Report on the use of the EU Charter on Fundamental Rights by national human rights bodies and practical guidelines on the strategic use of the EU Charter by national human rights bodies.
Date: 2017-07-28
Institutions: Robert Schuman Centre for Advanced Studies
Subjects: EU Charter of Fundamental Rights, EU Member State, application of the law, charter on human rights, human rights, interpretation of the law, research report

July 2017

RESEARCH 
PROJECT 
REPORT

Report on 
the Use of the EU 
Charter on Fundamental 
Rights by National 
Human Rights Bodies and 
Practical Guidelines 
on the Strategic Use 
of the EU Charter by 
National Human Rights 
Bodies

AUTHOR: MADALINA BIANCA MORARU

CharterClick! (“Don’t knock on the wrong door: CharterClick! A user-friendly tool to detect violations falling with -
in the scope of the EU Charter of Fundamental Rights”)

Report on the use of the EU Charter on Fundamental Rights by National Human Rights Bodies
and Practical Guidelines on the strategic use of the EU Charter by National Human Rights Bodies

Author: Madalina Bianca Moraru | Research Fellow, European University Institute, Robert Schuman Centre for  
Advanced Studies, Centre for Judicial Cooperation

Under the scientific supervision of:
Prof. Deirdre Curtin | Director of CJC
Professor Adelina Adinolfi | CharterClick! Project Director (University of Florence)

With the support of:
Dr. Federica Casarosa | Member of the CJC/EUI Team
Dr. Nicole Lazzerini | CharterClick! Project Manager (University of Florence)
LL.M. Viorica Vita | Member of the CJC/EUI Team

The Centre for Judicial Cooperation was created in December 2011, within the European University Institute, for 
the purpose of establishing a space of collaboration and exchange of knowledge between legal practitioners and the 
academic community on a variety of EU law related topics. The CJC engages both professional groups to participate 
in differentiated activities ranging from workshops and conferences to pure research and policy endeavours. In 
order to disseminate the results of its work, the Centre publishes Working Papers and Distiguished Lectures, thus 
engaging in open discussions with the judicial and academic communities. The transnational and diverse blend of 
the CJC activities makes sure that dialogue between authors, judges and practitioners is constantly put into place, 
allowing for improvement of research and its outputs related to judicial dialogue.

Project co-financed by the European Commission, “Fundamental Rights and Citizenship Programme 2013”  

©European University Institute, 2017
Content © Madalina Bianca Moraru, 2017

This text may be downloaded only for personal research purposes. Any additional reproduction for other purposes, 
whether in hard copies or electronically, requires the consent of the author(s), editor(s). If cited or quoted, reference 
should be made to the full name of the author(s), the title, the year and the publisher, and url of the originally published 
document, where available.

Views expressed in this publication reflect the opinion of individual authors and not those of the
European University Institute.

Centre for Judicial Cooperation(CJC)
Robert Schuman Centre for Advanced Studies, European University Institute
July 2017
Badia Fiesolana
I – 50014 San Domenico di Fiesole (FI)
http://cadmus.eui.eu/

 
 
TABLE OF CONTENTS

The CharterClick Project .................................................................................................................................... 1

Acknowledgements .............................................................................................................................................. 1

Terms of use .......................................................................................................................................................... 1

Table of figures ...................................................................................................................................................... 2

List of abbreviations ............................................................................................................................................. 2

Executive summary .............................................................................................................................................. 3

I. Introduction ................................................................................................................................................ 5

II. Comparative quantitative analysis of NHRBs’ use of the Charter of Fundamental Rights ............. 6

1. General information on the participating National Human Rights Bodies .................................. 6

1.1.Respondents .................................................................................................................................. 6

1.2.Remit of respondents’ mandate .................................................................................................. 8

1.3 Activities of the respondent bodies ............................................................................................ 8

1.4 Type of decisions (binding or non-binding) by category of respondent bodies .................. 9

1.5.Role of the respondent NHRBs in litigation ........................................................................... 11

2. Role of the Charter in the activity of each body ............................................................................. 11

2.1 Role of the Charter in the day-to-day activities of the NHRBs ........................................... 11

2.2 The actor(s) that raise the Charter in the complaint procedure(s) ..................................... 12

2.3 Specific use of the Charter by NHRBs – sample of good practices ..................................... 13

2.4 The various tools/databases used by the respondent NHRBs in order to  
collect information on the interpretation and application of the Charter and its potential .. 14

3. Suggestions on how to improve the CharterClick! deliverables .................................................... 14

3.1 The main difficulties the respondent NHRBs experience in applying the Charter .......... 14

3.2 Most useful tool from the CharterClick! Toolkit ................................................................... 14

4. Training and awareness raising activities .......................................................................................... 15

III.  Comparative Qualitative Analysis of the NHRBs’ use of the Charter – landmark cases ........... 16

1. The Charter as (legal) tool to trigger domestic legislative change ................................................ 16

2. The Charter as a parameter of validity for EU secondary legislation ........................................... 17

3. The Charter as a parameter of legality of national legislation ....................................................... 17

4.The Charter as tool for changing practices of public authorities and private parties  
  contrary to HRs ..................................................................................................................................... 17

 
IV. Conclusions ................................................................................................................................................... 20

V. Practical Guidelines on the use of the Charter – multiple functions  and added  compared to  
other human rights instruments ...................................................................................................................... 23

1.    Introduction ......................................................................................................................................... 23

2.  The multiple legal functions the Charter of fundamental rights can play in the  
practice of the NHRBs ............................................................................................................................... 25

2.1.  Mainstreaming the EU Charter into the EU and national legislative process ...................... 25

2.2.  Charter as a parameter of validity of EU secondary legislation ............................................. 26

2.3.  Charter as parameter of interpretation of EU legislation and implementing national  
measures ................................................................................................................................................ 27

2.4.  The Charter as parameter of compatibility of national legislation and public authorities  
practice with fundamental rights ....................................................................................................... 28

2.5.  The Charter as an entrance door for Directives in private parties relations/litigation ....... 29

2.6.  The Charter as an instrument for strategic litigation .............................................................. 30

2.6.1 The Office of the Human Rights Commissioner of Poland – equal treatment ........      30

2.6.2 N.S.and others – conformity with absolute human rights in overlapping multilevel  
human rights system ...................................................................................................................... 30

2.6.3 Firma Feryn – collective remedies ...................................................................................... 31

2.6.4 Belov and CHEZ – systemic discriminatory practices ..................................................... 31

2.7. The Charter as gap filling and raising standards of protection of fundamental rights  
at national level ..................................................................................................................................... 31

3. The Added value of the Charter compared to other human rights instruments (ECHR) ........... 32

Annex I – The CharterClick! Questionnaire .................................................................................................. 34

1. Introduction ............................................................................................................................................ 35

2. The importance of shedding light on the use of the Charter by National Human Rights Bodies 35

3. Questionnaire ......................................................................................................................................... 36

Part I – Your institution ............................................................................................................................. 36

Part II – The EU Charter in your day-to-day activity ........................................................................... 38

Part III – Help us modelling the CharterClick! On-line platform on your needs ............................. 42

Part IV – Awareness raising and training activities ............................................................................... 44

I. THE CHARTERCLICK PROJECT

“Don’t  knock  on  the  wrong  door:  CharterClick!”  (hereinafter  CharterClick!)  is  a  two  year  project  (February  2015  - 
January 2017) co-financed by the European Commission under the “Fundamental Rights and Citizenship Programme 
2013”.  The primary outcome consists in setting up an on-line, freely accessible platform with a set of tools aimed to 
provide assistance in understanding whether and how reliance on the EU Charter of Fundamental Rights (hereinafter 
EU Charter) can be of help in a specific case. The toolkit will target victims of fundamental rights violations, their 
representatives, national judges and national human rights bodies (NHRBs), including data protection supervisory 
authorities. 

II. ACKNOWLEDGEMENTS

I wish to express the Project partners’ gratitude to the participating National Human Rights Bodies for sharing their 
practice and experience concerning the application of the Charter, as well as sending us their suggestions on how to 
make the CharterClick Tool! useful to them. Similarly, I wish to express the Project partners’ gratitude to Zuzana 
Dorazilova, Policy Officer at the European Commission,  and Gabriel Toggenburg from the Fundamental Rights Agency 
of the EU for their kind introductions to the Workshop The Charter in the Everyday Activity of the National 
Human Rights Bodies: Experiences, Problems, Perspectives.

I also wish to personally thank Equinet and ENNHRI for their help in disseminating the questionnaire; Dr. Federica 
Casarosa, Dr. Nicole Lazzerini and LL.M. Viorica Vita for their very useful input and recommendations for improving 
this report; Aristi Volou, from the University of Leicester for her language corrections. All mistakes remain mine.

This document could have be written thanks to the kind co-funding of the European Union Programme “Fundamental 
Rights and Citizenship 2013”.

III. TERMS OF USE

This document may be freely used and distributed, provided that the document itself is not modified or shortened, 
that full authorship credit is given, and that these terms of use are not removed but included with every copy. Please, 
address questions and comments to:  madalina.moraru@eui.eu 

1

TABLE OF FIGURES

Figure No.1 – Respondent NHRBs ......................................................................................................................  

Figure No. 2 – Fundamental Rights within the remit of the NHRBs mandate ..............................................  

Figure No.3 – Activities of the NHRBs ................................................................................................................  

Figure No. 4 – Type of activities for each of the respondent NHRBs ..............................................................  

Figure No. 5 – Types of decisions (binding v non-binding decisions) adopted by the respondent NHRBs 

Figure No. 6 – Total numbers for each type of decisions ..................................................................................  

Figure No. 7- Role of NHRBs in litigation ..........................................................................................................  

Figure No. 8 – Roles of the Charter in the day-to-day work of NHRBs .........................................................  

Figure No. 9 – Body who invokes the Charter ...................................................................................................  

Figure No. 10 – Role of the EU Charter in the activities of the NHRBs .........................................................  

Figure No. 11 – Main difficulties experienced by the NHRBs in the application of the EU Charter .........  

7

8

8

9

10

10

11

12

12

13

14

LIST OF ABBREVIATIONS 

Charter of Fundamental Rights of the European Union
Court of Justice of the European Union
Data Protection Authorities
European Data Protection Supervisor
General Data Protection Regulation
National Data Protection Authorities
National Human Rights Bodies

Charter
CJEU
DPAs
EDPS
GDPR
NDPAs
NHRBs

2

EXECUTIVE 
SUMMARY

The Report maps out the use of the Charter by 28 National 
Human Rights Bodies (hereinafter NHRBs).1 Secondly, it 
includes practical guidelines on the use of the Charter for 
the NHRBs.

Most  studies  on  the  domestic  use  of  the  Charter  have 
so far concentrated on the judiciary’s activity.2 The Ch@
rterClick!  project  aimed  to  look  at  the  Charter’s  life 
also  outside  the  courtroom.  A wide  range  of  national 
bodies  with  human  rights  competences  exist  in  the 
Member States and could play a crucial role in ensuring 
protection  of  European  fundamental  rights.  Therefore  
the Ch@rterClick! project assessed the use of the Charter 
by  NHRBs  with  varied  powers  and  mandates,  such 
as:  awareness  raising,  advocacy,  advisory  role  vis-à-vis 
national governments, protection of victims, equality bodies, 
ombudspersons,  protecting  certain  categories  of  interests: 
migration, and data protection. The Project chose a very 
broad  definition  of  NHRBs,  trying  to  include  all  those 
national  bodies  that  have  a  role  in  fundamental  rights 
application.  The  criteria  for  choosing  the  NHRBs  was 
determined by the very practical objective of the Project, 
namely, ensuring sound protection of fundamental rights 
and  knowledge  on  when  the  Charter  is  applicable  in 
concrete cases. Therefore all national bodies which carry 
out activities related to the application of human rights 
were invited to participate in the CharterClick! Survey, 
and not only those that qualify as NHRIs according to the 
1992 Paris Principles.

The  NHRBs  that  replied  to  the  the  project’s  survey 
included:  NHRIs3, 
ombudsmen, 
equality 
commissions, and other independent bodies entrusted with 
the task of human rights supervision. Some of these bodies 

bodies, 

are quasi-judicial, meaning that they adjudicate cases but 
are not courts of law.4 

The  conclusions  presented  in  this  Report  are  based 
on  data  collected  via  the  CharterClick!  Questionnaire 
(Annex  I)  and  a  one-day  Workshop,5  which  gathered 
NHRBs  and  other  national  and  EU  fundamental  rights 
stakeholders.  Responses  to  the  Questionnaire  and  the 
Workshop discussions show that the EU Charter has a 
progressively important role in the every-day work of 
NHRBs,  especially  in  legislative  mainstreaming  and 
validity assessment of EU and national legislation. Yet, 
there is considerable room for improving the day-to day 
application of the Charter among NHRBs.6 

The data collected indicates that the added value of the 
Charter provisions compared to the provisions of specific 
EU secondary legislative acts is not clear for the NHRBs 
(especially in fields where there are detailed EU legal acts, 
such as non discrimination, data protection). It is often 
used  together  with  other  fundamental  rights  related 
instruments,  often  to  support  auxiliary  arguments. 
Significantly,  most  of  the  NHRBs  do  not  keep  statistics 
concerning their use of the Charter.

According  to  the  CharterClick!  Survey,  the  possible 
reasons for the limited and auxiliary use of the EU Charter 
by the NHRBs in their daily activities can be, inter alia: 
1) the fact that the scope of application of the Charter is 
difficult to understand; 2) an overcrowded human rights 
context;  the  added  value  of  the  Charter  compared  to 
the other human rights instruments, or the specific EU 
secondary  legislative  acts  is  not  immediately  clear;  3) 
limited  visibility  and  lack  of  relevant  public  awareness; 
4)  linguistic  and  time  constraints;  5)  limited  financial 
resources of the NHRBs; and limited training initiatives 
on the use of the Charter. The These reasons were invoked 
also  as  possible  obstacles  to  the  future  development  of 
the application of the Charter across various fields. 

1 
The  Report  excludes  the  National  Data  Protection  Au-
thorities, which form the subject of a separate study, see the RSCAS 
Research Project Report on The Use of the Charter by National Data 
Protection Authorities and the European Data Protection Supervisor.

2 

According to, for instance, FRA Annual Report 2013.

3 
NHRBs have applied to be certified under the Paris principles.

NHRIs  according  to  the  1992  Paris  Principles;  not  all  the 

4 

E.g. equality bodies.

5 
For more details on the Workshop discussion, see Report of 
the CharterClick! Workshop The Charter in the Everyday Activity of the 
National Human Rights Bodies: Experiences, Problems, Perspectives.

6 
Especially beyond the fields of non-discrimination and data 
protection, which seem to have been the areas where the EU Charter 
is mostly referred to. 

3

Solutions  were  suggested  by  the  participating  NHRBs, 
such as: more awareness raising among the public; new 
tools for the improvement of the practitioners’ knowledge 
about the Charter, its possible legal functions and added 
value  compared  to  other  human  rights  instruments. 
A  helpline  desk  with  capacity  to  answer  the  more 
controversial and juridical questions has been suggested 
as a useful instrument in furthering the application of the 
EU Charter (Portuguese High Commission for Migration). 
Although  the  EU  Charter  is  gradually  included  in 
training curricula for public administration officials (e.g. 
in Greece, Portugal), there is still limited discussion on 
the  added  value  of  the  EU  Charter  in  legal  practice.  In 
areas covered by EU legislation, the EU Charter should be 
used as a legal tool of reference jointly with the domestic 
legal instruments

It is recommended that a thorough institutional planning 
on  the  use  and  reference  of  the  Charter  is  endorsed  by 
NHRBs,  for  the  purpose  of  ensuring  its  meaningful 
application  in  their  day-to-day  work.  Best  practice 
examples  were  submitted  by  NHRBs:  a  formal  internal 
decision  of  the  NHRB  inviting  to  an  increased  use  of 
the Charter (Greek Ombudsman); ex officio reference to 
the EU Charter in solving complaints (Sweden Equality 
Ombudsman);  the  inclusion  of  Charter  in  the  internal 
institutional  databases  to  facilitate  access  to  prior  cases 
that dealt with the Charter (Belgian Federal Ombudsman); 
monitoring of the CJEU case law on the Charter (Belgian 
Federal  Ombudsman);  planned  systemic  references  to 
the  Charter  in  annual  activity  reports  (Belgian  Federal 
Ombudsman, Romanian National Council for Combating 
Discrimination). 

The  jurisprudence  of  the  CJEU  on  the  Charter  and  the 
case law submitted by the participating NHRBs show the 
essential role played by NHRBs in the application of the 
Charter.  Landmark  cases  where  the  CJEU  stroke  down 
provisions  from  an  EU  secondary  legislative  act  on  the 
basis of the Charter originated from NHRBs (Test Achats, 
pending  RPO  case).  Cases  of  European  importance, 
leading  to  the  clarification  of  the  scope  of  application 
of the Charter, and ultimately leading to enhancing the 
level of human rights protection at the national level also 
originated at the initiatives of NHRBs. A case which has 
gained  constitutional  importance  is  the  N.S.  and  others 
case. Following the N.S. case, which case initiated by the 
UK Equality and Human Rights Commission, Poland and 
the UK can no longer resort to Protocol 30 as a justification 
for not complying with the Charter. The CJEU made clear 
that the Charter covers both cases where Member States 
‘implement’ and ‘derogate’ from EU law.

Another case where the Charter was used by a NHRB as a 
standard of review of national legislation and enhancing 
domestic human rights protection is the Benkharbouche 
case.7  The  UK  Equality  and  Human  Rights  Commission 

7 
Appeal, [2015] EWCA Civ 33.

  Benkharbouche  v  Sudan  and  Janah  v  Libya,  UK  Court  of 

4

intervened in favour of the applicants, foreigners working 
in  embassies  of  their  third  countries  based  in  London, 
who complained of unfair dismissal, failure to be paid the 
minimum wage, harassment and racial discrimination in 
breach of the Working Time Regulations 1998 and, inter 
alia,  Articles  6  and  13  ECHR,  and  Article  47  Charter. 
It was argued that the UK State Immunity Act violated 
the  ECHR  and  Charter  based  fair  trial  and  effective 
remedy rights of third country nationals working in the 
embassies of their countries based in London. This case 
also shows the added value of the Charter vis-à-vis the 
ECHR,  which  in  certain  jurisdictions  has  more  limited 
effects than the Charter (e.g. statutory limitation applies 
to the ECHR, but not to the Charter within the specific 
UK legal context;8 similarly Germany). 

Although there is still a modest usage of the Charter by 
the  NHRBs,  there  has  been  an  increase  in  cases  where 
the NHRBs invoke ex officio the Charter. It is interesting 
to  note  that  the  Charter  has  at  times  been  used  by  the 
NHRB(s) in order to achieve a certain strategic outcome. 
For  instance,  to  help  solve  conflicting  interpretations 
between  various  state  authorities;  as  a  last  resort  to 
remedy  incompatibility  of  EU/national  legislation  with 
fundamental rights; to change social or economic policies; 
or adjust systemic deficiencies in the treatment of certain 
communities which have long been discriminated against 
(see the Belov and CHEZ cases discussed below).

that 

these  examples  underline 

All 
the  NHRBs’ 
institutional  commitment  to  use  the  Charter  in  their 
daily  work  is  highly  important  for  its  effective  use.  A 
thorough institutional planning of the use of the Charter 
ensures that this instrument is used in a meaningful way 
in the day-to-day work of the NHRBs.

8 
 UK courts cannot disapply national legislation on the basis 
of the ECHR, since according to section 3 of the Human Rights Act, 
the amendment of incompatible statutory provisions is the preroga-
tive of the legislature.

in their day-to-day activities. The Ch@rterClick! Report 
unfolds as follows: Section II introduces the main results 
of  the  comparative  quantitative  analysis  of  the  NHRBs 
use  of  the  EU  Charter.  Section  III  highlights  the  main 
findings of the qualitative comparative analysis, offering 
an  overview  of  the  best  practices  of  NHRBs’  use  of  the 
EU  Charter.  The  Report  will  conclude  with  Section  IV, 
which summarises: the main roles of the EU Charter in 
the  activities  of  the  NHRBs;  the  good  practices  as  well 
as shortcomings in EU Charter application. The Report 
will attempt to briefly put forward possible solutions for 
enhancing the application of the EU Charter by NHRBs.

I. INTRODUCTION

For  the  purpose  of  collecting  data  on  the  use  of  the 
Charter by NHRBs, the Centre for Judicial Cooperation 
circulated the Ch@rterClick! Questionnaire in July 2015, 
among  the  associate  partners,  as  well  as  other  NHRBs 
outside the Consortium.9 The replies were collected until 
January 2016.

The  CharterClick!  Questionnaire  was  drafted  in  a 
modular  way,  in  order  to  ensure  that  NHRBs  with 
different mandates would be able to respond to questions 
regarding  the  use  of  the  EU  Charter.10  Accordingly, 
the  questionnaire  includes  four  parts.  Part  I  requires 
providing some general information on the NHRBs. Part 
II refers to the role of the EU Charter in the activity of 
the NHRBs. Part III aims at collecting the suggestions the 
NHRBs may deem useful to improve the CharterClick! 
deliverables.  Finally,  Part  IV  focuses  on  the  training 
and awareness raising activities concerning the use and 
comprehension of the EU Charter. Whilst Part I and III 
are common to all the addressees of the Questionnaire, 
Part II and Part IV contain different sets of questions to 
be replied depending on the activity/ies perfomed by the 
NHRB.11 

The time frame of the research was between the entry into 
force of the Charter, in December 2009 until November 
2015.

This  report  illustrates  a  selection  of  the  results  of  the 
CharterClick!  Project  Questionnaire  on  the  use  of 
the  Charter  of  Fundamental  Rights  by  National  Data 
Protection Authorities (hereafter NDPAs) and the EDPS 

9 
 The full CharterClick! Questionnaire can be found in An-
nex I. The Questionnaire was primarily designed to contribute to the 
CharterClick! Online Platform by collecting the practices of NHRBs 
as regards the application of the Charter. At the same time, the Ques-
tionnaire took into account also the need to collect useful information 
for the elaboration of other tools, with a view to make them respond-
ent to the actual needs of NHRBs.

 Not all the questions would be applicable to all bodies, giv-
10 
en that not all bodies provide training, process complaints or litigate 
on behalf of complainants.

11 
to this Report.

 The CharterClick! Questionnaire can be found in Annex I 

5

II. COMPARATIVE 
QUANTITATIVE 
ANALYSIS OF 
NHRBS’ USE OF 
THE CHARTER OF 
FUNDAMENTAL 
RIGHTS

1. General information on the participating 
National Human Rights Bodies
The first part of the Ch@rterClick! Questionnaire aimed 
to  gather  information  on  the  participating  NHRB(s), 
in  particular:  the  legal  instrument(s)  authorising  their 
activities;  the  scope  of  their  mandates;  the  legal  nature 
and  effects  of  the  decisions  they  are  authorised  to 
issue;  the  characteristics  of  the  process  followed  when 
processing  complaints  raised  by  individuals;  the  role  of 
the  bodies  before  courts;  clarification  on  whether  they 
are accredited under the 1992 Paris Principles. 

6.  Human Rights Centre of Finland

7.  Ombudsman for Equality of Finland

8.  Parliamentary Ombudsman of Finland

9.  Defender of Rights of France

10.  Parliamentary Ombudsman of Greece

11.  Office of the Commissioner for Fundamental Rights 

of Hungary

12.  Coordination  of  Regional 

and  Autonomous 

Provinces Ombudsman Institutions of Italy

13.  Seimas  Ombudsmen’s  Office  of  the  Republic  of 

Lithuania

14.  Parliamentary Ombudsman of Malta

15.  Commissioner for Human Rights of Poland

16.  High Commission for Migration of Portugal

17.  Comissão  para  a  Igualdade  no  Trabalho  e  no 

Emprego of Portugal

18.  National  Council  for  Combating  Discrimination  of 

Romania

19.  People’s Advocate Institution of Romania

20.  National Centre for Human Rights of Slovakia

21.  Council  for  the  Elimination  of  Racial  or  Ethnic 

Discrimination of Spain

1.1Respondents

The  Questionnaire  was  completed  by  28  NHRBs,  from 
19 EU countries.12 The following NHRBs replied to the 
Questionnaire:

1.  Federal Ombudsman of Belgium

2.  Commissioner  for  Administration  and  Human 

22.  Chancellor of Justice of Sweden

23.  Data Protection Authority of Sweden

24.  Equality Ombudsman of Sweden

25.  The Parliamentary Ombudsman of Sweden

26.  Equality and Diversity Forum of UK

Rights of Cyprus

27.  Equality and Human Rights Commission of UK

3.  The Public Defender of Rights of the Czech Republic

28.  Parliamentary & Health Service Ombudsman of UK

4.  The Board of Equal Treatment of Denmark

Figure No.1 – Respondent NHRBs 

5.  Chancellor of Justice of Estonia

12 
 Belgium, Cyprus, Czech Republic, Denmark, Estonia, Fin-
land, France, Greece, Hungary, Italy, Lithuania, Malta, Poland, Portu-
gal, Romania, Slovakia, Spain, Sweden, and UK.

6

Figure No.1 – Respondent NHRBs

Member States of origin of the participating NHRBs

The field of data protection was not included in this round 
of survey. Given the increasing activity of data protection 
commissioners and agencies on the issue of the scope of 
application of the Charter, in particular breaches of the 
right  to  privacy  and  data  protection  (e.g.  Shrems13  and 

13 
[Ireland], ECLI:EU:C:2015:650.

 Case C-362/14, Schrems v. Data Protection Commissioner 

Digital  Rights  Ireland14  cases),  these  rights  will  be  the 
focus of a separate CharterClick! Survey.15

14 
 Joint cases C-293/12, C-594/12, Digital Rights Ireland and 
Seitlinger v. Austrian Minister for Communications, Marine and Natu-
ral Resources, ECLI:EU:C:2014:238.

15 
 The results of this second round of survey will be discussed 
separately during a second transnational training that will be organ-
ised  by  the  Centre  for  Judicial  Cooperation,  focusing  on  the  fun-
damental  right  of  data  protection  and  interaction  with  the  right  to 

7

1.2 Remit of respondents’ mandate

1.3 Activities of the respondent bodies 

The  responding  NHRBs  vary  in  composition,  and  the 
remit  of  their  mandate.  Among  the  respondents,  nine 
are  ombudspersons;  six  are  equality  bodies;  eight  are 
commissions; two are Chancellors of Justice;16 while one 
was a national supervisory authority on data protection.17

Most  of  the  replies  came  first  from  NHRBs  with  a 
mandate  covering  all  human  rights,  followed  then  by 
bodies  focusing  on  the  principles  of  equality  and  non-
discrimination, and then by those whose mandate cover 
all fundamental rights, but only within specific fields of 
law (e.g. migration). 

Figure No. 2 – Fundamental Rights within the remit of the 
NHRBs mandate

Question 4.1: Please, specify if your competence extends 
to all human rights listed in the Charter or it is limited to 
some of them (multiple replies possible)

The  respondent  NHRBs  perform  multiple  functions 
ranging  from:  awareness  raising,  advocacy,  advisory 
role  vis-à-vis  national  governments  and  legislators, 
complaints  processing,  training,  advising  on  policy 
making  and  legislative  drafting.  The  NHRBs’  mandates 
cover the following fundamental rights: all fundamental 
rights which arise within the field of activities performed 
by  public  authorities;  fundamental  rights  restricted  to 
specific  fields  of  law  (migration  and  data  protection); 
or  only  particular  fundamental  rights  (as  the  case  of 
equality bodies which concentrate on equality and non-
discrimination). The most commonly performed activities 
of  the  respondent  NHRBs  are:  complaints  resolution; 
awareness  raising;  advisory  role  for  public  bodies  and 
institutions;  legislative  mainstreaming  especially  for  the 
legislative branches. 

Figure No.3 – Activities of the NHRBs

Question  4.2:  Please,  select  which  of  the  following 
activities are included in your mandate (if more than one, 
please indicate the most relevant one/s):

private life, as applied by national data protection authorities. See the 
RSCAS Research Report on the Use of the Charter by NDPAs and the 
EDPS.

 Chancellor of Justice usually perform constitutional duties, 
16 
ensuring  that  laws  and  regulations  would  be  constitutional  and  in 
compliance with other laws.

17 
 Use of the EU Charter by national data protection authori-
ties is the subject of a separate survey started after the end of the Sur-
vey on use of the EU Charter, in general, by NHRBs.

8

Figure No. 4 – Type of activities for each of the respondent 
NHRBs

issue  decisions  which  are  generally  advisory  for  public 
authorities  or  private  bodies.  Most  of  the  individual 
decisions  are  subject  to  a  form  of  appeal.  In  case  no 
appeal  is  submitted  against  decisions,  equality  bodies 
can  end  the  litigation  without  the  need  to  follow  court 
procedures.

1.4  Type  of  decisions  (binding  or  non-binding)  by 
category of respondent bodies

Judging  by  the  total  number  of  decisions  issued  by  the 
NHRBs, the majority of them do not have legally binding 
nature.  Except  the  Ombudspersons,  the  other  NHRBs 
issue  both  legally  binding  and  soft  law  decision.  The 
Ombudspersons  usually 
issue  consultative/advisory 
opinions  or  recommendations  which  are  not  legally 
binding for the public administration. The Ombudsmen 
do  not  hear/decide  complaints  raised  by  individuals 
in  the  sense  of  issuing  decisions  on  the  merits  of  the 
complaints  (quasi-judicial  role). This  is  usually  the  role 
of  equality  or  migration  related  bodies.  While  human 
rights commissions or the chancellor of justice can issue 
both legally binding decisions and consultative acts, such 
as:  recommendations,  reports,  opinions,  which  are  not 
legally binding.

The decisions issued in individual complaints are usually 
not definitive and irrevocable, in the sense that courts or 
legislative bodies can reverse them.18 It seems that certain 
trends can be identified, in the sense that equality bodies 
have quasi-judicial powers and if their decisions are not 
challenged before courts, then they remain final for the 
involved  parties.  On  the  other  hand,  ombudspersons 

18 
tice of Estonia’s decisions are final and not subject to appeal.

 Some exceptions exists, for instance, the Chancellor of Jus-

9

Figure No. 5 – Types of decisions (binding v non-binding decisions) adopted by the respondent NHRBs

Question 4.3: If your mandate includes the processing of complaints raised by individuals (c) in question 5.2), could 
you specify the legal value of the decisions you may issue? (multiple replies are possible)

Figure No. 6 – Total numbers for each type of decisions 

10

1.5 Role of the respondent NHRBs in litigation 

There  seems  to  be  an  equal  distribution  among  the 
various roles that NHRBs can have in litigation on human 
rights. The distribution of NHRBs’ roles in human rights 
litigation  usually  ranges  from:  case  initiation,  legal 
representation to other amicus curiae activities. Most of 
the NHRBs could act as legal representative or initiator 
of a case, and amicus curiae in judicial proceedings. The 
NHRBs that cannot act as legal representative of initiator 
are usually the Ombudspersons whose decisions are soft 
law.

Figure No. 7- Role of NHRBs in litigation

Question  4.4:  If  your  mandate  includes  litigating  cases 
before courts (e) in question 4.2), could you describe the 
role you may have in front of courts?  

2. Role of the Charter in the activity of each 
body
Part II of the CharterClick! Questionnaire aimed to gather 
information on the EU Charter related activities such as: 

number of cases;

the actor introducing/raising the Charter in the case; 

consequences for the introduction of the Charter; most 
frequently mentioned fundamental right(s); 

(…)  most  important  case(s)  dealing  with  the  Charter; 
most  relevant  database(s)  for  Charter  related  cases; 
questions  for  litigating  bodies;  cases  where  the  Court 
upheld  arguments  based  on  the  Charter;  cases  where 
the  Court  did  not  follow  arguments  based  on  the 
Charter  raised  by  NHRBs;  questions  for  institutions 
with  advisory  role;  legislation  regarding  the  Charter; 
questions  for  mediators  or  out-of-court  settlement 
bodies; most relevant case (or cases) of alleged violations 
of the Charter and results.

11

2.1 Role of the Charter in the day-to-day activities of 
the NHRBs

The    Charter  is  most  often  used  a  legal  source  of 
fundamental  rights  when  hearing  and  deciding  cases, 
in  litigating  cases  before  courts,  but  also  in  mediation 
out  of  court  dispute  settlements.  It  is  not  relied  as  the 
primary  instrument  of  reference  for  human  rights,  but 
referred  together  with  other  national  or  regional  legal 
instruments.  Indeed,  one  of  the  main  challenges  that 
seems  to  be  raised  most  often  is  that  of  integrating 
the  Charter  into  an  already  rather  “crowded”  space  of 
international  and  domestic  fundamental  and  human 
rights  norms.  In  certain  domestic  jurisdictions,  the 
NHRBs seem to prefer to refer to European Convention 
of Human Rights (ECHR) as an older and better known 
source of law (e.g. Sweden, Romania), while the Charter 
is mentioned together with the ECHR.

An increase in Charter reference was reported, especially 
in  certain  jurisdictions.  For  instance,  an  impressive 
number of cases referring to the Charter was provided by 
the Portuguese CITE: 7518 cases where the Charter was 
referred. A possible reason for this increase could be the 
increasing case-law of CJEU referring to the Charter (as 
noticed by certain of the respondent NHRBs). The NHRBs 
mentioned that the Charter relevant jurisprudence of the 
CJEU offers welcomed guidance and encouragement on 
the use of the Charter at the national level, as it brings 
additional  concrete  examples  on  the  application  of  the 
Charter.

However, there are several NHRBs who are considering 
the  Charter  independently/separately  of  other  norms. 
Independent  reference  to  the  Charter 
is  recently 
increasing,  especially  in  the  field  of  social  rights,  since 
the  Charter,  unlike  the  ECHR,  includes  also  economic 
and social rights.19 It should be noted that the rights and 
principles provided in Title IV (Solidarity) of the Charter 
do not have correspondent rights in the ECHR. 

 The European Social Charter (ESC), as counter-part to the 
19 
ECHR  (which  refers  to  civil  and  political  rights),  is  the  most  com-
prehensive treaty on social and economic rights in the pan-Europe-
an area. Most of the social rights in the EU Charter of Fundamental 
Rights are based on the relevant articles of the ESC. However, given 
the clear lack of uniformity in the acceptance of the ESC’s provisions 
by  the  EU  member  states,  the  EU  Charter’s  corresponding  social 
rights, whose implementation is scrutinised by the European Com-
mission and the CJEU, present a clear added value compared to the 
ESC.

Figure No. 8 – Roles of the Charter in the day-to-day work of NHRBs

Question 6: Which role does the Charter play within your activities?

Figure No. 9 – Body who invokes the Charter

Question  8:  Who  has  introduced  the  Charter  in  the 
complaint analysis?

On  the  basis  of  the  cases  submitted  by  the  respondent 
NHRBs, the Charter is used for the following purposes:

legem:  as  a  source  of 

-  praeter 
law  guiding  the 
interpretation  of  national  laws  even  if  it  is  not  strictly 
applicable according to EU law. For instance, Article 41- 
right to good administration is referred to, although the 
CJEU has clearly established that it applies only to the EU 
institutions, bodies, agencies;20 or certain Charter based 
fundamental  rights  are  applied  as  directly  enforceable 
rights, although their direct effect is still unclear (e.g. best 
interest of the child);

- contra legem: against the law - leading to disapplication 
or annulment of national laws;

-  secundum  legem:  in  interpretation,  to  support  the 
interpretation of other national and supra-national laws;

- instrument of training and awareness on human rights 
for practitioners and individuals.

2.2 The actor(s) that raise the Charter in the complaint 
procedure(s)

The Charter is mostly invoked by the bodies themselves, 
within litigation or review of draft legislation. The other 
actors  that  invoke  the  Charter  are  the  parties  with  the 
help  of  lawyers,  legal  assistants  or  other  NGOs  staff 
supporting the claim of the applicant/victim.

20 

 See more on this in the Practical Guidelines section.

12

2.3 Specific use of the Charter by NHRBs – sample of 
good practices

Equality  bodies  seem  to  be  those  who  commonly  refer 
to the Charter; commission(s) deal preponderantly with 
the  Charter  in  addressing  complaints  against  national 
authorities;  ombudspersons  refer  to  the  Charter  during 
their advisory role to the legislature; and the Chancellor 
of  Justice  use  the  Charter  in  their  advisory  role  to  the 
legislature  and  when  addressing  complaints  against 
national authorities.

There  is  an  increasing  reference  to  the  Charter  by  the 
NHRBs  in  their  common  practice.  The  results  of  the 
Questionnaire show that some of the NHRBs frequently 
refer  to  the  Charter,  including  on  their  own  motion. 
The  role  of  the  Charter  is  primarily  an  incidental 
one  -  being  one  of  several  human  rights  instruments, 
which  is  referred  simply  to  corroborate  a  reasoning 
mainly  centred  on  another  legal  provision.  However,  it 
has  started  to  gain  also  central  or  predominant  role  in 
supporting  the  legal  reasoning  regarding  fundamental 
rights. For instance, the Danish Board of Equal Treatment 
has  commonly  referred  to  the  Charter  particularly  in 
cases  based  on  discrimination  related  to  pregnancy. 
The  Finish  Parliamentary  Ombudsman 
frequently 
refers to the right to be heard, part of the right to good 
administration under Article 41, and to the principle of 
non-discrimination under Article 21.

The Charter is used not only in complaints assessment/
resolution, but also in their activity of awareness raising. 
For  instance,  the  Belgian  Federal  Ombudsman  makes 
references to the Charter in the annual activity reports. 

The  incorportation  of  the  Charter  into  the  internal 
practices  of  the  NHRBs  is  essential  to  ensure  an 
effective  use  of  this  instrument.  In  this  sense,  Part  II 
of  the  CharterClick!  Questionnaire  helped  identifying 
a  number  of  good  practices  such  as:  a  formal  internal 
decision  of  the  NHRB  inviting  to  an  increased  use  of 
the Charter (Greek Ombudsman); ex officio reference to 
the EU Charter in solving complaints (Sweden Equality 
Ombudsman);  the  inclusion  of  Charter  in  the  internal 
institutional  databases  to  facilitate  access  to  prior  cases 
that dealt with the Charter (Belgian Federal Ombudsman); 
monitoring of the CJEU case law on the Charter (Belgian 
Federal  Ombudsman);  planned  systemic  references  to 
the  Charter  in  annual  activity  reports  (Belgian  Federal 
Ombudsman, Romanian National Council for Combating 
Discrimination).  All  these  examples  underline  that  the 
NHRBs’ institutional commitment to use the Charter in 
their daily work is highly important for its effective use. A 
thorough institutional planning of the use of the Charter 
ensures that this instrument is used in a meaningful way 
in the day-to-day work of the NHRBs.

Figure No. 10 – Role of the EU Charter in the activities of the NHRBs

13

2.4 The various tools/databases used by the respondent 
NHRBs  in  order  to  collect  information  on  the 
interpretation  and  application  of  the  Charter  and  its 
potential

The tools which were commonly referred to by the NHRBs 
as sources of gathering information on the interpretation 
and application of the Charter were the following: curia 
and eur-lex; few of them also mentioned the website of 
the EU Fundamental Rights Agency.

3.  Suggestions  on  how  to  improve  the 
CharterClick! deliverables 
Part III of the Questionnaire aimed to collect suggestions 
on: how to improve the CharterClick! Toolbox; the main 
difficulties  regarding  the  use  of  the  Charter;  the  most 
useful  tool  among  those  provided  by  the  CharterClick! 
toolbox;  the  most  relevant  features;  the  most  relevant 
feature  to  fit  for  non-professional  users;  as  well  as 
suggestions on additional tools.

3.1  The  main  difficulties  the  respondent  NHRBs 
experience in applying the Charter

The  replies  given  by  the  NHRBs  to  this  question  might 
give  indication  on  why  they  do  not  make  a  greater  use 
of the Charter (irrespective of the legal obligation to give 
precedence to Union law). According to the respondents, 
it  seems  that  the  correct  identification  of  the  scope  of 
application  of  EU  law/Charter  creates  most  difficulties 
in  the  practice  of  the  NHRBs,  followed  by  the  issue  of 
establishing  the  relation  between  diverse  Charter  rights 
and principles, or with other legal sources of fundamental 
rights,  such  as  the  ECHR  and  national  constitutional 
provisions.

3.2 Most useful tool from the CharterClick! Toolkit

The  replies  to  the  CharterClick!  Questionnaire  revealed 
the  following  order  of  preference  among  the  various 
CharterClick!  tools:  1)  the  admissibility  checklist;  2) 
the  practical  guidelines;21  3)  the  database  and  4)  the 
best  practices  document.  The  Admissibility  Checklist 
was  considered  useful  for  both  legal  practitioners  and 
individuals without legal education. In order to increase 
its accessibility for non-professionals, the replies pointed 
out that they should be followed by practical guidelines, 
ensure translation in as many native languages as possible; 
it  should  be  an  interactive  tool  with  questions  applying 
the admissibility criteria and it should include examples 
of concrete case law.

It  was  also  mentioned  that  the  Admissibility  Checklist 
should include an explanation of the relationship between 
the  Charter  and  the  ECHR,  the  latter  being  more  often 
used in certain domestic jurisdictions. The advantages of 
invoking the Charter instead of (or rather in addition to) 
the ECHR should be highlighted. This was reported to be 
instrumental for encouraging the use of the Charter. 

The right to effective judicial protection, being one of the 
most  often  referred  provisions  of  the  Charter,  was  the 
focus  of  many  recommendations.  It  was  suggested  the 
Tutorial should include information on the content of the 
right to an effective judicial protection, and remedies to 
violations of this right (referring also to the possibility of 
collective  remedies).  Guidelines  and  practical  cases  on 
the  right  to  access  to  justice  and  legal  aid  enshrined  in 
Article 47 Charter should also be included. Particularly 
since, in certain domestic jurisdictions, legal aid is often 
excluded for violations of human rights obligations, since 
such violations are granted damages in the form of low 

21 

 Currently the document is entitled Tutorial.

Figure No. 11 – Main difficulties experienced by the NHRBs in the application of the EU Charter

Question 25: Which are the main difficulties you experience in the practical use of the EU Charter?

14

4. Training and awareness raising activities 
Finally, Part IV of the CharterClick! Questionnaire aimed 
to  gather  data  on  the  various  awareness  raising  and 
training activities carried out by NHRBs: number; target 
groups; thematic of training activities. 

The  most  preferred  option  on  awareness  raising  are 
trainings  and  in  person  meetings  followed  by  online 
forums. Most of the NHRBs participating in the survey 
do  some  form  of  training  for  public  officials,  however 
not  all  of  them  include  the  Charter  in  their  training 
curricula. The Portuguese High Commission for Migration 
suggested that a helpline desk with capacity to answer the 
more controversial and juridical questions might be very 
useful.

The  target  groups  that  commonly  benefit  from  the 
training activities organised by NHRBs are: 

•  public officials;

• 

• 

law enforcement authorities;

students. 

financial amounts, which do not legitimise the conferral 
of legal aid. For instance, it was reported that in Sweden, 
legal  aid  is  recognised  only  for  substantial  material 
damages.  The  right  to  challenge  a  negative  decision 
with  regards  to  legal  aid  under  Article  47  Charter  was 
mentioned as another issue worth being detailed in the 
Ch@rterClick! Tutorial.

The Defender of Rights of France (EDF) suggested that the 
Ch@rterClick!  admissibility  tool  should  be  available  in 
different formats so as to be accessible to online users with 
visual disabilities. There are some standard processes that 
are considered good practice including having buttons at 
the top of the webpage that allow to change background 
and  font  colours  and  increase/decrease  fonts  (see  icons 
below as an example). It is also helpful to provide word 
documents  in  addition  to  pdfs  as  the  former  can  more 
easily be converted by screen readers and users.

•  The Parliamentary Ombudsman of Malta (endorsed 
also  by  other  participating  NHRBs)  recommended 
that: 

•  The publication of cases relevant to each EU Charter 
Article  so  that  the  reader  may  better  understand 
what is the import of the Article;

•  A  brochure  or  booklet  or  web  publication  that 
explains  the  EU  Charter  and  the  mechanism  of 
protection that is showing how the interested party 
can exercise his rights;

•  Assistance  or  even legal aid  at EU  level  for citizens 
or  affected  individuals  to  help  them  exercise  their 
rights;

•  Financial and material aid to institutions such as the 
national or Parliamentary Ombudsman to encourage 
study and training of personnel in these institutions 
on the EU Charter;

•  An  effective  press  and  media  campaign  to  help 
citizens and interested parties to understand and use 
the EU Charter.

These  issues  will  be  dully  taken  into  consideration 
when  drafting  and  amending  the  CharterClick!  Tools. 
For  instance,  ITTIG  will  draft  the  final  versions  of  the 
Admissibility  checklist  and  of  the  Tutorial  in  line  with 
an accessibility protocol for people with disabilities. The 
deliverables will be adapted, showing the importance of 
the readability and the usability of the tools not only to 
legal practitioners but also to general public. In order to 
achieve  this  result,  the  CharterClick!  admissibility  list 
will be supported by a two level tutorial. 

15

III. COMPARATIVE 
QUALITATIVE 
ANALYSIS OF THE 
NHRBS’ USE OF 
THE CHARTER – 
LANDMARK CASES

This  section  outlines  the  most  often  performed  legal 
functions of the Charter in the activities of the NHRBs.22 
In particular, cases that refer to the Charter as: parameter 
for ex-ante validity of national law; a parameter of validity 
of EU law; and parameter of legality of national law.23 

Depending on the respective mandates and tasks of the 
NHRBs, they have invoked the Charter in a  wide range of 
activities such as: training, awareness raising, processing 
complaints,  advising  the  government,  litigating  cases 
before the courts or data collection.

The French Defender of Rights referred of its own motion 
to Article 45 Charter in relation to a legislative proposal 
on  the  legal  regime  of  foreigners.25  The  High  authority 
for  the  fight  against  discrimination  and  for  equality 
(body preceding the French Defender of Rights) referred 
to  Article  21  Charter  when  supporting  the  legality 
of  a  legislative  proposal  that  would  ensure  access  to 
employment for disabled persons in the private sector.26

The  Charter  is  referred  by  NHRBs  not  only  in  relation 
to  domestic  legislative  drafting,  but  also  in  relation 
to  EU  legislation  drafting.  The  German  Federal  Anti-
Discrimination Agency persuaded the German authorities 
to change their persistent position of blocking a proposal 
for  a  horizontal  anti-discrimination  Directive  that  was 
long time pending in the Council.27

The Charter is used by the NHRBs also with the view of 
preventing future violation of fundamental rights by the 
law  that  is  under  negotiation  (cases  where  the  NHRBs 
are  involved  in  a  consultative  role  during  legislative  or 
policy enactment). For instance, the Polish Human Rights  
Defender  advised  the  government  on  the  basis  of  the 
Charter in relation to age discrimination, gender equality, 
rights of persons with disabilities and data protection.

1.  The  Charter  as  (legal)  tool  to  trigger 
domestic legislative change
The Survey showed that the NHRBs include the Charter 
in  various  types  of  opinions  regarding  legislative  or 
policy drafting.

Interesting  examples  were  provided  from  Romania 
and Spain. The Spanish Council of Elimination of Racial 
and  Ethnic  Discrimination  succeeded  to  convince  the 
legislator  to  include  ‘illness’  into  the  discrimination 
factors which are now considered aggravating factors in 
the Spanish Criminal Code.24 

22 
 Results presented on the basis of the data reported by the 
NHRBs following the CharterClick! Survey and during the Charter-
Click! Workshop on the Application of the EU Charter by NHRBs.

23 
and are available in the Project’s Database.

 Information-notes were prepared for some of these cases 

March 2016.

25 
  See  Opinion  n°15-17/23  June  2015  delivered  on  the  Bill 
on  the  law  on  foreign  nationals  in  France,  adopted  by  the  Council 
of Ministers on 30 July 2014 and amended by the National Assembly 
a  year  later.  Case  note  available  in  the  CharterClick!  Database.  The 
French Defender of Rights suggested improvements as regards: sim-
plified/fast-track  granting  of  French  nationality,  residency  permits 
and family reunification to some foreign nationals.

 The proposal mentioned that certain number of work plac-
26 
es should be reserved to disabled persons. HALDE recalled that the 
principle of equal treatment in employment with regard to disabled 
persons  thus  supposed  that  facilities  be  put  in  place  by  employers 
in order to provide access to employment. The High Authority stat-
ed  that  said  obligation  was  not  intended  to  favour  one  person  over 
another on the basis of their disability, but rather to compensate for 
the inequality induced by that disability by making available those fa-
cilities necessary to guarantee equal treatment. For more details, see 
Case note of the Opinion delivered by the High Authority on access 
to employment for disabled persons in the private sector in light of 
the principles of equal treatment and non-discrimination, 2010-126, 
18/04/2011, available in the CharterClick! Database.

24 
 As mentioned by Pablo Lopez Pietsch, Adjunct Director of 
the  Council  for  the  Elimination  of  Racial  or  Ethnic  Discrimination 
of Spain during the CharterClick! Workshop held at the EUI on 18 

27 
 Case mentioned by Zuzana Dorazilova, from the European 
Commission, during the CharterClick! Workshop held at the EUI on 
18 March 2016.

16

2.  The  Charter  as  a  parameter  of  validity 
for EU secondary legislation
The  use  of  the  Charter  as  a  parameter  of  validity  for 
EU  secondary  legislation  is  not  very  common  in  the 
practice of the NHRBs. However, interesting practice was 
provided by the Polish Human Rights Commissioner and 
the Finnish Ombudsman.  

•  RPO case - Polish Human Rights Commissioner

On 7 July 2015, the Polish Constitutional Tribunal sent its 
first preliminary ruling to the CJEU based on questions 
submitted by the Polish Human Rights Commissioner (HRs 
Commissioner),  challenging  the  constitutionality  of  a 
national legislation which determined that the electronic 
editions of books should be taxed according to the basic 
rate of 23% rather than 5 or 8% as in the case of printed 
books. The  HRs  Commissioner  pointed  to  the  fact  that 
the matter concerned the incompatibility of EU Directive 
2006/112/EC28 with Article 20 Charter and the EU general 
principle of equality, and not just the incompatibility of 
the Polish transposing  provisions with the  Constitution 
and the Charter. The HRs Commissioner suggested to the 
Polish  Constitutional  Tribunal  to  request  a  preliminary 
ruling  from  the  CJEU.  As  a  result,  the  Constitutional 
Tribunal,  for  the  first  time  in  the  history  of  the  Polish 
membership in the EU, filed two preliminary questions to 
the CJEU, indicating in the second one that there might 
be an incompatibility between Article 20 Charter and the 
EU Directive 2006/112/EC.29

3. The Charter as a parameter of legality of 
national legislation
An  interesting  case  of  ensuring  compliance  of  EU 
secondary 
law  with  the  Charter  comes  from  the 
practice of the  Finnish  Ombudsman.30 The latter argued 
that  numerous  EU  citizens  lost  their  right  to  vote  in 
the  elections  of  the  European  Parliament  due  to  the 
transposition  of  Council  Directive  93/109/EC  into  the 
Finish Electoral Act. In order to be able to vote, citizens 
had  to  inform  their  former  country  of  residence  that 
they wish to exercise their right to vote for the elections 
of  the  European  Parliament  in  their  current  country  of 
residence. The aim of the provision was to prevent people 
from  voting  or  standing  as  candidates  in  more  than 
one  Member  State  during  the  same  election.  However, 
the  complainant  had  not  been  aware  of  this  practice. 
According to the decision of the Deputy of the Finnish 
Ombudsman,  the  existing  practice  which  required 
citizens  to  inform  their  former  country  of  residence 

28 
the common system of value added tax, OJ L 347/1, 11.12.2006.

 Council Directive 2006/112/EC of 28 November 2006  on 

29 
 C-390/15, RPO, the case was still pending before the CJEU 
on  25th  of  October  2016  (the  Opinion  of  the  Advocate  General  is 
available, ECLI:EU:C:2016:664)

30 
ondary provision at issue.

 The case did not though lead to invalidation of the EU sec-

17

about  their  wish  to  vote  in  their  current  country  of 
residence  may  result  in  EU  citizens  being  deprived  of 
their fundamental right to vote in EU elections, as citizens 
may not be aware of this obligation. In her decision, the 
Deputy-Ombudsperson  referred  to  Articles  21  (Non-
discrimination) and 39 (Right to vote and to stand as a 
candidate at elections to the European Parliament) of the 
Charter, together with the Treaty on European Union and 
the Treaty on the Functioning of the European Union, the 
First  Protocol  to  the  European  Convention  on  Human 
Rights, the International Covenant on Civil and Political 
Rights, and the Constitution of Finland. 

The  Deputy  Ombudsperson  stated  that,  in  order  to 
protect  citizens’  voting  rights,  Finland  should  aim  to 
influence  the  prevailing  legislation  and  practices  at  EU 
level. However, due to processes being slow at EU level, 
the Deputy-Ombudsperson affirmed that the Ministry of 
Justice and the Population Register Centre should ensure 
before  the  2014  European  Parliament  elections  that  EU 
citizens receive appropriate and adequate information on 
the principles on which their right to vote is based and on 
exercising that right as well as the procedure followed in 
elections held in Finland. As of March 2016, the Ministry 
of  Justice  of  Finland  has  made  some  progress  in  the 
information  of  the  voting  rights  of  EU  citizens,  but  the 
legislation remains unchanged.31

4. The Charter as tool for changing practices 
of  public  authorities  and  private  parties 
contrary to HRs
NHRBs  play  an  essential  role  in  delivering  equality  in 
Europe,  as  proven  by  several  ground-breaking  cases  on 
combating discrimination pursued by NHRBs. 

For instance, a successful case defended by the ASGI on the 
basis of the Charter relates to the Italian legislation which 
limited the maternity indemnity to women in possession 
of  a  long  term  residence  permit.  ASGI  convinced  the 
Italian  judiciary  that  women  with  shorter  stay  permits 
should also benefit from the indemnity based on Article 
21 of the Charter. Within the Italian legal order, Article 21 
Charter permits the national court to directly disapply the 
national legislation, while the same is not possible based 
on Article 14 ECHR. Therefore the above mentioned case 
is significant also because it shows the added value of the 
EU Charter at domestic level vis-à-vis the ECHR. 

Additionally, the Charter was used by ASGI as a validity 
tool  for  practices  of  private  companies,  achieving  a 
change in practice without the cases reaching the courts. 
This  was  the  case  in  the  practice  of  certain  insurance 
companies which had different prices for self-insurances 
based on citizenship.32 

31 
 The case was mentioned Hanna Rönty, Human Rights Cen-
tre  and  Ombudsman,  Finland  during  the  CharterClick!  Workshop 
held at the EUI on 18 March 2016.

32 

 Case mentioned by Simonetta Furlan, Lawyer member of 

A similar case which did not reach the courts (because 
it  was  settled  based  on  negotiations  between  the  ASGI 
representing the victims and private bodies), concerned 
the  differentiations  made  by  Italian  bodies  connected 
with  banks  in  regard  to  the  possibility  of  providing 
grants  to  students  to  go  abroad  for  education  purposes 
or  following  an  internship.  These  grants  were  given 
only  to  Italian  citizens.  In  that  situation,  ASGI  wrote 
a  recommendation  to  the  banks,  the  Italian  anti-
discrimination  body,  and  the  European  Commission 
complaining  of  the  discriminatory  practice.  Following 
this initiative, the banks changed their practice.33 

Important contributions have been made by the NHRBs 
in  the  field  of  promoting  equality  and  prohibition  of 
discrimination. In the field of prohibition of discrimination 
based  on  ethnic  origin,  the  CJEU  decided  its  first  case 
on  this  ground  of  discrimination  following  the  actions 
started  by  the  Bulgarian  equality  body34  in  relation  to 
the practice of a Bulgarian energy company, which was 
indirectly  discriminatory  to  the  Roma  community.  The 
Charter  and  the  Race  Equality  Directive  were  central 
in  the  legal  reasoning  of  the  Bulgarian  Commission  for 
Protection  against  Discrimination.  The  requests  of  the 
Bulgarian equality body for preliminary questions to be 
sent to the CJEU were rejected on several occasions by 
the supreme administrative court of Bulgaria. In the face 
of  this  court’s  persistent  refusal,  the  Bulgarian  equality 
body  sent  itself  a  preliminary  reference  to  the  CJEU, 
which was, as expected, rejected as inadmissible by the 
CJEU.35 

A similar case was later brought before an administrative 
court by the Bulgarian Commission for Protection against 
Discrimination,  and  this  time  a  lower  administrative 
court decided to request a preliminary ruling (C-83/14),36 
and gave the opportunity to the CJEU to clarify salient 
issues concerning the application of the principle of non-
discrimination based on ethnic origin. The CJEU clarified 
that Roma community falls under the protected ground 
of  ‘ethnic  origin’  and  that  ‘indirect  discrimination’  can 
occur by association, and does not need to target directly 
the protected community.37

the Associazione per gli studi giuridici sull’ímmigrazione (ASGI), It-
aly during the CharterClick! Workshop held at the EUI on 18 March 
2016, and available also in the CharterClick! Database.

33 
 Case mentioned by Simonetta Furlan, Lawyer member of 
the Associazione per gli studi giuridici sull’ímmigrazione (ASGI), It-
aly during the CharterClick! Workshop held at the EUI on 18 March 
2016.

34 
tion.

 Bulgarian Commission for Protection against Discrimina-

35 
  See  Case  C-394/11,  Belov,  order  for  lack  of  jurisdiction 
since the Bulgarian equality body, although a quasi-judicial body, is 
not a ‘court’ within the meaning of Article 267 TFEU.

36 

 Case C-83/14, CHEZ, ECLI:EU:C:2015:480.
37 
 The case is known as CHEZ and is commented in the Prac-
tical Guidelines on the use of the EU Charter – functions, achievements, 
added value compared to other human rights instruments, p.36.

Important  contributions  were  made  by  NHRBs  also 
in  other  fields  of  equality  (e.g.  sexual  orientation  – 
ACCEPT38), whereby national legislation were amended 
following litigation started or continued by NHRBs.39

In  the  field  of  migration,  the  UK  Equality  and  Human 
Rights  Commission  achieved  an  important  result  as 
regards the scope of application of the Charter in the UK, 
with  repercussions  also  in  Poland,40  and  a  clarification 
as  regards  the  Member  States’  obligations  under  the 
Charter when acting under derogations provided by EU 
secondary legislation. 

The  Commission  intervened  in  the  NS  v  SSHD  before 
the UK Court of Appeal, concerning the removal of an 
Afghan  asylum  seeker  from  the  UK  to  Greece  under 
Dublin II Regulation.41 The purpose of the Commission’s 
intervention was to ensure the correct interpretation of 
the  EU  Charter  of  Fundamental  Rights  and  the  related 
UK Protocol when EU law is being applied in the UK.

The intervention of the Commission had positive results 
in relation to the application of the EU Charter. Following 
the  intervention  of  the  Commission,  the  UK  Court  of 
Appeal  decided  to  address  preliminary  questions  to 
the  CJEU  with  relevance  for  the  application  of  the  EU 
Charter.42  The  CJEU  clarified  that  the  Charter  binding 
instrument for the UK. Secondly, the CJEU clarified its 
scope  of  application  when  Member  States  act  within 
the  limits  of  derogation  permitted  by  EU  secondary 
legislation. Prior to this case, the UK Secretary of State 
conceded  that  the  fundamental  rights  set  out  in  the 
Charter  could  not  be  relied  on  as  against  the  United 
Kingdom  and  that  the  Charter  did  not  create  any  new 
rights. The CJEU ruled that the Charter applies to the UK 
and confirmed that the purpose of the Protocol was not 
to exempt the UK from its obligations under the Charter. 
It  also  confirmed  that  Member  States  are  obliged  to 

38 

 Case C-81/12, ACCEPT, ECLI:EU:C:2013:275.
39 
 Romania/Law 189/2013 for the ratification of Emergency 
Ordinance 19/2013 for the amendment of the Government Ordinance 
137/2000 regarding the prevention and the punishment of all forms of 
discrimination (25.06.2013). The statutory limitation whereby the Na-
tional Council for Combating Discrimination could issue a fine only 
if the complaint was introduced within 6 months was eliminated. It 
was  replaced  with  a  prescription  time  of  6  months  for  applying  an 
administrative fine starting from the date when the NCCD issued its 
decision. (see Article 26(4) Governmental Ordinance 137/2000)

40 
 UK and Poland are parties to Protocol (No.30) of the ap-
plication of the  EU Charter of Fundamental Rights of the European 
Union  to  UK  and  Poland.  Article  2  provides  that  to  the  extent  the 
Charter refers to national law, it shall only apply to the extent that the 
rights or principles it provides are recognised in Polish or UK law. The 
Protocol was interpreted by domestic administration and certain na-
tional courts as constituting a general opt-out from the Charter for the 
UK  or  Poland,  making  its  provisions  inapplicable  in  those  Member 
States.

41 
 The case is commented in Practical Guidelines on the use 
of the EU Charter – functions, achievements, added value compared to 
other human rights instruments, p.36.

42 

 C-411/10, N.S. and others, ECLI:EU:C:2011:865.

18

respect  the  provisions  of  the  Charter  even  when  acting 
within the limits of allowed derogatory action, as long as 
their decisions impact on the application of the relevant 
EU secondary legislation instrument.

Interesting practice in the field of migration was reported 
by the Médiateur federal of Belgium. The Médiateur held 
that the closed centre receptions of aliens were contrary 
to: 1) Articles 7, 24, 10 and 14 Charter given the limited 
activities permitted to the asylum seekers, the small places 
that they were place, and lack of privacy for the family; 
and 2) Article 47 Charter, as regards access to social and 
legal aid for those in the Centre. The Médiateur’s Report 
outlining  these  fundamental  rights  violations  in  the 
Centre  led  to  the  speeding  up  of  the  creation  of  a  new 
Centre by the government. 

Another  salient  string  of  cases  where  Belgian  NHRBs 
aimed  at  changing  the  administrative  practice  based 
on  the  Charter  concern  the  administrative  practice  of 
refusing access to social benefits and residence in open 
centres  to  irregular  migrants.  These  cases  reached  the 
Labour Tribunals in Belgium, and ultimately the Labour 
Tribunal  of  Brussels  referred  a  preliminary  reference  to 
the  CJEU  following  the  involvement  of  local  NHRBs.43 
In the Abdida case, the Brussels Labour court asked the 
CJEU  whether  the  appeal  against  a  refusal  of  a  permit 
to  stay  for  medical  reasons  has  a  suspensive  effect;  and 
whether a seriously ill foreigner retains his/her right to 
medical  and  social  assistance  during  the  examination 
of  his/her  appeal  against  a  refusal  of  a  permit  to  stay. 
Following  the  positive  answer  of  the  CJEU,  various 
cases  emanating  from  Belgian  Labour  Tribunals  held 
that seriously ill foreigners retained their right to social 
assistance  pending  the  examination  of  their  appeal  as 
well  as  during  the  postponement  or  suspension  of  the 
return/removal of the TCN.

43 

 Case C-562/13, Abdida, ECLI:EU:C:2014:2453.

19

IV. CONCLUSIONS

28 NHRBs from 19 Member States have participated in 
the CharterClick! Survey. Their mandate varies, ranging 
from: equality body (6); ombudsman (9); data protection 
authority  (1);  human  rights  body  (2);  commission  (8); 
chancellor of justice (2). It resulted that the most commonly 
performed  activities  of  the  respondents  are:  complaints 
processing; awareness raising; and advisory role for the 
government.  While  decisions  issued  by  equality  bodies 
are  mostly  binding,  those  of  the  ombudspersons  are 
generally  advisory.  All  decisions  are  however  subject 
to a form of appeal. In case no appeal is lodged against 
their  decisions,  equality  bodies  can  end  the  litigation 
without the need to follow court procedures. According 
to  the  replies  provided  by  the  NHRBs,  there  seems  to 
be  an  equal  distribution  among  the  various  roles  that 
they  perform  (legal  representative/  initiator  of  judicial 
proceedings,  amicus  curiae,  other),  without  one  clearly 
being predominant.

The  data  gathered  confirms  previous  findings  that  the 
Charter is not usually relied as the primary instrument of 
reference for human rights, but rather invoked together 
with  other  national,  European  or  international  legal 
instruments, and rarely alone. Noteworthy is the fact that 
among the various supranational legal instruments, the 
Charter is not invoked as the first instrument on human 
rights. It was mentioned that one of the challenges often 
faced by NHRBs in the application of the Charter is the 
difficulty of integrating it into an already “crowded” space 
of  international  and  domestic  legal  norms  establishing 
fundamental  and  human  rights.    The  partial  overlap  of 
the  Charter  with  other  national  and  European  human 
rights instruments, coupled with the unawareness of the 
added value of the Charter and limited human resources 
of the NHRBs contributed to the current specific use of 
the  Charter  as  a  supporting  document,  rather  than  the 
primary instrument of reference for fundamental rights. 
However, there are several NHRBs who are considering 
the  Charter  independently/separately  of  other  human 
right instruments. Independent reference to the Charter 
is  recently  increasing,  especially  in  the  field  of  social 

rights, since the Charter, unlike the ECHR, includes also 
economic and social rights.44

One  of  the  main  roles  of  the  Charter  in  the  activities 
of  the  NHRBs  was  that  of  ensuring  that  domestic 
legislation  complies  with  the  Charter  both  pre-  and 
post-enactment. Equality bodies were mentioned as the 
ones who commonly refer to the Charter; Commissions 
deal  preponderantly  with  the  Charter  when  addressing 
complaints 
authorities;  while 
national 
Ombudsmen  refer  to  the  Charter  when  fulfilling  their 
consultative  role  to  the  legislature  and  administrative 
branches. 

against 

During the pre-legislative enactment phase, the  Charter 
is commonly used as a preventive, and mediatory tool for 
the  promotion  of  human  rights.  Several  good  practice 
examples of referring to the Charter were mentioned by 
the NHRBs in the exercise of their advisory competences. 
The survey shows that the NHRBs include the Charter in 
opinions,  comments  on  legislative  proposals  or  human 
rights impact assessments of proposed legislation. Good 
examples  come  from  the  Belgian  Federal  Ombudsman, 
French  Defender  of  Rights,  Portugal  High  Commission 
for  Migration,  Swedish  Data  Protection  Authority,  and 
the  Slovak  National  Centre  for  Human  Rights.  All  these 
cases  underline  the  importance  of  mainstreaming  the 
Charter at the incipient stage of policy making, especially 
where the national legislation is to implement, transpose 
or  overlap  with  an  EU  law.  In  this  sense,  a  thorough 
mainstreaming  of  the  Charter  at  the  very  early  stages 
of  the  legislature’s  decision-making  was  indicated  as 
achieving the following goals: 1) facilitating a preventive 
approach  to  fundamental  rights  protection;  2)  limiting 
occurrence  of  subsequent  human  rights  violations;  and 

44 
 The European Social Charter (ESC), as counter-part to the 
ECHR  (which  refers  to  civil  and  political  rights),  is  the  most  com-
prehensive treaty on social and economic rights in the pan-Europe-
an area. Most of the social rights in the EU Charter of Fundamental 
Rights are based on the relevant articles of the ESC. However, given 
the clear lack of uniformity in the acceptance of the ESC’s provisions 
by  the  EU  member  states,  the  EU  Charter’s  corresponding  social 
rights, whose implementation is scrutinised by the European Com-
mission and the CJEU, present a clear added value compared to the 
ESC.

20

3) ultimately decreasing the instances of post-enactment 
intervention of NHRBs through complaint(s) resolution.

During the post-legislative enactment phase, it seems the 
Charter is mostly used for the purpose(s) of: 1) ensuring 
human  rights  compliance  of  national  legislation;  2) 
bringing  administrative  practice  in  conformity  with 
human  rights;  3)  interpreting  national  human  rights 
standards  in  light  of  the  European  standards;  and  4) 
occasionally ensuring legality of EU secondary legislation.

Several  good  practice  cases  where  the  Charter  was 
used  by  the  NHRBs  to  reinforce  human  rights  at  both 
national and EU level were reported by the participating 
NHRBs. In a first string of cases the Charter was used as 
a  standard  of  review  of  EU  secondary  legislation:  Test-
Achats, Digital Rights Ireland, and the RPO case.45 In the 
first two cases, the CJEU invalidated EU secondary legal 
provisions on the basis of the Charter. In the RPO case, 
the  Polish  Constitutional  Tribunal    addressed  it  sfirst 
preliminary reference to the CJEU, following the request 
of the Office of the Human Rights Commissioner of Poland. 
All  these  cases  ultimately  reached  the  CJEU  following 
the  initiatives  of  NHRBs  questioning  the  compatibility 
of national provisions, which transposed EU secondary 
legislation, with the provisions of the Charter. 

The  Test  Achats  case  was  initiated  by  the  Belgian 
Association  of  Consumer  Protection,  which  brought  an 
action  to  declare  unlawful  a  domestic  law  that  allowed 
insurers  to  take  a  person’s  gender  into  account  in  the 
calculation  of  premiums  and  benefits  in  life  insurance. 
The  Belgian  Law  transposed  Directive  2004/113  on 
the  implementation  of  the  principle  of  equal  treatment 
between men and women. Therefore the Belgian NHRB 
was  raising  concerns  as  regards  the  compatibility  of  a 
provision from the Gender Directive with Articles 21 and 
23  Charter.  The  CJEU  agreed  with  the  approach  of  the 
Belgian NHRB and invalidated that specific provision.

Digital Rights Ireland is another landmark case initiated 
by  the  civil  society,  which  ultimately  led  to  the  CJEU 
finding the Data Retention Directive to be entirely invalid 
due  its  disproportionate  interference  with  the  rights  to 
data protection and privacy.

A  more  recent  case  was  reported  by  the  Polish  Human 
Rights  Commissioner  concerning  the  compatibility  of 
the  VAT  Directive  with  Article  20  of  the  Charter.  This 
case  is  furthermore  important  due  to  the  fact  of  being 
the  first  preliminary  reference  addressed  by  the  Polish 
Constitutional Tribunal to the CJEU (C-390/15).

The Charter has also been used as parameter of legality 
for the national legislation and practice, which ultimately 
led to enhancing the level of human rights protection at 
the national level. A case which has gained constitutional 
importance is the N.S. and others case. Following the N.S. 
case, which case initiated by the UK Equality and Human 

Rights  Commission,  Poland  and  the  UK  can  no  longer 
resort to Protocol 30 as a justification for not complying 
with the Charter. The CJEU made clear that the Charter 
covers both cases where Member States ‘implement’ and 
‘derogate’ from EU law.

Another case where the Charter was used by a NHRB as a 
standard of review of national legislation and enhancing 
domestic human rights protection is the Benkharbouche 
case.46 The UK Equality and Human Rights Commission 
intervened in favour of the applicants, foreigners working 
in  embassies  of  their  third  countries  based  in  London, 
who complained of unfair dismissal, failure to be paid the 
minimum wage, harassment and racial discrimination in 
breach of the Working Time Regulations 1998 and, inter 
alia,  Articles  6  and  13  ECHR,  and  Article  47  Charter. 
It was argued that the UK State Immunity Act violated 
the  ECHR  and  Charter  based  fair  trial  and  effective 
remedy rights of third country nationals working in the 
embassies of their countries based in London. This case 
also shows the added value of the Charter vis-à-vis the 
ECHR,  which  in  certain  jurisdictions  has  more  limited 
effects than the Charter (e.g. statutory limitation applies 
to the ECHR, but not to the Charter within the specific 
UK legal context;47 similarly Germany). 

There is considerable potential for the Charter in relation 
to  filling  gaps  in  the  protection  of  human  rights  at 
domestic  level.  Certain  human  rights,  such  as  human 
dignity  or  effective  judicial  protection,  might  be  better 
protected  under  the  Charter  than  under  the  ECHR. 
That  was  one  of  the  arguments  of  the  UK  Equality 
Commission’s intervention in the N.S. and others case or 
the  case  in  Benkharbouche.  Furthermore,  certain  social 
and economic rights might not be expressly protected at 
national  level,  while  the  Charter  includes  social  rights, 
which  can  be  used  to  either  fill  the  gap  at  domestic 
constitutional  level,  or  used  as  standard  for  updating 
the interpretation of constitutional provisions on social 
protection (e.g. Romanian Constitutional Court case on 
collective redundancies48).

Although there is still a modest usage of the Charter by 
the  NHRBs,  there  has  been  an  increase  in  cases  where 
the NHRBs invoke ex officio the Charter. It is interesting 
to  note  that  the  Charter  has  at  times  been  used  by  the 
NHRB(s) in order to achieve a certain strategic outcome. 
For  instance,  to  help  solve  conflicting  interpretations 
between  various  state  authorities;  as  a  last  resort  to 
remedy 
legislation 
with  fundamental  rights;  to  change  social  or  economic 
policies; or adjust systemic deficiencies in the treatment of 

incompatibility  of  EU/national 

46 
Appeal, [2015] EWCA Civ 33.

  Benkharbouche  v  Sudan  and  Janah  v  Libya,  UK  Court  of 

 UK courts cannot disapply national legislation on the basis 
47 
of the ECHR, since according to section 3 of the Human Rights Act, 
the amendment of incompatible statutory provisions is the preroga-
tive of the legislature.

45 

 Case C-390/15.

48 

 Decision No. 64/2015 of 24 February 2015.

21

to understand; 2) an overcrowded human rights context; 
3) limited visibility and lack of relevant public awareness; 
4)  linguistic  and  time  constraints;  5)  limited  financial 
resources of the NHRBs. These reasons were invoked also 
as  possible  obstacles  to  the  future  development  of  the 
application of the Charter across various fields. 

Solutions  were  suggested  by  the  participating  NHRBs, 
such as: more awareness raising among the public; new 
tools for the improvement of the practitioners’ knowledge 
about the Charter, its possible legal functions and added 
value compared to other human rights instruments. 

It is recommended that a thorough institutional planning 
on  the  use  and  reference  of  the  Charter  is  endorsed  by 
NHRBs,  for  the  purpose  of  ensuring  its  meaningful 
application  in  their  day-to-day  work.  Best  practice 
examples  were  submitted  by  NHRBs:  adoption  of  a 
formal  internal  decision  inviting  to  an  increased  use  of 
the  Charter  (Greece);  the  inclusion  of  the  Charter  in 
the internal institutional databases to facilitate access to 
prior  cases  that  dealt  with  the  Charter  and  monitoring 
of  the  CJEU  case  law  on  the  Charter  (Belgian  Federal 
Ombudsman);  planning  of  systemic  references  to  the 
Charter  in  annual  activity  reports  (Belgian  Federal 
Ombudsman,  Romanian  Council 
for  Combating 
Discrimination).  All  these  examples  underline  that 
the  institutional  commitment  to  use  the  Charter  in  the 
NHRBs’ work is highly important for its effective use. 

certain communities which have long been discriminated 
against. The Belov and CHEZ cases revealed the persistent 
discriminatory  treatment  of  Roma  communities  in 
certain  Bulgarian  regions  and  the  strategic  role  played 
by  the  Bulgarian  equality  body,49  which  sought  the  help 
of  the  CJEU  to  remedy  this  situation  on  the  basis  of 
EU  instruments  (the  Race  Equality  Directive  and  EU 
Charter).  The  Danish  Board  of  Equal  Treatment  has 
commonly  referred  to  the  Charter  particularly  in  cases 
based on discrimination related to pregnancy. The Finish 
Ombudsman  carried  out  wide  spread  awareness  raising 
campaigns  regarding  the  citizen’s  obligation  to  inform 
the former country of residence that they wish to exercise 
their  right  to  vote  for  European  Parliament  elections 
in  their  current  country  of  residence.  The  Swedish 
Equality Body is supporting litigation on discrimination 
based on harassment between co-workers due to sexual 
orientation,  for  the  purpose  of  amending  the  Swedish 
legislation  which  prohibits  this  type  of  harassment 
only  in  vertical  work  relations.  Noteworthy,  the  CJEU 
jurisprudence related to the interpretation of the Charter, 
and the preliminary reference procedure have been used/
relied on by NHRBs in their strategic litigation plan.

It  should  be  remarked  that  some  of  the  NHRBs  openly 
recognised  that  they  are  actively  focusing  on  the 
identification of grave or systemic deficiencies of human 
rights  protection  and  on  highlighting  human  rights 
issues that have to be given more attention, especially in 
relation with vulnerable groups, such as refugees, women 
refugees,  unaccompanied  minors,  irregular  migrants, 
LGBT people, victims of hate crime or discrimination or 
gender  violence  etc.  (e.g. Office  of  the  Commissioner  for 
Administration  and  Human  Rights  of  Cyprus).  It  seems 
that  the  Charter  is  gradually  making  its  way  into  the 
NHRBs’ strategic litigation methodology.

Some  of  the  landmark  cases  submitted  by  the  NHRBs 
show the added value of the Charter compared to other 
human rights instruments, which is an essential aspect of 
the Charter within the context of multilevel human rights 
protection  in  Europe.  The  Benkharbouche  case  showed 
that the potentially more limited scope of Article 6 ECHR 
can be compensated by the broader scope of Article 47 
Charter.  Additionally,  the  reference  to  Article  47  of  the 
Charter allowed to overcome the procedural limitations 
of remedies for violation of human rights within the UK 
human  rights  setting  (existing  also  in  other  domestic 
jurisdictions).  Notably,  the  Charter  allows  a  direct 
disapplication  of  national  statutes,  which  in  certain 
domestic jurisdictions cannot be done on the basis of the 
ECHR (e.g. Germany, Italy, and UK).

According  to  the  CharterClick!  Survey,  the  possible 
reasons  for  the  limited  use  of  the  EU  Charter  by  the 
NHRBs in their daily activities can be, inter alia: 1) the 
fact that the scope of application of the Charter is difficult 

49 
Discrimination.

 It full name is Bulgarian Commission for Protection against 

22

V. PRACTICAL 
GUIDELINES 
ON THE USE OF 
THE CHARTER 
– MULTIPLE 
FUNCTIONS  AND 
ADDED VALUE 
COMPARED 
TO OTHER 
HUMAN RIGHTS 
INSTRUMENTS

1.  Introduction
The  2015  Eurobarometer  revealed  that  35%  of  the 
respondents did not hear of the Charter, while 53% have 
heard of it, but they did not know very much about its 
contents and role. Thus, there is a strong need of raising 
awareness of the Charter in the different Member States. 
The  survey  carried  out  by  the  CharterClick  project 
among  the  NHRBs  confirms  to  a  certain  extent  the 
aforementioned conclusion of the necessity of investing 
more in raising awareness of the added value role of the 
Charter  compared  to  the  other  partially  overlapping 
regional and national human rights instruments. 

It  should  be  recalled  that  the  Charter  enjoys  primacy 
in the hierarchy of Union law sources. Hence, NHRBss 
should interpret the national applicable law falling within 
the scope of EU law in the light of both the Charter, and 
the related case law of the Court of Justice of the European 
Union.  The  NHRBs  can  play  a  major  role  in  ensuring 
the  application  of  the  Charter  due  to  their  mandate  of 
detecting  violations  of  fundamental  rights,  and  thus 

23

could act as the gateway for ensuring the application of 
the  Charter.  In  order  to  enhance  the  application  of  the 
Charter,  this  section  aims  at  highlighting  the  possible 
added  value  of  the  Charter,  by  outlining  the  multiple 
legal functions the Charter can play in practice, namely: 

•  mainstreaming  the  Charter  in  the  EU  and  national 

legislative process; 

• 

• 

• 

• 

• 

• 

the Charter as parameter of validity of EU secondary 
legislation;

 the Charter as an interpretative tool of EU legislation 
and national measures implementing it; 

the Charter a parameter of compatibility of national 
measures implementing EU law;

the Charter as entrance door for Directives in private 
parties relations/litigation.

the Charter as an instrument for strategic litigation;

the  Charter  as  an  instrument  for  filling  gaps  and 
raising standards of protection of fundamental rights 
at national level.

Before  assessing  the  various  possible  roles  the  Charter 
can  play,  it  is  useful  to  clarify  two  more  general  issues 
regarding  its  application,  namely:  1)  whether  there  is 
a  difference  between  “Charter  rights”  and  “Charter 
principles”; and 2) the relation between Charter rights and 
general principles of EU law as sources of fundamental 
rights. The divergent practice of certain NHRBs but also 
of certain national judiciaries regarding the legal nature 
of certain Charter “right” and “principles” (e.g. right to 
asylum,  right  to  good  administration,  best  interests  of 
children, workers’ right to information and consultation 
within the undertaking) calls for this initial clarification.

1.  Charter  rights  v  Charter  principles  –  It  should  be 
noted  that  the  Charter  contains  both  rights”  and 
“principles”.  According  to  Article  51(1)  Charter, 
the  rights  shall  be  “respected”,  whereas  “principles” 
shall  be  observed.  Article  52(5)  Charter  provides 
that  principles  should  inform  the  positive  actions 
of the EU institutions and the Member States when 
implementing EU law. While a right can usually have 
direct effect in national proceedings and be the legal 

basis for disapplication of national legal provisions or 
annulling  practice(s)  of  public  authorities,  Charter 
principles cannot. In the case of Charter principles, it is 
generally held that further action is needed by the EU 
legislator to transform the principle into a defined legal 
right (Advocate General Villalon in AMS50); note that 
there is no exhaustive list provided by the Charter of 
the Explanations mentioning which Articles include 
“principles”, and which the “rights”. The Explanations 
to  Article  52(2)  EU  Charter  only  give  examples  of 
Charter “principles”, such as: Articles 25 (Rights of the 
elderly),  26  (Integration  of  people  with  disabilities), 
and  37  (protection  of  the  environment).  The  same 
explanation also adds that ‘in some cases, an Article 
of the Charter may contain both elements of a “right” 
and of a “principle”, as in the case of Articles 23, 33 
and  34’.  The  label  of  “right”  v  “principle”,  with  the 
ensuing lack of direct effect, is not to be determined 
solely on the basis of the title or content of the Charter 
Article. Advocate General Cruz Villalón remarked in 
his Opinion in AMS that Article 27 (Workers’ right to 
information and consultation within the undertaking), 
as a social right, was a “right” by virtue of its subject 
matter,  and  a  “principle”  by  virtue  of  its  operation 
(para. 45). For instance, although Article 21 Charter 
is entitled the ‘principle of non-discrimination’, it can 
have,  according  to  the  settled  case  law  of  the  CJEU 
jurisprudence, direct effect.51 

individual 

The  CJEU  clarified  in  Glatzel52  the  distinctions 
and  programmatic 
rights 
between 
principles.  The  CJEU  was  asked,  via  a  preliminary 
reference, whether the physical conditions imposed by 
Directive 2006/126/EC on driving motor vehicles are 
contrary to the principle of equal treatment (Article 
20 EU Charter), the principle of non-discrimination 
(Article  21  EU  Charter)  and  the  principle  of 
integrating  persons  with  disabilities  (Article  26  EU 
Charter). While all three Charter Articles are entitled 
‘principles’, only the first two are precise and concrete 
enough  to  have  direct  effect.  The  CJEU  categorised 

50 
 Case C-176/12, AMS, ECLI:EU:C:2014:2, paras. 50-51. The 
CJEU held that Article 27 Charter lacked direct effect and could not 
enjoy horizontal direct effect. Namely it could not be invoked in com-
bination with Article 3(1) of Directive 2002/14 establishing a frame-
work for informing and consulting employees in the EU, as legal ba-
sis for the invalidity of the challenged Belgian legal provisions which 
excluded from the calculation of staff number in the undertaking, a 
certain category of employees, leading thus to the exclusion of the un-
dertaking from representation in the trade union.

51 
  In  Baumbast  (Case  C-413/99),  the  CJEU  confirmed  the 
direct effect of the EU Treaty based principle of non-discrimination 
(current Article 21 TFEU), which has similar content to Article 21 EU 
Charter;  in  Kücükdeveci  (Case  C-555/07),  the  CJEU  confirmed  the 
direct effect of the general principle of EU law of non-discrimination, 
which has similar content to the Charter based principle of non-dis-
crimination. In Glatzel (, the CJEU confirmed the direct effect of the 
principle of non-discrimination.

52 

 C-356/12, Glatzel, ECLI:EU:C:2014:350.

24

Article  26  as  a  programmatic  principle,  since  ‘in 
order for that article to be fully effective, it must be 
given more specific expression in EU law or national 
law’ (para. 78).53 

The yardstick used by the CJEU to establish whether 
a Charter provision established a directly effective or 
a  programmatic  principle  is  whether  the  provision 
depends  upon  further  concretisation  in  laws,  and 
whether  it  endows  an  individual  with  a  subjective 
entitlement or claim or specifically stipulate clear-cut 
obligations towards an individual. It should be noted 
that,  once  programmatic  principles  are  sufficiently 
detailed  in  EU  legislation,  they  can  perform  the 
function of validity check with respect to national acts 
adopted in order to implement that EU legislation. For 
instance, Article 27 Charter, although it lacks direct 
effect (see AMS judgment), if invoked in combination 
with EU secondary provisions which are sufficiently 
precise, direct and unconditional can be the basis for 
disapplication  of  conflicting  national  legislation  or 
practice in public-private litigation. The only salient 
limitations  of  Charter  provisions,  which  lack  direct 
effect,  is  that  in  combination  with  EU  secondary 
legislative provisions which also lack preciseness and 
are conditioned by further legislation, such provisions 
cannot be the legal basis for disapplication of national 
legislation. 

All  Charter  provisions  enjoy  indirect  horizontal 
application  in  litigation  between  private  parties, 
meaning  that  courts  and  NHRBs  are  obliged  to 
interpret  national  legislation  in  conformity  with 
Charter rights and principles, even if they lack direct 
effect.

In  a  2015  Decision,  the  Romanian  Constitutional 
Court54  held  that  Article  86(6)  of  Law  85/2006  on 
insolvency  procedure  is  unconstitutional  since  it 
violated  Article  27  Charter  in  combination  with 
Articles  2  and  3  of  Directive  98/59  on  collective 
redundancies.  In  this  case,  the  challenged  national 
provisions permitted employees to bypass the general 
collective  redundancies  procedure  in  the  case  of 
insolvencies. Based on Articles 2 and 3 of Directive 
98/59  as  interpreted  by  the  CJEU  in  David  Claes 
judgment55,  and  together  with  Article  27  Charter, 

53 
  Paragraph  78  of  CJEU  judgment  in  Glatzel:  ‘Therefore, 
although  Article  26  of  the  Charter  requires  the  European  Union  to 
respect  and  recognise  the  right  of  persons  with  disabilities  to  ben-
efit from integration measures, the principle enshrined by that arti-
cle does not require the EU legislature to adopt any specific measure. 
In  order  for  that  article  to  be  fully  effective,  it  must  be  given  more 
specific expression in European Union or national law. Accordingly, 
that  article  cannot  by  itself  confer  on  individuals  a  subjective  right 
which they may invoke as such (see, to that effect, as regards Article 
27  of  the  Charter,  Case  C-176/12  Association  de  mediation  sociale 
EU:C:2014:2, paragraphs 45 and 47).’

54 

55 

 Decision No. 64/2015 of 24 February 2015.
 Case C-235/239/10, David Claes, ECLI:EU:C:2011:119.

the  Romanian  Constitutional  Court  held  that  the 
Article  41(2)  of  the  Constitution  (right  to  social 
protection)  should  be  interpreted  as  requiring  a 
higher standard of protection than that offered by the 
national  legislation.  The  challenged  domestic  legal 
provisions was declared unconstitutional, since they 
were  incompatible  with  Article  41(2)  interpreted  in 
line with Article 27 Charter and Articles 2 and 3 of 
Directive 98/59.56

2.  Charter  rights  and  principles  v  general  principles 
of EU law - Note that Charter ‘principles’ should be 
distinguished  from  ‘general  principles  of  EU  law’. 
Article 6 TEU recognises three sources of fundamental 
rights:  Charter,  ECHR  and  constitutional  traditions 
of the Member States. The Charter has the same legal 
value as the EU Treaties, i.e. EU primary law, while the 
ECHR  and  constitutional  traditions  of  the  Member 
States are recognised as general principles of EU law. 
The EU Charter codified certain of the autonomous 
general principles of EU law, such as the principle of 
rights  of  defence  (Article  41  Charter  –  right  to  good 
administration- codifies the rights of defence during 
administrative  proceedings;  Article  47  Charter  – 
right  to  effective  judicial  protection  –  codifies  the 
rights of defence during judicial proceedings; Article 
48  Charter  –  presumption  of  innocence-  codifies  the 
rights  of  defence  during  criminal  proceedings);  the 
general principle of non-discrimination is codified in 
Article 21 Charter. So far, the CJEU has not generally 
clarified  the  various  differences  between  these  two 
legal  categories  in  terms  of  scope  of  application.  In 
light  of  the  Charter  preamble  which  provides  that 
the  Charter  does  not  restrict  or  affect  fundamental 
rights as recognised by the Union, it could be inferred 
that Charter rights have to be interpreted in light of 
the  general  principles  of  EU  law.  Furthermore,  the 
general principles of EU law, in spite of being codified 
by Charter provisions, are still relevant as proved by 
recent  jurisprudence  of  the  CJEU  in  administrative 
matters.  In  Boudjlida57,  the  CJEU  clarified  that 
the  right  to  be  heard  as  part  of  the  right  to  good 
administration (Article 41 Charter) is applicable only 
against EU institutions, bodies, agencies, and not also 
against Member States when acting within the scope 
of EU law. However the right to be heard is applicable 
against  national  public  authorities,  when  acting 
within  the  scope  of  EU  law,  as  part  of  the  general 

principle  of  EU  law  of  rights  of  defence.  Regardless 
of  whether  a  certain  human  right  is  invoked  as 
a  general  principle  of  EU  law  or  on  the  basis  of  an 
EU  Charter  provision,  it  will  be  applicable  only  if 
another provision of EU law is applicable in casu (see 
Chartry58).  In  conclusion,  the  multiple  legal  sources 
of fundamental rights recognised by the Treaty of the 
EU are complementary and mutually enforcing.59

2. The multiple legal functions the Charter 
of  fundamental  rights  can  play  in  the 
practice of the NHRBs
The Charter can play various functions, namely as:

• 

• 

• 

• 

• 

• 

a instrument securing that EU and national legislative 
proposals  and  policy-making  are  compliant  with 
fundamental rights; 

a parameter of validity for EU secondary legislation; 

an interpretative tool of EU legislation and national 
measures implementing it;

a  parameter  of  compatibility  of  national  measures 
implementing EU law with fundamental rights;

an instrument for strategic litigation;

as gap filling and raising standards of protection of 
fundamental rights at national level.

2.1    Mainstreaming  the  EU  Charter  into  the  EU 
and national legislative process

As primary source of EU law, all EU secondary legislation 
has  to  be  in  compliance  with  the  Charter.  A  salient 
function of the Charter is to inform the EU and national 
legislative process. The CJEU’s  annulment of the entire 
Data  Retention  Directive  in  Digital  Rights  Ireland60  and 
of the Commission Decision on Safe Harbour Privacy in 
Schrems61, due to being in conflict with Articles 7 (right 
to  private  life)  and  8  (data  protection)  of  the  Charter, 
shows the necessity of securing an ex-ante fundamental 
rights control of EU secondary legislation. 

It  became  evident  that  the  Charter  needs  to  be 
incorporated into the methodology of legislative drafting 
at EU level, and equally also at national level.

 For more details on the horizontal application of the EU 
56 
Charter,  please  read  the  CharterClick!  Tutorial,  available  at  http://
www.charterclick.eu/portfolio/practical-guidelines/ 
57 
 Case C-249/13, Khaled Boudjlida v Préfet des Pyrénées-At-
lantiques,  ECLI:EU:C:2014:2431,  paras.  32-33:  it  is  clear  from  the 
wording of Article 41 of the Charter that it is addressed not to the Mem-
ber States but solely to the institutions, bodies, offices and agencies of 
the European Union. Consequently, an applicant for a resident permit 
cannot derive from Article 41(2)(a) of the Charter a right to be heard in 
all proceedings relating to his application.”

58 
C-370/12, Pringle, EU:C:2012:756.

  Case  C-457/09,  Chartry,  EU:C:2011:101;  see  also,  Case 

59 
 See also, T. Tridimas, Fundamental Rights, General Princi-
ples of EU law and the Charter, in Cambridge Yearbook of European 
Legal Studies, Vol. 16 2013-2014.

 Joint cases C-293/12, C-594/12, Digital Rights Ireland and 
60 
Seitlinger v. Austrian Minister for Communications, Marine and Natu-
ral Resources, ECLI:EU:C:2014:238.

61 
[Ireland], ECLI:EU:C:2015:650.

 Case C-362/14, Schrems v. Data Protection Commissioner 

25

A  successful  example  of  mainstreaming  the  Charter 
into the national legislative process is the incorporation 
into  the  discrimination  factors  which 
of  “illness” 
are  now  considered  aggravating  factors  for  criminal 
offences  provided  in  the  Spanish  Criminal  Code.62  The 
incorporation  was  done  following  the  initiative  of  a 
NHRB (Spanish Council for the Elimination of Racial and 
Ethnic Discrimination).

All these cases underline the importance of mainstreaming 
the  Charter  at  the  incipient  stage  of  policy  making, 
especially where the national legislation is to implement, 
transpose or overlap with an EU law area. In this sense, 
a  thorough  Charter-based  mainstreaming  into  early 
legislative  drafting  facilitates:  a  preventive  approach  to 
fundamental  rights  protection;  limiting  the  occurrence 
of  subsequent  violations;  decreasing  the  instances  of 
ex-post  intervention  of  NHRBs  through  complaint 
resolution; and ultimately, ensuring procedural economy 
for all actors involved in the different stages of litigation.

2.2 Charter as a parameter of validity of EU secondary 
legislation 

According to Article 51(1) Charter, one of the roles of the 
Charter is to ensure that fundamental rights are respected 
at  the  EU  level  by  its  institutions,  bodies,  offices  and 
agencies. As part of EU primary law, the Charter serves as 
a parameter for examining the validity of EU secondary 
legislation  and  national  measures  implementing  these 
measures.  So  far,  the  principle  of  non-discrimination  on 
grounds of sex, and the right to privacy and data protection 
have  been  used  by  the  CJEU  as  main  grounds  for 
annulling provisions of various EU secondary legislative 
instruments  (Regulations  and  Directives),  as  well  as  an 
entire Directive.

In  Test-Achats63  the  CJEU  held  that  a  provision  of  a 
directive  was  incompatible  with  the  higher-ranking 
prohibition of discrimination on grounds of sex which is 
enshrined in Article 21 Charter. The case was referred to 
the CJEU by the Belgian Constitutional Court, following 
an  action  brought  by  the  consumer  organisation 
Association Belge des Consommateurs Test-Achats (‘Test-
Achats’)  and  two  private  individuals  who  claimed  that 
the  Belgian  law  which  transposed  Directive  2004/113 
had to be declared unconstitutional.64 Article 5(2) of this 

62 
 Following the proposal of the Spanish Council for the Elim-
ination of Racial and Ethnic Discrimination. Further examples of the 
Charter being used in policy-making include: reference to the Charter 
in the NHRBs’ opinions, comments on legislative proposals or human 
rights  impact  assessments  of  proposed  legislation.  Examples  which 
came from Belgian Federal Ombudsman, Portugal High Commission 
for Migration, Swedish Data protection Authority, Slovakia-SNCHR.

63 

 Case C-236/09, Test Achats, ECLI:EU:C:2011:100.

64 
 Council Directive 2004/113/EC of 13 December 2004 im-
plementing the principle of equal treatment between men and women 
in the access to and supply of goods and services (OJ 2004 L 373, p. 
37), ‘Directive 2004/113’.

Directive  allowed  Member  States  to  permit  differential 
treatment based  on sex in respect of insurance premiums 
and benefits ‘if sex was a determining risk factor and that 
could have been substantiated by relevant and accurate 
current  and  statistical  data.’  Belgium,  as  well  as  other 
Member States, made use of that derogation in respect of 
several types of insurance. The CJEU found Article 5(2) 
of Directive 2004/113 to be invalid on the ground that it 
allowed the Member States to derogate from the principle 
of equality between men and women indefinitely. It held 
that  such  a  provision  works  against  the  very  objective 
of  Directive  2004/113,  which  aimed  to  implement  the 
principle  of  equal  treatment  between  men  and  women. 
The  CJEU  invoked  the  principle  of  non-discrimination 
(Article 21 Charter) and the principle of equal treatment 
(Article 23 Charter) as grounds for the annulment of the 
challenged provision from an EU secondary legal act.

The  respect  of  private  life  (Article  7  Charter)  in 
combination  with  the  protection  of  personal  data 
(Article  8  Charter)  have  also  been  used  by  the  CJEU 
as  grounds  for  annulling  provisions  of  a  Regulation65, 
Directive(s) and of a Decision66, as well as striking down 
an entire Directive. In Digital Rights Ireland67, the Court 
annulled the Data Retention Directive68 which required 
providers of electronic communication services to retain 
certain customer data in the interests of public security. 
The CJEU established that the retention of personal data 
directly affected the private life of individuals (Article 7) 
and  the  right  to  protection  of  personal  data  (Article  8) 
since it involved a wide ranging retention of data69, and 
for  a  long  period70,  without  providing  for  substantive 
and  procedural  guarantees.  Therefore  the  interferences 
with the private life and data protection failed to pass the 
proportionality  test  required  by  Article  52(1)  Charter.71 
In Digital Rights Ireland, the role of the NHRBs proved 
to  be  decisive.  The  case  was  started  by  the  lobbying 
and  advocacy  civil  society-  Digital  Rights  Ireland72, 

65 
 In Volker und Markus Schecke (Joined cases C-92/09 and 
C-93/09, Volker und Markus Schecke, ECLI:EU:C:2010:662), the CJEU 
found  a  provision  requiring  publication  of  personal  data  of  natural 
persons who are beneficiaries of European agricultural finance to be 
contrary to Articles 7 and 8 EU Charter

 US Adequacy Decision - Decision 2000/520/EC, “the Safe 

66 
harbour”, in Case C-362/14, Schrems, ECLI:EU:C:2015:650.
 Joint cases C-293/12, C-594/12, Digital Rights Ireland and 
67 
Seitlinger v. Austrian Minister for Communications, Marine and Natu-
ral Resources, ECLI:EU:C:2014:238.

68 
  Directive  2006/24/EC  on  the  retention  of  data  generated 
or  processed  in  connection  with  the  provision  of  publicly  available 
electronic  communications  services  or  of  public  communications 
networks. 

69 

70 

 All traffic data covering all subscribers and registered users.

 A period of six months.

  The  limitation  on  the  exercise  of  Charter  rights  must:  1) 
71 
not affect the essence of the rights; 2) be provided for by law’ 3) be 
necessary and genuinely meet objectives of general interest.

72 
 Digital Rights Ireland brought the case on behalf of the pri-
vacy rights of all individuals and not just their own corporate rights.

26

which  challenged  the  legality  of  the  national  measures 
implementing  the  Directive,  raising  also  questions 
regarding  the  compatibility  of  the  Data  Retention 
Directive with the Charter, before the Irish High Court. 
This  Court  decided  then  to  refer  preliminary  questions 
to the CJEU. 

Freedom  of  expression73,  the  right  to  effective  judicial 
protection74, the right to liberty75 have also been invoked 
as  grounds  for  invalidating  EU  secondary  legislation 
in  the  fields  of  audio-visual  media  services,  criminal 
law  and  asylum.  In  these  cases,  the  CJEU  upheld  the 
validity of the EU secondary provisions confirming the 
fundamental rights compatibility of the policy/legislative 
choices made by the EU institutions. However, this case 
law shows the potential of the Charter when assessing the 
legality of EU secondary legislation and the salient role 
played by national actors in the EU legislative process.

2.3  Charter  as  parameter  of  interpretation  of  EU 
legislation and implementing national measures

The  Charter  is  most  often  used  as  an  instrument  for 
interpreting  EU  legislative  acts  and  national  measures 
implementing  them.  When  applying  national  law  that 
falls within the scope of EU law, public authorities have 
a duty to interpret it as far as possible in light with the 
wording  and purpose of  the  applicable EU  law  and the 
Charter.76 

According to Marleasing77, the Member States’ authorities 
have a duty to interpret national law in conformity with 
EU  law,  even  if  the  respective  EU  secondary  provision 
has  not  yet  been  transposed  by  the  domestic  legislator. 
In  Marleasing,  the  CJEU  traced  the  duty  of  conform 
interpretation  which  required,  in  casu,  the  Spanish 
referring  court  to  not  take  into  account  a  particular 
interpretation  of  the  Civil  Code  insofar  as  it  would 
produce a result not envisaged by the Directive.

A landmark case concerning the interpretative role of the 
Charter is the A, B, C,78 case concerning the rights of the 
LGBT  in  asylum  proceedings.  Article  7  of  the  Charter 
was used in the preliminary stage of investigating a claim 
for international protection and in particular to limit the 
form of questioning that national authorities may engage 
in when seeking to establish the credibility of these claims. 
The case demonstrated the potential reach of Article 7 of 
the Charter across the domestic asylum process, and its 

  Case  C-283/11,  Sky  Österreich  GmbH  v  Österreichischer 

  See,  inter  alia,  Case  C-399/11,  Melloni,  ECLI:EU-

73 
Rundfunk, ECLI:EU:C:2013:28.
74 
:C:2013:107.
75 

 Case C-601/15 PPU, JN, ECLI:EU:C:2016:84.
 C-106/89, Marleasing, ECLI:EU:C:1990:395.
 Ibid.

76 

77 

78 
retaris van Veilgheid en Justitie, EU:C:2014:2406. 

 Joined Cases C-148/13 to C-150/13, A, B and C v Staatssec-

27

link to fundamental questions of human dignity. A, B and 
C  made  applications  for  asylum  based  on  persecution 
as  homosexuals  in  their  countries  of  origin.  All  three 
applications  were  rejected  on  grounds  of  credibility 
as  to  the  true  sexual  orientation  of  the  applicants.  One 
applicant had failed to indicate his sexual orientation on 
his initial application. Others gave statements that were 
vague  and  inconsistent.  Upon  rejection,  one  applicant 
provided  videos  of  him  engaging  in  sexual  acts  and 
another offered to undergo medical examination in order 
to  ‘prove’  his  sexual  orientation.  The  referring  national 
court  had  concerns  regarding  the  compatibility  with 
Articles 1 (human dignity) and 7 (privacy) of the Charter 
of the aforementioned type of proof in cases of assessing 
international protection claims. It therefore referred the 
matter to the Court of Justice having regard to Article 4 
of the Qualification Directive and the Charter. 

The Court of Justice held that the assessment of asylum 
applications,  including  credibility  assessments,  must  be 
conducted in compliance with the Charter rights. It held 
that, while the details of asylum application procedures 
are  generally  a  matter  for  national  law,  a  number  of 
conditions flow from Union law. The assessment of any 
application  should  be  conducted  in  cooperation  with 
the  applicant  and  it  is  for  the  applicant  to  advance  any 
particular claims including regarding sexual orientation. 
Furthermore,  assessments  must  be  conducted 
in 
compliance with the Charter, in particular Article 7, on 
the right to privacy, and authorities may be required to 
modify their procedures in order to ensure compliance.  

In relation to the specific situation of individuals claiming 
a  particular  sexual  orientation,  the  Court  outlined  the 
limitations  that  may  exist  on  the  type  of  questioning 
and  the  assessment  of  their  credibility.  Firstly,  it  held 
that  questioning  based  on  ‘stereotypical’  notions  may 
constitute  only  a  starting  point  for  an  assessment  of 
asylum application. For instance, an asylum application 
cannot  be  rejected  solely  on  the  basis  of  the  fact  that 
an  applicant  is  unaware  of  certain  organisations  where 
LGBT individuals gather, as this would be contrary to the 
need to conduct an individual assessment, having regard 
to the specific circumstances of the applicant. Secondly, 
it held that detailed questions regarding sex acts would 
violate Article 7 Charter. Thirdly, it found that authorities 
cannot accept videos of sex acts, the performance of sex 
acts  and  of  medical  ‘tests’  regarding  sexual  orientation. 
Accepting  such  evidence  would  violate  the  applicant’s 
human  dignity  under  Article  1  Charter.  Moreover,  it 
would  encourage  others  to  submit  similar  evidence 
leading  to  a  de  facto  requirement  of  such  evidence. 
Finally, it found the non-disclosure of sexual orientation 
earlier  in  the  asylum  application  process  as  not  being 
fatal  to  credibility,  given  the  sensitivity  of  the  subject 
matter. In conclusion, the judgment of the CJEU in A, B 
and C and the follow-up national judgments79 show the 

79 

 See ACTIONES Database managed by the Centre for Ju-

interpretative role of Article 7 Charter and its effects on 
the  practice  of  administrative  authorities.  In  particular 
the  right  to  privacy  limits  the  form  of  questions  that 
could  be  asked  and  the  types  of  proof  that  could  be 
requested  when  assessing  the  credibility  of  a  claim  of 
sexual orientation.

2.4  The  Charter  as  parameter  of  compatibility  of 
national  legislation  and  public  authorities  practice 
with fundamental rights

According  to  Article  51(1),  the  Charter  applies  to  the 
Member States only when acting within the scope of EU 
law. In Fransson, the CJEU clarified that ‘the scope of EU 
law’ is the same as the scope of the Charter.80 Therefore, 
once  a  connecting  EU  law  element  has  been  identified 
in a case, the Charter is applicable. For a detailed list of 
situations where the Charter is applicable, please see the 
CharterClick! Checklist and the Tutorial.81 

For  national  courts,  NHRBs  and  other  authorities 
dealing  with  claims  from  individuals  regarding  their 
fundamental rights, the Charter is most often used as a 
parameter to check compatibility of national legislation 
and public authorities’ practice with EU law. 

initiative  of  NHRBs,  Constitutional 
Following  the 
Courts have started to include the Charter as parameter 
of  constitutionality  review  of  national 
legislation. 
Following  the  multiple  complaints  raised  by  a  trade 
union of a regional company82 against the provisions of 
the  Law  on  insolvency,  the  Romanian  ordinary  courts 
raised  an  exception  of  constitutionality  before  the 
Romanian Constitutional Court. In 2015, the Romanian 
Constitutional  Court83  held  that  Article  86(6)  of  Law 
85/2006 on insolvency procedure is unconstitutional since 
it violates Article 27 Charter in combination with Articles 
2 and 3 of Directive 98/59 on collective redundancies. In 
this  case,  the  challenged  national  provisions  permitted 
employees to bypass the general collective redundancies 
procedure in the case of insolvencies. Based on Articles 
2  and  3  of  Directive  98/59  as  interpreted  by  the  CJEU 
in  David  Claes  judgment84,  and  together  with  Articles 
27  Charter,  the  Romanian  Constitutional  Court  held 
that the Article 41(2) of the Constitution (right to social 
protection)  should  be  interpreted  as  requiring  a  higher 
standard of protection than that offered by the national 
legislation.  It  then  decided  to  declare  unconstitutional 

dicial Cooperation, EUI.

  In  its  judgement  of  26  February  2013  on  Case  C-617/10 
80 
Åkerberg Fransson, ECLI:EU:C:2013:105 , the CJEU interpreted Arti-
cle 51(1) EU Charter as meaning that “the fundamental rights granted 
by the Charter must (…) be complied with where national legislation 
falls within the scope of European Union law” (para. 21)

 Available online at http://www.charterclick.eu/toolkit/ 
 Sindicatul Hidroelectrina Hidrosind.

 Decision No. 64/2015 of 24 February 2015.
 Case C-235/239/10, David Claes, ECLI:EU:C:2011:119.

81 

82 

83 

84 

28

the  challenged  legal  provisions,  since  they  limited 
the  application  of  the  general  collective  redundancies 
procedure in the case of insolvency.85

The principle of non-discrimination on grounds of sex, 
sexual  orientation  and  disability,  as  laid  down  in  the 
Charter  and  as  a  general  principle  of  EU  law,  has  been 
the legal basis for setting aside domestic legal provisions 
creating  direct  or  indirect  discrimination  (e.g.  against 
female  part-time  workers,  same  sex  married  couples 
exercising the freedom of movement). A ground-breaking 
case concerning sexual harassment and the added value 
of the Charter was reported by the Swedish Equality Body. 
The case concerned discrimination based on harassment 
on  sexual  orientation  between  co-workers.  At  issue 
was the Swedish legislation which prohibits this type of 
harassment only in vertical work relations. The Swedish 
Equality Body argued that this legislative limitation was 
contrary  to  EU  law,  Articles  3186  and  Article  47  of  the 
Charter. 

A  string  of  ground-breaking  cases  concerning  the 
principle  of  non-discrimination  based  on  ethnic  origin 
were  brought  by  the  Bulgarian  Commission  for  the 
Protection  against  Discrimination.  These  cases  were 
lodged against an electricity company with multinational 
branches  regarding  their  discriminatory  practice  of 
placing  meters  out  of  reach  of  the  consumers  only  in 
Roma  districts.  The  Bulgarian  NHRB  argued  that  this 
practice  constituted  discrimination  based  on  ethnic 
origin. Following a string of persistent rejection of these 
cases  by  the  Bulgarian  Supreme  Court,  the  Bulgarian 
NHRB sent directly a preliminary reference to the CJEU 
(C- 394/11, Belov), which was found inadmissible by the 
CJEU on grounds that the Bulgarian human rights body 
was not a court within the meaning of Article 267 TFEU. 
The  Bulgarian  Commission  for  the  Protection  against 
Discrimination  continued  to  bring  new  cases  before 
national courts challenging the legality of the electricity 
company’s  practice  due  to  its  indirect  discriminatory 
effects against those of Roma ethnic origin. Finally a lower 
administrative court decided to suspend the proceeding 
and request a preliminary ruling from the CJEU,87 similar 
to the ones asked by the Bulgarian body in the preceding 
Belov case. In particular, the referring court asked whether 
a ‘homogenous group of Bulgarians of Roma origin’ can 
constitute an ethnic group, given that Directive 2000/43 
does  not  define  the  concept  of  ethnic  origin.  Secondly, 
the  Bulgarian  court  asked  whether  discrimination  by 
association  is  covered  by  Directive  2000/43.  Lastly, 
the  referring  court  asked  what  constituted  indirect 

85 
 Another case where the Charter was used as a parameter 
for the assessment of the constitutionality of national legislation fol-
lowing the complaint of a NHRBs is the RPO case before the Polish 
Constitutional Tribunal, discussed below.

86 
working conditions.

 Article 31 EU Charter establishes standards on fair and just 

87 

 C-83/14 CHEZ.

discrimination. In particular, the court asked whether a 
national measure, such as that at issue in the proceeding, 
which  although  formally  neutral,  is  detrimental  for 
‘considerably  more’  individuals  having  the  protected 
characteristic than for individuals not possessing it, can 
be considered as indirectly discriminatory. The Charter 
had an important role in both the Bulgarian human right 
body  and  the  court’s  legal  reasoning,  being  invoked  in 
conjunction with the EU Racial Equality Directive. 

The  CJEU  concluded  that  the  term  ‘ethnic  origin’ 
as  appeared  in  the  Directive  2000/43/EC  should  be 
interpreted as covering a homogenous group of Bulgarians 
of Roma origin such as those living in a particular district 
of  the  Bulgarian  town  of  Dupnitsa.  Another  important 
issue  clarified  by  the  CJEU  concerns  the  requirements 
that have to be fulfilled by the complainant in a case of 
discrimination based on ethnic origin. Ms Nikolova was 
not of Roma origin, nor identifying as Roma. She brought 
the claim based on the fact of having a shop in an area 
where  Roma  population  was  majoritarian.  The  CJEU 
rejected the interpretation of the notion of ‘discrimination 
on grounds of racial or ethnic origin’ as limited to a person 
who possesses the racial or ethnic origin. Therefore Ms 
Nikolova  was  entitled  to  avail  herself  of  the  protection 
against  discrimination  based  on  ethnic  origin  because 
she was living in a predominantly Roma neighbourhood 
and,  therefore,  was  also  subjected  to  the  challenged 
discriminatory practice. The CJEU also provided salient 
guidelines  on  how  to  distinguish  between  direct  and 
indirect  discrimination,  on  what  can  be  a  ‘comparator’ 
to  establish  discriminatory  practices,  and  on  the  proof 
that  the  perpetrator  of  indirect  discrimination  has  to 
bring to show that this practice is objectively justified by 
legitimate aims such as: preventing fraud and protecting 
people’s life and health.

The  role  played  by  Article  21  Charter  in  CHEZ  was 
pivotal in providing an interpretation of the concept of 
“ethnic  origin”.  The  CJEU  legitimised  a  purposeful  and 
wide  interpretation  of  the  personal  scope  of  the  Racial 
Equality Directive on the basis of interpreting the directive 
as  “an  expression,  within  the  area  under  consideration, 
of the principle of equality, which is one of the general 
principles  of  EU  law,  as  recognised  in  Article 21  of  the 
Charter,  the  scope  of  that  directive  cannot  be  defined 
restrictively  (judgment  in Runevič-Vardyn  and  Wardyn, 
C391/09,  EU:C:2011:291,  paragraph 43)”  (para  42  of 
CJEU).88  Article  21  Charter  also  frames  the  level  of 
protection  against  the  discriminatory  practice  in  the 
case.  The  CJEU  establishesd  that  CHEZ  RB’s  practices 
are  “offensive  and  stigmatising”  (para  84,  87,  108)  and 
constitute direct discrimination (76) but this is a matter 
which is for the referring court to determine (para 91).

88 
 For a detailed analysis of the CHEZ case, see the ACTIONES 
Module on Non-discrimination, available online in the webpage of the 
ACTIONES Project.

2.5 The Charter as an entrance door for Directives 
in private parties relations/litigation

It is settled case law of the CJEU that EU Directives have 
only vertical effect89, therefore a Directive can be invoked 
or  enforced  in  lieu  of  contrary  domestic  rules  only  in 
disputes against State entities or emanations of the State.90 
This is true regardless of whether the public authority acts 
as a commercial entity or exercising public powers.91 The 
question is: can Charter rights and principles be invoked 
in a legal proceedings between two private parties?

In  Association  de  médiation  sociale  (AMS)92,  the  CJEU 
confirmed  that  provisions  of  the  Charter  that  fulfil  the 
criteria  of  direct  effect93  can  be  relied  on  to  disapply  a 
conflicting  national  measure  (that  implements  Union 
law within the meaning of Article 51(1) of the Charter), 
including  in  a  dispute  between  private  parties.  The 
Charter  can  thus  be  used  to  overcome  the  restriction 
of  applying  EU  Directives  in  proceedings  between 
private  parties.  In  Kücükdeveci,  the  CJEU  held  that  the 
general  principle  of  non-discrimination  based  on  age, 
codified also in Article 21 Charter, is capable of having 
such  a  direct  effect,  and  consequently  also  horizontal 
direct effect.94 In Kücükdeveci (C-555/07)95 the ordinary 
judge  needed  to  assess  the  legality  of  a  provision  from 
the  German  Civil  Code  allowing  employees  to  give  a 
comparatively  shorter  notice  of  dismissal  to  employees 
who  have  started  working  before  the  age  of  25.  The 
plaintiff  maintained  that  this  domestic  legal  provision 
was discriminatory, because it arbitrarily affected early-
workers.  Discrimination  in  the  workplace  is  regulated 
by the EU Directive 2000/78, which includes age among 
the  prohibited  grounds.  However,  since  EU  directives 
are  deprived  of  direct  horizontal  effects,  meaning  that 
they  cannot  be  invoked  as  a  ground  for  disapplication 
of domestic law in litigation between private parties, the 
question was whether the Charter could be the legal basis 

89 
summary of the most relevant judgments, see Dominguez.

  This  doctrine  has  been  reaffirmed  time  and  again,  for  a 

90 
 In the area of non-discrimination the case law have given 
the  horizontal  direct  effect  to  provisions  of  the  directive.  Compare: 
Case C-144/04, Mangold, op. cit. and Case C-555/07, Kücükdeveci, op. 
cit.

91 
of 18 November 2010, para. 70.

 Joined Cases C-250/09 and C-268/09 Georgiev, judgment 

92 
médiation sociale (AMS).

 Judgment of 15 January 2014, case C-176/12, Association de 

93 
 According to a settled case law of the Court of Justice, the 
provisions of EU law (be they primary of secondary legal provisions) 
that are clear, precise and not subject to conditions can be relied on by 
legal and natural persons before domestic courts, in order to obtain 
the  disapplication  of  conflicting  national  provisions.  (Van  Gend  en 
Loos, ECLI:EU:C:1963)

 CJEU: “the principle of non-discrimination on grounds of 
94 
age at issue in that case, laid down in Article 21(1) of the Charter, is 
sufficient in itself to confer on individuals an individual right which 
they may invoke as such.” (Kücükdeveci, para. 49)
 Case C-555/07, Kücükdeveci, op. cit.

95 

29

for disapplication of the challenged domestic provision. 

The CJEU noted that non-discrimination on grounds of 
age, as recognized in the Charter of Fundamental Rights, 
and in the Employment Equality Directive 2000/78, is a 
general  principle  of  EU  law,  and  requires  judges  to  set 
aside conflicting legislation even in horizontal disputes.

An  interesting  case  concerning  the  direct  horizontal 
application of Charter rights comes from the UK. In that 
case,  the  applicants’  claims  were  supported  by  the  UK 
Equality and Human Rights Commission. The UK Court 
of  Appeal  (Civil  Division)  concluded  that  the  rights  to 
an effective remedy and fair trial (Article 47 EU Charter) 
can have direct horizontal effect in the national system.96 
The  Article  was  invoked  as  a  legal  basis  for  the  legality 
check of a provision from the UK State of Immunity Act 
1978 in proceedings between two foreign employees and 
the embassies of Sudan and Libya in London. According 
to  the  State  Immunity  Act  1978,  the  employees  were 
prohibited  from  accessing  the  UK  courts  in  relation  to 
their dismissal which they claimed was unlawful under 
the  EU  Working  Time  Regulations  and  the  Racial 
Equality Directive. 

If certain Charter provisions lack direct effect and cannot 
thus be invoked in combination with the provisions of a 
relevant Directive in order to give the latter application 
in  relationships  between  private  parties,  the  Charter 
provisions can still enjoy indirect horizontal effect. The 
CJEU has held that a national court, when hearing a case 
between individuals, is required, when applying domestic 
legal provisions transposing a Directive, to interpret these 
norms, as far as possible in the light of the wording and 
purpose  of  that  Directive,  so  as  to  achieve  an  outcome 
consistent with the objective pursued by the Directive.97 
Nevertheless,  the  principle  of  interpreting  national  law 
in  conformity  with  EU  law  has  limits,  as  shown  by  the 
AMS case, in the sense that it cannot serve as the basis 
for  an  interpretation  of  national  law  contra  legem  (see 
Dominguez, para. 25).

2.6 The Charter as an instrument for strategic litigation

The  NHRBs  have  an  essential  role  in  shaping  the  EU 
and national laws and policies on human rights, as well 
as in ensuring the enforcement of these laws. Especially 
for NHRBs the Charter could be very useful in creating 
political  pressure,  influencing  law,  policy  making  and 
practices  and  ensuring  that  human  rights  standards  at 
national level are observed and promoted at the highest 
possible  degree.  For  instance,  NHRBs  can  identify 
domestic cases raising issues which are of European and 
transnational  relevance. They  can  decide  to  bring  cases 

  Benkharbouche  v.  Embassy  of  the  Republic  of  Sudan 

  See  Case  C-212/04,  Adeneler  and  Others,  para.  111; 

96 
and Janah v. Libya 
97 
Dominguez, para. 27.

30

before the national courts, and suggest to national courts 
to address preliminary questions to the CJEU, which can 
contribute  to  a  uniform  interpretation  of  EU  law  not 
only  in  the  referring  Member  States  but  also  in  other 
Member States. The action of one NHRB can thus lead 
to adoption of good practice by the judiciary and NRHBs 
of all EU Member States. In the following paragraphs the 
most  salient  cases  of  strategic  litigation  revealed  by  the 
CharterClick! Questionnaires will be outlined. 

2.6.1  The  Office  of  the  Human  Rights  Commissioner  of 
Poland – equal treatment98

Article 20 Charter was invoked by the HRs Commissioner 
in a case on equal treatment of e-books which were higher 
taxed compared to paper books. The case was referred to 
the CJEU by the Polish Constitutional Tribunal following 
the recommendation of the Polish Office. It was the first 
preliminary  reference  sent  by  the  Polish  Constitutional 
Tribunal.  The  HRs  Commissioner  pointed  to  the  fact 
that  the  matter  did  not  concern  the  incompatibility  of 
Polish provisions transposing an EU Directive with the 
Constitution but it concerned the incompatibility of EU 
Directive 2006/112/EC99 with Article 20 Charter and the 
EU general principle of equality. The HRs Commissioner 
suggested to the Polish Constitutional Tribunal to request 
a preliminary ruling from the CJEU on the issue of the 
validity  of  Directive  2006/112.  The  HRs  Commissioner 
contributed  to  determine  the  Polish  Constitutional 
Tribunal  to  address  its  first  preliminary  ruling,  and  to 
settled an issue of national, but also european interest.

2.6.2 N.S.and others100 – conformity with absolute human 
rights in overlapping multilevel human rights system

One  excellent  example  presented  by  one  of  the 
CharterClick!  Partners,  the  UK  Equality  and  Human 
Rights Commission, is the NS v SSHD case. The purpose 
of  the  Commission’s  intervention  was  to  ensure  the 
correct  interpretation  of  the  Charter  of  Fundamental 
Rights  and  of  the  related  UK  Protocol  regarding  the 
application  of  the  Charter  in  the  UK.  The  intervention 
of the Commission had positive results in relation to the 
application of the Charter. First the case had an important 
impact at national level as it clarified that the Charter is 
a  binding  instrument  for  the  UK.  Secondly,  the  case  is 
of EU constitutional relevance as it clarified the relation 
between  EU  secondary  legislation  and  the  Charter/
ECHR, and the level of fundamental rights protection at 
EU  level.  The  CJEU  confirmed  that  Member  States  are 
responsible  for  respecting  the  Charter  provisions  even 
when they derogate from EU law as long as their actions 
impact on EU law. Furthermore they are also obliged to 
respect  the  ECHR  rights  corresponding  to  the  Charter 

98 
July 2016).

 The case is pending before the CJEU (last check done in 

99 
the common system of value added tax, OJ L 347/1, 11.12.2006.

 Council Directive 2006/112/EC of 28 November 2006 on 

100 

 Case C-411/10, N.S. and others, ECLI:EU:C:2011:865

provisions  (Article  52(3)).  The  CJEU  required  that  EU 
secondary  provision  should  be  interpreted  in  line  with 
Article  4  Charter  which  have  priority  in  application: 
‘when  substantial  grounds  for  believing  that  there  are 
systemic  flaws  in  the  asylum  procedure  and  reception 
conditions  for  asylum  applicants…resulting  in  inhuman 
or degrading treatment, within the meaning of Article 4 of 
the Charter…the transfer would be incompatible with that 
provision” (para. 84 and 86)

2.6.3 Firma Feryn101 – collective remedies

Another case which shows the role NHRBs can play in 
strategic litigation is Firma Feryn. The case was initiated 
by the Belgian equality body against a private company 
because  of  a  public  statement  made  by  that  company 
that it would not recruit any Moroccans. The main issue 
of the case was that there has been never an identifiable 
victim,  since  no  actual  application  was  made  and  had 
been  rejected  by  the  company.  The  CJEU  held  that  the 
existence of direct discrimination is not dependent upon 
the identification of a complainant who alleged to be the 
victim,  and  that  collective  remedies  can  be  established 
in  case  of  direct  discrimination.  The  Belgian  equality 
body  contributed  thus  to  the  clarification  of  important 
issues  regarding  remedies  in  cases  of  discriminatory 
discrimination  based  on  race.  The  case  is  of  relevance 
not only for the Belgian jurisdiction but also for all EU 
countries. 

2.6.4  Belov102  and  CHEZ103  –  systemic  discriminatory 
practices

In addition to the substantive clarification of the scope of 
application of the Race Equality Directive and its relation 
with  the  Charter,  these  cases  are  strategic  because  they 
reveal  systemic  discriminatory  practices,  which  affect  a 
whole group of people, i.e. all those who live in the so-
called  “Roma  districts”.  The  Advocate  General  Kokott 
noted  in  her  Opinion:  “[t]he  case  does  ultimately  stem 
from a complaint lodged by one individual; however, the 
centre of interest is the wholesale and collective character 
of  measures  which  affect  an  entire  community  and  are 
liable to stigmatize all the members of that community 
and their social environment”.104

The  contested  practice  of  installing  energy  meters, 
affected  an  entire  community,  and  it  was  challenged 
by  several  individuals,  including  Mr  Belov  and  Ms 
Nikolova.  The  discriminatory  practice  had  been  in 
place for almost 25 years.105 This highlights that NHRBs 
have  the  power  to  identify  and  effectively  remedy 
discriminatory  practice  which,  due  to  their  length  in 

101 

102 

103 

104 

 Case C-54/07, Firma Feryn, ECLI:EU:C:2008:397.
 Case C-394/11, Belov, ECLI:EU:C:2013:48.
 Case C-83/13, CHEZ, ECLI:EU:C:2015:480.
 CHEZ, Opinion AG Kokott, para.1

105 
 R. Grozev, A Landmark Judgment of the Court of Justice of 
the EU – New Conceptual Contributions to the Legal Combat against 
Ethnic Discrimination, The Equal Rights Review, Vol. 15 (2015), 168-
188.

31

time and the vast number of affected individuals, prove 
the existence of systemic deficiencies in the functioning 
of  domestic  anti-discriminatory  regimes.  The  case 
adds  to  the  line  of  European  judicial  decisions  finding 
systemic  discriminatory  practices  against  the  Roma 
communities in the public systems of the Member States. 
For instance, in D.H. and others106, the ECtHR found that 
Romani  children  were  systematically  placed  in  schools 
or classes for the mildly mentally disabled, in a manner 
which  appeared  far  from  ‘neutral’.  The  18  applicants  of 
Czech  nationals  were  represented  by  European  Roma 
Rights Centre based in Budapest. Similarly, NHRBs have 
challenged  systemic  discriminatory  practices  against 
Roma in Sweden, Italy and France, by way of supporting 
the claims lodged by specialised NGOs or by individual 
applicants,  whose  complaints 
systematic 
discriminatory practices against the Roma community.107

revealed 

As  a  concluding  remark,  it  should  be  pointed  out 
that  some  of  the  NHRBs  openly  recognised  that  they 
are  actively  focusing  on  the  identification  of  grave 
or  systemic  deficiencies  of  human  rights  protection 
and  on  highlighting  human  rights  issues  that  have  to 
be  given  more  attention,  especially  in  relation  with 
vulnerable  groups,  such  as  refugees,  women  refugees, 
unaccompanied  minors, 
irregular  migrants,  LGBT 
people,  victims  of  hate  crime  or  discrimination  or 
gender violence etc. (e.g. Office of the Commissioner for 
Administration and Human Rights of Cyprus)

2.7 The Charter as gap filling and raising standards of 
protection of fundamental rights at national level

It  is  undeniable  that  national  authorities  are  bound  by 
domestic fundamental rights provided by constitutional 
provisions, which in general afford a satisfactory level of 
protection.  However,  due  to  the  fact  that  constitutional 
provisions  were  drafted  decades  ago,  they  might  not 
include certain fundamental rights which are included in 
the Charter, which is an instrument of newer generation 
(e.g.  social  and  economic  rights).  For  instance,  the 
Maltese  Constitution  does  not  have  a  corresponding 
right  to  Article  3  Charter  (right  to  the  integrity  of  the 
person).  Under  the  Maltese  legal  system,  it  used  to  be 
impossible to claim remedies for moral damages. Lower 
courts  have  used  Article  3  Charter  to  admit  claims  for 
moral damages.108

Benkharbouche  case  concerned  claims  brought  by  third 

106 
57325/00, Judgment of the Grand Chamber of 13 November 2007.

 D.H. and others against the Czech Republic, Application no. 

107 
 See, for instance, the Judgment of the Swedish Municipal 
Tribunal – registration of Roma; the interim relief order of the EC-
tHR against Italy in a case on forced eviction of Romas in Rome - The 
claim was brought to the ECtHR by two NGOs acting in support of 
the victims (ERRC and Associazione 21 Luglio) and two lawyers be-
longing to ASGI.

108 
ary 2015.

  Malta,  Civil  Court,  No. 33/2014,  decision  of  15 Janu-

country nationals working in London based embassies of 
their third countries for: unfair dismissal; failure to be paid 
the minimum wage; harassment and racial discrimination 
which were argued to have breached the Working Time 
Regulations 1998 and, inter alia, Article 47 Charter. The 
UK State Immunity provides general immunity for States 
under UK jurisdiction, with an exception for contracts of 
employment made in UK. However this exception did not 
apply  to  non-UK  nationals,  or  non-habitually  residents 
third  country  nationals.  Thus  Benkharbouche  and  the 
others  complainants  could  not  bring  claims  before  the 
UK courts. Ultimately, the UK Court of Appeal held that 
the UK State Immunity Act infringed the fair trial rights 
enshrined  in  Article  47  Charter  of  the  third  country 
nationals  working  in  the  London  based  embassies  of 
third countries.109

Another  interesting  case  showing  a  creative  use  of  the 
Charter  originated  from  the  UK  jurisdiction.  The  UK 
Court  of  Appeal  held  that  the  UK  Data  Protection  Act 
which implements the EU Directive on data protection 
conflicted with Articles 7 and 8 of the Charter. The case 
concerned  an  entitlement  to  monetary  compensation 
for damages. The Court disapplied part of the domestic 
legislation  which  prevented  recovery  of  non-pecuniary 
loss on the basis that it contravened Articles 7 and 8 of 
the Charter.110 As Benkharbouche, the Google Inc v Vidal-
Hall  &  Ors judgment affirms the role of the Charter in 
raising  domestic  standards  of  human  rights  protection 
and shows the potential added value of the Charter.

3. The Added value of the Charter compared 
to other human rights instruments (ECHR)
One of the essential questions regarding the application 
of  the  Charter  is:  why  is  it  necessary  or  useful  to 
rely  on  the  EU  Charter,  when  there  are  already  long-
established  national  and  European  human  rights  bills/
instruments  safeguarding  similar  fundamental  rights  as 
those  enshrined  in  the  Charter?  For  instance,  in  Europe 
we  have  the  ECHR,  national  constitutions,  and  the 
various  thematic  fields  are  covered  by  specialised  EU 
secondary  legislation  providing  for  specific  substantive 
and  procedural  safeguards  of  fundamental  rights  (e.g. 
Racial  Equality  Directive,  Common  European  Asylum 
System  instruments,  etc.).  In  addition  to  the  European 
level,  there  are  international  legal  instruments,  such 
as  the  Refugee  Protection  Convention,  the  two  UN 
International  Covenants  on  civil,  political  and  social 
rights, various other conventions and treaties protecting 
specific  fundamental  rights,  such  as:  prohibition  of  ill 
treatments,  protection  of  disable  persons,  children, 
women, etc.

109 
 Benkharbouche & Anor v Embassy of the Republic of Sudan 
[2015]  EWCA  Civ  33,  5th  February  2015,  the  case  is  now  pending 
before the UK Supreme Court.

110 

 Google Inc v Vidal-Hall & Ors,  [2015] EWCA Civ 311.

Chapter  II  and  III  of  the  Report  revealed  that  NHRBs 
are mainly relying on the ECHR, specific EU secondary 
legislation (especially for equality and migration related 
bodies), and national constitutional provisions. However, 
the following aspects reflect the necessity of using the EU 
Charter, and also the added value of using the Charter:

Mandatory,  binding  legal  nature  of  the  Charter  –  The 
Charter  is  first  of  all  a  legally  binding  instrument. 
According to Article 6(1) TEU, the Charter has “the same 
status of the Treaties”. Therefore, it belongs to the primary 
law of the European Union. Accordingly, the provisions 
of EU secondary law must be interpreted in conformity 
with the Charter and, in case of a conflict that cannot be 
resolved  through  interpretation,  EU  secondary  law  can 
be set aside by the Court of Justice. In addition, national 
provisions that fall within the scope of the Charter must 
conform to the Charter provisions. If the conflict cannot 
be  resolved  by  way  of  interpretation,  national  courts 
can  disapply  the  conflicting  national  provision,  if  the 
applicable EU provision (either the Charter or applicable 
EU  secondary  provision)  fulfils  the  criteria  of  direct 
effect.111  Given  the  binding  legal  nature  of  the  Charter, 
and its status as EU primary law, NHRBs are expected to 
ensure the full and effective application of the Charter in 
their everyday practice, just as they apply EU secondary 
legislation.

Political,  Civil,  Economic,  and  Social  rights  and 
principles in one single instrument - The Charter’s added 
value  comes  also  from  the  fact  that  it  is  an  up  to  date 
instrument,  including  new  generation  rights  reflecting 
the  spirit  of  modern  society,  which  are  not  included 
in  all  national  constitutions.  It  is  a  modern  instrument 
providing for human rights which are not provided for 
by the ECHR or other international instruments, such as: 
express  asylum  related  rights:  right  to  asylum  (Articles 
18,  19  Charter)112;  the  right  to  conscientious  objection 
(Article10(1)  Charter);  detailed,  extended  and  express 
grounds  for  non-discrimination  (Article  21  Charter 
includes grounds which are not expressly provided for by 
Article 14 ECHR); Article 24 Charter codified the essence 
of the children rights as enshrined in the Convention on 
the Rights of the Child;

Charter  human  rights  which  do  not  have  correspondent 
in  the  ECHR  –  such  as,  for  instance:  the  right  to 
conscientious  objection  (Article10(1)  Charter);  right  to 
good  administration  (Article  41  Charter);  social  rights 
(see Title V Charter);

111 
private v public legal relationships see section 1.5.

 For the different requirements the Charter has to fulfil in 

112 
 It is important to underline here that the application of the 
ECHR in the field of asylum and irregular migration is limited due to 
the fact that: 1) unlike the EU Charter it does not include a right to 
asylum; 2) the right to a fair trial and effective remedy do not apply 
to asylum and irregular migration cases; while Article 13 ECHR has 
been  considered  in  asylum  and  migration  case  but,  in  conjunction 
with other provisions of the Convention, such as Articles 3, 5(1)(f), 8, 
and Article 4 Protocol 4.

32

Higher  protection  of  certain 
fundamental  rights  – 
Prohibition  of  discrimination  is  provided  in  Article 
21  Charter  on  account  of  17  grounds,  and  with  an 
independent  application  in  contrast  with  Article  14 
ECHR.  Article  47  Charter  guarantees  effective  judicial 
protection  for  all  rights  derived  from  Union  law,  while 
Article 13 ECHR guarantees effective judicial protection 
only  for  civil  and  criminal  rights,  excluding  the  entire 
category of administrative rights. 

CJEU ensuring an interpretation of the Charter within the 
specific context of the EU legal order – The application of 
the Charter is supervised by the European Commission 
and the CJEU. The latter is increasingly resorting to the 
Charter  for  the  purpose  of  assessing  the  validity  of  EU 
secondary  legislation,  striking  down,  when  necessary 
incompatible provisions (e.g. Digital Rights Ireland case). 
Furthermore,  the  CJEU  will  adopt  an  interpretation 
of  certain  fundamental  rights  which  is  specific  for 
the  EU  legal  order,  and  might  at  times  differ  from  the 
interpretation  provided  by  the  ECtHR.  For  instance, 
while  the  ECtHR  will  qualify  a  certain  discriminatory 
legislation  as  indirect  discrimination,  the  CJEU  might 
have  a  different  interpretation  of  the  principle  of  non-
discrimination.  For  instance,  the  CJEU  considered  a 
pension scheme as directly discriminatory and ultimately 
an  unjustified  measure,  since  it  excluded  male  civil 
servants, who were able to prove that they assumed the 
task  of  bringing  up  their  children,  from  obtaining  the 
points which the national legislation introduced for the 
calculation of retirement pensions.113 On the other hand, 
the  ECtHR  qualified  the  different  pension  scheme  as 
being indirectly discriminatory.114

Charter  can  overcome  the  procedural  limitations  in  the 
application of the ECHR – The Benkharbouche case showed 
that the Charter can provide a solution for situations where 
the application of the Convention is limited by statutory 
or constitutional provisions. In that case, Article 47 of the 
Charter allowed for the disapplication of the provisions 
of  the  UK  State  Immunity  Act  that  limited  access  of 
individuals  to  domestic  courts  and  effective  remedies. 
In that case, the third country nationals working at the 
embassies  of  their  countries  in  London,  could  access 
the courts  for the purpose  of claiming damages for the 
discriminatory practice applied by their States’ embassies. 
Regarding  the  area  of  non-discrimination  on  grounds 
of age, Article 21 Charter goes beyond the national and 
ECHR  standard  of  protection.  The  use  of  the  Charter 
to  enhance  fundamental  rights  protection  is  especially 
visible  also  in  the  case-law  of  German  courts,  whereby 
the  Charter  was  successfully  used  to  advance  the  level 
of  fundamental  rights  protection  in  the  context  where 
the ECHR did not provide for explicit and self-standing 
prohibition of age discrimination.

113 

 C-366/99, Griesmar, ECLI:EU:C:2001:648.
 ECtHR, Andrle v Czech Republic, Judgment of 17 February 

114 
2011, Appl. No. 6268/08.

33

ANNEX I – THE CHARTERCLICK! 
QUESTIONNAIRE

Don’t knock on the wrong door: CharterClick! 

A user friendly tool to detect violations falling within the scope of the EU Charter of Fundamental 
Rights

Co-funded by the European Union Programme 

“Fundamental Rights and Citizenship 2013”

34

Questionnaire on the Use of the Charter by and before National Human Rights Bodies

Contents

1. Introduction  1

2. The importance of shedding light on the use of the Charter by National Human Rights Bodies  2

3. Questionnaire  3

Part I – Your institution  

3

Part II – The EU Charter in your day-to-day activity 5

Part III – Help us modelling the CharterClick! On-line platform on your needs 

9

Part IV – Awareness raising and training activities  10

Completed questionnaires must be sent to charterclick@dsg.unifi.it and madalina.moraru@eui.eu by 1st of December 
2015.

1. Introduction
“Don’t  knock  at  the  wrong  door:  CharterClick!”  (hereinafter  CharterClick!)  is  a  two  year  project  (February  2015  - 
January 2017) co-financed by the European Commission under the “Fundamental Rights and Citizenship Programme 
2013”. The primary outcome consists in setting up an on-line, freely accessible platform with a set of tools aimed to 
provide assistance in understanding whether and how reliance on the EU Charter of Fundamental Rights (hereinafter 
EU Charter) can be of help in a specific case. The toolkit will target victims of fundamental rights violations, their 
representatives, national judges and national human rights bodies (NHRBs). Detailed information on the Project can 
be found in the Annex that complements this questionnaire.

This questionnaire, in particular, is primarily functional to the elaboration of one of the four main tools that will be 
uploaded to the Platform, notably of a document collecting the practices of NHRBs as regards the application of the 
Charter. At the same time, the information collected will be taken into consideration also in the elaboration of other 
tools, with a view to make them respondent to the actual needs of NHRBs.

2. The importance of shedding light on the use of the Charter by National Human Rights 
Bodies
NHRBs have a prominent role to play in the application of the EU Charter to the benefit of victims of fundamental 
rights violations. As reported by the Fundamental Rights Agency, NHRBs from different Member States have started 
to rely on the Charter in their everyday activity. Nevertheless, a comprehensive knowledge about their activity is still 
lacking, as well as about instruments through which they can learn from each other. Linguistic and time constraints, 
but also limited financial resources, are serious obstacles to the spontaneous creation of a process of cross-fertilisation. 

Against this background, the present questionnaire aims at collecting evidence on the current use of the Charter by 
NHRBs throughout the EU, but also at obtaining their suggestions on tools that may help them to improve the use 
of this instrument. Actually, the questionnaire pursues a twofold objective. First, by shedding light on the day-to-day 
use of the Charter by NHRBs, it will favour a process of mutual learning and cross-fertilisation between these bodies 
themselves.  Second,  drawing  on  the  experience  of  NHRBs  in  the  field,  the  team  of  the  CharterClick!  Project  will 
better tailor the tools created within the Project to the actual needs of such Bodies. The achievement of this ultimate 
objective is of crucial importance in order to bolster the application of the EU Charter, to the benefit of victims of 
fundamental rights violations. 

The gathered data will serve as a basis for statistical overview and qualitative analysis focused on the description of 
best practices. Please note that in this case the NHRB interested by the practice will be contacted in order to confirm 
its willingness to make it public. 

The final document will be uploaded on the on-line platform.

35

The questionnaire below includes four parts. Part I requires providing some general information on your institution. 
Part II refers to the role of the EU Charter in the activity of your institution. Part III aims at collecting the suggestions 
you may deem useful to improve the CharterClick! deliverables. Finally, Part IV focus on the training and awareness 
raising activities concerning the use and comprehension of the EU Charter. Part I and Part III are common to all 
the addressees of the Questionnaire, whereas in Part II and Part IV there are different sets of questions to be replied 
depending on the activity/ies perfomed by your institution. 

3. Questionnaire 

!!! Please, note that the questions below refer to the experience of your NHRB with the application of the 
Charter in the period from 1 December 2009 (the date on which the Charter became legally binding) to 
the date on which you fill in the questionnaire.

Part I – Your institution 

The purpose of this first part is to gather basic information about the NHRBs operating within the Member States. 
Previous research shows that the mandates of these bodies are quite heterogeneous, in terms of the legal areas covered 
(from  non-discrimination,  children  protection,  to  data  protection),  or  of  the  tasks  and  competences  (from  pure 
training to quasi-judicial mandate). 

1. Full name: 

___________________________________________________________________________

2. Member State: 

___________________________________________________________________________

3. Legal form: 

___________________________________________________________________________

Please, indicate if the act establishing your body is available in English and, whenever possible, include a link to it or 
send us a pdf version.

___________________________________________________________________________

4. Mandate 

4.1 Please, specify if your competence extends to all human rights listed in the Charter or it is limited to some of them 
(e.g. children rights, equality and non-discrimination rights): 

__________________________________________________________________________

___________________________________________________________________________

___________________________________________________________________________

4.2 Please, select which of the following activities are included in your mandate (if more than one, please indicate the 
most relevant one/s):

a. training

b. awareness raising

c. complaints processing

d. advisory role for government

36

e. litigating cases before courts

f. mediation provider/out-of-court dispute settlement

g. Other (please specify) __________________________

4.3  If  your  mandate  includes  the  processing  of  complaints  raised  by  individuals  (c)  in  question  5.2),  could  you 
specify the legal value of the decisions you may issue? (more replies are possible)

a. legally binding for parties 

b. not legally binding for parties 

c. subject to appeal or judicial review by courts/administrative bodies/other (please specify) 

d. not subject to appeal or judicial review 

e. compulsory for parties before any judicial action 

Please add any additional aspect you may deem interesting. 

____________________________________________________________________________________________
____________________________________________________________________________________________
____________________________________________________________________________________________
___________________________________

4.3.1 What is the general examination process followed by your body when processing complaints raised by individuals 
and its timeline (if available, please add links to the relevant documents). 

___________________________________________________________________________

___________________________________________________________________________

___________________________________________________________________________

___________________________________________________________________________

___________________________________________________________________________

___________________________________________________________________________

4.3.2 Does the examination process identify changes where the complaint falls within the scope of application of the 
Charter? If so, could you highlight the main differences in processing in such cases? 

___________________________________________________________________________

___________________________________________________________________________

___________________________________________________________________________

___________________________________________________________________________

___________________________________________________________________________

4.4 If your mandate includes litigating cases before courts (e) in question 4.2), could you describe the role you may have 
in front of courts? 

As a legal representative 

As an amicus curiae 

An an expert consultant 

Other (please specify below)

___________________________________________________________________________

37

___________________________________________________________________________

___________________________________________________________________________

___________________________________________________________________________

5. ICC accreditation under Paris Principles115 (please describe your position): 

___________________________________________________________________________

___________________________________________________________________________

Part II – The EU Charter in your day-to-day activity

The purpose of this part is to identify where, among the array of activities that your institution carries out, the EU 
Charter has a specific role. In particular, major attention will be drawn towards those institutions that are responsible 
for in-house mediation or adjudication vis-à-vis the violation of human rights, as well as those that are able to litigate 
the violations of human rights in front of courts. 

The questions will allow us to improve our understanding on how the EU Charter impacts on such activities and 
which are – if any – the tools employed to make the best use of the EU Charter. 

6. Which role does the Charter play within your activities? 

As the main legal source to decide complaints processed by the institution 

As  a  legal  basis/source,  among  others  (e.g.  national  constitutions,  international  conventions..),  of  inspiration  for 
arguments in litigation in front of courts

As legal source to decide in mediation and/or out of court settlement activity provided by your institution

As a training subject for internal staff

As a training subject for specific entities (individuals, NGOs, legal practitioners, etc.)

As a focus of awareness raising campaigns 

As a focus of government guidelines 

Other (Please specify). 

 ___________________________________________________________________________

___________________________________________________________________________

___________________________________________________________________________

___________________________________________________________________________

___________________________________________________________________________

IF YOU REPLIED a) PLEASE REPLY TO QUESTIONS 7-13
IF YOU REPLIED b) PLEASE REPLY TO QUESTIONS 14-22
IF YOU REPLIED c) or g) PLEASE REPLY TO QUESTIONS 23-24

Questions 7-13 are for those who replied a) in Question 6.

7. How many of the cases that you decided have concerned the violation of the Charter?

If possible, specify the number of relevant cases per year since 2010 and the total number of cases dealt with in the 
same year.

If your body produce annual reports, please add a link to them when available on-line or, if possible, send us a scanned 

115 
 Reference is made to the “Principles relating to the status of national institutions: Competences and Responsibilities”, de-
fined at the first International Workshop on National Institutions for the Promotion and Protection of Human Rights in Paris 7-9 October 1991, 
adopted by the Commission on Human Rights, Resolution 1992/54, in 1992 and by the General Assembly Resolution 48/134, in 1993. 

38

 
copy by e-mail together with this questionnaire.

2010 -   Total cases _______ 

2011 -   Total cases _______ 

2012 -   Total cases _______ 

2013 -   Total cases _______ 

2014 -   Total cases _______ 

2015 -   Total cases _______ 

Cases involving the Charter _________

Cases involving the Charter _________

Cases involving the Charter _________

Cases involving the Charter _________

Cases involving the Charter _________

Cases involving the Charter _________

8. Who has introduced the EU Charter in the complaint analysis? 

The claimant

The defendant 

The deciding body 

Other (please, specify below)

___________________________________________________________________________

___________________________________________________________________________

9. In these cases, which consequences did the use of the Charter entail? Specify, in particular, whether the use of the 
Charter led to establishing a different interpretation of the fundamental right concerned as compared to the domestic 
sources applicable. If yes, please specify whether the Charter contributed to establishing a higher or lower standard of 
protection than the domestic sources. Otherwise, wold you say that the Charter did not bring any substantive impact 
to the solution of the case? 

___________________________________________________________________________

___________________________________________________________________________

10. Which are the fundamental rights of the Charter that are most frequently at stake in your activity? Please, specify 
the  provisions  of  the  Charter  that  you  refer  to  most  frequently,  possibly  providing  also  some  information  on  the 
context of the case (e.g., art. 21, par. 1, on non-discrimination on ground of race in work-related case)

___________________________________________________________________________

___________________________________________________________________________

___________________________________________________________________________

11. Can you briefly (and anonymously if preferred) describe the most important case (or cases) where you applied 
the EU Charter? Please select the one(s) where the Charter has a clear traceable impact on the reasoning of your 
organisation in the follow-up given to a complaint.

___________________________________________________________________________

___________________________________________________________________________

___________________________________________________________________________

___________________________________________________________________________

___________________________________________________________________________

12.  Which  of  the  following  tools/databases  do  you  use  in  order  to  collect  information  on  the  interpretation  and 
application of the Charter and its potential? 

39

 
 
 
 
 
 
 
 
 
 
 
 
a. CJEU database (Curia)

b. Eur-lex

c. FRA Charterpedia

d. Other national or international databases (Please, specify: _____________________ _______________________
_____________________________________________)

Academic works 

Internal database 

Best practices shared with other institutions 

Other (Please, specify: __________________________________________________ ________________________
____________________________________________)

13. In case you answered f) or g) in the previous question (Q.12), could you please provide us some details on the tools/
best practices you are referring to?

___________________________________________________________________________

___________________________________________________________________________

___________________________________________________________________________

___________________________________________________________________________

___________________________________________________________________________

___________________________________________________________________________

Questions 14-22 are for those who replied b) in Question 6.

14. How many of the cases you were involved in concerned the violation of the EU Charter? 

___________________________________________________________________________

___________________________________________________________________________

15. Could you provide an approximate indication of the number of cases in which the EU Charter was principally 
relied on? In how many cases did it serve as an auxiliary argument?

___________________________________________________________________________

___________________________________________________________________________

16. Who has introduced the EU Charter in the complaint analysis? 

a. Victim of the violation 

b. Suspected author of the violation 

c. Deciding body 

___________________________________________________________________________

___________________________________________________________________________

17. In the cases where the Charter was principally relied on, which consequences did its use entail? Specify, in particular, 
whether the use of the Charter led to establishing a different interpretation of the fundamental right concerned as 
compared to the domestic sources applicable. If yes, please specify whether the Charter contributed to establishing a 

40

higher or lower standard of protection than the domestic sources. Otherwise, would you say that the Charter did not 
bring any substantive impact to the solution of the case? 

___________________________________________________________________________

___________________________________________________________________________

18. Which are the fundamental rights of the Charter that are most frequently at stake in your activity? Please, specify 
the  provisions  of  the  Charter  that  you  refer  to  most  frequently,  possibly  providing  also  some  information  on  the 
context of the case (e.g., art. 21, par. 1, on non-discrimination on ground of race in work-related case)

___________________________________________________________________________

___________________________________________________________________________

___________________________________________________________________________

19. Do you use any of the following tools/databases in order to collect information on the interpretation and application 
of the Charter and its potential? 

a. CJEU database (Curia)

b. Eur-lex

c. FRA Charterpedia

d. Other national or international databases (Please, specify: _____________________ _______________________
_____________________________________________ )

e. Academic works 

f. Internal database 

g. Best practices shared with other institutions 

h. Other (Please, specify: _________________________________________________ _______________________
_____________________________________________) 

20. In case you answered f) or g) in the above question (Q.19), could you please provide us some details on the tools/
best practices you are referring to?

___________________________________________________________________________

___________________________________________________________________________

___________________________________________________________________________

___________________________________________________________________________

___________________________________________________________________________

___________________________________________________________________________

21. Can you mention a case where the national court upheld your arguments based on the Charter? 

___________________________________________________________________________

___________________________________________________________________________

___________________________________________________________________________

___________________________________________________________________________

___________________________________________________________________________

41

22. Can you mention a case where the national court did not follow your arguments based on the Charter? 

___________________________________________________________________________

___________________________________________________________________________

___________________________________________________________________________

___________________________________________________________________________

___________________________________________________________________________

Questions 23-24 are for those who replied c) or g) in Question 6.

23. If your mandate includes an advisory role for governments, could you indicate which legislation regarding the EU 
Charter you commented on? Were your comments implemented? 

___________________________________________________________________________

___________________________________________________________________________

___________________________________________________________________________

___________________________________________________________________________

___________________________________________________________________________

24. If your mandate includes mediation and/or out-of-court dispute settlement, could you briefly describe the most 
relevant case (or cases) of alleged violations of the Charter you were involved in? Please, highlight the rights invoked 
and the outcome of the case.

___________________________________________________________________________

___________________________________________________________________________

___________________________________________________________________________

___________________________________________________________________________

Part III – Help us modelling the CharterClick! On-line platform on your needs

The purpose of this part is to involve your institution in identifying the challenges the NHRBs may face when using 
the EU Charter, selecting the most useful tools that would help to overcome such difficulties. This will also help the 
project members in fine-tuning the CharterClick! deliverables upon the real needs of NHRBs. 

THE FOLLOWING QUESTIONS ARE FOR ALL THE ADDRESSES 

25. Which are the main difficulties you experience in the practical use of the EU Charter?

a. Determining whether the situation concerned falls within the scope of application of the Charter in light of its 
Article 51, par. 1, and the related case law of the EU Court of Justice

b. Coordinating the provisions of the Charter with the other applicable legal sources, both national and international

Other (Please explain:_______________________________________________ 
____________________________________________________________________________________________
_______________________________________)

42

26. Which would be the most useful tool among the CharterClick deliverables (please see below in the document for a 
wider description)? For more information on the design of each of the deliverables, please refer to Annex 1.

Please indicate your preference between 1 (extremely useful) and 5 (not very useful). 

a. Admissibility Checklist

b. Database

c. Practical Guidelines on the application of the Charter

d. Best Practices concerning the fundamental rights violations falling within the scope of the Charter. 

Please, justify your answer(s):_____________________________________________________

___________________________________________________________________________

___________________________________________________________________________

___________________________________________________________________________

___________________________________________________________________________

27. Which are the features that CharterClick! deliverable(s) should have in order to better fit with your needs? 

a. Clarity

b. Ready to use (from the shelf) tools

c. Language accessibility 

d. Internet/mobile accessibility

e. Rich legal comparative data

Please, explain: ________________________________________________________________

___________________________________________________________________________

___________________________________________________________________________

28. Which are the main features that CharterClick! deliverables should have in order to make the Charter clearer to 
affected individuals who are non-professionals? Please list and explain the main features. 

a.______________________________________________

b.______________________________________________

c.______________________________________________

d.______________________________________________

e.______________________________________________

29. Based on your experience, which other type of tools (e.g. direct exchanges, meetings, networks, etc.) would be more 
useful to help you when defining the scope of application of the Charter? 

___________________________________________________________________________

___________________________________________________________________________

___________________________________________________________________________

___________________________________________________________________________

___________________________________________________________________________

43

30. Do you have any additional consideration and suggestion? Please share your views with us 

___________________________________________________________________________

___________________________________________________________________________

___________________________________________________________________________

___________________________________________________________________________

___________________________________________________________________________

Part IV – Awareness raising and training activities

This part addresses the initiatives aimed at raising awareness on the EU Charter organised by the addressees during 
the reference period.

31. Could you indicate the most relevant ones in the last three years? 

a.  

title: 

number of person exposed: 

timeframe: 

description:

____________________________________________________________________________________________
____________________________________________________________________________________________
____________________________________________________________________________________________
____________________________________________________________________________________________

b.  

title: 

number of person exposed: 

timeframe: 

description:

____________________________________________________________________________________________
____________________________________________________________________________________________
____________________________________________________________________________________________
____________________________________________________________________________________________

c.  

title: 

number of person exposed: 

timeframe: 

description:

____________________________________________________________________________________________
____________________________________________________________________________________________
____________________________________________________________________________________________
____________________________________________________________________________________________

44

 
 
 
 
 
 
 
 
 
 
d.  

title: 

number of person exposed: 

timeframe: 

description:

____________________________________________________________________________________________
____________________________________________________________________________________________
____________________________________________________________________________________________
____________________________________________________________________________________________

e.  

title: 

number of person exposed: 

timeframe: 

description:

____________________________________________________________________________________________
____________________________________________________________________________________________
____________________________________________________________________________________________
____________________________________________________________________________________________

32. If your mandate includes training activities as regards the Charter, could you indicate the most relevant ones in 
the last three years? 

___________________________________________________________________________

___________________________________________________________________________

___________________________________________________________________________

___________________________________________________________________________

___________________________________________________________________________

32. 1. Which were the target groups that benefited from these training activities? Please indicate the most numerous 
groups. 

a. own staff

b. public officials 

c. law enforcement officers 

d. judges and prosecutors 

e. academics

f. students

g. social 

h. general population 

i. other 

Please specify:  ________________________________________________________________________________
____________________________________________________________________________________________
____________________________________________________________________________________________
____________________________________________________________________________________________

45

 
 
 
 
 
 
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doi:10.2870/677859
ISBN:978-92-9084-543-0

RESEARCH 
PROJECT 
REPORT