Fundamental rights report 2017 : FRA opinions.
Date: 2017-06-13
Institutions: European Union Agency for Fundamental Rights
Subjects: European Union Agency for Fundamental Rights, activity report, operation of the Institutions

HELPING TO MAKE FUNDAMENTAL RIGHTS 
A REALITY FOR EVERYONE IN THE EUROPEAN UNION

Fundamental Rights Report 2017
FRA Opinions

Diverse efforts at both EU and national levels sought to bolster fundamental 
rights protection in 2016, while some measures threatened to undermine 
such protection. FRA’s Fundamental Rights Report 2017 reviews major 
developments in the field, identifying both achievements and remaining 
areas of concern. This publication presents FRA’s opinions on the main 
developments in the thematic areas covered, and a synopsis of the evidence 
supporting these opinions. In so doing, it provides a compact but informative 
overview of the main fundamental rights challenges confronting the EU and 
its Member States.

Contents

FOCUS

Between promise and delivery: 10 years of fundamental rights in the EU   . . . . . . . . . . . . . . . . . . . . . . 2

1    EU Charter of Fundamental Rights and its use by Member States  . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 4

2  Equality and non-discrimination  . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 6

3 

 Racism, xenophobia and related intolerance   . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 8

4  Roma integration  . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 10

5 

6 

 Asylum, visas, migration, borders and integration   . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 12

 Information society, privacy and data protection   . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 15

7  Rights of the child  . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 17

8 

9 

 Access to justice including rights of crime victims  . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 19

 Developments in the implementation of the Convention on the Rights  
of Persons with Disabilities  . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 21

1

Fundamental Rights Report 2017

FOCUS

Between promise and delivery: 
10 years of fundamental rights 
in the EU

The 10th anniversary of the European Union Agency for Fundamental 
Rights (FRA) offers an opportunity to reflect on some of the dynamics 
underpinning the major fundamental rights developments in the EU 
since 2007. Taken together, they seem to tell a story of twin impulses. 
On the institutional side, the EU has built tools to better promote and 
protect fundamental rights. Yet profound gaps in the implementation 
of fundamental rights persist on the ground and – in some areas – are 
deepening. Addressing this tension requires translating the law on the 
books into effective measures to fulfil rights in the daily lives of all 
people living in the EU. In addition to acknowledging that fundamental 
rights are a precondition for successful law- and policy-making, making 
the ‘business case’ for human rights, ‘giving rights a face’ and using 
social and economic rights more consistently will be beneficial. Without 
a firmly embedded fundamental rights culture that delivers concrete 
benefits, many people living in the EU will feel little sense of ownership 
of the Union’s values.

Recent political, social and economic developments 
have  shown  that  what  was  often  regarded  over 
the last decade as a natural development towards 
greater respect for fundamental rights can easily 
backslide.  This  regression  can  be  partly  blamed 
on the fact that where EU and national legislators 
have  celebrated  progress  at  a  formal  level,  this 
has  often  not  translated  into  improvements  in 
people’s  lives.  For  too  many,  fundamental  rights 
remain an abstract concept enshrined in law, rather 
than a series of effective and practical tools that 
can  and  do  make  a  difference  to  their  everyday 
lives. This is a disturbing truth, and one of which 
the EU Agency for Fundamental Rights is reminded 
forcefully in its interactions with the people whose 
rights are often violated as a matter of course, and 
whose perceptions and experiences figure in the 
agency’s large-scale surveys and fieldwork projects.

Looking back at the fundamental rights performance in 
the last 10 years, the decade can seem one of divergent 
narratives, coming to the following conclusions.

On  the  one  hand,  the  EU  has  translated  its  long-
standing commitment towards human rights beyond 
its borders into a set of internal policies to protect and 
promote fundamental rights within the 28 EU Member 
States. Two key milestones reflect this change:

•• the entry into force of the EU Charter of 

Fundamental Rights; and

•• the creation of the Fundamental Rights Agency.

Another key milestone would be the EU’s accession 
to the European Convention on Human Rights, as 
required by the Lisbon Treaty.

On the other hand, implementation of fundamental 
rights  on  the  ground  remains  a  reason  for  great 
is  exacerbated  by  a  political 
concern.  This 
environment in which parts of the electorate and 
their representatives increasingly appear to question 
not only certain rights but also the very concept of 
a rights-based polity.

2

Looking ahead, the EU and its Member States will 
need to find effective ways to:

•• address  mistrust  of  public  institutions  and 
perceived threats deriving, for example, from 
immigration or globalisation;

•• highlight  the  benefits  of  fundamental  rights 

for everyone in the EU.

EU  Member  States  have  not  yet  fully  embedded 
a ‘Charter culture’ in their administrative, legislative 
and judicial procedures. Neither does the EU fully use 
the potential of all Charter rights (including socio-
economic rights), nor their guiding function across 
its activities. The EU does not systematically request 
independent  socio-legal  advice  when  legislating. 
Moreover,  the  EU  has  not  yet  acceded  to  the 
European Convention on Human Rights (ECHR) and 

is therefore as such not subject to the jurisdiction 
of  the  European  Court  of  Human  Rights  (ECtHR). 
Furthermore,  a  gap  persists  between  the  EU’s 
internal fundamental rights policies and its external 
commitment to human rights.

Bringing  these  two  narratives  together  is  an 
urgent  call  for  action  to  close  the  gap  between 
the fundamental rights framework in principle and 
fundamental rights outcomes in practice. It demands 
that  all  actors  reinvigorate  their  commitment  to 
ensure, together, that fundamental rights result in 
real changes in people’s lives. Only renewed action 
in this spirit will allow us to look back in 2027 at 
a  successful  decade  during  which  the  EU  and  its 
Member States delivered on their shared values of 
“human dignity, freedom, democracy, equality, the 
rule of law and respect for human rights, including 
the rights of persons belonging to minorities”.

FRA Opinions

3

Fundamental Rights Report 2017

1  

 EU Charter of Fundamental Rights 
and its use by Member States

The Charter of Fundamental Rights of the European Union complements 
national human rights documents and the European Convention on 
Human Rights (ECHR). Its potential is not yet fully exploited, with 
references thereto in national courts, parliaments and governments 
limited in number and often superficial. However, there are examples of 
the Charter adding value and profiting from its standing as part of Union 
law, especially in court decisions. Meanwhile, EU Member States continue 
to lack policies aimed at promoting the Charter – though awareness of 
the need to train legal professionals on Charter-related issues appears to 
be growing.

According to the case law of the Court of Justice 
of  the  European  Union  (CJEU),  the  EU  Charter  of 
Fundamental Rights is binding on EU Member States 
when  acting  within  the  scope  of  EU  law.  The  EU 
legislature affects, directly or indirectly, the lives 
of  people  living  in  the  EU.  EU  law  is  relevant  in 
the  majority  of  policy  areas.  In  light  of  this,  the 
EU  Charter  of  Fundamental  Rights  should  form 
a relevant standard when judges or civil servants in 
the Member States deliver on their day-to-day tasks. 
FRA’s evidence suggests, however, that judiciaries 
and administrations make only rather limited use 
of the Charter at national level. More awareness 
could contribute to increased and more consistent 
application of the Charter at national level.

According  to  Article  51  (field  of  application)  of 
the EU Charter of Fundamental Rights, all national 
legislation  implementing  EU  law  has  to  conform 
to the Charter. As in past years, the Charter’s role 
in legislative processes at national level remained 
limited in 2016: the Charter is not a standard that is 
explicitly and regularly applied during procedures 
scrutinising the legality or assessing the impact of 
upcoming  legislation  –  whereas  national  human 
rights  instruments  are  systematically  included  in 
such procedures. Moreover, just as in past years, 
many  decisions  by  national  courts  that  used  the 
Charter  did  so  without  articulating  a  reasoned 
argument  about  why  the  Charter  applied  in  the 
specific circumstances of the case.

FRA opinion 1.1

FRA opinion 1.2

The  EU  and  its  Member  States  should 
encourage  greater  information  exchange  on 
experiences and approaches between judges 
and administrations within the Member States 
but also across national borders. In encouraging 
this  information  exchange,  Member  States 
should  make  best  use  of  existing  funding 
opportunities, such as those under the Justice 
programme.

National courts, as well as governments and/or 
parliaments, could consider a more consistent 
‘Article  51  (field  of  application)  screening’  to 
assess  at  an  early  stage  whether  a  judicial 
case or legislative file raises questions under 
the  EU  Charter  of  Fundamental  Rights.  The 
development  of  standardised  handbooks 
on  practical  steps  to  check  the  Charter’s 
applicability  –  so  far  the  case  only  in  very 
few  Member  States   –   could  provide  legal 
practitioners with a tool to assess the Charter’s 
relevance  in  a  particular  case  or  legislative 
proposal.

4

Under Article 51 of the EU Charter of Fundamental 
Rights, EU Member States are obliged to respect 
and observe the principles and rights laid down in 
the Charter, while they are also required to actively 
“promote” the application of these principles and 
rights. In light of this, more policies promoting the 
Charter  and  its  rights  at  national  level  should  be 
expected.  Whereas  such  policies  are  rare,  there 
appear to be increased efforts to provide human 
rights training to relevant professional groups.

FRA opinion 1.3

EU  Member  States  should  ensure  that 
relevant  legislative  files  and  policies  are 
checked for Charter compliance and increase 
efforts to ensure that Charter obligations are 
mainstreamed whenever states act within the 
scope of EU law. This could include dedicated 
policymaking  to  promote  awareness  of  the 
Charter rights and targeted training modules in 
the relevant curricula for national judges and 
other legal practitioners. As FRA has stressed in 
previous years, it is advisable for the Member 
States to embed training on the Charter in the 
wider human rights framework, including the 
European Convention on Human Rights (ECHR) 
and  the  case  law  of  the  European  Court  of 
Human Rights (ECtHR).

FRA Opinions

5

Fundamental Rights Report 2017

2  Equality and non-discrimination

EU Member States did not reach an agreement on the proposed Equal 
Treatment Directive by the end of 2016. Several Member States, 
however, continued to extend protection against discrimination to 
different grounds and areas of life. Various domestic court decisions 
upheld the rights of persons with disabilities, and diverse efforts 
at international, European and national level sought to advance 
LGBTI equality. Meanwhile, measures and proposals to ban certain 
garments sparked debates on freedom of religion and belief, amid 
fears caused by the threat of terrorism. The year ended with a growing 
acknowledgement that addressing discrimination based on a single 
ground fails to capture the different ways in which people in the EU 
experience discrimination in their daily lives.

Negotiations on the proposal for a Council Directive 
on implementing the principle of equal treatment 
between persons irrespective of religion or belief, 
disability,  age  or  sexual  orientation  –  the  Equal 
Treatment Directive – entered their eighth year in 
2016. Adopting this directive would guarantee that 
the EU and its Member States offer a comprehensive 
legal  framework  against  discrimination  on  these 
grounds on an equal basis. By the year’s end, the 
negotiations had not reached the unanimity required 
in  the  Council  of  the  EU  for  the  directive  to  be 
adopted, with two Member States holding general 
reservations towards the proposal. As a result, EU law 
is still effectively marked by a hierarchy of grounds 
of protection from discrimination. Article 21 (principle 
of  non-discrimination)  of  the  EU  Charter  of 
Fundamental Rights prohibits discrimination based 
on any ground such as sex, race, colour, ethnic or 
social origin, genetic features, language, religion or 
belief, political or any other opinion, membership of 
a national minority, property, birth, disability, age 
or  sexual  orientation.  Article  19  of  the  Treaty  on 
the Functioning of the European Union holds that 
the Council, acting unanimously in accordance with 
a special legislative procedure and after obtaining 
the consent of the European Parliament, may take 
appropriate action to combat discrimination based on 
sex, racial or ethnic origin, religion or belief, disability, 
age or sexual orientation.

FRA opinion 2.1

The EU legislator should consider all avenues 
to ensure that the proposed Equal Treatment 
Directive  is  adopted  swiftly  to  guarantee 
equal protection against discrimination on the 
grounds of religion or belief, disability, age or 
sexual orientation across key areas of life.

As in previous years, EU Member States extended 
protection  against  discrimination  to  additional 
grounds  and  different  areas  of  life  in  2016.  For 
instance, some Member States introduced a person’s 
socio-economic status or gender reassignment as 
protected grounds in their national legislation. Other 
Member States extended non-discrimination law to 
areas such as consumer protection, age redundancy 
clauses  and  retirement  age.  Such  steps  further 
contribute to tackling discrimination and foster equal 
treatment across a broad range of key areas of life.

FRA opinion 2.2

EU  Member  States  should  consider  adding 
grounds  of  protection  against  discrimination 
to  broaden  the  scope  of  national  anti-
discrimination legislation.

Against a backdrop of heightened tension caused 
by  the  threat  of  terrorism  in  the  EU  in  2016, 
national courts dealt with the question of when it 
is acceptable to ban particular types of clothing, with 
related cases pending before the Court of Justice 
of  the  EU  (CJEU).  These  cases  revealed  that  the 
introduction  of  such  bans  risks  disproportionally 
affecting  and  leading  to  discrimination  against 
Muslim  women  who  choose  to  wear  certain 
garments as an expression of their religious identity 
or beliefs. Article 10 of the EU Charter of Fundamental 
Rights guarantees everyone’s right to freedom of 
thought, conscience and religion. This right includes 
the freedom to change religion or belief and the 
freedom to manifest religion or belief in worship, 
teaching, practice and observance, either alone or in 
community with others. Article 21 of the EU Charter 
of Fundamental Rights prohibits any discrimination 
on the ground of religion or belief. Article 22 of the 

6

EU Charter of Fundamental Rights further provides 
that the Union shall respect cultural, religious and 
linguistic diversity.

FRA opinion 2.3

EU Member States should pay utmost attention 
to the need to safeguard fundamental rights 
and freedoms when considering any bans on 
symbols or garments associated with religion. 
Any  legislative  or  administrative  proposal 
to this end should not disproportionally limit 
the freedom to exercise one’s religion. When 
considering  such  bans,  fundamental  rights 
considerations and the need for proportionality 
should be embedded from the outset.

The year 2016 saw a growing acknowledgement 
that addressing discrimination from the perspective 
of  a  single  ground  fails  to  capture  the  different 
ways  in  which  people  experience  discrimination 
in their daily lives. This is evidenced in the continued 

trend at national level to enlarge the scope of anti-
discrimination  legislation  by  adding  protected 
grounds  and/or  areas  of  life  in  relevant  national 
legislation. Yet, the EU and its Member States still 
tend not to deal explicitly with multiple discrimination 
when  developing  legal  and  policy  instruments. 
By the end of 2016, only nine EU Member States 
explicitly covered multiple discrimination in national 
legislation.  Such  an  approach  can  lead  to  better 
recognition of how people experience discrimination 
in their daily lives and enable devising courses of 
action that would truly foster inclusion.

FRA opinion 2.4

The  EU  and  its  Member  States  should 
acknowledge  multiple  and  intersectional 
discrimination  when  developing  and 
implementing legal and policy instruments to 
combat discrimination, foster equal treatment 
and promote inclusion.

FRA Opinions

7

Fundamental Rights Report 2017

3 

 Racism, xenophobia and related 
intolerance

Racist and xenophobic reactions towards refugees, asylum seekers 
and migrants persisted across the European Union in 2016. Muslims 
experienced growing hostility and intolerance, while discrimination and 
anti-Gypsyism continued to affect many Roma. The European Commission 
set up a High Level Group on combating racism, xenophobia and other 
forms of intolerance to support national efforts in this area, as well as 
to counter hate crime and hate speech. EU Member States targeted hate 
crime in diverse ways, reviewing classifications of bias motivations, 
conducting awareness-raising campaigns and providing specialised 
training to law enforcement officers and prosecutors. Meanwhile, the 
European Commission continued to monitor implementation of the Racial 
Equality Directive. Recurring challenges include various impediments to 
equality bodies’ effectiveness and independence, discriminatory ethnic 
profiling and a lack of national action plans to fight racism.

Racist  and  xenophobic  reactions  to  the  arrival  of 
refugees,  asylum  seekers  and  migrants  in  the  EU 
that marked 2015 continued unabated in 2016. They 
included hate speech, threats, hate crime and even 
murder. Yet very few Member States collect specific 
data on incidents that target refugees, asylum seekers 
and  migrants.  This  is  particularly  relevant  for  the 
implementation  of  Article  1  of  the  EU  Framework 
Decision on Racism and Xenophobia, which outlines 
measures Member States shall take to punish certain 
intentional racist and xenophobic conduct. Article 4 (a) 
of the International Convention on the Elimination of 
All Forms of Racial Discrimination (ICERD) obliges State 
parties to make incitement to racial discrimination, as 
well as acts of violence against any race or group of 
persons, offences punishable by law. All EU Member 
States are parties to ICERD.

FRA opinion 3.1

EU  Member  States  should  ensure  that  any 
case of alleged hate crime or hate speech – 
including  those  specifically  targeting  asylum 
seekers, refugees and migrants – is effectively 
investigated, prosecuted and tried. This needs to 
be done in accordance with applicable national 
provisions and, where relevant, in compliance 
with  the  provisions  of  the  EU  Framework 
Decision on Racism and Xenophobia, European 
and international human rights obligations, as 
well as ECtHR case law on hate crime and hate 
speech. Member States could also collect more 
detailed  data  on  incidents  that  specifically 
target refugees, asylum seekers and migrants.

Few  EU  Member  States  had  dedicated  national 
actions plans to fight racial discrimination, racism 
or  xenophobia  in  place  in  2016.  This  is  the  case 
even though the United Nations’ Durban Declaration 
and Programme of Action resulting from the World 
Conference against Racism, Racial Discrimination, 
Xenophobia and Related Intolerance assigns states 
primary responsibility for combating racism, racial 
discrimination, xenophobia and related intolerance. 
Implementing such plans would provide EU Member 
States with an effective means for ensuring that 
they meet their obligations under the Racial Equality 
Directive and the Framework Decision on Racism and 
Xenophobia. The EU High Level Group on combating 
racism, xenophobia and other forms of intolerance – 
formed in June 2016 – provides EU Member States 
with  a  forum  for  exchanging  practices  to  secure 
the successful implementation of such action plans.

FRA opinion 3.2

EU  Member  States  should  adopt  specific 
national  action  plans  to  fight  racism,  racial 
discrimination,  xenophobia  and  related 
intolerance. In this regard, Member States could 
follow the exhaustive and practical guidance 
offered by the Office of the United Nations 
High Commissioner for Human Rights on how 
to develop such specific plans. In line with this 
guidance, the action plans should set goals and 
actions,  assign  responsible  state  bodies,  set 
target dates, include performance indicators, 
and  provide  for  monitoring  and  evaluation 
mechanisms.

8

Systematically  collecting  disaggregated  data  on 
incidents of ethnic discrimination, hate crime and 
hate speech can contribute to better application of 
the  Racial  Equality  Directive  and  the  Framework 
Decision  on  Racism  and  Xenophobia.  Such  data 
also  facilitates  evaluations  of  policies  and  action 
plans to prevent and combat racism, xenophobia 
and related intolerance. Evidence collected by FRA 
shows,  however,  that  persistent  gaps  remain  in 
how EU Member States record incidents of ethnic 
discrimination and racist crime. Unreported incidents 
remain invisible and preclude victims from seeking 
redress.  This  is  particularly  relevant  considering 
EU  Member  States’  obligation  to  actively  ensure 
the effective protection of victims and guarantee 
their access to effective protection and remedies 
under Article 6 of the International Convention on 
the Elimination of All Forms of Racial Discrimination. 
Through  the  EU  High  Level  Group  on  Combating 
Racism, Xenophobia and other forms of intolerance, 
FRA  continues  to  work  with  Member  States, 
EU  institutions  and  international  organisations  to 
help improve the recording of and data collection 
on hate crime.

FRA opinion 3.3

EU  Member  States  should  make  efforts  to 
systematically  record,  collect  and  publish 
annually  comparable  data  on  ethnic 
discrimination and hate crime to enable them 
to develop effective, evidence-based legal and 
policy responses to these phenomena. These 
data should include different bias motivations as 
well as other characteristics, such as incidents’ 
locations  and  anonymised  information  on 
victims and perpetrators. Any data should be 
collected  in  accordance  with  national  legal 
frameworks and EU data protection legislation.

Evidence from 2016 shows that a number of equality 
bodies faced budgetary and staff cuts or legislative 
amendments relating to their mandates, which could 
affect their effective functioning. Article 13 (1) of the 
Racial Equality Directive requires all EU Members 
States to designate an equality body or bodies for 
the  promotion  of  equal  treatment  of  all  persons 
without discrimination on the grounds of racial or 
ethnic origin. However, the directive only provides 
minimum standards for the competences of equality 

bodies. In the context of data protection, EU law 
refers explicitly to independence and defines what 
such  independence  requires.  The  General  Data 
Protection  Regulation,  adopted  in  2016  calls  for 
sufficient “human, technical and financial resources, 
premises  and  infrastructure”  for  data  protection 
authorities.

FRA opinion 3.4

EU Member States should allocate to equality 
bodies  the  human,  technical  and  financial 
resources,  premises  and 
infrastructure 
necessary to allow them to fulfil their functions 
and  deploy  their  powers  within  their  legal 
mandate effectively and independently.

Members  of  ethnic  minority  groups  continued 
to  face  discriminatory  ethnic  profiling  by  the 
police  in  2016  against  a  backdrop  of  heightened 
tension caused by terrorist attacks in EU Member 
States.  This  practice  contradicts  the  principles  of 
the  International  Convention  on  the  Elimination 
of  All  Forms  of  Racial  Discrimination,  Article  14 
(prohibition  of  discrimination)  of  the  European 
Convention on Human Rights, relevant jurisprudence 
of the European Court of Human Rights, as well as 
primary and secondary EU law. Training and internal 
monitoring  could  help  to  detect  disproportionate 
targeting of ethnic minorities and lead to corrective 
action by the relevant authorities.

FRA opinion 3.5

EU Member States should end discriminatory 
forms of ethnic profiling. This could be achieved 
through  providing  systematic  training  on 
anti-discrimination  law  to  law  enforcement 
officers, as well as by enabling them to better 
understand  unconscious  bias  and  challenge 
stereotypes and prejudice. Such trainings could 
also raise awareness on the consequences of 
discrimination and on how to increase trust 
in  the  police  among  the  public.  In  addition, 
EU  Member  States  could  consider  recording 
the  use  of  stop-and-search  powers,  and  in 
particular  recording  the  ethnicity  of  those 
subjected to stops, in accordance with national 
legal  frameworks  and  EU  data  protection 
legislation.

FRA Opinions

9

Fundamental Rights Report 2017

4  Roma integration

Despite the ambitious goals set by national Roma integration strategies 
and the significant contribution of EU funds, little progress was visible 
in 2016. Over the past year, evidence on the situation of Roma in 
employment, education, housing and health shows that progress 
has been slow in respect to implementation of the EU Framework for 
National Roma Integration Strategies. Discrimination and anti-Gypsyism 
persist, and de facto segregation in housing and education continue to 
affect many Roma. The proposed European Pillar of Social Rights could 
give new impetus to Roma integration efforts, if it includes explicit 
reference to the right to non-discrimination guaranteed by Article 21 of 
the EU Charter of Fundamental Rights.

During 2016, Roma people across the EU continued to 
face discrimination, segregation and social exclusion. 
The limited progress in implementing national Roma 
integration strategies shows the need for a thorough 
review of the proposed and planned interventions. 
There  is  also  a  need  to  promote  the  active  and 
meaningful participation of Roma, particularly at local 
level. For local level Roma integration to succeed, 
the active involvement of multiple stakeholders is 
of utmost importance, including local authorities, 
civil society and representatives of all sectors of the 
local population. National level participation needs to 
be translated into local-level engagement of Roma 
and local authorities to produce tangible results on 
the ground that can be monitored.

FRA opinion 4.1

EU Member States should review their national 
Roma integration strategies (or set of integrated 
policy  measures)  to  ensure  that  Roma 
themselves are empowered to actively engage 
in  the  process  of  Roma  inclusion.  Member 
States should explicitly identify and implement 
specific measures to promote the active and 
meaningful participation and engagement of 
Roma, especially at local level.

Findings of FRA’s second wave of the European Union 
Minorities and Discrimination Survey (EU-MIDIS II) 
show  that  Roma  continued  to  be  discriminated 
against because of their ethnicity in 2016. They face 
social exclusion and marginalisation, exacerbated by 
poverty, and are victims of hate crime. Most Roma 
living in the EU still do not enjoy their right to non-
discrimination as recognised under Article 21 of the 
EU Charter of Fundamental Rights, the Racial Equality 
Directive  and  other  European  and  international 
human rights instruments. While the Racial Equality 
Directive outlaws ethnic discrimination and the EU’s 

Framework  Decision  on  Racism  and  Xenophobia 
requires  criminal  sanctions,  such  legal  measures 
alone do not suffice to address the discrimination 
of Roma. They need to be combined with active 
inclusion  policies  to  address  the  racial  inequality 
and poverty that Roma frequently experience.

FRA opinion 4.2

EU  Member  States  should  ensure  effective 
enforcement  of  the  Racial  Equality  Directive 
and the Framework Decision on Racism and 
Xenophobia to tackle persisting discrimination 
against Roma and anti-Gypsyism. They should 
adopt explicit policy measures to address anti-
Gypsyism in their national Roma integration 
strategies or set of integrated policy measures.

Findings  of  FRA’s  second  EU  Minorities  and 
Discrimination  Survey  (EU-MIDIS  II)  show  that 
employment is an area where discrimination against 
Roma  triggers  a  chain  of  other  vulnerabilities  – 
namely, as regards income, education and housing 
conditions.  Entire  households,  and  not  just  the 
unemployed,  bear  the  negative  implications  of 
unemployment. Roma children and Roma women 
constitute especially vulnerable groups with their 
rights at risk of violation.

FRA opinion 4.3

The  EU  should  consider  including  Roma 
integration  in  the  context  of  the  proposed 
European Pillar of Social Rights. The pillar should 
envisage specific provisions addressing the risk 
of structural discrimination, by, for example, 
reinforcing the provisions for equal treatment 
in  the  workplace  and  ensuring  marginalised 
populations can effectively exercise their rights.

10

Tracking progress on Roma integration requires solid 
data – both on the measures taken, the processes 
and their outcomes for the people. More needs to 
be done to ensure the availability of robust data 
collection and solid monitoring of Roma integration. 
The European Court of Auditors’ Special Report on 
the EU policy initiatives and financial support for 
Roma integration confirmed this need. It found that 
the lack of comprehensive and robust data remains 
problematic not only in relation to projects, but also 
for policymaking at EU and national level. However, 
tools allowing for solid monitoring do exist and the 
relevant actors can make use of these tools.

FRA opinion 4.4

EU Member States should – in accordance with 
national legal frameworks, EU data protection 
legislation and with the active and meaningful 
engagement  of  Roma  communities  –  collect 
anonymised  data  disaggregated  by  ethnic 
identity, allowing the assessment of the National 
Roma  Integration  Strategies  and  policies  on 
Roma inclusion. Eurostat could include relevant 
questions in large-scale surveys, such as the 
Labour Force Survey and the EU Statistics on 
Income and Living Conditions, thereby following 
the recommendation of the European Court of 
Auditors.  In  addition,  Member  States  should 
develop  or  use  existing  monitoring  tools  of 
national Roma integration strategies to assess 
the impact of Roma integration measures.

FRA Opinions

11

Fundamental Rights Report 2017

5 

 Asylum, visas, migration, borders 
and integration

More than 5,000 people died when crossing the sea to reach Europe 
in 2016, even though irregular arrivals by sea dropped by over 60 % 
from 2015, totalling some 350,000 in 2016. Wide-ranging changes to the 
European asylum system were proposed while efforts to improve the 
efficiency of return policies intensified. Legal avenues to reach safety 
in Europe remained illusory for most migrants, since new restrictions to 
family reunification in some EU Member States offset the small progress 
achieved in humanitarian admissions. Information technology systems 
were reinforced to better combat irregular migration and respond to 
threats of serious crimes. Meanwhile, integrating the significant number 
of people granted international protection proved challenging, including 
in the educational context.

In 2016, EU institutions and Member States made 
significant  efforts  to  develop  further  information 
systems  for  migration  management  and  internal 
security purposes. Existing systems were modified 
and new systems were proposed. For the future, the 
plan is to make such systems ‘interoperable’, allowing 
the competent authorities to access multiple systems 
simultaneously. A forthcoming FRA publication on 
the interoperability of EU information systems will 
address  the  related  fundamental  rights  concerns. 
In  many  cases,  the  fundamental  rights  impact  of 
information systems is not immediately visible. The 
consequences  of  storing  incorrect  personal  data 
stored may affect an individual only years later – 
for example, when applying for a visa or a residence 
permit. Article 8 (protection of personal data) of the 
EU Charter of Fundamental Rights and in particular 
its principle of purpose limitation (i.e. that data are 
only  used  for  the  purpose  for  which  they  were 
collected)  is  a  central  standard  when  developing 
technical  solutions  to  improve  interoperability 
between information systems. Therefore, all steps 
to enhance existing information systems and create 
new  ones  should  be  subject  to  a  comprehensive 
fundamental rights impact assessment.

FRA opinion 5.1

The EU and its Member States should ensure 
that  information  systems  for  migration 
management  are  designed  so  that  officers 
who  handle  the  data  contained  therein  can 
only access data in accordance with their work 
profiles. Officers should only have access to 
data relevant for the specific tasks they are 
carrying out at a given moment in time, and 
be fully aware of which databases they are 
consulting.  Since  interoperability  means  that 
more  data  –  including  biometric  data  –  are 
more easily accessible, Member States should 
develop quality standards and administrative 
procedures to secure the accuracy of the data 
and limit the risks of unauthorised sharing of 
data with third parties or countries. Moreover, 
they should introduce specific safeguards to 
guarantee that interoperability does not lead 
to adverse effects on the rights of vulnerable 
persons,  such  as  applicants  for  international 
protection  or  children,  or  to  discriminatory 
profiling.

12

Upholding  every  child’s  right  to  education  in  the 
continuing  movement  of  migrant  and  refugee 
families in the EU is a major responsibility for the 
EU Member States. Article 14 of the EU Charter of 
Fundamental  Rights  and  Article  28  of  the  United 
Nations  Convention  on  the  Rights  of  the  Child 
guarantee  the  right  to  education  to  every  child, 
including migrant and refugee children. Making sure 
that all children enjoy their right to education will 
benefit not only them, but also the societies they 
will live in. This underlines that it is important and 
beneficial for both the economy and society at large 
to invest in human rights. 2016 shows that most 
Member States provided language support and aim 
to integrate refugee and migrant children in regular 
classes, allowing for their socialisation with other 
children and investing in long-term and sustainable 
social cohesion. However, the level of separated 
and segregated schooling remains too high.

FRA opinion 5.4

EU Member States should ensure that migrant 
and refugee children are effectively supported 
through  linguistic,  social  and  psychological 
support  based  on  individual  assessments  of 
their needs. This would prepare them to attend 
school and integrate successfully in education 
and local communities. Policies and measures 
should be in place to avoid separated schooling 
and  segregation  and  to  promote  access  of 
migrant and refugee children to regular classes 
and the mainstream education system.

Article 6 of the EU Charter of Fundamental Rights, 
as well as secondary EU law in the field of asylum 
and return, requires Member States to examine in 
each individual case the viability of more lenient 
measures before resorting to deprivation of liberty. 
By the end of 2016, all EU Member States provided 
for alternatives to detention in their national laws, 
albeit  in  some  cases  for  certain  categories  only. 
However, the inclusion of alternatives to detention 
into national legislation is in itself not a guarantee 
that  these  are  applied.  In  practice,  alternatives 
remain little used.

FRA opinion 5.2

EU  Member  States  should  require  the 
responsible  authorities  to  examine  in  each 
individual case whether a legitimate objective 
can  be  achieved  through  less  coercive 
measures  before  issuing  a  detention  order. 
If this is not the case, the authorities should 
provide reasons in fact and in law.

Legal  avenues  to  reach  safety  continued  to  be 
illusory for most refugees. There was some progress 
on resettlement in 2016, but this was offset by a step 
backwards  concerning  family  reunification,  with 
several EU Member States introducing restrictions 
in  their  national  laws.  Any  action  undertaken  by 
a Member State, when acting within the scope of 
EU law, must respect the rights and principles of the 
EU Charter of Fundamental Rights, which enshrines 
in Article 7 the right to respect for private and family 
life. In the case of refugees and persons granted 
subsidiary protection, it can generally be assumed 
that insurmountable obstacles prevent their families 
from living in the home country and that establishing 
family life in a transit country is usually not an option.

FRA opinion 5.3

EU Member States should consider using a com-
bination of refugee-related schemes and more 
refugee-friendly, regular mobility schemes to 
promote legal pathways to the EU. In this con-
text, they should refrain from adopting legisla-
tion that would result in hindering, preventing 
or significantly delaying family reunification of 
persons granted international protection.

The EU could consider regulating family reunifica-
tion of subsidiary protection status holders to ad-
dress the different approaches taken by Member 
States.

FRA Opinions

13

Fundamental Rights Report 2017

FRA evidence shows that in 2016 most EU Member 
States stepped up their efforts to introduce migrant 
and refugee children in education and support their 
integration.  However,  in  very  few  cases,  there 
are still migrant and refugee children who do not 
attend  school,  and  some  local  communities  and 
parents  of  native  children  react  negatively  to  or 
even with violence against their schooling together 
with  other  children.  Expressions  of  intolerance 
and hatred towards migrant and refugee children 
and their families that lead to the deprivation of 
the  children’s  right  to  education  violate  EU  and 
national  legislation  against  discrimination  and 
hatred. Addressing parents’ concerns can support 
integration and promote the participation of migrants 
and refugees in local communities.

FRA opinion 5.5

EU Member States should address adequately 
discriminatory or violent reactions against the 
schooling of migrant and refugee children, both 
through  law  enforcement  and  by  promoting 
mutual understanding and social cohesion. They 
should  apply  positive  measures  for  fighting 
prejudices  and  help  eradicate  unfounded 
concerns.  Furthermore,  the  Member  States’ 
authorities  should  enforce  laws  and  rules 
against  discrimination  and  hate-motivated 
crimes on any ground – including ethnic origin, 
race  and  religion  –  that  are  in  force  in  all 
EU Member States.

Involving children’s parents and families in school 
life  and  supporting  their  efforts  to  get  involved 
is  a  crucial  part  of  the  education  and  integration 
process. A third of the EU Member States do provide 
measures to support and encourage parents and 
families of migrant and refugee children by involving 
them in the education process through information, 
mediation and language support. Such  measures 
may  improve  the  children’s  school  performance, 
their and their families’ integration in education and 
in local communities, and foster better community 
relations.  The  European  Integration  Network, 
whose status was upgraded through the European 
Commission Action Plan on Integration launched in 
June 2016, is an adequate framework and space for 
sharing best practices and solutions that can help 
Member  States  to  both  fulfil  their  human  rights 
obligations and invest successfully in more cohesive 
and inclusive societies.

FRA opinion 5.6

EU Member States should share good practices 
and  experiences  in  integration  through 
education,  promoting  the  participation  of 
children’s parents and families in school life, 
and making the right to education a reality for 
all children.

14

6 

 Information society, privacy and 
data protection

The year’s terrorist attacks in Brussels, Nice and Berlin further intensified 
debates about ways to effectively fight terrorism in compliance with the 
rule of law. A number of steps were taken in this respect at both EU and 
national levels. They include national reforms on surveillance measures, 
consultations on encryption and the adoption of the Passenger Name 
Record (PNR) Directive. Meanwhile, the adoption of the General Data 
Protection Regulation (GDPR) and the Data Protection Directive for the 
police and criminal justice sector (Police Directive) constituted a crucial 
step towards a modernised and more effective data protection regime. 
The EU in 2016 did not propose revised legislation in response to the 
Court of Justice of the European Union’s (CJEU) earlier invalidation of the 
Data Retention Directive, but new CJEU case law further clarified how 
data retention can comply with fundamental rights requirements.

FRA  evidence,  which  builds  on  research  on  the 
protection of fundamental rights in the context of 
large-scale surveillance carried out at the European 
Parliament’s  request,  shows  that  a  number  of 
EU Member States reformed their legal frameworks 
relating  to  intelligence  gathering  throughout  the 
year. Enacted amid a wave of terrorist attacks, these 
changes enhanced the powers and technological 
capacities  of  the  relevant  authorities  and  may 
increase  their  intrusive  powers  –  with  possible 
implications for the fundamental rights on privacy 
and protection of personal data. The Court of Justice 
of the European Union and the European Court of 
Human Rights provide essential guidance on how 
to  protect  best  these  rights.  Legal  safeguards 
include:  substantive  and  procedural  guarantees 
of  a  measure’s  necessity  and  proportionality; 
independent  oversight  and  the  guarantee  of 
effective  redress  mechanisms;  and  rules  on 
providing evidence of whether an individual is being 
subjected to surveillance. Broad consultations can 
help to ensure that intelligence law reforms provide 
for a more effective, legitimate functioning of the 
services and gain the support of citizens.

FRA opinion 6.1

EU Member States should undertake a broad 
public  consultation  with  a  full  range  of 
stakeholders,  ensure  transparency  of  the 
legislative  process,  and  incorporate  relevant 
international  and  European  standards  and 
safeguards when introducing reforms to their 
legislation on surveillance.

Encryption is perhaps the most accessible privacy 
enhancing  technique.  It  is  a  recognised  method 
of ensuring secure data processing in the General 
Data  Protection  Regulation  (GDPR)  as  well  as 
the  e-Privacy  Directive.  However,  the  protection 
it  provides  is  also  used  for  illegal  and  criminal 
purposes. The spread of services providing end-to-
end encryption further adds to the tension between 
securing  privacy  and  fighting  crime,  as  they,  by 
design, prevent or make more difficult access to 
encrypted  data  by  law  enforcement  authorities. 
To  overcome  this  challenge,  some  Member 
States have started considering – or have already 
enacted – legislation that requires service providers 
to  have  built-in  encryption  backdoors  that,  upon 
request,  allow  access  to  any  encrypted  data  by 
law enforcement and secret services. As has been 
noted by many, however, such built-in backdoors 
can lead to a general weakening of encryption, since 
they can be discovered and exploited by anyone 
with sufficient technical expertise. Such exposure 
could run counter to what data protection requires 
and  could  indiscriminately  affect  the  security 
of  communications  and  stored  data  of  states, 
businesses and individuals.

FRA opinion 6.2

EU Member States should ensure that measures 
to overcome the challenges of encryption are 
proportionate to the legitimate aim of fighting 
crime and do not unjustifiably interfere with the 
rights to private life and data protection.

FRA Opinions

15

Fundamental Rights Report 2017

The General Data Protection Regulation, which will 
apply  as  of  2018,  lays  down  enhanced  standards 
for achieving effective and adequate protection of 
personal data. Data protection authorities will play an 
even more significant role in safeguarding the right 
to data protection. Any new legal act in the field of 
data protection will have to respect the enhanced 
standards set out in the regulation. For example, in 
2016 the EU adopted an adequacy decision for the 
purpose of international data transfers: the EU-U.S. 
Privacy Shield. This decision explicitly states that the 
European Commission will regularly assess whether 
the  conditions  for  adequacy  are  still  guaranteed. 
Should such assessment be inconclusive following the 
entry into application of the General Data Protection 
Regulation, the decision asserts that the Commission 
may  adopt  an  implementing  act  suspending  the 
Privacy Shield. Furthermore, in 2016, the EU adopted 
its first piece of legislation on cyber security – the 
Network and Information Security Directive – and, in 
early 2017, in the context of the Digital Single Market 
Strategy,  the  Commission  proposed  an  e-Privacy 
Regulation to replace the e-Privacy Directive.

FRA opinion 6.3

EU  Member  States  should  transpose  the 
Network and Information Security Directive into 
their national legal frameworks in a manner that 
takes into account Article 8 of the EU Charter 
of Fundamental Rights and the principles laid 
down in the General Data Protection Regulation. 
Member  States  and  companies  should  also 
act in compliance with these standards when 
processing or transferring personal data based 
on the EU-U.S. Privacy Shield.

Whereas  developments  in  2014  focused  on  the 
question of whether or not to retain data, it became 
clear in 2015 that Member States view data retention 
as an efficient measure for ensuring protection of 
national security, public safety and fighting serious 
crime. There was limited progress on the issue in 
2016:  while  the  EU  did  not  propose  any  revised 
legislation  in  response  to  the  Data  Retention 
Directive  invalidation  two  years  earlier,  the  CJEU 

developed its case law on the fundamental rights 
safeguards essential for the legality of data retention 
by the telecommunication providers.

FRA opinion 6.4

EU  Member  States  should,  within  their 
national frameworks on data retention, avoid 
general and indiscriminate retention of data 
by telecommunication providers. National law 
should include strict proportionality checks as 
well as appropriate procedural safeguards so 
that the rights to privacy and the protection of 
personal data are effectively guaranteed.

The European Parliament Civil Liberties, Justice and 
Home Affairs Committee (LIBE) rejected the proposal 
for an EU Passenger Name Record (PNR) Directive in 
April 2013 due to concerns about proportionality and 
necessity, and a lack of data protection safeguards 
and transparency towards passengers. Emphasising 
the need to fight terrorism and serious crime, the 
EU  legislature  in  2016  reached  an  agreement  on 
a revised EU PNR Directive and adopted the text. 
Member  States  have  to  transpose  the  directive 
into national law by May 2018. The adopted text 
includes enhanced safeguards that are in line with 
FRA’s suggestions in its 2011 Opinion on the EU PNR 
data  collection  system.  These  include  enhanced 
requirements, accessibility and proportionality, as 
well as further data protection safeguards. There 
are, however, fundamental rights protection aspects 
that the directive does not cover.

FRA opinion 6.5

EU  Member  States  should  enhance  data 
protection  safeguards  to  ensure  that  the 
highest  fundamental  rights  standards  are  in 
place. This also applies to the transposition of 
the EU Passenger Name Record (PNR) Directive. 
In  light  of  recent  CJEU  case  law,  safeguards 
should  particularly  address  the  justification 
for  retaining  Passenger  Name  Record  data, 
effective remedies and independent oversight.

16

7  Rights of the child

Almost 27 % of children in the EU are at risk of poverty or social 
exclusion. While this is a slight improvement compared with previous 
years, the EU 2020 goals remain unreachable. The new EU Pillar of Social 
Rights could play an important role in addressing child poverty. The 
adoption of a directive on procedural safeguards for children suspected 
or accused of crime is expected to improve juvenile justice systems and 
bring further safeguards for children in conflict with the law. Meanwhile, 
thousands of migrant and asylum-seeking children travelling alone 
or with their families continued to arrive in Europe in 2016. Despite 
EU Member States’ efforts, providing care and protection to these 
children remained a great challenge. Flaws in reception conditions 
persisted, with procedural safeguards inconsistently implemented, 
foster care playing only a limited role and guardianship systems often 
falling short. These realities underscored the importance of replacing the 
expired EU Action Plan on unaccompanied children with a new plan on 
children in migration.

At almost 27 %, the proportion of children living at 
risk of poverty or social exclusion in the EU remains 
high.  This  being  the  EU  average,  the  proportion 
is  higher  in  certain  Member  States  and  among 
certain groups, such as Roma children or children 
with a migrant origin. The Europe 2020 target on 
poverty reduction is thus still far from being reached. 
Article 24 of the EU Charter of Fundamental Rights 
requires that “(c)hildren shall have the right to such 
protection and care as is necessary for their well-
being”. Nonetheless, EU institutions and Member 
States put little emphasis on child poverty and social 
exclusion  in  the  European  Semester.  The  EU  has 
taken a number of initiatives that could strengthen 
Member  States’  legislative,  policy  and  financial 
measures, including the 2013 European Commission 
Recommendation on ‘Investing in children: breaking 
the cycle of disadvantage’, the Structural Reform 
Support Programme 2017-2020 and the adoption 
of a child-focused European Pillar of Social Rights.

FRA opinion 7.1

The  EU  should  place  more  emphasis  on 
comprehensively addressing child poverty and 
social exclusion in the European Semester – 
making  better  use  of  the  2013  European 
Commission recommendation – as well as in 
upcoming initiatives, such as the European Pillar 
of  Social  Rights.  This  could  include  focusing 
attention in the European Semester on those 
EU Member States where child poverty rates 
remain high and unchanged in recent years.

EU Member States, with the support of the 
European  Commission,  could  analyse  and 
replicate, when appropriate, success factors in 
law and economic and social policies of those 
Member States that managed in recent years 
to improve the situation of children and their 
families.

The Directive on procedural safeguards for children 
who are suspects or accused persons in criminal 
proceedings is an important milestone in a vital and 
often contentious field of justice. Existing research, 
as well as the case law of the European Court of 
Human Rights (ECtHR) and national courts, highlight 
the need for special protection measures for children 
in conflict with the law. FRA research on children and 
justice shows that the legal framework to safeguard 
children is usually in place, but that the practical 
implementation of such legislation remains difficult, 
mainly due to a lack of practical tools, guidance or 
training for professionals.

FRA opinion 7.2

EU Member States should undertake a national 
review to identify existing practice and barriers, 
gaps or weaknesses in their respective juvenile 
justice systems. A plan of action should follow 
this national review to define policy measures 
and  the  required  resources  for  the  full 
implementation of the Directive on procedural 
safeguards  for  children  who  are  suspects

FRA Opinions

17

Fundamental Rights Report 2017

or  accused  persons  in  criminal  proceedings. 
This could include training for judicial actors 
or  the  development  of  practical  guidelines 
for individual assessments and for informing 
children in an age-appropriate manner.

Migrant  and  asylum-seeking  children  continued 
to arrive in Europe during 2016, alone or together 
with  their  families.  Evidence  collected  by  FRA 
shows that despite Member States’ efforts there 
are clear weaknesses in the reception system of 
unaccompanied children, such as a lack of specialised 
facilities and crowded or inadequate first reception 
and transit facilities. Placing unaccompanied children 
with foster families is not yet a widely used option. 
Evidence suggests that providing adequate reception 
conditions  is  vital  to  prevent  trafficking  and 
exploitation of children, or children going missing. 
The European Commission has presented a number 
of  proposals  to  reform  the  Common  European 
Asylum System, while the 2011-2014 Action Plan 
on Unaccompanied Minors has not been renewed.

FRA opinion 7.3

The  EU  should  develop  an  EU  action  plan  on 
children  in  migration,  including  unaccompanied 
children,  setting  up  clear  policy  priorities  and 
measures  to  complement  EU  Member  States’ 
initiatives.

EU  Member  States  should  strengthen  their 
child protection systems by applying national 
standards on alternative care to asylum-seeking 
and immigrant children, focusing on the quality 
of care. This should include, as prescribed in the 
Reception Conditions Directive on, placements 
with foster families for unaccompanied children. 
Furthermore,  Member  States  should  allocate 
enough resources to the municipal services that 
provide support to unaccompanied children.

Appointing  a  guardian  for  each  unaccompanied 
child  remains  a  challenge,  as  evidence  collected 
by FRA shows. The main issues relate to lengthy 
appointment procedures and timelines, difficulties 
in recruiting qualified guardians, the high number 
of children assigned to each guardian, and a lack 
of  independence  and  guarantees  of  impartiality 
of  guardianship  institutions  in  some  EU  Member 
States.  The  European  Commission  proposal 
to  review  the  Reception  Conditions  Directive 
includes  improvements  to  guardianship  systems 
for unaccompanied children. The proposal requires 
appointing guardians who are responsible for looking 
after the child’s best interests in all aspects of the 
child’s life, not just for legally representing them. 
By  contrast,  the  proposals  for  a  revised  Dublin 
Regulation and Asylum Procedures Directive require 
only the appointment of a “legal representative” 
and not of a “guardian”.

FRA opinion 7.4

The EU legislator should put forward a coherent 
concept of guardianship systems with a clear 
role  in  safeguarding  the  best  interests  of 
unaccompanied children in all aspects of their 
lives.

EU  Member  States  should  ensure  that 
child  protection  systems  and  guardianship 
authorities have an increased role in asylum 
and  migration  procedures  involving  children. 
Member States should develop or strengthen 
their  guardianship  systems  and  allocate 
necessary resources. They should ensure the 
prompt  appointment  of  a  sufficient  number 
of qualified and independent guardians for all 
unaccompanied  children.  Finally,  they  could 
consider  promising  practices  and  existing 
research and handbooks, such as the European 
Commission’s  and  FRA’s  joint  Handbook  on 
guardianship  for  children  deprived  of  parental 
care, to support this process.

18

8 

 Access to justice including rights of 
crime victims

The EU and other international actors tackled various challenges in the 
areas of rule of law and justice throughout the year. Several EU Member 
States strengthened the rights of persons suspected or accused of 
crime to transpose relevant EU secondary law, and the EU adopted new 
directives introducing further safeguards. Many Member States also 
took steps to improve the practical application of the Victims’ Rights 
Directive to achieve effective change for crime victims, including in 
the context of support services. The final three EU Member States – 
Bulgaria, the Czech Republic and Latvia – signed the Istanbul Convention 
in 2016, underscoring that all EU Member States accept the convention 
as defining European standards of human rights protection in the 
area of violence against women and domestic violence. Meanwhile, 
the convention continued to prompt diverse legislative initiatives at 
Member State level.

EU and other international actors continued in 2016 
to tackle ongoing challenges in the area of justice 
and, in particular, the rule of law. The rule of law is 
part of and a prerequisite for the protection of all 
values listed in Article 2 of the Treaty on European 
Union (TEU). Developments implicating the rule of 
law and fundamental rights in Poland for the first 
time prompted the European Commission to carry 
out an assessment of the situation in a Member State 
based on its Rule of Law Framework. This resulted in 
a formal opinion followed by recommendations on 
how the country should address the noted rule of 
law concerns. After the Polish government rejected 
these recommendations, the European Commission 
issued complementary recommendations, taking into 
account the most recent developments in Poland.

FRA opinion 8.1

All relevant actors at national level, including 
governments,  parliaments  and  the  judiciary, 
need to step up efforts to uphold and reinforce 
the rule of law. They all have responsibilities 
to address rule of law concerns and play an 
important  role  in  preventing  any  erosion  of 
the  rule  of  law.  EU  and  international  actors 
are encouraged to strengthen their efforts to 
develop  objective  comparative  criteria  (like 
indicators) and contextual assessments. Poland 
should  consider  the  advice  from  European 
and  international  human  rights  monitoring 
mechanisms,  including  the  Commission’s 
recommendations issued as part of its Rule of 
Law Framework procedure.

Many  EU  Member  States  continued  to  propose 
legislative  amendments  to  comply  with  the 
requirements  of  Directives  2010/64/EU  and    
2012/13/EU  –  on  the  right  to  translation  and 
interpretation,  and  to  information  in  criminal 
proceedings  –  after  the  directives’  transposition 
deadlines. Member States also adopted new laws 
to  transpose  Directive  2013/48/EU  on  the  right 
to access to a lawyer. FRA’s evidence from 2016 
shows, however, that EU Member States still have 
work to do concerning these directives, particularly 
in  adopting  policy  measures  –  such  as  concrete 
guidance  and  training  on  protecting  the  rights 
of  suspected  and  accused  persons.  There  is  also 
untapped potential for the exchange of knowledge, 
good  practices  and  experience  concerning  the 
three directives. Such exchanges could contribute 
to building an EU system of justice that works in 
synergy and respects fundamental rights.

FRA opinion 8.2

EU Member States – working closely with the 
European Commission and other EU bodies – 
should  continue  their  efforts  to  ensure  that 
procedural rights in criminal proceedings are 
duly  reflected  in  national  legal  orders  and 
effectively implemented across the EU. Such 
measures  could  include  providing  criminal 
justice  actors  with  targeted  and  practical 
guidance  and  training,  as  well  as  increased 
possibilities for communication between these 
actors.

FRA Opinions

19

Fundamental Rights Report 2017

In 2016, many EU Member States focused on fulfilling 
the  obligations  imposed  by  the  Victims’  Rights 
Directive  –  such  as  reaching  out  to  more  victims 
and reinforcing the capacity and funding of victim 
support  services,  including  specialised  services 
for especially vulnerable victims such as children. 
A notable positive trend was that over a quarter of 
Member States increased funding to victim support 
services, leading to the expansion and improvement 
of services. Despite progress, one clear gap remains 
in several EU Member States: the lack of generic 
victim support services – meaning that not all crime 
victims across the EU can access support that may 
be vital for them to fulfil their rights.

FRA opinion 8.3

EU Member States should address gaps in the 
provision of generic victim support services. It is 
important to enable and empower crime victims 
to enjoy effectively their rights, in line with the 
minimum standards laid out in the Victims’ Rights 
Directive. This should include strengthening the 
capacity and funding of comprehensive victim 
support  services  that  all  crime  victims  can 
access free of charge. In line with the directive, 
EU  Member  States  should  also  strengthen 
specialised services for vulnerable victims, such 
as children and victims of hate crime.

In  2016,  the  final  three  EU  Member  States 
(Bulgaria,  the  Czech  Republic  and  Latvia)  signed 
the Council of Europe Convention on preventing and 
combating violence against women and domestic 
violence  (Istanbul  Convention).  Meanwhile,  in 
another  Member  State  (Poland)  statements 

were  made  on  the  possible  renouncement  of  its 
commitments to the convention. When it comes to 
determining European standards for the protection of 
women against violence, the Istanbul Convention is 
the most important point of reference. In particular, 
Article  52  on  emergency  barring  orders  obliges 
parties  to  ensure  that  competent  authorities 
are  granted  the  power  to  order  a  perpetrator  of 
domestic violence to leave the premises at which 
the victim resides. This is in line with the Victims’ 
Rights Directive, which requires EU Member States 
to ensure that victims are protected against repeat 
victimisation.  However,  to  date,  only  about  half 
of the EU Member States have enacted legislation 
implementing this option in line with the Istanbul 
Convention. In addition, in Member States that have 
relevant  legislation,  assessments  concerning  its 
effectiveness are lacking.

FRA opinion 8.4

All EU Member States should consider ratifying 
the Council of Europe Convention on preventing 
and combating violence against women and 
domestic  violence  (Istanbul  Convention)  and 
implementing  it.  In  line  with  Article  52  of 
the  Istanbul  Convention,  and  to  ensure  the 
immediate and reliable protection of domestic 
violence victims against repeat victimisation, 
EU Member States should enact and effectively 
implement legal provisions allowing the police 
to order a perpetrator of domestic violence to 
vacate the residences of a victim and stay at 
a safe distance from the victim. EU Member 
States  that  have  such  legislation  should 
examine its actual effectiveness on the ground.

20

9 

 Developments in the implementation 
of the Convention on the Rights of 
Persons with Disabilities

Ten years after the United Nations (UN) General Assembly adopted 
the Convention on the Rights of Persons with Disabilities (CRPD), the 
convention continues to spur significant legal and policy changes in 
the EU and its Member States. As attention gradually shifts from the 
first wave of CRPD-related reforms to consolidating progress made, 
the recommendations of review and complaints mechanisms at the 
international, European and national levels are increasingly important 
in identifying persisting implementation gaps. Monitoring frameworks 
established under Article 33 (2) of the convention can be essential 
tools to drive follow-up of these recommendations, particularly those 
stemming from reviews by the CRPD Committee – but they require 
independence, resources and solid legal foundations to carry out their 
tasks effectively.

Following  the  2015  review  of  the  EU’s  progress 
in  implementing  the  United  Nations  Convention 
on the Rights of Persons with Disabilities (CRPD), 
EU  institutions  took  a  range  of  legislative  and 
policy  measures  to  follow  up  on  some  of  the 
CRPD Committee’s recommendations, underlining 
the Union’s commitment to meeting its obligations 
under  the  convention.  The  committee’s  wide-
ranging recommendations set out a blueprint for 
legal and policy action across the EU’s sphere of 
competence and are relevant for all EU institutions, 
agencies and bodies.

FRA opinion 9.1

The  EU  should  set  a  positive  example  by 
ensuring  the  rapid  implementation  of  the 
CRPD  Committee’s  recommendations  to 
further full implementation of the convention. 
This  will  require  close  cooperation  between 
EU  institutions,  bodies  and  agencies  – 
coordinated by the European Commission as 
focal point for CPRD implementation – as well 
as with Member States and disabled persons’ 
organisations. Modalities for this cooperation 
should be set out in a transversal strategy for 
CRPD implementation, as recommended by the 
CRPD Committee.

Actions  to  implement  the  CRPD  helped  to  drive 
wide-ranging legal and policy reforms across the 
EU in 2016, from accessibility to inclusive education, 
political  participation  and 
living. 
Nevertheless, some initiatives at EU and Member 
State level do not fully incorporate the human rights-
based approach to disability required by the CRPD, 
or lack the clear implementing guidance required 
to make them effective.

independent 

FRA opinion 9.2

The EU and its Member States should intensify 
efforts  to  embed  CRPD  standards  in  their 
legal  and  policy  frameworks  to  ensure  that 
the  rights-based  approach  to  disability,  as 
established  in  the  CRPD,  is  fully  reflected 
in  law  and  policymaking.  This  could  include 
a  comprehensive  review  of  legislation  for 
compliance  with  the  CRPD.  Guidance  on 
implementation  should  incorporate  clear 
targets  and  timeframes,  and  identify  actors 
responsible for reforms.

FRA Opinions

21

Fundamental Rights Report 2017

EU Structural and Investment Funds (ESIF) projects 
agreed in 2016 show that in many areas initiatives 
to implement the CRPD in EU Member States are 
likely  to  benefit  from  ESIF  financial  support.  The 
ex-ante  conditionalities  –  conditions  that  must 
be  met  before  funds  can  be  spent  –  can  help  to 
ensure that the funds contribute to furthering CRPD 
implementation. As ESIF-funded projects start to be 
rolled out, monitoring committees at the national 
level will have an increasingly important role to play 
in ensuring that the funds meet CRPD requirements.

FRA opinion 9.3

The  EU  and  its  Member  States  should  take 
rapid  steps  to  ensure  thorough  application 
of  the  ex-ante  conditionalities  linked  to  the 
rights of persons with disabilities to maximise 
the potential for EU Structural and Investment 
Funds (ESIF) to support CRPD implementation. 
To enable effective monitoring of the funds and 
their outcomes, the EU and its Member States 
should also take steps to ensure adequate and 
appropriate  data  collection  on  how  ESIF  are 
used.

Evidence  collected  by  FRA  in  2016  shows  the 
judicial  and  non-judicial 
important  role  that 
complaints  mechanisms  can  play  in  identifying 
gaps  in  CRPD  implementation  and  clarifying  the 
scope  of  the  convention’s  requirements.  Several 
cases concerning non-discrimination in employment 
serve to underline the complementarity and mutual 
relevance of standards at the UN, EU and national 
levels.

FRA opinion 9.4

The  EU  and  its  Member  States  should  take 
steps  to  increase  awareness  of  the  CRPD 
among  relevant  judicial  and  non-judicial 
complaint mechanisms to enhance further the 
important role of the latter in securing CRPD 
implementation. This could include developing 
training modules and establishing modalities to 
exchange national experiences and practices.

By the end of 2016, only Ireland had not ratified the 
CRPD, although the main reforms paving the way for 
ratification are now in place. In addition, five Member 

States  and  the  EU  have  not  ratified  the  Optional 
Protocol to the CRPD, which allows individuals to 
bring complaints to the CRPD Committee and for 
the Committee to initiate confidential inquiries upon 
receipt of “reliable information indicating grave or 
systematic violations” of the convention (Article 6).

FRA opinion 9.5

EU Member States that have not yet become 
party to the CRPD and/or its Optional Protocol 
should consider completing the necessary steps 
to secure their ratification as soon as possible 
to achieve full and EU-wide ratification of these 
instruments. The EU should also consider taking 
rapid steps to accept the Optional Protocol.

Four of the 27 EU Member States that have ratified 
the CRPD had not, by the end of 2016, established 
or designated frameworks to promote, protect and 
monitor the implementation of the convention, as 
required  under  Article  33  (2)  of  the  convention. 
Furthermore,  FRA  evidence  shows  that  the 
effective functioning of some existing frameworks is 
undermined by insufficient resources, the absence of 
a solid legal basis, and a failure to ensure systematic 
participation  of  persons  with  disabilities,  as  well 
as a lack of independence in accordance with the 
Paris Principles on the functioning of national human 
rights institutions.

FRA opinion 9.6

the  monitoring 

The EU and its Member States should consider 
allocating 
frameworks 
established under Article 33 (2) of the CRPD 
sufficient  and  stable  financial  and  human 
resources. This would enable them to carry out 
their functions effectively and ensure effective 
monitoring  of  CRPD  implementation.  As  set 
out  in  FRA’s  2016  legal  Opinion  concerning 
the  requirements  under  Article  33  (2)  of  the 
CRPD  within  an  EU  context, they should also 
consider  guaranteeing  the  sustainability  and 
independence  of  monitoring  frameworks  by 
ensuring that they benefit from a solid legal 
basis for their work and that their composition 
and  operation  takes  into  account  the  Paris 
Principles on the functioning of national human 
rights institutions.

22

F
R
A

F
u
n
d
a
m
e
n
t
a

l

i

R
g
h
t
s
R
e
p
o
r
t

2
0
1
7

Diverse efforts at both EU and national levels sought to bolster fundamental rights protection 
in 2016, while some measures threatened to undermine such protection. FRA’s Fundamental 
Rights Report 2017 reviews major developments in the EU between January and December 
2016, and outlines FRA’s opinions thereon. Noting both achievements and remaining areas 
of concern, it provides insights into the main issues shaping fundamental rights debates 
across the EU.

Fundamental Rights 
Report 2017

This year’s focus section takes stock of 10 years of fundamental rights developments in 
the EU. The remaining chapters discuss the EU Charter of Fundamental Rights and its use by 
Member States; equality and non-discrimination; racism, xenophobia and related intolerance; 
Roma integration; asylum and migration; information society, privacy and data protection; 
rights of the child; access to justice including rights of crime victims; and developments in 
the implementation of the Convention on the Rights of Persons with Disabilities.

Further information:

For the full FRA Fundamental Rights Report 2017 – see  
http://fra.europa.eu/en/publication/2017/fundamental-rights-report-2017

See also related FRA publications:

 •

 •

FRA (2017), Fundamental Rights Report 2017 – FRA Opinions, Luxembourg, Publications Office,  
http://fra.europa.eu/en/publication/2017/fundamental-rights-report-2017-fra-opinions  
(available in all 24 official EU languages)

FRA (2017), Between promise and delivery: 10 years of fundamental rights in the EU, Luxembourg, 
Publications Office, http://fra.europa.eu/en/publication/2017/10-years-fundamental-rights  
(available in English and French)

For previous FRA Annual reports on the fundamental rights challenges and achievements in the 
European Union in a specific year, see: http://fra.europa.eu/en/publications-and-resources/
publications/annual-reports (available in English, French and German).

FRA – EUROPEAN UNION AGENCY FOR FUNDAMENTAL RIGHTS

Schwarzenbergplatz 11 – 1040 Vienna – Austria
Tel. +43 158030-0 – Fax +43 158030-699
fra.europa.eu – info@fra.europa.eu
facebook.com/fundamentalrights
linkedin.com/company/eu-fundamental-rights-agency
twitter.com/EURightsAgency

© European Union Agency for Fundamental Rights, 2017
© Photos: iStockphoto; European Commission; OSCE (Milan Obradovic)

Print: ISBN 978-92-9491-646-4, doi:10.2811/901314
PDF: ISBN 978-92-9491-668-6, doi:10.2811/595970

T
K
-
A
M
-
1
7
-
0
0
1
-
E
N
-
C

(

p
r
i
n
t
)
;

T
K
-
A
M
-
1
7
-
0
0
1
-
E
N
N

-

(
P
D
F
)