian protection: improving protection outcomes to reduce risks for people in 

humanitarian crises (SWD(2016) 183 final, 23.5.2016). 

18   Communication  from  the  Commission  to  the  European  Parliament,  the  Council,  the  European  Economic  and  Social 
Committee and the Committee of the Regions, Lives in dignity: from aid-dependence to self-reliance – forced displacement 
and development (COM(2016) 234 final, 26.4.2016). 
ECtHR judgment of 2 March 2010 in Al-Saadoon & Mufdhi v the United Kingdom, application no 61498/08. 

19  

14 

 
 
 
 
                                                            
Legislation 

Following a proposal made by the Commission in January 2014, the EU has further strengthened the Union rules on 
exports  of  goods  that  could  be  used  for  capital  punishment  or  torture.  It  adopted  on  23  November  2016  an 
important  amendment  to  Council  Regulation  (EC)  No  1236/2005  (the  "Anti-Torture  Regulation")20.  See  below, 
under Article 4. 

One  of  the  objectives  of  Regulation  (EU)  2016/1624  on  the  European  Border  and  Coast  Guard21  is  to  ensure  full 
respect for the right to life, as protected under Article 2 of the Charter. The Agency will be required to assist persons 
in distress at sea and other persons in a particularly vulnerable situation.22 

In line with the EU-Turkey Statement23, of 18 March 2016, all new irregular migrants and asylum applicants arriving 
from Turkey to the Greek islands whose applications for asylum have been declared unfounded or inadmissible or 
who  have  not  applied  for  asylum  should  be  returned  to  Turkey.  This  temporary  and  extraordinary  measure  is 
designed  to  protect  the  right  to  life  and  to  end  human  suffering  by  showing  clearly  that  there  is  no  benefit  in 
following the route offered by the smugglers. The Statement is to be implemented in accordance with EU law. This 
has been explicitly set out in the Statement, which makes clear that international protection safeguards will continue 
to  be  fully  respected,  with  any  application  for  international  protection  being  processed  individually  by  the  Greek 
authorities with a right to appeal. Under the Statement, the EU Member States will resettle a Syrian from Turkey for 
every Syrian returned to Turkey from Greek islands, taking into account the UN Vulnerability Criteria.  

Article 3 — Right to the integrity of the person 

The right to physical and mental integrity (Article 3(1) of the Charter) protects people from infringements by public 
authorities and requires authorities to promote such protection, e.g. by concrete legislation. 

Legislation 

Gender-based  violence,  i.e. violence  against  women  because  they  are  women,  is  a  serious  breach  of  women’s 
fundamental  rights.24  In  2016,  the  Commission  launched  a  year  of  focused  action  to  eradicate  violence  against 
women.25  The  aim  was  to  draw  attention  to  the  issue,  mobilise,  connect  and  support  all  relevant  stakeholders  in 
combating the problem, and ensure the dissemination of good practices across the EU.  

In  addition,  the  Commission  adopted  proposals  for  the  EU’s  accession  to  the  Council  of  Europe’s  Istanbul 
Convention  on  combating  and  preventing  violence  against  women  and  gender-based  violence.26  The  proposals 

20   Regulation  (EU)  2016/2134  of  the  European  Parliament  and  of  the  Council  of  23  November  2016  amending  Council 
Regulation  (EC)  N°  1236/2005  concerning  trade  in  certain  goods  which could  be  used  for  capital  punishment,  torture  or 
other cruel, inhuman or degrading treatment or punishment, OJ L 338, 13.12.2016, p. 1. 

21   Regulation (EU) 2016/1624 of the European Parliament and of the Council of 14 September 2016 on the European Border 
and  Coast  Guard  and  amending  Regulation  (EU)  2016/399  of  the  European  Parliament  and  of  the  Council  and  repealing 
Regulation (EC) No 863/2007 of the European Parliament and of the Council, Council Regulation (EC) No 2007/2004 and 
Council Decision 2005/267/EC, OJ L 251, 16.9.2016, p. 1–-76. 
See sections on Article 1 above and Articles 4 and 24 below. 

22  
23       http://www.consilium.europa.eu/en/press/press-releases/2016/03/18-eu-turkey-statement/ 
24  
25   http://europa.eu/rapid/press-release_STATEMENT-16-3945_en.htm  
26   Proposal for a Council Decision on the signing, on behalf of the European Union, of the Council of Europe Convention on 

See section below on Article 23. 

preventing and combating violence against women and domestic violence (COM(2016) 111);  
Proposal  for  a  Council  Decision  on  the  conclusion,  by  the  European  Union,  of  the  Council  of  Europe  Convention  on 
preventing and combating violence against women and domestic violence (COM(2016) 109). 

15 

 
 
                                                            
 
expressly mention the Charter, referring to rights stipulated in its Articles 1-5 and 23, i.e. the right to human dignity, 
the right to life, and the right to the integrity of the person, the prohibition of inhuman or degrading treatment and 
all forms of slavery and forced labour, and the principle of equality between men and women.27 

Article  4  —  Prohibition  of  torture  and  inhuman  or  degrading  treatment  or 

punishment 

Article 4 of the Charter provides that no-one is to 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 

Following a Commission proposal in January 2014, the EU further strengthened the Union rules on exports of goods 
that could be used for capital punishment or torture. On 23 November 2016, it adopted an important amendment to 
Council Regulation (EC) No 1236/2005 (the Anti-Torture Regulation).28 The Anti-Torture Regulation adopted in 2005 
bans the export and import of goods which can only be used to apply the death penalty or to inflict torture or other 
cruel,  inhuman  or  degrading  treatment  and  punishment.  It  also  imposes  an  export  authorisation  requirement  on 
goods that could be used for the purpose of torture or other ill-treatment. The aim is to prevent EU exports from 
contributing to human rights violations in other countries and to uphold the right to human dignity (in particular the 
prohibitions of the death penalty and of torture). The new text lays down a specific set of rules for export controls 
applied to prevent listed medicinal products from being used for capital punishment in other countries, including a 
general Union export authorisation. It also imposes new restrictions on supplying brokering services involving listed 
goods  located  in  a  non-EU  country,  supplying  certain  other  services  to  non-EU  countries  and  promoting  certain 
goods in trade fairs in the Union. 

As indicated above, Regulation (EU) 2016/1624 on the European Border and Coast Guard provides for the Agency 
to  develop  codes  of  conduct.29  The code of  conduct  for  returns  is  to  set  out  common  standardised procedures  to 
assure return in full respect for fundamental rights, including the prohibition of torture and of inhuman or degrading 
treatment or punishment (Article 4).30 

Application by Member States 

On 8 June 2016, the European Parliament adopted a Resolution on the CIA’s rendition and detention programme in 
Europe.31 This was by way of follow-up to the Parliament’s Resolution of 11 February 2015 on the US Senate report 
on the use of torture by the CIA,32 which had called in particular on Member States to investigate the allegations that 

See the explanatory memorandum and recital 4 of the proposals (COM(2016) 111 and COM(2016) 109). 

27  
28   Regulation  (EU)  2016/2134  of  the  European  Parliament  and  of  the  Council  of  23  November  2016  amending  Council 
Regulation  (EC)  N°  1236/2005  concerning  trade  in  certain  goods  which could  be  used  for  capital  punishment,  torture  or 
other cruel, inhuman or degrading treatment or punishment, OJ L 338, 13.12.2016, p.1. 

29   Article 35 of Regulation (EU) 2016/1624. 
30   Article 35(2) of Regulation (EU) 2016/1624. 
31   Resolution  of  8  June  2016  on  follow-up  to  the  Resolution  of  11  February  2015  on  the  US  Senate  report  on  the  use  of 

torture by the CIA (2016/2573(RSP)); 
http://www.europarl.europa.eu/sides/getDoc.do?pubRef=-//EP//TEXT+TA+P8-TA-2016-
0266+0+DOC+XML+V0//EN&language=EN  
This Resolution was adopted following the release by the US Senate Select Committee on Intelligence in December 2014 of 
the Study of the Central Intelligence Agency’s detention and interrogation program. 

32  

16 

 
 
                                                            
 
there were secret  prisons  on their territory  where  people  were  held  under  the CIA  programme,  and  to  prosecute 
those involved in these operations, taking into account all evidence that had come to light as a result of the report. 
In  June  2016  the  European  Parliament  reiterated  the  need  to  ensure  full  accountability  of  Member  States 
participating and allowing torture and illegal investigation practises. It underlined that torture cannot be accepted 
under  any  circumstances  and  stressed  the  need  to  stand  by  European  core  values  and  defend  them.  In  February 
2016,  the  ECtHR  held33  that  one  Member  State  had  infringed  a  number  of  fundamental  rights  under  the  ECHR, 
including the prohibition of torture under Article 3 ECHR, when cooperating with the CIA’s activities on that Member 
State’s  territory.  The  Commission  has  consistently  stressed  that  all  concerned  Member  States  have  to  conduct  in-
depth, independent and impartial investigations to establish the facts in relation with the CIA programme. 

Case-law 

In the joint cases Aranyosi and Căldăraru,34 the CJEU held that the execution of a European arrest warrant must be 
deferred if there is a real risk of inhuman or degrading treatment due to the conditions of detention of the person 
concerned  in  the  Member  State  where  the  warrant  was  issued.  If  the  existence  of  that  risk  cannot  be  discounted 
within a reasonable period, on the basis of information provided by the issuing authority, the authority responsible 
for the execution of the warrant must decide whether the surrender procedure should be brought to an end. 

In its judgment in Sakir v. Greece,35 the ECtHR found a violation of the procedural aspect of Article 3 ECHR. The case 
concerned a physical assault in the centre of Athens in 2009 on the applicant, an Afghan national, who had left his 
country of origin for fear of persecution. The applicant complained that the Greek authorities had failed to comply 
with their obligation to carry out an effective investigation into the attack. The case is noteworthy because of the 
importance, in the Court’s analysis, of the general context within which the attack on the applicant took place. The 
Court took into account reports from various international non-governmental organisations (NGOs) and from Greek 
institutions  which  referred  to  a  phenomenon  of  racist  violence  in  the  centre  of  Athens  since  2009.  Although  the 
assault bore the hallmarks of a racist attack, the Court found that the police had failed to consider the assault in the 
light of the above reports, but had instead treated it as an isolated incident. The Court reiterated that where there is 
suspicion  that  racist  attitudes  underlie  a  violent  act  it  is  particularly  important  for  the  official  investigation  to  be 
pursued with vigour and impartiality, having regard to the need continuously to reassert society’s condemnation of 
racism and ethnic hatred. 

Article 5 — Prohibition of slavery and forced labour 

Slavery  violates  human  dignity.  Trafficking  in  human  beings  is  one  form  of  slavery.  Article  5(3)  of  the  Charter 
explicitly prohibits trafficking in human beings. Slavery and forced labour are forms of exploitation covered by the 
definition of trafficking in human beings in Article 2 of Directive 2011/36/EU on preventing and combating trafficking 

33  

ECtHR judgment of 23 February 2016 in case Nasr and Ghali v. Italy, application no . 44883/09. The Court considered that 
the Member State’s authorities were aware that the individual concerned had been a victim of an extraordinary rendition 
operation which that had begun with his abduction in that Member State and had continued with his transfer abroad. And 
that  tThe  executive  had  clearly  applied  the  legitimate  principle  of  “‘State  secrecy”’  had  clearly  been  applied  by  the 
executive in order to ensure that those responsible did not have to answer for their actions. The investigation and trial had 
not led to the punishment of those responsible, who had therefore ultimately been granted impunity. 

34   CJEU judgment of 5 April 2016 in Joined Cases C-404/15 and C-659/15 PPU, Pál Aranyosi and Robert Căldăraru. 
35  

ECtHR judgment of 24 March 2016, Sakir v. Greece, application no 48475/09. 

17 

 
 
                                                            
in human beings and protecting its victims (the Anti-trafficking Directive).36 Preventing and combating it is a priority 
for the Union and the Member States. 

Legislation and policy 

Based  on  a  Commission  proposal  for  a  Council  Directive  (COM  (2016)235),  the  Council  adopted  on  19  December 
2016 Directive (EU) 2017/159, implementing the social partners’ agreement on the Work in Fishing Convention of 
the International  Labour  Organisation  (ILO).  All aspects  relating  to  working and  living conditions  on fishing vessels 
are regulated by this Directive. Its implementation also provides an opportunity to closely work with Member States 
in preventing further occurrences of forced labour in the fishing sector.   

The  Commission  and  the  High  Representative  further  committed  to  work  with  Member  states  and  international 
partners to ensure the ratification and implementation of the ILO Work in Fishing Convention, considered as a key 
ocean governance instrument, in its Communication on « International ocean governance : an agenda for the future 
of our oceans » (JOIN (2016) 49 final).  

In  accordance  with  Council  Decisions  2015/2037  and  2015/2071  authorising  its  ratification  and  providing  that 
Member  States  should  take  the  necessary  steps  to  ratify  it  as  soon  as  possible,    four  Member  states  ratified  the 
Protocol of 2014 to the Forced Labour Convention 1930 of the International Labour Organisation in 2016 and three 
more in the first quarter of 2017. When ratifying this new core labour standard, countries commit:  to prevent  the 
use of forced labour, in particular in the context of trafficking in human beings; to improve the protection of victims; 
to  provide  access  to  compensation,  and  to  enhance  international  cooperation  in  the  fight  against  forced  or 
compulsory labour.This process reinforces compliance with Article 5 of the EU Charter and enhances international 
cooperation in the fight against forced labour. 

As part of the EU’s 2012-2016 strategy on eradicating trafficking in human beings,37 the Commission continued to 
facilitate the work of the EU Civil Society Platform against Trafficking in Human Beings, which brings together around 
100 civil society organisations, including human rights organisations, migrant organisations and those working on the 
rights of women and children in Member States and non-EU countries. The Commission has also encouraged the use 
of the EU civil society e-platform against trafficking in human  beings to improve its contacts with civil society and 
exchange information on action against trafficking in human beings. 

On  19  May  2016,  the  Commission  published  the    Report  on  the  progress  made  in  the  fight  against  trafficking  in 
human beings (2016) and its accompanying Commission Staff Working document, presenting trends and challenges 
in addressing trafficking in human beings, examining progress made and highlighting key challenges that the EU and 
its Member States need to address as a priority.38 

On 6 December 2016, in cooperation with the Slovak Council Presidency, the Commission organised a joint session 
gathering the representatives of the EU Network of National Rapporteurs or equivalent mechanisms and the EU civil 
society  platform  against  trafficking  in  human  beings.  The  conference  focused  on  implementation  of  the  EU’s 
ambitious  legal  and  policy  framework  to  address  trafficking  in  human  beings,  which  is  anchored  in  human  rights, 

36   Directive  2011/36/EU  of  the  European  Parliament  and  of  the  Council  of  5  April  2011  on  preventing  and  combating 
trafficking in human beings and protecting its victims, and replacing Council Framework Decision 2002/629/JHA (OJ L 101, 
15.4.2011, p. 1). 

37   https://ec.europa.eu/anti-

trafficking/sites/antitrafficking/files/eu_strategy_towards_the_eradication_of_trafficking_in_human_ 
beings_2012-2016_1.pdf 

38   Report  on  the  progress  made  in  the  fight  against  trafficking  in  human  beings  (2016)  as  required  under  Article  20  of 
Directive  2011/36/EU  on  preventing  and  combating  trafficking  in  human  beings  and  protecting  its  victims,  Brussels, 
19.5.2016 COM(2016) 267 final. 

18 

 
                                                            
victim-centred, gender-specific and child-sensitive. The Commission presented two reports required under Article 23 
of the Anti-trafficking Directive: the ‘transposition report’39 and the ‘users’ report’.40 

In  line  with  the  priorities  of  the  framework,  the  Commission  published  a  study  on  the  gender  dimension  of 
trafficking in human beings (March 2016)41 and a comprehensive policy review of anti-trafficking projects funded 
by the Commission,42 which were presented ahead of the 10th EU Anti-trafficking Day (October 2016). 

Application by Member States 

In the context of EU cohesion policy, the Commission services made enquiries of the Polish authorities as regards a 
possible violation of the prohibition of slavery and forced labour (Article 5(2) of the Charter) in a project co-financed 
by structural funds. In particular, the national authorities were requested to investigate the alleged employment of 
forced  workers  from  North  Korea  following  press  reports  according  to  which  several  companies,  including  some 
companies  that  had  received  ESIF  co-financing,  would  have  employed  North  Korean  forced  workers.  The 
investigation of the National Labour Inspectorate is currently ongoing. 

Alleged cases of slavery and forced labour in the EU fishing industry were reported to the Commission, relating, in 
particular,  to  third  country  nationals  working  aboard  certain  vessels.43  Criminal  investigations  are  ongoing  in  the 
concerned  Member  State.  The  Commission  offered  full  support  and  cooperation  to  that  Member  State.  It  also 
recalled  the  existence  of  a  strong  legal  and  policy  framework  against  trafficking  in  human  beings  in  all  its  forms, 
including  for  the  purpose  of  labour  exploitation  and  Directive  2011/36/EU  which  requires  Member  States  to  take 
appropriate actions to address such criminal acts. 

39   https://ec.europa.eu/anti-

trafficking/sites/antitrafficking/files/report_on_member_states_compliance_with_directive_2011-36_en.pdf 

40   http://ec.europa.eu/anti-

trafficking/sites/antitrafficking/files/report_on_impact_of_national_legislation_related_to_thb_en.pdf 

41   https://ec.europa.eu/anti-

trafficking/sites/antitrafficking/files/study_on_the_gender_dimension_of_trafficking_in_human_beings._final_report.pdf 

42   https://ec.europa.eu/anti-trafficking/sites/antitrafficking/files/study_on_comprehensive_policy_review.pdf 
43 MEP question E-000937/2016. 

19 

 
                                                            
Letters 

Other 
19% 

Human dignity   0.21% 

Right to integrity of 
the person 0.03% 

Dignity 
0% 

Freedoms 
11% 

Prohibition of torture 
0.18% 

Justice 
26% 

Citizens' rights 
18% 

Solidarity 
3% 

Equality 
23% 

Prohibition of slavery 
and forced labour 
0.06% 

Questions 

Solidarity 
11% 

Citizens' 
rights 
8% 

Justice 
7% 

Other 
9% 

Dignity 
4% 

Freedoms 
34% 

Equality 
27% 

Human Dignity 1.24% 

Right to life 0.37% 

Prohibition of torture  
0.87% 

Prohibition of slavery 
and forced labour 
1.98% 

20 

 
Petitions 

Citizens' rights 
16% 

Solidarity 
7% 

Justice 
13% 

Other 
5% 

Dignity 
2% 

Freedoms 
15% 

Equality 
42% 

Human Dignity 1% 

Right to integrity of 
the person 1% 

21 

 
 
 
 
 
 
Title II 

Freedoms 

The adoption of the data reform package in 2016 was a key step towards ensuring a high degree of protection of 
personal  data  in  the  EU.  It  includes  the  General  Data  Protection  Regulation  (GDPR)  and  the  Data  Protection 
Directive for Police and Criminal Justice Authorities. 

The  adoption  of  the  EU-US  Privacy  Shield  adequacy  decision  and  the  EU-US  data  protection  Umbrella  Agreement 
ensured data protection at international level. The Commission adopted the former on 12 July; it replaces its 2000 
Safe Harbour adequacy decision and ensures the free flow of personal data for commercial purposes between the 
EU and US companies certified under the Privacy Shield, while guaranteeing the fundamental right of protection of 
personal  data  in  line  with  Article 8  of  the  Charter.  The  Umbrella  Agreement  will  establish  a  high  level  of  data 
protection for any transfer of personal data between the EU and the United States in the context of police or judicial 
cooperation in criminal matters. 

In the joint Tele2 Sverige AB and Watson cases, the CJEU interpreted national laws on data retention in the light of 
Articles 7 and 8 of the Charter and applicable EU law on the protection of personal data. It found that laws requiring 
the general and indiscriminate retention of all traffic and location data of all subscribers and registered users relating 
to all means of electronic communication restricted the fundamental rights to private life and to the protection of 
personal data in Articles 7 and 8. The court clarified the requirements for justification of targeted retention of traffic 
and location data and for  national competent authorities’ access to such retained data. 

In September, in line with the digital single market strategy adopted on 6 May 2015, the Commission adopted a set 
of legislative proposals to modernise the EU’s copyright rules. The aim is to strike a balance between copyright and 
relevant public policy objectives, such as education, research, innovation and the needs of persons with disabilities. 

To  counter  terrorism  and  cross-border  crime  more  effectively,  on  21  December  the  Commission  proposed  three 
amending  regulations  on  the  establishment,  operation  and  use  of  the  Schengen  Information  System  (SIS)  in  the 
context of: 

  border checks;  

  police cooperation and judicial cooperation in criminal matters; and  

 

the return of illegally staying non-EU nationals. 

Lastly, a number of measures adopted in 2016 for the implementation of the European Agenda on Migration are of 
direct relevance inter alia to respect for private and family life and the fundamental right to asylum. In particular, the 
Commission  presented  two  packages  of  legislative  proposals  designed  to  bring  about  an  extensive  reform  of  the 
common European asylum system (CEAS). 

22 

 
 
 
Article 6 — Right to liberty and security 

Article 6 of the Charter guarantees the rights of all to liberty and security of person. These rights correspond to those 
guaranteed in Article 5 ECHR. They mean in particular that a person’s liberty can be limited only under strict legal 
conditions. 

Legislation 

The  proposal  for  a  recast  of  the  Dublin  Regulation44  amends  the  EU  rules  determining  which  Member  State  is 
responsible for dealing with each asylum application. The proposed measures are geared to ensuring a sustainable 
sharing  of  responsibility  across  the  EU  and  timely  processing  of  applications,  thereby  facilitating  access  to 
international protection for those who are in need of it.45 In order to create a fairer system based on solidarity, a 
corrective  allocation  mechanism  will  automatically  establish  when  a  Member  State  is  handling  a  disproportionate 
number  of  asylum  applications.  All  further  new  applicants  in  that  Member  State  will  be  allocated,  after  an 
admissibility verification of their application, to other Member States until the number of applications is back below 
the  reference  level.  The  new  system  will  speed  up  transfers  of  asylum  applicants  between  Member  States.  The 
detention  for  the  purpose  of  transfers  is  now  limited  to  four  weeks  (it  was  previously  six).  This  ensures  that  the 
restriction to the right to liberty and security as protected by Article 6 of the Charter is kept to a necessary minimum. 

Case-law 

Several CJEU cases relating to the application of European arrest warrants clarified the scope of the right to liberty 
and security. 

In the JZ case,46 the Court had to decide in the context of a European arrest warrant whether restrictions on liberty 
of  movement  constituted  a  deprivation  of  liberty  so  that  the  period  in  question  could  be  credited  to  a  custodial 
sentence. It referred to ECtHR case-law regarding Article 5 ECHR, which corresponds to Article 6 of the Charter. It 
distinguished  between  restrictions  and  deprivation  of  liberty  and  concluded  that  measures  such  as  a  nine-hour 
night-time  curfew,  in  conjunction  with  the  monitoring  of  the  person  concerned  by  means  of  an  electronic  tag,  an 
obligation to report to a police station at fixed times on a daily basis or several times a week, and a ban on applying 
for  foreign  travel  documents  were  not  so  restrictive  as  to  give  rise  to  a  deprivation  of  liberty  comparable  to  that 
arising from imprisonment. 

In the Bob-Dogi Case,47 the CJEU clarified another aspect of the Council Framework Decision on the European arrest 
warrant.48 It ruled that a separate national arrest warrant must be issued before a European arrest warrant is issued 
and the person subject to proceedings must enjoy a dual level of protection for procedural rights and fundamental 
rights.  Thus,  in  addition  to  the  judicial  protection  provided  when  a  European  arrest  warrant  is  issued,  there  must 
already be protection at the first level, at which a national arrest warrant is adopted. 

The J.N. Case49 concerned the detention of an asylum applicant for reasons of national security and public order. The 
Court  reviewed  the  validity  of  Article  8(3)(e)  of  the  Reception  Conditions  Directive50  in  view  of  Article  6  of  the 

Proposal  for  a  Regulation  of  Tthe  European  Parliament  and  of  the  Council  establishing  the  criteria  and  mechanisms  for 
determining the Member State responsible for examining an application for international protection lodged in one of the 
Member States by a third-country national or a stateless person (recast)  (COM(2016) 270 final, 4.5.2016). 
See section below on Article 18. 

45  
46   CJEU judgment of 28 July 2016 in Case C-294/16 PPU, JZ. 
47   CJEU judgment of 1 June 2016 in Case C-241/15 Niculaie Aurel Bob-Dogi. 
48   Council Framework Decision 2002/584/JHA of 13 June 2002 on the European arrest warrant and the surrender procedures 
between  Member  States  (OJ  2002  L  190,  p.  1);  corrigendum  (OJ  2006  L  279,  p.  30),  as  amended  by  Council  Framework 
Decision 2009/299/JHA of 26 February 2009 (OJ 2009 L 81, p. 24). 

49   CJEU judgment of 15 February 2016 in Case C-601/15 PPU, J. N. v Staatssecretaris van Veiligheid en Justitie. 

23 

 
                                                            
Charter  and  found  no  grounds  for  calling  its  validity  into  question;  in  the  Court’s  opinion,  its  scope  is  sufficiently 
strictly  circumscribed  to  meet  the  requirements  of  proportionality.  The  Court  found  that  limits  to  the  possible 
restriction  of  the  right  to  liberty,  as  set  out  in  Article  52(1)  of  the  Charter,  had  been  respected.  It  found  that  the 
detention measure provided for in the Directive genuinely met an objective of general interest recognised by the EU. 
It also considered that the EU legislation remained within the limits of what is appropriate and necessary in order to 
attain  the  legitimate  objectives  pursued,  striking  a  fair  balance  between  an  asylum  seeker’s  right  to  liberty  and 
requirements relating to the protection of national security and public order. 

Article 7 — Respect for private and family life 

Article  7  of  the  Charter  guarantees  the  right  of  all  to  respect  of  their  private  and  family  life,  and  their  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 with the protection of personal data, this report will 
refer to them under Article 8 below. 

Legislation 

In the area of family law, two legislative projects adopted in 2016 had a particular impact on the right to family life: 

 

 

the  30  June  proposal  for  the  recast  of  the  Brussels  IIa  Regulation,51  notably  regulating  the  relationship 
between  parents  and  their  children,  which  streamlined  procedures  for  the  cross-border  enforcement  of 
judgments, thereby enhancing the right to respect for private and family life; and  

the adoption on 24 June of two Regulations52 aimed at helping bi-national couples, whether in a marriage 
or a registered partnership, to manage their property on a daily basis and to divide it in the event of divorce 
or of one of them dying.53 The Regulations determine which Member State’s courts are competent to deal 
with  matters  concerning  such  a  couple’s  property  (jurisdiction),  which  national  law  will  apply  to  their 
property matters (applicable law) and how a decision on these matters issued in one Member State will be 
recognised and enforced in another. They will provide bi-national couples with legal certainty and reduce the 
costs  of  proceedings.  As  a  couple’s  property  must  be  divided  in  the  event  of  divorce  or  death,  the 
Regulations will also facilitate the application of Union rules on cross-border divorces and successions. Both 
Regulations will apply as from 29 January 2019. 

50   Directive  2013/33/EU  of  the  European  Parliament  and  of  the  Council  of  26  June  2013  laying  down  standards  for  the 

reception of applicants for international protection (OJ L 180, 29.6.2013, p. 96-116). 

51   Proposal for a Council Regulation on jurisdiction, the recognition and enforcement of decisions in matrimonial matters and 
the matters of parental responsibility, and on international child abduction (recast) (COM/2016/0411 final, 30.6.2016). 
52   Council  Regulation  (EU)  2016/1103  of  24  June  2016  implementing  enhanced  cooperation  in  the  area  of  jurisdiction, 
applicable  law  and  the  recognition  and  enforcement  of  decisions  in  matters  of  matrimonial  property  regimes  (OJ  L  183, 
8.7.2016, p. 1-29);  
Council  Regulation  (EU)  2016/1104  of  24  June  2016  implementing  enhanced  cooperation  in  the  area  of  jurisdiction, 
applicable  law  and  the  recognition  and  enforcement  of decisions in  matters  of  the  property  consequences  of  registered 
partnerships (OJ L 183, 8.7.2016, p. 30-56). 
See section below on Article 21. 

53  

24 

 
 
                                                                                                                                                                                                                      
 
Recent  legislation  in  the  field  of  asylum  and  migration  has  an  impact  on  Article  7  of  the  Charter.  As  mentioned 
above, the proposal for a recast of the Dublin Regulation54 will amend the EU rules for determining which Member 
State  is  responsible  for  dealing  with  each  asylum  application.  In  particular,  the  right  to  family  unity  of  asylum 
applicants  on  EU  territory  (covered  by  the  right  to  respect  of  family  life  under  Article  7)  is  proposed  to  be 
strengthened. Its scope is proposed to be extended to include the applicant’s siblings and families formed in transit 
countries.  This  reflects  the  reality  of  current  migratory  trends,  according  to  which  applicants  often  arrive  in  the 
territory of the Member States after a prolonged period of time in transit outside their country of origin. 

The  proposal  for  a  recast  of  the  Eurodac  Regulation55  lowers  the  age  of  taking  fingerprints  to  6  years  old.56  The 
proposal positively contributes to the protection of the rights of the child and to respect of the right to respect for 
family life.57 Many applicants for international protection and non-EU nationals arriving irregularly in the EU travel 
with families, in many cases including very young children. Being able to identify and register these children is a key 
factor contributing to their protection. This will help identify children in cases where they are separated from their 
families  and  support  a  Member  State’s  efforts  to  trace  any  family  or  links  they  may  have  with  another  Member 
State. Establishing family links is a key element in restoring family unity. It will also help strengthen the protection of 
unaccompanied children who do not always seek international protection and who abscond from care institutions or 
child  social  services  under  which  their  care  has  been  assigned.  Their    registration  in  the  Eurodac  system  can  help 
keeping track of them and prevent them from ending up in scenarios of exploitation. 
In  June,  the  Commission  adopted  a  proposal  to  reform  the  2009  Blue  Card  Directive.58  The  proposal  aims  to 
enhance intra-EU mobility by facilitating the procedures and allowing for shorter business trips (up to 90 days) within 
the Member States that apply the blue card. It strengthens the rights of both the cardholders (allowing for quicker 
access to long-term residence status, immediate and more flexible labour-market access) and their family members 
(ensuring they  can join the cardholder  simultaneously). Accordingly,  the initiative protects  the right  to  respect  for 
private and family life through facilitated provisions in relation to family reunification for highly skilled workers.59 

Case law 

In Bogendorff von Wolffersdorff,60 the CJEU held that refusal by the German authorities to recognise freely chosen 
forenames and surname legally acquired by a dual German-UK national in the UK on grounds of public policy, as they 
included  several  tokens  of  nobility,  constituted  a  restriction  on  the  freedom  to  move  and  reside  across  the  EU. 
However, this may be considered justified if necessary to preserve the principle of equal treatment before the law 
(Article 20 of the Charter). More specifically, the Court recalled that a person’s surname is a constituent element of 
his identity and of his private life, the protection of which is enshrined in Article 7 of the Charter. However, this right 
could be balanced with other legitimate interests. In this case, the German authorities’ refusal to recognise the name 
had been based on public policy grounds, namely the fact that titles of nobility had been abolished under German 

54   Proposal  for  a  Regulation  of  The  European  Parliament  and  of  the  Council  establishing  the  criteria  and  mechanisms  for 
determining the Member State responsible for examining an application for international protection lodged in one of the 
Member States by a third-country national or a stateless person (recast),  COM(2016) 270 final, 4.5.2016.  

55   Proposal  for  a  Regulation  of  the  European  Parliament  and  of  the  Council  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] , for identifying an illegally staying 
third-country national or stateless person and on requests for the comparison with Eurodac data by Member States'’ law 
enforcement authorities and Europol for law enforcement purposes (recast) ( COM(2016) 272 final, 4.5.2016). 
See section below on Article 8. 
See section below on Article 24. 

56  
57  
58   Proposal for a Directive of the European Parliament and of the Council on the conditions of entry and residence of third-

country nationals for the purposes of highly skilled employment (COM(2016) 378 final, 7.6.2016). 
See section below on Article 15. 

59  
60   CJEU judgment of 2 June 2016 in Case C-438/14, Bogendorff von Wolffersdorff; see section below on Article 24. 

25 

 
                                                            
law. In the interest of equal treatment of all German nationals, the authorities refused to allow a reintroduction of 
such titles by use of the law of another Member State. The Court analysed this potential justification of restricting 
the freedom of movement (and thereby the restriction of Article 7) and accepted that the objective of observing the 
principle of equal treatment before the law in Germany is compatible with EU law, noting that the principle of equal 
treatment is enshrined in Article 20 of the Charter. Hence, it left it to the referring court to determine whether the 
restriction was necessary and proportionate in view of the public policy grounds that were cited. 

On 13 September 2016, the CJEU delivered judgments in two similar cases: 

 

 

In the CS case,61 the Court examined the expulsion to a non-EU country of a non-EU national who had been 
convicted  of  a  criminal  offence  and  who  was  the  parent  and  primary  carer  of  a  young  child  holding 
citizenship of a Member State. The child was consequently an EU citizen and had also been resident in that 
Member  State  since  birth.  The  Court  held  that  the  expulsion  of  the  parent  could  deprive  the  child  of  the 
genuine  enjoyment  of  the  substance  of  his  or  her  rights  as  an  EU  citizen,  as  he  or  she  may  de  facto  be 
compelled to go with the parent and therefore to leave EU territory. However, the Court also held that, in 
exceptional circumstances, a Member State may expel the person concerned on grounds of public policy or 
public security,  even  where this  means  that  the  child  in  question  will have  to  leave  EU  territory,  provided 
that  such  a  decision  is  proportionate  and  takes  account  of  the  right  to  respect  for  private  and  family  life 
(Article  7  of  the  Charter)  and  the  obligation  to  take  into  consideration  the  child’s  best  interests  (Article 
24(2)). 

In Rendón Marín,62 the Court held that Article 20 TFEU does not permit a non-EU national who has sole care 
of  EU  citizens  who  are  minors  to  be  automatically  refused  a  residence  permit  or  to  be  expelled  from  EU 
territory  on  the  sole  ground  that  he  has  a  criminal  record,  where  that  refusal  has  the  consequence  of 
requiring the children to leave EU territory. In its consideration, the Court pointed out that the assessment of 
the applicant’s situation must take account of the right to respect for private and family life (Article 7 of the 
Charter), which must be read in conjunction with the obligation to take into consideration the child’s best 
interests (Article 24(2)). 

Article 8 — Protection of personal data 

The fundamental right of all to the protection of personal data is explicitly recognised in Article 8 of the Charter and 
also enshrined in Article 16 TFEU. It entails protecting individuals’ freedom to decide how their own personal data 
are used. 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 year 2016 was pivotal for the promotion of the fundamental right to the protection  of personal data and the 
related right to private life. The promotion and protection of both were at the centre of several EU legislative acts 
and international agreements. Strong data protection rules are necessary to rebuild the trust of individuals in how 
their personal data are being used.  

61   CJEU judgment of 13 September 2016 in Case C-304/14, CS; see section below on Article 24. 
62   CJEU judgment of 13 September 2016 in Case C-165/14, Rendón Marín; see section below on Article 24. 

26 

 
 
                                                            
The final adoption of the data reform package in 2016 constitutes a key element of ensuring a high standard for the 
protection of personal data in the European Union. It includes the General Data Protection Regulation (GDPR)63 and 
the Data Protection Directive for Police and Criminal Justice Authorities64.  

The package constitutes a comprehensive reform of EU legislation to strengthen privacy rights. It is a key building 
block of the digital single market. It includes: 

 

 

the new GDPR, which modernises the principles of Directive 95/46/EC,65 tailoring them for the digital age 
and harmonising data protection law in Europe. The GDPR,  which entered into force on 24 May 2016 and 
will  apply  from  25  May  2018,  will  give  citizens  easier  access  to  their  own  personal  data,  a  right  to  data 
portability, a clarified ‘right to be forgotten’ and certain rights in the event of a personal data breach; and 

the Data Protection Directive for Police and Criminal Justice Authorities, which will allow Member States’ 
enforcement  authorities  to  exchange  information  necessary  for  investigations  more  efficiently  and 
effectively.  It  also  ensures  strong  protection  of  personal  data  fully  in  line  with  the  Charter.  The  Directive 
entered into force on 5 May 2016 and Member States have to transpose it into national law by 6 May 2018. 

The consistent application of new legislation will be further strengthened by a new consistency mechanism. 

Following  the  adoption  of  the  data  reform  package,  substantial  efforts  were  made  to  ensure  the  smooth 
introduction  of  the  new  legislation.  The  existing  Article  29  Working  Party  is  already  working  to  prepare  for 
application  of  the  new  acquis;  it  has  adopted  guidelines  on  certain  important  issues  and  laid  the  ground  for  the 
creation  of  a  new  European  Data  Protection  Board.66  The  Commission  has  also  established  an  expert  group  of 
Member  State  representatives  to  exchange  views  and  information  on  the  implementation  of  the  GDPR  and  the 
transposition of the Police and Criminal Justice Authorities Directive. 

At international  level,  data  protection  was  strengthened  through the adoption of  the Commission’s  EU-US  Privacy 
Shield adequacy decision and the EU-US data protection ‘Umbrella Agreement’.67  

The Commission took account of the fundamental rights to private life and protection of personal data in a number 
of other legislative proposals in 2016, particularly in the area of security: 

  Full compliance with fundamental rights was the guiding principle in the Commission’s proposal (adopted on 
5 July) to amend the Fourth Anti-money Laundering Directive.68 The proposed measures include provisions 

63   Regulation (EU) 2016/679 of the European Parliament and of the Council of 27 April 2016 on the protection of natural 
persons with regard to the processing of personal data and on the free movement of such data, and repealing Directive 
95/46/EC (General Data Protection Regulation), OJ L 119, 4.5.2016, p. 1–-88. 

64   Directive (EU) 2016/680 of the European Parliament and of the Council of 27 April 2016 on the protection of 
natural persons with regard to the processing of personal data by competent authorities for the purposes of the 
prevention, investigation, detection or prosecution of criminal offences or the execution of criminal penalties, 
and  on the free  movement  of  such  data,  and  repealing Council Framework  Decision  2008/977/JHA,  OJ L  119, 
4.5.2016, p. 89–-131. 

65   Directive 95/46/EC of the European Parliament and of the Council of 24 October 1995 on the protection of individuals with 

regard to the processing of personal data and on the free movement of such data (OJ L 281, 23.11.1995, p. 31-50). 

66   http://ec.europa.eu/justice/data-protection/article-29/documentation/opinion-

recommendation/files/2016/wp236_en.pdf; 
http://ec.europa.eu/justice/data-protection/article-29/documentation/opinion-
recommendation/files/2016/wp235_en.pdf 

67   Both  are  referred  to  in  detail  below  in  the  subsection  on  agreements  and  other  instruments  affecting  the  international 

protection of fundamental rights. 

68   Proposal  for  a  Directive  of  the  European  Parliament  and  of  the  Council  amending  Directive  (EU)  2015/849  on  the 
prevention of the use of the financial system for the purposes of money laundering or terrorist financing and amending 
Directive 2009/101/EC (COM(2016) 450 final, 5.7.2016). 

27 

 
                                                            
 
to respond adequately and reduce risks relating to financial crime, evolving terrorist threats and the need for 
increased transparency. While these measures are ultimately geared to protecting the financial system, they 
aim to offer all guarantees to balance the need for increased security with the need to protect fundamental 
rights, including the right to private life and the protection of personal data. 

  The  proposal  for  a  Council  Directive  amending  Directive  2011/16/EU  as  regards  access  to  anti-money-
laundering  information  by  tax  authorities  (DAC5)69  took  into  account  potential  interference  with 
fundamental rights. The impact of increased access to beneficial ownership information and the underlying 
customer  due  diligence  procedures  were  analysed  from  the  perspective  of  ensuring  respect  of  Articles  7 
(right  to  private  and  family  life)  and  8  (protection  of  personal  data)  of  the  Charter.  The  assessment 
concluded  that,  while  the  proposed  measures  could  interfere  with  the  fundamental  rights  to  private  life 
(including  confidentiality  of  communications  and  the  protection  of  privacy  and  of  personal  data),  they  are 
necessary and proportionate to ensure the proper functioning of the tax systems and the supervision of the 
proper fulfilment by all actors of their obligations. 

 

In January,  the Commission  presented  a  legislative  proposal  aiming to  ensure  that  the  criminal records  of 
non-EU nationals70 would become as easily available to competent authorities as the criminal records of EU 
nationals. It was considered that it is more difficult conclusively to identify non-EU nationals than EU citizens, 
so there was a need to establish an obligation to store and exchange fingerprints for their identification. In 
the preparation of the proposal, particular attention was paid to the respect of data protection aspects, as 
guaranteed by Article 8 of the Charter. Since the system would interfere with these rights, the necessity and 
proportionality of that interference were carefully checked. 

  Finally,  the EU also  adopted  the  EU Passenger Name  Records  Directive71  and  the Directive  on  Security  of 
Network and Information Systems.72 In addition, the Commission presented proposals for a European travel 
information  and  authorisation  system  (ETIAS),73  put  forward  an  EU  PNR  implementation  plan74  and 
proposed an action plan on the security of travel documents.75 Lastly, in order to enhance security at the 

69   Proposal for a Council Directive amending Directive 2011/16/EU as regards access to anti-money-laundering information by 

tax authorities (COM(2016) 452 final, 5.7.2016). 

70   Proposal  for  a  Directive  of  the  European  Parliament  and  of  the  Council  amending  Council  Framework  Decision 
2009/315/JHA, as  regards the  exchange  of  information  on  third  country  nationals and  as  regards the  European  Criminal 
Records Information System (ECRIS), and replacing Council Decision 2009/316/JHA (COM/2016/07 final, 19.1.2016). 
71   Directive  (EU)  2016/681  of  the  European  Parliament  and  of  the  Council  of  27  April  2016  on  the  use  of  passenger  name 
record (PNR) data for the prevention, detection, investigation and prosecution of terrorist offences and serious crime (OJ L 
119, 4.5.2016, p. 132-149). 

72   Directive  (EU)  2016/1148  of  the  European  Parliament  and  of  the  Council  of  6  July  2016  concerning  measures  for  a  high 

common level of security of network and information systems across the Union (OJ L 194, 19.7.2016, p. 1-30). 

73   Proposal for a Regulation of the European Parliament and of the Council establishing a European Travel Information and 
Authorisation  System  (ETIAS)  and  amending  Regulations  (EU)  No  515/2014,  (EU) 2016/399,  (EU)  2016/794  and  (EU) 
2016/1624 (COM(2016) 731 final, 16.11.2016). 

74  

Implementation Plan for Directive (EU) 2016/681 of the European Parliament and of the Council of 27 April on the use of 
passenger name record (PNR) data for the prevention, detection, investigation and prosecution of terrorist offences and 
serious crime (SWD(2016) 426 final, 28.11.2016). 

75   Communication from the Commission to the European Parliament and the Council, Action plan to strengthen the European 

response to travel document fraud (COM(2016) 790 final, 8.12.2016). 

28 

 
                                                            
external border, the Commission proposed an EU entry/exit system.76 All of these instruments were checked 
as to their compatibility with the fundamental right to the protection of personal data. 

In the area of migration, a European Border and Coast Guard was established by Regulation (EU) 2016/1624 on 14 
September 2016. When processing personal data, the Agency will apply Regulation (EC) No 45/2001,77 which gives 
effect to the right to the protection of personal data. In addition, respect for fundamental rights will be guaranteed 
by the codes of conduct to be developed by the Agency, which will inter alia set common standardised procedures to 
assure return in a humane manner and in full respect of fundamental rights,78 including the right to the protection of 
personal data. 

To support the practical implementation of the reformed Dublin System,79 the Commission also proposed adapting 
and  reinforcing  the  Eurodac  system.  The  proposal  for  a  recast  Eurodac  Regulation  will  extend  its  scope  to  allow 
Member States to store and search data belonging to all three categories of data, i.e. also third country-nationals 
apprehended in connection with the irregular crossing of an external border and those found illegally staying in the 
EU, so that they can be identified for return and readmission purposes. Immigration authorities will also be able to 
ascertain whether an illegally staying third-country national in a Member State has claimed asylum, or has entered 
the EU illegally at the external border. It will also allow Member States to store more personal data in Eurodac, such 
as  names,  dates  of  birth,  nationalities,  nationalities  type  and  number  of  identity  or  travel  document,  and  facial 
images of individuals. The aim is to allow immigration and asylum authorities to identify irregular non-EU nationals 
or  asylum  applicants  without  having  to  request  the  information  from  another  Member  State  separately,  as  is 
currently the case. The proposal has been checked for full compliance with data protection rules, in accordance with 
Article 8 of the Charter. 

As regards the control of external borders, an agreement was reached in December on the proposal for a Regulation 
amending  Regulation  (EC)  No  562/2006  ,80  which  reinforces  checks  against  relevant  databases  at  external  borders 
(Schengen Borders Code. Following its entry into force, Member States will be obliged, when persons enjoying the 
right of free movement under Union law cross the external border, to carry out systematic checks against databases 
on lost and stolen documents and in order to verify that the persons do not represent a threat to public order and 
internal  security.  As  the  databases  are  consulted  on  the  basis  of  a  hit/no-hit  system,  the  consultation  is  neither 
registered nor further processed and so respects the rights to respect of private and family life (Article 7) and to the 
protection of personal data (Article 8). 

On 21 December, the Commission adopted three proposals for  Regulations amending the legislative basis for the 
SIS.81  These  involve  technical  and  operational  improvements  to  the  SIS  to  address  issues  identified  in  the 

76   Proposal for a Regulation of the European Parliament and of the Council establishing an Entry/Exit System (EES) to register 
entry and exit data and refusal of entry data of third-country nationals crossing the external borders of the Member States 
of the European Union and determining the conditions for access to the EES for law enforcement purposes and amending 
Regulation (EC) No 767/2008 and Regulation (EU) No 1077/2011 (COM(2016) 194 final, 6.4.2016). 

77   Regulation  (EC)  No  45/2001  of  the  European  Parliament  and  of  the  Council  of  18  December  2000  on  the  protection  of 
individuals  with  regard  to  the  processing  of  personal  data  by  the  Community  institutions  and  bodies  and  on  the  free 
movement of such data (OJ L 008, 12.1.2001, p. 1). 
See sections above on Articles 1, 2, 4 and below on 19 and 24. 
See section below on Article 18. 

78  
79  
80   Proposal for a Regulation of the European Parliament and of the Council amending Regulation (EC) No 562/2006 as regards 

the reinforcement of checks against relevant databases at external borders, COM(2015) 670 final 

81   Proposal for a Regulation of the European Parliament and of the Council on the establishment, operation and use of the 
Schengen Information System (SIS) in the field of police cooperation and judicial cooperation in criminal matters, amending 
Regulation  (EU)  No  515/2014  and  repealing  Regulation  (EC)  No 1986/2006,  Council  Decision  2007/533/JHA  and 
Commission Decision 2010/261/EU (COM(2016) 883 final, 21.12.2016);  

29 

 
                                                            
 
 
Commission’s  2016  comprehensive  evaluation  of  the  system.82  They  develop  and  improve  the  existing  system, 
building on the effective safeguards already in place. As the system continues to process personal data (and it will 
process further categories of sensitive biometric data), there are potential impacts on individuals’ fundamental right 
to the protection of such data. Hence, additional safeguards have been put in place to limit the collection and further 
processing of data to what is strictly necessary and operationally required, and granting access to data only to those 
who have an operational need to process them. Clear data retention timeframes have been set out in the proposals 
and there is explicit recognition of and provision for individuals’ rights to access and rectify data relating to them and 
to request erasure in line with their fundamental rights. In addition, the proposals set out requirements for an alert 
to be deleted and introduce a proportionality assessment if an alert is being extended. They also establish extensive 
and robust safeguards for the use of biometric identifiers to avoid innocent persons being  inconvenienced. Lastly, 
they require the end-to-end security of the system, ensuring greater protection of the data stored in it. 

Other legislative instruments adopted in 2016 which had an impact on Articles 7 and 8 of the Charter are connected 
to information systems in the field of customs, energy, transport or fishery policy. 

The  Commission  took  measures  to  implement  Regulation  (EU)  2015/1525.83  The  Import,  Export  and  Transit 
Directory (IET)84 collects information on movements of goods for customs purposes, including details of senders and 
recipients, which, although they usually refer to companies, may also help to identify natural persons. In its work on 
the IET, the Commission implemented specific and adequate data protection safeguards, which were acknowledged 
in a prior check by the European Data Protection Supervisor (EDPS).85 

In the road transport sector, the Commission adopted (on 18 March) new specifications for the smart tachograph,86 
making  full  use  of  advanced  digital  technologies  such  as  the  GALILEO  and  EGNOS  satellite  positioning  systems  in 
order to transmit data on driving time, speed and distance directly to road controllers when the vehicle is moving, 
thus avoiding unnecessary stops for hauliers and improving efficiency for controllers. The new smart tachograph is a 
breakthrough  in  the  enforcement  of  road  transport  legislation.  Data  will  be  processed  in  accordance  with  EU 
legislation on the processing of personal data and the protection of privacy in the electronic communications sector. 

Proposal for a Regulation of the European Parliament and of the Council on the establishment,  operation and use of the 
Schengen  Information  System  (SIS)  in  the  field  of  border  checks,  amending  Regulation  (EU)  No  515/2014  and  repealing 
Regulation (EC) No 1987/2006 (COM(2016) 882 final, 21.12.2016);  
Proposal for a Regulation of the European Parliament and of the Council on the use of the Schengen Information System 
for the return of illegally staying third country nationals (COM(2016) 881 final, 21.12.2016). 

82   Report  from  the  Commission  to  the  European  Parliament  and  the  Council  on  the  evaluation  of  the  second  generation 
Schengen Information System (SIS II) in accordance with Articles 24(5), 43(3) and 50(5) of Regulation (EC) No 1987/2006 
and Articles 59(3) and 66(5) of Decision 2007/533/JHA (COM(2016) 880 final, 21.12.2016). 

84  
85  

83   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  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. 1-12). 
Set up under Article 18(d) of Regulation (EU) 2015/1525. 
EDPS prior check opinions on processing operations of personal data contain a description of the proceedings, a summary 
of the facts, a legal analysis and conclusions. The legal analysis checks, systematically according to a pre-established list, all 
requirements  necessary  to  comply  with  the  data  protection  rules.  The  conclusions  contain  recommendations  to  ensure 
that 
met; 
requirements 
EDPS opinion of 7 December 2016 on the IET (Case 2016-0674 and 2013-1296): 
https://secure.edps.europa.eu/EDPSWEB/webdav/site/mySite/shared/Documents/Supervision/Priorchecks/Opinions/2016
/16-12-07_Import_Export_OLAF_EN.pdf .  

those 

are 

86   Commission Implementing Regulation (EU) 2016/799 of 18 March 2016 implementing Regulation (EU) No 165/2014 laying 
down  the  requirements  for  the  construction,  testing,  installation,  operation  and  repair  of  tachographs  and  their 
components (OJ L 139, 26.5.2016, p. 1). 

30 

 
 
                                                                                                                                                                                                                      
 
 
In  the  field  of  energy,  certain  impacts  on  Article  7  and  8  of  the  Charter  were  acknowledged  in  the  proposal  for  a 
recast of the Electricity Directive,87 In particular, Article 20 of the recast Directive (smart metering functionalities) 
requires Member States to ensure the privacy and data protection of final customers. Article 23 (data management) 
sets out rules for entities that manage metering and consumption data and provides that access to such data should 
be  possible  only  with  the  final  customer’s  consent.  Annex  III  to  the  proposal  requires  the  highest  level  of 
cybersecurity and data protection for energy consumers equipped with smart metering systems.88 

The proposal for an amendment of the Energy Efficiency Directive89 provides that energy meters should be remotely 
readable.  This  will  avoid  the  need  for  meter  readers  to  go  into  people’s  homes  and  so  increase  the  respect  of 
privacy. 

The Commission balanced the Union’s interests in guaranteeing transparency in the use of public money against the 
rights recognised by Article 8 of the Charter as regards the publishing of information about the recipients of state aid 
to  the  fishery  and  aquaculture  sector.  It  decided  that  the  requirement  that  Member  States  publish  information 
about  recipients  on  a  comprehensive  state  aid  website  can  be  waived  when  individual  aid  awards  do  not  exceed 
EUR 30 000.  This  threshold  was  included  in  the  Guidelines  for  the  examination  of  state  aid  to  the  fishery  and 
aquaculture sector in 201590 and the Commission also referred to it in the Supplementary information sheet for state 
aid  to  the  fishery  and  aquaculture  sector  in  the  Annex  to  Commission  Regulation  (EU)  2016/2105,91  which  was 
adopted on 1 December 2016. 

Agreements and other instruments affecting international protection of fundamental rights 

After  having  reached a  political agreement with  the United States  in February  2016,  the Commission adopted  the 
EU-U.S.  Privacy  Shield  adequacy  decision92  with  the  support  of  the  Member  States  in  the  Article  31  Committee, 
following  an  opinion  of  the  Article  29  Working  Party  in  July.93  It  replaces  the  Commission’s  2000  Safe  Harbour 
adequacy decision, which had been declared invalid by the CJEU in its ruling in the Max Schrems case in 2015.94 The 
Commission took into account the requirements set out in that ruling. 

The Privacy Shield framework became operational on 1 August 2016. It ensures the free flow of personal data for 
commercial  purposes  between  the  EU  and  US  companies  certified  under  the  Privacy  Shield,  while  ensuring  the 
fundamental right to the protection of personal data as guaranteed by Article 8 of the Charter. It comprises a set of 
privacy principles and ensures oversight and enforcement of compliance by Privacy Shield companies, and redress in 
cases of individual complaints. As redress mechanism of last resort when other avenues (such as intervention by the 
EU  data  protection  authorities,  the  US  Department  of  Commerce  or  the  Federal  Trade  Commission)  have  been 
exhausted, it provides for an arbitration mechanism that can be invoked by individuals. As regards possible access to 

87   Proposal  for  a  Directive  of  the  European  Parliament  and  of  the  Council  on  common  rules  for  the  internal  market  in 

electricity (recast) (COM(2016) 864 final, 30.11.2016). 

88   Annexes to the Proposal for a Directive of the European Parliament and of the Council on common rules for the internal 

market in electricity (COM(2016) 864 final, 30.11.2016). 

89   Proposal  for  a  Directive  of  the  European  Parliament  and  of  the  Council  amending  Directive  2012/27/EU  on  energy 

efficiency (COM/2016/0761 final, 30.11.2016). 

90   Guidelines for the examination of state aid to the fishery and aquaculture sector (OJ C 217, 2.7.2015, p. 1). 
91   Commission Regulation (EU) 2016/2105 of 1 December 2016 amending Annex I to Regulation (EC) No 794/2004 as regards 
the form to be used for the notification of state aid to the fishery and aquaculture sector (OJ L 327, 2.12.2016, p. 19). 
92   Commission  Implementing  Decision  (EU)  2016/1250  of  12  July  2016  pursuant  to  Directive  95/46/EC  of  the  European 
Parliament and of the Council on the adequacy of the protection provided by the EU-U.S. Privacy Shield, C/2016/4176 OJ L 
207, 1.8.2016. . 

93   Opinion  01/2016  of  the  Working  Party  on  the  Protection  of  Individuals  with  regard  to  the  Processing  of  Personal  Data 
established  under  Article  29  (13  April  2016)  and  European  Parliament  Resolution  of  26 May 2016  on  transatlantic  data 
flows (2016/2727/(RSP). 

94   CJEU judgment of 6 October 2015 in Case C-362/14 Maximillian Schrems v Data Protection Commission. 

31 

 
                                                            
personal  data  by  the  US  authorities  for  national  security  purposes,  the  Commission  relies  on  their  explicit 
representations and assurances that there is no mass surveillance of Europeans and their data. Possible complaints 
will  be  handled  by  a  new  Ombudsperson,  independent  from  the  US  intelligence  services,  a  new  mechanism 
specifically created for Privacy Shield. The Commission will monitor the proper functioning of the Privacy Shield and 
any legal developments in the United States. Relevant issues will be discussed with US officials on an ad hoc basis or 
as part of the annual joint review. 

In the Schrems judgment, the CJEU also clarified that national supervisory authorities remain competent to oversee 
the transfer of personal data to a non-EU country which has been the subject of a Commission adequacy decision 
and  that  the  Commission  has  no  competence  to  restrict  their  powers  under  Article  28  of  Directive  95/46/EC.95 
Accordingly, it invalidated the first subparagraph of Article 3(1) of the Safe Harbour Decision,  which put restrictive 
conditions  on  the  power  of  national  supervisory  authorities  to  suspend  or  ban  data  flows.  As  a  consequence,  the 
Commission  adopted  two  ‘omnibus’  decisions96  on  16  December  to  amend  the  existing  adequacy  decisions97  and 
decisions on standard contractual clauses,98 which contained comparable restrictive provisions. The latter are now 
replaced with provisions limited to information requirements between Member States and the Commission when a 
national supervisory authority suspends or bans transfers to a non-EU country. The omnibus decision amending the 
existing adequacy decisions also introduces a requirement for the Commission to monitor relevant developments in 
the non-EU country which is the subject of the Commission adequacy decision. 

Ibid., paragraphs 40 et seq., 101 to 103. 

95  
96   Commission Implementing Decision (EU) 2016/2295 of 16 December 2016 amending Decisions 2000/518/EC, 2002/2/EC, 
2003/490/EC,  2003/821/EC,  2004/411/EC,  2008/393/EC,  2010/146/EU,  2010/625/EU,  2011/61/EU  and  implementing 
Decisions 2012/484/EU, 2013/65/EU on the adequate protection of personal data by certain countries, pursuant to Article 
25(6) of Directive 95/46/EC of the European Parliament and the Council (OJ L 344, 17.12.2016, p. 83);  
Commission  implementing  Decision  (EU)  2016/2297  of  16  December  2016  amending  Decisions 2001/497/EC  and 
2010/87/EU  on  standard  contractual  clauses  for  the  transfer  of  personal  data  to  third  countries  and  to  processors 
established in such countries, under Directive 95/46/EC of the European Parliament and the Council (OJ L 344, 17.12.2016, 
p. 100).  
The Commission took the decisions after consulting the EDPS, taking into account the opinion of the Working Party on the 
Protection  of  Individuals  with  regard  to  the  Processing  of  Personal  Data  and  in  accordance  with  the  opinion  of  the 
Committee established under Article 31(1) of Directive 95/46/EC. 

97   Commission  Decision  2000/518/EC  of  26  July  2000  on  the  adequate  level  of  protection  of  personal  data  provided  in 
Switzerland  (OJ  L  215,  25.8.2000,  p.  1);  Commission  Decision  2002/2/EC  of  20  December  2001  on  the  adequate  level  of 
protection of personal data provided by the Canadian Personal Information Protection and Electronic Documents Act (OJ L 
2,  4.1.2002,  p.  13);  Commission  Decision  2003/490/EC  of  30  June  2003  on  the  adequate  protection  of  personal  data  in 
Argentina (OJ L 168, 5.7.2003, p. 19);    
Commission Decision 2003/821/EC of 21 November 2003 on the adequate protection of personal data in Guernsey (OJ L 
308, 25.11.2003, p. 27); Commission Decision 2004/411/EC of 28 April 2004 on the adequate protection of personal data in 
the Isle of Man (OJ L 151, 30.4.2004, p. 48); Commission Decision 2008/393/EC of 8 May 2008 on the adequate protection 
of  personal  data  in  Jersey  (OJ  L  138,  28.5.2008,  p.  21);  Commission  Decision  2010/146/EU  of  5  March  2010  on  the 
adequate protection provided by the Faeroese Act on processing of personal data (OJ L 58, 9.3.2010, p. 17); Commission 
Decision 2010/625/EU of 19 October 2010 on the adequate protection of personal data in Andorra (OJ L 277, 21.10.2010, 
p. 27); Commission Decision 2011/61/EU of 31 January 2011 on the adequate protection of personal data by the State of 
Israel with regard to automated processing of personal data (OJ L 27, 1.2.2011, p. 39); Commission Decision 2012/484/EU 
of  21  August  2012  on  the  adequate  protection  of  personal  data  by  the  Eastern  Republic  of  Uruguay  with  regard  to 
automated  processing  of  personal  data  (OJ  L  227,  23.8.2012,  p.  11);  Commission  Decision  2013/65/EU  of  19  December 
2012 on the adequate protection of personal data by New Zealand (OJ L 28, 30.1.2013, p. 12). 

98   Decision 2001/497/EC of 15 June 2001 on standard contractual clauses for the transfer of personal data to third countries, 

under Directive 95/46/EC (OJ L 181, 4.7.2001, p. 19) 
Decision 2010/87/EU on standard contractual clauses for the transfer of personal data to processors established in third 
countries, under Directive 95/46/EC (OJ L 39, 12.2.2010, p. 5). 

32 

 
                                                            
 
 
 
On 2 June, the EU and the United States formally signed the  Umbrella Agreement99. Rather than providing itself a 
basis  for  data  transfers,  the  Agreement  ensures  a  high  level  of  data  protection  for  any  transfer  of  personal  data 
(based on international agreements or Member States’ laws) between the EU and the USA in the context of police or 
judicial cooperation  in criminal matters.  President  Obama  signed a  new  law,  the Judicial Redress  Bill,  to  allow  the 
Agreement  to  enter  into  force.  The  Bill  extends  to  EU  citizens  the  right  to  judicial  redress  in  US  courts.  On  2 
December,  following  consent  from  the  European  Parliament,  the  Council  adopted  the  decision  to  conclude  the 
Agreement. It entered into force on 1 February 2017. 

Policy 

Commission  policy  work  touching  on  the  right  to  the  protection  of  personal  data  revolved  mainly  around  new 
developments in the digital environment. 

On  30  November,  the Commission adopted  a  European strategy  on  cooperative  intelligent  transport systems  (C-
ITS),100  a  milestone  on  the  road  to  cooperative,  connected  and  automated  mobility.  This  Strategy  outlines  steps 
allowing for commercial deployment, as of 2019, of vehicles that communicate with each other and with the EU road 
infrastructure.  The  protection  of  personal  data  and  privacy  will  be  essential  for  the  successful  deployment  of 
cooperative, connected and automated vehicles, and to public acceptance of the system. Hence, the C-ITS strategy 
proposes action to safeguard this right while facilitating the deployment of C-ITS.  

EU  spectrum  policy  enables  citizens  to  access  and  distribute  digital  content  and  information  of  their  choice.  For 
example, policy initiatives to make available spectrum for wireless broadband services in recent years have led to the 
wider use of internet access, e.g. through smartphones and tablets. Legal safeguards set up by the Commission when 
it devised the architecture of the spectrum inventory take into consideration the right to the protection of personal 
data. The basic act contains clear protections for citizens against potential breaches of data privacy.101 

In the field of the internet of things (IoT), the Commission adopted a set of comprehensive actions to strengthen the 
creation  of  a  digital  single  market  for  IoT  products  and  services.  One  of  these  relates  to  the  creation  of  a  trusted 
environment  for  IoT.  One  of  the  policy  challenges  to  help  the  roll-out  of  IoT  is  to  build  end-users’  trust,  i.e. to 
strengthen  security  and  end-to-end  personal  data  protection  and  privacy.  One  possible  solution  identified  by  the 
Commission  in  its  Communication  on  ICT  standardisation  priorities  for  the  digital  single  market102  could  be  to 
develop a ‘trusted IoT’ label with information for consumers of IoT about the product’s level of security and privacy. 

The data protection and privacy aspects of the Charter must be covered in the context of cloud computing services 
through  the  application  of  data  protection  law.  In  2016,  the  Commission  supported  the  work  of  the  Cloud  Select 
Industry Group (C-SIG) to prepare a data protection code of conduct for cloud service providers, which is designed to 
provide  users  of  cloud  infrastructure,  software  or  platform  services  with  assurance  that  their  data  are  being 

99   Agreement  between  the  United  States  of  America  and  the  European  Union  on  the  protection  of  personal  information 
investigation,  detection,  and  prosecution  of  criminal  offenses,  available  at: 

relating 
http://ec.europa.eu/justice/data-protection/files/dp-umbrella-agreement_en.pdf. 

the  prevention, 

to 

100   Communication  from  the  Commission  to  the  European  Parliament,  the  Council,  the  European  Economic  and  Social 
Committee  and  the  Committee  of  the  Regions,  A  European  strategy  on  cooperative  intelligent  transport  systems  –  a 
milestone towards cooperative, connected and automated mobility (COM(2016) 766 final, 30.11.2016). 

101   Commission  Implementing  Decision  2013/195/EU  of  23  April  2013  defining  the  practical  arrangements,  uniform  formats 
and a methodology in relation to the radio spectrum inventory established by Decision No 243/2012/EU of the European 
Parliament and of the Council establishing a multiannual radio spectrum policy programme (OJ L 113, 25.4.2013, p. 18). 
102   Communication  from  the  Commission  to  the  European  Parliament,  the  Council,  the  European  Economic  and  Social 
Committee and the Committee of the Regions, ICT standardisation priorities for the digital single market (COM(2016) 176 
final, 19.4.2016). 

33 

 
                                                            
protected in accordance with the GDPR. The C-SIG code has also been used as a model for a more specific code of 
conduct for cloud infrastructure providers (CISPE).103 

Case-law 

A  number  of  CJEU  cases  produced further guidance on  the right to  the protection  of  personal  data,  sometimes  in 
connection with the right to private life (as guaranteed in Article 7 of the Charter). 

In the joint cases of Tele2 Sverige AB/ Post-och telestyrelsen104 and Secretary of State for the Home Department/Tom 
Watson e.a,105 the CJEU interpreted national laws on data retention in the light of Articles 7 and 8 of the Charter and 
applicable EU law on the protection of personal data. Following earlier case-law, it examined national legislation in 
two  Member  States  that  required  the  general  and  indiscriminate  retention  of  traffic  and  location  data  for  all 
subscribers  and  registered  users  relating  to  all  means  of  electronic  communication.  It  considered  that  these  laws 
breached the fundamental rights to a private life and protection of personal data as enshrined in Articles 7 and 8 of 
the Charter.  Given  their broad  range  and  limited  safeguards,  it considered  none of  the restrictions  to  be justified, 
even  where  the  objective  was  to  fight  serious  crime.  However,  it  pointed  to  the  fact  that  such  an  objective  may 
justify targeted retention of traffic and location data, provided that this is limited to what is strictly necessary with 
respect to the categories of data to be retained, the means of communication affected, the persons concerned and 
the retention period. It also clarified the requirements under which national competent authorities may access such 
retained data. 

In GS Media BV,106 the CJEU ruled on the posting of hyperlinks in the context of the fundamental right to freedom of 
expression  as  protected  in  Article  11  of  the  Charter.  A  media  company  had  posted  on  its  website  a  hyperlink 
directing  viewers  to  various  websites  displaying  photos  of  a  Dutch  celebrity  taken  by  Playboy  magazine.  As  the 
copyright holder had not authorised publication of the photos on these websites, the magazine’s editor claimed that 
the posting infringed copyrights. Nevertheless, the media company continued to make the hyperlinks available, or 
similar ones when some of the original ones became unavailable. In the light of the EU Copyright Directive,107 the 
Court ruled that any communication to the public of any work had to be authorised by the copyright holder. It held 
that the posting, without the copyright owner’s authorisation, of hyperlinks to works published  on the websites in 
question did constitute ‘communication to the public’. It conceded that in individual cases it could be difficult for the 
person posting the link to assess whether there was an authorisation. In this context, a fair balance had to be struck 
between the copyright holder’s right and the right to freedom of expression of the person posting the link. However, 
where the person posting hyperlinks was or should have been aware of the copyright infringements, as in the case at 
hand, such action constituted ‘communication to the public’ without the copyright holder’s consent. 

In the Patrick Breyer case,108 the CJEU clarified the concept of personal data. A citizen had brought an action before 
the  German  courts  seeking  an  injunction  to  prevent  websites  run  by  the  federal  German  institutions  that  he 
consulted  from  registering  and  storing  his  IP  addresses.  According  to  the  CJEU’s  preliminary  ruling,  dynamic  IP 
addresses registered by the operator of a website may be considered as personal data where the operator has the 
legal  means  to  obtain  further  information  to  identify  the  person  using  the  IP  address  from  the  internet  service 
provider.  The  Court  also  stated  that  Member  State  legislation  may  not  prevent  website  operators  from  collecting 
and  using  a  visitors’  personal  data  without  their  consent  for  purposes  other  than  facilitating  and  invoicing  the 

103   https://ec.europa.eu/digital-single-market/en/cloud-select-industry-group-code-conduct 
104   CJEU judgment of 21 December 2016 in Case C-203/15, Tele2 Sverige. 
105   CJEU judgment of 21 December 2016 in Case C-698/15, Watson and Others. 
106   CJEU judgment of 8 September 2016 in Case C-160/15, GS Media. 
107   Directive  of  the  European  Parliament  and  Council  2001/29/EC  on  the  harmonisation  of  certain  aspects  of  copyright  and 

related rights in the information society (OJ 2001 L 167, 22 May 2001, p. 10). 

108   CJEU judgment of 19 October 2016 in Case C-582/14, Breyer. 

34 

 
                                                            
specific use of services by that visitor. It pointed out that the processing of personal data is lawful, inter alia, if it is 
necessary  to  pursue  a  legitimate  interest,  such  as  preserving  the  general  operability  of  a  website.  This  includes 
protecting it against cyberattacks, provided that the interests or the fundamental rights and freedoms of the data 
subject do not override that objective. 

In a preliminary ruling in Verein für Konsumenteninformation v Amazon EU Sàrl,109 the CJEU clarified how jurisdiction 
on data protection is to be determined. The Austrian Consumers’ Association brought a case against an electronic 
commerce company established in Luxembourg, which inter alia addressed Austrian consumers via a website with a 
‘.de’  domain  name.  The  company  had  no  registered  office  or  establishment  in  Austria.  The  CJEU  ruled  that 
processing of personal data by such an undertaking may be governed by the law of the Member State to which it 
directs its activities, if it is shown that it carries out the processing in the context of the activities of an establishment 
situated in that Member State. 

In Oikonomopoulos,110 the General Court issued a judgment relating to the protection of personal data held by the 
European  Anti-Fraud  Office  (OLAF).  It  confirmed  that  OLAF’s  procedures  respected  the  fundamental  right  to  the 
protection of personal data and the rights of defence. 

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

Article 9 of the Charter is based on Article 12 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  has  been  updated  to  cover  cases  in  which  national  legislation  recognises  arrangements  other  than 
marriage  for  founding  a  family.  Article 9  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. 

Article 10 — Freedom of thought, conscience and religion 

The right guaranteed in Article 10(1) of the Charter corresponds to that in Article 9 ECHR and, in accordance with 
Article 52(3) of the Charter, has the same meaning and scope. It includes freedom to change religion or belief and 
freedom, either alone or in community with others and in public or private, to manifest religion or belief, in worship, 
teaching, practice and observance. The limitations must therefore respect Article 9(2) ECHR, which reads as follows: 

‘Freedom to manifest one’s religion or beliefs shall be subject only to such limitations as are prescribed by law 
and are  necessary in a democratic society in the interests of public safety, for the protection of public order, 
health or morals, or for the protection of the rights and freedoms of others.’ 

Article 10 (2) recognises the right to conscientious objection in accordance with national laws. 

Parliamentary questions 

In  2016,  several  parliamentary  questions  were  raised  on  the  killing  of  animals  without  prior  stunning,  on  the 
Commission’s  policy  on  ritual  slaughter  and  on  whether  the  Commission  intends  to  promote  stunning  before 

109   CJEU judgment of 28 July 2016 in Case C-191/15, Verein für Konsumenteninformation. 
110   CJEU judgment of 20 July 2016 in Case T -483/13, Oikonomopoulos v Commission. 

35 

 
 
 
                                                            
slaughter. The Commission confirmed that Council Directive 98/58/EC on the protection of animals kept for farming 
purposes111  requires  the  Union  to  pay  full  regard  to  animal  welfare  requirements  when  formulating  and 
implementing  certain  EU  policies,  while  respecting,  inter  alia,  religious  rites.  The  Union  also  has  to  respect  the 
freedom of religion and the right to practise it, as enshrined in Article 10 of the Charter. The Commission believes 
that the EU legislation properly reflects the balance between these two considerations.   

Other  parliamentary  questions  concerned  the  impact  of  national  prohibitions  on  wearing  a  full-face  veil  in  public 
places on the right to manifest religion freely. The Commission noted that the EU has no competence to legislate on 
this matter and it is for each Member State to ensure that it fulfils its obligations on fundamental rights, as resulting 
from international agreements, the ECHR and its national constitution. 

Case-law 

In the context of ritual slaughter, a Belgian court asked the CJEU for a preliminary ruling on whether Article 4(4) of 
Council Regulation (EC) No 1099/2009112 is compatible with the freedom of religion under Article 10 of the Charter. 
Article 4(4) contains an exception for animals subject to particular methods of slaughter prescribed by religious rites 
(without  stunning  the  animals),  provided  that  the  slaughter  takes  place  in  a  slaughterhouse.  The  referring  court 
asked  whether  Article  4(4)  was  contrary  to  Article  9  ECHR  and  Article  10  of  the  Charter,  insofar  as  they  require 
religious  slaughtering  to  take  place  only  in  a  slaughterhouse,  even  if  there  is  insufficient  capacity  in  the  Flemish 
Region  to  meet  the  annual  demand  for  the  ritual  slaughter  of  unstunned  animals  on  the  occasion  of  the  Islamic 
Festival of Sacrifice and converting temporary slaughter establishments into approved slaughterhouses would be too 
cumbersome.113 

Data gathered by the EU Agency for Fundamental Rights 

In December 2016, FRA published a report on Antisemitism, providing an overview of data available in the EU for 
2005-2015.114  The  report  shows  that  a  lack  of  progress  in  data  collection  impedes  the  fight  against  Antisemitism. 
Nevertheless,  where  comprehensive  data  exist,  they  show  that  Antisemitism  remains  a  serious  concern  which 
demands decisive and targeted responses. 

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  borders.  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 ECtHR case-law and is enshrined in the 
EU human rights  guidelines on freedom of expression online and offline.115 The guidelines address a host of issues 
including the safety of journalists, the promotion of media freedom and pluralism, defamation laws, blasphemy laws 
and laws addressing incitement to racial hatred and violence. 

111   Council Directive 98/58/EC of 20 July 1998 concerning protection of animals kept for farming purposes (OJ L 221, 8.8.1998, 

p. 23). 

112   Council Regulation (EC) No 1099/2009 on the protection of animals at the time of killing (OJ L 303, 18.11.2009, p. 1). 
113   CJEU application of 30 September 2016 in C-426/16, Liga van Moskeeën en Islamitische Organisaties Provincie Antwerpen 

and Others, procedure pending. 

114   http://fra.europa.eu/en/publication/2013/discrimination-and-hate-crime-against-jews-eu-member-states-experiences-and 

. 

115 https://eeas.europa.eu/sites/eeas/files/eu_human_rights_guidelines_on_freedom_of_expression_online_ 
and_offline_en.pdf  

36 

 
 
                                                            
Legislation 

On  25  May,  the  Commission  adopted  a  proposal  seeking  to  bring  the  Audiovisual  Media  Services  Directive 
(AVMSD)116 into line with changing market realities. It substantially strengthens the provisions on independence of 
regulators  and  reinforces  the  role  of  the  European  Regulators  Group  for  Audiovisual  Media  Services  (ERGA).  It 
specifies requirements of independence on all national regulatory authorities for audiovisual media services, such as 
impartiality,  adequate  human  and  financial  resources,  adequate  enforcement  powers  and  transparent  dismissal 
procedures. 

In January and April, ERGA issued statements expressing concerns as to the state of regulatory independence and 
media pluralism in Poland, Greece and Croatia.117 

One of the objectives of the proposal for a Directive on copyright in the digital single market118 is to foster a well-
functioning  copyright  marketplace.  The  impact  assessment  concluded  that  the  measures  to  protect  press 
publications should have a positive impact on the freedom of expression and information as they are expected to 
foster the quality of journalistic content. The proposed rules on the use of protected content by services storing and 
giving  access  to  user  uploaded  content  could  have  a  negative  impact  on  the  freedom  of  expression,  but  this  is 
expected to be mitigated by measures obliging the services to put in place complaint and redress mechanisms for 
users in the event of dispute over the application of the new rules. 

Lastly,  the  proposal  for  a  Regulation  of  the  European  Parliament  and  of  the  Council  laying  down  rules  on  the 
exercise  of  copyright  and  related  rights  applicable  to  certain  online  transmissions  of  broadcasting  organisations 
and  retransmissions  of  television  and  radio  programmes119  establishes  mechanisms  that  will  make it simpler  and 
faster  to  clear  rights  for  making  television  and  radio  programmes  available  online  across  borders  and  for 
retransmission of packages of channels via internet-based networks equivalent to cable. The proposal is expected to 
have a positive impact on the freedom of expression and information since it will increase the cross-border provision 
and receipt of TV and radio programmes that originate in other Member States. 

Policy 

In addition to its legislative proposals, the Commission adopted on 14 September a Communication on Promoting a 
fair,  efficient  and  competitive  European  copyright-based  economy  in  the  digital  single  market.120  The 
Communication  encourages  inter  alia  the  development  of  technical  tools  which  will  improve  the  dissemination  of 
and  access  to  protected  content  such  as  audiovisual  works  and  of  new  models  of  financing,  production  and 
distribution of content in the single market. This is expected to have a positive impact on freedom of expression and 
cultural diversity. 

116   Proposal for a Directive of the European Parliament and the Council amending Directive 2010/13/EU on the coordination of 
certain  provisions  laid  down  by  law,  regulation  or  administrative  action  in  Member  States  concerning  the  provision  of 
audiovisual media services in view of changing market realities (COM(2016) 287 final, 25.5.2016). 

117   https://ec.europa.eu/digital-single-market/en/audiovisual-regulators 
118   Proposal  for  a  Directive  of  the  European  Parliament  and  of  the  Council  on  copyright  in  the  Digital  Single  Market 

(COM(2016) 593, 14.9.2016). 

119   Proposal for a Regulation of the European Parliament and of the Council laying down rules on the exercise of copyright and 
related rights applicable to certain online transmissions of broadcasting organisations and retransmissions of television and 
radio programmes (COM(2016) 594, 14.9.2016). 

120   Communication  from  the  Commission  to  the  European  Parliament,  the  Council,  the  European  Economic  and  Social 
Committee  and  the  Committee  of  the  Regions,  Promoting  a  fair,  efficient  and  competitive  European  copyright-based 
economy in the digital single market (COM(2016) 592, 14.9.2016). 

37 

 
                                                            
Held in Brussels on 17-18 November, the second Annual Colloquium on Fundamental Rights121 focused on ‘media 
pluralism and democracy’. First Vice-President Timmermans, Commissioner Oettinger and Commissioner Jourová led 
discussions with a wide range of experts on the key role that free and pluralist media, in particular digital media, play 
in democratic societies. The conclusions, including a number of action points, were published in December.122 

On  25  May,  the  Commission  adopted  a  Communication  on  online  platforms123  indicating  that  it  will  further 
encourage  coordinated  EU-wide  self-regulatory  efforts  by  online  platforms  and  regularly  review  the  effectiveness 
and  comprehensiveness  of  such  voluntary  efforts  with  a  view  to  determining  the  possible  need  for  additional 
measures and ensuring that the exercise of users’ fundamental rights is not limited. 

In  May,  the  Commission  selected  projects  following  a  call  for  proposals  for  a  preparatory  action  in  the  field  of 
violations of media freedom and pluralism, to be run or coordinated by the  European Centre for Press and Media 
Freedom  (ECPMF).124  The  Mapping  Media  Freedom  project  identifies  threats,  violations  and  limitations  faced  by 
media  workers  in  the  EU’s  Member  States,  accession  candidate  countries  and  potential  candidates  for  EU 
membership  and neighbouring countries. Under this project, the International Press Institute (IPI) aims to address 
the threat that the abuse of defamation laws, and criminal defamation laws in particular, poses to the public’s right 
to information in the EU and in candidate countries. The project thus strengthens media freedom and the free flow 
of news and of diverse viewpoints. The IPI’s work under this project allows it to devote greater attention to studying 
and counteracting civil lawsuits intended primarily to intimidate journalists into silence rather than honestly defend 
against  damage  to  legitimate  reputation  rights.  The  IPI  is  particularly  active  in  Turkey  and  Greece,  where  it  leads 
efforts to improve the skills of journalists and media lawyers in defending press freedom rights against legal abuse, 
and  extensively  documents  defamation  cases  brought  against  journalists  or  media  companies  and  the  resultant 
impact on the public’s right to be informed. 

The  annual  meeting  of  the  EU  Media  Literacy  Expert  Group125  took  place  on  15  November  in  Brussels.  The  main 
discussion  topics  included  coordination  and  synergies  with  other  EU  policies,  bridges  between  the  media  industry 
and the education sector to develop and disseminate critical thinking tools, media literacy in the digital era and the 
European Audiovisual Observatory’s mapping of media literacy practices in the EU. 

Case-law 

In  Case  C-547/14  Philip  Morris  Brands  SARL  and  Others,126  the  CJEU  was  asked  to  rule  on  the  interpretation  and 
validity of the Tobacco Products Directive,127 inter alia on the basis that the rules on the labelling of unit packets, on 
outside  packaging,  and  on  tobacco  products  themselves  infringed  Article  11  of  the  Charter  and  the  principle  of 
proportionality.  While  it  found  that  the  limitations  did  constitute  interference  with  the  right  to  freedom  of 
expression, it also found that, given the interest of human health protection in an area characterised by the proven 
harmfulness of tobacco consumption, the Directive did not fail to strike a fair balance between the requirements to 
protect the freedom of expression and information and to protect human health. 

121   http://ec.europa.eu/newsroom/just/item-detail.cfm?item_id=31198 
122   http://ec.europa.eu/information_society/newsroom/image/document/2016-50/2016-fundamental-colloquium-

conclusions_40602.pdf 

123   Communication  from  the  Commission  to  the  European  Parliament,  the  Council,  the  European  Economic  and  Social 
Committee  and  the  Committee  of  the  Regions,  Online  platforms  and  the  digital  single  market  –  opportunities  and 
challenges for Europe (COM(2016) 288), 25.5.2016). 

124   https://ec.europa.eu/digital-single-market/en/media-freedom-projects 
125   https://ec.europa.eu/digital-single-market/en/news/meetings-media-literacy-expert-group 
126   CJEU judgment of 4 May 2016 in Case C-547/14, Philip Morris Brands SARL and Others. 
127   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. 1-38). 

38 

 
                                                            
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 ECHR, but its scope is wider 
since it applies to all European levels. Also, unlike Article 11 ECHR, it specifically mentions the special contribution of 
political parties to expressing the citizens’ political will. 

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

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 they 
cannot be restricted, but restrictions are subject to the strict conditions of Article 52(1) of the Charter.128 

Policy 

On 14 September, the Commission adopted a set of legislative proposals to update the EU’s copyright rules, as set 
out in the digital single market strategy adopted on 6 May 2015.129 Of relevance for Article 13 of the Charter is the 
Proposal  for  a  Directive  on  copyright  in  the  digital  single  market,  which130  contains  various  measures  that  have 
three different objectives:  

  ensuring wider access to content across the EU and improving licensing practices; 

  adapting exceptions and limitations to digital and cross-border environments; and  

 

fostering a well-functioning copyright marketplace.  

With regard to the first aim, the Commission ensured that the measures proposed, while having a limited impact on 
copyright as a property right,131 will have a positive impact on cultural diversity, the freedom of arts and sciences, 
and  the  right  to  education  (specifically  in  the  context  of  the  measures  relating  to  out-of-commerce  works,  as  it  is 
expected  that  more  creative  and  learning  material  will  be  accessible).  As  regards  exceptions  and  limitations,  the 
proposed measures are expected to have a limited impact on copyright (except the measure on the preservation of 
cultural heritage, which has no tangible impact on fundamental rights). 

128   For further explanations, see section below on Article 52. 
129   Proposal  for  a  Directive  of  the  European  Parliament  and  of  the  Council  on  copyright  in  the  digital  single  market 

(COM(2016) 593, 14.9.2016);   
Proposal for a Regulation of the European Parliament and of the Council laying down rules on the exercise of copyright and 
related rights applicable to certain online transmissions of broadcasting organisations and retransmissions of television and 
radio programmes (COM(2016) 594, 14.9.2016); 
Proposal  for  a  Directive  of  the  European  Parliament  and  of  the  Council  on  certain  permitted  uses  of  works  and  other 
subject-matter  protected  by  copyright  and  related  rights  for  the  benefit  of  persons  who  are  blind,  visually  impaired  or 
otherwise  print  disabled  and  amending  Directive  2001/29/EC  on  the  harmonisation  of  certain  aspects  of  copyright  and 
related rights in the information society (COM(2016) 596, 14.9.2016);  
Proposal for a Regulation of the European Parliament and of the Council on the cross-border exchange between the Union 
and  third  countries  of  accessible  format  copies  of  certain  works  and  other  subject-matter  protected  by  copyright  and 
related  rights  for  the  benefit  of  persons  who  are  blind,  visually  impaired  or  otherwise  print  disabled  (COM(2016) 595, 
14.9.2016). 

130   Proposal  for  a  Directive  of  the  European  Parliament  and  of  the  Council  on  copyright  in  the  Digital  Single  Market,  COM 

(2016)593, 14.9.2016. 

131   See section below on Article 17. 

39 

 
 
 
                                                            
 
 
Through  its  research  and  innovation  policy  projects,  the  Commission  furthers  scientific  research  and  ensures  that 
other fundamental rights are respected in this context. In 2016, it continued to support the Fostering Human Rights 
Among  European  Policies  (FRAME)  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.132 

Article 14 — Right to education 

The right to education and access to vocational and continuing training is enshrined in Article 14 of the Charter. It is 
based on the common constitutional traditions of Member States and Article 2 of the Protocol to the ECHR. 

In  2016,  education  was  at  the  forefront  of  the  Commission’s  response  to  the  growing  economic  and  social 
inequalities in the EU, the challenges brought about by the massive arrival of refugees and the problems linked to 
radicalisation in certain Member States. 

Legislation 

The right to education was mainstreamed in particular in the EU’s response to the asylum crisis. 

The Commission proposal for a recast of the Reception Conditions Directive, aimed at ensuring adequate reception 
standards for all asylum applicants throughout the Union, obliges Member States to treat applicants who have been 
granted access to the labour market in the same way as their own nationals with regard inter alia to education and 
vocational training.133 

Similarly, the Commission proposal for a revision of the Directive on the conditions of entry and residence of third-
country nationals for the purposes of highly skilled employment (blue card)134 upholds highly skilled workers’ rights 
to equal treatment, in particular as regards access to education and vocational training. 

The recast Students and Researchers Directive135 was adopted in May 2016. It establishes the conditions of non-EU 
nationals’  entry  and  residence  for  the  purposes  of  research,  study,  training,  voluntary  service,  pupil  exchange 
schemes or educational projects, and au pairing. Member States have until 23 May 2018 to transpose the Directive 
into national law. 

Another area in which the right to education was mainstreamed was the digital agenda. The Commission’s proposal 
for a Directive of the European Parliament and of the Council on copyright in the digital single market136 aims to have 
a  positive  impact  on  the  right  to  education,  specifically  in  the  context  of  measures  relating  to  out-of-commerce 
works, as more creative and learning material will be accessible. 

Policy 

132   http://www.fp7-frame.eu/  
133   See sections above on Articles 1 and 10 and below on Articles 18 and 24. 
134   Proposal for a Directive of the European Parliament and of the Council on the conditions of entry and residence of third-

country nationals for the purposes of highly skilled employment, COM(2016) 378 final, 7.6.2016. 

135   Directive  (EU)  2016/801  of  the  European  Parliament  and  of  the  Council  of  11  May  2016  on  the  conditions  of  entry  and 
residence  of  third-country  nationals  for  the  purposes  of  research,  studies,  training,  voluntary  service,  pupil  exchange 
schemes or educational projects and au pairing (recast) (OJ L 132, 21.5.2016, p. 21-57). 

136   Proposal  for  a  Directive  of  the  European  Parliament  and  of  the  Council  on  copyright  in  the  Digital  Single  Market, 

COM(2016)593, 14.9.2016. See sections above on Articles 8, 11 and 13 and below on Article 17. 

40 

 
 
                                                            
Education policies are instrumental in addressing inequalities, fostering inclusion and tolerance, and promoting the 
common values of democracy, fundamental rights and the rule of law. 

In  2016,  the  Erasmus+  programme  (2014-2020)  focused  on  the  promotion  of  fundamental  values  and  the  social 
inclusion of young people by funding educational and youth activities. It also provided support for mobility periods 
abroad and for language learning, thereby fostering multicultural skills. 

 In June, the Commission adopted a Communication on a "New Skills Agenda for Europe"137 which underlines the 
strategic  importance  of  skills  for  sustaining  jobs,  growth  and  competitiveness.  It  covers  areas  such  as  skills 
development,  mutual  recognition  of  qualifications,  support  for  vocational  education  and  training  and  higher 
education, and ways of exploring the full potential of the digital economy, in order to promote lifelong investment in 
people. It inter alia also proposes a ‘skills guarantee’ to further combat exclusion and inequality. As a follow-up the 
Council  adopted  the  Upskilling  Pathways138  initiative  which  helps  adults  acquire  a  minimum  level  of  literacy, 
numeracy  and  digital  skills,  on  19  December.  The  preliminary  outline  of  the  European  Pillar  of  Social  Rights 
published in March 2016  proposes a principle regarding skills, education and lifelong learning focused on the access 
to quality education and training throughout the life course and on the encouragement of skills upgrading. 

In the European Semester exercise (the EU’s annual cycle of economic policy coordination), the Commission made 
specific  recommendations  to  four  Member  States  (Austria,  Bulgaria,  the  Czech  Republic  and  Hungary)  to  improve 
social  inclusion  in  education,  hence  promoting  the  right  to  education.  A  specific  reference  to  the  inclusion  of  the 
Roma in mainstream education was made for three Member States (the Czech Republic, Hungary and Slovakia). 

In January, the European Parliament highlighted the importance of education in fundamental values in a Resolution 
on fostering mutual respect, integrity, cultural diversity, social inclusion and cohesion. It repeated this message in its 
23  June  Resolution  on  the  follow-up  of  the  strategic  framework  for  European  cooperation  in  education  and 
training (ET 2020),139 in which it called for greater inclusiveness. 

These  messages  were  echoed  by  the  Council  in  its  24  February  Resolution  on  promoting  socio-economic 
development and inclusiveness in the EU through education,140 which underlines that education and training should 
be  a  key  element  in  a  comprehensive  European  approach  aimed  at  fostering  ‘upward  social  convergence’  and 
inclusiveness.  

As  a  follow-up  to  the  2016  Colloquium  on  Fundamental  Rights  on  media  pluralism  and  democracy,141  the 
Commission undertook to reinforce its policy action on media literacy so as to empower citizens to be more active 
and  critical,  in  particular  on  online  platforms.  Funding  will  be  made  available  with  the  support  of  the  European 
Parliament. 

On  7  June,  in  response  to  the  challenges  posed  by  migration,  the  Commission  adopted  an  EU  action  plan  on  the 
integration  of  third-country  nationals.142  This  provides  a  comprehensive  framework  to  support  Member  States’ 
efforts to develop and strengthen their integration policies, and sets out the concrete measures the Commission will 

137   COM(2016) 381 final, 10.06.2016 - http://ec.europa.eu/social/main.jsp?catId=1223. 
138   Council  Recommendation  of  19  December  2016  on  Upskilling  pathways:  new  opportunities  for  adults  (OJ C 484, 

24.12.2016, p. 1-6). 

139   European  Parliament  Resolution  on  Follow-up  of  the  strategic  framework  for  European  cooperation  in  education  and 

training (ET2020) (2015/2281(INI). 

140   Resolution of the Council and of the Representatives of the Governments of the Member States, meeting in the Council (24 
February 2016), on Promoting socio-economic development and inclusiveness in the EU through education: the contribution 
of education and training to the European Semester 2016. 

141   See section above on Article 11. 
142   Communication from the Commission to the European Parliament, the Council, the Committee and the Committee of the 

Regions, Action plan on the integration of third country nationals (COM(2016) 377 final, 7.6.2016). 

41 

 
                                                            
be  taking  in  this  regard.  Education,  including  action  to  promote  language  training,  the  participation  of  migrant 
children in early childhood education and care, teacher training and civic education, features prominently. 

In  its  efforts  to  respond  to  the  wave  of  terrorist  attacks  in  EU  countries,  the  Commission  adopted  a 
Communication143 underlining the importance of education as the  best safety net against social exclusion, which 
for some can be a factor in radicalisation. One of the key actions was to channel EUR 400 million in 2016 through 
Erasmus+ to transnational partnerships to develop innovative policy approaches and practices at grass-roots level, 
prioritising  the  social  inclusion  of  young  people  and  the  promotion  of  fundamental  values  through  the  funding  of 
educational and youth activities. 

As  a  follow-up,  the  Council  adopted  conclusions144  in  November  agreeing  that  education  and  training  represent 
powerful  means  of  promoting  common  values,  for  example  through  human  rights  and  citizenship  education, 
educational  programmes  with  a  focus  on  learning  from  the  past  and  an  inclusive  learning  environment,  fostering 
participation, social mobility and inclusion, thereby laying stronger foundations for society and democratic life. 

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

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

Legislation 

On  22  November,  the  Commission  adopted  a  proposal  for  a  Directive  on  preventive  restructuring  frameworks, 
second chance and measures to increase the efficiency of restructuring, insolvency and discharge procedures.145 A 
key  objective  of  the  initiative  is  to  ensure  that  viable  businesses  in  financial  difficulty  can  avoid  insolvency  and 
liquidation,  and  thus  preserve  their  employees’  jobs  by  staying  in  business.  It  is  expected  that  a  significant 
proportion of the 1.7 million jobs lost to insolvency every year will be saved. Also, it is estimated that offering a true 
second  chance  to  entrepreneurs  to  restart  business  activities  would  create  three  million  jobs  across  Europe.  The 
proposal takes into account the fundamental rights set out in the Charter and takes up the policy options enhancing 
such  rights.  It  will  have  a  positive  impact  on  rights  under  Article  15,  in  particular  the  right  to  engage  in  gainful 
employment. 

In June,  the  Commission adopted  a  proposal  to  reform  the  2009  Blue  Card  Directive.146  The  proposal  is  aimed  at 
improving the EU’s ability to attract and retain highly skilled non-EU nationals, since demographic patterns suggest 
that, even with the more  skilled EU workforce the new skills agenda aims  to  develop, there will still  be a need to 
attract additional talent in the future. The proposal establishes a single EU-wide scheme, replacing parallel national 
schemes  for  the  purpose  of  highly  skilled  employment  to  provide  more  clarity  for  applicants  and  employers,  and 
make the scheme more visible and competitive. It is aimed at enhancing intra-EU mobility by facilitating procedures 
and allowing for shorter business trips (up to 90 days) within the Member States that apply the blue card. It allows 

143   Commission  Communication,  Supporting  the  prevention  of  radicalisation  leading  to  violent  extremism  (COM(2016)  379 

final, 14.6.2016). 

144   Prevention  of  radicalisation  leading  to  violent  extremism,  conclusions  of  the  Council  and  of  the  Representatives  of  the 

Governments of the Member States, meeting in the Council (21 November 2016). 

145   Proposal  for  a  Directive  of  the  European  Parliament  and  of  the  Council  on  preventive  restructuring  frameworks,  second 
chance  and  measures  to  increase  the  efficiency  of  restructuring,  insolvency  and  discharge  procedures  and  amending 
Directive 2012/30/EU (COM(2016) 723 final, 22.11.2016). 

146   Proposal for a Directive of the European Parliament and of the Council on the conditions of entry and residence of third-

country nationals for the purposes of highly skilled employment, COM(2016) 378 final, 7.6.2016. 

42 

 
 
                                                            
for  a  lower  salary  threshold  by  creating  a  flexible  range  within  which  Member  States  can  adjust  the  threshold  to 
their labour markets and provides for more appropriate conditions for recent non-EU graduates and workers in areas 
with a labour shortage. Under the new blue card scheme, highly skilled beneficiaries of international protection will 
be able to apply for a card. The proposal strengthens the rights of both the cardholders (allowing for quicker access 
to  long-term  residence  status,  immediate  and  more  flexible  labour-market  access)  and  their  family  members 
(ensuring  they  can  accompany  the  cardholder).  It  should  thus  make  the  EU  a  more  attractive  destination  for  the 
highly skilled employees the EU economy needs. 

This  initiative  is  fully  consistent  with  the  Charter  and  enhances  some  of  the  rights  enshrined  in  it.  In  particular,  it 
contributes to delivering the right to engage in work and to pursue a freely chosen or accepted occupation (Article 
15(1)). It is also fully consistent with the rights relating to working conditions (Article 15(3)) and the rights of workers 
(Articles  27  to  36),  as  it  upholds  the  rights  to  equal  treatment  for  highly  skilled  workers  as  regards  working 
conditions and access to social security, education and vocational training, and goods and services. 

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.  EU  action  in  policy  areas  where  measures  could  interfere  in  operators’  economic  activity  is 
frequently assessed for its impact on this freedom. 

Legislation 

The Commission’s proposal for a Directive on preventive restructuring frameworks, second chance and measures 
to increase the efficiency of restructuring, insolvency and discharge procedures147 (see above) will have a positive 
impact on the freedom to conduct a business, since: 

 

 

the  availability  of  an  effective  restructuring  framework  will  allow  viable  companies  to  continue  operating 
instead of being driven towards liquidation; and  

the  second  chance  framework  will  allow  honest  over-indebted  entrepreneurs  to  resume  their  business 
activities within a period of time considered optimal taking into account the creditors’ right to property.148 

Case-law 

In  Case  C-134/15,  Lidl  GmbH  &  Co.  KG  v  Freistaat  Sachsen,149  the  CJEU  was  asked  whether  Article 5(4)(b)  of 
Commission Regulation (EC) No 543/2008 on marketing standards for poultry meat (which requires the indication of 
the  total  price  and  the  price  per  weight  unit  on  the  pre-packaging  or  on  a  label  for  fresh  poultry  meat)  was 
compatible with the freedom to conduct a business. While the Court found that the rules could limit the freedom to 
conduct a business, this limitation was justified and proportionate given that they ensured consumer information in 
the  poultry  meat  sector  so  as  to  contribute  to  improving  the  quality  of  the  meat  and  facilitating  its  sale  in  the 
interest of producers and traders. 

147   Proposal  for  a  Directive  of  the  European  Parliament  and  of  the  Council  on  preventive  restructuring  frameworks,  second 
chance  and  measures  to  increase  the  efficiency  of  restructuring,  insolvency  and  discharge  procedures  and  amending 
Directive 2012/30/EU, COM(2016) 723 final, 22.11.2016. 

148   See section above on Article 15. 
149   CJEU judgment of 30 June 2016 in Case C-134/15, Lidl GmbH & Co. KG v Freistaat Sachsen. 

43 

 
 
                                                            
In Case C-201/15 AGET Iraklis,150 the CJEU decided that the mere fact that a Member State requires that collective 
redundancies  be  first  notified  to  a  national  authority,  which  has  the  power  to  oppose  them  on  the  basis  of  the 
protection of workers and of employment, is an unjustified limitation of the freedom to conduct a business. If the 
authority’s assessment was based on very general and imprecise criteria, such as the ‘situation of the undertaking’ 
and  the  ‘conditions  in  the  labour  market’  in  the  case  at  stake,  without  any  reference  in  the  law  to  the  specific 
objective  circumstances  in  which  its  powers  are  to  be  exercised,  the  legislation  would  fail  to  comply  with  the 
principle of proportionality laid down in Article 52(1) of the Charter and, therefore, with Article 16. 

Article 17 — Right to property 

Article 17 of the Charter protects the right of all 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  mentioned  above,151  on  24  June  2016  the  Council  adopted  two  Regulations  aimed  at  helping  international 
couples, whether in a marriage or a registered partnership, to manage their property on a daily basis and to divide it 
in  the  event  of  divorce  or  of  one  of  them  dying.152  The  Regulations  determine  which  Member  State’s  courts  are 
competent to deal with matters concerning the property of an international couple (jurisdiction), which national law 
will apply to the property matters of an international couple (applicable law) and how a decision on these matters 
issued in one Member State will be recognised and enforced in another. They will provide international couples with 
legal certainty and reduce the costs of proceedings. 

The impact assessment accompanying the Commission’s proposals for a Directive on copyright in the digital single 
market and a Regulation on the exercise of copyright and related rights applicable to certain online transmissions of 
broadcasting organisations and retransmissions of television and radio programmes looked in detail at their impact 
on fundamental rights.153 

The proposal for a Directive contains various measures that have three different objectives:  

  ensuring wider access to content across the EU and improving licensing practices;  

  adapting exceptions and limitations to digital and cross-border environments; and  

 

fostering a well-functioning copyright marketplace.  

With regard to the first aim, the Commission concluded in its impact assessment that the proposed measures will 
have  a  limited  impact  on  copyright  as  a  property  right.  A  positive  impact  is  expected  on  cultural  diversity,  the 
freedom of arts and sciences and the right to education. 

The  proposal  for  a  Regulation  on  the  exercise  of  copyright  and  related  rights  applicable  to  certain  online 
transmissions of broadcasting organisations and retransmissions of television and radio programmes154 establishes 
mechanisms that will make it simpler and faster to clear rights for making television and radio programmes available 
online  across  borders  and  for  retransmission  of  packages  of  channels  via  internet-based  networks  equivalent  to 

150   CJEU judgment of 21 December 2016 in Case C-201/15, AGET Iraklis. 
151   See section above on Article 7. 
152   See section below on Article 21. 
153   See section above on Article 13. 
154   Proposal for a Regulation of the European Parliament and of the Council laying down rules on the exercise of copyright and 
related rights applicable to certain online transmissions of broadcasting organisations and retransmissions of television and 
radio programmes, COM(2016)594, 14.9.2016. 

44 

 
 
                                                            
cable. According to the impact assessment, by establishing licensing arrangements applying to certain types of cross-
border  online  transmission  and  digital  retransmission  over  closed  networks,  the  proposal  is  expected  to  have  a 
limited impact on copyright as a property right and on the freedom to conduct a business. Given the increase in the 
cross-border provision and receipt of TV and radio programmes that originate in other Member States, the proposal 
will be particularly important for freedom of expression and information.155 

In  the  Commission’s  proposal  for  a  Directive  on  preventive  restructuring  frameworks,  second  chance  and 
measures to  increase the  efficiency of restructuring, insolvency  and discharge procedures (see above), creditors’ 
rights  to  property  and  to  an  effective  remedy  (Articles 17  and  47  of  the  Charter)  are  upheld  by  a  strong  set  of 
safeguards  where  limitations  may  arise,  such  as  the  limited  duration  of  the  stay  of  enforcement  proceedings,  the 
right to lift it if there is a possibility of unfair prejudice, or the guarantee of court intervention on every occasion their 
rights may be affected. 

In November 2015, following the Paris, Copenhagen and  Thalys train terror attacks that year, the Commission had 
tabled a proposal to amend the EU legislation on the acquisition and possession of firearms.156 In December 2016, 
the  co-legislators  reached  political  agreement  on  the  revision  of  the  EU  Firearms  Directive.157  The  new  rules  will 
substantially  reduce  the  likelihood  of  dangerous  but  legally  held  weapons  falling  into  the  hands  of  criminals  and 
terrorists. The revised Directive broadens the range of prohibited weapons by banning automatic firearms converted 
into semi-automatic firearms and semi-automatic weapons fitted with high-capacity magazines and loading devices. 
This measure restricts the right to property in line with the conditions of Article 52 of the Charter. In particular, it 
involves  stricter  derogations  for  sport  shooters  and  national  defence  reservists  undertaking  voluntary  military 
training, as provided under Member State law. Defined groups of licence holders — such as museums or collectors 
— will also be subject to stringent security and monitoring requirements. 

Policy 

The  Commission’s  Communication  on  Promoting  a  fair,  efficient  and  competitive  European  copyright-based 
economy in the digital single market158 is part of an ambitious agenda that updates the EU copyright framework for 
the benefit of all stakeholders and supports the availability and visibility of European cultural and creative content, 
including  across  borders.  The  Communication  encourages  inter  alia  the  development  of  technical  tools  which  will 
improve  the  dissemination  of  and  access  to  protected  content,  such  as  audiovisual  works,  and  new  models  of 
financing,  production  and  distribution  of  content  in  the  single  market.  It  therefore  contributes  to  upholding 
copyright as a property right and has a positive impact on other fundamental rights such as freedom of expression 
and cultural diversity. 

Case-law 

In  McFadden,159  the  CJEU  ruled  on  the  protection  of  fundamental  rights  in  the  framework  of  court  injunctions 
against online intermediaries, in the implementation of the e-Commerce Directive.160 It held that such injunctions, 
in  so  far  as  they  require  the  communication  network  access  provider  in  question  to  prevent  the  recurrence  of  an 
infringement of a right related to copyright, falls within the scope of the protection of the fundamental right to the 

155   See section above on Article 11. 
156   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). 

157   http://europa.eu/rapid/press-release_IP-16-4464_en.htm 
158   See section on Article 11 above.  
159   CJEU judgment of 15 September 2016 in Case C-484/14, Tobias Mc Fadden v Sony Music Entertainment Germany GmbH. 
160   Directive 2000/31/EC of the European Parliament and of the Council of 8 June 2000 on certain legal aspects of information 
society  services,  in  particular  electronic commerce,  in  the  internal  market  (Directive  on  electronic commerce) (OJ  L  178, 
17.7.2000, p. 1). 

45 

 
                                                            
protection of intellectual property laid down in Article 17(2) of the Charter. It also considered that such injunctions 
were  liable  to  limit  the  freedom  to  conduct  a  business,  protected  under  Article  16,  and  the  right  of  others  to 
freedom of information, which is protected under Article 11. Where several fundamental rights protected under EU 
law are at stake, it considered that it is for the national authorities or courts to ensure that a fair balance is struck 
between them. In view of the requirements deriving from the protection of fundamental rights, Article 12 of the e-
Commerce Directive must be interpreted as not precluding injunctions which require internet providers to prevent 
copyright-protected  work  from  becoming  available  to  the  general  public  from  an  online  (peer-to-peer)  exchange 
platform via an internet connection. The provider may choose which technical measures to take in order to comply 
with the injunction; this is for the referring court to determine. 

In Mamatas and others v Greece,161 the ECtHR addressed a case concerning 6 320 private individuals holding Greek 
state bonds who were forced to exchange the bonds for other debt instruments of lesser value, in order to reduce 
the Greek public debt. After a collective agreement was reached between the institutional investors and the state, 
the bonds were cancelled and replaced by new securities worth 53.5 % less in terms of nominal value. The aim was 
to preserve economic stability and national debt restructuring. The applicants complained about interference with 
their  right  to  property  under  Article  1  of  Protocol  1  ECHR.  The  Court  considered  that  it  was  legitimate  during  the 
financial crisis for the national authorities to act to maintain economic stability and restructure the debt in the public 
interest of the community. The interference pursued a public-interest aim. The Court noted that the applicants could 
have  exercised  their  rights  as  bond-holders  and  sold  their  bonds  on  the  market.  Indeed,  collective  action  clauses 
were common practice on the international money markets. Consequently, the Court considered that the authorities 
had not imposed exceptional or excessive burden on the balance between the public interest and the protection of 
the applicants’ property rights. 

161   ECtHR judgment of 21 July 2016 in Mamatas and others v Greece, applications nos 63066/14, 64297/14 and 66106/14. 

46 

 
                                                            
Article 18 — Right to asylum 

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

Policy and legislation 

A  number  of  measures  adopted  in  2016  for  the  implementation  of  the  European  agenda  on  migration162  are  of 
direct relevance to the enjoyment inter alia of the fundamental right to asylum as guaranteed by Article 18 of the 
Charter.163 

These  included legislative  proposals  for  an  extensive reform of  the CEAS. In  particular,  the Commission presented 
two packages of legislative proposals concerning: 

 

 

 

 

the criteria and mechanisms for determining the Member State responsible for examining applications for 
international protection (Dublin System);  

the further harmonisation of standards for the reception of applicants (Reception Conditions Directive); 

the harmonisation of the type and standards of international protection (Qualification Regulation); and  

the  creation  of  a  genuine  common  procedure  for  international  protection,  providing  clear  rights  and 
procedural  guarantees  for  the  applicants  throughout  the  entire  procedure  (Asylum  Procedures 
Regulation).164  

The reform packages also included proposals: 

 

 

to strengthen the European Asylum Support Office and turn it into a fully-fledged European Union Agency 
for Asylum;165 and  

to establish a Union Resettlement Framework,166 to facilitate a common approach to safe and legal arrival in 
the EU for people in need of international protection.  

In  order  to  resume  transfers  under  the  Dublin  Regulation167    to  Greece,  the  Commission  issued  four  detailed 
recommendations  on  the  specific  measures  Greece  needs  to  take  in  order  to  have  a  well-functioning  asylum 
system.168 

The  Commission  continued  to  roll  out  the  ‘hotspot  approach’,  part  of  the  immediate  action  to  assist  frontline 
Member States facing disproportionate migratory pressure at the EU’s external borders, in Italy and Greece in 2016. 
Hotspot operating procedures were adopted in the course of the year and constant monitoring of the situation in 
the  hotspots,  notably  in  terms  of  respect  for  fundamental  rights,  was  ensured  by  the  presence  on  the  ground  of 
Commission  staff,  EU  agencies,  other  Member  States  and  international  organisations  such  as  UNHCR  and  IOM, 

162   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). 

163   See sections above on Articles 1, 2, 4 and 7 and below on Article 24. 
164   Proposal  for  a  Regulation  of  the  European  Parliament  and  of  the  Council  establishing  a  common  procedure  for 

international protection in the Union and repealing Directive 2013/32/EU (COM(2016) 467 final, 13.7.2016). 

165   Proposal for a Regulation of the European Parliament and of the Council on the European Union Agency for Asylum and 

repealing Regulation (EU) No 439/2010 (COM(2016) 271 final, 13.7.2016). 

166   Proposal for a Regulation of the European Parliament and of the Council establishing a Union Resettlement Framework and 
amending Regulation (EU) No 516/2014 of the European Parliament and the Council (COM(2016) 468 final, 13.7.2016). 
167   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 (OJ L 180, 29.6.2013, p. 31-59). 

168   http://europa.eu/rapid/press-release_MEMO-16-4253_en.htm 

47 

 
                                                            
including with a view to informing migrants and directing them to the relevant process, in due respect of the right to 
asylum. 

The  Commission  reported  regularly  throughout  the  year  on  the  implementation  of  the  priority  actions  under  the 
European agenda on migration, including the hotspots approach.169 

Furthermore,  the Commission  issued a  number of  reports  on  relocation  and  resettlement,170  which  keep  track  of 
the  state  of  implementation  of  the  two  schemes,  identify  challenges  and  recommend  solutions  to  address  those 
challenges. 

Case law 

In its judgment in Kreis Warendorf v Ibrahim Alo and Amira Osso v Region Hannover,171 the Court of Justice clarified 
the possible limits to the freedom of movement granted under the Asylum Qualifications Directive172 to beneficiaries 
of  international  protection  within  the  territory  of  the  Member  State  that  granted  such  status.  It  maintained  in 
particular that a place-of-residence condition may be imposed on beneficiaries of subsidiary protection if they face 
greater integration difficulties than other non-EU citizens who are legally resident in the Member State in question, 
where it can be demonstrated that the limits are intended by the Member State concerned to facilitate integration. 

In another judgment (Danqua),173 the Court of Justice ruled on time limits to apply for subsidiary protection status, 
holding that the Asylum Procedures Directive, read in the light of the principle of effectiveness, precludes a national 
procedural rule which requires that an application for subsidiary protection status be made within 15 working days 
of  notification  of  the  rejection  of  the  asylum  claim.  Given  the  difficulties  that  applicants  for  subsidiary  protection 
may face because inter alia of the difficult human and material situation in which they may find themselves, it must 
be held that such a time limit is particularly short and does not ensure, in practice, that all applicants are afforded a 
genuine opportunity to submit their application and, where appropriate, to be granted subsidiary protection status. 
Such a time limit cannot reasonably be justified for the purposes of ensuring the proper conduct of the procedure 
for  examining  an  application  for  that  status,  nor  on  grounds  of  the  need  to  ensure  the  effectiveness  of  return 
procedures, since the time limit at issue in the main proceedings is not directly linked to the return procedure. 

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

Article 19 of  the Charter enshrines the same right as that afforded by Article 4 of Protocol 4 ECHR (prohibition  of 
collective expulsions) and codifies requirements flowing from case-law on Article 3 ECHR (protection of 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). 

169   See 

in  particular  the  following  Commission  Communications  to  the  European  Parliament  and  the  Council: 
The state of play on the implementation of the priority actions under the European agenda on migration (COM(2016) 85 
final, 10.2.2016); Progress report on the implementation of the hotspots in Greece (COM(2016) 141 final, 4.3.2016); Eighth 
report on relocation and resettlement (COM(2016) 791 final, 8.12.2016). 

170     The Commission reports on relocation and resettlement are available at: https://ec.europa.eu/home- affairs/what-we-
do/policies/european-agenda-migration/proposal-implementation-package_en   
171   CJEU judgment of 1 March 2016 in Joined Cases C-443/14 and C-444/14, Kreis Warendorf v Ibrahim Alo and Amira Osso v 

Region Hannover. 

172   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 (OJ 2011 L 337, 
p. 9). 

173   CJEU judgment of 20 October 2016 in Case C-429/15, Evelyn Danqua v Minister for Justice and Equality and Others. 

48 

 
 
                                                            
Legislation and policy 

The Regulation on the European Border and Coast Guard contains a number of fundamental rights safeguards that 
aim to ensure compliance with the Charter, including provisions aimed at promoting application of the principle of 
non-refoulement.  In  particular,  the  code  of  conduct  for  returns  to  be  developed  by  the  Agency  should  describe 
common standardised procedures to assure return in a humane manner and with full respect for fundamental rights, 
including the right to protection in the event of removal, expulsion or extradition. A code of conduct applicable to all 
border  control  operations  coordinated  by  the  Agency  and  all  persons  participating  in  its  activities  will  lay  down 
procedures  intended  to  guarantee  respect  for  fundamental  rights,  with  a  particular  focus  on  vulnerable  persons, 
including persons seeking international protection.174 

Case-law 

In  an  important  judgment  in  the  Petruhhin  case,175  the  CJEU  examined  the  issue  of  whether,  for  the  purposes  of 
applying  an  extradition  agreement  between  a  Member  State  and  a  non-EU  country,  the  nationals  of  another 
Member State should benefit, in the light of the principle of non-discrimination on grounds of nationality and  the 
freedom  of  movement  and  of  residence  of  Union  citizens,  from  the  rule  prohibiting  the  first  Member  State  from 
extraditing its own nationals, and the extent to which the obligations stemming from the Charter are relevant in this 
context. The CJEU ruled that, while a Member State is not required to grant every Union citizen who has moved to its 
territory the same protection against extradition as that granted to its own nationals, it must, before extraditing the 
citizen, give priority to the exchange of information with the Member State of origin and allow that Member State to 
request the citizen’s surrender for the purposes of prosecution. The Court clarified that, in any event, when deciding 
on  extradition,  the  authority  concerned  remains  under  the  obligation  to  assess  the  existence  of  a  real  risk  of 
inhuman or degrading treatment of individuals in the non-EU country in question, in order to ensure full respect of 
Article 19 of the Charter. To that effect, the competent authority must assess the existence of a real risk of inhuman 
or  degrading  treatment  of  individuals  in  the  requesting  third  country,  relying  on  information  that  is  objective, 
reliable,  specific  and  up  to  date.  That  information  may  be  obtained,  inter  alia,  from  judgments  of  international 
courts,  such  as  judgments  of  the  ECtHR  and  of  courts  in  the  requesting  third  country,  and  decisions,  reports  and 
other documents produced by bodies of the Council of Europe or under the aegis of the United Nations. 

174   See sections above on Articles 1, 2 and 4. 
175   CJEU judgment of 6 September 2016 in Case C-182/15, Aleksiej Petruhhin. 

49 

 
                                                            
Letters 

Justice 
26% 

Other 
19% 

Citizens' rights 
18% 

Solidarity 
4% 

Freedoms 
11% 

Dignity 
0% 

Equality 
23% 

Questions 

Respect for private 
and family life 1%  

Protection of personal 
data 6% 

Right to marry and to 
found a family 1% 

Freedom of expression 
and information 1% 

   Other aspects of 
property rights 1% 

Right to asylum 1% 

Citizens' 
rights 
8% 

Solidarity 
11% 

Equality 
28% 

Justice 
7% 

Other 
9% 

Freedoms 
34% 

Dignity 
5% 

Protection of personal 
data 10% 

Freedom of thought, 
conscience and 
religion 2% 

Freedom of expression 
and information 5% 
Freedom to choose an 
occupation and right 
to engage in work 2% 

   - Restitution of 
property 2% 

   - Other aspects of 
property rights 5% 

Right to asylum 3% 

Protection in the 
event of removal, 
expulsion or 
extradition 2% 

50 

 
Petitions 

Citizens' rights 
16% 

Solidarity 
8% 

Justice 
13% 

Other 
5% 

Freedoms 
15% 

Equality 
42% 

Dignity 
2% 

Respect for private 
and family life 2% 

Protection of personal 
data 3% 

Right to marry and 
right to found a family 
1% 

Freedom of assembly 
and of association 3% 

Right to education 
3% 

Freedom to conduct a 
business 1% 

   - Other aspects of 
property rights 3% 

Protection in the event 
of removal, expulsion 
or extradition 1% 

51 

 
 
 
 
Title III 

Equality 

On  8  March  2016,  the  European  Commission  launched  a  public  consultation  on  its  preliminary  outline  of  the 
European  Pillar  of  Social  Rights  receiving  more  than  16.500  replies.  This  preliminary  outline  is  divided  in  three 
Chapters:  1)  equal  opportunities  and  access  to  the  labour  market;  2)  fair  working  conditions;  3)  adequate  and 
sustainable social protection. The pillar will be based on the social objectives and rights enshrined in EU primary law, 
i.e. the  Treaty  on  European  Union,  the  TFEU,  the  Charter,  CJEU  case-law,  and  on    international  law  and  by 
international  agreements  to  which  the  Union  or  all  the  Member  States  are  party,  including  the  European  Social 
Charter and the relevant ILO Conventions and Recommendations. 

The  Commission’s  outline  does  not  re-state  or  modify  existing  rights,  which  remain  valid.  It  aims  to  complement 
them by detailing a number of essential principles which should become common to participating Member States for 
the conduct of their employment and social policy, with a specific focus on the needs and challenges confronting the 
euro area. Once established, the pillar should become a reference framework to screen the employment and social 
performance of participating Member States, to drive reforms at national level and, more specifically, to serve as a 
compass for renewed convergence within the euro area. The pillar is primarily conceived for the Member States of 
the euro area but applicable to all Member States that wish to be part of it. 

In 2016, following the Commission’s adoption on 7 December 2015 of a list of actions to advance LGBTI equality, the 
Council  adopted  conclusions  on  LGBTI  equality,  inviting  the  Member  States  (and  others)  to  work  with  the 
Commission  on  the  implementation  of  the  list  of  actions,  take  action  to  combat  discrimination  on  the  grounds  of 
sexual orientation and gender identity, and further discuss relevant issues and explore ways to accelerate progress. 

November  saw  the  launch  of  the  Commission’s  2017  campaign  of  focused  actions  to  eradicate  violence  against 
women and girls in all its forms and to reduce gender inequality. The Commission is committed to reinforcing the EU 
framework for combating and preventing violence against women and to bringing about improvements in victims’ 
situation.  In  2016,  the  Commission  adopted  proposals  for  the  EU  to  become  party  to  the  Council  of  Europe’s 
Istanbul  Convention,  an  international  treaty  on  combating  and  preventing  violence  against  women  and  domestic 
violence. 

In its Communication of 10 February 2016 on the state of play of the implementation of the priority actions under 
the  European  agenda  on  migration,  the  Commission  highlighted  its  comprehensive  approach  to  protecting  all 
children  in  migration,  with  a  focus  on  strengthening  integrated  cross-border  child-protection  systems.  The  annex 
contains  an  overview  of  ongoing  and  planned  EU  action  to  protect  children  in  migration.  Accordingly,  the  2016 
Commission proposals to reform the CEAS contain a number of child-specific provisions. 

On  29  and  30  November,  the  Commission  hosted  the  10th  Annual  European  Forum  on  the  rights  of  the  child, 
focusing  on  the  protection  of  children  in  migration  and  involving  discussions  around  four  broad  themes: 
identification  and  protection;  reception;  access  to  asylum  procedures  and  procedural  safeguards;  and  durable 
solutions.  

52 

 
 
 
Article 20 — Equality before the law 

Article 20 of the Charter stipulates that everyone is equal before the law. It corresponds to a general principle of law 
included in all European constitutions and recognised by the CJEU as a basic principle of Union law. 

Case-law 

In Bogendorff von Wolffersdorff (C-438/14, 2 June 2016), the CJEU ruled on the possibility to justify, on grounds of 
respect of the principle of equality before the law, potential obstacles to the free movement of EU citizens which 
may derive from a Member State’s refusal to recognise a name adopted by one of its nationals in another Member 
State.176  It  held  that  the  German  authorities’  refusal  on  grounds  of  public  policy  to  recognise  freely  chosen 
forenames and a surname legally acquired by a dual German-UK national in the UK, as they included several tokens 
of  nobility,  constituted  a  restriction  on  the  freedom  to  move  and  reside  across  the  EU,  even  where  it  included 
several tokens of nobility. However, this may be considered justified if necessary to preserve the principle of equal 
treatment before the law (Article 20 of the Charter). The Court also recalled that a person’s surname is a constituent 
element of his identity and his private life, the protection of which is enshrined in Article 7 of the Charter. However, 
such a right could be balanced with other legitimate interests. In this case, the authorities’ refusal to recognise the 
name  had  been  based  on  public  policy  grounds,  namely  the  fact  that  titles  of  nobility  had  been  abolished  under 
German  law.  In  the  interest  of  equal  treatment  of  all  German  nationals,  the  authorities  refused  to  allow  a 
reintroduction  of  such  titles  by  use  of  the  law  of  another  Member  State.  The  Court  analysed  this  potential 
justification of restricting the freedom of movement (and thereby the restriction of Article 7) and accepted that the 
objective of observing the principle of equal treatment before the law in Germany is compatible with EU law, noting 
that the principle of equal treatment is enshrined in Article 20 of the Charter. Hence, it left it to the referring court to 
determine whether the restriction was necessary and proportionate in view of the public policy grounds cited. 

Article 21 — Non-discrimination 

The  Charter  prohibits  discrimination  on  any  grounds,  such  as  sex,  race,  colour,  ethnic  or  social  origin,  genetic 
features,  language,  religion  or  belief,  political  or  any  other  opinion,  membership  of  a  national  minority,  property, 
birth, disability, age or sexual orientation. It 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 elsewhere. 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’s  proposal  for  a  horizontal  anti‑discrimination  Directive,177  which  aims  to  extend  protection 
against  discrimination  on  grounds  of  religion  or  belief,  disability,  age  and  sexual  orientation  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  the  Directive  a  priority  for  this  Commission  and  the 
Commission continues to push for the necessary unanimity in Council. 

176   See sections above on Article 7 and below on Article 45. 
177   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). 

53 

 
 
                                                            
Two  regulations178  adopted  in  June  were  aimed  at  helping  international  couples,  whether  in  a  marriage  or  a 
registered partnership, to manage their property on a daily basis and to divide it in the event of divorce or of one of 
them dying.179 The rules were presented as a package to ensure equal treatment between couples in a marriage and 
those in a registered partnership, and to promote  inter alia respect of the general principle of non-discrimination. 
The regulations establish that the courts or other competent authorities cannot go against Article 21 of the Charter 
in  applying  the  public  policy  exception  in  order  to  set  aside  the  law  of  another  state,  or  in  particular  refusing  to 
recognise a judgment issued in another Member State. 

The  Commission’s  proposal  for  a  recast  Regulation  on  the  internal  market  for  electricity180  explicitly  makes  the 
fundamental  right  to  non-discrimination  central  in  the  regulation  of  balancing  markets,  capacity  allocation 
mechanisms  and  network  access  charges,  and  for  the  establishment  of  network  codes  (also  covered  by  the  ACER 
Regulation).  In  particular,  Article  3  of  the  recast  Electricity  Directive  establishes  the  principle  of  a  competitive, 
consumer-centred,  flexible  and  non-discriminatory  electricity  market,  which  is  reflected  in  all  the  specific  rules 
introduced.  Article  15  of  the  recast  is  aimed  at  ensuring  a  level  playing-field  for  active  customers  (customers  that 
consume, store or sell electricity generated on their premises and for whom electricity generation is not a primary 
commercial or professional activity) and protecting them from discrimination. 

In the area of migration, the Commission took due account of the principle of non-discrimination in its proposal for a 
European  Travel  Information  and  Authorisation  System  (ETIAS).  The  new  largely  automated  system,  aimed  at 
strengthening security checks on visa-free travellers, is designed to gather information on all those travelling visa-
free to the EU in order to decide whether to issue or reject a request to travel to the EU. The proposal clarifies that 
prior  checks  are  to  be  conducted  in  full  respect  of  fundamental  rights,  including  the  general  principle  of  non-
discrimination;  in  particular,  the  screening  rules  and  the  criteria  used  for  defining  the  specific  risk  indicators 
corresponding to previously identified security, irregular migration or public health risk, should in no circumstances 
be  based  on  an  applicant’s  race  or  ethnic  origin,  political  opinions,  religion  or  philosophical  beliefs,  trade  union 
membership, sexual life or sexual orientation. Similarly, the processing of personal data within the system must not 
result  in  discrimination  against  non-EU  nationals  on  the  grounds  of  sex,  racial  or  ethnic  origin,  religion  or  belief, 
disability,  age  or  sexual  orientation.  The  principle  of  non-discrimination  was  also  reinforced  in  the  Commission’s 
proposal  for  a  recast  Reception  Conditions  Directive.  The  proposal  is  aimed  at  further  harmonising  standards  of 
reception  of  asylum  applicants  throughout  the  Union.  In  providing  for  more  favourable  conditions  for  applicants’ 
access  to  the  labour  market,  it  obliges  Member  States  to  treat  applicants  who  have  been  granted  access  to  the 
labour  market  in  the  same  way  as  their  nationals  with  regard  to  working  conditions,  freedom  of  association  and 
affiliation, education and vocational training, the recognition of professional qualifications and social security. 

Policy 

The Commission supports diversity in the workplace not only through legislation, but also by encouraging voluntary 
initiatives  from  businesses  through  an  EU-level  platform  to  support  ‘diversity  charters’.  In  2016,  Portuguese  and 
Hungarian diversity charters were launched and joined the EU platform, bringing the overall number of charters up 
to 17. The EU platform organised a seminar to promote diversity in Central and Eastern Europe by bringing together 
business  representatives  and  emerging  and  established  charters  from  Slovakia,  Slovenia,  Romania,  Bulgaria, 

178   Council  Regulation  (EU)  2016/1103  of  24  June  2016  implementing  enhanced  cooperation  in  the  area  of  jurisdiction, 
applicable  law  and  the  recognition  and  enforcement  of  decisions  in  matters  of  matrimonial  property  regimes  (OJ  L  183, 
8.7.2016, p. 1-29);  
Council  Regulation  (EU)  2016/1104  of  24  June  2016  implementing  enhanced  cooperation  in  the  area  of  jurisdiction, 
applicable  law  and  the  recognition  and  enforcement  of decisions in  matters  of  the  property  consequences  of  registered 
partnerships (OJ L 183, 8.7.2016, p. 30-56). 

179   See sections above on Articles 7 and 17. 
180   Proposal for a Regulation on the internal market for electricity (recast) (COM(2016) 861 final, 30.11.2016). 

54 

 
                                                            
 
Hungary, Latvia, Croatia, Greece, Cyprus, Poland, the Czech Republic, Estonia and France. In addition, the 7th Annual 
Forum  of  Diversity  Charters  (Dublin,  17  October)  focused  on  ‘selling  diversity  in  a  world  of  diversion’,  i.e. on  the 
challenges  and  benefits  of  communicating  diversity  by  business  and  the  media.  Businesses,  academics  and 
policymakers debated proposals and good practices as to how diversity can be implemented in the workplace and on 
better ways of measuring the impact of diversity policies. 

As one of the follow-up actions announced in the conclusions of the first (2015) Colloquium on Fundamental Rights, 
the  Commission  presented  its  first  European  Journalist  Awards  on  Diversity.  The  articles  selected  focused  on 
‘promoting the social acceptance and diversity of all faiths and beliefs’ and showcased examples of print and online 
journalism promoting diversity and combating discrimination. 

The preliminary outline181 of the European Pillar of Social Rights published in March 2016   proposes a principle on 
equal  opportunities,  focused  on  enhancing  the  labour  market  participation  of  under-represented  groups  and  on 
ensuring equal treatiment in all areas. 

Parliamentary questions 

The  Commission  received  a  parliamentary  question  alleging  a  breach  of  the  principle  of  non-discrimination  of 
national  and  linguistic  minorities  in  the  implementation  of  European  structural  and  investment  (ESI)  funds  in  the 
region  of  Catalonia,  Spain.182  The  question  concerned  the  rules  published  by  the  Catalan  Regional  Government 
governing  the  granting  of  aid  from  the  European  Regional  Development  Fund  (ERDF)  to  companies  running 
entrepreneurship  projects,  which  provided  that  Catalan  was  the  main  language  to  be  used  for  grant  applications. 
Asked whether this constituted a form of discrimination on the grounds of language, the Commission replied that, 
while  each  Member  State  remains  competent  to  determine  language  rules  when  managing  ERDF  funding,  that 
competence  should  be  exercised  in  line  with  the  principle  of  non-discrimination  as  enshrined  in  Article  21  of  the 
Charter. However, the Commission had no indication that applications in languages other than Catalan would not be 
treated  fairly  and  that  applicants  for  ERDF  support  were  discriminated  against  for  linguistic  reasons.  If  any  such 
instances of discriminations were identified, the Commission would investigate further. 

Case-law 

In  Ana  De  Diego  Porras  v  Ministerio  de  Defensa,183  the  Court  delivered  a  landmark  decision  declaring  Spanish 
legislation  on  severance  compensation  for  temporary  replacement  contracts  illegal,  in  that  it  breached  Council 
Directive  1999/70/EC  concerning  the  framework  agreement  on  fixed-term  work.  Although  the  Charter  is  not 
specifically mentioned in the ruling, the Court found that Spanish legislation was in breach of the principle of non-
discrimination enshrined in clause 4 of the framework agreement as it discriminated against temporary replacement 
workers by failing to provide any compensation upon termination of their contract, while granting such severance 
pay  to  comparable  permanent  workers.  Another  request  for  a  preliminary  ruling  on  a  similar  issue  was  lodged  in 
November in the Grupo Norte Facility, S.A. v Angel Manuel Moreira Gómez case,184 which specifically underlined the 
compatibility of Spanish legislation with Article 21 of the Charter. 

In  Dansk  Industri,185  the  CJEU  provided  further  clarification  on  the  cross-cutting  application  of  Article 21.  The  case 
concerned  the  application,  in  a  dispute  between  private  persons,  of  national  legislation  depriving  employees  of 

181   See press release of 8 March 2016: http://europa.eu/rapid/press-release_IP-16-544_en.htm . 
182   MEP question P-007264/2016. 
183   CJEU judgment of 14 September 2016 in C-596/14 - de Diego Porras. 
184   CJEU  application  of  14  November  2016  in  Case  C-574/16,  Grupo  Norte  Facility,  S.A.  v  Angel  Manuel  Moreira  Gómez, 

pending judgment.  

185   CJEU  judgment  (Grand  Chamber)  of  19  April  2016  in  Case  C-441/14,  Dansk  Industri  (DI),  acting  on  behalf  of  Ajos  A/S  v 

Estate of Karsten Eigil Rasmussen. 

55 

 
                                                            
entitlement to a severance allowance where the employee is entitled to claim an old-age pension from the employer 
under  a  pension  scheme  which  the  employee  joined  before  reaching  the  age  of  50,  regardless  of  whether  the 
employee chooses to remain on the job market or take his retirement. In considering the merits, the Court clarified 
that  the  principle  of  non-discrimination  on  grounds  of  age,  as  enshrined  in  the  Employment  Equality  Directive,186 
must  be  interpreted  as  precluding  such  national  legislation.  It  further  stated  that  neither  the  principles  of  legal 
certainty and the protection of legitimate expectations nor the fact that it is possible for the private person to bring 
proceedings  to  establish  the  liability  of  the  Member  State  for  breach  of  EU  law  can  alter  the  national  courts’ 
obligation to interpret national provisions, when adjudicating in a dispute between private persons falling within the 
scope of the Directive, in such a way that they may be applied in a manner that is consistent with the Directive or, if 
such  an  interpretation  is  not  possible,  to  disapply  any  provision  of  national  law  that  is  contrary  to  the  general 
principle prohibiting discrimination on grounds of age. 

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

Policy 

The Commission continued to pursue its efforts to improve the response of the EU and the Member States to the 
worrying increase in the incidence of hate speech and hate crime. 

In  June,  following  up  on  conclusions  drawn  at  the  2015  Colloquium  on  Fundamental  Rights,187  the  Commission 
launched  a  new  EU  High-Level  Group  on  combating  racism,  xenophobia  and  other  forms  of  intolerance.188  The 
Group brings together Member States, civil society, EU agencies and, in particular, the Fundamental Rights Agency 
(FRA), and international organisations, including the UN, the OSCE and the Council of Europe, to foster discussion on 
the  specificities  of  particular  forms  of  intolerance  and  improving  responses  to  combat  these  phenomena  and  the 
enforcement  of  existing  rules,189  including  by  more  effective  investigation  and  prosecution  and  better  support  for 
victims. It also aims to foster mutual trust and cooperation between national authorities and NGOs. The participation 
of a range of stakeholders will make it possible to pull together various forms of expertise, increasing coordination 
and  efficiency  and  developing  synergies  where  possible.  Work  on  improving  methodologies  for  recording  and 
collecting data on hate-crime and hate-speech incidents will also continue in this context, with the assistance of the 
FRA. 

In order to counter the proliferation of violence and hatred on the internet, the Commission reached agreement in 
May  with  Facebook,  Twitter,  YouTube  and  Microsoft  on  a  code  of  conduct  on  countering  illegal  hate  speech 
online.190  The  companies  undertook,  inter  alia,  to  review  in  less  than  24  hours  the  majority  of  valid  notifications 
received from citizens and civil society for the removal of illegal hate speech and assess them in the light of national 
legislation  transposing  the  EU  Framework  Decision  on  combating  certain  forms  and  expressions  of  racism  and 
xenophobia by means of criminal law.191 The code of conduct recognises the important role of civil society and the 
ITcompanies undertook to support civil society organisations, to further develop cooperation with trusted reporters 

186   Council Directive 2000/78/EC of 27 November 2000 establishing a general framework for equal treatment in employment 

and occupation (OJ L 303, 2.12.2000, p. 16-22). 

187   http://ec.europa.eu/justice/events/colloquium-fundamental-rights-
2015/files/fundamental_rights_colloquium_conclusions_en.pdf 

188   http://ec.europa.eu/transparency/regexpert/index.cfm?do=groupDetail.groupDetail&groupID=3425  
189  

Including 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) and 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. 57-73). 

190   http://europa.eu/rapid/press-release_IP-16-1937_en.htm 
191   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). 

56 

 
                                                            
of  the  platforms,  to  enhance  the  development  of  counter-narratives  and  to  work  on  improving  transparency.  In 
December,  on  the  occasion  of  the  second  meeting  of  the  High-Level  Group,  the  Commission  presented  the  first 
results of a monitoring exercise to assess the progress made by IT companies in implementing the code of conduct, 
in  particular  as  regards  their  reactions  on  being  notified  of  illegal  hate  speech.192  This  exercise,  carried  out  on  a 
voluntary  basis  by  12  civil  society  organisations,  covered  600  notifications  reporting  alleged  illegal  hate  speech 
content to  IT  companies.193  The Commission announced  a  second  monitoring exercise  to  be  scheduled  in  the first 
half of 2017. 

Lastly, the Commission continued to support projects on preventing and combating racism, xenophobia and other 
forms of intolerance under the Rights, Equality and Citizenship programme. In particular, it made available EUR 6 
million  to  support  national  authorities’  and  civil  society  projects  involving  training  and  capacity  building,  fostering 
tolerance  and  encouraging  better  understanding  between  communities  through  interreligious  and  intercultural 
activities, exchanging best practices to effectively prevent and combat racism and xenophobia, including hate speech 
online, enhancing cooperation with civil society and supporting victims of hate crime and hate speech. 

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 that on 
combating certain forms and expressions of racism and xenophobia by means of criminal law.194 On that basis, the 
Commission  continued  throughout  2016  its  bilateral  dialogues  with  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.195 

Case-law 

The ECtHR issued two rulings in 2016 condemning Member States for failing to ensure adequate investigations into 
racist assaults. In Sakir v Greece,196 it held that the ineffective investigation into a racist assault on an Afghan national 
breached Article 3 of the Convention, including because the authorities had failed to assess the case in the particular 
context of  the frequent racist incidents  in Athens targeting  migrants  and  refugees.  In  R.B.  v  Hungary,197  the Court 
found a violation of the right to respect for private and family life (Article 8 of the Convention) on account of the 
inadequate  investigation  into  allegations  of  racially  motivated  verbal  abuse  by  the  applicant,  a  woman  of  Roma 
origin. In particular, it considered that the authorities had failed to take all reasonable steps to establish the role of 
racist motives and give due consideration to the fact that the insults and acts in question had taken place during an 
anti-Roma march and had come from a member of an extreme right-wing vigilante group. 

3. EU Framework for National Roma Integration Strategies 

Legislation and policy 

192   http://ec.europa.eu/newsroom/just/item-detail.cfm?&item_id=50840 
193   For further information on the monitoring exercise, see:  

http://ec.europa.eu/information_society/newsroom/image/document/2016-50/factsheet-code-conduct-8_40573.pdf  
194   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). 

195   The  Commission  will  continue  this  exercise  with  the  remaining  Member  States  throughout  2017  and  may  if  necessary 

proceed to the initiation of infringement procedures. 

196   ECtHR judgment of 24 March 2016, Sakir v Greece, application no 48475/09. 
197   ECtHR judgment of 12 April 2016, R.B. v Hungary, application no 64602/12. 

57 

 
                                                            
In  the  context  of  the  EU  Framework  for  National  Roma  Integration  Strategies  up  to  2020,198  all  Member  States 
developed their own Roma integration strategies or integrated sets of policy measures tailored to the needs of the 
Roma population in their country. 

In its annual Communication to the European Parliament and to the Council on the implementation of the national 
Roma integration strategies,199 the Commission presented overall conclusions regarding progress in implementing 
the EU Framework. For the first time, the report reviewed measures taken under the 2013 Council Recommendation 
on effective Roma integration.200 

The  Communication  found  only  limited  progress  in  advancing  Roma  integration,  despite  the  financial,  legal  and 
policy  instruments  at  both  EU  and  Member  State  levels.  The  report  indicates  the  need  for  progress  in  countering 
insufficient cooperation between stakeholders, a lack of commitment on the part of local authorities, ineffective use 
of  available  funds  and  continued  discrimination  against  Roma.  The  area  of  education,  as  a  crucial  means  of 
integration,  received  particular  attention  from  Member  States,  since  many  are  taking  measures  to  improve 
inclusiveness  in  education  and  are  investing  in  early  childhood  development  and  care.  However,  not  enough  was 
being done to tackle social exclusion from the workplace, forced evictions and discrimination against Roma. 

Progress was reported In the areas of funding and cooperation with all stakeholders involved in the process of Roma 
integration.  Several  Member  States  introduced  a  specific  investment  priority  for  the  integration  of  marginalised 
communities,  such  as  Roma,  under  the  European  Structural  and  Investment  Fund  (ESIF),  which  allows  for  explicit 
(not exclusive) targeting and better monitoring of results. 

The ROMACT Programme continued to support the implementation of national Roma integration strategies at the 
local  level  by  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. It already benefitted about 100 municipalities 
in Bulgaria, the Czech Republic, Hungary, Italy, Romania and Slovakia and also assisted local authorities in Belgium, 
France, Germany, Ireland, Sweden and the UK, in better integrating marginalised people, in particular non-nationals 
of Roma ethnicity.201 

In order to step up efforts by Member States, the Commission worked closely together with the Slovak Presidency, 
which tabled a set of conclusions following the Commission communication. The Council Conclusions of 8 December 
2016  urged  Member  States  to  renew  their  commitment  to  supporting  and  accelerating  the  process  of  Roma 
integration and to ensure that policy, legal and financial instruments at European and national level are used to their 
full extent to close the gap between Roma and non-Roma. The Conclusions include references to the role of Roma 
youth, antigypsyism and Roma genocide. 

In the 2016 European Semester exercise, five Member States received country-specific recommendations focusing 
on promoting the participation of Roma children in quality and inclusive mainstream education. 

The Commission continued  to  support  a  dialogue among all  national and  European  stakeholders.  It supported the 
development  of  national  Roma  platforms  in  15  Member  States.  These  should  play  a  crucial  role  in  ensuring  the 
transparent and inclusive involvement of all stakeholders in implementation, monitoring and reporting activities. 

The 10th meeting of the European Platform for Roma Inclusion, which gathers all stakeholders at European level, 
took place in Brussels between 29 October and 3 November. It aimed to provide all stakeholders with an opportunity 

198   http://ec.europa.eu/justice/discrimination/roma/index_en.htm 
199   Communication  assessing  the  implementation  of  the  EU  framework  for  national  Roma  integration  strategies  and  the 
Council Recommendation on effective Roma integration measures in the Member States (COM(2016) 424 final, 27.6.2016). 

200   http://eur-lex.europa.eu/legal-content/en/ALL/?uri=CELEX:32013H1224 %2801 %29 
201   Further information available at http://coe-romact.org. 

58 

 
                                                            
to take stock five years after the launch of the EU Framework. The thematic focus (‘the mutual accountability of all 
stakeholders’)  was  decided upon  after  broad  consultation with  European  civil  society and  the network  of  national 
Roma contact points (NRCPs). 

The Commission continued its two-year transnational awareness-raising campaign ‘For Roma with Roma’ (launched 
in  2015)  aimed  at  fighting  anti-Roma  stereotypes  by  working  with  the  media,  promoting  cultural  understanding, 
organising school drawing competitions and supporting twinning projects between local authorities. 

The  Commission  also  strengthened  the  gender  dimension  of  the  Roma  integration  process  by  launching  a  joint 
programme with the Council of Europe on Roma women’s access to justice (JUSTROM) and giving financial support 
to all participating countries.202 

Through  the  EaSI  programme  the  Commission  continued  to  promote  the  empowerment  of  Roma  civil  society,  in 
particular through financial support for the European Roma Grass-roots Organisations Network (ERGO). EaSI support 
helped  boost  the  capacity  of  ERGO  and  its  members  to  participate  in  and  influence  decision-making  and  policy 
implementation at both EU and national levels. 

Under the Rights, Equality and Citizenship programme, support was granted to eight local, national and transnational 
Roma  integration  projects  covering  11  Member  States  and  promoting  activities  such  as  good  practice  exchange, 
awareness-raising  and  training  courses,  in  areas  such  as  fighting  discrimination,  stereotyping  and  segregation, 
promoting early and inclusive education. 

In  the  framework  of  the  International  Holocaust  Remembrance  Day,  the  Commission  organised  specific 
remembrance  events  dedicated  to  the  Roma  genocide  during  WWII  (through  the  2014-2020  Europe  for  Citizens 
programme).  It  supported  the  Roma  Holocaust  day  on  2  August,  through  a  joint  press  statement  by  First  Vice-
President Frans Timmermans and the Commissioner for Justice, Consumers and Gender Equality, Vera Jourova.203 

Application by Member States 

The  Commission  stepped  up  its  efforts  to  ensure  correct  implementation  of  the  anti-discrimination  legislation  in 
respect of Roma, including at local level. In May, it launched an infringement procedure against a Member State for 
discrimination  against  Roma  children,  in  breach  of  Directive  2000/43/EC  implementing  the  principle  of  equal 
treatment between persons irrespective of racial or ethnic origin. 

To  facilitate  dialogue  among  Member  States  in  the  NRCP  network,  the  Commission  made  monitoring  visits  to 
Member  States  which  involved  in-depth  discussions  with  national  and  local  authorities,  and  civil  society 
representatives, and visits to Roma communities. 

4. Fight against homophobia 

Legislation and policy 

On 7 December 2015, the Commission had presented a list of actions to advance LGBTI equality; 2016 was the first 
year of its implementation.204 In June, the Council adopted its first ever conclusions on LGBTI equality,205 inviting the 
Member States, among others, to work together with the Commission on the implementation of the list of actions, 
to  take  action  to  combat  discrimination  on  the  grounds  of  sexual  orientation  and  gender  identity,  and  to  further 

202   https://www.coe.int/de/web/portal/-/justrom-a-new-join-programme-of-the-council-of-europe-and-the-european-

commission 

203   http://europa.eu/rapid/press-release_STATEMENT-15-5444_fr.htm 
204   http://www.consilium.europa.eu/en/press/press-releases/2016/06/16-epsco-conclusions-lgbti-equality/ 
205   http://www.consilium.europa.eu/en/press/press-releases/2016/06/16-epsco-conclusions-lgbti-equality/ 

59 

 
                                                            
discuss relevant issues and explore ways to accelerate progress, fully respecting the Member States’ competences, 
national identities and constitutional traditions. The Commission will adopt a first report on the implementation of 
the list of actions in 2017. 

Several actions demonstrated the Commission’s efforts and commitment to advance LGBTI equality: 

  on  the  occasion  of  the  EuroPride  event,  in  which  the  Commissioner  for  Justice,  Consumers  and  Gender 

Equality participated, it launched the ‘We all share the same dreams’ campaign; 

 

 

it published a report on the business case for LGBTI inclusion in the workplace; and  

issued  a  call  for  proposals  to  support  national  stakeholders’  communication  activities  aimed  at  improving 
LGBTI social acceptance.  

The Commission supports Member States’ efforts to build capacity to improve enforcement of their criminal laws, 
their support for victims and their responses to hate crime and hate speech, including homophobic and transphobic 
speech and crime. It does so through the newly created High-Level Group on racism, xenophobia and other forms 
of  intolerance,  which  met  twice  following  its  launch  on  14 June.  In  addition,  the  code  of  conduct  on  countering 
illegal hate speech online that the Commission agreed with Facebook, Twitter, YouTube and Microsoft on 31 May is 
relevant to containing the spread of illegal hate speech online, including homophobic and transphobic speech when 
such  offences  are  criminalised  under  national  law.  Preventing  and  countering  homophobia  and  transphobia  also 
remains  a  funding  priority  under  the  Rights,  Equality  and  Citizenship  programme,  through  which  the  Commission 
made EUR 6 million available in 2016. 

As regards the mainstreaming of non-discrimination on grounds of sexual orientation and gender identity across EU 
policies, a pilot project funded by the European Parliament was launched in the area of healthcare (‘reducing health 
inequalities  experienced  by  LGBTI  people’).206  The  aim  of  the  project  is  to  better  understand  the  specific  health 
inequalities  experienced  by  LGBTI  people,  focusing  in  particular  on  overlapping  inequalities  stemming  from 
discrimination and unfair treatment on other grounds (e.g. age, disability, socioeconomic status, race and ethnicity) 
and the barriers faced by health professionals when providing care to those groups. 

In the field of asylum, the Commission’s proposal for an Asylum Qualification Regulation included a specific recital 
to encourage Member States, when assessing applications for international protection, to ensure that the individual 
assessment of the applicant’s credibility as regards his or her sexual orientation is not based on stereotyped notions 
concerning  homosexuals  and  that  applicants  are  not  subjected  to  detailed  questioning  or  tests  as  to  their  sexual 
practices. 

Case-law 

In M.C. and A.C. v Romania, which concerned a physical attack on participants in the annual gay march in Bucharest 
on their  way  home  from the march,  the ECtHR condemned Romania  for  violation  of  Article 3  ECHR read  together 
with the prohibition of discrimination (Article 14 ECHR). It found that the authorities had not taken reasonable steps 
to  conduct  a  meaningful inquiry  into  the  possibility  that  the attack  may  have been  motivated by  prejudice,  which 
was  indispensable  given  the  hostility  against  the  LGBTI  community  in  Romania  and  in  the  light  of  the  applicants’ 
submissions that the assailants had uttered clearly homophobic hate speech during the incident. The Court stressed 
that the authorities should have conducted such an inquiry despite the fact that incitement to hate speech was not 
punishable  at  the  time  the  incidents  occurred,  as  the  crimes  could  have  been  assigned  a  legal  classification  that 
would have allowed the proper administration of justice and ensured that prejudice-motivated crimes were treated 
differently from other cases. 

206   https://ec.europa.eu/health/social_determinants/projects/ep_funded_projects_en#fragment2  

60 

 
                                                            
Article 22 — Cultural, religious and linguistic diversity 

Article 22 stipulates that the Union is to respect cultural, religious and linguistic diversity. It is based on Article 167(1) 
and  (4)  TFEU,  concerning  culture.  Respect  for  cultural  and  linguistic  diversity  is  also  laid  down  in  Article  3(3)  TEU. 
Article 22 is also inspired by Article 17 TFEU. 

Legislation 

In 2016, the Commission adopted a proposal for a European Parliament and Council Decision on a European Year of 
Cultural Heritage — 2018,207 which aims to safeguard and promote cultural heritage in the EU. 

The  Commission  also  adopted  a  proposal  to  add  Norway  and  Iceland  to  the  Capitals  of  Culture  action.208  Show-
casing and promoting the richness of Europe’s cultural diversity will thus be extended to more countries. 

Policy 

Article 17(3) TFEU stipulates that the Union is to maintain an open, transparent and regular dialogue with churches, 
religious associations or communities, and philosophical and non-confessional organisations.209 This dialogue takes 
place at various levels in the form of written exchanges, meetings and specific events. Interlocutors are invited to 
contribute to EU policymaking through written consultations launched by the Commission. The dialogue contributes 
to the promotion of religious diversity. 

Following  on  from  the  2015  theme  (‘living  together  and  disagreeing  well’),  the  dialogue  with  religious  and  non-
confessional organisations was dominated by the refugee crisis and the terrorist attacks in Europe. As a result, the 
theme  chosen  in  2016  was  ‘migration,  integration  and  European  values:  putting  values  into  action’.  There  were 
two high-level meetings on the theme with religious leaders and non-confessional organisations, and two seminars 
which prepared the ground for the high-level dialogue.210 These meetings provided a platform to discuss three main 
issues:  

  how to improve integration policies;  

  how to address the rise of populism and intolerance; and 

  how to build more cohesive societies.  

Discussion  focused  on  addressing  fears  and  increased  polarisation  in  European  societies,  and  the  need  to  move 
beyond  crisis  mode  when  it comes  to  migration  and  think  long-term.  The need proactively  to  transmit  values  and 
cultural understanding was underlined, as well as the central role of education. It was agreed that this is a challenge 
for  society  at  large  and  that  concrete  ways  must  be  developed  to  convey  values  in  practice.  The  role  of  the 
Commission  to  ensure  that  European  values  are  embraced  in  the  context  of  migration  and  integration  was  also 
discussed. The organisations present agreed to continue to work with the Commission to develop these ideas. 

207   Proposal for a Decision of the European Parliament and of the Council on a European Year of Cultural Heritage (COM(2016) 

543 final, 30.8.2016). 

208   Proposal for a Decision of the European Parliament and of the Council amending Decision No 445/2014/EU establishing a 

Union action for the European Capitals of Culture for the years 2020 to 2033 (COM(2016) 400 final, 17.6.2016). 

209   See section above on Article 10. 
210   http://ec.europa.eu/newsroom/just/item-detail.cfm?item_id=50189  

61 

 
 
                                                            
In November 2015, national Ministers for culture had 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. 
The working group continued to meet in 2016 under the open method of coordination.   

The EU Work Plan for Culture (2015-2018), as agreed by culture ministers, involves action to protect and promote 
the diversity of cultural expression (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 2016, the EU continued to work with UNESCO to implement the 2005 Convention in the EU and with 
partner countries. 

The  Commission  adopted  a  Communication  on  supporting  the  prevention  of  radicalisation  leading  to  violent 
extremism.211  It  puts  a  strong  emphasis  on  promoting  inclusive  education  and  EU  common  values.  As  of  2016, 
priority is given to actions and projects that foster inclusion and promote fundamental values, echoing the objectives 
of  the  Paris  Declaration.  As  a  result,  EUR  400  million  was  made  available  through  Erasmus+  to  transnational 
partnerships  in  order  to  develop  innovative  policies  and  practices,  prioritising  social  inclusion,  the  promotion  of 
common values and intercultural understanding. 

On 8 June, the Commission and the High Representative for Foreign Affairs and Security Policy adopted a strategy 
for international cultural relations,212 which focuses on three main objectives: 

 

supporting culture as an engine for social and economic development; 

  promoting intercultural dialogue and the role of culture for peaceful inter-community relations; and  

 

reinforcing cooperation on cultural heritage. 

The  European  Parliament  adopted  a  Resolution  on  the  role  of  intercultural  dialogue,  cultural  diversity  and 
education  in  promoting  EU  fundamental  values.213  It  argues  that  fostering  an  intercultural,  interfaith  and  value-
based approach in education promotes mutual respect, integrity, cultural diversity, social inclusion and cohesion. It 
also says that cultural dialogue and diversity should be a cross-cutting element of all EU policies that have an impact 
on shared EU fundamental values and rights. It further highlights the need to step up the exchange of good practices 
and  promote  a  new  structured  dialogue  with  all  stakeholders  in  intercultural  and  interfaith  issues  in  the  light  of 
recent  dramatic  events,  including  with  churches  and  non-confessional  organisations).  Lastly,  the  Resolution 
highlights  the  need  to  train  and  prepare  future  generations  by  giving  them  access  to  a  genuine  education  in 
citizenship. 

The Creative Europe programme (2014-2020) fosters the importance and understanding of cultural diversity across 
Europe through initiatives such as the European heritage label for sites that have shaped Europe’s history.214 This is a 
joint Commission and Council of Europe initiative aimed at providing concrete examples of how local communities 
can contribute to the European dimension of heritage and celebrate heritage as a shared European value.  The 
theme  for  European  Heritage  Days  in  2016  was  ‘heritage  and  communities’.  Also,  the  European  Capitals  of 
Culture  initiative  brings  a  yearlong  celebration  of  art  and  culture  to  two  European  cities   each  year.  Another 
initiative  is  the  European  Border  Breakers,  an  EU-supported  music  prize  that  goes  to  the  best  emerging  talent 
from around Europe. 

211   Commission Communication on supporting the prevention of radicalisation leading to violent extremism (COM(2016) 379 

212  

final, 14.6.2016). 
Joint  Communication  to  the  European  Parliament  and  the  Council,  Towards  an  EU  strategy  for  international  cultural 
relations (JOIN(2016) 29 final, 8.6.2016). 

213   Resolution  of  19  January  2016  on  the  role  of  intercultural  dialogue,  cultural  diversity  and  education  in  promoting  EU 

fundamental values (2015/2139(INI)). 

214   https://ec.europa.eu/programmes/creative-europe/ 

62 

 
                                                            
Article 23 — Equality between women and men 

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

Legislation 

Gender-based  violence,  i.e. violence  committed  against  women  because  they  are  women,  is  a  serious  breach  of 
women’s  fundamental  rights.215  The  Commission  is  committed  to  strengthening  the  EU  framework  for  combating 
and preventing violence against women and to improving victims’ circumstances. In 2016, it adopted proposals for 
the EU to become party to the Council of Europe’s Istanbul Convention, an international treaty on combating and 
preventing  violence  against  women  and  domestic  violence.216  As  stated  in  recital 4  of  the  proposed  Council 
Decisions,  ‘[v]iolence  against  women  is  a  violation  of  their  human  rights  and  an  extreme  form  of  discrimination, 
entrenched in gender inequalities and contributing to maintaining and reinforcing them’.217 The proposals expressly 
mention Article 23 of the Charter, both in the explanatory memorandum and in recital 4, where equality between 
men  and  women  is  reaffirmed  as  a  fundamental  value  and  objective  for  the  EU.  The  EU’s  accession  to  the 
Convention  would  strengthen  its  accountability  for  the  promotion  of  fundamental  rights  within  and  beyond  EU 
borders. The Commission’s proposals are currently under negotiation in the Council. 

The  preliminary  outline  of  the  European  Pillar  of  Social  Rights  published  in  March  2016    proposes  a  principle  on 
gender equality and work-life balance ensuring equal treatment in all areas, including pay, and addressing barriers to 
women's participation and preventing occupational segregation. 

Following its 2015 roadmap218 setting out policy options to address the work-life balance challenges facing working 
families, the Commission worked on an initiative to address the challenges of work-life balance faced by working 
families.219  It  is  aimed  at  increasing  the  participation  of  women  in  the  labour  market  through  better  work-life 
reconciliation, appropriate protection and greater gender equality with regard to labour market opportunities and 
treatment  at  work.220  The  accompanying  impact  assessment  looks  at  the  impact  of  the  possible  measures  to  be 
proposed as regards the provisions of the Charter, including Articles 21 (prohibiting discrimination based on sex), 23 
(equality between women and men), 24 (children’s rights) and 33 (reconciliation of family and professional life). The 
Commission  held  a  two-stage  consultation  with  EU  social  partners.221  The  Advisory  Committee  on  Equal 
Opportunities between Women and Men was also invited to provide an opinion on the initiative, and presented its 
views in a meeting on 8 December 2016.  

Policy 

215   See section above on Article 3. 
216   Proposal for a Council Decision on the signing, on behalf of the European Union, of the Council of Europe Convention on 

preventing and combating violence against women and domestic violence (COM(2016) 111, 4.3.2016);  
Proposal  for  a  Council  Decision  on  the  conclusion,  by  the  European  Union,  of  the  Council  of  Europe  Convention  on 
preventing and combating violence against women and domestic violence (COM(2016) 109, 4.3.2016). 
217   See the explanatory memorandum and recital 4 of the proposals: COM(2016) 111 and COM(2016) 109. 
218   http://ec.europa.eu/smart-regulation/roadmaps/docs/2015_just_xxx_maternity_leave.en.pdf 
219   See sections above on Article 3 and below on Article 33. 
220   http://ec.europa.eu/smart-

regulation/roadmaps/docs/2015_just_012_new_initiative_replacing_maternity_leave_directive_en.pdf 
221   http://ec.europa.eu/justice/newsroom/gender-equality/opinion/1511_roadmap_reconciliation_en.htm 

(public 

consultation); 
http://ec.europa.eu/social/main.jsp?langId=en&catId=89&newsId=2582&furtherNews=yes (social partners consultation). 

63 

 
                                                            
 
 
In November, the Commission launched a 2017 campaign of focused actions to eradicate violence against women 
and girls in all its forms and to reduce gender inequality.222 

The  Commission’s  Communication  on  forced  displacement  and  development  reiterated  the  need  to  put  human 
dignity  and  non-discrimination  at  the  core  of  its  approach  to  forced  displacement.223  The  Commission  underlined 
that the specific protection needs of the forcibly displaced must be addressed in the design of interventions, on the 
basis of a number of criteria, such as gender. The approach promotes fair and equal treatment by seeking inter alia 
to remove barriers to participation in labour markets, facilitating access to social services, upgrading settlements and 
promoting the provision of long-term secure legal status. 

In the field of humanitarian protection, the Commission adopted a Staff Working Document in May, with the aim of 
promoting the risk approach as a tool for identifying the aspects and considerations for humanitarian actions to be 
funded  by  the  EU  budget.  One  risk  elements  to  be  assessed  are  vulnerabilities,  including  discrimination  based  on 
physical  or 
stakeholders 
(gender,  disability,  age,  etc.) 
(e.g. individuals/households/community)  less  able  to  withstand  adverse  impact  from  external  stressors.  The 
Commission  considers  aspects  of  gender  and  age  as  being  particularly  interwoven  with  protection,  as  natural 
disasters and human-made crises have differing impacts on women, girls, men and boys. 

that  makes  primary 

characteristics 

social 

In June, the European Parliament adopted a Resolution on the follow-up of the strategic framework for European 
cooperation  in  education  and  training  (ET  2020).  It  noted  the  important  role  of  education  and  training  in  the 
empowerment of women in all spheres of life and the need to tackle gender gaps. The Parliament underlined that, 
as equality between men and women is one of the EU’s founding values, all educational institutions should endorse 
and implement this principle among their students, with the aim of fostering tolerance, non-discrimination, active 
citizenship, social cohesion and intercultural dialogue.  

In  October,  the  Parliament  adopted  a  Resolution  on  the  assessment  of  the  EU’s  2013-2015  Youth  Strategy,224 
emphasising  the  need  to  include  specific  gender-sensitive  measures  in  youth  policy  on  issues  such  as  combating 
violence against women and girls, sex and relationship education, and education on gender equality. The Resolution 
stressed  the  importance  of  more  and  equal  opportunities  for  all  young  people;  furthering  gender  equality  and 
fighting all forms of discrimination, including on grounds of gender. 

The Erasmus+ programme (2014-2020) supports projects and partnerships between education institutions aimed at 
tackling  discrimination  based  on  gender.  In  the  field  of  sport,  between  2014  and  2016  the  EU  invested  EUR  1.7 
million  in  projects  in  Italy,  Germany  and  the  UK  to  help  promote  gender  equality.  In  November,  the  Commission 
published a study on gender-based violence in sport,225 which maps and provides an overview of Member States’ 
legal  and  policy  frameworks.  It  identifies  several  best  practices  in  combating  gender-based  violence  in  sport  and 
makes recommendations to the Commission, Member States and sport organisations for future action, including a 
recommendation  that  sports  staff  with  a  history  of  offences  be  prevented  from  taking  up  any  roles  in  sporting 
environments in the EU. 

The Commission has made EUR 10 million available to support grassroots efforts to prevent gender-based violence 
and  support  its  victims  in  the  EU.  The  aim  is  to  raise  awareness  and  provide  information  about  violence  against 
women, targeting the general public and professionals who can help change this situation, including police officers, 
teachers, doctors and judges. 

222   http://europa.eu/rapid/press-release_STATEMENT-16-3945_en.htm  
223   See section above on Article 1. 
224   Resolution of 27 October 2016 on the assessment of the EU Youth Strategy 2013-2015 (2015/2351(INI)). 
225   https://ec.europa.eu/sport/sites/sport/files/gender-based-violence-sport-study-2016_en.pdf 

64 

 
                                                            
The  EU’s  research  programme  (Horizon  2020)  promotes  gender  equality  in  the  public  research  sector  and  the 
European research area in collaboration with Member States and research organisations. The main objectives in this 
area are: 

 

removing barriers to the recruitment, retention and career progression of female researchers;  

  addressing gender imbalances in decision-making processes; and  

 

strengthening the gender dimension in research programmes.  

The  Horizon  2020  work  programme  for  2016-2017  explicitly  mentions  that  all  applicants  are  invited  to  explore 
whether  and  how  the  gender  dimension  in  research  content  is  relevant  to  their  research,  including  where 
appropriate  specific  studies  and  training.  In  addition,  gender  equality  is  promoted  in  all  parts  of  Horizon  2020, 
including gender balance at all levels of personnel involved in projects.226 

Case-law 

The  ECtHR  judgment  in  Di  Trizio  v  Switzerland227  concerned  social  allowances  and  their  relevance  for  family  and 
private  life.  Before  giving  birth  to  twins,  the  applicant  had  been  forced  to  give  up  her  full-time  job  due  to  back 
problems  and  was  thereby  entitled  to  an  invalidity  allowance.  Following  the  birth,  she  informed  the  relevant 
authorities that she wished to go back to work on a part-time basis for financial reasons; she therefore expected her 
invalidity  allowance  to  be  reduced  by  50 %,  but  received  no  allowance  at  all.  In  their  assessment,  the  authorities 
relied on the applicant’s declaration that she wanted to work part-time only. The special method used to assess her 
entitlement, which was applied only to individuals working part-time, resulted in a decision to refuse the applicant 
any allowance, since she did not satisfy the minimum 40 % level of disability. The applicant complained that, while 
the same method of calculation was applied to both men and women, it operated to the disadvantage of women 
since, in the vast majority of cases, women, rather than men, worked part-time after the birth of children. 

The  Court  held  that  there  had  been  a  violation  of  Articles  8  (right  to  respect  for  private  and  family  life)  and  14 
(prohibition of discrimination) ECHR. It found that the method of calculation indirectly discriminated against women, 
since  it  affected  women  almost  exclusively  (97 %  of  cases),  and  the  Swiss  Government  had  failed  to  adduce  any 
reasonable justification for the difference in treatment. It observed that the applicant would probably have obtained 
an allowance had she declared to the authorities that it was her intention to work full-time or not to work at all. 

Article 24 — The rights of the child 

Article 24 of the Charter recognises that children are independent and autonomous holders  of rights and provides 
that  children  have  the  right  to  protection  and  care  necessary  for  their  well-being.  It  codifies  their  right  to 
participation, by emphasising that children may express their views freely, and that such views are to be taken into 
consideration on matters which concern them according to their age and maturity. Article 24 also stipulates that in 
all action affecting children, whether by public authorities or private institutions, the child’s best interests must be a 
primary consideration. Lastly, it enshrines every child’s 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) TEU, 
the rights of the child are a priority for the EU. 

Legislation 

226   Commission Decision C(2016) 4614 of 25 July 2016; 

http://ec.europa.eu/research/participants/data/ref/h2020/wp/2016_2017/main/h2020-wp1617-intro_en.pdf  

227   ECtHR judgment of 2 February 2016 in Trizio v Switzerland, application no 7186/09. 

65 

 
 
                                                            
 
On 30 June, the Commission proposed a recast Brussels IIa Regulation. The proposal strengthens the rights of the 
child through: 

  enhanced  measures  relating  to  the  right  to  be  heard  in  all  proceedings  that  concern  them,  in  particular 

proceedings on custody and access, and on the return of children abducted by one of their parents;  

  measures to enhance the efficiency of return proceedings in case of parental child abduction;  

 

improved  cooperation  between  Member  States’  central  authorities  in  handling  cases  concerning  children; 
and  

  greater integration of child welfare authorities in cross-border cooperation.228 

On 11 May, the Parliament and the Council adopted Directive (EU) 2016/800 on procedural safeguards for children 
who are suspects or accused persons in criminal proceedings.229 It contains provisions on: 

 

(mandatory) assistance by a lawyer in specific circumstances (Article 6); 

  a particular right to information for children (Article 4); 

  a  right  to  have  the  holder  of  parental  responsibility  informed  (Article  5)  and  to  be  accompanied  by  the 

holder of parental responsibility (Article 15); 

  a right to an individual assessment (Article 7); 

  a right to a medical examination (Article 8); 

  audiovisual recording of questioning (Article 9); 

 

safeguards in the event of deprivation of liberty and detention (Articles 10-12), e.g. limitation of deprivation 
of liberty; 

  alternative  measures  and  specific  treatment  in  the  event  of  deprivation  of  liberty,  including  separate 

detention of children from adults; 

  a right to protection of privacy (Article 14); 

  a right to appear in person at, and to participate in, trial (Article 16); 

  a right to legal aid (Article 18); and 

  provisions on training and costs (Articles 20 and 22). 

The  Commission’s  proposals  to  reform  the  CEAS  contain  a  number  of  provisions  that  would  strengthen  the 
protection provided to children, including those who are unaccompanied, in key areas such as the assessment of the 
best  interests  of  the  child,  the  child’s  right  to  be  heard  in  asylum  procedures,  ensuring  adequate  reception 
conditions and effective guardianship.230  

The proposal for a recast Dublin Regulation includes references to the rights of unaccompanied children, clarifying 
that  the  Member  State  where  the  child  first lodged his  or  her  application  for  international protection will  be  that 
responsible,  unless  it  is  demonstrated  that  this  is  not  in  the  best  interests  of  the  child.  Before  transferring  an 

228   http://europa.eu/rapid/press-release_MEMO-16-2359_en.htm 
229   Directive (EU) 2016/800 on procedural safeguards for children who are suspects and accused in criminal proceedings (OJ L 

132, 21.5.2016, p. 1-20). 

230   The Commission prepared a publicly available document providing an overview of the amended and proposed provisions 
relevant for children: it contains, in particular, extracts of relevant child-specific provisions in the legislative proposals for 
the Dublin Regulation, the Eurodac Regulation, the Asylum Procedures Regulation, the Qualifications Regulation and the 
Reception Conditions Directive, available at: http://ec.europa.eu/justice/fundamental-
rights/files/rights_child/ceas_provision_on_children_table_updated.pdf 

66 

 
                                                            
unaccompanied child to another Member State, the transferring Member State must make sure that the receiving 
Member State will take the necessary measures to safeguard her/his rights without delay. The right to family unity of 
asylum  applicants  present  on  the  EU  territory  will  be  strengthened  and  the  scope  will  be  extended  to  include 
applicants’  siblings  and  families  formed  in  transit,  after  leaving  the  country  of  origin  but  before  arrival  on  the 
territory of the Member State.  

The recast Eurodac Regulation provides that the fingerprints and facial images of children are to be registered as of 
age six. This provision is particularly important for the protection of the many migrant children who arrive irregularly 
in the EU, as it will help identify children in cases where they are separated from their families by allowing a Member 
State to follow up a line of inquiry where a fingerprint match indicates that they were present in another Member 
State.  It  will  also  strengthen  the  protection  of  unaccompanied  children  who  do  not  always  formally  seek 
international protection or who go missing. The obligation to take fingerprints is to be implemented in full respect of 
the right to human dignity and the rights of the child.231  

In  particular,  the  proposed  Asylum  Procedures  Regulation232  provides  for  safeguards  for  applicants  with  special 
procedural needs, including (in particular, unaccompanied) children. The best interests of the child continue to be a 
primary  consideration  in  all  procedures  applicable  to  unaccompanied  children.  Several  proposed  measures  are 
aimed at securing prompt and effective guardianship for unaccompanied children, including provisions on deadlines 
for  appointment,  workload  for  guardians  and  a  monitoring  system.  The  proposal  also  aims  to  ensure  that  those 
working with unaccompanied children are vetted and trained in child protection and safeguarding aspects. Special 
procedures, such as accelerated examination and border procedures, can be applied to unaccompanied children only 
in limited and justified circumstances. 

The proposed recast Reception Conditions Directive  stipulates that reception conditions are to be adapted to the 
specific situation of children, whether unaccompanied or within families, with due regard to their security, physical 
and emotional care, and are provided in a manner that encourages their general development. The  proposal does 
not change the fact that (under Article 37 of the United Nations Convention on the Rights of the Child), as a rule, 
children should not be detained. However, as is already the case under the current Reception Conditions Directive, 
hildren may be detained with their families and unaccompanied children, but only in exceptional circumstances for 
the  shortest  period  of  time  and  as  a  last  resort.  The  proposal  also  includes  enhanced  guarantees  in  the  area  of 
guardianship, similar to those in the proposed Asylum Procedures Regulation. 

The  proposed  Qualification  Regulation  also  contains  similar  strengthened  safeguards  in  the  area  of  effective 
guardianship. 

With regards to other relevant legislative developments, on 14 september 2016, Regulation (EU) 2016/1624 on the 
European Border and Coast Guard includes a number of references to the rights of the child and child protection.233 
A code of conduct applicable to all border control operations coordinated by the Agency and all persons participating 
in  its  activities  lays  down  procedures  intended  to  guarantee  the  principles  of  the  rule  of  law  and  respect  for 
fundamental rights, with a particular focus on vulnerable persons, including children, unaccompanied children and 

231   The proposal reaffirms Member States’ obligation to ensure that the procedure for taking fingerprints and a facial image 
are  determined  and  applied  in  accordance  with  the  national  practice  of  the  Member  State  concerned  and  with  the 
safeguards laid down in the Charter, the Convention for the Protection of Human Rights and Fundamental Freedoms and 
the UN Convention on the Rights of the Child. 

232   Proposal  for  a  Regulation  of  the  European  Parliament  and  of  the  Council  establishing  a  common  procedure  for 

international protection in the Union and repealing Directive 2013/32/EU (COM(2016) 467 final, 13.7.2016). 

233   e.g. to  the  best  interests  of  the  child  (Article  34(3)),  non-discrimination  (Article  21(4)),  code  of  conduct  (Article  35(1)), 
specific  training  in  the  protection  of  children  (Article  36(1)),  staff  with  expertise  in  child  protection  (recital  37,  Articles 
18(5), 29(2), 29(4), 30(2) and (4), and 31(2) and (4). 

67 

 
                                                            
other persons in a vulnerable situation.234 In all its activities, the Agency must pay particular attention to children’s 
rights and ensure that the best interests of the child are respected. It is obliged take into account the special needs 
of children, unaccompanied children and other persons in a particularly vulnerable situation. 

Regulation  (EU)  2016/399  on  a  Union  Code  on  the  rules  governing  the  movement  of  persons  across  borders 
(Schengen  Borders  Code),  as  adopted  on  9  March,  requires  that  border  guards  pay  particular  attention  to 
children.235 

On  21  December,  to  improve  the  effectiveness  of  the  Schengen  Information  System  (SIS)  in  the  fight  against 
terrorism and cross-border crime, the Commission proposed amending Regulations on the establishment, operation 
and use of the SIS as regards border checks;236 police cooperation and judicial cooperation in criminal matters;237 and 
the  return  of  illegally  staying  third-country  nationals.238  They  provide  for  changes  allowing  preventive  alerts  on 
missing  persons  where  parental  abduction  is  deemed  a  high  risk  and  for  more  refined  categorisation  of  missing 
person alerts (including ‘unaccompanied child’).  

Parental  abductions  often  take  place  in  highly  planned  circumstances,  with  the  intention  of  rapidly  leaving  the 
Member State where  the  custody  arrangements  were  agreed.  The changes  address  a  potential  gap  in  the  current 
legislation whereby alerts for children cannot be issued until they are missing. This will allow authorities in Member 
States  to  indicate  children  at  particular  risk.  Where  there  is  a  high  risk  of  imminent  parental  abduction,  border 
guards  and  law  enforcement  officials  will  be  made  aware  of  the  risk  and  enabled  to  examine  more  closely  the 
circumstances  in  which  an  at-risk  child    is  travelling  and  take  the  child  into  protective  custody  if  necessary. 
Supplementary information, including on the decision of the competent judicial authority that requested the alert, 
will be provided via the SIRENE Bureaux. The SIRENE Manual will be reviewed accordingly.  

This  alert  will  be  subject  to  a  decision  of  the  judicial  authorities  granting  custody  to  one  of  the  parents  only.  A 
further  condition  will  be  that  there  is  an  imminent  risk  of  abduction.  The  status  of  alerts  on  a  missing  child  will 
automatically update to reflect their reaching adulthood, where applicable. Children are much less likely than adults 
to  have  usable  unique  identifiers,  such  as  fingerprints  or  palm  prints,  available.  As  a  result,  the  proposals  make 
provision  for  the  use  of  DNA  profiles,  including  those  based  on  parental  or  sibling  DNA,  to  identify  and  locate 
missing  children  where  fingerprints  and  palm  prints  are  unavailable.  This  functionality  will  be  accessible  only  to 
authorised  users.  Member  States  already  exchange  this  ‘supplementary  information’  with  each  other  at  an 
operational  level.  This  proposal  forms  a  regulatory  framework  around  this  practice,  by  inserting  it  into  the 
substantive  legislative  basis  for  the  operation  and  use  of  SIS  and  establishing  clear  processes  regarding  the 
circumstances in which such profiles may be used.   

234   See sections above on Articles 1, 2, 4 and 19. 
235   Regulation (EU) 2016/399 of the European Parliament and of the Council of 9 March 2016 on a Union Code on the rules 
governing  the  movement  of  persons  across  borders  (Schengen  Borders  Code)  (OJ  L  77,  23.3.2016,  p.  1-52);  see  Article 
20(1)(f) and point 6 of Annex VII. 

236   Proposal for a Regulation of the European Parliament and of the Council on the establishment, operation and use of the 
Schengen  Information  System  (SIS)  in  the  field  of  border  checks,  amending  Regulation  (EU)  No  515/2014  and  repealing 
Regulation (EC) No 1987/2006 (COM(2016) 882 final, 21.12.2016). 

237   Proposal for a Regulation of the European Parliament and of the Council on the establishment, operation and use of the 
Schengen Information System (SIS) in the field of police cooperation and judicial cooperation in criminal matters, amending 
Regulation  (EU)  No  515/2014  and  repealing  Regulation  (EC)  No 1986/2006,  Council  Decision  2007/533/JHA  and 
Commission Decision 2010/261/EU (COM(2016) 883 final, 21.12.2016). 

238   Proposal for a Regulation of the European Parliament and of the Council on the use of the Schengen Information System 

for the return of illegally staying third-country nationals (COM(2016) 881 final, 21.12.2016). 

68 

 
                                                            
The  Commission  also  published  an  evaluation  report  on  the  second-generation  Schengen  Information  System  (SIS 
II).239  

The proposals address how SIS can be used to protect children by means of: preventive alerts; and improved ability 
to identify missing children.  

On 15 March, the Emergency Support Regulation (EU) 2016/369 on the provision of emergency support in the event 
of  an  ongoing  or  potential  natural  or  man-made  disaster  within  the  Union  was  adopted.  In  accordance  with  the 
Regulation,  the  Council  activated  the  emergency  support  for  a  period  of  three  years  for  the  management  of  the 
humanitarian  impact  of  the  refugee  and  migration  crisis.  This  emergency  support  instrument  targets  children 
(among  other  vulnerable  groups)  in  its  provision  of  lifesaving  assistance  in  Greece  and  other  Member  States, 
including food, shelter, water, medicine, protection and other basic necessities.240 

The  recitals  of  Directive  (EU)  2016/680  on  the  protection  of  natural  persons  with  regard  to  the  processing  of 
personal  data  refer  to  the  need  for  information  on  the  data  subject  under  the  Directive  to  be  accessible,  easy  to 
understand and adapted to the needs of vulnerable persons such as children, and call on controllers to draw up and 
implement  specific  safeguards  in  respect  of  the  treatment  of  personal  data  of  vulnerable  persons,  such  as 
children.241  

The General Data Protection Regulation (GDPR) makes specific reference to children in the context of processing for 
the  purposes  of  legitimate  interests  pursued  by  the  controller  or  by  a  third  party,  where  such  processing  will  be 
lawful  only  if  such  interests  are  not  overridden  by  the  interests  of  fundamental  rights  and  freedoms  of  the  data 
subject, particularly where the data subject is a child.242 Article 8 concerns conditions applicable to a child’s consent 
in relation to information society services. A number of other articles and recitals refer to specific needs as regards 
the protection of children’s personal data.243   

The Commission’s proposal for a Directive amending the  Audiovisual Media Services Directive (AVMSD), aimed at 
simplifying the obligation to protect children against harmful content, provides that everything that ‘may be harmful’ 
should be restricted on all services. The most harmful content should be subject to the strictest measures, such as 
PIN codes and encryption. This will also apply to on-demand services. Member States are to ensure that audiovisual 
media  service  providers  provide  sufficient  information  to  viewers  about  harmful  content  to  children.  For  this 
purpose,  Member  States  may  use  a  system  of  descriptors  indicating  the  nature  of  the  content  of  an  audiovisual 
media service. Video-sharing platforms (such as YouTube) will be included in the scope of the AVMSD only when it 
comes to the protection of children (and to combat hate speech). 

Policy 

The  Commission’s  Communication  on  the  state  of  play  of  the  implementation  of  the  priority  actions  under  the 
European Agenda on Migration (10 February) highlighted its comprehensive approach to protecting all children in 

239   Report  from  the  Commission  to  the  European  Parliament  and  the  Council  on  the  evaluation  of  the  second  generation 
Schengen Information System (SIS II) in accordance with Articles 24(5), 43(3) and 50(5) of Regulation (EC) No 1987/2006 
and Articles 59(3) and 66(5) of Decision 2007/533/JHA (COM(2016) 880 final, 21.12.2016). 

240   Since  April  2016,  over  EUR  198 million  has  been  made  available  to  address  refugees’  humanitarian  needs  in  Greece,  of 
which EUR 23 million  has  been  allocated  to  child  protection  activities,  including provision  of  psychosocial  support,  child-
friendly  spaces,  non-formal  education,  case  management  systems,  family  tracing  and  emergency  shelters  for 
unaccompanied children. 

241   Recitals 39, 50, 51 and 97 of Directive (EU) 2016/680. 
242   Article 6(f) of the GDPR. 
243   Articles 12(1), 40(2)(g) and 57(1)(b) and recitals 38, 58, 65, 71 and75 of the GDPR; see section above on Article 8. 

69 

 
                                                            
migration, with a focus on strengthening integrated cross-border child protection systems, and included an overview 
of ongoing and planned EU actions for the protection of children in migration. 

On 29 and 30 November, the Commission hosted the 10th Annual European Forum on the rights of the child, which 
focused on the protection of children in migration.244 The Forum brought together more than 300 experts in asylum 
and  migration,  and  child  protection  and  rights,  from  all  Member  States,  Iceland  and  Norway.  Participants 
represented national authorities, civil society, international organisations, ombudspersons for children, academics, 
practitioners and EU institutions and agencies. The discussions were informed by a general background paper setting 
out the challenges for children in migration and topic-specific papers for the four more in-depth parallel sessions, as 
well as the 10 principles for integrated child protection systems, around four broad themes: 

 

 

identification and protection;  

reception;  

  access to asylum procedures and procedural safeguards; and  

  durable solutions.245  

Before the Forum (28 and 29 November), a Commission-organised a side event on guardianship for unaccompanied 
children  brought  together  115  participants  (practising  guardians,  guardianship  institutions,  national  asylum  and 
migration,  and  child  protection  authorities,  ombudspersons  for  children,  children’s  rights  advocates,  civil  society, 
international organisations  and  EU institutions) to  address  challenges  in  effective guardianship  and  look ahead  to 
the strengthening in EU law of guardianship provisions.  

Targeted EU funding was allocated to projects in the context of the protection of children in migration.246 

On 29 November, the FRA published an opinion on fundamental rights in the hotspots set up in Greece and Italy at 
the  request  of  the  European  Parliament.247  It  covers,  inter  alia,  the  rights  of  the  child,  the  identification  of 
vulnerabilities, safety in the hotspots and readmissions.   

The  reports  on  relocation  and  resettlement248  include  information  as  regards  the  relocation  of  unaccompanied 
children(data  on  arrivals,  profiles,  number  of  unaccompanied  children  relocated,  as  well  as  actions  to  address 
challenges related to the relocation of vulnerable applicants, including unaccompanied children.  

The EU action plan on the integration of third-country nationals (adopted on 7 June)249 stresses the right of children 
to education, regardless of their family or cultural background or gender. It sets out planned Commission action and 
recommendations  for  Member  States,  specifically  for  children  in  the  area  of  education,  language  training,  the 
participation of migrant children in early childhood education and care, teacher training and civic education. 

Member State authorities responsible for the management of the Asylum, Migration and Integration Fund (AMIF)250 
and the Internal Security Fund (ISF)251 discussed children in migration at the AMIF-ISF Committee meeting of 31 May. 

244   http://ec.europa.eu/newsroom/just/item-detail.cfm?item_id=34456 
245   For all relevant documents, see: http://ec.europa.eu/newsroom/just/item-detail.cfm?item_id=34456 
246   See Forum background paper on EU funding for children in migration: 
http://ec.europa.eu/newsroom/document.cfm?doc_id=19748 

247   http://fra.europa.eu/en/opinion/2016/fra-opinion-fundamental-rights-hotspots-set-greece-and-italy  
248   For  the  Commission’s  reports  on  relocation  and  resettlement,  see:  https://ec.europa.eu/home-affairs/what-we-

do/policies/european-agenda-migration/proposal-implementation-package_en 

249   Communication from the Commission to the European Parliament, the Council, the Committee and the Committee of the 

Regions, Action plan on the integration of third country nationals (COM(2016) 377 final, 7.6.2016). 

250   The  basic  act  establishing  the  Asylum,  Migration  and  Integration  Fund  (AMIF)  for  the  2014-2020  programming  period 
contains  various  provisions  that  refer  to  compliance  with  the  Charter,  e.g. recital 33  and  Articles  3(1)  and  19(2);  see 

70 

 
                                                            
 
 
The  information  session  was  centred  on  the  need  for  child  protection  and  child  safeguarding  guarantees  to  be 
reflected in EU-funded projects involving direct contact  with children, ensuring compliance with Article 24 of the 
Charter, and on the need to better reflect the proportion of children in migration in needs assessments and funding 
allocations. 

On 19 May, the Commission published a report (as required under Article 20 of the Anti-trafficking Directive) on the 
progress  made  in  the  fight  against  trafficking  in  human  beings,252  stressing  that  Member  States  report  child 
trafficking as one of the trends that is increasing most sharply in the EU.253 

The  Commission’s  staff  working  document,  Humanitarian  protection:  improving  protection  outcomes  to  reduce 
risks for people in humanitarian crises, includes a number of references to the rights of the child in general and to 
child  protection  actions,  in  particular,  that  can  reduce  risks,  e.g. strengthening  child  protection  systems,  the 
registration and identification of children, case management, family tracing and reunification.254   

In  line  with  the  2013  Commission  Recommendation  on  Investing  in  children,  the  Commission  issued  23  Member 
States with country-specific recommendations relating to children, covering  inter alia education and skills, poverty 
and social inclusion, access to healthcare and child care, and financial disincentives.255 Two Member States received 
a  country-specific  recommendation  on  a  national  anti-poverty  strategy.  In  addition,  nine  were  invited  to  step  up 
income support for families, six received recommendations to improve childcare and social inclusion in education, 
four  to  make  housing  more  affordable  and  another  four  to  reduce  financial  disincentives  to  enter  the  labour 
market.256  

Regulation  (EU)  No 516/2014  of  the  European  Parliament  and  of  the  Council  of  16  April  2014  establishing  the  Asylum, 
Migration  and  Integration  Fund,  amending  Council  Decision  2008/381/EC  and  repealing  Decisions  No 573/2007/EC  and 
No 575/2007/EC of the European Parliament and of the Council and Council Decision 2007/435/EC (OJ L 150, 20.5.2014, p. 
168-194). 

251   The  basic  act  of  the  Internal  Security  Fund  (ISF)  for  the  2014-2020  programming  period  contains  various  provisions  that 
refer  to  compliance  with  the  Charter,  e.g. recital  23  and  Article  3(4);  see  Regulation  (EU)  No 515/2014  of  the  European 
Parliament  and  of  the  Council  of  16  April  2014  establishing,  as  part  of  the  Internal  Security  Fund,  the  instrument  for 
financial support for external borders and visa and repealing Decision 574/2007/EC.  
See also recital 20 and Article  3(5) of Regulation (EU) No 513/2014 of the European Parliament and of the Council of 16 
April 2014 establishing, as part of the Internal Security Fund, the instrument for financial support for police cooperation, 
preventing  and  combating  crime,  and  crisis  management  and  repealing  Council  Decision  2007/125/JHA  (ISF  Police 
Regulation) (OJ L 150, 20.5.2014, p. 93-111). 

252   Report  from  the  Commission  to  the  European  Parliament  and  the  Council  on  the  progress  made  in  the  fight  against 
trafficking  in  human  beings  (2016)  as  required  under  Article  20  of  Directive  2011/36/EU  on  preventing  and  combating 
trafficking  in  human  beings  and  protecting  its  victims  (COM(2016)  267  final,  19.5.2016  and  SWD(2016)  159  final, 
19.5.2016). 

253   See section above on Article 5. 
254   See p. 20 of the SWD. 
255   Communication  from  the  Commission  to  the  European  Parliament,  the  European  Council,  the  Council,  the  European 
Central Bank, the European Economic and Social Committee, the Committee of the Regions and the European Investment 
Bank, 2016 European Semester: country-specific recommendations (COM(2016) 321 final, 18.5.2016);  
Communication  from  the  Commission  to  the  European  Parliament,  the  Council,  the  European  Central  Bank  and  the 
Eurogroup,  2016  European  Semester:  assessment  of  progress  on  structural  reforms,  prevention  and  correction  of 
macroeconomic imbalances, and results of in-depth reviews under Regulation (EU) No 1176/2011 (COM(2016) 95 final/2, 
7.4.2016). 

256   http://ec.europa.eu/social/BlobServlet?docId=16170&langId=en 

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On 16 June, Council conclusions on Combating poverty and social exclusion: an integrated approach257 encouraged 
the  Member  States  to  address  child  poverty  and  promote  children’s  well-being  through  multi-dimensional  and 
integrated strategies, in line with the Investing in children Recommendation. 

The  Commission  Communication  on  Assessing  the  implementation  of  the  EU  framework  for  national  Roma 
integration  strategies  and  the  Council  Recommendation  on  effective  Roma  integration  measures  in  the  Member 
States — 2016, as published on 27 June, includes numerous references to the rights of Roma children,  inter alia in 
the area of education (fighting discrimination and segregation) and violence against children.258 

The European Parliament’s  Resolution  on the follow-up of the Strategic Framework for European cooperation in 
education and training (ET 2020) calls for greater inclusiveness in education and training, putting special emphasis 
on young people suffering from socio-economic disadvantages and people with disabilities or with special needs. The 
ROMED  programme,  which  is  co-managed  and  co-financed  by  the  Commission  and  the  Council  of  Europe,  is  a 
training programme for Roma mediators in schools, culture and health. The objective is to improve the inclusion of 
Roma communities, especially with regard to access to and completion of school education (Articles 14, 21 and 24 of 
the Charter). Education also plays an important role in the Youth package of December.259 The Commission stressed 
education as an important tool to improve opportunities for young people. 

In its Communication on Online platforms and the digital single market, opportunities and challenges for Europe, 
the Commission stresses that children are increasingly exposed to harmful content through video-sharing platforms, 
and refers to its proposed amendment to the AVMSD (see sub-section on legislation above).  

On 6 June, the Commission published a  Final evaluation of the multi-annual EU programme on protecting children 
using the internet and other communication technologies (Safer Internet), which concludes that the 2009-2013 Safer 
Internet programme was successful in achieving its main goals and proposes continuation of the activities that have 
proven most effective.260 

The preliminary  outline of  the  European  Pillar  of Social  Rights  published in  March 2016    proposes    a principle  on 
childcare  including  preventive  and  early  approaches  to  address  child  poverty  and  the  access  to  quality  and 
affordable childcare services for all children.  

Case-law 

See accounts of the CS and Rendón Marín cases in the section on Article 7 above.  

Decision of the UK Upper Tribunal (Immigration and Asylum Chamber) 

A  case  before  a  UK  tribunal  concerned  a  Nigerian  national who  had  resided  in the  UK  for  25  years. His  daughters 
(aged 13 and 11) were British citizens. He appealed against a deportation order made on grounds of public policy. 
The  tribunal  reversed  the  decision  of  the  first  instance  court,  considering  that  it    had  failed  to  acknowledge  the 
existence of the children's right to maintain on a regular basis a personal relationship and direct contact with both 

257   Council conclusions (16 June 2016), Combating poverty and social exclusion: an integrated approach;  

http://data.consilium.europa.eu/doc/document/ST-10434-2016-INIT/en/pdf 

258   See section above on Article 21. 
259   Press Release of 7 December 2016, Investing in Europe's youth: Commission launches European Solidarity Corps: 

http://europa.eu/rapid/press-release_IP-16-4165_en.htm . 

260   Report from the Commission to the European Parliament, the Council, the European Economic and Social Committee and 
the Committee of the Regions, Final evaluation of the multi-annual EU programme on protecting children using the internet 
and other communication technologies (Safer Internet) (COM(2016) 364 final, 6.6.2016). 

72 

 
 
                                                            
parents, unless that is contrary to their interests (Article 24 of the Charter). This Charter provision was interpreted as 
a  'self-standing  right'  in  the  context  of  immigration  law.  (Upper  Tribunal  (Immigration  and  Asylum  Chamber) 
Adebayo Abdul v. Secretary of State for the Home Department, [2016] UKUT 106 (IAC)) 

Decision of the Swedish Court of appeal 

In another case, a Swedish court used Article 24 of the Charter as the only legal source to interpret national criminal 
law  in  a  child-friendly  manner.  The  standard  sentence  for  persons  assisting  any  foreigner’s  entry  into  Sweden  in 
return for payment amounts to three to four months in prison. However, in this case, the court acknowledged that 
the  person  concerned  was  motivated  by  the  desire  to  help  children.  It  imposed  a  solely  conditional  sentence, 
coupled with community service, in the light of Article 24 of the Charter and the obligation of state authorities to 
consider  the  child's  best  interest.  (Skåne  and  Blekinge,  Court  of  Appeal,  case  B  7426-15,  decision  of  5  December 
2016) 

Article 25 — The rights of the elderly 

Article 25 of the Charter provides that the EU recognises and respects the rights of the elderly to lead a life of dignity 
and  independence  and  to  participate  in  social  and  cultural  life.  Participation  in  social  and  cultural  life  also  covers 
participation  in  political  life.  Most  of  the  policies  directly  affecting  these  rights  are  within  the  competences  and 
responsibilities of individual Member States, but the EU is committed to respecting and promoting them in relevant 
EU law, policies and programmes. 

Europe  was  the  region  with  the  biggest  population  of  elderly  people  in  2010.  It  will  continue  to  have  the  oldest 
population  in  the  world,  with  the  proportion  of  older  persons  projected  to  rise  to  34 %  (236  million)  in  2050.261 
Recent  years  have  seen  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  emerges as an essential 
factor  in  any  analysis,  particularly  given  that  age-related  discrimination  is  often  compounded  by  other  grounds  of 
discrimination, such as sex, socio-economic status, ethnicity and health status. 

261   Report of the United Nations High Commissioner for Human Rights (E/2012/51, 2012). 

73 

 
 
 
 
                                                            
Legislation 

As  indicated  above  (see  sections  on  Articles  10  and  21),  in  order  to  cover  equal  treatment  between  persons 
irrespective of religion or belief, disability, age or sexual orientation also outside the labour market, the Commission 
proposed an Equal Treatment Directive in 2008.262 The proposal is still under discussion in the Council. 

Policy 

The  preliminary  outline  of  the  European  Pillar  of  Social  Rights  published  in  March  2016    proposes    a  principle  on 
pensions,  to  ensure  a  decent  standard  of  living  at  retirement  age  and  addressing  the  gender  pension  gap  and  to 
encourage the participation of the self-employed in pension schemes. 

The European Parliament adopted resolutions in December calling on the EU and its Member States to strengthen 
their international commitment to the human rights of older persons. One Resolution263 calls for participation in the 
UN  Open-Ended  Working  Group  on  Ageing  in  order  to  protect  the  rights  of  older  people.  The  other264  invites 
Member States to sign up to the Madrid International Action Plan on Ageing (MIPAA),265 which is under review in 
2017. 

The European Network of National Human Rights Institutions (ENNHRI)266 project, funded by the Commission, on the 
human rights of older persons and long-term care is about to come to an end. The aim of the project has been to 
improve  the  human  rights  protection  of  older  persons  in  long-term  care,  with  particular  emphasis  on  residential 
care. One of the key findings is the struggle that care providers face in respecting the dignity of the care recipients. 
Research indicated the lack of knowledge among staff of human rights and their obligations to their residents, and 
the lack of resources (staffing shortages; limited funding for the long-term care sector overall and shortcomings in 
the health system). As the most important steps governmental care institutions can take, it recommended: 

  human rights training for care workers, managers and students (future workers); and  

 

investment in the care home and long-term care sector to allow for higher staff ratios and a better physical 
environment to facilitate privacy and protect residents’ safety.  

Another  key  recommendation  was  that  the  UN  Committee  on  the  Rights  of  Persons  with  Disabilities  and  state 
parties recognise the relevance of the Convention on the Rights of Persons with Disabilities (UNCRPD) and Article 19 
for  older  persons  with  disabilities  and  greater  investment  by  state  parties  in  the  development  of  high-quality 
community-based services. 

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 

262   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. 

263   Resolution of 13 December 2016 on the situation of fundamental rights in the European Union in 2015 (2016/2009(INI)), 

para. 114-116. 

264   Resolution of 14 December 2016 on the 2015 annual report on human rights and democracy in the world and the European 

Union’s policy on the matter (2016/2219(INI)), para. 121. 

265   http://www.un.org/esa/socdev/documents/ageing/MIPAA/political-declaration-en.pdf 
266   http://ennhri.org/ 

74 

 
 
                                                            
The proposed Directive on the approximation of the laws, regulations and administrative provisions of the Member 
States as regards the accessibility requirements for products and services (European Accessibility Act (EAA))267 was 
discussed with the Council and the European Parliament in 2016. Although the Act particularly concerns the internal 
market and products/services, not specifically dealing with fundamental rights, its adoption would contribute to the 
implementation of the UNCRPD and greater recognition of the right of persons with disabilities to accessibility. 

International agreements 

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.268 It is also the first 
human rights treaty to which the EU is a party. The EU concluded the UNCRPD in 2010.269 All 28 Member States have 
signed it and 27 have ratified it (Ireland is making progress towards ratification). 

In 2015, the UNCRPD Committee examined for the first time how the EU had been implementing the UNCRPD.  In 
line with its concluding observations, adopted in October 2015,270 the EU was to report on the implementation of 
recommendations regarding: 

  adoption of the EAA (see above);  

 

 

the updating of the EU declaration of competences under the UNCRPD; and  

removing  the  Commission  from  the  independent  monitoring  framework  and  ensuring  that  the  framework 
has adequate resources to perform its functions.  

The  Committee  also  recommended  that  the  EU  should  consider  establishing  an  inter-institutional  coordination 
mechanism and designating focal points in each EU institution, agency and body. 

As  a  follow-up  to  the  recommendations,  the  Commission  adopted  the  proposal  for  the  EAA,271  which  is  currently 
under discussion by the Council and the European Parliament. In addition, it prepared its  withdrawal from the EU 
monitoring framework and prepared an informal list of legal acts that relate to disability, updating the list in the EU 
declaration of competences annexed to the Council Decision for concluding the Convention. 

Policy 

The  overall  framework  for  the  implementation  by  the  EU  of  its  obligations  under  the  UNCRPD  is  the  2010-2020 
European  Disability  Strategy.272  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. 

Each  year,  the  Commission  raises  awareness  of  disability  challenges  through  a  conference  celebrating  the 
International  Day  of  Persons  with  Disabilities,  which  it  organises  in  cooperation  with  the  European  Disability 

267   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  products  and  services 
(COM(2015) 615 final, 2.12.2015). 

268   http://www.un.org/disabilities/ 
269   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). 

270   UN, Concluding observations on the initial report of the European Union (CRPD/C/EU/CO/1, 2.10.2015). 
271   See above under Legislation. 
272   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). 
http://eur-lex.europa.eu/LexUriServ/LexUriServ.do?uri=COM:2010:0636:FIN:en:PDF 

75 

 
                                                            
 
Forum.273  The  2016  European  Day  of  Persons  with  Disabilities  conference  took  place  on  29  and  30  November  in 
Brussels.  It  celebrated  the  10th  anniversary  of  the  UN  Convention  on  the  rights  of  persons  with  disabilities.  The 
presentations  and  discussions  focused  in  an  interactive  way  on  the  progress  that  has  been  made  in  the  EU  on 
promoting  the  rights  of  persons  with  disabilities,  based  on  the  UNCRPD.  The  conference  brought  together  a  wide 
range  of  participants  representing  people  with  disabilities,  organisations  or  groups  of  persons  with  disabilities 
(DPOs), policymakers from the Member States, social partners, disability and accessibility experts, academics and the 
European institutions. 

In  partnership  with  the  European  Disability  Forum,  the  Commission  organised  the  seventh  Access  City  Awards,274 
which promotes accessibility in the urban environment, especially for elderly and disabled citizens, and recognises 
improvements made in this area by cities across the continent. At the annual ceremony on 29 November, the British 
city of Chester was announced as the winner of the Access City Award. It was chosen out of 43 cities from 21 EU 
countries,  because  of  its  inclusive  measures  for  persons  with  disabilities  in  various  areas,  in  particular  that  of 
accessible  tourism.  Rotterdam  (NL),  Jurmala  (LV),  Lugo  (ES),  Skellefteå  (SE),  Alessandria  (IT)  and  Funchal  (PT)  also 
received awards for improving accessibility for older people and persons with disabilities. 

In  2013,  as  announced  in  the  2013  EU  Citizenship  Report,  the  Commission  launched  a  project  working  group  with 
Member States and civil society organisations to develop a mutually recognised EU model  disability card that would 
facilitate the freedom of movement in the EU of persons with disabilities, allowing those who travel to another EU 
country  to  be  treated  in  the  same  way  as  nationals,  in  terms  of  access  to  culture,  tourism,  leisure,  sports  and 
transport.  A  pilot  was  launched  in  February  2016  to  kick-start  the  card  in  a  first  group  of  eight  Member  States: 
Belgium, Cyprus, Estonia, Finland, Italy, Malta, Slovenia and Romania. The countries were selected following a 2015 
call  for  proposals  to  support  national  projects  on  a  mutually  recognised  European  disability  card  and  associated 
benefits. The card will be available only to nationals and residents of the Member States in which projects will be 
implemented. However, other Member States interested in participating in the scheme can inform the Commission 
whenever  they  choose  and  the  Commission  will  facilitate  coordination  with  existing  national  projects.  The  first 
results of the projects were presented at the European Day of Persons with Disabilities conference on 29 November. 

The  preliminary  outline  of  the  European  Pillar  of  Social  Rights  published  in  March  2016    proposes    a  principle  on 
disability,  including  the  access  to  enabling  services  and  basic  income  security  and  the  avoidance  of  barriers  to 
employment. 

As  part  of  the  European  Semester  exercise,  the  Commission  raised  disability-related  issues  with  Member  States, 
most notably in the fields of social inclusion and social benefits, including unemployment benefits and/or minimum 
income, and healthcare and long-term care. A disability perspective was included in most country analyses for 2016-
2017. 

The European Academic Network of European Disability experts (ANED), funded by the Commission, published: 

  a synthesis report on the situation of persons with disabilities in the area of social protection, and country 

reports on social protection and Article 28 in all Member States; 

  European Semester 2016/2017 country fiches on disability issues for all Member States;275 and  

 

the European comparative data on Europe 2020 & People with disabilities report, including analysis and data 
on the situation of people with disabilities linked to the objective of the EU2020 Strategy.276 

273   http://europa.eu/!Jw48fj 
274   http://ec.europa.eu/social/main.jsp?catId=1141 
275   http://www.disability-europe.net/theme/health 
276   http://www.disability-europe.net/theme/eu2020 

76 

 
                                                            
Article  7  of  the  current  AVMSD  encourages  the  provision  of  accessibility  services  to  people  with  visual  or  hearing 
disability. The Commission regularly monitors Member States’ transposition and implementation of this Article and 
has encouraged them, and audiovisual regulatory authorities, to transpose and enforce it. 

The Commission continued its cooperation with (and financial support for) the European Agency for Special Needs 
and  Inclusive  Education,  which  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. 

The Erasmus+ programme continued to make specific provision for the participation of disabled people in individual 
learning  mobility  activities.  It  also  supported  transnational  collaborative  projects  aiming  to  improve  aspects  of 
inclusive education policy and practice. 

Application in Member States 

As  regards  the  respect  of  the  Charter  by  Member  States  in  the  implementation  of  EU  cohesion  policy,  the 
Commission sent at its own initiative letters reminding two Member States of their obligation to respect the Charter 
in the area of the transition from institutional to community-based care. 

Letters 

Other 
19% 

 - Racism and 
xenophobia 1% 

 - Roma 1% 

 - Other ground of 
discrimination 2% 

Equality between 
women and men 1% 

Equality 
23% 

The rights of the child 
14% 

Justice 
26% 

Citizens' rights 
18% 

Freedoms 
11% 

Dignity 
0% 

Integration of persons 
with disabilities 4% 

Solidarity 
4% 

77 

 
 
Questions 

Justice 
7% 

Other 
9% 

Citizens' 
rights 
8% 

Solidarity 
11% 

Freedoms 
34% 

Equality 
27% 

Dignity 
4% 

 Homophobia 1% 

 National and linguistic 
minorities 
1% 
 Racism and 
xenophobia 2% 
Roma 1% 
 Other ground of 
discrimination 2% 

Equality between 
women and men 2% 

The rights of the child 
9% 

Integration of persons 
with disabilities 8% 

78 

 
 
Petitions 

Other 
5% 

Justice 
13% 

Citizens' rights 
16% 

Solidarity 
8% 

Equality 
42% 

Freedoms 
15% 

Dignity 
2% 

Equality before the law 
1% 

Non-discrimination 1% 

 - Homophobia 1% 

 - National and 
linguistic minorities  
3% 
 - Racism and 
xenophobia 2% 

 - Roma: 2% 

 - Other ground of 
discrimination 13% 

Cultural, religious and 
linguistic diversity 2% 
Equality between 
women and men 5% 

The rights of the child 
4% 

Integration of persons 
with disabilities 9% 

79 

 
 
 
 
Title IV 

Solidarity 

To  ensure  fair  and  just  working  conditions,  the  European  Parliament  and  the  Council  adopted  a  decision  on 
establishing  a  European  platform  to  enhance  cooperation  in  tackling  undeclared  work.  The  platform  should 
contribute  to  more  effective  Union  and  national  action  to  promote  integration  in  the  labour  market  and  social 
inclusion, including better law enforcement in those fields, to the reduction of undeclared work and the creation of 
formal jobs. On 13 December, the Commission presented a proposal to revise the EU legislation on social security 
coordination with the aim of facilitating labour mobility and ensuring fairness for those who move and for taxpayers, 
enhancing the right to social security and social assistance. 

The  Commission  is  committed  to  strengthening  the  enforcement  of  European  consumer  laws  to  ensure  swifter 
consumer  protection.  It  proposed  a  revision  of  the  Consumer  Protection  Cooperation  Regulation  to  bring 
enforcement  of  European  consumer  laws  and  the  protection  of  European  consumers  up  to  speed  with  online 
developments.  In  early  2016,  it  launched  an  online  dispute  resolution  (ODR)  platform  under  Regulation  (EU)  No 
524/2013. This allows EU consumers to submit disputes with EU traders arising from online purchases in any official 
EU language, thus contributing to a high level of consumer protection in the EU. 

The  Commission  adopted  the  ‘clean  energy  for  all  Europeans’  package  on  30  November.  The  package  includes 
ambitious proposals for better functioning retail markets and more empowered customers, providing measures  to 
benefit  the  environment  and  protect  vulnerable  customers.All  recently  concluded  EU  trade  and  investment 
agreements  contain  comprehensive  labour  provisions  and  committements  by  the  EU  and  its  partners  on  the 
respect of fundamental labour rights as enshrined in the eight fundamental Conventions of the International Labour 
Organization (ILO) on freedom of association and collective bargaining, abolition of child and forced labour as well as 
eradication  of  discrimination  in  employment.  Throughout  2016  the  Commission  contributed  through  various 
negotiations  and  monitoring  of  the  implementation  of  agreements  in  force  to  futher  promote  the  fundamental 
labour rights.  

An  example  of  the  Commission's  mainstreaming  fundamental  rights  in  its  external  action  is  its  monitoring  of  the 
respect  by  the  beneficiaries  of  the  Special  Incentive  Arrangement  for  Sustainable  Development  and  Good 
Governance  (GSP+)  with  their international  obligations,  on,  inter  alia,  human  and  labour  rights.  In  this  context, in 
2016  the Commission continued its work with the Bangladeshi Government, the International Labour Organisation, 
the  US  and  Canada  on  a  compact  to  improve  labour  rights  and  occupational  health  and  safety  in  the  Bangladeshi 
garment sector. 

80 

 
Article 27 — Workers’ right to information and consultation within the undertaking 

Article  27  of  the  Charter  provides  that  workers  or  their  representatives  must  be  guaranteed  information  and 
consultation at the appropriate levels and in good time, in the cases and under the conditions provided for by EU law 
and national laws and practices. 

Legislation 

The Commission’s proposal for a Directive on preventive restructuring frameworks, second chance and measures 
to  increase  the  efficiency  of  restructuring,  insolvency  and  discharge  procedures  and  amending  Directive 
2012/30/EU  takes  into  account  the  fundamental  rights  in  the  Charter  and  gives  precedence  to  the  policy  options 
enhancing such rights.277 In particular, workers’ fundamental rights (e.g. the rights to information and consultation in 
Article  27  of  the  Charter)  and  all  rights  under  EU  law  are  unaffected  by  the  proposal.  Throughout  preventive 
restructuring procedures, workers will enjoy full labour law protection of their rights, as guaranteed by existing EU 
legislation. Where their claims and interests are affected by a restructuring plan, workers will have the right to vote 
on it. Also, where a restructuring plan entails decisions likely to lead to substantial changes in work organisation or in 
contractual relations, the workers’ rights to information and consultation (as guaranteed by Directive 2002/14/EC on 
the  information  and  consultation  of  employees)278  remain  untouched.  Collective  bargaining  and  collective  action 
rights  are  also  guaranteed  by  the  Charter.  Workers’  outstanding  claims,  such  as  wages,  are  fully  protected  during 
restructuring. Workers are in principle exempted from the stay of enforcement. In this way, workers can continue to 
enforce their claims against the employer throughout the restructuring period. 

Policy 

The preliminary  outline of  the  European  Pillar  of Social  Rights  published in  March 2016    proposes    a principle  on 
social dialogue and involvement of workers, including information and consultation information and consultation for 
all workers, in particular in the case of collective redundancies, transfer, restructuring and merger of undertakings. 

Citizens’ letters 

In  the  field  of  labour  law,  the  Charter  is  currently  being  invoked  in  the  vast  majority  of  complaints  related  to 
collective  rights,  in  particular  information  and  consultation  of  workers,  as  well  as  collective  bargaining  and 
protection  against  unjustified  dismissals.  Nonetheless,  in  those  cases  reported  to  the  Commission  in  2016,  the 
Charter did not apply as the issues raised by the complainants were not covered by EU law. 

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  conflict 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.279 Member States remain bound by the provisions of the Charter, including the right to strike, in 
instances where they implement EU law. 

277   See sections above on Articles 15 to 17. 
278   Directive 2002/14/EC of the European Parliament and of the Council of 11 March 2002 establishing a general framework 
for informing and consulting employees in the European Community — Joint declaration of the European Parliament, the 
Council and the Commission on employee representation (OJ L 80, 23.3.2002, p. 29). 

279   Article 153(5) TFEU stipulates that it does not apply to the right to strike. 

81 

 
 
                                                            
Policy 

The preliminary outline of the European Pillar of Social Rights published in March 2016  proposes  principles on social 
dialogue  and  involvement  of  workers,  including  information  and  consultation  and  the  encouragement  of  social 
dialogue, collective agreements and the respect of social partners' autonomy and right to collective action. 

Article 29 — Right of access to placement services 

Under 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. 

Policy 

Council  Recommendation  of  15  February  2016  on  the  integration  of  the  long-term  unemployed  into  the  labour 
market recommends that long-term unemployed persons are offered in-depth individual assessments and guidance 
and a job-integration agreement comprising an individual offer and the identification of a single point of contact at 
the  very  latest  when  they  reach  18  months  of  unemployment.    The  European  Network  of  Employment  Services 
(EURES),  re-established  under  Regulation  (EU)  2016/589280,  aims  to  improve  the  functioning,  cohesion  and 
integration of labour markers in the EU, including at cross-border level. 

The  preliminary  outline  of  the  European  Pillar  of  Social  Rights  published  in  March  2016    proposes    principles  on 
active support to employment and on unemployment benefits, setting out the support to young people and to long 
term unemployed persons, as well as active job search support for the unemployed.  

Article 30 — Protection in the event of unjustified dismissal 

Under 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. 

The preliminary  outline of  the  European  Pillar  of Social  Rights  published in  March 2016    proposes    a principle  on 
conditions of employment, including on protection in the case of dismissal and on probation periods. 

Article 31 — Fair and just working conditions 

Article  31  guarantees  that  every  worker  has  the  right  to  working  conditions  that  respect  their  health,  safety  and 
dignity. Every worker has the right to a limitation of maximum working hours, daily and weekly rest periods and 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. 

280   Regulation  (EU)  2016/589  of  the  European  Parliament  and  of  the  Council  of  13  April  2016  on  a  European  network  of  employment 
services (EURES), workers' access to mobility services and the further integration of labour markets, and amending Regulations (EU) No 
492/2011 and (EU) No 1296/2013, OJ L 107, 22.4.2016, p. 1. 

82 

 
 
 
 
 
                                                            
Legislation 

In  2016,  the  European  Parliament  and  the  Council  adopted  a  Decision  on  establishing  a  European  platform  to 
enhance cooperation in tackling undeclared work.281 The platform should contribute to more effective Union and 
national  action  to  improve  working  conditions,  promote  integration  in  the  labour  market  and  social  inclusion, 
including  better  law  enforcement  in  those  fields,  to  the  reduction  of  undeclared  work  and  the  creation  of  formal 
jobs, thereby avoiding the deterioration of the quality of work and of health and safety at work. 

On 29 April, the Commission adopted a proposal for a Directive implementing the EU social partners’ agreement on 
the  ILO Work  in Fishing  Convention,  2007.282  The Directive  was  adopted  by  the Council on  19  December  and  will 
enter into force on the date of entry into force of the ILO Convention (i.e. 16 November 2017). Member States will 
have to transpose the Directive in their national legislation by 16 November 2019. 

In  March,  the  Commission  presented  a  proposal  for  a  Directive  amending  the  Posting  of  Workers  Directive.283  It 
aims to establish a level playing-field between cross-border and local service providers and improving the protection 
of posted workers. In particular, it provides that posted workers should be granted all the elements of remuneration 
that  are  mandatory  for  local  workers,  in  accordance  with  the  law  or  the  relevant  universally  applicable  collective 
agreement in the host Member State.  On 13 May 2016 the Commission adopted a proposal for a Directive of the 
European Parliament and of the Council amending Directive 2004/37/EC on the protection of workers from the risks 
related to exposure to carcinogens or mutagens at work. The proposal is aiming to improve protection for workers 
from cancer-causing chemicals by revising or introducing exposure limit values for 13 cancer causing chemicals at the 
workplace.  Subsequent  amendments  of  Directive  2004/37/EC  are  foreseen  also  as  regards  other  carcinogenic 
substances. 

Policy 

The  preliminary  outline  of  the  European  Pillar  of  Social  Rights  published  in  March  2016    proposes    principles  on 
conditions of employment and on health and safety at work. 

The  Commission  completed  an  evaluation  of  the  social  legislation  in  the  area  of  road  transport.  It  also 
commissioned a study for the ex post evaluation of the social legislation in road transport284 and held an open public 
consultation on this issue between September and  December. On this basis, in 2017 it will prepare a SWD on the 
evaluation and launch an impact assessment with a view to preparing legislative proposals for a targeted revision of 
the current social rules applicable to road transport.285 The evaluation study noted that the Charter provides for the 

281   Decision  (EU)  2016/344  of  the  European  Parliament  and  of  the  Council  of  9  March  2016  on  establishing  a  European 

Platform to enhance cooperation in tackling undeclared work (OJ L 65, 11.3.2016, p. 12-20). 

282   Proposal  for  a  Council  Directive  implementing  the  Agreement  concluded  between  the  General  Confederation  of 
Agricultural  Cooperatives  in  the  European  Union  (COGECA),  the  European  Transport  Workers’  Federation  (ETF)  and  the 
Association  of  National  Organisations  of  Fishing  Enterprises  (EUROPÊCHE)  of  21  May  2012,  as  amended  on  8  May  2013 
concerning  the  implementation  of  the  2007  Work  in  Fishing  Convention  of  the  International  Labour  Organisation 
(COM(2016) 235 final, 29.4.2016). 

283   Proposal  for  a  Directive  of  the  European  Parliament  and  of  the  Council  amending  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 (COM(2016) 128 final). 

284   For further information on the final report, see:  

https://ec.europa.eu/transport/sites/transport/files/facts-fundings/evaluations/doc/2016-ex-post-eval-road-transport-
social-legislation-final-report.pdf;  
for executive summary (EN and FR), see: 
http://ec.europa.eu/transport/facts-fundings/evaluations/reports-year_en 

285   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); 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 

83 

 
                                                            
 
 
 
right to fair and just working conditions and grants workers a right to daily and weekly rest periods and a limit on 
their  working  hours  (Article  31).  It  is  therefore  of  particular  relevance  for  social  legislation  in  the  road  transport 
sector.  Article  52  of  the  Charter  provides  for  the  possibility  of  restricting  these  rights  in  specific  circumstances 
(limitations  must  be  necessary  and  meet  the  objectives  of  general  interests  or  the  need  to  protect  the  rights  and 
freedoms  of  others).  Derogations  must  therefore  be  strictly  limited  to  what  is  necessary  to  meet  the  specific 
requirements of road transport. 

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

Article 32 prohibits the employment of children. 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. 

Policy 

On 20 June 2016, the Council adopted conclusions on child labour286 reaffirming its strong commitment to ensuring 
that every child is protected from child labour including its worst forms. It stressed the importance of eradicating the 
recruitment and use of children in armed conflict including child soldiers. 

The  Commission  conducted  a  study  on  child  and  forced  labour  in  view  of  future  action  in  the  EU’s  international 
cooperation and development focusing on comprehensive intervention linked to global value chains.287 The garment 
sector was specifically identified because many children work in various segments of the global value chains, from 
cotton field production to factories. The financing decision including this component, in the framework of promoting 
decent  work,  was  adopted  in  December  under  the  Development  Cooperation  Instrument  for  activities  to  start  in 
2017.288 

Article 33 — Family and professional life 

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

Policy 

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); Directive 2006/22/EC of the European Parliament and of the Council of 15 March 
2006  on  minimum  conditions  for  the  implementation  of  Council  Regulations  (EEC)  No  3820/85  and  (EEC)  No  3821/85 
concerning  social  legislation  relating  to  road  transport  activities  and  repealing  Council  Directive 88/599/EEC  (OJ  L  102, 
11.4.2006, p. 35). 

286   http://www.consilium.europa.eu/en/press/press-releases/2016/06/20-fac-child-labour/ 
287   The  study  will  be  published  at  http://capacity4dev.ec.europa.eu/topic/children-youth.  [to  check  if  published  before  the 

Report adoption]. 

288   Ref. DCI/HUM/2016/038-894; see: 

https://ec.europa.eu/europeaid/commission-implementing-decision-annual-action-programme-2016-part-iv-and-annual-
action-programme_en 

84 

 
 
                                                                                                                                                                                                                      
 
The  preliminary  outline  of  the  European  Pillar  of  Social  Rights  published  in  March  2016    proposes  a  principle  on 
gender equality and work-life balance, focused on equality of treatment in all areas, addressing barriers to women's 
participation and on adequate leave arrangements for children and aother dependent relatives and access to care 
services.  The  proposed  principle  also  refers  to  an  equal  use  of  leave  arrangments  between  sexes  and  to  flexible 
working arrangmements. 

Following its 2015 roadmap289 setting out policy options to address the work-life balance challenges facing working 
families, the Commission pursued its work on an initiative on work-life balance for parents and care-givers.290  

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, old age and loss of employment. Everyone 
residing and moving legally within the EU is entitled to social security benefits and social advantages in accordance 
with Union law and national laws and practices. 

Legislation 

On 13 December, as part of the labour mobility package announced in October 2015, the Commission presented a 
proposal to revise the EU legislation on social security coordination.291 This was part of its efforts to facilitate labour 
mobility, ensure fairness for those who move and for taxpayers, and provide better tools for cooperation between 
Member State authorities. The proposal updates the current rules to ensure that they are fair, clear and easier to 
enforce, enhances fundamental rights and observes the principles recognised in the Charter, including the right to 
social security and social assistance. 

On 30 November (see section below on Article 38), the Commission issued draft legislative proposals on electricity 
market  design,  renewables  and  energy  efficiency,  putting  increased  emphasis  on  solutions  to  to  help  combating 
energy  poverty  and  social  exclusion  in  accordance  with  Article 34.  In  particular,  Article  28  of  the  recast  Electricity 
Directive maintains the Member States’ obligation to ensure adequate safeguards to protect vulnerable customers. 
Article 29 requires Member States to set energy poverty criteria, continuously monitor the number of households in 
energy poverty and report on trends in energy poverty and measures taken to prevent it. The amended Article 7 of 
the  Energy  Efficiency  Directive  strengthens  the  existing  provisions  on  energy  poverty  by  requiring  that  energy 
obligation  schemes  include  social  aspects,  including  a  requirement  that  a  certain  proportion  of  energy  efficiency 
measures are implemented as a priority in households affected by energy poverty and in social housing. Article 7b 
requires Member States to take account of impacts on households affected by energy poverty when designing policy 
measures. 

The  proposal  to  amend  the  Energy  Performance  of  Buildings  Directive292  includes  a  requirement  that  Member 
States’ long-term building renovation strategies contribute to alleviating energy poverty. 

Policy 

289   http://ec.europa.eu/smart-regulation/roadmaps/docs/2015_just_xxx_maternity_leave.en.pdf 
290   See section above on Article 23. 
291   Proposal  for  a  Regulation  amending  Regulation  (EC)  No  883/2004  on  the  coordination  of  social  security  systems  and 
regulation (EC) No 987/2009 laying down the procedure for implementing Regulation (EC) No 883/2004 (COM(2016) 815 
final, 13.12.2016). 

292   Proposal  for  a  Directive  of  the  European  Parliament  and  the  Council  amending  Directive  2010/31/EU  on  the  energy 

performance of buildings (COM(2016) 765 final, 30.11.2016). 

85 

 
 
                                                            
Throughout  the  year,  the  Commission  engaged  with  social  partners,  citizens  and  Member  State  authorities  in  a 
broad public consultation on the development of the European pillar of social rights,  in particular with a view to:  

  making an assessment of the current social acquis;  

 

reflecting on new trends in work patterns and societies (i.e. what has been the impact of new technologies, 
demographic trends and other factors on our working lives and social conditions; and  

  gathering views and feedback on the outline of the pillar itself. 

The  preliminary  outline  of  the  European  Pillar  of  Social  Rights  published  in  March  2016    proposes    principles  on 
unemployment benefits, pensions, minimum income, disability, long-term care and childcare, housing as well as on 
the integration of social protection benefits and services.  

Article 35 — Healthcare 

Article  35  of  the  Charter  provides  that  everyone  has  the  right  to  access  preventive  healthcare  and  the  right  to 
benefit  from  medical  treatment  under  the  conditions  established  by  national  law  and  practices.  A  high  level  of 
human  health  protection  is  to  be  ensured  in  the  formulation  and  implementation  of  the  Union’s  policies  and 
activities. 

Legislation 

The Directive on combating terrorism,293 on which the European Parliament and the Council reached agreement in 
December,  contains  provisions  strengthening  the  right  of  access  to  preventive  healthcare  and  the  right  to  benefit 
from  medical  treatment  under  the  conditions  provided  by  national  law  for  victims  of  terrorism.  In  particular,  the 
provisions include the right to receive medical treatment immediately after an attack and for as long as necessary 
thereafter  in  the  Member  State  where  it  took  place.  This  right  is  without  prejudice  to  the  Member  States’ 
competence to organise and manage their healthcare systems. In addition, the Directive gives victims  the right to 
receive emotional and psychological support from specially trained professionals immediately after an attack and 
for as long as necessary thereafter, including emotional assistance and trauma counselling. This aspect is particularly 
important  in  preventing serious  health  consequences  for victims  of  terrorist attacks,  such  as  post-traumatic  stress 
disorder (PTSD). 

Policy 

The  preliminary  outline  of  the  European  Pillar  of  Social  Rights  published  in  March  2016    proposes  a  principle  on  
healthcare and sickness benefits, including the access to good quality preventive and curative health care. 

The  3rd  EU  Health  Programme  (2014-2020)294  aims  to  complement,  support  and  add  value  to  Member  States’ 
policies to improve citizens’ health and reduce health inequalities. It contributes to major EU priorities, including the 
application  of  the  Charter  and  implementing  the  European  agenda  on  migration.  It  has  been  supporting  Member 
States’ work to improve the healthcare services provided to migrants and other vulnerable groups in response to the 
humanitarian crisis faced by the EU with the high influx of refugees and migrants. The 2016 annual work programme 
refers  to  the  Charter,  reiterating  that  action  under  the  work  programme  is  to  respect  and  be  implemented  in 
compliance with the principle of non-discrimination and the right to healthcare, as enshrined in Articles 21 and 25 of 

293   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). 

294   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 (2014-2020) and repealing Decision No 1350/2007/EC (OJ L 86, 21.3.2014, p. 1-13). 

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the  Charter.  As  regards  action  on  migrants’  and  refugees’  right  to  health,  several  projects  and  contracts  were 
financed in 2016, aimed at promoting: 

  best practices in care provisions for vulnerable migrants and refugees, aimed at supporting common and 
joint  activities  backing  up  Member  States’  efforts  to  integrate  migrant  populations  in  national  healthcare 
systems. The project financed by a direct grant was awarded to the World Health Organisation; 

 

 

training programmes for first-line health professionals, border officers and officials working with migrants 
and refugees at local level. The training focuses on strengthening the skills and capabilities of first-line health 
professionals and promoting a holistic approach to the healthcare of migrants and refugees at first points of 
arrival in the receiving countries; and 

specific pilot training modules for health professionals, border guards and trainers that should lead to the 
design and development of a specific ‘package’ on issues relating to mental health and detecting PTSD and 
on the implementation of triage and screening for communicable diseases in migrants and refugees. 

The  Commission  has  also  financed  projects  that  are  particularly  relevant  for  the  Roma  community  and  other 
vulnerable groups. For instance, the 2013-2016 Equi-Health project,295 co-financed by the International Organisation 
for Migration (IOM), aims to improve access to and quality of healthcare for migrants, Roma and other vulnerable 
minority groups. The 2008-2013 EU Health Programme is funding the development of training packages for health 
professionals  to  improve  access  to  and  quality  of  health  services  for  migrants  and  ethnic  minorities,  including  the 
Roma.296  

Lastly, a European Parliament pilot project on reducing health inequalities experienced by LGBTI people228 is aimed 
at improving our understanding of these specific health inequalities, focusing on overlapping inequalities stemming 
from  discrimination  and  unfair  treatment  on  other  grounds  (e.g. age,  disability,  socioeconomic  status,  race  and 
ethnicity) and the barriers faced by health professionals when providing care to those groups. 

Case-law 

The  CJEU  issued  two  judgments  in  cases  concerning  the  implementation  of  the  Tobacco  Products  Directive  in 
conjunction with fundamental rights in the context of health protection: 

  Case  C-547/14  Philip  Morris  Brands  SARL  and  Others  –  see  the  account  of  the  case  in  the  section  on 

Article 11 above; and 

  Case C-477/14 Pillbox 38297 – responding to a question on the validity of Article 20 of the Directive, the CJEU 
noted  that  the  EU  was  required  to  act  pursuant  to  the  precautionary  principle  in  the  second  sentence  of 
Article 35 of the Charter as soon as it became aware of serious scientific information indicating the existence 
of potential risks to human health to which a relatively new product on the market might give rise. In so far 
as the prohibition on commercial communications imposed by Article 20(5) of the Directive does not allow 
economic  operators  to  promote  their  products,  it  constitutes  an  interference  with  the  freedom  of  those 
operators  to  conduct  a  business.  Nonetheless,  in  view  of  the  criteria  in  Article 52(1)  of  the  Charter,  the 
limitation at issue was laid down by Article 20(5) of the Directive (i.e. by law) and does not affect the essence 
of  the freedom  to  conduct a  business. The Court  did not  find  that  the interference  exceeded the limits  of 
what is appropriate and necessary to achieve the legitimate objectives pursued by the Directive. 

Parliamentary questions 

295   http://equi-health.eea.iom.int/ 
296   http://www.mem-tp.org/ 
297   CJEU judgment of 4 May 2016 in Case C-477/14 Pillbox 38. 

87 

 
                                                            
The Commission received numerous questions from MEPs on healthcare issues in conjunction with the provisions of 
the Charter, in particular noting the limits of EU action in the area of healthcare. 

In  response  to  a  question  on  blood  donation  based  on  sexual  orientation,  the  Commission  referred  to  the  CJEU’s 
preliminary ruling in Léger,298 in which the Court held that a permanent deferral from donating blood on men who 
have sex with other men may be a restriction of fundamental rights, particularly Article 21(1) protecting the right to 
non-discrimination on grounds of sexual orientation. It also reiterated that it is for Member States to justify any such 
restriction on public health grounds.299 

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 (SGEIs) 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. 

SGEIs are also referred to in Articles 14 and 106 TFEU. Protocol No 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 Europe,300 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.’ 

Legislation 

The recast Electricity Directive concerns the field of energy supply, also in view of general public services. Article 5 
sets out principles for Member States regulating the supply of electricity as an SGEI, in line with the requirements of 
the Charter, EU law and the Treaties.301 

Policy 

The  preliminary  outline  of  the  European  Pillar  of  Social  Rights  published  in  March  2016    proposes  a  principle  on  
affordable access to essential services including electronic communications, energy, transport, and financial services 
equal opportunities. 

Case-law 

In the ANODE case,302 the CJEU considered that security of supply and territorial cohesion might be objectives in the 
general  economic  interest  which  may  justify  state  intervention  in  fixing  the  price  of  natural  gas  for  household 
customers. However, the Court confirmed, in line with its earlier case-law, that such state intervention in the setting 
of  gas  prices  would  be  compatible  with  the  Gas  Directive  only  if  strict  requirements  are  met,  including 
proportionality and non-discrimination. 

298   CJEU  judgment  of  29  April  2015  in  Case  C-528/13  Geoffrey  Léger  v  Ministre  des  affaires  sociales  et  de  la  santé  (blood 

donation). 

299   MEP question E-005284/2016. 
300  COM(2011) 900, 20.12.2011. 
301   See sections above on Article 34 and below on Article 38. 
302   CJEU judgment of 7 September 2016 in Case C-121/15 ANODE. 

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Article 37 — Environmental protection 

Article 37 of the Charter establishes that a high level of environmental protection and 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. 

Legislation 

On 30 November, the Commission released draft legislative proposals on electricity market design, renewables and 
energy efficiency.303 The recast Renewable Energy Directive proposes a target of at least 27% of renewable energy, 
which  will  also  deliver  on  the  reduction  of  greenhouse  gas  emissions  and  will  allow  a  reduction  of  fossil  fuel 
consumption.304  The  proposed  30 %  energy  efficiency  target  for  2030  is  estimated  to  reduce  greenhouse  gas 
emissions by 40 %. Also, Member States’ long-term building renovation strategies, as required under the proposal to 
amend the Energy Efficiency of Buildings Directive, must now include a roadmap with measures to deliver on the 
long-term 2050 goal of decarbonising the building stock. 

The  recitals  of  the  amended  Energy  Efficiency  Directive305  took  particular  account  of  Article  37  of  the  Charter, 
reiterating that moderation of energy demand is one of the five dimensions of the Energy Union Strategy adopted on 
25  February  2015  and  stipulating  that  improving  energy  efficiency  will  benefit  the  environment  and  reduce 
greenhouse  gas  emissions.  This  is  in  line  with  the  EU’s  commitments  in  the  framework  of  the  Energy  Union  and 
global  climate  agenda  under  the  December  2015  Paris  Agreement  between  the  parties  of  the  UN  Framework 
Convention on Climate Change. 

On 20 July, the Commission presented legislative proposals to accelerate the transition to a low-carbon economy in 
Europe.    The  proposal  to  integrate  greenhouse  gas  emissions  and  removals  from  land  use,  land-use  change  and 
forestry  (LULUCF)  into  the  2030  climate  and  energy  framework.306  sets  a  binding  commitment  for  each  Member 
State to ensure that accounted emissions from land use are entirely compensated by an equivalent removal of CO₂ 
from  the  atmosphere  through  action  in  the  sector  (the  ‘no  debit’  rule).  The  proposal  on  binding  greenhouse  gas 
emission reductions for Member States (2021-2030)307 presents national targets for the sectors outside of the EU 
Emissions Trading System as contributors to EU climate action. The proposed legislation aims to achieve a high level 
of environmental protection. 

Case-law 

Several  cases  were  raised  in  the  framework  of  the  Convention  on  access  to  information,  public  participation  in 
decision-making and access to justice in environmental matters (the Aarhus Convention), to which the EU and the 

303   See section below on Article 38. 
304   Proposal  for  a  Directive  of  the  European  Parliament  and  of  the  Council  on  the  promotion  of  the  use  of  energy  from 

renewable sources (recast) (COM(2016) 767 final, 30.11.2016). 

305   Proposal  for  a  Directive  of  the  European  Parliament  and  of  the  Council  amending  Directive  2012/27/EU  on  energy 

efficiency (COM(2016) 761 final, 30.11.2016). 

306   Proposal for a Regulation of the European Parliament and of the Council on the inclusion of greenhouse gas emissions and 
removals  from  land  use,  land-use  change  and  forestry  into  the  2030  climate  and  energy  framework  and  amending 
Regulation (EU) No 525/2013 of the European Parliament and the Council on a mechanism for monitoring and reporting 
greenhouse gas emissions and other information relevant to climate change (COM/2016/0479 final, 20.7.2016). 

307   Proposal  for  a  Regulation  of  the  European  Parliament  and  of  the  Council  on  binding  annual  greenhouse  gas  emission 
reductions by Member States from 2021 to 2030 for a resilient Energy Union and to meet commitments under the Paris 
Agreement  and  amending  Regulation  No  525/2013  of  the  European  Parliament  and  the  Council  on  a  mechanism  for 
monitoring  and  reporting  greenhouse  gas  emissions  and  other  information  relevant  to  climate  change,  COM/2016/0482 
final, 20.7.2016. 

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Member States are party. The Aarhus Convention Compliance Committee (ACCC) monitors parties’ compliance with 
the Convention. 

In some ongoing cases concerning the EU, the Union has relied on the Charter in its defence: 

  Case ACCC/C/2008/32 concerns the EU’s compliance in connection with access by members of the public to 

review procedures;308 and  

  Case ACCC/C/2014/123 deals with its transposition of the Convention’s provisions on access to justice.309  

In  both  cases,  the  Commission  referred,  in  its  observations  to  the  ACCC  on  behalf  of  the  EU,  to  Article 47  of  the 
Charter, recalling that the EU and its Member States are under an obligation to provide effective judicial protection 
of the rights conferred by EU law not only under the TEU, but also in accordance with Article 47 of the Charter.310 

In Lesoochranárske zoskupenie VLK,311 the CJEU delivered a clarifying judgment to a request for a preliminary ruling 
referred by the Slovak Supreme Court in respect of environmental NGOs’ access to justice and public participation in 
the  context  of  the  application  of  the  Aarhus  Convention  and  related  EU  legislation,  in  particular  the  Habitats 
Directive.312  

In  PAN  Europe  and  others,313  concerning  legal  standing  to  challenge  a  Commission  Implementing  Regulation 
approving the active substance sulfoxaflor314 (a neonicotinoid that the applicants alleged was harmful to bees), the 
General Court held that the applicants could not rely on Articles 37 and 47 of the Charter in order to challenge the 
interpretation  of  the  criteria  laid  down  in  Article  263(4)  TFEU  on  submitting  an  action  for  annulment  and,  in 
particular, the criterion of direct concern. Although the conditions of admissibility in Article 263(4) TFEU should be 
interpreted in the light of the fundamental right to effective judicial protection, such an interpretation could have 
the effect of setting aside the conditions expressly laid down in the Treaty. The Court therefore dismissed the action 
as inadmissible. 

Article 38 — Consumer protection 

Article  38  of  the  Charter  provides  that  Union  policies  should  ensure  a  high  level  of  consumer  protection,  giving 
guidance to the EU institutions when drafting and applying EU legislation. 

Legislation 

More  effective  enforcement of  European  consumer  laws  will ensure  swifter  consumer  protection. Consumers  and 
traders  need  to  be  confident  that  the  online  market  is  free  of  illegal  practices.  European  laws  offer  numerous 
consumer rights, but these are not always respected, especially by e-commerce traders. Around 70 % of complaints 

308   https://www.unece.org/env/pp/compliance/Compliancecommittee/32TableEC.html 
309   http://www.unece.org/environmental-policy/conventions/public-participation/aarhus-
convention/tfwg/envppcc/envpppubcom/acccc2014123-european-union.html 

310   See section below on Article 47. 
311   CJEU judgment of 8 November 2016 in Case C-243/15 Lesoochranárske zoskupenie VLK; for further information see below 

Article 47. 

312   Council Directive 92/43/EEC of 21 May 1992 on the conservation of natural habitats and of wild fauna and flora (OJ L 206, 

22.7.1992, p. 7-50). 

313   CJEU judgment of 28 September 2016 in Case T-600/15 Pan Europe and others v European Commission. 
314   Commission  Implementing  Regulation  (EU)  2015/1295  of  27  July  2015,  approving  the  active  substance  sulfoxaflor,  in 
accordance with Regulation (EC) No 1107/2009 of the European Parliament and of the Council concerning the placing of 
plant  protection  products  on  the  market,  and  amending  the  Annex  to  Commission  Implementing  Regulation  (EU)  No 
540/2011 (OJ 2015 L 199, p. 8). 

90 

 
 
                                                            
handled by European consumer centres in 2016 concerned the delivery, price or faultiness of products or services 
purchased  online.  As  a  result,  the  Commission  proposed  a  revision  of  the  Consumer  Protection  Cooperation 
Regulation315 to bring enforcement of European consumer laws and protection of European consumers up to speed 
with  online  developments.  Consumer  authorities  will  have  new  powers  to  act  faster  against  bad  online  practices 
involving scams, such as luring consumers into lengthy and costly subscription traps. In particular, new procedures 
triggered  by  the  Commission  at  Union  level  will  permit  closer  coordination  of  enforcement  actions  when  harmful 
practices  concern  a  large  number  of  European  consumers.  More  effective  enforcement  of  consumer  rights  will 
contribute to ensuring a high level of consumer protection and fair commercial practices among operators. 

In line with the New Deal for  Energy  Consumers,316  the Commission adopted  the  ‘clean energy  for all Europeans’ 
package  on  30  November.317  The  package  includes  ambitious  proposals  inter  alia  for  better  functioning  retail 
markets and more empowered customers. Key topics addressed include energy poverty, clarity of billing, measures 
to  encourage  switching  and  build  consumer  trust  in  energy  markets,  the  role  of  consumers  in  self-generation, 
improved information on the energy mix (energy sources), eco-design and energy labelling. Energy consumer rights 
will be significantly strengthened through the recast of several Directives and Regulations. 

The  proposed  recast  Electricity  Regulation  introduces  the  principle  that  ‘market  participation  of  consumers  and 
small businesses shall be enabled […]’. In addition,  the  recast Electricity Directive requires more detailed rules on 
billing  for  electricity  and  maintains  the  Member  States’  obligation  to  ensure  adequate  safeguards  to  protect 
vulnerable customers. It requires Member States to set energy poverty criteria, continuously monitor the number of 
households in energy poverty and report on trends in energy poverty and measures taken to prevent it. 

The rules on metering and billing in the heating and cooling sector in the amended Energy Efficiency Directive also 
provide greater protection for consumers. The revised Article 7 of the Directive strengthens the existing provisions 
on energy poverty by requiring that energy obligation schemes include social aspects, including a requirement that a 
certain  proportion  of  energy  efficiency  measures  are  implemented  as  a  priority  in  households  affected  by  energy 
poverty  and  in  social  housing.  Member  States  are  to  take  account  of  impacts  on  households  affected  by  energy 
poverty when designing policy measures. 

The proposal to amend the Energy Performance of Buildings Directive includes a requirement that Member States’ 
long-term building renovation strategies contribute to alleviating energy poverty. The proposal also strengthens the 
provisions  on  the  metering  and  billing  of  energy  for  consumers,  which  will  help  ensure  a  high  level  of  consumer 
protection. 

Following  the  2015  public  consultation  on  the  current  regulatory  framework  for  Europe’s  audiovisual  media 
landscape, on 25 May the Commission adopted a proposal amending the AVSMD. The proposed Directive ensures 
that consumers will be sufficiently protected in the on-demand and internet world.318 The idea is to strike a balance 
between competitiveness and consumer protection. 

Within  the  telecoms  regulatory  framework,  on  30  September  the  Commission  adopted  a  proposal  to  update  the 
current EU telecoms rules.319 The proposed measures are aimed at achieving higher levels of connectivity with an 
updated  set  of  end-user  protection  rules.  In  turn,  this  will  ensure  non-discriminatory  access  to  any  contents  and 

315   Proposal for a Regulation of the European Parliament and of the Council on cooperation between national authorities 

responsible for the enforcement of consumer protection laws, COM(2016) 283 final, 25.5.2016. 

316   Communication from the Commission, Delivering a new deal for energy consumers (COM(2015) 339 final, 15.7.2015). 
317   http://europa.eu/rapid/press-release_IP-16-4009_en.htm; see section above on Article 34. 
318   See also Article 8, 11 and 24. 
319   https://ec.europa.eu/unitedkingdom/news/proposals-reforms-eu-telecoms-rules-and-modernising-copyright-digital-

age_en 

91 

 
                                                            
services, including public services, help promote freedom of expression and of business, and enable Member States 
to comply with the Charter at a much lower cost in the future. 

In line with Article 38 of the Charter, the proposed Electronic Communications Code will provide stronger consumer 
protection  in  areas  where  general  consumer  protection  rules  do  not  address  sector-specific needs.  The  provisions 
make it easier for consumers to switch suppliers when they are signed up to bundles (packages combining internet, 
phone, TV, mobile, etc.) and ensure that vulnerable groups (e.g. the elderly, the disabled and those receiving social 
assistance)  have  the  right  to  affordable  internet  contracts.  This  will  support  the  application  of  Article  11  of  the 
Charter. 

Policy 

Together with Directive 2013/11/EU,320 the ODR platform321 launched by the Commission in early 2016 will further 
enhance consumers’ access to alternative dispute resolution and the enforcement of their consumer rights, thereby 
contributing to a high level of consumer protection within the Union. 

Throughout 2016, the Commission worked on the ‘fitness check’ of EU consumer and marketing law322 to assess the 
effectiveness,  efficiency,  coherence  and  relevance  of  consumer  law  in  line  with  market  and  technology 
developments, including the emerging digital single market. The exercise covers the Unfair Contract Terms Directive 
(93/13/EEC),323  the  Sales  and  Guarantees  Directive  (1999/44/EC),324  the  Unfair  Commercial  Practices  Directive 
(2005/29/EC),325  the  Price  Indication  Directive  (98/6/EC),326  the  Misleading  and  Comparative  Advertising  Directive 
(2006/114/EC)327  and  the  Injunctions  Directive  (2009/22/EC).328  The  results  from  the  parallel  evaluation  of  the 
Consumer  Rights  Directive  (2011/83/EU)329  will  be  fed  into  the  fitness  check  assessments.  In  the  context  of  the 
fitness  check,  the  Commission  held  a  public  online  consultation  from  12  May  to  12  September330  and  set  up  a 
stakeholder  consultation  group,  which  met  twice.  The  fitness  check  was  also  the  focus  of  the  annual  European 
Consumer  Summit,  which  attracted  around  450  representatives  of  national  authorities,  European  institutions, 
consumer organisations, businesses and academics. 

In the field of transport, on 10 June the Commission adopted a set of interpretative guidelines331 on Regulation (EC) 
No  261/2004  establishing  common  rules  on  compensation  and  assistance  to  passengers  in  the  event  of  denied 

320   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, 18.6.2013, p. 63). 

321   Available at: https://webgate.ec.europa.eu/odr/main/index.cfm?event=main.home.chooseLanguage. 
322   http://ec.europa.eu/consumers/consumer_rights/review/index_en.htm 
323   Council Directive 93/13/EEC of 5 April 1993 on unfair terms in consumer contracts (OJ L 95, 21.4.1993, p. 29-34). 
324   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, 7.7.1999, p. 12-16). 

325   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, 11.6.2005, p. 22-39). 

326   Directive  98/6/EC  of  the  European  Parliament  and  of  the  Council  of  16  February  1998  on  consumer  protection  in  the 

indication of the prices of products offered to consumers (OJ L 80, 18.3.1998, p. 27-31). 

327   Directive  2006/114/EC  of  the  European  Parliament  and  of  the  Council  of  12  December  2006  concerning  misleading  and 

comparative advertising (OJ L 376, 27.12.2006, p. 21-27). 

328   Directive 2009/22/EC of the European Parliament and of the Council of 23 April 2009 on injunctions for the protection of 

consumers’ interests (OJ L 110, 1.5.2009, p. 30-36). 

329   Directive  2011/83/EU  of  the European  Parliament  and  of the  Council  of  25 October  2011  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. 64-88). 

330   http://ec.europa.eu/newsroom/just/item-detail.cfm?item_id=31689  
331   Commission  Notice  —  Interpretative  guidelines  on  Regulation  (EC)  No  261/2004  of  the  European  Parliament  and  of  the 

92 

 
                                                            
 
boarding  and  of  cancellation  or  long  delay  of  flights.  The  guidelines  seek  to  clarify  existing  rules  and  provide 
guidance to  air carriers and national enforcement  bodies on the implementation of the Regulation, notably in the 
light of several CJEU judgments that have affected the contents and scope of the legislation since its entry into force 
in 2005. They will help to protect citizens’ rights and improve enforcement and handling of complaints, including on 
issues covered by the Charter, such as consumer protection or the rights of persons with disabilities. 

Case-law 

In  Wathelet,332  the  CJEU  clarified  the  application  of  consumer  law  to  intermediaries.  It  ruled  that,  under  the 
Consumer Sales Directive (1999/44/EC), the term ‘seller’ covers a trader acting as intermediary on behalf of a private 
individual if the trader has not duly informed the consumer of the fact that the owner of the goods being sold is a 
private individual.   

In its ruling of 21 December in  Gutiérrez Naranjo,333 the CJEU clarified the implications of the principle that unfair 
contract terms are non-binding on consumers under Article 6(1) of Directive 93/13/EEC. The case concerned a 2013 
decision by the Spanish Supreme Court that had found ‘floor clauses’ in loan contracts concluded by consumers to 
be unfair, but had ruled that this finding would have effect only from the date of its judgment, thereby excluding 
reimbursement claims by consumers for overpayments made in the past. The CJEU considered that the non-binding 
nature  of  unfair  contract  terms  implies  that  national  courts  must  purely  and  simply  exclude  the  application  of  a 
contract  term  found  to  be  unfair  as  if  it  had  never  existed,  so  that  consumers  are  entitled  to  restitution  of 
advantages wrongly obtained by the trader. It stressed that, while national law may lay down rules on res iudicata or 
reasonable limitation periods, only the CJEU may decide on a temporal limitation of the effects of an interpretation 
of a rule of EU law. 

On  the  same  day,  the  CJEU  delivered  an  important  ruling  in  Biuro  podróży  ‘Partner’334  regarding  Directive 
2009/22/EC on injunctions and Directive 93/13/EEC on unfair terms in consumer contracts, and the right to effective 
judicial protection under Article 47 of the Charter. It established that a public national register of standard contract 
terms that have been considered unfair by injunction court orders enhances consumer protection, provided that it is 
managed in a transparent manner and kept up to date. Traders that have used terms that are materially identical to 
those  in  the  register  may  be  sanctioned  by  an  administrative  fine,  provided  that  they  have  an  effective  judicial 
remedy against the decision declaring the terms to be equivalent, having regard in particular to their harmful effects 
for consumers, and against the decision fixing the amount of the fine imposed. 

Application by Member States 

The Commission worked actively to ensure the correct and effective implementation of various directives in the field 
of consumer law and thus contributed to ensuring a high level of consumer protection throughout the EU. 

The Commission continued the transposition check of the Consumer Rights  Directive  (2011/83/EU).335 A study on 
the application of the Directive is being carried out in connection with the Commission’s report to the Council and 
the European Parliament in 2017. 

Council establishing common rules on compensation and assistance to passengers in the event of denied boarding and of 
cancellation  or  long  delay  of  flights  and  on  Council  Regulation  (EC)  No  2027/97  on  air  carrier  liability  in  the  event  of 
accidents, as amended by Regulation (EC) No 889/2002 of the European Parliament and of the Council (C(2016) 3502, OJ C 
214, 15.6.2016, p. 5-21). 

332   CJEU judgment of 9 November 2016 in Case C-149/15 Wathelet. 
333   CJEU judgment of 21 December 2016 in Joined Cases C-154/15, C-307/15 and C-308/15, Gutiérrez Naranjo. 
334   CJEU judgment of 21 December 2016 in Case C-119/15, Biuro podróży ‘Partner’. 
335  Directive  2011/83/EU  of  the  European  Parliament  and  of  the  Council  of  25 October  2011  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 

93 

 
                                                                                                                                                                                                                      
 
In  addition,  the  Commission  continued  its  work  on  ensuring  the  correct  transposition  of  the  Unfair  Commercial 
Practices  Directive  (2005/29/EC).  At  the  end  of  2016,  a  total  of  13  infringement  procedures  were  pending  and 
subject to further action in 2017. Several Member States made, or are in the process of making, changes to bring 
their legislation into line with the Directive. On 25 May, the Commission published a new guidance document on the 
application of the Directive336 with a view to improving compliance by businesses and enforcement in the Member 
States; this replaced the 2009 guidance document. 

At the end of 2016, two infringement procedures were pending regarding Article 7 of the Package Travel Directive 
(90/314/EEC),337  which  requires  package  travel  organisers  and/or  retailers  to  provide  evidence  of  security  for  the 
payments they receive and  to repatriate consumers in the event of their insolvency. The infringement  procedures 
and the bilateral dialogues between the Commission and the Member States concerned led to legislative changes in 
five Member States. 

An  infringement  procedure  was  closed  following  legislative  changes  in  connection  with  the  Timeshare  Directive 
(2008/122/EC).338 At the end of 2016, three infringement procedures and one EU-pilot case were still pending. 

The  Commission  continued  its  work  to  ensure  the  full  and  correct  application  of  Directive 2013/11/EU  on 
alternative dispute resolution for consumer disputes. It issued reasoned opinions against three Member States for 
non-communication of national transposition measures. Of the 16 infringement procedures for non-communication 
launched in 2015, a total of 13 were closed in 2016. By the end of 2016, 26 Member States had notified complete 
transposition  of  the  Directive.  In  all,  24  Member  States  had  notified  a  total  of  about  250  ADR  entities.  The 
Commission  continued  to  play  an  important  role  in  ensuring  that  national  authorities  and  stakeholders  respect 
consumer  safety  rules  and  that  they  cooperate  in  order  to  keep  unsafe  products  from  reaching  and  harming 
consumers. The Rapid Alert System for dangerous non-food products ensured the exchange of information between 
European countries and the Commission on measures against dangerous products detected on the EU market and 
measures  taken  with  respect  to  risks  identified.  Since  2004,  over  23 000  alerts  for  dangerous  consumer  products 
have  been  circulated  in  Europe,  of  which  2 044  were  in  2016  alone.  Particular  care  is  taken  with  child-related 
products and a quarter of all alerts sent by national authorities concerned safety issues with toys. 

Decision of the Slovak Regional Court Prešov 

In  a  Slovakian  case,  a  telephone  company  took  one  of  its  clients  to  court  because  he  did  not  pay  his  bills.  The 
company argued, among other points, that, by affording specific protection to consumers, the Consumer Protection 
Act interfered with the principles of fair trial and equality of arms (both parties of a trial to have the same means 
available)  set  out  in  the  Slovak  Constitution  and  was  hence  unconstitutional.  The  court  admitted  that  there  is  no 
specific  right  of  consumer  protection  in  the  constitution  and  that  thus  the  Charter  provided  a  higher  level  of 
consumer protection than the Slovak Constitution. However, it found that, as the Charter is a part of the national 
legal order, Slovakia is bound by its provisions. The court also referred to the official records of the negotiations on 
the Consumer Protection Act, which show that the motivation for including the relevant provision in the act was to 
address  problems  found  in  practice  and  to  ensure  effective  protection  of  consumers’  rights,  embodied  in 

Directive 85/577/EEC and Directive 97/7/EC of the European Parliament and of the Council, OJ L 304, 22.11.2011, p. 64–-
88. 

336   Commission  guidance  on  the  implementation/application  of  Directive  2005/29/EC  on  unfair  commercial  practices 

(SWD(2016) 163 final, 25.5.2016). 

337   Council Directive 90/314/EEC of 13 June 1990 on package travel, package holidays and package tours (OJ L 158, 23.6.1990, 

p. 59-64). 

338   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, 3.2.2009, p. 
10-30). 

94 

 
                                                                                                                                                                                                                      
Article 169 TFEU and Article 38 of the Charter. (Slovakia, Regional Court Prešov, Case 17Co/286/2015, decision of 28 
June 2016) 

95 

 
Letters 

Justice 
26% 

Citizens' rights 
18% 

Social security and 
social assistance 1% 

Consumer 
protection 2% 

Other 
19% 

Freedoms 
11% 

Solidarity 
3% 
Dignity 
0% 

Equality 
23% 

Questions 

Equality 
27% 

Citizens' 
rights 
8% 

Justice 
7% 

Other 
9% 

Solidarity 
11% 

Prohibition of child 
labour and 
protection of young 
people 2% 

Health care 1% 

Environment 
protection 1% 

Dignity 
4% 

Consumer 
protection 6% 

Freedoms 
35% 

96 

 
Petitions 

Citizens' rights 
16% 

Justice 
13% 

Other 
5% 

Solidarity 
8% 

Dignity 
2% 

Freedoms 
15% 

Equality 
42% 

Right of collective 
bargaining and action 
1% 

Fair and just working 
conditions 4% 

Prohibition of child 
labour and protection 
of young people 1% 

Consumer protection 
2% 

97 

 
 
 
 
Title V 

Citizens’ rights 

In  March,  the  Commission  published  the  findings  of  a  dedicated  public  consultation  and  two  Eurobarometer 
surveys on EU citizenship, including one on electoral rights. It looked at people’s experiences and views as to how 
their rights as EU citizens are protected and enjoyed, what could be done to promote democratic participation and 
common EU values further and how the EU could make their lives easier. This was fed into the preparation of the 
Commission’s  next  EU  Citizenship  Report  putting  forward  concrete  proposals  for  promoting,  protecting  and 
strengthening EU citizenship rights. 

Following the UK’s referendum on its membership of the EU, there was considerable interest in the impact of the 
outcome on the rights protected under Chapter V of the Charter. Almost half of the 70+ petitions received on the 
referendum concerned citizenship and citizenship rights. Many of the 100+ questions from the European Parliament 
to  the  Commission  on  this  subject  also  raised  issues  of  citizenship.  Following  the  referendum,  the  Commission 
received many hundreds of related enquiries and letters from citizens, covering a variety of subjects and views. 

98 

 
 
 
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) 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 elections to the European Parliament in the Member State in which they reside. 

Application by Member States 

The  Commission  continued  its  dialogue  with  a  number  of  Member  States  on  their  implementation  of  European 
electoral law (Articles 39 and 40 of the Charter).  

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

Under 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 

Under 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. This includes the right to be 
heard and to receive a reply. 

Policy 

The ‘revolving doors’ phenomenon, whereby staff members join the EU institutions from the private sector, or vice 
versa,  might  raise  concerns  as  to  possible  conflicts  of  interest,  which  could  undermine  citizens’  trust  in  the 
independence  and  objectivity  of  the EU institutions. Transparency on such  cases  thus  contributes  to  guaranteeing 
the right to good administration, as enshrined in Article 41. 

This issue was at the centre of an investigation by the Ombudsman into two complaints in which the Commission 
was  accused  of  not  properly  implementing  rules  on  ex-officials  taking  up  employment  elsewhere.  The  inquiry 
revealed maladministration in the implementation of some aspects of the Commission’s approach to the ‘revolving 
doors’  phenomenon.  In  September  2014,  the  Ombudsman  made  specific  recommendations  to  the  Commission339 
aimed at strengthening its review processes in such cases. 

In response, on 4 December 2015 the Commission had published340 the names of certain senior officials leaving the 
Commission  for  new  jobs,  including  positions  in  the  private  sector.  It  will  also  publish  the  details  of  the  previous 

339   http://www.ombudsman.europa.eu/en/press/release.faces/en/56332/html.bookmark  
340   Commission  Communication,  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) 
http://ec.europa.eu/civil_service/docs/c_2015_8473_f1_communication_from_commission_to_inst_en_v4_p1_834004.pd
f 

99 

 
 
 
 
                                                            
 
duties of the senior officials, their new role outside the Commission and its own assessment of possible conflicts of 
interest. A new report on the decisions adopted in 2015 was published on 22 December 2016.341  

The change, outlined in the Commission’s reply342 to the Ombudsman, is in line with her recommendations and the 
new  (January  2014)  EU  staff  regulations,  which  specify  that  all  officials  leaving  EU  employment  must  inform  their 
institution of any proposed new employment during the two years after leaving. 

In  September,  the  Ombudsman  closed  the  inquiry,343  welcoming  the  Commission’s  cooperative  approach  and 
making  suggestions  for  improvement  reflecting  her  2014  recommendations.  She  also  announced  that  an  own-
initiative inquiry would be opened in 2017. 

Administrative review by the Commission 

The objective of Regulation (EC) No 1367/2006344 on the application of the provisions of the Aarhus Convention is to 
contribute to the implementation of the Aarhus Convention by providing for, inter alia, ‘the right of public access to 
environmental  information’,  ‘public  participation  concerning  plans  and  programmes  relating  to  the  environment’ 
and ‘access to justice in environmental matters’. 

The Regulation provides that any NGO meeting certain criteria is entitled to make a request for internal review to 
the EU institution or body that has adopted an administrative act under environmental law.  

In this context, the Commission considered inter alia two requests for internal review of administrative acts adopted 
under the EU legislation on GMOs. its replies were based on a careful assessment of environmental impacts due to 
the release of GMOs into the environment. They duly took account of Article 41 of the Charter, which guarantees the 
right  of  every  person  to  have  his  or  her  affairs  handled  impartially,  fairly  and  within  a  reasonable  time  by  the 
institutions  and  bodies  of  the  Union,  and  Article  37,  which  provides  that  a  high  level  of  environmental  protection 
must be integrated into the policies of the Union. 

Article 42 — Right of access to documents 

Article  42  of  the  Charter  guarantees  that  any  EU  citizen,  and  any  natural  or  legal  person  residing  or  having  its 
registered office in a Member State, has a right of access to documents of the EU institutions, bodies, offices and 
agencies. In principle, all documents of the EU institutions, bodies, offices and agencies should be accessible to the 
public. However certain public and private interests may be protected by way of exceptions to the right of access 345  

In  2016,  the  Commission  registered  6,077  initial  applications  for  access  to  documents.  Full  or  partial  access  was 
granted  in 81%  of  cases.  It received  295  confirmatory  applications.  When  assessing  a  confirmatory  application  for 
access to documents, the Secretariat-General of the Commission conducts an independent review of the reply given 
by the Commission department concerned at the initial stage. This review led to wider access being granted in 52% 
of cases. 

Policy 

341   http://ec.europa.eu/civil_service/docs/2016_annual_report_en.pdf 
342   Commission  follow-up  to  the  Ombudsman’s  draft  recommendation  —  two  joined  complaints  by  Corporate  Europe 
Observatory, Greenpeace EU Unit, LobbyControl and Spinwatch (ref. 2077/2012/TN) and Friends of the Earth Europe (ref. 
1853/2013/TN); http://europa.eu/!tN76FR 

343   http://www.ombudsman.europa.eu/en/cases/decision.faces/en/71136/html.bookmark 
344   Regulation (EC) No 1367/2006 of the European Parliament and of the Council of 6 September 2006 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, 25.9.2006, p. 13-19). 

345   Regulation (EC) No 1049/2001 regarding public access to European Parliament, Council and Commission documents (OJ L 

145, 31.5.2001, p. 43). 

100 

 
                                                            
The  Commission  continued  to  publish  information  on  interest  representatives  who  meet  its  political  leaders  and 
senior officials. By the end of December, information had been published on over 11.600 bilateral meetings between 
Commissioners, cabinet members and Directors-General, and interest representatives. In addition, the Commission 
applied the related rule ‘not  on the Transparency  Register,  no  meeting’. This  allowed  citizens  and  stakeholders  to 
know  who  is  meeting  the  Commission  and  on  which  subjects,  and  triggered  requests  by  the  public  for  access  to 
minutes of meetings or other related documents. 

The  Commission  continued  to  honour  its  November  2014  commitment  to  inject  more  transparency  into  the 
negotiations for a Transatlantic Trade and Investment Partnership (TTIP) with the United States. Since January 2015, 
it has regularly published and updated a list of TTIP documents and made public more negotiating texts and detailed 
reports of the negotiating rounds.346 

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 2016, the Ombudsman was able to help 15 756 citizens. This includes individuals who complained directly (1 839 
complaints),  those  who  received  a  reply  to  their  request  for  information  (1 271)  and  those  who  obtained  advice 
through the interactive guide on the Ombudsman’s website (12 646). 

About 470 complaints fell within the competence of a member of the European Network of Ombudsmen; of these, 
429  fell  within  the  competence  of  a  national/regional  ombudsman  or  similar  body  and  41  were  referred  to  the 
European Parliament’s Committee on Petitions. 

Article 44 — Right to petition 

All EU citizens, and 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 within the Union’s fields of activity that affect the petitioner 
directly. 

Such  petitions  are  considered  by  the  Parliament’s  Committee  on  Petitions.  Each  year,  the  Committee  draws  up  a 
report on its activities, which inter alia presents an analysis of the petitions received in the year in question and of 
relations with other institutions. The report is then debated in a plenary sitting of the Parliament, which adopts a 
resolution. 

Petitions  can  be  addressed  to  the  Parliament  either  by  post  or  electronically,  using  the  Parliament’s  web  portal 
(https://petiport.secure.europarl.europa.eu/petitions/en/home),  which  has  been  established  to  facilitate  the 
public’s  interaction  with  the  work  of  the  Committee  on  Petitions.  Petitioners  may  be  invited  to  participate  in 
meetings of the Committee if their petition is to be the subject of discussion. Such meetings provide the Committee 
and  representatives  of  the  Commission,  who  are  also  invited  to  attend,  with  an  opportunity to  hear  directly  from 
citizens who consider that their rights have not been respected. 

346   http://trade.ec.europa.eu/doclib/press/index.cfm?id=1230  

101 

 
 
 
                                                            
In  accordance  with  Parliament’s  rules  of  procedure,  the  Committee  on  Petitions  may  request  assistance  from  the 
Commission  in  the  form  of  information  on  the  application  of,  or  compliance  with,  Union  law  and  information  or 
documents relevant to the petition. As mentioned above, the Commission received a total of 751 petitions in 2016 
from the Committee on Petitions, of which 118 concerned fundamental rights.  

Citizens’ initiatives 

Another instrument available to EU citizens is the possibility of registering a citizens’ initiative. An initiative allows EU 
citizens to participate directly in the development of EU policies by calling on the Commission, in the framework of 
its  powers,  to  propose  legislation  on  matters  where  the  EU  has  competence  to  legislate  for  the  purpose  of 
implementing the Treaties. A citizens’ initiative has to be backed by at least a million EU citizens from at least seven 
Member States. A minimum number of signatories is required in each of those Member States. The organisers must 
collect all signatures in one year from the formal registration of the proposed initiative. 

In 2016, the Commission registered three initiatives:  

 

 

 

‘Let’sfly2Europe: enable safe and legal access to Europe for refugees!’; 

‘People4Soil: sign the citizens’ initiative to save the soils of Europe!’; and  

‘More than education — shaping active and responsible citizens’.347 

The General Court ruled on the refusal to register the following proposed initiatives:  

 

 

‘Right to lifelong care: leading a life of dignity and independence is a fundamental right!’;348 and  

‘Cohesion policy for the equality of the regions and sustainability of the regional cultures’.349 

In both cases, the General Court confirmed the Commission’s refusal decisions, since the initiatives did not meet the 
conditions for registration under Regulation (EU) No 211/2011.350  

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 TFEU. 

Case-law 

In its judgment in Bogendorff von Wolffersdorff351 the Court of Justice held that a refusal by the German authorities 
to recognise freely chosen forenames and a surname legally acquired in the UK by a dual German-UK national, but 
which include several tokens of nobility, constitutes a restriction on the freedom to move and reside across the EU. It 
noted that a person’s surname is a constituent element of his identity and of his private life, the protection of which 
is enshrined in Article 7 of the Charter. At the same time, it accepted that the objective of observing the principle of 
equal treatment before the law (in Germany) is compatible with EU law, noting that the principle of equal treatment 
is enshrined in Article 20 of the Charter. 

347   European Citizens’ Initiative official register: http://ec.europa.eu/citizens-initiative/public/welcome  
348    GCEU judgment of 19 April 2016 in Case T-44/14, Bruno Costantini and Others v European Commission. 
349   GCEU judgment of 10 May 2016 in Case T-529/13 Izsák and Dabis v Commission, this judgement is under appeal before the 

Court of Justice 

350   Regulation (EU) No 211/2011 of the European Parliament and of the Council of 16 February 2011 on the citizens’ initiative 

(OJ L 65, 11.3.2011, p. 1-22). 

351   CJEU, judgement of 2 June 2016 in Case C-438/14, see also above under Articles 7 and 20. 

102 

 
 
                                                            
In its judgment in the Petruhhin352 case, the Court held that, when a Member State to which an EU citizen has moved 
receives an extradition request from a third state, it must inform the Member State of which the citizen in question 
is a national. It should surrender the citizen to that Member State at its request, provided that Member State has 
jurisdiction to prosecute that person for offences committed outside its national territory. Where the Member State 
that has received the request intends to extradite a national of another Member State at the request of a third state, 
it  must  verify  that  the  extradition  will  not  prejudice  the  rights  referred  to  in  Article  19  of  the  Charter.  On  13 
September 2016 the Court delivered judgements in two similar cases already referred to under Article 7. In the case 
CS (C-304/14)353 the Court held that the expulsion to a non-EU country of a non-EU national who has been convicted 
of a criminal offence and who is the parent and primary carer of a young child who is a citizen of a Member State (in 
which  he  has  been  residing  since  birth)  and,  consequently,  an  EU  citizen,  may  deprive  the  child  of  the  genuine 
enjoyment of the substance of his or her rights as an EU citizen, as he or she may be compelled, de facto, to go with 
the parent, and therefore to leave the territory of the EU as a whole. However, the Court held that, in exceptional 
circumstances, a Member State may expel the person concerned on grounds of public policy or public security, even 
where this means that the child in question will have to leave the territory of the EU, provided that such a decision is 
proportionate and take account of the right to respect for private and family life (Article 7 of the Charter) and of the 
obligation to take into consideration the child’s best interests (Article 24(2) of the Charter). 

In the case Rendón Marín (C-165/14)354 the Court held that Article 20 TFEU does not permit a non-EU national who 
has the sole care of EU  citizens who are minors to be automatically refused a residence permit, or to be expelled 
from  the  territory  of  the  EU,  on  the  sole  ground  that  he  has  a  criminal  record,  where  that  refusal  has  the 
consequence of requiring those children to leave the territory of the EU. In its consideration the Court pointed out 
that the assessment of the applicant's situation must take account of the right to respect for private and family life 
(Article 7 of the Charter), which must be read in conjunction with the obligation to take into consideration the child’s 
best interests (Article 24(2) of the Charter). 

Application by Member States 

The Commission continued its dialogue with a number of Member States on their transposition and implementation 
of  the  EU  acquis  on  the  free  movement  of  EU  citizens  and  their  family  members,  including  substantial  and 
procedural safeguards, including substantial and procedural safeguards (Articles 21,  41 and 45 of the Charter). For 
example, the cases concern obstacles to free movement in relation with registration requirements and procedures 
of  EU  citizens  and  their  family  members,  restrictions  of  the  right  of  residence  of  EU  citizens  and  their  family 
members and the delivery of orders to leave the territory, as well as the necessity to respect the right to be heard, 
and  the  obligation  to  have  a  legal  representative  in  a  Member  State  for  legal  proceedings  before  the  national 
administrative courts in case of a non-resident applicant.  

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 non-EU countries under the same conditions as the other 
Member States’ nationals. EU citizens must be able to rely effectively on this right when travelling abroad. 

352   CJEU, judgement of 6 September 2016 in Case C-182/15 See also above under Article 19. 
353   CJEU judgment of 13 September 2016 in Case C-304/14, CS. 
354 CJEU judgment of 13 September 2016 in Case C-165/14, Rendón Marín. 

103 

 
 
 
                                                            
Letters 

Other 
19% 

Justice 
25% 

Right to vote & stand 
as candidate (EP) 1% 

Right to petition 14% 

Citizen's rights 
19% 

Solidarity 
3% 

Equality 
23% 

Freedoms 
11% 

Dignity 
0% 

Diplomatic and 
consular protection 3% 

EU citizenship 1% 

Questions 

Solidarity 
11% 

Justice 
7% 

Other 
9% 

Citizen's rights 
8% 

Dignity 
4% 

Equality 
27% 

Electoral rights (EP and 
local elections)  
1% 
Right to good 
administration 1% 

Freedom of movement 
and of residence 5% 

Freedoms 
34% 

EU citizenship in 
general 1% 

104 

 
 
 
Petitions 

Solidarity 
7% 

Justice 
13% 

Other 
5% 

Electoral rights (EP and 
local elections) 
4% 

Equality 
42% 

Citizen's rights 
16% 

Freedom of movement 
and of residence 9% 

Freedoms 
15% 

Dignity 
2% 

EU citizenship in 
general 3% 

105 

 
 
 
 
Title VI 

Justice 

A number of developments on legislative initiatives linked to the implementation of the right to an effective remedy 
and to a fair trial across several EU policies stood out in 2016. 

Three new Directives were adopted, complementing the Commission’s roadmap to strengthen procedural rights for 
suspects and accused persons in criminal proceedings; these concerned: 

 

the presumption of innocence and the right to be present at the trial;  

  procedural safeguards for children; and  

 

legal aid. 

In the area of civil justice, the proposal for a recast of the Brussels IIa Regulation enhances the right to an effective 
remedy  by  simplifying  the  procedure  for  the  cross-border  enforcement  of  judgments,  abolishing  the  ‘exequatur’ 
procedure while maintaining appropriate procedural safeguards.   

In the area of migration, the Regulation on the European Border and Coast Guard requires the Agency to set up a 
complaints  mechanism  to  deal  with  possible  violations  of  fundamental  rights  in  the  course  of  its  operational 
activities.   

The new Directive on combating terrorism, on which the European Parliament and the Council reached agreement 
in December, contains several provisions on support, assistance and protection for victims of terrorism, enhancing 
their access to justice in particular by strengthening access to legal aid and facilitating access to compensation. 

As  part  of  the  clean  energy  package,  the  Commission  adopted  a  proposal  for  a  recast  Electricity  Directive,  which 
requires that customers need to have access to simple, fair, transparent, independent, effective and efficient out-of-
court  dispute  resolution  mechanisms  for  the  settlement  of  disputes  concerning  rights  and  obligations  under  the 
Directive. 

The ODR platform launched by the Commission in early 2016 allows consumers to submit online disputes with EU 
traders  arising  from  online  purchases  in  any  official  EU  languages,  thus  further  enhancing  consumers’  access  to 
alternative dispute resolution and the enforcement of consumer rights. 

106 

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

Article  47  of  the  Charter  provides  that  people  have  the  right  to  an  effective  remedy  before  a  tribunal  if  a  right 
granted  under  EU  rules  is  violated.  This  ‘right  to  an  effective  remedy’  provides  individuals  with  a  legal  solution 
decided  by  a  tribunal  if  an  authority  applies  EU  law  incorrectly.  It  guarantees  judicial  protection  against  any  such 
violation and therefore plays a key role in ensuring the effectiveness of all EU provisions, ranging from social policy 
to asylum legislation, competition, agriculture, etc. 

A closely related provision, also enshrined by Article 47, is that legal aid is to 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 also stipulates that, in all judicial proceedings which relate to the interpretation or the validity of EU rules, 
everyone should have the right to a fair trial. This 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; and  

the right to be advised, defended and represented. 

Legislation and policy 

An effective justice system is essential for guaranteeing the respect of Article 47 and all other rights enshrined in the 
Charter.  As  stated  in  the  Commission’s  Communication  on  the  Annual  Growth  Survey  for  2016,355  improving  the 
quality,  independence  and  efficiency  of  national  justice  systems  is  among  the  key  priorities  of  the  European 
Semester.  As  part  of  the  close  monitoring  of  justice  reforms  in  Member  States,  the  Council  adopted  six 
country-specific  recommendations  to  improve  justice  systems  in  the  Member  States  concerned,  on  the  basis  of 
Commission proposals, and the Commission has also closely monitored other Member States’ efforts in this area.   

Legislative measures or proposals linked to the implementation of the right to an effective remedy and to a fair trial 
were adopted across several EU policies: 

 

 

in the area of migration, the Regulation on the European Border and Coast Guard6 requires the Agency to 
set  up  a  complaints  mechanism  to  deal  with  possible  violations  of  fundamental  rights  in  the  course  of  its 
operational activities. Under this mechanism, any person who considers that their fundamental rights have 
been breached in the course of the Agency’s activities, or any third-party intervener, may lodge a complaint 
with the Agency in any EU language or even in Arabic, Pashto, Urdu or Tigrinya;  

several  provisions  on  support,  assistance  and  protection  for  victims  of  terrorism  were  discussed  in  the 
negotiations on the new Directive on combating terrorism proposed by the Commission in December 2015. 
The provisions included in the final text agreed by the co-legislators356 build on the Directive on the rights of 

355   Communication from the Commission to the European Parliament, the Council, the European Central Bank, the European 
Economic and Social Committee, the Committee of the Regions and the European Investment Bank, Annual Growth Survey 
2016 — strengthening the recovery and fostering convergence (COM(2015) 690 final, 26.11.2015). 

356   http://eur-lex.europa.eu/legal-content/EN/ALL/?uri=celex%3A52015PC0625 . 

107 

 
                                                            
victims of crime,357 but address more directly the specific needs of victims of terrorism. They enhance access 
to justice for victims of terrorism, in particular by: 

 

 

strengthening  access  to  legal  aid:  Member  States  will  have  to  take  into  account  the  gravity  and 
circumstances of the offence when deciding on legal aid to victims of terrorism, unless this is contrary 
to their legal systems; and 

facilitating  access  to  compensation:  victims’  support  services  will  provide  assistance  in  claiming 
compensation; 

  as  part  of  the  broader  clean  energy  package,  the  Commission  adopted  a  proposal  for  a  recast  Electricity 

Directive, which requires that customers: 

  have  access  to  simple,  fair,  transparent,  independent,  effective  and  efficient  out-of-court  dispute 
resolution  mechanisms  for  the  settlement  of  disputes  concerning  rights  and  obligations  under  the 
Directive; and  

  are duly informed about the access to such mechanisms; and 

 

in the area of civil justice, the proposal for a recast of the Brussels IIa Regulation  enhances the right to an 
effective  remedy  by  simplifying  the  procedure  for  the  cross-border  enforcement  of  judgments.  This  is 
achieved  through  the  abolition  of  the  ‘exequatur  procedure’  while  maintaining  appropriate  procedural 
safeguards (grounds for non-recognition and for refusal of enforcement).   

The Commission’s proposal for a Directive on preventive restructuring frameworks, second chance and measures 
to  increase  the  efficiency  of  restructuring,  insolvency  and  discharge  procedures  will  have  a  positive  impact  on 
creditors’  right  to  an  effective  remedy,  by  putting  in  place  a  strong  set  of  safeguards  to  protect  them  where 
limitations may arise, such as the limited duration of the stay of enforcement proceedings, the right to lift it if there 
is  a  possibility  of  unfair  prejudice,  and  the  guarantee  of  court  intervention  on  every  occasion  their  rights  may  be 
affected. 

There were a number of developments as regards the regulation of and access to dispute resolution mechanisms: 

 

 

in the field of customs, the Commission adopted a  proposal for a Directive on double taxation resolution 
mechanisms,358  which  promotes  respect  of  the  right  to  an  effective  remedy  by  giving  taxpayers  access  to 
their  national  competent  court  at  the  dispute  resolution  stage  in  cases  where  access  is  denied  or  if  the 
Member State fails to establish an advisory commission;  

the  ODR  platform  will  further  enhance  consumers’  access  to  alternative  dispute  resolution  and  the 
enforcement of their consumer rights.359 

Case-law 

In Bensada Benallal v Belgium,360 a case concerning the application of EU rules on free movement, the Court clarified 
that,  in  accordance  with  the  principle  of  equivalence,  a  plea  alleging  an  infringement  of  the  right  to  be  heard,  as 
guaranteed by EU law, raised for the first time before a national court hearing an appeal on points of law challenging 
the  withdrawal  of  a  residence  authorisation,  must  be  held  to  be  admissible  if  that  right  satisfies  the  conditions 
required by national law for it to be classified as a plea based on public policy. 

357   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. 57-73). 
358   COM(2016) 686 final, 25.10.2016. 
359   See section above on Article 38. 
360   CJEU judgment of 17 March 2016 in Case C-161/15, Abdelhafid Bensada Benallal v État belge. 

108 

 
                                                            
Two  other  cases,  Mehrdad  Ghezelbash  v  Staatssecretaris  van  Veiligheid  en  Justitie361  and  George  Karim  v 
Migrationsverket362  concerned  the  interpretation  of  the  right  to  an  effective  remedy  against  a  transfer  decision 
issued under the Dublin II Regulation,363 also as regards, in particular, the scope of judicial review. Basing itself on 
the  principles  developed  in  the  Abdullahi  case,364  the  Court  held  that,  while  appeals  are  governed  by  national 
procedural rules, which also govern the intensity and outcome of the appeal or review process, the effectiveness of 
judicial review guaranteed by Article 47 of the Charter requires an assessment of the lawfulness of the grounds of 
the transfer decision, so that the asylum seeker, in an appeal against a transfer decision,  is entitled to plead, inter 
alia, the incorrect application of one of the criteria laid down in the Dublin Regulation for determining responsibility, 
even  where  there  are  no  systemic  deficiencies  in  the  asylum  process  or  in  the  reception  conditions  for  asylum 
applicants in that Member State, resulting in a risk of inhuman or degrading treatment within the meaning of Article 
4 of the Charter. 

The CJEU’s ruling in Alta Realitat S.L.365 provided guidance concerning the interpretation of Article 47 in relation to 
the  service  of  documents.  Interpreting  the  EU  Regulation  on  the  service  in  the  Member  States  of  judicial  and 
extrajudicial documents in civil or commercial matters,366 which entitles the addressee to refuse the document if it 
has not been written in or translated into the appropriate language, the Court ruled that the objective of improving 
the  efficiency  and  speed  of  judicial  procedures  cannot  be  attained  by  undermining  in  any  way  the  rights  of  the 
defence of the addressee, which derive from the right to a fair hearing under Article 47 of the Charter. It is therefore 
important not only to ensure that addressees actually receives the document in question, but also that they are able 
to  know  and  understand  effectively  and  completely  the  meaning  and  scope  of  the  action  brought  against  them 
abroad, so as to be able effectively to assert their rights in the Member State of transmission. 

In  the  field  of  consumer  protection,  the  Court  of  Justice  held  in  Biuro  podróży  ‘Partner’367  that  a  public  national 
register of standard contract terms that have been considered unfair by injunction court orders enhances consumer 
protection if it is managed in a transparent manner and kept up to date, and provided that traders that have used 
terms that are materially identical to those in the register are provided with an effective judicial remedy against the 
decision declaring the terms to be equivalent. 

Article 47 also came into play in a judgment concerning EU antitrust penalties in the Air Canada case,368 where the 
General Court, referring to relevant ECtHR jurisprudence,369 clarified that EU antitrust penalties, depending on the 
nature  of  the  infringements  in  question  and  the  nature  and  degree  of  severity  of  the  ensuing  penalties,  may  be 
regarded  as  pertaining  to  criminal  matters  for  the  purpose  of  Article  47.  Accordingly,  the  person  concerned  must 
have  an  opportunity  to  challenge  any  decision  made  against  him  before  a  tribunal  that  offers  the  guarantees 
provided  for  in  that  provision,  which  in  turns  requires  that  the  operative  part  of  a  Commission  decision  finding 
infringements of the competition rules must be particularly clear and precise and that the undertakings held liable 
and penalised must be in a position to understand and to contest that imputation of liability and the imposition of 
those penalties. 

361   CJEU judgment of 7 June 2016 in Case C-63/15, Mehrdad Ghezelbash v Staatssecretaris van Veiligheid en Justitie. 
362   CJEU judgment of 7 June 2016 in Case C-155/15, George Karim v Migrationsverket. 
363   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 (OJ 2013 L 180, p. 31). 

364   CJEU judgment of 10 December 2013 in Case C‑394/12, Abdullahi. 
365   CJEU order of 28 April 2016 in Case C-384/14, Alta Realitat SL v Erlock Film ApS and Ulrich Thomsen. 
366   Regulation (EC) No 1393/2007 of the European Parliament and of the Council of 13 November 2007 on the service in the 
Member States of judicial and extrajudicial documents in civil or commercial matters (service of documents), and repealing 
Council Regulation (EC) No 1348/2000 (OJ 2007 L 324, p. 79). 

367   See section above on Article 38. 
368   CJEU judgment of 16 December 2015 in Case T-9/11, Air Canada v European Commission. 
369  

In particular, ECtHR judgment of 27 September 2011 in A. Menarini Diagnostics S.R.L. v. Italy, application no 43509/08. 

109 

 
                                                            
A number of judgments were delivered as regards the interpretation of the right to an effective remedy and to a fair 
trial in relation to EU restrictive measures adopted within the EU’s common foreign and security policy:  

 

 

 

in two cases concerning restrictive measures against Iran, the Court of Justice confirmed a judgment of the 
General Court finding that fundamental rights as enshrined in the Charter, including Article 47, can also be 
invoked by legal persons who are emanations of states;370  

in another case concerning the grounds for the listing of natural persons included in the UN Al Qaida list, the 
General  Court  confirmed  that  restrictive  measures  are  preventive  and  not  of  a  criminal  character,  and 
therefore  the  standard  of  proof  required  is  not  ‘beyond  reasonable  doubt’  but  in  terms  of  ‘reasonable 
grounds for suspicion’;371  

in a case concerning restrictive measures applied in relation to Ukraine, the General Court underlined that 
the imposition of restrictive measures on a person does not imply any view as to his culpability with respect 
to the acts of which he is accused in Ukraine.372 

The right to have one’s case adjudicated within a reasonable time in the context of proceedings before the Court of 
Justice was dealt with in two judgments: 

 

 

in  Galp  Energia,373  the  CJEU  found  that  a  judicial  procedure  before  the  General  Court  which  lasted  69 
months, including a period of four years and one month without any procedural acts, could not be justified 
by the nature or complexity of the case or the context thereof; and 

in Gascogne Sack Deutschland and Gascogne v European Union,374 the EU was ordered to pay damages to 
two companies as a result of the excessive length of the proceedings before the General Court. 

A number of judgments relevant to the application of Article 47 were also rendered by the CJEU in the field of  EU 
environmental law. 

As regards access to justice, the General Court held in PAN Europe and others375 that the applicants could not rely on 
Articles 37 and 47 of the Charter in order to challenge the interpretation of the criteria laid down in Article 263(4) 
TFEU on submitting an action for annulment, in particular the criterion of direct concern. Although the conditions of 
admissibility  ought  to  be  interpreted  in  the  light  of  the  fundamental  right  to  effective  judicial  protection,  such  an 
interpretation  could  have  the  effect  of  setting  aside  the  conditions  expressly  laid  down  in  the  Treaty.  The  Court 
therefore dismissed the action as inadmissible. 

Another important case, Lesoochranárske zoskupenie VLK376, concerned environmental NGOs’ access to justice and 
public  participation  in  the  context  of  the  application  of  the  Aarhus  Convention  and  related  EU  legislation,  in 
particular the Habitats Directive. The case concerned an environmental NGO’s request to be admitted as a party to 
the administrative procedure for the approval of a project on a Natura 2000 site. As the request was rejected, the 
NGO  was  prevented  from  asking  the  competent  court  for  a  review  of  the  administrative  decision  to  approve  the 
project, since, under Slovak law, such an organisation should have taken legal action to claim the status of party to 
the administrative authorisation procedure in order to be able to rely, in legal proceedings, on rights derived from 
EU law in the environmental field. The Court held that, inasmuch as Article 47 of the Charter, read in conjunction 

370   CJEU judgment of 18 February 2016 in Case C-176/13 P, Council of the European Union v Bank Mellat and CJEU judgment of 

21 April 2016 in Case C-200/13 P, Council of the European Union v Bank Saderat Iran. 

371   CJEU judgment of 13 December 2016 in Case T 248/13, Mohammed Al-Ghabra v European Commission. 
372   General Court judgment of 15 September 2016 in Case T-340/14, Andriy Klyuyev v Council. 
373   CJEU judgment of 21 January 2016 in Case C-603/13 P Galp Energía España SA and Others v European Commission. 
374   CJEU judgment of 10 January 2017 in Case T-577/14 Gascogne Sack Deutschland and Gascogne v European Union. 
375   CJEU judgment of 28 September 2016 in Case T-600/15 Pan Europe and others v European Commission. 
376   CJEU, judgment (Grand Chamber) of 8 November 2016 in Case C-253/15, Lesoochranárske zoskupenie VLK; see also above 

Article 37. 

110 

 
                                                            
with  Article  9  of  the  Aarhus  Convention,  enshrines  the  right  to  effective  judicial  protection  of  the  rights  which  an 
environmental organisation derives from EU law in line with the Convention, it overrides national rules such as those 
in question. The action against the decision refusing the NGO the status of party to the administrative procedure for 
authorisation of the project must be examined during the  course of that procedure: if not, the procedure may be 
definitively concluded before a definitive judicial decision on possession of the status of party is adopted, and the 
action would be automatically dismissed as soon as the project is authorised, thereby requiring the NGO to bring an 
action of another type in order to obtain that status and exercise their right to an effective remedy. 

Lastly,  the  Aarhus  Convention  Compliance  Committee  (ACCC)  opened  two  cases  concerning  the  EU’s  compliance 
with the Convention as regards: 

  access by members of the public to review procedures;377 and  

 

the transposition of the provisions on access to justice.378  

In  both  cases,  the  Commission  referred,  in  its  observations  to  the  ACCC  on  behalf  of  the  EU,  to  Article 47  of  the 
Charter, recalling that the EU and its Member States are under the obligation to provide effective judicial protection 
of the rights conferred by EU law not only under the TEU, but also in accordance with Article 47 of the Charter. 

Application by Member States 

In the field of employment policies, the deadline for transposition of the Directive on the enforcement of workers’ 
rights379 expired in 2016. The Commission initiated infringement procedures against several Member States for not 
having  communicated  their  measures  to  transpose  the  Directive,  which  is  aimed  at  achieving  real  and  effective 
judicial protection of workers’ rights within the meaning of Article 47 of the Charter. 

The Commission continued its work to ensure the full and correct application of the Directive on alternative dispute 
resolution for consumer disputes. It issued reasoned opinions against three Member States for non-communication 
of implementing measures. Of the 16 infringement procedures for non-communication launched in 2015, a total of 
13 were closed in 2016. 

Finally, the CJEU ruled380 on the infringement opened by the Commission against Italy on its alleged failure to fulfil its 
obligations  under  the  Directive  on  compensation  to  crime  victims,381  confirming  that  Italy  failed  to  adopt  all  the 
measures necessary to guarantee the existence, in cross-border situations, of a compensation scheme for victims of 
all intentional violent crimes committed on its territory, in accordance with the principle of non-discrimination. 

Decision of the Austrian Constitutional Court 

In a case concerning a Somali citizen who applied for international protection, the Federal Office for Immigration and 
Asylum denied the appellant asylum. Thereupon, the appellant submitted a complaint to the Federal Administrative 
Court,  which  rejected  it  without  conducting  a  public  hearing.  According  to  the  Constitutional  Court,  the  Federal 
Administrative  Court  violated  Article 47  (right  to  an  effective  remedy  and  a  fair  trial)  by  not  conducting  a  public 
hearing. (Austria, Constitutional Court, Case E2108/2015, 10 June 2016)  

377   https://www.unece.org/env/pp/compliance/Compliancecommittee/32TableEC.html  
378   http://www.unece.org/environmental-policy/conventions/public-participation/aarhus-
convention/tfwg/envppcc/envpppubcom/acccc2014123-european-union.html  

379   Directive 2014/54/EU of the European Parliament and of the Council of 16 April 2014 on measures facilitating the exercise 

of rights conferred on workers in the context of freedom of movement for workers (OJ L 128, 30.4.2014, p. 8-14). 

380   CJEU judgment of 11 October 2016 in Case C‑601/14, European Commission v Italy. 
381   Council Directive 2004/80/EC of 29 April 2004 relating to compensation to crime victims (OJ 2004 L 261, p. 15). 

111 

 
 
                                                            
Article 48 — Presumption of innocence and right of defence 

Article  48  of  the  Charter  provides  that  everyone  who  has  been  charged  is  to  be  presumed  innocent  until  proven 
guilty according to the law. It further stipulates that respect for such persons’ right to defence is to be guaranteed. 

Legislation 

The  EU  set  itself  an  ambitious  legislative  programme  on  procedural  rights  for  suspects  and  accused  persons  in 
criminal proceedings, which directly contributes to strengthen citizens’ fundamental rights, notably the presumption 
of innocence and the right of defence as enshrined in Article 48 of the Charter. Three new directives were adopted, 
complementing  the  measures382  set  out  in  the  2009  roadmap  to  strengthen  procedural  rights  of  suspects  and 
accused persons:  

 

 

 

the Directive on the presumption of innocence and the right to be present at the trial;383  

the Directive on procedural safeguards for children; and 
the Directive on legal aid.384  

Case-law 

A number of judgments related to the application of Article 48 of the Charter in the field of  EU competition rules. 
Most related, in particular, to the presumption of innocence (Article 48(1)), which the Court of Justice referred to as 
a general principle of EU law applying to competition infringement procedures that may result in the imposition of 
fines  or  periodic  penalty  payments,  considering  the  nature  of  the  infringements  in  question  and  the  nature  and 
degree of severity of the penalties that may ensue.385 In Compañía Española de Petróleos SA,386 the Court of Justice, 
referring to previous case-law,387 ruled that the infringement by the Commission of the principle of observance of a 
reasonable  period  for  the  administrative  procedure  may  justify  the  annulment  of  a  decision  taken  following  an 
administrative procedure based on Article 101 or 102 TFEU, inasmuch as it also constitutes an infringement of the 
rights  of  defence  of  the  undertaking  concerned;  such  an  infringement  may  not,  on  the  other  hand,  lead  to  a 
reduction of the amount of the fine imposed. 

In  Mehdi  Ben  Tijani  Ben  Haj  Hamda  Ben  Haj  Hassen  Ben  Ali  v  Council  of  the  European  Union,388  concerning  in 
particular measures applied in relation to Tunisia, the General Court clarified the scope of application of Article 48 of 
the Charter in the field of EU restrictive measures adopted under the EU’s common foreign and security policy. It 

382   Directive 2010/64/EU on the right to interpretation and translation in criminal proceedings (OJ L 280, 26.10.2010, p. 1-7); 

Directive 2012/13/EU on the right to information (OJ L 142, 1.6.2012, p.1-10);  
Directive  2013/48/EU  on  the  right  of  access  to  a  lawyer  in  criminal  proceedings  and  in  European  arrest  warrant 
proceedings (OJ L 294, 6.11.2013, p.1-12). 

383   Directive (EU) 2016/343 of the European Parliament and of the Council of 9 March 2016 on the strengthening of certain 
aspects  of  the  presumption  of  innocence  and  of  the  right  to  be  present  at  the  trial  in  criminal  proceedings  (OJ  L  65, 
11.3.2016, p. 1-11); to be transposed by 1 April 2018. 

385  

384   Directive (EU) 2016/1919 of the European Parliament and of the Council of 26 October 2016 on legal aid for suspects and 
accused  persons  in  criminal  proceedings  and  for  requested  persons  in  European  arrest  warrant  proceedings  (OJ  L  297, 
4.11.2016, p. 1-8); to be transposed by 25 May 2019. 
In particular, CJEU judgment of 8 September 2016 in Case T-472/13, Lundbeck, CJEU judgment of 28 June 2016 in Case T-
216/13, Telefónica and CJEU judgment of 21 January 2016 in Case C-74/14 Eturas. 
386   CJEU judgment of 9 June 2016 in Case C-608/13 P, Compañía Española de Petróleos SA. 
387  

In  particular,  CJEU  judgment  of  21  September  2006  in  Case  C‑105/04  P,  Nederlandse  Vereniging  voor  de  Groothandel 
Federatieve op Elektrotechnisch Gebied v Commission. 

388   CJEU judgment of 14 April 2016 in Case T-200/14, Mehdi Ben Tijani Ben Haj Hamda Ben Haj Hassen Ben Ali v Council of the 

European Union. 

112 

 
 
                                                            
 
 
 
held  that  the  freezing  of  funds  or  economic  resources  does  not  fall  within  the  remit  of  a  criminal  charge  for  the 
purpose of the right to an effective remedy and to a fair trial, and cannot therefore be examined in terms of possible 
breach of Article 48, as well as Articles 49 and 50, of the Charter. 

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. 

Decision of Romanian Court 

A Romanian court set aside a national provision because its application was deemed in line with Article 49, para. 3, 
of  the  Charter  (“the  severity  of  the  penalties  must  not  be  disproportionate  to  the  criminal  offence”).  The  case 
concerned a person who was charged with a total of 138 crimes for running an online scamming activity consisting of 
promising  fake  jobs  and  asking  for  money  from  people  seeking  jobs.  According  to  the  relevant  provisions  of  the 
Criminal  Code,  the  courts  have  to  establish  a  sentence  for  each  crime  and  then  apply  the  harshest  sentence,  to 
which they need to add one third of the sum of all the other sentences, which for this case would mean applying in 
total a prison sentence of 26 years. The Court invoked Article 49 (principles of legality and proportionality of criminal 
offences  and  penalties)  and  ruled  that  the  Charter  overruled  contrasting  national  law.  As  a  result,  it  reduced  the 
sentence to 10 years in prison. (Romania, Tribunalul Arad, decision of 25 January 2016) 

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 can 
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. 

Decision of Czech Constitutional Court 

In the Czech Republic the Charter was instrumental in a case concerning a German national who was arrested by the 
police  and  prosecuted  for  being  a  member  of  a  criminal  group  that  had  been  trafficking  drugs  from  the  Czech 
Republic  to  Germany.  She  had  already  been  prosecuted,    sentenced  and  punished  in  Germany  for  some  of  those 
acts.  The  Constitutional  Court  found  her  constitutional  complaint  justified  and  identified  a  breach  of  the  legal 
principle ne bis in idem. The Court stressed the extended transnational protection of the ne bis in idem principle as 
laid  down  in  the  Charter,  compared  with  the  more  limited  scope  of  the  corresponding  constitutional  provision. 
Consequently, the decisions of the authorities involved in the criminal proceedings were annulled. (Czech Republic, 
Constitutional Court, Case II. ÚS 143/16, 14 April 2016) 

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Other 
19% 

Letters 

Justice 
26% 

Citizens' rights 
18% 

Solidarity 
3% 

Equality 
23% 

Freedoms 
11% 

Dignity 
0% 

Questions 

Solidarity 
11% 

Citizens' 
rights 
8% 

Equality 
27% 

Other 
9% 

Justice 
6% 

Dignity 
5% 

Freedoms 
34% 

Right to an effective 
remedy and fair trial: 
14% 

 - Functioning of 
National judicial 
systems 8% 

 - EU Arrest Warrant  
1% 

 - Victims' rights 3% 

Right to an effective 
remedy and fair trial: 
0.4% 

 - Functioning of 
National judicial 
systems: 4.1% 

 - Access to justice 
0,4% 

 - EU Arrest Warrant 
0,4% 

 -Victims' rights 1.5% 

114 

 
 
 
Petitions 

Solidarity 
7% 

Citizens' rights 
16% 

Other 
5% 

Equality 
42% 

Justice 
13% 

Dignity 
2% 

Freedoms 
15% 

Right to an effective 
remedy and fair trial 
7% 

 - Functioning of 
National judicial 
systems 5% 

 - Victims' rights 1% 

Title VII 

General provisions governing the interpretation and application of the 
Charter 

In its 2016 case-law, the CJEU further clarified the scope of application of the Charter: 

 

 

 

in Ledra Advertising and Mallis and Malli, it underlined that the Charter applies to the EU institutions, even 
when they are acting outside the EU legal framework; 

in Council v Front Polisario, it elucidated the geographical scope of applicability of the Charter; and 

the  examination  of  restrictions  of  a  fundamental  right  in  Philip  Morris  shows  how  the  Court  applies  the 
safeguards of Article 52(1) of the Charter when testing such restrictions. 

Article 51 — Field of application 

The  scope  of  applicability  of  the  Charter  is  defined  in  Article  51,  which  clearly  states  that  it  applies  to  all  EU 
institutions, bodies, offices and agencies, and to the Member States where they 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. 

Case-law 

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In the joint cases Ledra Advertising and Mallis and Malli,389 the CJEU dismissed, on appeal, actions for annulment and 
compensation lodged by citizens and businesses against the value reduction of their deposits in two banks in Cyprus. 
This  had  been  agreed  under  the  2013  memorandum  of  understanding  between  the  Cypriot  authorities  and  the 
European Stability Mechanism (ESM). The Court confirmed that the Member States do not implement EU law in the 
context  of  the  ESM  Treaty,  so  the  Charter  does  not  apply  to  them  in  that  context.  At  the  same  time,  the  Charter 
applies to the EU institutions even when they act outside the EU legal framework. In the context of the adoption of a 
memorandum of understanding, the Commission must ensure that it is consistent with the fundamental rights under 
the  Charter.  The  restriction  on  the  right  to  property  (Article  17)  was  justified  in  view  of  the  objective  pursued, 
i.e. ensuring the stability of the euro-area banking system as a whole, and the imminent risk of financial loss to which 
depositors would have been exposed if the two banks had failed. The Commission could thus not be considered to 
have contributed to a breach of the Charter. 

The CJEU handed down its judgment in Council v Front Polisario390 on appeal against the General Court judgment in 
Case  T-512/12.  The  General  Court  had  held  that,  while  the  Charter  did  not  in  itself  prohibit  the  conclusion  of  an 
agreement  with  a  non-EU  country  which  may  be  applicable  on  a  disputed  territory,  the  protection  of  the 
fundamental rights of the population of such a territory is of particular importance and must be examined before the 
approval of such an agreement.391 On appeal (C-104/16 P), the CJEU held that the General Court had erred in law 
when  considering  that  the  agreements  between  the  EU  and  Morocco  were  legally  applicable  to  the  territory  of 
Western Sahara. Considering Western Sahara as falling within the scope of the EU-Morocco Association Agreement 
was contrary to the international law principle of the relative effect of treaties.392 

Article 52 — Scope and interpretation of rights and principles 

Article 52 lays down 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 how the Charter 
relates  to  the  ECHR,  the  aim  being  to  secure  the  highest  possible  level  of  protection  for  fundamental  rights 
(paragraph 3). It also clarifies that the principles set out 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). However, they can be invoked in court only in view of interpreting such acts. This means that the principles do 
not confer subjective rights on the individual. 

Case-law 

An example of how the CJEU tested restrictions of fundamental rights against the conditions in Article 52(1) of the 
Charter is the case of  Philip Morris, which concerned a preliminary ruling on the interpretation and validity of the 
Tobacco Products Directive. The Directive was challenged on the ground that it infringed several Articles of the TFEU, 
but  also  Article  11  of  the  Charter.  The  Court  found  that  the  limitations  on  the  right  in  Article  11  constituted 
interference  with  a  business’s  freedom  of  expression  and  information.  It  then  assessed  the  legitimacy  of  this 
interference in the light of Article 52(1) of the Charter. It concluded that:  

389   CJEU  judgment  of  20  September  2016  in  Joined  Cases  C-8-10/15P  and  C-105-109/15P,  Ledra  Advertising  and  Mallis  and 

Malli. 

390   CJEU judgment of 21 December 2016 in Case C-104/16 P, Council of the European Union v Front populaire pour la libération 

de la saguia-el-hamra et du rio de oro (Front Polisario). 

391   CJEU judgment of 10 December 2015 in Case T-512/12, Front populaire pour la libération de la saguia-el-hamra et du rio de 

oro (Front Polisario) v Council of the European Union, para. 227. 

392   CJEU judgment of 21 December 2016 in Case C-104/16 P, Council of the European Union v Front populaire pour la libération 

de la saguia-el-hamra et du rio de oro (Front Polisario), paras. 107 and 125. 

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 

 

 

the  interference  had  to  be  regarded  as  being  provided  for  by  law,  given  that  it  resulted  from  a  provision 
adopted by the EU legislature;  

the Directive did not affect the essence of a business’s freedom of expression and information inasmuch as 
its  relevant  provision  merely  controlled,  in  a  very  clearly  defined  area,  the  labelling  of  products  by 
prohibiting only the inclusion of certain elements and features; and 

the interference met an objective of general interest recognised by the EU, i.e. the protection of health.  

In assessing the proportionality of the interference, the Court referred to the second sentence of Article 35 of the 
Charter  and  Articles  9,  114(3)  and  168(1)  TFEU,  which  require  a  high  level  of  human  health  protection.  The 
protection  of  human  health—  in  an  area  characterised  by  the  proven  harmfulness  of  tobacco  consumption— 
outweighed the interests put forward by the claimants and the EU legislature had not failed to strike a fair balance 
between the requirements of protecting the freedom of expression and information and those of protecting human 
health. 

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  rights  protection,  allowing  for  wider  protection  under  instruments  other  than  the  Charter  where 
they are applicable. 

Article 54 — Prohibition of abuse of rights 

Article  54  provides  a  safeguard  against  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 the extent envisaged in the Charter. 

117