COMMUNICATION FROM THE COMMISSION TO THE EUROPEAN PARLIAMENT, THE COUNCIL, THE EUROPEAN ECONOMIC AND SOCIAL COMMITTEE AND THE COMMITTEE OF THE REGIONS 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  COM(2017) 239 final   COMMUNICATION FROM THE COMMISSION TO THE EUROPEAN PARLIAMENT, THE COUNCIL, THE EUROPEAN ECONOMIC AND SOCIAL COMMITTEE AND THE COMMITTEE OF THE REGIONS 2016 Report on the Application of the EU Charter of Fundamental Rights {SWD(2017) 162 final}  
 
 
1. Introduction 

Fundamental  rights  and  the  values  on  which  the  European  Union  is  founded  were  put  to  the  test  in 

2016. Developments in the Member States showed that respect for the values and rights enshrined in 

the EU Charter for Fundamental Rights should not be taken for granted.  

The  EU  faced  multiple  challenges:  the  consequences  of  an  unprecedented  arrival  of  refugees  at  its 

external borders, economic imbalances and a series of terrorist attacks. People hit by multiple crises 

are  not  confident  that  their  children  will  be  better  off  than  themselves.  They  question  whether 

institutions are still able to protect them from the challenges and threats of migration, financial turmoil 

and terrorism. In this context, nationalism, populism and intolerance find a fertile ground to prosper 

and to advocate exclusion and isolationism as the only way to overcome the current challenges.  

In  a  context  of  rising  intolerance,  it  is  also  important  that  the  EU  strongly  reaffirms  and  promotes 

equal rights for all. The third Annual Colloquium on Fundamental Rights in 2017 will be devoted to 

the  promotion  of  women’s  rights  and  gender  equality.  This  will  be  an  opportunity  to  address  the 

economic and political empowerment of women, women’s rights in public and private spheres of life 

and the fight against violence against women in all its forms, the latter being also the topic of focused 

actions throughout the year.  

The  overall  landscape  impacts  on  fundamental  rights  in  the  EU.  The  EU  must  make  a  determined 

effort to defend its common values of democracy, fundamental rights and the rule of law against the 

forces  that  seek  to  polarise  our  societies  and  jeopardise  our  model  of  openness  and  solidarity. 

European  and  national  institutions  must  regain  people's  trust  by  showing  that  they  are  able  to 

guarantee freedom, security and prosperity. Success in protecting and promoting people's fundamental 

rights and the EU's common values will be central in this endeavour and the EU Institutions should 

lead  by  example.  The  Charter  is  an  invaluable  tool  in  this  respect  and  should  be  used  to  its  full 

potential.  

2. Application of the Charter of the EU 

2.1 Promoting and protecting fundamental rights 
Delivering fundamental rights for all in the European Union 

In 2016, the EU took several initiatives to give substance to Charter rights for the benefit of people in 

the EU.  A number of those aimed at ensuring fairness and social justice. The Commission engaged, 

for  instance,  in  a  public  consultation  for  the  development  of  a  European  'pillar  of  social  rights'1. 

1  The  results  of  the  consultation,  which  took  place  between  March  and  December  2016  are  currently  being 
reviewed  and  will  feed  into  the  Commission  proposal  on  the  European  Pillar  of  Social  Rights.  Further 

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Drawing on the social rights under the Charter, the pillar will support well-functioning and fair labour 

markets  and  welfare  systems.  It  will  address  issues  of  key  importance  for  individuals  such  as  equal 

opportunities  and  access  to  the  labour market,  fair  working  conditions  and  adequate  and  sustainable 

social protection.  

Also, a European platform was set up to enhance cooperation in tackling undeclared work2 and thus 

help ensure the respect of the right to fair and just working conditions (Article 31 of the Charter).  

Steps were taken in 2016 to promote the right to family life (Article 7 of the Charter):  

  The Commission proposed new rules under the Brussels IIa Regulation which, once adopted, 

will improve the protection of children in cross-border parental responsibility disputes related 

to custody3;  

 

two  new  regulations  were  adopted  to  help  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 one of them dying4.  

The  right  to  a  fair  trial  (Articles  47  and  48  of  the  Charter)  was  given  concrete  effect  through  the 
adoption of a set of directives: on the presumption of innocence and the right to be present at the trial5; 
on legal aid6 and procedural safeguards for children7. The latter, and the new Brussels IIa rules will 

also have a positive impact on the rights of the child (Article 24 of the Charter). 

The  Commission  launched  an  online  dispute  resolution  platform8,  which  helps  consumers  resolve 

their disputes with EU traders about online purchases out-of-court, cheaply, simply, quickly and in any 

EU official language, thereby strengthening consumer protection (Article 38 of the Charter). 

information  available  at:  https://ec.europa.eu/commission/priorities/deeper-and-fairer-economic-and-monetary-
union/towards-european-pillar-social-rights_en 
2  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. 
3 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, 30.06.2016. 
4  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. 
5 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 
6Directive (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. 
7Directive  (EU)  2016/800  of  the  European  Parliament  and  of  the  Council  of  11  May  2016  on  procedural 
safeguards for children who are suspects or accused persons in criminal proceedings, OJ L 132, 21.5.2016, p. 1–
20. 
8 Available at: https://webgate.ec.europa.eu/odr/main/index.cfm?event=main.home.chooseLanguage  

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Protecting peoples' personal data in the EU and elsewhere 

A further key area of focus in 2016 was the protection of personal data (Article 8 of the Charter). 

The adoption of the General Data Protection Regulation (GDPR)9 and the Data Protection Directive 
for Police and Criminal Justice Authorities10 was a big step forward in this respect.  

The GDPR strengthens and modernises the existing rules: people will have easier access to their own 

personal data, a right to data portability, a clarified "right to be forgotten" and certain rights applicable 

in case of personal data breach. The GDPR also obliges companies and organisations to swiftly notify 

the  national  supervisory  authority  about  serious  data  breaches,  so  that  users  can  take  appropriate 

measures. The GDPR, furthermore, as a single EU legal instrument establishes one single set of rules 

so that individuals will have the same protection, no matter where they are in the EU.  

Directive  (EU)  2016/680  aims  to  establish  efficient  information  exchange  between  national 

enforcement authorities and ensure that the data of victims, witnesses, and suspects of crimes are duly 

protected in the context of a criminal investigation or a law enforcement action. All law enforcement 

processing in the EU will have to comply with the principles of necessity, proportionality and legality, 

and offer appropriate safeguards for the individuals.  

Along this reinforced protection within the EU, the Commission also ensured adequate data protection 

outside the EU. In July 2016, it adopted the EU-US Privacy Shield adequacy decision, which ensures 

the free flow of personal data for commercial purposes between the EU and U.S. companies certified 

under the Privacy Shield, while securing the fundamental right to the protection of the data. 

Another milestone was the conclusion, in December, of the Umbrella Agreement11 between the EU 

and  the  US,  which  provides  for  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. 

Protecting the rights of the most vulnerable 

In  troubled  times,  it  is  often  the  most  vulnerable  that  are  hit  the  hardest.  Addressing  the  migration 

situation, ensuring in particular the protection of the right to asylum (Article 18 of the Charter) and 

9 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. 
10 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. 
11Agreement  between  the  United  States  of  America  and  the  European  Union  on  the  protection  of  personal 
information relating to the prevention, investigation, detection, and prosecution of criminal offences; 
http://ec.europa.eu/justice/data-protection/files/dp-umbrella-agreement_en.pdf. 

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the respect of the principle of non-refoulement (Article 19 of the Charter) was another major area of 

focus  for  the  EU  in  2016.  Following  its  Communication  on  a  reform  of  the  Common  European 

Asylum System (CEAS)12 in April 2016, the Commission proposed amendments to the existing rules 

aiming at:  

(i) establishing a fairer and  more sustainable system for allocating asylum applicants among 

Member  States  (proposal  for  recast  Dublin  Regulation)13  and  ensuring  its  effective 

implementation (proposal for recast Eurodac Regulation)14;  

(ii)  greater    harmonisation  of  asylum  procedures  and  international  protection  standards  to 

ensure  high  levels  of  protection  and  reception  and  adequate  safeguards  for  asylum  seekers 

throughout  the  EU  and  to  reduce  irregular  secondary  movements  (proposal  for  an  Asylum 

Procedures  Regulation15,  a  Qualification  Regulation16  and  a  recast  Reception  Conditions 

Directive17);  

(iii) facilitating a common approach to safe and legal arrival in the EU for people in need of 

international  protection,  in  solidarity  with  countries  hosting  a  large  number  of  displaced 

persons (proposal for a regulation establishing the Union Resettlement Framework18);  

(iv) converting the European Asylum Support Office into a fully-fledged EU agency with an 

enhanced mandate to address any structural weaknesses of the EU's asylum system (proposal 

for a regulation on the European Union Agency for Asylum19). 

The promotion and protection of the rights of the child (Article 24 of the Charter) were at the heart of 

this legislative action. Particular attention was given to unaccompanied children in key areas such as 

assessing the best interests of the child, the child’s right to be heard in asylum procedures and ensuring 

adequate  reception  conditions  and  effective  guardianship.20  The  Commission's  comprehensive 

approach to protect all children in migration was the focus of the 10th Annual European Forum on the 

rights  of  the  child  in  November21.  In  December  2016,  the  Commission  proposed  that  the  Schengen 

12 Communication from the Commission to the European Parliament and the Council towards a reform of the 
Common European Asylum System and enhancing legal avenues to Europe, COM(2016) 197 final, 6.4.2016. 
13 COM(2016) 270 
14 COM(2016) 272 
15 COM(2016) 467 
16 COM(2016) 466 
17 COM(2016) 465 
18 COM(2016) 468 
19 COM(2016) 271 
20 An overview of the amended and proposed child protection provisions in the legislative proposals cited above 
can 
http://ec.europa.eu/justice/fundamental-
at: 
rights/files/rights_child/ceas_provision_on_children_table_updated.pdf . 
21    http://ec.europa.eu/newsroom/just/item-detail.cfm?item_id=34456.  This  work  was  followed  up  with  the 
adoption of the Communication on "The protection of children in migration" on 12 April 2017 (COM(2017) 211 
final) 

found 

be 

5 

 
 
                                                            
Information System be reinforced22, which will improve the ability of law enforcement officials and 

border guards to find missing children, including in the context of migration. 

Promoting open and tolerant societies, free from racism 

The current climate has led to an increase of racism and intolerance against ethnic, religious and 

other minorities across Europe.23  This affects many fundamental rights under the Charter, including 

the right to non-discrimination (Article 21), the right to dignity (Article 1), the right to integrity of the 

person (Article 3) and the right to life (Article 2)  

The Commission provided a platform for Member States, civil society, EU agencies and international 

organisations24 to work on improved responses to hate crime and hate speech. The focus was put on  

 

 

recording and collecting data on hate-crime incidents in all Member States;  

 strengthening support to victims; and  

  countering illegal hate speech online.  

Along this policy support, the Commission also continued bilateral dialogues with Member States on 
major gaps in their transposition of EU law25. A number amended their criminal laws as a result. 

To  contain  the  spread  of  hate  speech  online  and  empower  the  new  media  actors,  the  Commission 

reached  an  agreement  with  Facebook,  Twitter,  YouTube  and  Microsoft  on  31  May  on  a  code  of 
conduct on countering illegal hate speech online26. The companies undertook, inter alia, to: 

 

review  in  less  than  24  hours  the  majority  of  valid  notifications  received  from  citizens  and 

civil society for removal of illegal content publicly inciting violence and hatred; and  

  assess them also in the light of national criminal laws transposing EU law.  

The Commission is closely monitoring progress in cooperation with civil society, Member States and 

IT companies and presented initial results in December.27  

no 

did 

feel 

safe 

they 

longer 

emigrating 

considered 

respondents 

22 http://europa.eu/rapid/press-release_IP-16-4402_en.htm . 
23 A 2013 survey carried out by the FRA revealed that in countries like Hungary, France and Belgium up to 48 % 
of 
Jews 
because 
http://fra.europa.eu/en/publication/2013/discrimination-and-hate-crime-against-jews-eu-member-states-
experiences-and. Mosques began to receive police protection in several Member States while a steep increase in 
anti-Muslim incidents was reported by civil society organisations in 2014 and 2015 in countries such as France, 
UK, Sweden and Belgium, including violent attacks on Muslim women wearing headscarves. Assaults and hate 
speech incidents targeting asylum seekers and migrants are on the rise, as are attacks and arson attempts against 
refugee shelters. Following the UK referendum in June 2016, a wave of hatred targeting individuals and groups 
on  grounds  of  their  national  or  ethnic  origin  was  observed,  while  civil  society  organisations  report  increasing 
hostility against Roma and people of African descent in a number of Member States. In 2017, FRA will publish 
its EU MIDIS2 Survey which will allow comparing trends in the experiences of various minority groups. 
24  EU  High  Level  Group  on  Combating  Racism,  Xenophobia  and  other  forms  of  intolerance;  see: 
http://ec.europa.eu/newsroom/just/item-detail.cfm?item_id=51025.   
25  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. 
26Available at: http://ec.europa.eu/justice/fundamental-rights/files/hate_speech_code_of_conduct_en.pdf . 

as 

6 

 
 
                                                            
Promoting media literacy, critical thinking and balanced narratives at grassroots level are further key 

actions the EU is supporting to counter intolerance off and online, alongside education (see section 4). 

2.2. Ensuring the respect of fundamental rights 

Union institutions, bodies, offices and agencies must comply with the Charter in all their actions; any 

case  of  non-compliance  can  be  brought  before  the  Court  of  Justice  of  the  European  Union  (CJEU). 

The Commission puts a lot of effort into mainstreaming fundamental rights, i.e. ensuring that they are 

fully respected in all its legislative and policy proposals.  

The  new  Directive  on  combating  terrorism,  on  which  the  European  Parliament  and  the  Council 

reached an agreement in December 2016,28 is a good example of this mainstreaming. It includes an 

explicit – first for its kind –  fundamental rights clause whilst several fundamental rights aspects were 

taken into account in the drafting and negotiation process, including the necessity and proportionality 

of  interferences  with  the  rights  to  freedom  of  movement,  data  protection  and freedom  of  expression 

(Articles  45,  8  and  11  of  the  Charter).  Due  account  was  also  taken  of  the  principles  of  legality  and 

proportionality of criminal offences and penalties (Article 49 of the Charter) and the rights of victims, 

including the right to an effective remedy (Article 47 of the Charter). The  ex post assessment of the 

Directive will also cover its impact on fundamental rights and freedoms. 

A proposal to update the EU Export Control Regulation for sensitive (dual-use) items was adopted 

by the Commission in 201629. The regulation provides a robust framework for controlling exports of 

cyber-surveillance technology where there is a risk that it will be misused in order to commit serious 

violations  of  human  rights  or  of  international  humanitarian  law.  Moreover,  on  the  basis  of  a 

Commission proposal,  EU rules banning exports and imports of goods that could be used for capital 

punishment  or torture in other countries were strengthened through the adoption in November of an 
amendment to the Anti-Torture Regulation30. 

of 

of 

the 

The 

first 

new 

code 

assessment 

27 
http://ec.europa.eu/information_society/newsroom/image/document/2016-50/factsheet-code-conduct-
8_40573.pdf 
28 Directive (EU) 2017/541 of 15 March 2017. 
29 Proposal for a Regulation of the European Parliament and of the Council of 28 September 2016 setting up a 
Union regime  for the control of exports, transfer, brokering, technical assistance and transit of dual-use items, 
COM(2016) 616 final. 
30 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. 

available 

conduct 

at: 

is 

7 

 
 
                                                                                                                                                                                          
Mainstreaming  extends  to  other  areas  such  as  the  use  of  EU  funding.  In  2016,  the  Commission 

adopted guidance on ensuring the respect for the Charter when Member States are implementing  the 
European Structural and Investment Funds31.  

As regards migration, in the context of the joint inquiry by the European Ombudsman concerning a 

human  rights  impact  assessment  of  the  EU-Turkey  Statement  of  18  March  2016,  the  Commission 

stated  that  it  would  continue  to  closely  monitor  the  implementation  of  the  Statement,  including  as 

regards respect for human rights, both in the EU and in Turkey.32 

The  EU's  accession  to  the  European  Convention  on  Human  Rights  remains  a  priority  for  the 

Commission, not least in view of its legal obligation under the Treaty. Accession will reinforce our 

common  values,  improve  effectiveness  of  EU  law  and  enhance  the  coherence  of  fundamental  rights 

protection  in  the  EU.  Yet,  the  CJEU's  December  2014  opinion  (declaring  the  2013  draft  Accession 

Agreement  incompatible  with  the  Treaties)  raised  a  number  of  significant  and  complex  questions 

which  require  re-negotiating  the  draft  on  a  series  of  points.  The  Commission  in,  its  capacity  of  EU 

negotiator,  is  exploring  solutions  to  address  the  various  issues  raised  by  the  Court  in  the  relevant 

Council working party. 

2.3. Raising awareness of the Charter 

In  order  to  enjoy  their  fundamental  rights  to  the  full,  citizens  need  to  know  what  their  fundamental 

rights  are.  They  also  need  to  know  who  to  turn  to  when  their  rights  are  being  violated.  In  October 

2016, the Commission launched the fundamental rights wizard33, an online tool that helps people in 

this respect.  

At  a  conference  organised  by  the  Dutch  Presidency  in  February  2016  on  "The  national  policy 

application of the EU Charter of Fundamental Rights", a number of best practices and tools were put 

forward  to  help  national  authorities  assess  when  and  how  to  apply  the  Charter  when  developing 

national policies and legislation. 

Furthermore,  the  Commission  uses  EU  funding  to  support  projects  and  networks  analysing  national 

case-law referring to the Charter and providing legal professionals with training on its application. 

31 OJ C 269 of 23.7.2016, p. 1 
32 In a judgment (28 February 2017) in Cases T-192/16, T-193/16 and T-257/16, the General Court held that ‘the 
EU-Turkey Statement cannot be regarded as a measure adopted by the European Council, or, moreover, by any 
other institution, body, office or agency of the European Union’ (para. 71). 
33 This tool, built on the "Clarity" tool developed by the EU Agency for Fundamental Rights, is now part of the 
e-justice portal,https://e-justice.europa.eu/content_where_to_turn_for_help-459-en.do 

8 

 
 
                                                            
As  a  follow-up  to  the  Commission's  2015  Charter  Report,  the  Council  adopted  conclusions  on  the 

Charter's application in June 34 and the European Parliament adopted a resolution on the situation of 

fundamental  rights  in  the  European  Union  in  December35.  Discussions  in  the  Council  and  the 

European  Parliament  contributed  to  further  awareness  of  fundamental  rights  development  and 
challenges in the EU. 

2.4 Court of Justice scrutiny of EU institutions 

In joint cases Ledra Advertising and  Mallis and Malli36 the  Court 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.  The  Court  stressed  that  the 

Charter applies to the EU institutions even when they act outside the EU legal framework. It pointed 

out  that  the  Commission  must  ensure  that  a  memorandum  of  understanding  is  consistent  with  the 

fundamental  rights  under  the  Charter.  The  restriction  on  the  right  to  property  (Article  17  of  the 

Charter)  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.  It  thus  concluded  that  the  Commission  could  not  be 

considered as having contributed to a breach of the Charter. 

3. Charter application in and by Member States 

3.1 Fundamental rights and rule of law developments 

The  Charter  applies  to  Member  States  only  when  they  are  implementing  EU  law.  Infringement 

procedures against Member States regarding breaches of the Charter can therefore only be triggered 

when a sufficient link to EU law is established.  

However, even when acting outside the implementation of the EU law, Member States are obliged to 

respect the values on which the Union is founded. In particular, the rule of law is a precondition for the 

protection  of  fundamental  rights.  In  2014,  the  Commission  introduced  a  Framework  aimed  at 

addressing  situations  of  emerging  systemic  threats  to  the  rule  of  law  which  cannot  be  effectively 

tackled by safeguards at national level or existing instruments (in particular infringement procedures) 

at EU level37.  

34 Available at: http://data.consilium.europa.eu/doc/document/ST-10005-2016-INIT/en/pdf 
35 European Parliament resolution of 13 December 2016 on the situation of fundamental rights in the European 
Union in 2015 (2016/2009(INI)). 
36 Cases C-8-10/15P and C-105-109/15P. 
37 Communication "A new EU Framework to Strengthen the Rule of Law", COM(2014) 158 final, 19.3.2014.  

9 

 
 
                                                            
Events in Poland concerning in particular the Constitutional Tribunal led the Commission to issue  a 

Recommendation in July 201638 and a complementary Recommendation in December 201639 under 

this  Framework.  The  fact  that  the  legitimacy,  integrity  and  proper  functioning  of  the  Constitutional 

Tribunal are adversely affected prevents an effective constitutional review. Addressing this situation is 

a matter of common interest. The very functioning of the Union is endangered if the rule of law is no 

longer respected in one of its Member States. 

In  October  2016,  the  European  Parliament  adopted  a  Resolution  on  the  establishment  of  an  EU 

mechanism on democracy, the rule of law and fundamental rights40. The Commission welcomed the 

overall objective of the resolution, which is to ensure that the EU common values are respected and 

enforced41. The Commission considers however that the best possible use should be made of existing 

instruments, while avoiding duplication. A range of existing tools and actors already provide a set of 

complementary  and  effective  means  to  promote  and  uphold  common  values.  The  Commission  will 

continue to value and build upon these means. One of the Parliament’s underlying ideas was to make 

the  variety  of  existing  data  and  reports  on  the  situation  of  fundamental  rights  in  the  Member  States 

more accessible and visible, also at national level. The Commission welcomed this, as numerous other 

actors -including the Council of Europe and its Venice Commission, the EU Agency for Fundamental 

Rights (FRA) and NGOs - collect information on the rule of law, democracy and fundamental rights in 

the Member States. 

3.2 Court of Justice guidance to Member States 

The  CJEU  continued  (under  the  system  of  referrals  for  preliminary  rulings)  to  give  guidance  to 

national judges on the Charter's applicability and interpretation. 

In  joint  cases  Tele2  Sverige  AB42  and  Tom  Watson  e.a43,  the  Court  examined  laws  in  two  Member 

States that required general and indiscriminate retention of traffic and location data of all subscribers 

and  registered  users  relating  to  all  means  of  electronic  communication.  It  found  that  these  laws 

restricted the fundamental rights to private life and the protection of personal data (Articles 7 and 8 of 

the  Charter).  Given  their  broad  range  and  limited  safeguards,  none  of  those  restrictions  were 

considered justified, even where the objective was to fight serious crime. However, such an objective 

may justify targeted retention of traffic and location data, provided that it is limited to what is strictly 

38  Commission  Recommendation  (EU)  2016/1374  of  27  July  2016  regarding  the  rule  of  law  in  Poland; 
C/2016/570; OJ L 217, 12.8.2016, p. 53–68. 
39 Commission Recommendation (EU) 2017/146 of 21 December 2016 regarding the rule of law in Poland 
complementary to Commission Recommendation (EU) 2016/1374; C/2016/ 8950; OJ L 22, 27.1.2017, p. 65–81. 
40 European Parliament Resolution of 25 October 2016 on the establishment of an EU mechanism on democracy, 
the rule of law and fundamental rights. 
41 European Parliament plenary debate of 25 October 2016. 
42 C-203/15. 
43 C-698/15. 

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necessary in respect to the categories of data to be retained, the means of communication affected, the 

persons concerned and the retention period.  

In GS Media BV44 the Court ruled on the posting of hyperlinks in the context of the fundamental 

right to freedom of expression (Article 11 of the Charter). A media company had posted on its website 

a hyperlink directing viewers to websites where photos of a celebrity taken by Playboy magazine were 

made  available.  As  the  copyright  holder  had  not  authorised  the  publication  of  the  photos  on  these 

websites,  the  magazine's  editor  claimed  that  the  posting  infringed  copyrights.  The  media  company 

continued  to  make  available  the  hyperlinks  or  similar  ones,  where  some  of  the  former  ones  became 

unavailable.  In  the  light  of  the  applicable  EU  copyright  Directive45  the  Court  ruled  that  any 

communication to the public of any work had to be authorised by the copyright holder. It held that the 

distribution,  without  the  copyright  owner’s  authorisation,  of  hyperlinks  to  works  on  the  websites  in 

question did constitute "communication to the public". It conceded however 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 latter was or should have been aware of 

the  copyright  infringements,  as  in  the  case  at  hand,  its  actions  constituted  'communication  to  the 

public' without consent of the copyright holder.  

The judgment in the joint cases Aranyosi and Caldararu46 concerned the Member States' obligation 

to respect fundamental rights under the Charter, in particular the prohibition of torture and inhuman 

or degrading treatment or punishment, when executing a European Arrest Warrant (EAW). The 

Court ruled that, under Article 4 (which enshrines an absolute right), if the executing authorities have 

information  pointing  at  a  real  risk  of  inhumane  or  degrading  treatment  because  of  the  detention 

conditions in the issuing state, they must evaluate the risk with respect to the person in question when 

deciding  whether  to  execute  the  EAW.  Where  the  existence  of  risk  is  established  in  relation  to  that 

person, the execution of the EAW must be reported and may be abandoned if within a reasonable time 

it is still not possible to discount it. When assessing the risk, the authority responsible for the execution 

shall take due account of the person's fundamental right to liberty and the principle of presumption 

of innocence (Articles 6 and 48 of the Charter). 

3.3. National case law quoting the Charter 

44 C-160/15. 
45 Directive 2001/29/EC of the European Parliament and of the Council of 22 May 2001 on the harmonisation of 
certain aspects of copyright and related rights in the information society, OJ L 167, 22.6.2001, p. 10–19. 
46 C-404/15, C-659/15. 

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National judges continue to play a key role in upholding fundamental rights and the rule of law. The 

EU Agency for Fundamental Rights47 found that national courts continued referring to the Charter for 

guidance and inspiration in 2016, even in a substantial number of cases falling outside the scope of EU 

law. 

The  rights  of  the  child  (Article  24  of  the  Charter)  were  particularly  central.  A  case  before  a  UK 

tribunal48 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 parents, unless that is contrary to their interests (Article 24). This Charter 

provision was interpreted as a 'self-standing right' in the context of immigration law. 

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  manner49.  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. 

4. Focus section: 2016 Annual Colloquium on Fundamental rights 

"Media pluralism and democracy" 

The Annual Colloquium on Fundamental Rights is a unique space for dialogue which fosters mutual 

cooperation  and  political  engagement  for  the  promotion  and  protection  of  fundamental  rights  in  the 

EU. It is a chance to identify and deliver concrete policy actions on topical fundamental rights issues. 

The  second  Annual  Colloquium  (17-18  November  2016)  explored,  from  a  fundamental  rights 
perspective, the multiple links between a free and pluralistic media and democracy50. National and EU 

policy  makers,  international  and  civil  society  organisations,  editors-in-chief,  journalists,  national 

regulators,  representatives  of  different  journalists'  and  media  associations  and  of  IT  companies, 

academics,  judges  and  other  legal  practitioners  came  up  with  suggestions  for  key  actions  for  all 

47 FRA 2016 Annual Report, to be published in May 2017. 
48  Upper  Tribunal  (Immigration  and  Asylum  Chamber)  Adebayo  Abdul  v.  Secretary  of  State  for  the  Home 
Department, [2016] UKUT 106 (IAC). 
49 Skåne and Blekinge, Court of Appeal, case B 7426-15 decision of 5 December 2016. 
50 http://ec.europa.eu/newsroom/just/item-detail.cfm?item_id=31198 

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involved  which  were  reflected  in  the  Colloquium  conclusions  published  by  the  Commission  shortly 
after the event.51 

One  topic  was  the  protection  of  media  freedom  and  independence  from  political  and  financial 

pressure.  Participants  underlined  the  importance  of  the  independence  of  media  regulators  and  called 

for swift adoption of the Commission’s legislative proposal amending the Audiovisual Media Services 
Directive52. 

Another  area  for  discussion  was  empowering  journalists  and  protecting  them  from  pressure,  threats, 

physical violence and hate speech. Participants underlined the importance of combating the impunity 

for  crimes  and  expressions  of  hatred  against  journalists,  in  particular  women.  Follow-up  action 

includes EU funding for projects on media pluralism, protecting journalists and combating hate speech 

on  line.  In  November  2016,  the  Commission  launched  an  EU-wide  campaign  and  year  of  focused 
action to combat and prevent violence against women,53 including those in the media. 

Participants also looked at challenges and opportunities arising in the converged media environment. 

The role of ethical journalism and media literacy was discussed, as was the financial sustainability of 

quality press and investigative journalism. The impact that the use of algorithms or the dissemination 

of fake news can have on media pluralism and on an informed democratic debate was also covered. 

Follow  up  action  includes  funding  for  media  literacy,  supporting  the  identification  of  ethical  good 

practices  to  promote  quality  information  and  the  launch  of  a  Commission  impact  assessment  and  a 
public consultation54 on the protection of whistleblowers. 

5. Conclusion 
Recent  developments  in  the  EU  and  elsewhere  pose  serious  threats  to  fundamental  rights.  The 

Commission remains vigilant and committed to a high level of protection of fundamental rights in the 

EU. It will step up its action to ensure that all EU legislative proposals and actions are fully compatible 

with the Charter. It intends to guarantee that all bodies bound by the Charter will continue to respect it.  

The importance of the system of checks and balances in democratic societies, in particular the key role 

of  supreme  courts  and  constitutional  courts  in  upholding  the  EU's  common  values  cannot  be 

overstated;  this  role  needs  to  be  supported,  in  full  respect  of  the  independence  of  the  judiciary. 

51http://ec.europa.eu/information_society/newsroom/image/document/2016-50/2016-fundamental-colloquium-
conclusions_40602.pdf 
52 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/2016/0287 
final, 25.5.2016. 
53 http://europa.eu/rapid/press-release_MEMO-16-3946_en.htm. 
54 http://ec.europa.eu/newsroom/just/item-detail.cfm?item_id=54254 . 

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External  independent  oversight  (including  under  the  European  Convention  on  Human  Rights)  is 

essential in democratic societies. The key role of civil society organisations in renewing engagement 

for democracy, rule of law and fundamental rights should be cherished and preserved. 

14