COMMISSION STAFF WORKING DOCUMENT Staff Working Document on the Application of the EU Charter of Fundamental Rights in 2017 Accompanying the document Report from the Commission to the European Parliament, the Council, the European Economic and Social Committee and the Committee of the Regions 2017 Report on the Application of the EU Charter of Fundamental Rights
Date: 2018-06-04
Institutions: Directorate-General for Justice and Consumers, European Commission
Subjects: EU Charter of Fundamental Rights, European Convention on Human Rights, anti-discriminatory measure, application of EU law, fundamental rights, human rights, political rights, rights of aliens, rule of law, social rights

EN 

  EN 

   EUROPEAN COMMISSION  Brussels, 4.6.2018 SWD(2018) 304 final  COMMISSION STAFF WORKING DOCUMENT Staff Working Document on the Application of the EU Charter of Fundamental Rights in 2017 Accompanying the document Report from the Commission to the European Parliament, the Council, the European Economic and Social Committee and the Committee of the Regions 2017 Report on the Application of the EU Charter of Fundamental Rights  {COM(2018) 396 final}  
 
 
Introduction 

Following  the  entry  into  force  of  the  EU  Charter  of  Fundamental  Rights1  (‘the  Charter’)  in  December  2009,  the 
European Commission (‘the Commission’) adopted a strategy on the effective implementation of the Charter2. The 
strategy sets as an objective that the EU should be beyond reproach in upholding fundamental rights, in particular 
when  it  legislates.  The  Commission  also  undertook  to  preparing  annual  reports  to  inform  citizens  and  measure 
progress on the implementation of the Charter. They are intended to serve as a factual basis for ongoing dialogue 
between all EU institutions and Member States. 

This Staff Working Document accompanying the report for 2017, informs the public about situations in which they 
can rely on the Charter and on the role of the EU in fundamental rights. In covering all of the Charter provisions, the 
Commission’s annual reports aim to track where progress is being made, where further efforts are still needed and 
where new concerns are arising. 

The Staff Working Document includes action taken by the EU institutions and analysis of letters and petitions from 
the  public  and  questions  from  the  European  Parliament.  In  addition,  it  covers  major  developments  on  the 
jurisprudence of the Court of Justice of the European Union (‘the CJEU), and provides information on the case law of 
national courts on the Charter, based on an analysis carried out by the EU Agency for Fundamental Rights (FRA). 

Protection of fundamental rights in the EU 

In  the  EU,  the  protection  of  fundamental  rights  is  guaranteed  both  at  national  level  (by  Member  States’ 
constitutional systems) and at EU level (by the Charter). 

The Charter applies to all action taken by the EU institutions (including the European Parliament and the Council), 
which must respect the Charter, in particular throughout the legislative process. 

The  Charter  applies  to  Member  States  only  when  they  implement  EU  law.  Hence  it  does  not  replace  national 
fundamental rights systems, but complements them. The factor connecting an alleged violation of the Charter with 
EU law depends on the situation in question. For example, a connecting factor exists where: 

  national legislation transposes an EU directive; 

  a public authority applies EU law; or 

  a national court applies or interprets EU law. 

If  a  national  authority  (administration  or  court)  violates  fundamental  rights  set  out  in  the  Charter  when 
implementing EU law, the Commission can start an infringement procedure against the Member State in question 
and may take the matter to the CJEU.  

The Commission is neither a judicial body nor a court of appeal against the decisions of national courts. It does not as 
a matter of principle, examine  the merits of an individual case, unless this is relevant to its role of ensuring that the 
Member  States  apply  EU  law  correctly.  In  particular,  if  it  detects  a  wider,  e.g.  structural,  problem,  it  can  first 
approach the national authorities in order to have them address the issue, or it may start an infringement procedure 

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

2 

 
 
 
 
                                                            
and ultimately take a Member State before the CJEU. The objective of these infringement procedures is to ensure 
that  the  national  law  in  question  —  or  a  practice  by  national  administrations  or  courts  —  is  aligned  with  the 
requirements of EU law. 

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

Matters outside the scope of EU law 

The  Commission  cannot  pursue  complaints  that  concern  matters  outside  the  scope  of  EU  law.  This  does  not 
necessarily mean that fundamental rights have not been violated. If a situation does not relate to EU law, it is for the 
Member  States  alone  to  ensure  that  their  fundamental  rights  obligations  are  respected.  Member  States  have 
extensive  national  rules  on  fundamental  rights,  which  are  upheld  by  national,  including  in  many  Member  States, 
constitutional courts. Accordingly, any complaints in this context need to be addressed at the national level. 

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

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

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

right guaranteed by the Convention. 

All Member States are bound by the commitments  they have made under the Convention, independently of their 
obligations under EU law. The ECtHR has designed an admissibility checklist to help potential applicants assess for 
themselves whether there may be obstacles to it examining their applications3. 

The interpretation of the rights laid down in the Charter which reflect the rights guaranteed by the Convention must 
correspond to the interpretation of the Convention by the ECtHR.   

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

3 

 
 
 
                                                            
EU accession to the European Convention of Human Rights 

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

Overview of letters and questions to the Commission on fundamental rights 

In 2017, the Commission received 1 935 letters from the public and 781 questions from the European Parliament on 
fundamental rights issues. Of the 411 petitions it received from the European Parliament, 61 concerned fundamental 
rights4. 

4 See also Section on Article 44 below. 

4 

 
 
 
 
 
                                                            
Letters 

... no specific 
follow-up  
36% 

... with specific 
follow-up 
4% 

Outside EU 
competence 
60% 

Among the letters from the public, 781 concerned issues within EU competence. 

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

Questions 

... no specific 
follow-up  
48% 

Outside EU 
competence 
50% 

... with specific 
follow-up 
2% 

Among the questions from the European Parliament, 282 concerned issues within EU competence. 

5 

 
 
 
 
 
 
 
Petitions 

... no specific follow-
up  
44% 

Outside EU 
competence 
51% 

... with specific 
follow-up 
5% 

Among the 61 petitions on fundamental rights, 30 concerned issues within EU competence. 

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

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

The  EU  courts  have  increasingly  referred  to  the  Charter  in  their  decisions.  The  number  of  decisions  quoting  the 
Charter  in  their  reasoning  increased  from  43  in  2011  to  87  in  2012  and  further  to  113  in  2013  to  210  in  2014. 
Following a decrease to 167 in 2015, the number increased again to 221 in 2016, only to then fall slightly  to 195 in 
2017. Overall this reflects a tendency by the EU courts to quote the Charter in their decisions (see Appendix I for an 
overview of all relevant rulings). 

6 

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

250

200

150

100

50

0

6 

81 

15 

49 

20 

1 

70 

12 

37 

25 

37 
2 
2014

22 
0 
2015

4 

92 

14 

55 

13 

40 

3 
2016

0 

81 

8 

46 

20 

33 
7 
2017

General provisions

Justice

Solidarity

Citizens' rights

Equality

Freedoms

Dignity

1 

59 

10 
4 
14 
25 
1 
2013

3 
30 

23 
10 
8 
12 
1 
2012

0 
8 
1 
2 
8 
8 
0 
2010

0 
20 
4 
3 
6 
10 
0 
2011

s
g
n

i
l

u
r

f
o
r
e
b
m
u
N

Source: European Commission 

When addressing questions to the CJEU (requests for preliminary rulings), national courts often refer to the Charter. 
Of those requests submitted by judges in 2017, 44 contained a reference to the Charter, as compared to 60 in 2016 
(See Appendix II for an overview). 

Source: European Commission 

References to the Charter in CJEU and national court decisions 

7 

 
 
 
 
 
 
 
 
Articles of the Charter referred to prominently in cases before the EU courts were those on the right to an effective 
remedy, the right to good administration, non-discrimination and the right to property. 

Percentage of references to particular articles of the Charter in 
decisions of the Court of Justice of the European Union 2017  

5% 

7% 

31% 

22% 

Art 17 right to property

Art 21 non-discrimination

Art 41 right to good
administration
Art 47 right to an effective
remedy and to a fair trial
Other rights

35% 

Source: European Commission 

Note: The basis for this pie chart is the case law referred to in Appendix I. The total number of judgments analysed 
was 195 and several of them mentioned more than one article of the Charter. For the purpose of the pie chart, for 
each judgment one most relevant article was chosen, and percentages were calculated on that basis. The category 
‘Other rights’ refers to all rights for which the percentage amounts to less than 5 %, i.e. fewer than 10 references. 

8 

 
 
 
 
 
 
 
 
 
On decisions by national courts in 2017, the Charter provisions referred to most concerned the right to an effective 
remedy (Article 47), the field of application of the Charter (Article 51) and the scope of guaranteed rights (Article 52). 

National courts: Number of references to Charter articles in the analysed court decisions in 2017 

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

Article 4 - Prohibition of torture

Article 7 - Right for private and family life

Article 52 - Scope of guaranteed rights

Article 8 - Protection of personal data

Art. 21 - Non-discrimination

Art. 20 - Equality before the law

Article 51 - Scope of application

Article 41 - Right to good administration

Other articles

14 

12 

12 

10 

8 

7 

5 

5 

5 

0

5

10

15

20

25

30

35

40

35 

Note:  Based  on  68  court  decisions  analysed  by  the  EU  Agency  for  Fundamental  Rights.  These  were  issued  in  27 
Member  States  in  2017.  Up  to  three  decisions  were  reported  per  Member  State;  no  decision  was  reported  for 
Sweden. For every case only the predominant policy area was taken into account. The category ‘Other policy areas’ 
includes  policy  areas  that  were  referred  to  in  fewer  than  three  court  decisions.  The  categories  used  in  the  graph 
above are based on the subject matters used by EUR-Lex. 

Source: FRA, 2017 

9 

 
 
 
 
 
 
 
 
Overview of enquiries with the Europe Direct Contact Centres 

The data collected by the Europe Direct Contact Centres (EDCCs) confirm a high degree of interest among citizens on 
justice,  citizenship  and  fundamental  rights.  In  2017,  the  EDCCs  replied  to  7  761  enquiries  from  citizens.  Most 
concerned  topics  such  as  the  status  of  family  members  of  EU  citizens  and  their  right  of  residence,  protection  of 
consumers economic and legal interests and free movement of persons. 

Enquiries received by the European Contact Centre on justice, 
fundamental rights and citizenship in 2017 

Corporate governance
Equality between women and men
Funding
Anti-discrimination and fundamental social rights
Data protection
Judicial cooperation
Consumer policy
Fundamental rights and citizenship
Justice and other related policies
Free movement of persons

Protection of consumers economic and legal…

EU family members and residence

0

200

400

600

800 1000 1200 1400 1600 1800

Source: European Commission 

Methodology and structure 

The  staff  working  document  accompanying  the  annual  report  does  not  treat  the  Charter  only  as  a  legally  binding 
source of law. It also aims to give an account, more broadly, of the various ways in which the Charter was invoked 
and  contributed  to  progress  on  respecting  and  promoting  fundamental  rights  in  a  number  of  areas  in  2017. 
Consequently,  it  refers  to  the  Charter  as  a  legally  binding  instrument  and/or  a  policy  objective,  depending  on  the 
policy areas concerned. The accounts given in the different chapters of the report vary depending on the progress 
made  in  specific  policy  areas,  such  as  migration,  asylum,  digital  single  market,  the  European  Energy  Union,  and 
reflect the 10 policy areas identified as priorities by Commission President Juncker in his opening statement to the 
European Parliament in 20145. 

Hence, some chapters show how certain legislative measures are interacting with fundamental rights by promoting 
them  or  by  striking  the  right  balance  in  complying  with  them,  including  references  to  the  relevant  CJEU  case  law. 
Others  contain little of either and/or  may concentrate on policy rather  than legislative  measures. To illustrate  the 
growing  impact  of  the  Charter,  the  staff  working  document  (in  the  margins  of  the  page  where  relevant)  includes 

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

10 

 
 
 
 
 
                                                            
 
national  court  decisions  that  refer  to  the  Charter,  irrespective  of  whether  EU  law  is  applicable  to  those  national 
cases. 

Some measures and cases may relate to different articles of the Charter. While a measure and/or case are explained 
in more detail under the heading of one article, it may also be referred to in another. 

The structure of the staff working document reflects the six headings of the Charter itself: (i) Dignity, (ii) Freedoms, 
(iii) Equality, (iv) Solidarity, (v) Citizens’ rights and (vi) Justice. All six chapters contains the following information on 
the application of the Charter: 

 

legislation: 

o  examples of EU institutions’ (proposed or adopted) legislation promoting the Charter rights; and 

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

the Charter in 2017 within other (proposed or adopted) legislation; 

  policy: 

o  examples of how the EU institutions and the Member States ensured compliance with and applied 
the  Charter  in  2017  within  policy  areas,  e.g.  through  recommendations  and  guidelines  and  best 
practices; 

 

case law: 

o 

relevant CJEU jurisprudence; and 

o  national courts’ case law referring to the Charter (within or outside the scope of EU law); 

  application by Member States: 

o 

follow-up  on  infringement  procedures  launched  by  the  Commission  against  Member  States  for 
failure to correctly implement relevant legislation; 

  questions and petitions from the European Parliament and letters from the public received in 2017 focusing 

on key fundamental rights issues; and 

  data gathered by the EU Agency for Fundamental Rights in 2017. 

11 

 
 
 
 
 
Title I 

Dignity 

Effective  protection  of  human  dignity  continues  to  be  a  major  concern  in  particular  in  the  area  of  migration.  The 
Commission closely monitored  during 2017 the creation of a complaint mechanism to monitor and ensure respect 
for fundamental rights in the activities carried out by the European Border and Coast Guard Agency.  The Court of 
Justice  of  the  EU  ruled  in  the  case  C-578/16  C.K  and  others  on  whether  a  transfer  of  an  asylum  seeker  to  the 
Member  State  designated  under  the  Dublin  III  Regulation  as  responsible  to  examine  their  application  should  be 
prevented when there is a risk of inhuman or degrading treatment for the applicant concerned by that transfer. 

Article 1 — Human dignity 

Human dignity, as protected under Article 1 of the Charter, is the basis of all fundamental rights. It guarantees the 
protection of human beings from being treated as mere objects by the state or by their fellow citizens. It is a right, 
but also part of the essence of all other rights. Therefore it must be respected when any other rights are restricted. 
All subsequent rights and freedoms on dignity, such as the right to life and the prohibition of torture and slavery, 
add specific protection against violations of dignity. They must be equally upheld in order to protect other rights and 
freedoms in the Charter, for example the freedom of expression and the freedom of association. None of the rights 
laid down in the Charter may be used to harm the dignity of another person. 

Legislation and policy 

The need to ensure effective protection of human dignity guided the Commission’s negotiations during 2017 on the 
status  agreements  with  Serbia,  Albania  and  the  Former  Yugoslav  Republic  of  Macedonia  for  the  deployment  of 
European Border and Coast Guard (EBCG) teams with executive powers onto the territory of those third countries6. 
The draft agreements include an explicit clause for the respect of fundamental rights and freedoms by EBCG teams 
in the performance of their tasks. This includes human dignity as well as other relevant fundamental rights such as 
the right to respect for private life and personal data7. They also provide for a complaint mechanism to deal with 
allegations of fundamental rights breaches. 

The  process  of  creating  a  complaint  mechanism  to  monitor  and  ensure  the  respect  for  fundamental  rights  in  the 
activities  carried  out  by  the  European  Border  and  Coast  Guard  Agency  was  also  monitored  by  the  Commission 
during 20178. 

NATIONAL CASE LAW 

Outside  the  scope  of  application  of  EU  law,  the  Charter  was  used  by  national  courts  to  strengthen  protection 
provided  by  their  national  Constitutions.  In  particular,  the  Consititutional  Court  of  Croatia  clarified  the 
implication of their accession to the EU on fundamental rights. In a case concerning the violation of the right to 
dignity  (Article 1)  where  a  twelve  year  old boy  was  searched  by  a  security  guard  under  suspicion  of  theft in  a 

6 The Agreement with Albania was concluded on 12 February 2018  (http://europa.eu/rapid/press-release_IP-18-742_en.htm) and the 
following ones are expected to be concluded during 2018. 
7 Those rights are discussed further under Articles 7 and 8. 
8 https://ec.europa.eu/home-affairs/what-we-do/policies/securing-eu-borders/legal-documents_en, see further under Article 4. 

12 

 
 
 
 
                                                            
shop, the Constitutional Court went beyond referrring to the scope of EU law by affirming that ‘by joining the 
European  Union,  the  Republic  of  Croatia  has  accepted  the  contents  of  the  Charter,  whose  Chapter  I  is  titled 
Dignity [ …]. In this way, by committing to the contents of the Charter, human dignity becomes a component of 
the human rights catalogue of the Croatian Constitution’9. 

Article 2 — Right to life 

According to Article 2 of the Charter everyone has the right to life and no one should be condemned to the death 
penalty or executed. The European Court of Human Rights has ruled since 1989 that the exposure to the pervasive 
and  growing  fear  of  execution  —  the  so  called  ‘death  row  phenomenon’  —  was  in  violation  of  the  European 
Convention  on  Human  Rights.  The  ECtHR  has  also  held  that  the  implementation  of  the  death  penalty  could  be 
considered  inhuman  and  degrading  and  therefore  contrary  to  Article 3  of  the  European  Convention  on  Human 
Rights10. 

Preventing loss of lives is also one of the main challenges of the EU in managing irregular migration.   

Policy 

Continued efforts have been made by the Commission to implement the actions taken under the European Agenda 
on Migration that was adopted in 2015. The Commission reported regularly on the action being undertaken during 
201711, including in a mid-term review that was published on 27 September 201712. This includes actions taken on 
the protection of the right to life, in particular, support provided to the Italian and Greek rescue operations as well as 
the European Border and Coast Guard’s Triton and Poseidon operations and Operation Sophia, which contributed to 
saving  more  than  620  000  lives  in  the  Mediterranean  Sea.  While  every  life  lost  remains  one  too  many,  an 
improvement  in  the  situation  was  reported  by  the  International  Organisation  for  Migration,  whose  ‘Missing 
migrants’  project  reported  3 116  deaths  in  the  Mediterranean  in  2017,  the  lowest  figures  for  the  last  two  years 
(compared to 3 785 in 2015 and 5 143 in 2016)13. 

Preventing the loss of lives also continued to be one of the main objectives in the implementation of the EU-Turkey 
Statement of 18 March 201614, which the Commission has been closely monitoring and regularly reporting on15. This 
international  agreement,  as  a  temporary  and  extraordinary  measure  designed  to  put  an  end  to  the  unsustainable 
humanitarian crisis created by the cycle of uncontrolled flows of migrants and to the human suffering exploited by 
the smugglers led, from the first weeks of its operation, to a sharp decrease of irregular arrivals and the loss of life, 
while at the same time opening up the legal channel of resettlement for those in need of protection. 

Case law 

9 Croatia, Constitutional Court, case U-III-1095/2014, 21 September 2017. 
10 ECtHR, judgment of 2 March 2010 in case of Al-Saadoon & Mufdhi v. the United Kingdom, application no 61498/08. 
11 https://ec.europa.eu/home-affairs/what-we-do/policies/european-agenda-migration/proposal-implementation-package_en 
12  Communication  from  the  Commission  to  the  European  Parliament,  the  Council,  the  European  Economic  and  Social  Committee  and  the 
Committee of the Regions on the Delivery of the European Agenda on Migration (COM(2017) 558) and Staff Working Document — Progress 
report on the European Agenda on Migration of 15.11.2017 (Staff Working Document(2017) 372 final). 
13 http://missingmigrants.iom.int/ 
14http://europa.eu/rapid/press-release_STATEMENT-16-3945_en.htm  
   http://www.consilium.europa.eu/en/press/press-releases/2016/03/18/eu-turkey-statement/ 
15  See  Seventh  Report  on  the  Progress  made  in  the  implementation  of  the  EU-Turkey  Statement,  of  6 September  2017,  COM/2017/0470. 
Further reporting  is  included in  the  comprehensive progress  reports  on  the  implementation  of  the  European  Agenda  on  migration, notably 
COM(2017) 669 final of 15.11.2017 and COM(2018) 250 final of 14.3.2018. 

13 

 
 
 
                                                            
The  compatibility  of  the  EU-Turkey  Statement  with  fundamental  rights,  including  the  right  to  protection  from 
refoulement16, was raised before the Court in an action for annullment in case NF, NG and NM v European Council17. 
The case was dismissed, however, because the international agreement was concluded by the Member States and 
not the EU18. 

Article 3 — Right to the integrity of the person 

The  right  to  physical  and  mental  integrity  protects  people  from  infringements  by  public  authorities  and  requires 
authorities  to  promote  such  protection,  e.g. through  specific  legislation.  In  medicine  and  biology,  in  particular  the 
free and informed consent of the person concerned and the prohibition of eugenic practices, on making human body 
and its parts a source of financial gain and of the reproductive cloning of human beings must be respected. 

Application by Member States 

Issues on the respect and protection by law enforcement authorities of the right to the integrity of the person were 
the  object  of  a  number  of  parliamentary  questions  and  complaints  addressed  to  the  Commission,  which  drew 
attention  to  allegations  of  violence  exercised  by  the  police  in  the  Member  States  or  the  lack  of  protection  by  the 
police against violence and threats.  

The  Commission  recalled  the  obligation  upon  national  authorities  to  investigate  any  such  instances,  in  order  to 
ensure  respect  for  fundamental  rights  as  enshrined in national  constitutions  and  derive  from international human 
rights instruments to which Member States are parties.  National authorities are obliged to do this when exercising 
their exclusive competence to  maintain law and order and safeguard internal security in their country in line with 
applicable national legislation (Article 72 of the Treaty for the Functioning of the European Union (TFEU)). 

The  Commission  also  received  a  number  of  complaints  alledging  that  smart  metering  systems  promoted  in  EU 
legislation19  was incompatible with the right to the integrity of the person. The Commission considered that smart 
metering  systems  do  not  present  a  risk  to  health  linked  to  the  exposure  to  radio  frequency  electromagnetic 
radiation. The Commission pointed to evidence showing that low-energy radio frequency waves generated by smart 
meters (only for short periods each day to transmit information) would only make minor contributions to the total 
background  radiation  level  inside  a  home  which  is  negligible  compared  with  accepted  safety  limits20.  The 
Commission  also  recalled  that  smart  meter  systems  remain  subject  to  strict  national  and  EU  product  safety 
legislation, which require manufacturers to ensure the safety of all products they place on the market. 

16 The 1951 United Nations Convention relating to the Status of refugees in Article 33(1) provides that “No Contracting State 
shall expel or return (“refouler”) a refugee in any manner whatsoever to the frontiers of territories where his life or freedom 
would be threatened on account of his race, religion, nationality, membership of a particular social group or political opinion.” 
17 Cases T-192/16, T-193/16 and T-257/16, NF, NG and NM v Council. 
18 See also Article 19. 
19 https://ec.europa.eu/energy/en/topics/markets-and-consumers/smart-grids-and-meters 
20  ‘Final  opinion  on  Potential  health  effects  of  exposure  to  electromagnetic  fields  (EMF)’  Scientific  Committee  on  Emerging  and  Newly 
Identified Health Risks (http://ec.europa.eu/health/scientific_committees/emerging/docs/scenihr_o_041.pdf;  
http://ec.europa.eu/dgs/health_food-safety/dyna/enews/enews.cfm?al_id=1581). 

14 

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

punishment 

Article 4  of  the  Charter  prohibits  torture  and  inhuman  or  degrading  treatment  or  punishment.  Complying  with 
Article 4 requires authorities to be particularly vigilant where border controls, immigration and asylum is concerned. 

Policy 

The Commission monitored and took stock during 2017 of the progress achieved and the work that still needed to be 
done  to  ensure  that  a  fully  operational  and  equipped  European  Border  and  Coast  Guard  Agency  is  in  place.  The 
Commission published five reports on the workings of the Agency21, focusing on five main priority areas, including 
creating the complaint mechanism and ensuring the respect for fundamental rights in the activities carried out by 
the Agency22. 

 Case law 

Of  particular  relevance  is  the  ruling  of  the  CJEU  in  the  case  C.K  and  others23  on  whether  a  transfer  of  an  asylum 
seeker  to  the  Member  State  designated  under  the  Dublin  III  Regulation  as  responsible  for  examining  their 
application24  should  be  prevented  when  there  is  a  risk  of  inhuman  or  degrading  treatment  for  the  applicant 
concerned by that transfer.  

The Court held that Article 4 of the Charter must be interpreted as meaning that even where there are no substantial 
grounds for believing that there are systemic flaws in the Member State responsible for examining the application 
for asylum under Article 3(2) of the Regulation, the transfer of an asylum seeker as provided by the Regulation can 
only take place if it is excluded that that transfer might cause a real and proven risk that the person concerned could 
suffer inhuman or degrading treatment.  

According to the Court, a transfer of an asylum seeker who has a serious mental or physical illness would constitute 
inhuman and degrading treatment if the transfer would result in a real and proven risk of significant and permanent 
deterioration in the state of their health. In such situation, the authorities of the transferring Member State, and if 
necessary its courts, need to take all the necessary precautions to ensure that the transfer takes place in conditions 
enabling appropriate and sufficient protection of that person’s state of health. If those precautions are not sufficient, 
the authorities of the Member States concerned should suspend the execution of the transfer of that person until 
their condition improves.  

The Court further clarified that where the state of health of the asylum seeker concerned is not expected to improve 
in the short term, or that the suspension of the procedure for a long period would  risk worsening the condition of 
that person, the requesting Member State may conduct its own examination of that person’s application by invoking 
the ‘discretionary clause’ laid down in Article 17(1) of the Dublin III Regulation. 

21 http://europa.eu/rapid/press-release_IP-16-3281_en.htm 
22 https://ec.europa.eu/home-affairs/what-we-do/policies/securing-eu-borders/legal-documents_en 
23 Judgment of 16 February 2017 in case C-578/16 PPU, C.K. and Others v Republika Slovenija. 
24 Regulation (EU) No 604/2013 of the European Parliament and of the Council of 26 June 2013 establishing the criteria and mechanisms for 
determining the Member State responsible for examining an application for international protection lodged in one of the Member States by a 
third-country national or a stateless person. 

15 

 
 
 
                                                            
Article 5 — Prohibition of slavery and forced labour 

Slavery violates human dignity. Article 5(3) of the Charter prohibits trafficking in human beings. Slavery and forced 
labour  are  also  forms  of  exploitation  covered  by  the  definition  of  trafficking  in  human  beings  in  Article 2  of 
Directive 2011/36/EU on preventing and combating trafficking in human beings and protecting its victims (the ‘Anti-
trafficking Directive’)25. 

Policy 

The Commission, responding to calls by civil society, the European Parliament, the Council, Member States and other 
stakeholders,  adopted  on  4 December  2017  a  Communication  on  ‘Reporting  on  the  follow-up  to  the  EU  strategy 
towards the  eradication  of  trafficking in  human  beings  and identifying  further  concrete actions’26. The priorities  of 
the strategy are:  

 
 
 

to disrupt the business model and untangle the trafficking chain;  
to provide better access to and fulfill the rights for victims; and  
to bolster a coordinated and consolidated response, both within and outside the EU.  

In addition, collecting information and improving understanding of this complex issue needs to continue, as well as 
providing appropriate funding in support of anti-trafficking initiatives and projects. The Communication supports the 
implementation of the Anti-trafficking Directive and its integrated, holistic, human rights-based, gender specific and 
child sensitive approach in addressing trafficking in human beings.  

The Communication was presented on 5 December 2017 to the Joint Session gathering the representatives of the EU 
Network of National Rapporteurs or equivalent mechanisms and the EU Civil Society Platform against trafficking in 
human beings, organised with the Estonian Presidency of the Council27. The Commission has encouraged making use 
of  the  EU  Civil  Society  e-Platform,  which  would  enable  better  engagement  with  the  Commission  and  exchange 
information on actions against trafficking in human beings28.  

On 17 January 2017 the final evaluation report on the Implementation of the Eurojust Action Plan against trafficking 
in human beings 2012-201629 was published. Following Europol’s Serious and Organised Crime Threat Assessment in 
the EU30, the Council decided to continue the EU policy cycle for organised and serious international crime in 2018-
202131, which identifies trafficking in human beings as a priority. 

The Commission published in 2017 an overview on EU anti-trafficking actions for 2012-201632.  On 18 October 2017, 
the  EU  Anti-trafficking  day,    European  Commissioner  Avramopoulos    in  charge  of  migration,  home  affairs  and 

25  Directive  2011/36/EU  of  the  European  Parliament  and  of  the  Council  of  5 April  2011  on  preventing  and  combating  trafficking  in  human 
beings and protecting its victims, and replacing Council Framework Decision 2002/629/JHA (OJ L 101, 15.4.2011, p. 1). 
26  COM(2017) 728;  4.12.2017,  available  at:  https://ec.europa.eu/home-affairs/news/trafficking-human-beings-commission-adopts-new-
communication-and-commits-new-set-priorities_en 
27 The Platform brings together around a hundred civil society organisations including human rights organisations, migrant organisations and 
those working on the rights of women and children from EU Member States and non-EU countries. 
28 https://ec.europa.eu/anti-trafficking/media-outreach-els/eu-civil-society-e-platform_en 
29http://www.eurojust.europa.eu/doclibrary/Eurojust-
framework/casework/Implementation%20of%20the%20Eurojust%20Action%20Plan%20against%20THB%202012-2016 %20-
%20Final%20evaluation%20report%20(January%202017)/2017-01-31-THB-2012-2016_EN.pdf 
30  Europol,  EU  SOCTA  (2017),  Crime  in  the  age  of  technology,  https://www.europol.europa.eu/activities-services/main-reports/european-
union-serious-and-organised-crime-threat-assessment-2017 
31  Council Conclusions on the continuation of the EU Policy Cycle for organised and serious international crime for the period 2018-2021 — 
Council conclusions (27 March 2017), 7093/17 Available at: http://data.consilium.europa.eu/doc/document/ST-7704-2017-INIT/en/pdf 
32 https://ec.europa.eu/anti-trafficking/sites/antitrafficking/files/eu_anti-trafficking_action_2012-2016_at_a_glance.pdf 

16 

 
 
 
                                                            
citizenship,  called for stronger action to fight trafficking in human beings33. The day was preceded by an exhibition 
as  part  of  a  campaign  ‘Hear  their  voices.  Act  to  protect’,  at  the  European  Economic  and  Social  Committee  in 
cooperation  with  the  United  Nations  Office  on  Drugs  and  Crime34.  Addressing  trafficking  in  human  beings  also 
continued  to  feature  as  a  funding  priority  of  the  EU  both  in  migration  and  security  based  on  a  victim-centred 
approach  and  taking  into  account  the  gender  specific  and  child  sensitive  nature  of  the  EU  framework.  Further  in 
research financial support was earmarked for new methods to prevent, investigate and mitigate trafficking of human 
beings and child sexual exploitation and on the protection of victims under the Horizon 2020 work programme 2018-
2020 priority ‘Secure societies - protecting freedom and security of Europe and its citizens’35. 

Issues  related  to  human  trafficking  continue  to  be  raised,  in  particular  with  connection  to  migration  (the  Central 
Mediterranean  route  and  the  situation  in  non-EU  countries  such  as  Libya  and  Egypt)  and  the  specific  risks  facing 
children (including unaccompanied) but also in connection to exploitation and abuse of both EU citizens and non-EU 
nationals. The Commission replied to the 19 written questions received on this issue from Members of the European 
Parliament. 

Application by Member States 

In the context of the EU cohesion policy, a Member State was contacted by a Commission department on a possible 
violation  of  the  prohibition  of  slavery  and  forced  labour  in  a  project  co-financed  by  the  European  Structural  and 
Investment  Funds  (ESI).  National  authorities  were  requested  to  investigate  the  alleged  employment  of  forced 
workers from North Korea after several companies, including those that had received co-financing from ESI Funds, 
were accused by the press of forcibly employing  workers of North  Korean origin. During 2017 national authorities 
provided  information  to  the  Commision  according  to  which  there  had  been  no identified  breach  of  EU  labour  law 
and  the  Charter  in that case.  That  said,  the  National  Labour  Inspectorate  was  also  conducting  further  checks  on 
other companies that were beneficiaries of ESI funds. 

In late 2015 and 2016 several reports emerged on cases of alleged abuses and forced labour of migrant fishers in the 
EU  fishing  industry.  Following  these  reports  various  measures  were  adopted  by  the  Member  State  concerned  to 
rectify  the  situation,  including  the  creation  of  a  dedicated  task  force  and  a  new  recruitment-scheme  for  non-EEA 
workers. Despite these efforts, various international and national public and private bodies, including the Council of 
Europe, have continued to find shortcomings in the protection of migrant workers in the fisheries sector throughout 
2017.  

The  Commission  has  closely  monitored  developments  since  they  first  emerged.  It  has  repeatedly  called  on  the 
Member State concerned to solve the remaining problems as quickly as possible in order to ensure compliance with 
applicable EU law, in particular, rules on trafficking in human beings and labour exploitation and continues to do so. 

33https://ec.europa.eu/anti-trafficking/eu-policy/eu-anti-trafficking-day-stronger-action-needed-fight-trafficking-human-beings_en 
34https://ec.europa.eu/anti-trafficking/eu-policy/eu-anti-trafficking-day-stronger-action-needed-fight-trafficking-human-beings_en 
35 http://ec.europa.eu/research/participants/data/ref/h2020/wp/2018-2020/main/h2020-wp1820-security_en.pdf 

17 

 
 
 
 
                                                            
Letters 

Justice 
17% 

Citizens' rights 
21% 

Solidarity 
4% 

Equality 
29% 

Other 
11% 

Freedoms 
18% 

Dignity 
1% 

Human dignity  
0,26% 

Right to life 
0,10% 

Right to integrity of a 
person 
0,16% 

Prohibition of torture 
...  
0,16% 

Questions 

Citizens' rights 
15% 

Solidarity 
6% 

Justice 
7% 

Equality 
31% 

Other 
7% 

Dignity 
7% 

Freedoms 
27% 

Human Dignity 
2,66% 

Right to life 
3,37% 

Right to integrity of a 
person 0.53% 
Prohibition of torture 
0.53% 
Prohibition of slavery 
and forced alabour  

18 

 
 
 
 
 
Petitions 

Citizens' rights 
30% 

Solidarity 
10% 

Equality 
21% 

Human Dignity 
1;5% 

Justice 
8% 

Other 
10% 

Dignity 
3% 

Freedoms 
18% 

Right to integrity of 
the person 
1,5% 

19 

 
 
 
 
 
 
Title II 

Freedoms 

Following the adoption of the EU-US Privacy Shield Adequacy Decision in July 2016, the Commission conducted  the 
first annual review of its application in 2017. The outcome of the review is contained in a  Report to the European 
Parliament and the Council on the first annual review of the functioning of the EU-U.S. Privacy Shield, which also 
proposes a number of specific recommendations to the U.S. authorities. 

The proposal for a Regulation on  a framework for the free flow of non-personal data in  the EU, adopted by the 
Commission  on  13 September  2017  aims  at  contributing  to  eliminating  and  preventing  unjustified  or 
disproportionate  barriers  to  using  and  providing  data  services  (such  as  cloud  services  and  configuring  in-house  IT 
systems). 

The  Security  of  Gas  Supply  Regulation  adopted  on  25 October  2017  introduced  for  the  first  time  a  solidarity 
mechanism between Member States. This mechanism is designed to address extreme situations in which gas supply, 
as priority basic need, is at stake in a Member State. 

The  Commission  adopted  a  Communication  on  Tackling  Illegal  Content  Online  on  28 September  2017.  The 
Communication  states  that  the  fight  against  illegal  content  online  must  be  carried  out  with  proper  and  robust 
safeguards  to  ensure  protection  of  the  different  fundamental  rights  at  stake.  In  the  last  quarter  of  2017,  the 
Commission launched its initiative on fake news and the spread of disinformation online, as called for in a 15 June 
2017 Resolution of the European Parliament and announced by President Juncker in his 13 September 2017 State of 
the Union address.  

Policy  and  legislative  developments  were  registered  in  2017  in  asylum  and  migration,  including  in  the  context  of 
negotiations  on the  reform  of  the  Common  European Asylum  System  as  well as  the  progress  made in  relocation 
and  resettlement  policy.  The  Court  issued  several  judgments  providing  guidance  to  the  Member  States  on  the 
validity and interpretation of the EU asylum and migration acquis, in particular in detaining migrants.  

Issues related to the respect of the right to freedom of association were also raised in 2017 including developments 
at national level touching on the role and functioning of civil society organisations. 

20 

 
 
 
 
 
Article 6 — Right to liberty and security 

The rights of all to liberty and security correspond  to those guaranteed in Article 5 of the Convention.  They mean 
that a person’s liberty can be limited only under strict legal conditions. 

Case law 

The  CJEU  issued  a  number  of  judgments  on  the  detention  of  migrants.  In  K36.  the  Court  considered  the  right  to 
liberty versus the administrative detention of asylum seekers provided under the Reception Conditions Directive37.  

The question asked by the referring Dutch court concerned the detention of an asylum seeker in order to determine 
their  identity  or  nationality;  or  in  order  to  determine  those  elements  on  which  the  application  for  international 
protection is based and which could not be obtained in the absence of detention, in particular when there is a risk of 
abscondment38.  

The Court analysed the relevant provisions in light of the standards set in Article 6 of the Charter read in conjunction 
with  Article 52(1)  and  (3)39.  It  found  no  elements  that  would  affect  the  validity  of  the  relevant  provisions  of  the 
Directive. According to the Court, these provisions struck a fair balance between the asylum seeker’s right to liberty 
and,  the  requirements  on  the  identification  of  that  asylum  seeker  or  of  their  nationality,  or  to  determine  the 
elements on which their application is based.  

According to the Court, the administrative detention of an asylum seeker based on these grounds serves to allow the 
assessment of whether the asylum seeker satisfies the conditions to qualify for such protection, which is necessary 
for the proper functioning of the Common European Asylum System − an objective of general interest recognised by 
the EU.  At the same time, the Court stressed that all the conditions for applying such a measure and the guarantees 
set out in Articles 8 and 9 of the Directive must be respected and that national authorities must always determine, 
on  a  case-by-case  basis,  whether  detention  measures  are  proportionate  to  the  aims  pursued.  This  implies  that 
administrative detention is used only as a last resort and for as short a period as possible. 

In  Khir40  the  Court  clarified  the  relevant  provisions  of  the  Dublin  III  Regulation41  on  the  maximum  periods  of 
detention  pending  the  transfer  of  an  asylum  seeker.  The  Court  held  that  national  legislation  may  provide  for 
detention  of  an  asylum  seeker  for  international  protection  for  no  longer  than  two  months  when  the  requested 
Member State has accepted to take charge of the request. In that situation, the duration of the detention must not 
go beyond what is necessary for the purposes of that transfer procedure. This is to be assessed on a case-by-case 
basis. Where applicable, the duration of the detention must not to longer than six weeks from the date when the 
appeal or review ceases to have suspensive effect. 

36 Judgment of 14 September 2017 in case C-18/16, K. v Staatssecretaris van Veiligheid en Justitie. 
37 Article 8 of Directive 2013/33/EU of the European Parliament and of the Council of 26 June 2013 laying down standards for the reception of 
applicants for international protection. 
38 Articles 8(3)(a) and (b) of the Reception Conditions Directive. 
39 permissible limitations on Charter rights. 
40 Judgment of 13 September 2017 in case C-60/16, Mohammad Khir Amayry v Migrationsverket. 
41 See further under Article 4. 

21 

 
 
 
 
                                                            
In  Al  Chodor42,  on  the  detention  of  an  asylum  seeker  at  significant  risk  of  absconding  under  the  Dublin  III 
Regulation,  the  Court  clarified  that  the  objective  criteria  according  to  which  a  person  subject  to  a  Dublin  transfer 
procedure  is  deemed  to  be  at  risk  of  absconding  must  be  defined  by  the  provisions  of  a  binding  act  of  general 
application.  According  to  the  Court,  case  law  of  competent  courts  and  established  administrative  practice  of  the 
border police are not sufficient, and in the absence of such a definition ‘by law’ of such criteria, detention is to be 
regarded as unlawful. 

Article 7 — Respect for private and family life 
Article 7 of the Charter guarantees the right of all to respect for private and family life, home and communications. 

The  right  to  private  life  includes  the  protection  of  privacy  in  relation  to  personal  information.  Where  legislation, 
policy or case law refer to this right in connection with the protection of personal data, this report will refer to them 
under Article 8 below. 

Legislation 

On 12 December 2017, the Commission adopted legislative proposals43 establishing a framework for interoperability 
between  EU  information  systems,  as  a  further  step  to  improve  information  exchange  to  improve external  border 
control  and  to  enhance  internal  security  in  full  compliance  with  fundamental  rights.  Interoperability  has  the 
potential of having an indirect positive impact on the right to private life, and in particular the right to one’s identity, 
as it can help to avoid incorrect identifications. Given the personal data involved, interoperability will have an impact 
on the right to the protection of personal data, which is closely linked to respect for private and family life enshrined 
by Article 7 of the Charter44. The Commission will evaluate the instruments, including assessing the results against 
the objectives and their impact on fundamental rights. 

Case law 

In  Chavez  Vilchez45  the  CJEU  further  clarified  its  jurisprudence  in  the  Zambrano46  case.  The  case  concerned  the 
conditions  linked to  the right  of  residence in the EU of  a  non-EU  national parent  whose  child is  an  EU citizen in a 
situation in which the child would otherwise be compelled to leave the EU and therefore be deprived of benefiting 
from the rights of EU citizenship.  

The  judgment  explained  the  assessment  that  needs  to  be  carried  out  to  determine  whether  the  child  would  be 
compelled to leave the EU and the factors that need to be taken into consideration in that assessement:  

42 Judgment of 15 March 2017 in case C-528/15, Policie ČR, Krajské ředitelství policie Ústeckého kraje, odbor cizinecké policie v Salah Al Chodor 
and Others. 
43 Proposal for a Regulation of the European Parliament and of the Council on establishing a framework for interoperability between EU 
information systems (borders and visa) and amending Council Decision 2004/512/EC, Regulation (EC) No 767/2008, Council Decision 
2008/633/JHA, Regulation (EU) 2016/399 and Regulation (EU) 2017/2226, COM(2017) 793 final, 12.12.2017,   
https://ec.europa.eu/home-affairs/sites/homeaffairs/files/what-we-do/policies/european-agenda-
security/20171212_proposal_regulation_on_establishing_framework_for_interoperability_between_eu_information_systems_borders_and_v
isa_en.pdf and Proposal for a Regulation of the European Parliament and of the Council on establishing a framework for interoperability 
between EU information systems (police and judicial cooperation, asylum and migration), COM(2017) 794 final,  
https://ec.europa.eu/transparency/regdoc/rep/1/2017/EN/COM-2017-794-F1-EN-MAIN-PART-1.PDF. 
44 See further under Article 8 below. 
45 Judgment of 10 May 2017 in case C-133/15, H.C. Chavez-Vilchez and Others v Raad van bestuur van de Sociale verzekeringsbank and Others, 
see section below on Article 45. 
46 Judgment of 8 March 2011 in case C-34/09, Gerardo Ruiz Zambrano v Office national de l’emploi (ONEm). 

22 

 
 
 
                                                            
  which parent is the primary carer of the child;  
  whether there is a relationship of dependency between the child and the non-EU national parent taking into 

account the age, and physical and emotional development of the child;  
the extent of the child’s emotional ties to each parent; and  
the risks that separation from the non-EU national parent might entail for the child’s equilibrium. 

 
 

The  Court  stated  that,  as  part  of  that  assessment,  competent  authorities  must  take  account  of  the  right  to 
respect for family life and the best interests of the child (Article 7 read in conjunction with Article 24(2) of the 
Charter). 

Article 8 — Protection of personal data 

The fundamental right of all to the protection of personal data is explicitly stated in Article 8 of the Charter and also 
enshrined  in  Article 16  of  the  Treaty  on  the  Functioning  of  the  EU  (‘TFEU’).  According  to  this  right,  personal  data 
must be processed fairly, for specified purposes and on the basis of the consent of the person concerned or some 
other  legitimate  basis  laid  down  by  law.  The  data  protection  reform  package  —  which  entered  into  force  in  May 
2016  and  will  apply  from  May  2018  —  will  ensure  that  the  rights  of  data  subjects  can  be  effectively  protected  in 
times of rapid technological developments. 

Legislation 

Following  the adoption of the data protection reform package in 201647, the Commission worked closely in 2017 
with the Member States to accompany them in the process of adapting or repealing their existing laws, as necessary, 
and to turn the new legislation into national law by May 2018.  

The Commission set up an Expert Group with representatives from the Member States, which met regularly in 2017 
to exchange views and information on the implementation of the General Data Protection Regulation (‘GDPR’) and 
on turning the Data Protection Directive for police and criminal justice authorities into national law. Moreover, the 
Commission supported the work of the national data protection authorities, which play a key role in ensuring the 
coherent interpretation and enforcement of the new rules.  

The Article 29 Working Party48 adopted guidelines for companies and other stakeholders on certain key provisions 
of the GDPR49. In collaboration with the Commission, the Working Party also devoted much of its work to setting up 
a new EU body: the European Data Protection Board whose main task will be to ensure the consistent application of 
the GDPR. 

47 The package consists of: 
- 
Regulation  (EU)  2016/679  of  27 April  2016  (OJ  L  119,  4.5.2016,  p.  1–-88)  known  as  a  General  Data  Protection  Regulation  (GDPR) 
repealing Directive 95/46/EC. The GDPR modernises the principles of Directive 95/46/EC, tailoring them for the digital age and harmonising 
data  protection  law  in  Europe,  will  give  citizens  easier  access  to  their  own  personal  data,  a  right  to  data  portability,  a  clarified  ‘right  to  be 
forgotten’ and certain rights in the event of a personal data breach; and 
- 
Directive  (EU)  2016/680  of  27 April  2016  (OJ  L  119,  4.5.2016,  p.  89–-131),  known  as  a  Data  Protection  Directive  for  Police  and 
Criminal Justice Authorities, repealing Council Framework Decision 2008/977/JHA. The Data Protection Directive for Police and Criminal Justice 
Authorities  will  allow  Member  States’  enforcement  authorities  to  exchange  information  necessary  for  more  efficient  and  effective 
investigations. It also ensures strong protection of personal data fully in line with the Charter. 
48  The body that brings  together the  data  protection  authorities  of  the  Member  States, named after Article 29 of  Directive  95/46/EC which 
established it. 
49 http://ec.europa.eu/justice/data-protection/article-29/documentation/opinion-recommendation/files/2016/wp236_en.pdf. 

23 

 
 
 
 
                                                            
As announced in the letter of intent following President Juncker’s State of the Union speech on 13 September 2017, 
the Commission prepared guidance to businesses and organisations (particularly targeted towards  SMEs) processing 
personal data50 and for individuals51 to explain the new rules that would apply from May 2018. The guidance takes 
the form of a practical online toolkit and was published on 28 January 2018. It waspromoted through an information 
campaign and dissemination activities in all Member States, targeting businesses and the public. 

Over  the  past year,  the Commission organised a  number of  events  to  reach  out to  stakeholders  on the GDPR,  for 
instance with representatives of the health sector and of SMEs. 

The  Commission  is  also  supporting  awareness-raising  and  compliance  efforts  at  national  level  by  awarding  grants 
that can be used to provide training to data protection authorities, public administrations, legal professions and data 
protection officers to familiarise them with the GDPR. The Commission also published a restricted call for proposals 
to  support  awareness-raising  activities  carried  out  by  data  protection  authorities  at  national  level  and  aimed  at 
individuals and SMEs. The Commission set up a multi-stakeholder group on the GDPR to get the views of businesses 
and  civil  society,  practitioners  and  academics  on  certain  issues  related  to  this  legislation,  in  particular  on  how  to 
achieve an appropriate level of awareness among stakeholders. 

Along with the reinforced protection provided by the data protection reform package within the EU, the Commission 
also  aims  to  ensure  a  high  level  of  data  protection  at  international  level  in  the  context  of  the  global  information 
society. Openness for international data flows and ensuring the highest level of protection for individuals need to go 
hand in hand to ensure trust. 

The Communication on Exchanging and Protecting Personal Data in a Globalised World52, published on 10 January 
2017, sets out the Commission strategy to ensure that when the personal data of Europeans are transferred abroad, 
the level of protection ensured by the EU is also recognised by the country receiving the data’. Taking advantage of 
the new rules for cross-border data transfers provided by the data protection reform package, shapes the lines for 
future  action  that  the  Commission  is  going  to  take  in  seeking  gradual  global  coming  together  of  data  protection 
principles and standards across the world. 

Following the adoption  of the EU-US privacy shield adequacy decision53 in July 2016, the Commission conducted in 
September 2017 in Washington, D.C. the first annual review of its application. The positive outcome of the review54 
and  specific recommendations  to  the US  authorities  to  ensure  the continued  successful  functioning of  the Privacy 
Shield Framework were then considered in a Report to the European Parliament and the Council on the first annual 
review of the functioning of the EU-US privacy shield55. 

50 https://ec.europa.eu/info/law/law-topic/data-protection/reform/rules-business-and-organisations_en 
51 https://ec.europa.eu/info/law/law-topic/data-protection/reform/rights-citizens_en 
52 COM(2017) 7 final; 10.1.2017, available at: http://europa.eu/rapid/press-release_MEMO-17-15_en.htm 
53 Commission Implementing Decision (EU) 2016/1250 of 12 July 2016 pursuant to Directive 95/46/EC of the European Parliament and of the 
Council  on  the  adequacy  of  the  protection  provided  by  the  EU-U.S.  Privacy  Shield,  C/2016/4176  OJ  L  207,  1.8.2016.  The  Privacy  Shield 
Framework ensures the free flow of personal data for commercial purposes between the EU and certified U.S. companies, while securing the 
fundamental right to the protection of the data. 
54 The Commission concludes that the United States continue to ensure an adequate level of protection for personal data transferred under 
the Privacy Shield from the Union to organisations in the United States. 
55 http://ec.europa.eu/newsroom/just/item-detail.cfm?item_id=605619 

24 

 
 
 
                                                            
The EU-US Data Protection ‘Umbrella Agreement’56, which ensures a high level of data protection for any transfer of 
personal data (based on international agreements or Member States laws) between the EU and the US in police or 
judicial cooperation in criminal matters, entered into force on 1 February 201757. 

The Commission took account of the fundamental rights to private life and protection of personal data in a number 
of other policy areas in 2017.In the digital area, the new legislative proposal on the respect for private life and the 
protection  of  personal  data  in  electronic  communications  and  repealing  Directive  2002/58/EC  —  Regulation  on 
Privacy and Electronic Communications — was adopted on 10 January 2017. The proposal aims to increase the level 
of  protection  of  privacy  and  personal  data  processed  and  make  it  more  effective  in  relation  to  electronic 
communications  in  line  with  Articles  7  and  8  of  the  Charter  and  to  ensure  greater  legal  certainty.  The  proposal 
complements the GDPR. Effective protection of the confidentiality of communications is essential for exercising the 
freedom of expression and information and freedom of thought, conscience and religion 58. 

On 13 September 2017, the Commission adopted a new cybersecurity package59. Cybersecurity has an essential role 
in protecting the privacy and personal data of individuals: in case of cyber incidents, the privacy and the protection 
of our personal data are clearly exposed. By aiming to reinforce cybersecurity in the EU, the proposal complements 
legislation protecting the fundamental right to privacy and personal data. 

In migration, the Schengen Borders Code60  entered into force on 7 April 2017. Member States are obliged to carry 
out  systematic  checks  against  relevant  databases  on  individuals  enjoying  the  right  of  free  movement  when  they 
cross  the  external  border.  The  databases  contain  data  on  lost  and  stolen  documents  used  to  check  that  those 
individuals  do  not  represent  a  threat  to  public  order  and  internal  security.  Since  the  consultation  of  databases 
functions  on  a  hit/no-hit  basis,  the  mere  consultation  is  neither  registered  nor  further  processed,  thereby 
guaranteeing the right to respect private and family life and to the right to the protection of personal data. 

On  20 December  2017,  the  Commission  adopted  eight  Recommendations  for  a  Council  Decision  authorising  the 
opening of negotiations for agreements between the EU and the People’s Democratic Republic of Algeria, the Arab 
Republic  of  Egypt,  the  State  of  Israel,  the  Hashemite  Kingdom  of  Jordan,  the  Lebanese  Republic,  the  Kingdom  of 
Morocco, Tunisia and the Republic of Turkey respectively on the exchange of personal data between the EU Agency 
for Law Enforcement Cooperation (Europol) and, respectively, the Algerian, Egyptian, Israeli, Jordanian, Lebanese, 
Moroccan,  Tunisian  and  Turkish  competent  authorities  for  fighting  serious  crime  and  terrorism.  The  purpose  of 
these international agreements is to provide a legal basis for the transfer of personal data between Europol and the 
respective competent authorities in the non-EU country, adducing adequate safeguards for the protection of privacy 
and fundamental rights and freedoms of individuals61. 

56  Agreement  between  the  United  States  of  America  and  the  European  Union  on  the  protection  of  personal  information  relating  to  the 
prevention, investigation, detection, and prosecution of criminal offenses. 
57 OJ L 25, of 31.1.2017, p.1-2. 
58  See Articles 10 and  11. 
59 The package consist of a proposal for the Regulation on ENISA, the ‘EU Cybersecurity Agency’, and repealing Regulation (EU) 526/2013, and 
on Information and Communication Technology cybersecurity certification (‘‘Cybersecurity Act’’). 
60 Regulation (EU) 2017/458 of the European Parliament and of the Council of 15 March 2017 amending Regulation (EU) 2016/399 as regards 
the reinforcement of checks against relevant databases at external borders, OJ L 74, 18.3.2017, p. 1-7. 
61 Recital (4) of the Recommendations for a Council Decision reads, ‘The Agreement should respect the fundamental rights and observe the 
principles recognised by the Charter of Fundamental Rights of the European Union, in particular the right to private and family life, recognised 
in Article 7 of the Charter, the right to the protection of personal data, recognised in Article 8 of the Charter and the right to effective remedy 
and fair trial recognised by Article 47 of the Charter.’. 

25 

 
 
 
                                                            
The  previously  mentioned62  Commission  proposals  to  establish  a  framework  for  interoperability  between  EU 
information  systems  are  based  on  the  principles  of  data  protection  by  design  and  by  default  and  include  all 
appropriate  provisions  limiting  data  processing  to  what  is  necessary  for  the  specific  purpose,  and  granting  data 
access only to those entities that ‘need to know’. Data retention periods are appropriate and limited and access to 
data is reserved exclusively for authorised staff of the Member State authorities or EU bodies that are competent for 
the  specific  purposes  of  each  information  system  and  limited  to  the  extent  that  the  data  are  required  for  the 
performance of tasks for these purposes. 

In fisheries, three instruments have been adopted in 2017 in full compliance with the EU rules on the protection of 
personal data: 

1) Implementing Regulation on the Union fishing fleet register63; 

2) Regulation on a Union framework for the collection, management and use of fisheries data64; and  

3) Regulation on the sustainable management of the external fishing fleet65.  

All  of  these  instruments  require  that  any  data  handling  must  be  carried  out  in  line  with  the  EU  legislation  on  the 
protection  of  personal  data.  Furthermore,  in  all  relevant  cases  appropriate  safeguards,  such  as  a  higher  level  of 
aggregation  or  anonymisation  of  data,  should  be  put  in  place  if  data  includes  information  relating  to  identified  or 
identifiable  natural  persons,  taking  into  consideration  the  purposes  of  processing,  the  nature  of  the  data  and  the 
potential risks relating to the processing of personal data. To comply with the relevant EU rules on data protection, 
these  three  Regulations  require  that  at  all  times  and  at  all  levels  the  obligations  on  personal  data  protection  are 
respected. 

In taxation, a political agreement was reached in the Council on 13 March 2018 to adopt  the Commission’s proposal 
for  a  Council  Directive  for  mandatory  automatic  exchange  of  information  on  reportable  cross-border 
arrangements66. The proposal provides that any processing of personal data carried out within the framework of the 
Directive must comply with the EU data protection legislation and with the principles recognised by the Charter. The 
proposal is in line with the principle of proportionality with regard to its purpose, in particular since it will be limited 
to schemes of a cross-border dimension that fulfil certain indications of aggressive tax planning (‘hallmarks’). 

Another measure proposed by the Commission that could trigger new exchange and joint processing of existing VAT 
information,  which  could  include  personal  data  is  the  proposal  for  a  Council  Regulation  as  regards  measures  to 

62 See Article 7 
63 Commission Implementing Regulation (EU) 2017/218 of 6 February 2017 on the Union fishing fleet register (OJ L 34, 9.2.2017, p. 9). It sets 
out obligations for the Commission as regards the Union register, and for Member States as regards the collection and validation of data in 
their national registers. The maintenance of these registers involves the processing of personal data, in particular, data concerning owners and 
operators of vessels. 
64 Regulation (EU) 2017/1004 of the European Parliament and of the Council of 17 May 2017 on the establishment of a Union Framework for 
the collection, management and use of data in the fisheries sector and support for scientific advice regarding the common fisheries policy and 
repealing Council Regulation (EC) 199/2008 (OJ L 157, 20.6.2017, p. 1). It sets out the  conditions for the collection, management and use of 
biological, environmental, technical and socio-economic data in the fisheries sector. It thereby also covers the processing of personal data. 
65 Regulation (EU) 2017/2403 of the European Parliament and of the Council of 12 December 2017 on the sustainable management of external 
fishing fleet, and repealing Council Regulation (EC) 1006/2008 (OJ L 347, 28.12.2017, p. 81). It aims at ensuring compliance with international 
rules concerning the sustainable management and conservation of marine resources. The issuing and management of fishing authorisations 
under this Regulation involves the collection, storage, and exchange of a whole range of different data, including personal data of operators of 
vessels, which flow into the electronic Union fishing authorisation database. 
66 https://ec.europa.eu/taxation_customs/sites/taxation/files/intermediaries-proposal-2017_en.pdf 

26 

 
 
 
                                                            
strengthen administrative cooperation in the field of value added tax67.  Therefore data collection will be strictly 
targeted and restricted to operators alledgedly involved in fraudulent transactions. The data will be stored only for 
the time needed for analysis and investigations by national tax authorities empowered to enforce VAT obligations. 
They will be used solely to identify suspected fraudsters at an early stage and to put an end to fraudulent networks 
whose  purpose  is  to  abuse  the  VAT  system  by  perpetrating  VAT  fraud.  They  will  be  accessed  and  used  only  by 
authorised staff. 

Policy 

The protection of personal data has been central in several policies related to the digital environment. 

The commitment of the Commission to guarantee data protection and privacy aspects of the Charter in the context 
of  cloud  computing  services  through  the  application  of  data  protection  law  continued  in  2017.  Since  September 
2012, the Commission has been working with industry to agree on a code of conduct for cloud service providers to 
support  a  uniform  application  of  personal  data  protection  rules.  The  code  would  provide  users  of  cloud 
infrastructure, software or platform services with the assurance that their data are being protected in line with the 
GDPR68.  

The joint work with industry was carried out in the context of the Cloud Select Industry Group (C-SIG)69. The C-SIG 
code has also been used as a model for a more specific code of conduct for cloud infrastructure providers (CISPE)70. 
Since  then,  the  two  codes  have  been  discussed  with  data  arotection  authorities  (through  the  Article  29  Working 
Party), who made suggestions for improvements. At the C-SIG meeting in February 2017, the code of conduct71  was 
handed  over  to  a  non-profit  organisation  (Scope  Europe),  where  the  code  continues  to  be  further  developed  and 
disseminated. SCOPE Europe72 established governance rules and promotes the widespread adoption of the code by 
cloud service providers. Both codes of conduct need to be further developed in line with the feedback of the Article 
29 Working Party and to make them fully compliant with GDPR requirements. 

In  the  Internet  of  things,  the  recently  proposed  Cybersecurity  Package73  mentioned  under  ‘legislation’  is  putting 
forward  the  instruments  that  would  enable  the  development  of  the  Internet  of  things  certification  and  potential 
labels or marks. 

Moreover,  in  January  2017  the  Communication  on  ‘Building  a  European  Data  Economy’74  assessed  whether  the 
current EU legal rules for product liability are fit for purpose, when damages occur in the context of the use of the 
Inernet of things and autonomous systems. In May 2017 the Commission announced in the   Digital Single Market 
mid-term review75 that it will consider the possible need to adapt the current legal framework to take account of 
new technological developments, particularly from the angle of civil law liability and taking into account the results 
of the ongoing evaluation of the Product Liability Directive76 and the Machinery Directive77 . 

67 http://eur-lex.europa.eu/legal-content/EN/TXT/?uri=CELEX:52017PC0706 
68 The GDPR explicitly recognises and encourages codes of conduct, as they complement the implementationof the law by providing guidance 
and clarity to providers and users alike. 
69 https://ec.europa.eu/digital-single-market/en/cloud-select-industry-group-code-conduct 
70 https://cispe.cloud/ 
71 https://eucoc.cloud/fileadmin/cloud-coc/files/Feb15_Press_Release.pdf 
72 https://scope-europe.eu/en/about-us/ 
73 https://ec.europa.eu/info/law/better-regulation/initiatives/com-2017-477_en 
74 http://eur-lex.europa.eu/content/news/building_EU_data_economy.html 
75 http://eur-lex.europa.eu/content/news/digital_market.html 
76 Council Directive 85/374/EEC of 25 July 1985 on the approximation of the laws, regulations and administrative provisions of the Member 
States concerning liability for defective products, OJ L 210, 7.8.1985, p. 29-33. 

27 

 
 
 
                                                            
Under the Research and Innovation Programme Horizon 2020, several initiatives co-funded by the EU during 2017 
are  of  particular  relevance  for  the  rights  enshrined  in  Article 8  (and  7)  of  the  Charter.  In  particular,  six  ongoing 
projects  addressing  privacy  have  been  funded  for  a  total  EU  contribution  of  EUR 19.5  million.  They  aim  at 
empowering individuals in managing their privacy as a response to the need for privacy in a highly connected world 
where personal information becomes an increasingly valuable commoditiy.  

To this end, the Privacy Flag78 and Operando79 projects are developing tools to enable individuals to check whether 
their  rights  as  data  subjects  are  being  respected,  and  tools  and  services  to  help  companies  comply  with  personal 
data protection requirements.  

The  project  VisiOn80  will  provide  clear  visualisation  of  privacy  preferences,  relevant  threats  and  trust  issues  along 
with an insight into the economic value of user data.  

The TYPES project81 will provide tools that should enable the end user to configure the privacy settings so that only 
the  information  they  consent  to  is  collected  by  online  advertising  platforms  and  to  detect  information  collection 
occurring without consent and to identify the offender.  

The PANORAMIX project82 will develop a European infrastructure for secure communications with the capability to 
delete meta-data information while at the same time having suitable accountability features.  

And  particularly  in  the  context  of  the  cloud,  project  SafeCloud83  will  ensure  that  data  transmission,  storage,  and 
processing can be separated into multiple administrative domains that are unlikely to collude, so that sensitive data 
can be protected by design. 

Under Horizon 2020, the Commission called for more proposals addressing privacy and the protection of personal 
data84, with a total estimated EU contribution of additional EUR 19.6 million. The new projects from this 2017 call are 
expected to start by April 2018. 

Case law 

In  the  case  of  Mr  Manni85,  the  CJEU  provided  an  important  interpretation  of  the  storage  limitation  principle 
(Article 6(1)(e) of the Directive 95/46/EC, also referred to in Article 5(1)(e) of the GDPR). According to this principle, 
personal data must be ‘kept (…) no longer than is necessary for the purposes for which the data were collected or for 
which  they  are  further  processed’.  In  this  case,  an  individual  brought  an  action  before  the  Italian  court  seeking  to 
erase,  anonymise  or  block  the  personal  data  processed  by  a  rating  company  linking  him  to  the  liquidation  of  a 
company. Mr Manni also requested the court to grant him compensation for the damage he had suffered.  

The  Court  considered  that  there  is  no  ‘right  to  be  forgotten’  for  personal  data  in  company  registers.  However,  in 
exceptional cases, Member States may grant restricted access to such data by third parties once a sufficiently long 

77  Directive  2006/42/EC  of  the  European  Parliament  and  of  the  Council  of  17 May  2006  on  machinery,  and  amending  Directive  95/16/EC 
(recast) (Text with EEA relevance), OJ L 157, 9.6.2006, p. 24-86. 
78 http://privacyflag.eu/ 
79 https://www.operando.eu 
80 http://www.visioneuproject.eu/ 
81 http://www.types-project.eu/ 
82 https://panoramix-project.eu/ 
83 http://www.safecloud-project.eu/ 
84 H2020 topic  DS-08-2017: ‘Cybersecurity PPP: Privacy, Data Protection, Digital Identities’. 
85 Judgment of 9 March 2017 in case C-398/15, Camera di Commercio, Industria, Artigianato e Agricoltura di Lecce v Salvatore Manni. 

28 

 
 
 
                                                                                                                                                                                                                      
period has passed following the dissolution of the company concerned. According to the Court, the mere fact that 
the  properties  did  not  sell  because  potential  buyers  had  access  to  the  personal  data  of  Mr  Manni  held  in  the 
companies register could not justify a limitation of access by third parties to that data, given the legitimate interest 
of those buyers in obtaining that data. 

Another important interpretation of the data protection legislation was provided by the CJEU following a preliminary 
ruling  in  the  Nowak  case86.  The  preliminary  question  related  to  the  possibility  to  request  access  to  exam  papers 
based on the data protection legislation. The Court ruled that the written answers submitted by a exam candidate 
and  any  written  comments  made  by  an  examiner  constitute  personal  data,  within  the  meaning  of  the  data 
protection  legislation.  Therefore,  the  rights  of  data  subjects,  such  as  the  right  of  access  can  be  exercised  in  such 
cases. 

In Tele2 (Netherlands) BV87, the Court ruled that telephone subscriber’s consent to the publication of their personal 
data also covers its use in another EU Member State, since the highly harmonised EU regulatory framework makes it 
possible to ensure the same level of protection for subscribers’ personal data. 

In its Opinion 1/15 of 26 July 2017, the Court concluded that the envisaged agreement between the EU and Canada 
on  the  transfer  of  passenger  name  record  data  (PNR)  may  not  be  concluded  in  its  current  form.  While  the  Court 
stated  that  the  systematic  transfer,  retention  and  use  of  all  air  passenger  data  may  be  justified  to  ensure  public 
security  in  the  context  of  the  fight  against  terrorist  offences  and  serious  cross-border  crime  as  an  objective  of 
general interest.  

The  Court  also  found  that  several  provisions  of  the  envisaged  agreement  were  not  in  line  with  the  fundamental 
rights  to  privacy  and  to  personal  data  protection  enshrined  in  the  Charter,  in  particular  in  terms  of  their 
proportionality  and  the  clarity  and  precision  of  the  rules  laid  down  and  due  to  the  lack  of  justification  for  the 
transfer,  processing  and  retention  of  sensitive  data.    The  Opinion  also  sets  out  detailed  conditions  which,  if 
adequately  fulfilled, would make  the  agreement  compatible  with the fundamental  rights  recognised  by  the  EU.  In 
particular,  the  Court  considered  that  the  agreement  should  exclude  the  transfer  of  sensitive  data  from  the  EU  to 
Canada  and  the  use  and  retention  of  that  data.  Moreover,  the  retention  of  PNR  data  after  the  air  passengers’ 
departure needs to be justified by the existence of risks affecting public security. It also makes the disclosure of data 
to non-EU authorities conditional to specific conditions. Finally, the oversight of the rules concerning the protection 
of air passengers’ personal data by an independent supervisory authority has to be guaranteed. The Commission will 
resume negotiations with Canada in accordance with a new mandate to meet the Court’s requirements. 

86 Judgment of 20 December 2017 in case C-434/16, Peter Nowak v Data Protection Commissioner. 
87 Judgment of 15 March 2017 in case C-536/15, Tele2 (Netherlands) BV and Others v Autoriteit Consument en Markt (ACM). 

29 

 
 
 
                                                            
NATIONAL CASE LAW BOX 

In  checking  the  compliance  of  Member  States’  legislation  implementing  EU  law,  Article 8  of  the  Charter  served  as 
parameter in two cases related to the right of data protection.  

The Supreme Administrative Court of Finland assessed the compatibility of the  Personal Data Act of 1999 with the 
Charter and the European Convention on Human Rights in a case on the storage of fingerprints data in the passport 
register.  The  national court found  that  the restriction  on  the  right to  a  private  life and the  protection  of  personal 
data are precise and defined in sufficient detail and therefore not contrary to the Charter88.  

The  Higher  Administrative  Court  in  Germany  checked  the  compatibility  of  the  German  Telecommunication  Act,  
implementing  the  e-Privacy  Directive  2002/58/EC  with  the  Charter.  In  that  case,  the  national  court  found  the 
limitation on the freedom to conduct business (Article 16 of the Charter) was unjustified and therefore incompatible 
with the Charter89. 

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

Article 9 of the Charter is based on Article 12 of the European Convention on Human Rights, which states that: 

‘Men and women of marriageable age have the right to marry and to found a family according to the national 
laws governing the exercising of this right.’ 

The  wording  has  been  updated  to  cover  cases  in  which  national  legislation  recognises  arrangements  other  than 
marriage  for  founding  a  family.  Article 9  neither  prohibits  nor  imposes  the  granting  of  the  status  of  marriage  to 
unions between people of the same sex. This right is thus similar to that afforded by the Convention, but its scope 
may be wider when national legislation allows. 

Case law 

An interesting reference for a preliminary ruling was submitted by the Constitutional Court of Romania to the CJEU 
on the free movement of persons90. The question raised the issue of whether the same-sex spouse of an EU citizen 
having exercised his freedom of movement, must be granted a right of permanent residence as the ‘spouse’ of that 
EU citizen in a Member State which does not recognise same-sex marriage. Following the hearing in November 2017, 
the Advocate-General delivered his Opinion on 11 January 2018, where he clarified that the legal issue at the centre 
of  the  dispute  is  not  that  of  the  legalisation  of  same-sex  marriage,  but  that  of  the  free  movement  of  EU  citizens: 
while Member States are free to allow marriage between people of the same sex in their domestic legal system or 
not, they must fulfil their obligations under the freedom of movement of EU citizens. 

Article 10 — Freedom of thought, conscience and religion 

The right guaranteed in Article 10 (1) of the Charter corresponds to the right guaranteed in Article 9 of the European 
Convention on Human Rights. The right includes freedom to change religion or belief and freedom, either alone or in 
community  with  others  and  in  public  or  private,  to  manifest  religion  or  belief,  in  worship,  teaching,  practice  and 
observance. Article 10 (2) recognises the right to conscientious objection, in line with national laws. 

88 Decision of 15 August 2017 by the Supreme Administrative Court of Finland, no 3872/2017. 
89Germany, Higher Administrative Court North Rhine-Westphalia, case 13 B 238/17, 22 June 2017. 
90 Case C-673/16, Coman and Others v Inspectoratul General pentru Imigrări and Others, pending before the CJEU. 

30 

 
 
 
 
 
 
 
                                                            
Case law 

In  2017  the  CJEU  issued  two  important  judgments  in  the  area  of  non-discrimination  on  the  grounds  of  religion  in 
employment, regarding two cases where Muslim women were dismissed by their employers because of their wish to 
wear  an  Islamic  headscarf  at  work91.  In  Achbita92  and  Bougnaoui93  the  Court  clarified  for  the  first  time  the 
interpretation  of  the  relevant  provisions  under  the  Employment  Equality  Directive94.  It  interpreted  the  notion  of 
‘religion’ covering also the freedom of persons to manifest their religious beliefs in public, explicitly referring to the 
Convention  (Article 9)  and  the  Charter  (Article 10  (1)).  The  Court  recognised  that,  under  specific  conditions,  an 
internal rule of a private undertaking which prohibits the visible wearing of any political, philosophical or religious 
sign can be compatible with EU law. 

Parliamentary questions 

In 2017, several questions were raised by the Members of the European Parliament on the safety of Jews in Europe 
and what action the Commission was taking to combat antisemitism. 

The  Commission  replied  that  it  has  boosted  the  political  will  to  fight  antisemitism  through  different  means.  A 
coordinator  to  combat  antisemitism  was  appointed  in  2015  to  liaise  with  Member  States  and  civil  society  and 
funding was made available to support civil society and Member States. In particular, funding had been provided for 
projects  to  increase  awareness  about  our  common  history,  particularly  the  Holocaust  remembrance.  The 
Fundamental  Rights  Agency  also  provides  data  and  assists  EU  institutions  and  national  governments  in  taking  the 
necessary measures to ensure that the rights of Jews are fully respected and protected across the EU. The annual 
EU-Israel seminar on combating racism, xenophobia and antisemitism also deepens international efforts to eradicate 
antismitism. 

Data gathered by the EU Agency for Fundamental Rights (FRA) 

In 2017 the Agency published the second report on EU Minorities and Discrimination Survey (EU-MIDIS II) Muslims95. 
The  report  is  based  on  data  collected  from  a  survey  of  around  26 000  people  with  immigrant  or  ethnic  minority 
backgrounds living in the EU. It examines the experiences of more than 10 500 people surveyed who identified as 
Muslims in 15 EU Member States. In addition to discrimination — including police stops based on ethnic background 
—  it  explores  issues  ranging  from  citizenship,  trust  and  tolerance,  harassment,  violence  and  hate  crime,  to  rights 
awareness.  It  provides  a  unique  insight  into  the  experiences  and  perceptions  of  the  EU’s  second  largest  religious 
group,  representing  about  4 %  of  the  EU’s  total  population.  Taken  together,  the  survey  findings  and  the 
recommendations can provide a good basis to support the effectiveness of a wide range of measures in integration 
and non-discrimination, as well as internal security policy. 

Article 11 — Freedom of expression and information 

The right to freedom of expression is guaranteed by Article 11(1) of the Charter and includes the freedom to hold 
opinions and to receive and share information and ideas without interference by public authorities and regardless of 

91 These cases are also discussed under Articles 16 and 21. 
92  Judgment  of  14 March  2017  in  case  C-157/15,  Samira  Achbita  and  Centrum  voor  gelijkheid  van  kansen  en  voor  racismebestrijding  v  G4S 
Secure Solutions. 
93 Judgment of 14 March 2017 in case C-188/15, Asma Bougnaoui and Association de défense des droits de l’homme (ADDH) v Micropole. 
94 Council Directive 2000/78/EC of 27 November 2000 establishing a general framework for equal treatment in employment and occupation. 
95 http://fra.europa.eu/en/publication/2017/eumidis-ii-muslims-selected-findings. 

31 

 
 
 
 
                                                            
frontiers.  Article 11(2)  ensures  respect  for  freedom  and  pluralism  of  the  media.  In  line  with  Article 52(3)  of  the 
Charter, the EU’s approach to ensuring this right is inspired by the case law of the European Court of Human Rights. 

Legislation 

Negotiations  continued  in  the  Council  and  the  European  Parliament  during  2017  on  the  Commission  legislative 
proposal  amending  the  Audiovisual  Media  Services  Directive96  which  aims  at  strengthening  the  provisions  on 
independence  of  regulators  and  reinforces  the  role  of  the  European  Regulators  Group’s  for  Audiovisual  Media 
Services.  

Negotiations  also  continued  on  the  Directive  of  the  European  Parliament  and  of  the  Council  on  copyright  in  the 
Digital  Single  Market97    which  contains  provisions  on  measures  aiming  at  protecting  press  publications  which  are 
expected to have a positive impact on the freedom of expression and information as they are expected to foster the 
quality of journalistic content.  

Discussions  also  continued  in  the  Council  and  the  European  Parliament    on  the  proposal  for  a  Regulation  of  the 
European  Parliament  and  of  the  Council  laying  down  rules  on  the  exercise  of  copyright  and  related  rights 
applicable  to  certain  online  transmissions  of  broadcasting  organisations  and  retransmissions  of  television  and 
radio  programmes98    which  is  expected  to  have  a  positive  impact  on  the  freedom  of  expression  and  information 
since  it  will  increase  the  cross-border  provision  and  receipt  of  TV  and  radio  programmes  which  originate  in  other 
Member States. 

Policy 

The  Commission  adopted  a  Communication  on  Tackling  Illegal  Content  Online  on  28 September  201799.  It  states 
that  ‘the  fight  against  illegal  online  content  must  be  carried  out  with  proper  and  robust  safeguards  to  ensure 
protection  of  the  different  fundamental  rights  at  stake’.  Prior  to  the  adoption  of  this  Communication,  the 
Commission  had  carried  out  an  extensive  stakeholder  consultation,  including  several  workshops  to  gather 
information from digital platforms, civil rights organisations and academia100. One of the workshops which took place 
on 12 June 2017 was on digital platforms and fundamental rights. 

The Commission has been involved as observers and followed-up closely the Council of Europe recommendation on 
the roles and responsibilities of internet intermediaries101 to ensure policy coherence in this area. The Commission 
has consistently stressed that fundamental rights must be fully respected. 

96  Proposal  for  a  Directive  of  the  European  Parliament  and  the  Council  amending  Directive  2010/13/EU  on  the  coordination  of  certain 
provisions laid down by law, regulation or administrative action in Member States concerning the provision of audiovisual media services in 
view of changing market realities, COM(2016) 0287 final, 25.5.2016. 
97 Proposal for a Directive of the European Parliament and of the Council on copyright in the Digital Single Market, COM(2016) 593, 14.9.2016. 
98 Proposal for a Regulation of the European Parliament and of the Council laying down rules on the exercise of copyright and related rights 
applicable  to  certain  online  transmissions  of  broadcasting  organisations  and  retransmissions  of  television  and  radio  programmes, 
COM(2016) 594, 14.9.2016. 
99Communication from the Commission to the European Parliament, the Council, the European Economic and Social Committee and the 
Committee of the Regions on Tackling Illegal Content Online,  COM(2017) 555 final, 28.9.2017, https://ec.europa.eu/digital-single-
market/en/news/evidence-gathering-liability-online-intermediaries 
100 https://ec.europa.eu/digital-single-market/en/news/evidence-gathering-liability-online-intermediaries 
101  Recommendation  CM/Rec(2018)2  of  the  Committee  of  Ministers  to  member  States  on  the  roles  and  responsibilities  of  internet 
intermediaries. 

32 

 
 
 
                                                            
In the last quarter of 2017, the Commission launched its initiative on fake news and the spread of disinformation 
online102, as called for in a 15 June 2017 Resolution of the European Parliament103 and announced by Commission 
President  Juncker  in  his  13 September  2017  State  of  the  Union  letter104.    The  Commission  has  carried  out  several 
multi-stakeholder consultations in support of the initiative including a multi-stakeholder conference and a Member 
States  workshop  aimed  at  obtaining  input  from  the  competent  national  authorities  as  well  as  the  private-sector, 
including online platforms, media outlets, academics and civil society organisations. The initiative was also discussed 
in the Media Literacy Expert Group in its meeting on 14 December 2017105.  Views from other interested parties on 
the initiative were collected through a public consultation launched on 13 November 2017 and a High Level Expert 
Group has been convened to advise on policy initiatives106 107. 

While it is primarily the responsibility of Member States to ensure media freedom and pluralism, the Commission is 
aware of challenges in the Member States and is taking a number of measures. To this end, the Commission funds — 
further  to  the  initiative  of  the  European  Parliament  —  a  number  of  independent  projects  in  media  freedom  and 
pluralism, including the Index on Censorship, which monitors violations, threats and limitations to media freedom 
within the ‘Mapping Media  Freedom  Project’108. Building on the  crowd-sourced  platform,  it  provides  assistance to 
journalists and disseminates knowledge about media freedom in Europe. 

Another EU-financed project is the Media Pluralism Monitor, which is designed to identify potential risks to media 
pluralism in Member States. It is run independently by the Centre for Media Pluralism and Media Freedom at the 
European University Institute. The results of the 2016 Media Pluralism Monitor (published in 2017) show that none 
of the featured countries are free from risks to media pluralism109. 

Article 12 — Freedom of assembly and of association 

The right to freedom of peaceful assembly and to freedom of association at all levels in particular in political, trade 
union  and  civic  matters  is  protected  in  Article 12  of  the  Charter  and  corresponds  to  Article 11  of  the  European 
Convention on Human Rights. Its scope, however, is wider since it applies to all European levels. Furthermore unlike 
Article 11 of the Convention, it specifically mentions the important contribution of political parties to the expressing 
the political will of the people. This right is also based on Article 11 of the Community Charter of the Fundamental 
Social Rights of Workers. 

Application by Member States 

Issues related to the respect of the right to freedom of association have been raised during 2017 on the reported 
pressure  facing  civil  society  organisations  in  a  number  of  Member  States,  such  as    funding  cuts,  burdensome 

102 https://ec.europa.eu/digital-single-market/en/news/public-consultation-fake-news-and-online-disinformation 
103 European Parliament resolution of 15 June 2017 on online platforms and the digital single market (2016/2276(INI)). 
104 State of the Union Speech, 13 September 2017 — https://ec.europa.eu/commission/state-union-2017_en 
105 https://ec.europa.eu/digital-single-market/en/news/meeting-media-literacy-expert-group 
106https://ec.europa.eu/digital-single-market/en/news/experts-appointed-high-level-group-fake-news-and-online-
disinformation 
107 The Commission brought forward its Communication on tackling Disinformation on 25 April 2018, where it underlined the 
respect for the right of freedom of expression under Article 11 of the Charter, which includes the freedom to receive and impart 
information, as the key consideration in addressing the issue. 
108 https://mappingmediafreedom.org/ 
109 http://cmpf.eui.eu/media-pluralism-monitor/mpm-2016-results/ 

33 

 
 
 
 
                                                            
regulatory  frameworks  and  smear  campaigns  affecting  public  perceptions  on  the  credibility  and  legitimacy  of  civil 
society organisations110. 

Against this background, the Commission has continuously  stressed that civil society is the very fabric of democratic 
societies, empowering and invigorating communities and a prerequisite for healthy democracies and sound policy-
making. In this context, the Commission has monitored developments at national level touching upon the role and 
functions of civil society organisations against Member States’ obligations under the Treaties and the Charter. This 
led  to  a  decision  by  the  Commission  to  refer  Hungary  to  the  CJEU  on  7 December  2017111  for  adopting  the  law 
imposing reporting and transparency obligations for foreign-funded civil society organisations which the Commission 
found to be incompatible with the right to freedom of association, as well as the right to protection for private life 
and personal data112, read in conjunction with Treaty obligations on the free movement of capital. 

Article 13 — Freedom of the arts and sciences 

Article 13  of  the  Charter  ensures  that  arts  and  scientific  research  are  free  of  constraint.  This  does  not  mean  that 
restrictions  of  the  former  are  not  possible,  but  that  they  are  only  possible  under  the  strict  conditions  provided  in 
Article 52 (1) of the Charter113. 

Article 14 — Right to education 

The right to education and access to vocational training is enshrined in Article 14 of the Charter. It is based on the 
common constitutional traditions of Member States and Article 2 of the Protocol No 1 to the European Convention 
on Human Rights.  

In  2017,  education  remained  high  on  the  agenda  as  a  means  to  combat  inequalities  and  promote  our  common 
values based on the Paris Declaration on promoting citizenship and the common values of freedom, tolerance and 
non-discrimination  through  education,  adopted  by  EU  Education  Ministers  and  Commissioner  Navracsics  on 
17 March 2015114. 

Legislation 

The proposal for a Directive on copyright in the Digital Single Market and the proposal for a Regulation laying down 
rules  on  the  exercise  of  copyright  and  related  rights  applicable  to  certain  online  transmissions  of  broadcasting 
organisations  and  retransmissions  of  television  and  radio  programmes,  adopted  on  14 September  2016,  were 
discussed with the Council and the European Parliament in 2017115. 

110  See  also  in  this  respect  the  report  by  the  EU  Agency  for  Fundamental  Rights  ‘Challenges  facing  civil  society  organisations 
working on human rights in the EU’, available at http://fra.europa.eu/en/publication/2018/challenges-facing-civil-society-orgs-
human-rights-eu 
111 See http://europa.eu/rapid/press-release_IP-17-5003_en.htm 
112 See further under Article 7 and 8. 
113 For further explanations see under Article 52. 
114 Declaration on Promoting citizenship and the common values of freedom, tolerance and non-discrimination through education of 17 March 
2015 - https://eu2015.lv/images/notikumi/2015-3-10_Declaration_EN.pdf 
115 See further under Article 11. 

34 

 
 
 
 
                                                            
On 30 May, the Commission adopted the proposal for a Regulation of the European Parliament and of the Council 
laying  down  the  legal  framework  of  the  European  Solidarity  Corps116,  which  aims  to  enhance  the  engagement  of 
young people (from the age of 17 upwards) and organisations in accessible and high quality solidarity activities as a 
means to contribute to strengthening cohesion and solidarity in Europe, supporting communities and responding to 
societal challenges. 

On 5 October, the Commission adopted a proposal for a Council Recommendation on the European Framework for 
Quality and Effective Apprenticeships. 117 This initiative is part of the New skills agenda for Europe and ties in with 
the European pillar of social rights118, which envisages a right to quality and inclusive education, training and life-long 
learning. The Commission has identified 14 key criteria that Member States and stakeholders should use to develop 
quality  apprenticeships  that  are  meaningful.  This  initiative  should  help  increase  the  employability  and  personal 
development  of  apprentices  and  contribute  towards  a  highly  skilled  and  qualified  workforce  responsive  to  labour 
market needs. 

Policy 

On 17 February 2017, the Council adopted conclusions on inclusion in diversity to achieve high quality education 
for all119. These conclusions emphasised the need for inclusive high-quality education available and accessible to all 
learners of all ages, including those facing challenges and regardless of sex, racial or ethnic origin, religion or belief, 
disability, age or sexual orientation. The conclusions call also on the Commission to build on the work of the  Agency 
in promoting mutual respect, non-discrimination, fundamental freedoms and solidarity throughout the EU. 

On  23 May  2017,  the  Council  adopted  conclusions  on  sport  as  a  platform  for  social  inclusion  through 
volunteering120. These conclusions stress the role volunteering in sport can play to create inclusive communities and 
to help integrate groups at risk of marginalisation including people with disabilities. 

On  14 November  2017  the  Commission  adopted  a  Communication  on  ‘Strengthening  European  Identity  through 
Education  and  Culture’121  as  a  contribution  to  the  informal  EU  summit  in  Gothenburg,  Sweden,  on  17  November 
which  discussed  the  future  of  education  and  culture.  The  Commission  outlined  the  potential  of  education  and 
culture as drivers for job creation, economic growth and social fairness as well as a means to experience European 
identity  in  all  its  diversity.  The  Communication  sets  out  the  vision  of  a  European  Education  Area,  building  on  the 
New Skills Agenda for Europe and investing in Europe’s youth initiatives. 

On 30 May 2017, the Commission presented its new strategy to support high quality, inclusive and future-oriented 
school  and  higher  education122.  The  initiatives  outlined  the  EU’s  support  to  help  Member  States  and  education 
providers take the steps needed to improve opportunities for all young people in Europe, helping to build fair and 

116 Proposal for a Regulation of the European Parliament and of the Council laying down the legal framework of the European Solidarity Corps 
and amending Regulations (EU) No 1288/2013, (EU) No 1293/2013, (EU) No 1303/2013, (EU) No 1305/2013, (EU) No 1306/2013 and Decision 
No 1313/2013/EU, COM(2017) 262. 
117 COM(2017) 563 final. 
118https://ec.europa.eu/commission/priorities/deeper-and-fairer-economic-and-monetary-union/european-pillar-social-rights_en 
119 Conclusions of the Council and of the Representatives of the Governments of the Member States, meeting within the Council, on Inclusion 
in Diversity to achieve a High Quality Education For All (17 February 2017) 
 http://data.consilium.europa.eu/doc/document/ST-6356-2017-INIT/en/pdf 
120 http://eur-lex.europa.eu/legal-content/EN/ALL/?uri=CELEX:52017XG0615(04) 
121 COM(2017) 673 final. 
122 COM(2017) 247 final. 

35 

 
 
 
                                                            
resilient societies. In the Communication on school development and excellent teaching for a great start in life123 
the Commission identifies areas where action is urgently needed and how EU support can help EU countries address 
the current challenges. Based on evidence from Member States, the communication highlights three priority areas:    

1. raising the quality and inclusiveness of schools;    
2. supporting excellent teachers and school leaders; and    
3. improving the governance of school education systems. 

The renewed EU agenda for higher education identifies four main goals for higher education in the EU:    

1. making sure higher education equips graduates with the right skills for today’s economy; 
2. building inclusive higher education systems; 
3. bridging the innovation gap between higher education, research and business; and 
4. ensuring different parts of higher education systems work together effectively and efficiently. 

The  Erasmus+  programme  (2014-2020)  focused  on  social  inclusion  of  young  people  and  the  promotion  of 
fundamental values through the funding of educational and youth activities, such as the European Solidarity Corps. 
The  Erasmus  Programme  celebrated  its  30th  anniversary  throughout  2017,  marked  with  various  events  organised 
across Europe highlighting the substantial impact the Erasmus programme had on young Europeans. 

Parliamentary questions 

The  Commission  received  a  question  from  a  Member  of  the  European  Parliament  on  whether  a  Spanish  law 
establishing the unavailability of appropriations in the budget of the Autonomous Community of Catalonia for 2017, 
thus blocking the agriculture and fisheries programmes, is against the exercise of the fundamental right to vocational 
training  in  agriculture  and  fisheries,  in  accordance  with  the  Charter.  The  Commission  responded  on  1 December 
2017 by stating that it does not intervene on issues that fall under Member States’ authorities powers at national or 
regional level. 

Application by Member States 

The  Commission  launched  an  infringement  proceeding  against  Hungary  whose  rules  governing  higher  education 
institutions  were  found  to  be  incompatible  with  the  rights  to  education,  academic  freedom  (Article 13)  and  the 
freedom to conduct a business (Article 16), read in conjunction with the freedom for higher education institutions to 
provide  services  and  establish  themselves  anywhere  in  the  EU  and  with    the  EU’s  legal  obligations  under 
international trade law. Following a letter of formal notice and a reasoned opinion, the Commission found that its 
concerns were not sufficiently addressed and therefore referred the case to the CJEU in December 2017124. 

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

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

Legislation 

On  26 July  2017,  the  Council  agreed  on  the  mandate  for  negotiations  on  a  draft  Directive  covering  entry  and 
residence  conditions  for  highly  skilled  non-EU  country  national  workers  (EU  Blue  Card  Directive)  adopted  by  the 

123 COM(2017) 248 final. 
124 http://europa.eu/rapid/press-release_IP-17-5004_en.htm 

36 

 
 
 
 
                                                            
Commission in June 2016125. Based on this mandate, the Council Presidency started negotiations with the European 
Parliament.  The Commission’s proposal for reviewing the EU Blue Card Directive aims at making working in the EU 
more attractive to highly skilled workers from non-EU countries. The proposal also aims to improve possibilities for 
move between jobs in the same Member State and between Member States. It would replace the existing EU Blue 
Card Directive, harmonising further conditions of entry and residence and improving the situation of highly skilled 
workers who come to the EU. 

This initiative is consistent with the Charter in particular the right to respect for private and family life126 — through 
provisions on family reunification for highly skilled workers — and the right to engage in work and to freely pursue 
an occupation. It is also consistent with the rights related to working conditions of non-EU nationals and the rights of 
workers laid down under Articles 27 to 36.  

The Commission’s proposal aims at ensuring equal treatment for highly skilled workers on working conditions, access 
to social security, to education and vocational training as well access to goods and services. Compatibility with the 
right to an effective remedy and fair trial127 is ensured as the current provisions in the EU Blue Card on the right to 
appeal in case the application is rejected, as well as to be notified the grounds for rejection, are maintained. 

NATIONAL CASE LAW BOX  

The Constitutional Court of Bulgaria referred to the Charter in the context of a constitutional review of a provision in 
the  Judiciary  Act  which  prohibits  judges  and  prosecutors  to  be  discharged  from  their  duties  by  resigning  when  a 
disciplinary proceeding is still pending. The Constitutional Court not only concluded that the provision  violated the 
Bulgarian Constitution, but referred to Article 15 of the Charter, which enshrines the right of freedom of work, ‘in 
accordance  to  which  everyone  has  the  right  to  engage  in  work  and  to  pursue  a  freely  chosen  or  accepted 
occupation’128. 

Article 16 — Freedom to conduct a business 

Article 16 of the Charter recognises the freedom to conduct a business in accordance with EU law and national laws 
and  practices.  EU  measures  that  could  interfere  with  businesses  economic  activity  are  frequently  assessed  by  the 
courts for their impact on this freedom. 

Legislation 

On 18 October 2017 the Commission adopted an Interpretative Communication on the acquisition of Farmland and 
EU law129which aims to provide guidance on how land sales markets can be regulated in compliance with EU law. 
The  Communication  refers  to  the  possible  impact  of  national  legislation  on  acquiring,  using  or  disposing  of 
agricultural  land  on  the  fundamental  freedoms  protected  by  the  Charter.  It  refers  to  the  freedom  to  conduct  a 
business, including the freedom of contract (Article 16), the right to property (Article 17) and the freedom to choose 
an occupation (Article 15). 

125 Proposal for a Directive of the European Parliament and of the Council on the conditions of entry and residence of third-country nationals 
for the purposes of highly skilled employment, COM(2016) 378 final, 7.6.2016, 2016/0176 (COD). 
126 See Article 7. 
127 See Article 47. 
128 Bulgaria, Constitutional Court, case 6/2016, 31 January 2017. 
129 C/2017/6168, OJ C 350, 18.10.2017, p. 5-20. 

37 

 
 
 
 
                                                            
The  premise  of  the  proposal  for  a  Regulation  on  a  framework  for  the  free  flow  of  non-personal  data  in  the 
European Union, adopted by the Commission on 13 September 2017, are the free movement principles (freedom of 
establishment and free movement of services) and respect of fundamental rights and principles as recognised by the 
Charter. The impact assessment of the proposed Regulation concluded that it would have a positive effect on the 
freedom to conduct a business (Article 16) because it would contribute to eliminating and preventing unjustified or 
disproportionate barriers to the use and provision of data services (such as cloud services, as well as configuration of 
in-house  IT  systems).  The  proposed  Regulation  promotes  and  respects  also  the  freedom  to  conduct  a  business  by 
adopting a self-regulation approach on the issue of facilitating the change of service providers for professional users.  

Case law 

In  Achbita130 the CJEU found that in examining the application of an internal rule of a private undertaking relating to 
the  visible  wearing  of  any  political,  philosophical  or  religious  sign  the  employer’s  freedom  to  conduct  a  business 
must be taken into account and balanced with other fundamental rights, in particular freedom of religion and the 
principle  of  non-discrimination.  A  policy  of  political,  philosophical  and  religious  neutrality  may  constitute  a 
legitimate  objective  justifying  difference  of  treatment,  provided  that  the  means  of  achieving  that  aim  are 
appropriate  and  necessary,  in  line  with  relevant  case  law  of  the  European  Court  of  Human  Rights131.  Such  policy 
relates, according to the Court, to the freedom to conduct a business recognised in Article 16 of the Charter. 

NATIONAL CASE LAW BOX 

In Germany, the Federal Court of Justice ruled in a case concerning a woman who carried out an IVF treatment in the 
Czech Republic. She was charged around EUR 11 000 by the IVF centre and sought reimbursement from her German 
insurance  company  arguing  that  according  to  the  general  insurance  conditions,  treatments  in  other  European 
countries are insured. She was refused reimbursement which she argued violated the freedom to provide services 
(Article 56 TFEU).  

The Court, however, agreed with the insurance company that — since fertilisation by means of egg cell donation is 
prohibited under German law — there was no insurance cover for the treatment in the Czech Republic, although egg 
cell donation was permitted there. The Court did not find a violation of EU law in the general insurance conditions of 
the insurance company and said that, in any event, a possible restriction of the freedom to provide services in case 
of a dispute is to be considered justified by the freedom to conduct a business (Article 16 of the Charter) (Germany, 
Federal Court of Justice, case IV ZR 141/16, 14 June 2017). 

Article 17 — Right to property 

Article 17 of the Charter protects the right of all to  property, which includes the right to own, use, and dispose of 
lawfully acquired possessions. The Charter also guarantees the protection of intellectual property. 

Legislation 

The  Security  of  Gas  Supply  Regulation132    introduced  in  its  Article 13,  for  the  first  time,  a  solidarity  mechanism 
between  Member  States.  This  mechanism  is  designed  to  address  extreme  situations  in  which  gas  supply,  as  an 

130 See further under Article 10 and Article 21. 
131 The CJEU referred, in particular, to the European Court of Human Rights’ judgment of 15 January 2013 in the case of Eweida and Others v. 
the United Kingdom. 
132,  Regulation  (EU)  2017/1938  of  the  European  Parliament  and  of  the  Council  of  25 October  2017  concerning  measures  to  safeguard  the 
security of gas supply and repealing Regulation (EU) No 994/2010,  OJ L 280, 28.10.2017, p. 1. 

38 

 
 
 
 
 
                                                            
essential need is at stake in a Member State. The Regulation makes specific reference to the Charter as part of the 
framework  within  which  Member  States  must  implement  the  provisions  on  the  solidarity  mechanism.  The 
fundamental rights component of the solidarity mechanism falls under the provisions of the Charter on the right to 
property but also social assistance133, services of general economic interest134 and consumer protection135, as stated 
in Recital 23 and 43 of the Regulation. 

In May 2017, the EU Firearms Directive was adopted136. The Directive was proposed by the Commission following 
the terror attacks that took place in 2015. These new rules will substantially reduce the likelihood of dangerous but 
legally held weapons falling into the hands of criminals and terrorists. The revised Directive broadens the range of 
prohibited weapons by banning automatic firearms transformed into semi-automatic firearms and semi-automatic 
weapons fitted with high capacity magazines and loading devices. This measure introduces limitations on the right to 
property in line with Article 52 of the Charter. In particular, it has introduced stricter derogations for sport shooters 
and  national  defence  reservists  undertaking  voluntary  military  training,  as  provided  under  Member  State  law. 
Defined group of licence holders — such as museums or collectors — will also be subject to stringent security and 
monitoring requirements. 

The  Commission’s  proposal  for  the  EU  accession  to  the  Geneva  Act  of  the  Lisbon  Agreement  on  Appellations  of 
Origin and Geographical Indications137 is intended to provide protection of geographical indications for agricultural 
products, beverages and foodstuffs.  Through the system provided for in this revised and  modernised  Agreement, 
the scope of its application refers not only to appellation of origin, but also to geographical indicators both requiring 
a qualitative link between the product to which they refer and its place of origin. EU accession to the Lisbon system 
would  protect  the  intellectual  property  rights  of  the  geographical  indicators  products  of  local  farmers  and  food 
producers in the global market. 

Policy 

In preparing  the Supplemental Memorandum of  Understanding for the 2nd review of the  Stability programme for 
Greece under the European Stability Mechanism, the Commission has sought to ensure that the conditionality in the 
draft Memorandum of Understanding takes on board the implications of the Court ruling in the  Ledra case138. The 
ruling provided that the EU may be held liable for any damages caused by its institutions, if it signs a Memorandum  
of Understanding with policy conditionality that is not in line with the EU body of legislation and the Charter. In view 
of  this,  the  Commission  has  ensured  that  its  proposals,  in  particular  on  the  Greek  pension  reform,  are  consistent 
with the Charter. 

In Ledra, the Court recalled that the EU may incur non-contractual liability only if a number of conditions are fulfilled, 
namely:  

(i) the unlawfulness of the conduct alleged against the EU institution; 

133 See Article 34. 
134 See Article 36. 
135 See Article 38. 
136 Directive (EU) 2017/853 of the European Parliament and of the Council of 17 May 2017 amending Council Directive 91/477/EEC on control 
of the acquisition and possession of weapons. 
137 Proposal for a Council Decision authorising the opening of negotiations on the EU’s accession to the Geneva Act of the Lisbon Agreement on 
Appellations of Origin and Geographical Indications (Ares(2017)6308027). 
138  The  Court  Judgment  (Grand  Chamber)  of  20 September  2016,  Ledra  Advertising  Ltd  (C-8/15  P),  Andreas  Eleftheriou  (C-9/15  P),  Eleni 
Eleftheriou (C-9/15 P), Lilia  Papachristofi (C-9/15 P), Christos  Theophilou (C-10/15 P), Eleni Theophilou (C-10/15 P) v European Commission, 
European Central Bank (Joined Cases C-8/15 P to C-10/15 P). 

39 

 
 
 
                                                            
(ii) the damage; and  

(iii) the existence of a causal link between the conduct of the institution and the damage suffered.  

As  a  result  of  this  judgment,  the  Commission  sought  to  ensure  that  the  provisions  on  the  reform  of  the  pension 
system in Greece proposed under the Memorandum of Understanding are consistent with Article 17 of the Charter, 
which  states  that  everyone  has  the  right  to  own  their  lawfully  acquired  possessions.  The  jurisprudence  from  the 
ECtHR provides that a pension claim can constitute a ‘possession’ within the meaning of Article 1 of Protocol No 1 to 
the ECHR139  where  it has  a  sufficient  basis  in national  law  and  thus  give  rise  to  the ‘legitimate expectation’  that  a 
pension  results  from  the  contribution  to  a  pension  scheme.  In  particular,  if  the  amount  of  pensions  is  reduced  or 
discontinued,  as  a  result  of  a  pension  reform,  this  may  constitute  interference  with  possessions  where  it  would 
result in a disproportionate reduction in the pension and fail to ensure an adequate standard of living140. 

Article 18 — Right to asylum 

The right to  asylum is guaranteed by  Article 18 of  the Charter.  Asylum is  granted to  people fleeing persecution or 
serious  harm  in  their  own  country  and  therefore  in  need  of  international  protection.  Granting  asylum  is  an 
international obligation, first recognised in the 1951 Geneva Convention on the protection of refugees. Since 1999, 
the EU has been working to create a common policy on asylum, subsidiary protection and temporary protection (the 
‘Common  European  Asylum System’),  in line with the  Geneva  Convention  and related instruments,  as  required by 
the EU Treaties (Article 78 TFEU). 

Legislation and policy 

Negotiations between the European Parliament and the Council on the Commission’s proposals for a reform of the 
Common European Asylum System are ongoing though at different stages of advancement. Good progress has been 
made on the proposal for a new European Union Agency for Asylum141, on which the European Parliament and the 
Council reached a broad political agreement during 2017. They also started to discuss the proposals for the Eurodac 
and  Asylum  Qualification  Regulations,  the  recast  Reception  Conditions  Directive  and  the  Union  Resettlement 
Framework142. They also continued to work on the Asylum Procedures Regulation143. On the Dublin III Regulation144, 
discussions focused on effective solidarity and are expected to continue at an intense pace. In December 2017, the 
European Council set a target to reach a position on an overall reform of the Common European Asylum System by 
June 2018. 145 

139 The explanations relating to the Charter (OJ C 303/17, 14.12.2007) provide that Article 17 of the Charter is based on Article 1 of Protocol 1 
ot the Convention. 
140  see  Stefanetti  and  Others  v.  Italy,  Applications  Nos 21838/10,  21849/10,  21852/10,  21855/10,  21860/10,  21863/10,  21869/10  and 
21870/10 (15 April 2014), § 48-50, 62 and 64. 
141  Proposal  for  a  Regulation  of  the  European  Parliament  and  of  the  Council  on  the  European  Union  Agency  for  Asylum  and  repealing 
Regulation (EU) No 439/2010 (COM(2016) 271 final, 13.7.2016). 
142  Proposal  for  a  Regulation  of  the  European  Parliament  and  of  the  Council  establishing  a  Union  Resettlement  Framework  and  amending 
Regulation (EU) No 516/2014 of the European Parliament and the Council (COM(2016) 468 final, 13.7.2016). 
143 Proposal for a Regulation of the European Parliament and of the Council establishing a common procedure for international protection in 
the Union and repealing Directive 2013/32/EU (COM(2016) 467 final, 13.7.2016). 
144 See further under Article 4 and 6. 
145  The  Commission  presented  the  Roadmap  to  a  deal  by  June  2018  on  the  comprehensive  migration  package  in  its  Communication 
‘Commission  contribution  to  the  EU  Leaders’  thematic  debate  on  a  way  forward  on  the  external  and  the  internal  dimension  of  migration 
policy’ of 7 December 2017 (COM(2017) 820). 

40 

 
 
 
                                                            
On the progress made in relocation and resettlement on which the Commission regularly reported146, collective EU 
resettlement efforts were given a further boost in September  2017 with the Commission’s call147 to Member States 
to resettle at least 50 000 additional people by the end of October 2019. EUR 500 million were been made available 
to  assist  Member  States  in  their  efforts.  By  the  end  of  2017  this  call  resulted  in  over  39 800  new  resettlement 
pledges by 19 Member States. First resettlements under the scheme took place by the end of the year, including via 
the evacuation transit  mechanism,  which was  launched  with  the United Nations  Refugee  Agency  (UNHCR)  to  help 
the most vulnerable people in need of international protection to be evacuated from Libya to Niger in view of their 
onward  resettlement.  As  of  November  2017,  over  32 000  people  were  also  relocated  as  the  Commission’s  efforts 
were being directed to ensure relocation as a matter of priority of eligible applicants still present in Italy and Greece. 
The  implementation  of  the  EU-Turkey  Statement  of  18 March  2016  also  contributed  to  resettlement  efforts  as 
Member  States  resettled  in  2017  alone,  8  975  Syrians  from  Turkey.  This  exceeded  their  commitment  under  the 
Statement  to  resettle  a  Syrian  from  Turkey  for  every  Syrian  returned  to  Turkey  from  Greek  islands,  taking  into 
account the UN vulnerability criteria. 

The Commission also adopted guidance on the implementation of the hotspot approach, giving prominence to the 
obligation to respect fundamental rights over operations and performance of tasks in the hotspots148. 

Application by Member States 
Issues related to the respect of the right to asylum and the treatment of asylum applicants during their stay in the 
Member  States  are  regularly  raised  and  brought  to  the  attention  of  the  Commission,  including  the  situation  of 
migrant children and in particular on unaccompanied children149, respect for the right to family life150, the right to 
liberty151,  the  right  to  an  effective  remedy152  as  well  as  issues  related  to  access  to  services  and  guarantees  of  a 
decent standard of living. 

In  2017,  the  Commission  has  continued  to  monitor  closely  how  Member  States  have  implemented  into  national 
legislation  the  provisions  of  the  various  existing  Common  European  Asylum  System  legislative  instruments,  in 
particular the amended Long-Term Residence Directive, the Asylum Qualification Directive, the Asylum Procedures 
Directive and the Reception Conditions Directive153. 

Applying the EU asylum and migration body of legislation as interpreted in light of several provisions of the Charter, 
including the right to asylum, but also the right to liberty and security and the right to an effective remedy  has been 
the subject of a complementary letter of formal notice and a reasoned opinion in one case154.  

146 See in particular the Fifteenth report on relocation and resettlement of 6 September 2017, COM/2017/0465. 
147 Commission Recommendation of 27.9.2017 on enhancing legal pathways for persons in need of international protection, C(2017) 6504. 
148 Commission Staff Working Document  ‘Best practices on the implementation of the hotspot approach’ (COM(2017) 669). 
149 See Article 24. 
150 See  Article 8. 
151 See Article 6. 
152 See Article 47. 
153 Directive 2011/51/EU of the European Parliament and of the Council of 11 May 2011 amending Council Directive 2003/109/EC to extend its 
scope  to  beneficiaries  of  international  protection  Text  with  EEA  relevance;  Directive  2011/95/EU  of  the  European  Parliament  and  of  the 
Council of 13 December 2011 on standards for the qualification of third-country nationals or stateless persons as beneficiaries of international 
protection, for a uniform status for refugees or for persons eligible for subsidiary protection, and for the content of the protection granted; 
Directive 2013/32/EU of the European Parliament and of the Council of 26 June 2013 on common procedures for granting and withdrawing 
international protection and Directive 2013/33/EU of the European Parliament and of the Council of 26 June 2013 laying down standards for 
the reception of applicants for international protection. 
154 See http://europa.eu/rapid/press-release_IP-17-5023_en.htm 

41 

 
 
 
                                                            
The Commission also decided to refer the Czech Republic, Hungary and Poland to the CJEU for non-compliance with 
their legal obligations under the EU relocation scheme155. 

Case law 
In the judgment X and X v Belgium156, the CJEU clarified that an application for a visa with limited territorial validity 
made on humanitarian grounds by a  non-EU national at the representation of the Member State of destination in 
the  territory  of  a  non-EU  country,  with  a  view  to  lodging,  immediately  upon  arrival  in  that  Member  State,  an 
application for international protection, cannot be regarded as falling within the scope of application of the EU Visa 
Code157. The reasoning being that a kind of long-term visa the issuing of which only falls within the scope of national 
law.  The  Court  therefore  concluded  that  no  positive  obligation  to  issue  such  a  visa  can  be  derived  from  EU  law, 
including Article 18 and/or 4 of the Charter since the situation in question is not governed by EU law158 . 

The  Court  also  had  the  opportunity  to  confirm  the  validity  of  the  EU  provisional  mechanism  for  the  mandatory 
relocation of asylum seekers in the case of Slovakia and Hungary v Council159, where it dismissed in their entirety 
the actions brought by Slovakia and Hungary against the mechanism. The Court maintained that the non-legislative 
act was legally adopted pursuant to Article 78(3) TFEU, and underlined the appropriateness of the act in contributing 
to  achieving  its  objective  as  a  crisis-management  measure  whose  purpose  is  to  take  pressure  off  the  Greek  and 
Italian  asylum  systems  by  swiftly  relocating  a  significant  number  of  applicants  to  other  Member  States,  in 
compliance  with  EU  law  and  the  Charter,  so  that  the  fundamental  right  to  asylum,  laid  down  in  Article 18  of  the 
Charter, can be exercised properly. 

On the functioning of the ‘Dublin system’160 in times of high influx of asylum applicants, in particular during 2015-
2016, the Court clarified in case A.S. 161 that the crossing of a border in breach of the conditions imposed by the rules 
applicable  in  the  Member  State  concerned  must  be  considered  ‘irregular’  within  the  meaning  of  the  Dublin  III 
Regulation. Therefore, the Member States concerned must be regarded as responsible for examining applications for 
international protection submitted by people crossing their external border pursuant to the criteria contained in the 
Dublin III Regulation. According to the Court, this remains the case even in exceptional situations where, for example 
in  Croatia  during  the  2015-2016  migration  crisis,  such  crossing  happened  ‘en  masse’  and  the  Member  State 
concerned decided to admit into its territory non-EU nationals on humanitarian grounds, by way of derogation from 
the  entry  conditions  generally  imposed  on  non-EU  nationals.  Absolving  the  Member  State  concerned  of  its 
responsibility would, in the Court’s view, not be compatible with the Dublin rules. Although the taking charge of such 
non-EU  nationals  in  those  circumstances  may  be  enabled  by  the  use  by  other  Member  States,  unilaterally  or 
bilaterally in a spirit of solidarity, of the ‘sovereignty clause’, which enables them to decide to examine applications 
for international protection lodged with them, even if they are not required to carry out such an examination under 
the criteria laid down in the Regulation. 

The  Court  also  clarified  the  interpretation  of  EU  rules  on  the  exclusion  from  qualification  for  international 
protection, holding in Lounani162 that an application for international protection may be rejected under those rules if 

155 See http://europa.eu/rapid/press-release_IP-17-5002_en.htm 
156 Judgment of 7 March 2017 in case C-638/16 PPU, X and X v État belge. 
157 Regulation (EC) No 810/2009 of the European Parliament and of the Council of 13 July 2009 establishing a Community Code on Visas. 
158 See further under Article 51. 
159 Judgment of 6 September 2017 in Joined cases C-643/15 and C- 647/15, Slovakia and Hungary v Council. 
160 Based on  Regulation (EU) No 604/2013  see more under Articles 4.6 and 18 above. 
161 Judgments of 26 July 2017 in cases C-490/16, A.S. v Republic of Slovenia and  C-646/16, Khadija Jafari and Zainab Jafari. 
162 Judgment of 31 January 2017 in case C-573/14, Commissaire général aux réfugiés et aux apatrides v Mostafa Lounani. 

42 

 
 
 
                                                            
it established that the applicant participated in the activities of a terrorist network, without it being necessary that 
the asylum seeker personally committed terrorist acts, or instigated such acts, or participated in their commission. 

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

Article 19  of  the  Charter  enshrines  the  same  right  as  that  afforded  by  Article 4  of  Protocol  No 4  to  the  European 
Convention on Human Rights (prohibition of collective expulsions) and codifies requirements flowing from case-law 
on Article 3 of the Convention (protection of individuals from being removed, expelled or extradited to a state where 
there is a serious risk of death penalty, torture or other inhuman or degrading treatment or punishment). 

Guarantees deriving from this provision are relevant in asylum and migration matters and often constitute the object 
of inquiries and complaints under the EU legal framework. 

Parliamentary questions 

Cases of alleged abuses of Interpol’s Red Notices systems for political purposes by a number of non-EU countries 
were raised during 2017 in debates held in the European Parliament and a number of parliamentary questions were 
addressed  to  the  Commission.  The  Commission  stressed  in  this  respect  its  determination  to  closely  monitor  the 
compliance  by  Member  States  with  fundamental  rights,  including  the  principle  of  non-refoulement  when  they 
implement relevant EU provisions and to make use, where  necessary, of the powers conferred to it under the EU 
Treaties to ensure their full respect. 

Case law 

The compatibility of the EU-Turkey Statement of 18 March 2016 with fundamental rights163, including the right to 
protection from refoulement, was raised before the CJEU in an action for annulment in the case  NF, NG and NM v 
European  Council164.  The  General Court ordered on  28 February  2017,  however,  that it  lacked jurisdiction  to  hear 
and  determine  the  actions  brought  by  the  applicants,  as  it  found  that  the  evidence,  provided  by  the  European 
Council and relating to the meetings on the migration crisis held successively in 2015 and 2016 between the Heads 
of State or Government of the Member States and their Turkish counterpart, showed that it was not the EU but its 
Member States, as actors under international law, that conducted negotiations with Turkey in that area, including on 
18 March  2016.  As  neither  the  European  Council  nor  any  other  EU  institution  decided  to  conclude  an  agreement 
with  the  Turkish  Government  on  the  migration  crisis,  there  was  no  act  of  an  EU  institution  to  review  under 
Article 263 TFEU and the Court had no jurisdiction to rule on the lawfulness of an international agreement concluded 
by the Member States. 

The Court was also called on to clarify how EU provisions concerning the status of non-EU nationals who are long-
term residents165 should be interpreted against the obligation to provide  reinforced protection against expulsion. 
The  Court  held  that  EU  provisions  would  preclude  legislation  of  a  Member  State  which  does  not  provide  for  the 
application of the requirements of protection against the expulsion of a non-EU national who is a long-term resident 
to  all  administrative  expulsion  decisions,  regardless  of  the  legal  nature  of  that  measure  or  of  the  detailed  rules 
governing  it.  The  Court  also  pointed  out  that  the  adoption  of  an  expulsion  measure  may  not  be  ordered 
automatically following a criminal conviction. In the case at hand, the expulsion was motivated by the fact that the 

163 See Article 2. 
164 Order of 28 February 2017 in cases T-192/16, T-193/16 and T-257/16, NF, NG and NM v Council. 
165 Council Directive 2003/109/EC of 25 November 2003 concerning the status of third-country nationals who are long-term residents. 

43 

 
 
 
                                                            
long-term  resident  non-EU  national  had  been  sentenced  to  a  term  of  imprisonment  of  more  than  one  year. 
However, the court also noted that the assessment needs to be carried out on a case-by-case basis166. 

Letters 

Justice 
17% 

Other 
11% 

Citizens' rights 
21% 

Solidarity 
4% 

Equality 
29% 

Freedoms 
18% 

Dignity 
1% 

Respect for private and 
family life 1% 
Protection of personal 
data 
9% 
Freedom of thought, 
conscience and religion 
1% 
Freedom of expression 
and information 1% 

Freedom of assembly 
and association 0% 
Right to education 1% 
Freedom to choose an 
occupation and  right 
0% 
Freedom to conduct a 
business 3% 
Right to property 0% 

 - Restitution of 
property 1% 

 - Other aspects of 
property rights 1% 

Right to asylum  0% 
Protection in the event 
of removal  0% 

166 Judgment of 7 December 2017 in case C-636/16, Wilber López Pastuzano v Delegación del Gobierno en Navarra. 

44 

 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
                                                            
Questions 

Justice 
7% 

Other 
7% 

Citizens' rights 
15% 

Solidarity 
6% 

Freedoms 
27% 

Equality 
31% 

Dignity 
7% 

Right to liberty and 
security 3% 

Respect for private and 
family life 1%   

Protection of personal 
data 4% 

Freedom of thought, 
conscience and religion 
4% 

Freedom of expression 
and information 
5% 

Freedom of assembly and 
association 1% 

Right to education 
2% 

Right to property: other 
aspects of property rights 
1% 

Right to asylum 4% 

Protection on yhe event 
of removal 2% 

45 

 
 
 
 
 
Petitions 

Citizens' rights 
30% 

Solidarity 
10% 

Justice 
8% 

Other 
10% 

Freedoms 
18% 

Equality 
21% 

Dignity 
3% 

Respect for private 
and family life 
5% 

Protection of personal 
data 
3% 

Freedom of expression 
and information 
3% 

Freedom of assembly 
and of association 
5% 

Right to property 
2% 

46 

 
 
 
 
 
Title III 

Equality 

2017 marked a major progress on the legal framework to combat violence against women. On 13 June the EU signed 
the  Council  of  Europe  Convention  on  Preventing  and  Combating  Violence  against  Women  and  Domestic  Violence 
(the Istanbul Convention) and Věra Jourová, European Commissioner for Justice, Consumers and Gender Equality, 
dedicated the year 2017 to a Year of Focused Actions to Combat Violence against Women. 

On 12 April 2017 the Commission adopted a Communication on the protection of children in migration which was 
followed by the Council Conclusions of 8 June 2017. These documents underlined that the protection of children in 
migration is a priority and set out urgent EU actions and made recommendations to the Member States. 

The  Commission  continued  to  pursue  its  efforts  to  improve  the  response  of  the  EU  and  its  Member  States  to  the 
worrying  increase  in  the  incidence  of  hate  speech  and  hate  crime.  The  High  Level  Group  on  combating  racism, 
xenophobia and other forms of intolerance compiled key guiding principles on hate crime training, on hate crime 
victims’ support and on the identification and recording of hate crimes by law enforcement authorities. Significant 
progress  was  also  achieved  on  countering  illegal  hate  speech  online  through  the  implementation  of  the  code  of 
conduct. 

On  2 February  2017  the  European  Parliament  adopted  a  Resolution  on  the  implementation  of  the  Erasmus+ 
programme,  stressing  the  importance  of  sufficient  funding  and  appropriate  support  to  be  given  to  people  with 
disabilities to have barrier-free and non-discriminatory access to the programme. 

The CJEU clarified in Jyske Finans the notion of discrimination on grounds of ethnic origin, and on the prohibition of 
discrimination based on racial or ethnic origin established by the Race Equality Directive.  The Court also delivered 
two important judgments in the area  of non-discrimination on  the grounds  of religion in employment, regarding 
two  cases  where  Muslim  women  were  dismissed  by  their  employers  because  of  their  wish  to  wear  an  Islamic 
headscarf at work (Achbita and Bougnaoui). 

The Commission launched in-depth evaluation of the EU Framework for National Roma Integration Strategies up to 
2020 and as part of this process an online public consultation was open from July to October 2017. 

On 2 February 2017 the Commission adopted a Progress report on the implementation of the European Disability 
Strategy  2010-2020  and  on 23  February  the Commission  presented its  first  implementation  report  on  the  ‘List of 
actions to advance LGBTI equality’. 

Article 20 — Equality before the law 

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

Case law 

47 

 
 
 
The CJEU examined the challenge brought to the General Court in the case of Dyson v Commission167 concerning the 
alleged incompatibility of EU rules on energy labelling of vacuum cleaners168 with the equal treatment principle. The 
applicant  argued  that  the  EU  Regulation  was  discriminatory  and  in  favour  of  bagged  vacuum  cleaners  to  the 
disadvantage of bagless vacuum cleaners or vacuum cleaners based on ‘cyclonic’ technology, as loss of suction due 
to clogging cannot be detected by pristine state testing. While the General Court concluded for the validity of the EU 
regulation  that  was  being  challenged  as  it  considered  that  the  testing  method  applied  was  accurate,  reliable  and 
reproducible, the Court held that a new examination of the evidence was deemed necessary, and sent the case back 
to the General Court. 

Article 21 — Non-discrimination 

The  Charter  prohibits  discrimination  on  any  grounds  such  as  sex,  race,  colour,  ethnic  or  social  origin,  genetic 
features,  language,  religion  or  belief,  political  or  any  other  opinion,  membership  of  a  national  minority,  property, 
birth, disability, age or sexual orientation. It also prohibits discrimination on grounds of nationality, within the scope 
of application of the EU Treaties and without prejudice to any of their specific provisions.  

Discrimination based on racial or ethnic origin is a violation of the principle of equal treatment and is prohibited in 
the workplace and elsewhere. In the area of employment and occupation, EU legislation prohibits discrimination on 
grounds of religion or belief, disability, age or sexual orientation. 

1. General non-discrimination issues 

Legislation 

The  Commission’s  proposal  for  a  horizontal  anti‑discrimination  Directive169,  which  aims  to  extend  protection 
against  discrimination  on  grounds  of  religion  or  belief,  disability,  age  and  sexual  orientation  to  areas  outside 
employment  (social  protection,  education  and  access  to  goods  and  services,  including  housing),  is  still  being 
discussed in the Council. Commission President Juncker considers the adoption of the Directive as a priority for this 
Commission and the Commission continues to push for the required unanimity in the Council. 

Intense negotiations on the Commission’s proposal for a European Travel Information and Authorisation System170 
as well as two Commission’s proposals directed at improving the exchange of criminal records information on third 
country nationals convicted in the European Union (ECRIS-TCN)171, resulted in an agreement on a general approach 
by  the  Council  during  2017.  These  proposals,  which  are  expected  to  be  adopted  in  2018,  take  account  of  the 
principle of non-discrimination.  

167 Judgment of 11 November 2015 in case T-544/13 Dyson Ltd v Commission. 
168 Commission Delegated Regulation (EU) No 665/2013 of 3 May 2013 supplementing Directive 2010/30/EU of the European Parliament and 
of the Council with regard to energy labelling of vacuum cleaners (OJ 2013 L 192, p. 1). 
169  Proposal  for  a  Council  Directive  on  implementing  the  principle  of  equal  treatment  between  persons  irrespective  of  religion  or  belief, 
disability, age or sexual orientation (COM(2008) 426 final, 2.7.2008). 
170  Proposal  for  a  Regulation  of  the  European  Parliament  and  of  the  Council  establishing  a  European  Travel  Information  and  Authorisation 
System (ETIAS) and amending Regulations (EU) No 515/2014, (EU) 2016/399, (EU) 2016/794 and (EU) 2016/1624. 
171 Proposal for a Regulation of the European Parliament and of the Council establishing a centralised system for the identification of Member 
States holding conviction information on third country nationals and stateless persons (TCN) to supplement and support the European Criminal 
Records Information System (ECRIS-TCN system) and amending Regulation (EU) No 1077/2011 and Proposal for a Directive of the European 
Parliament  and  of  the  Council  of  amending  Council  Framework  Decision  2009/315/JHA,  as  regards  the  exchange  of  information  on  third 
country nationals and as regards the European Criminal Records Information System (ECRIS), and replacing Council Decision 2009/316/JHA. 

48 

 
 
 
                                                            
The European Travel Information and Authorisation System, which is the new largely automated system designed to 
gather information on all those travelling visa-free to the EU, in order to decide whether to issue or reject a request 
to travel to the EU, clarifies in particular that prior checks are to be conducted in full respect of fundamental rights, 
including the general principle of non-discrimination. This means that the screening rules and the criteria used for 
defining  the  specific  risk  indicators  corresponding  to  previously  identified  security,  irregular  migration  or  public 
health risk should in no circumstances be based on an applicant’s race or ethnic origin, political opinions, religion or 
philosophical beliefs, trade union membership, sexual life or sexual orientation. Similarly, the processing of personal 
data within the system  must not result in discrimination against non-EU nationals on the grounds of sex, racial or 
ethnic origin, religion or belief, disability, age or sexual orientation. Equality before the law and the general principle 
of non-discrimination are also embedded in the rules proposed for the ECRIS-TCN central system. 

The Geoblocking Regulation (EU) 2018/302172, adopted in February 2018, defines specific situations where there can 
be  no  justified  reason  for  geo-blocking  or  other  forms  of  discrimination  based  on  nationality,  residence  or 
establishment in the sale of goods and provision of other specific services. While the freedom of traders to define 
their  conditions  is  not  impaired  in  line  with  the  freedom  to  conduct  their  business  under  Article 16  (including  the 
freedom  to  define  areas  where  activities  are  directed,  delivery  can  be  provided,  setting  up  of  several  national 
website  interface(s)  and  language(s),  the  kind  of  payment  means  accepted,  etc.…),  if  the  customer  accepts  the 
conditions as set out by the trader, they cannot be discriminated in view of their nationality/residence, in line with 
existing non-discrimination provisions under EU law. 

Policy 

The Commission supports diversity through a variety of actions and initiatives including targeted policies, awarding 
funding, promoting good practice and high-level discussions. 

The High Level Group on Non-Discrimination, Diversity and Equality, consisting of national experts from the EU-28 
and Norway, met twice in 2017 to exchange best practice and to discuss topical non-discrimination issues. Members 
of  the  High  Level  Group  also  agreed  to  intensify  their  work  on  equality  data  and  to  launch  in  2018  a  dedicated 
subgroup in order to develop specific guidelines on collection of equality data173. 

The  Commission  encourages  also  voluntary  initiatives  by  businesses  to  promote  diversity  through  an  EU-level 
platform supporting the ‘Diversity Charters’174. A growing number of businesses and public authorities are engaged 
in  and  encouraging  diversity  issues  in  the  EU.  ‘Diversity  Charters’  provide  a  recognised  public  trademark  that 
demonstrates company’s commitment to the promotion of equality and diversity. Already over 10 000 companies, 
covering  15 million employees have signed them. In 2017, a Diversity Charter was launched in Croatia and Slovenia, 
accounting now for 20 Charters in the EU. 

172 Regulation (EU) 2018/302 of the European Parliament and of the Council of 28 February 2018 on addressing unjustified geo-blocking and 
other forms of discrimination based on customers’ nationality, place of residence or place of establishment within the internal market and 
amending Regulations (EC) No 2006/2004 and (EU) 2017/2394 and Directive 2009/22/EC (Text with EEA relevance. ), OJ L 60I, 2.3.2018, p. 1. 
173http://ec.europa.eu/newsroom/just/item-
detail.cfm?item_id=612778&utm_source=just_newsroom&utm_medium=Website&utm_campaign=just&utm_content=Moving%20forward%
20on%20equality%20data%20collection&utm_term=Tackling%20discrimination&lang=en 
174https://ec.europa.eu/info/strategy/justice-and-fundamental-rights/discrimination/tackling-discrimination/diversity-management/diversity-
charters_en 

49 

 
 
 
                                                            
The principle of non-discrimination featured prominently as a cross-cutting priority in the European Pillar of Social 
Rights175  jointly  signed  and  proclaimed  by  the  European  Parliament,  the  Council  and  the  Commission  on  17 
November.  The  Social  Rights  pillar  commits  to  enabling  equal  opportunities  of  under-represented  groups  and 
reaffirms  that  ‘regardless  of  gender,  racial  or  ethnic  origin,  religion  or  belief,  disability,  age  or  sexual  orientation, 
everyone  has  the  right  to  equal  treatment  and  opportunities  regarding  employment,  social  protection,  education, 
and access to goods and services available to the public’. 

Non-discrimination  also  remains  at  the  core  of  EU  action  in  education.    On  2  February  the  European  Parliament 
adopted a  Resolution on the implementation of the Erasmus+ programme, stressing the importance of sufficient 
funding and appropriate support to be given to people with disabilities to have barrier-free and non-discriminatory 
access to the programme, including sign language interpreters for the hearing impaired. The importance of inclusion 
and equality in this area is also reflected in the Council Conclusions on inclusion in diversity to achieve high quality 
education for all adopted on 17 February 2017, which emphasises the need for inclusive high-quality education to 
be made available and accessible to all learners of all ages, including those facing challenges, and regardless of sex, 
racial  or  ethnic  origin,  religion  or  belief,  disability,  age  or  sexual  orientation.  The  Council  also  called  on  the 
Commission  to  build  on  the  work  of  the  EU  Agency  for  Fundamental  Rights  in  promoting  mutual  respect,  non-
discrimination, fundamental freedoms  and solidarity throughout the EU.  The Council adopted also  Conclusions on 
sport as a platform for social inclusion through volunteering concern, among others, people with disabilities176. 

In  audiovisual  media  services,  focus  is  being  put  on  issues  concerning  accessibility  and  the  rights  of  people  with 
disabilities177 . 

Funding also remains a major part of the EU’s action in the fight against discrimination. That is why the Commission 
continues  to  supports  networks,  NGOs  and  projects  across  the  EU  under  the  Rights,  Equality  and  Citizenship 
programme178. 

Application by the Member States 

The Commission in its role as guardian of the EU Treaties closely monitors compliance of Member States with the EU 
non-discrimination legislation. 

Case law 

The  Achbita  and  Bougnaoui  rulings  clarified  the  detailed  rules  for  the  application  of  non-discrimination  in  EU 
employment  law  while  balancing  the  fundamental  rights  involved,  in  particular  freedom  of  religion,  freedom  to 
conduct a business and the principle of non-discrimination179. Individual situations may widely differ depending on 
the  particular  circumstances,  the  context  and  the  relevant  legal  framework  including  the  fundamental  rights 
enshrined in the European Convention of Human Rights and the EU Charter of Fundamental Rights. 

In  the  Achbita  case,  the  Court  found  that,  while  an  internal  rule  of  a  private  undertaking,  insofar  as  it  prohibits  
visible  wearing  of  any  political,  philosophical  or  religious  sign  by  all  employees,  would  not  constitute  direct 
discrimination, it may constitute indirect discrimination towards persons adhering to a particular religion or belief 

175https://ec.europa.eu/commission/priorities/deeper-and-fairer-economic-and-monetary-union/european-pillar-social-rights_en 
176 See Article 14. 
177 See Article 26. 
178http://ec.europa.eu/research/participants/portal/desktop/en/opportunities/rec/index.html#c,calls=hasForthcomingTopics/t/true/1/1/0/de
fault-group&hasOpenTopics/t/true/1/1/0/default-group&allClosedTopics/t/true/0/1/0/default-group&+PublicationDateLong/asc 
179 See Articles 10 and 16. 

50 

 
 
 
                                                            
within the meaning of the Employment Equality Directive. This would be acceptable only insofar as it was justified by 
a legitimate aim and the means of achieving that aim were appropriate and necessary — something which the Court 
left for the national court to assess.  

Building on this finding, the Court further clarified in Bougnaoui180 that in the absence of such a rule, (which is for 
the national court to assess), the willingness of an employer to take account of the wishes of a customer no longer to 
have  the  services  of  that  employer  provided  by  a  worker  wearing  an  Islamic  headscarf  may  not  be  considered  a 
genuine  and  determining  occupational  requirement  that  could  rule  out  discrimination  within  the  meaning  of  the 
Employment Equality Directive181. 

The Court also clarified in Jyske Finans182 the notion of discrimination on grounds of ethnic origin, and whether the 
prohibition of discrimination based on racial or ethnic origin established by the Race Equality Directive183 means that 
a credit institution cannot requires a customer born outside the EU or EFTA to produce, in addition to the driving 
licence, also a passport or a residence permit. The Court held that ethnic origin cannot be determined on the basis of 
a single criterion but is based on a number of factors, some objective and others subjective. While a person’s country 
of birth might be included among the elements and criteria making up the concept of ‘ethnicity’, which has its origin 
in  the  idea  of  societal  groups  marked  in  particular  by  common  nationality,  religious  faith,  language,  cultural  and 
traditional origin and background184 it cannot, in general and absolute terms, act as a substitute for all those criteria, 
being only one of the specific factors which may justify the conclusion that a person is a member of an ethnic group 
and  not  being  decisive  in  that  regard.  As  a  consequence,  a  person’s  country  of  birth  cannot,  in  itself,  justify  a 
general presumption that that person is a member of a given ethnic group such as to establish the existence of a 
direct or inextricable link between those two concepts. On this basis, the Court concluded that the practice at stake 
could not be regarded as a difference in treatment directly or indirectly based on ethnic origin, within the meaning 
of the Directive. 

In the Fries judgment185  the Court considered whether the EU measures by prohibiting holders of a pilot’s licence 
who have reached the age of 65 from acting as pilots of an aircraft engaged in commercial air transport infringed 
Article 15 or Article 21 of the Charter. The Court ruled that while that provision establishes a difference in treatment 
based on age, the provision is nevertheless compatible with Article 21(1) of the Charter in that it satisfies the criteria 
set out in Article 52(1) thereof. The Court found that that limitation meets an objective of general interest, within 
the meaning of Article 52(1) of the Charter, and that it observes the principle of proportionality within the meaning 
of  that  provision.  The  age  limit  of  65  applied  is  an  appropriate  means  of  maintaining  an  adequate  level  of  civil 
aviation  safety  in  Europe.  This  age  limit  is  sufficiently  high  and  reflects  the  international  rules  on  the  subject  of 
international  commercial  air  transport.  For  this  reason  this  provision  does  not  go  beyond  what  is  necessary  for 
achieving the objective of general interest pursued. 

In Binca Seafood's186 the CJEU ruled that an EU Regulation which has the effect of preventing an undertaking from 
putting on the EU market organic Pangasius produced in the Mekong Delta (Vietnam) 187 should be examined in the 

180 C-188/15, Bougnaoui v Micropole SA, see further under Article 10. 
181 See Article 10. 
182 Judgment of 6 April 2017 in case C-668/15, Jyske Finans A/S v Ligebehandlingsnævnet. 
183  Council  Directive  2000/43/EC  of  29 June  2000  implementing  the  principle  of  equal  treatment  between  persons  irrespective  of  racial  or 
ethnic origin, in particular Articles 2(2)(a) and (b). 
184 See also judgment of 16 July 2015 in case C‑83/14, ‘CHEZ Razpredelenie Bulgaria’ AD v Komisia za zashtita ot diskriminatsia. 
185 Judgment of 5 July 2017 in Case,  C-190/16, Werner Fries v Lufthansa CityLine GmbH. 
186 Judgment of 20 December 2017 in case C-286/16 P, Binca Seafoods GmbH v Commission. 

51 

 
 
 
                                                            
light of the undertaking’s right to non-discrimination, the principle of equal treatment188 as well as the freedom to 
conduct a business189. 

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

Policy 

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

This  included  enabling  discussions,  exchanging  best  practice  and  developing  informal  guidance  through  the  High 
Level  Group  on  combating  racism,  xenophobia  and  other  forms  of  intolerance190,  launched  in  June  2016.  The 
groups work aimed at progressing and strengthening cooperation and links among national authorities, civil society 
and a range of other stakeholders including relevant international organisations and bodies, and led in 2017 to the 
compilation  of  key  guiding  principles  on  ‘Hate  crime  training  for  law  enforcement  and  criminal  justice 
authorities’191 and on ‘Ensuring justice, protection and support for victims of hate crime and hate speech’192, aimed 
at providing informal guidance for Member States’ authorities and practitioners. Intense expert discussions were 
also held and led by the EU Agency for Fundamental Rights, on how to improve national methodologies for recording 
and collecting data on hate crime.  The first outcome was the compilation of  key guiding principles on ‘Improving 
the  recording  of  hate  crime  by  law  enforcement  authorities’193,  whose  testing  and  implementation  is  now  being 
encouraged in several Member States through country workshops jointly led by the Agency and by Organization for 
Security  and  Co-operation  in  Europe’s  Office  for  Democratic  Institutions  and  Human  Rights194,  as  well  as  through 
relevant initiatives at national level. 

The  group’s  discussions  also  focused  on  the  specificities  of  particular  forms  of  intolerance,  including  hate  crime 
against  people  with  disabilities,  anti-migrant  hatred,  homophobia  and  transphobia195.  The  group  was  regularly 
informed  about  the  work  and  initiatives  of  the  Commission  coordinator  on  combating  antisemitism196  and  the 
Commission  coordinator  on  combating  anti-Muslim  hatred197,  which  focused  on  monitoring  trends  and 
developments  at  national  level,  preventing  and  countering  hate  speech  and  fostering  education  and  youth 
empowerment.  The  group  also  held  thematic  discussions  on  afrophobia  and  on  antigypsyism198    −  two  worrying 
trends  which  exemplify  how  important  it  is  to  develop  a  comprehensive  approach  made  up  of  coherent  but  also 
diversified legislative and policy responses to discrimination, exclusion, prejudice, stereotyping and manifestations of 
intolerance, taking into account the specific challenges faced by different communities and groups. Discussions built 

187 Commission Implementing Regulation (EU) 1358/2014 of 18 December 2014 amending Regulation (EC) 889/2008 laying down detailed rules 
for  the  implementation  of  Council  Regulation  (EC)  834/2007  as  regards  the  origin  of  organic  aquaculture  animals,  aquaculture  husbandry 
practices, feed for organic aquaculture animals and products and substances allowed for use in organic aquaculture (OJ L 365, 19.12.2014, p. 
97). 
188 See Article 20. 
189 See Article 16. 
190 For more information, see http://ec.europa.eu/newsroom/just/item-detail.cfm?&item_id=51025 
191 http://ec.europa.eu/newsroom/document.cfm?doc_id=43050 
192 http://http//ec.europa.eu/newsroom/just/document.cfm?doc_id=48874 
193 http://fra.europa.eu/en/news/2017/improving-recording-hate-crime-law-enforcement-authorities 
194 http://fra.europa.eu/en/news/2017/improving-recording-hate-crime-law-enforcement-authorities 
195 On EU action to promote LGBTI equality see section 4 below. 
196 http://ec.europa.eu/newsroom/just/item-detail.cfm?item_id=50144 
197 http://ec.europa.eu/newsroom/just/item-detail.cfm?item_id=50085 
198 On EU action to promote Roma integration see section 3 below. 

52 

 
 
 
                                                                                                                                                                                                                      
on the findings of the second European Union Minorities and Discrimination Survey199 conducted by the EU Agency 
for Fundamental Rights.  

Significant  progress  was  also  achieved  on  countering  illegal  hate  speech  online200:  the  regular  monitoring  of  the 
implementation  of  the  code  of  conduct201  carried  out  by  the  Commission  in  cooperation  with  civil  society 
organisations  show  a  trend  of  continuous  progress,  proving  that  this  self-regulatory  tool,  agreed  with  major  IT 
companies in May 2016, contributed to quickly achieve tangible results of a clear and steady increase in the removal 
of illegal hate speech content by the IT companies202. 

The  Commission  also  continued  to  support  umbrella  organisations  as  well  as  specific  projects  on  preventing  and 
combating  racism,  xenophobia  and  other  forms  of  intolerance  under  the  Rights,  Equality  and  Citizenship 
programme203. In this context, the Commission made available in 2017 EUR 7 million to support projects in this area 
by  national  authorities’  and/or  civil  society  and  other  stakeholders.  The  projects    included  mutual  learning  and 
exchange of best practice, training and capacity building, supporting victims, addressing underreporting of cases of 
racism,  xenophobia  and  other  forms  of  intolerance  and  building  trust  between  communities  and  national 
authorities, monitoring, preventing and countering hate speech online including  through the development of online 
balanced narratives, critical thinking by Internet users and tackling online hate speech against journalists204 as well as 
creating better understanding between communities including through interreligious and intercultural activities and 
projects focusing on coalition building. 

Application by Member States 

In line with Protocol No. 36 to the Lisbon Treaty, as from 1 December 2014, the Commission acquired the power to 
oversee under the control of the CJEU the application of framework decisions including the Framework Decision on 
combating certain forms and expressions of racism and xenophobia by means of criminal law205. On that basis, the 
Commission continued its dialogues with Member States where major transposition gaps remained, to ensure that 
the minimum standards set in the Framework Decision, which penalises racist and xenophobic hate speech and hate 
crime,  are  correctly  turned into  national  law.  Significant  progress  on  the  concerns  raised  by  the  Commission  was 
achieved during 2017 in Italy and Portugal, bringing the number of Member States which introduced amendments to 
their laws on racist hate crime and hate speech since 2014 to nine. Legislative developments touching upon national 
provisions on hate crime and hate speech were also registered in in France, Germany, Cyprus and Latvia. 

199 http://fra.europa.eu/en/publication/2017/eumidis-ii-main-results 
200 http://ec.europa.eu/newsroom/just/item-detail.cfm?item_id=54300 
201 http://ec.europa.eu/justice/fundamental-rights/files/hate_speech_code_of_conduct_en.pdf 
202 According to a latest evaluation released in January 2018, IT companies removed on average 70 % of illegal hate speech notified to them — 
ethnic  origin,  sexual  orientation  and  gender  identity,  anti-Muslim  hatred  and  xenophobia  being  among  the  grounds  of  hate  speech  most 
commonly reported within the exercise. The monitoring also shows that all IT companies now meet the target of reviewing the majority of the 
notifications within 24 hours, reaching an average of more than 81 %. Building on the progress made, Google+ and Instagram also decided to 
join the Code of Conduct, which has now found its place as an industry standard. The Commission’s work is now aimed to consolidate and 
stabilise the progress achieved and ensure that it is sustainable over time and to assist Member States in overcoming challenges in their legal 
responses to hate speech online. 
203http://ec.europa.eu/research/participants/portal/desktop/en/opportunities/rec/index.html#c,calls=hasForthcomingTopics/t/true/1/1/0/de
fault-group&hasOpenTopics/t/true/1/1/0/default-group&allClosedTopics/t/true/0/1/0/default-group&+PublicationDateLong/asc 
204  Also  as  a  follow  up  to  the  2016  Annual  Colloquium  on  Fundamental  Rights:  see  http://ec.europa.eu/newsroom/just/item-
detail.cfm?item_id=31198 
205 Council Framework Decision 2008/913/JHA of 28 November 2008 on combating certain forms and expressions of racism and xenophobia by 
means of criminal law. 

53 

 
 
 
                                                            
3. EU Framework for National Roma Integration Strategies 

The Commission continues working together with Member States to ensure that all Roma people have fair and equal 
opportunities. It is done through various legal, policy and funding instruments, mainly through the  EU Framework 
for National Roma Integration Strategies up to 2020. 

The  EU  Framework  sets  the  EU  Roma  integration  goals  in  four  key  areas:  (i)  education,  (ii)  employment,  (iii) 
healthcare and (iv) housing. In order to meet these goals, Member States have adopted  national Roma integration 
strategies  or  integrated sets  of  policy  measures  within  their broader  social inclusion measures  tailored  to  the size 
and situation of Roma populations focusing on Roma integration in those four key areas. 

Each year the Commission assesses the implementation of the national Roma integration strategies and reports to 
the European Parliament and the Council on progress made in integration of Roma population in Member States and 
achievement of goals in each area defined in the EU Framework. 

On 30 August 2017 the Commission published the results of the ‘Midterm review of the EU framework for national 
Roma  integration  strategies’206  which  shows  how  the  situation  of  Roma  has  changed  since  2011.  The  situation  is 
slowly  improving,  for  instance  there  is  now  greater  participation  of  Roma  in  early  childhood  education  and  a 
declining rate of early school-leavers. On the other hand, the assessment also shows that as many as 80 % of Roma 
are still at risk of poverty although this figure is lower than in 2011. 

In parallel, the Commission also launched in-depth evaluation of the EU Framework for national Roma integration 
strategies  up  to  2020  examining  its  effectiveness,  efficiency,  relevance  and  EU  added  value  looking  into  use  of 
available EU instruments promoting Roma integration (policy, legal, financial) as well as into national approaches in 
Member  States  and  in  enlargement  countries.  To  this  end,  the  online  public  consultation  took  place  from  July  to 
October 2017207. The final evaluation report is expected in the first half of 2018. 

The Commission also continues to monitor the progress in Roma inclusion within its wider  growth agenda, Europe 
2020208. 

To  promote  mutual  learning  and  cooperation,  the  Commission  continues  to  facilitate  and  financially  support  the 
stakeholder’s dialogue through the Network of national Roma contact points209, regular consultation meetings with 
the national Roma platforms as well as the European platform for Roma inclusion. The thematic focus of the  2017 
European Platform for Roma inclusion was on the transition of Roma from education to employment210. Particular 
attention was paid to the situation and role of Roma youth, as already highlighted in the 2016 Council Conclusions 
on accelerating the process of Roma integration. 

206 http://europa.eu/rapid/press-release_IP-17-2961_en.htm 
207 https://ec.europa.eu/info/consultations/public-consultation-evaluation-eu-framework-national-roma-integration-strategies-2020_en 
208https://ec.europa.eu/info/business-economy-euro/economic-and-fiscal-policy-coordination/eu-economic-governance-monitoring-
prevention-correction/european-semester/framework/europe-2020-strategy_en 
209 https://ec.europa.eu/research/participants/portal/desktop/en/support/national_contact_points.html 
210 http://ec.europa.eu/newsroom/just/item-detail.cfm?item_id=607095 

54 

 
 
 
                                                            
4. Fight against homophobia 

As  requested  in  the  Council  Conclusions  on  LGBTI  Equality  adopted  in  June  2016211  the  Commission  presented  its 
first implementation report212 on the ‘List of actions to advance LGBTI equality’213. 

The  list  of  actions  had  been  implemented  for  two  years  in  2017  and  a  number  of  them  stood  out  to  show  the 
Commission’s  commitment  to  advance  LGBTI  equality.  These  included  a  strong  symbolic  statement  in  favour  of 
LGBTI equality made on the International Day Against Homophobia and Transphobia by highlighting for the first time 
the Commission’s headquarters in the colours of the rainbow flag.  

As part of its efforts to further raise awareness on the discrimination and challenges that LGBTI people face, the 
Commission sponsored three videos which focused on a gay, an intersex, and a transgender person and their non-
LGBTI  allies  and  was  released  on  the  International  Day  Against  Homophobia  and  Transphobia,  the  Intersex 
Awareness  Day  and  the  Transgender  Day  of  Remembrance.  Advancing  LGBTI  equality  also  remained  a  funding 
priority  under  the  Rights,  Equality  and  Citizenship  programme.  17  project  proposals  specifically  focusing  on 
preventing  and  countering  discrimination,  hatred  and  intolerance  against  LGBTI  people  were  awarded  for  a  total 
amount of financial support of EUR 4.7 million. 

In  the  framework  of  the  high  level  group  on  non-discrimination,  equality  and  diversity  the  Commission,  together 
with  the  Portuguese  Government,  organised  a  best  practice  exchange  seminar  focusing  on  policies  to  combat 
bullying based on sexual orientation, gender identity/expression or sex characteristics in education that took place 
in June  2017 in Lisbon. In addition, on 28 June on the occasion of the Human Rights Conference of the WorldPride 
Madrid 2017 the Commission published ‘The Business Case of diversity for cities and regions with focus on sexual 
orientation and gender identity’214. This report seeks to highlight best practice and policy initiatives implemented by 
regional  and  municipal  authorities  in  Europe  to  make  their  areas  safer,  more  inclusive  and  attractive  for  LGBTI 
people.  

At  the  same  occasion  the  Commission  also  published  the  report  ‘Data  collection  in  relation  to  LGBTI  people: 
analysis  and  comparative  review  of  equality  data  collection  practices  in  the  European  Union’215.  The  report 
highlights that in comparison to some other discrimination grounds such as sex or age, sexual orientation and gender 
identity remain invisible in many social surveys, and that, moreover, any form of data collection on intersex people is 
still rare — clearly showing the need for equality data to better understand and hence tackle the discrimination and 
inequalities experienced by LGBTI people. 

Article 22 — Cultural, religious and linguistic diversity 

Article 22  of  the  Charter  states  that  the  EU  must  respect  cultural,  religious  and  linguistic  diversity.  It  is  based  on 
Article 167(1)  and  (4)  TFEU  on  culture.  Respect  for  cultural  and  linguistic  diversity  is  also  laid  down  in  Article 3(3) 
TEU. Article 22 is also inspired by Article 17 of the TFEU. 

211 http://www.consilium.europa.eu/en/press/press-releases/2016/06/16/epsco-conclusions-lgbti-equality/ 
212 http://ec.europa.eu/newsroom/just/item-detail.cfm?item_id=54346 
213 http://ec.europa.eu/newsroom/document.cfm?doc_id=47638 
214 https://ec.europa.eu/newsroom/just/document.cfm?action=display&doc_id=45604 
215 https://ec.europa.eu/newsroom/just/document.cfm?action=display&doc_id 

55 

 
 
 
 
 
                                                            
Policy 

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

The  dialogue  with  religious  and  non-confessional  organisations  in  2017  took  place  in  the  context  of  the  ongoing 
debate on the Future of Europe, based on the Commission’s White Paper of 1 March. It provided an occasion to hold 
in-depth  discussions  on  questions  addressing  issues  of  values  and  governance.  The  discussion  on  the  future  of 
Europe was about making Europe more united, stronger and more democratic. The dialogue partners also looked at 
the human dimension of Europe, in particular its social and environmental dimensions and how Europe can be built 
on  principles  of  solidarity,  social  justice  and  sustainability.  The  leaders  present  were  invited  to  work  with  the 
Commission on the reflection process on the future of Europe. It was agreed that the dialogue should continue. This 
resulted in two high level meetings with religious leaders and with non-confessional organisations around the above 
theme, as well as a dialogue seminar which prepared the ground for the high level dialogue. 

A  meeting  was  also  convened  on  ‘Engaging  Muslim  Young  People  in  the  Future  of  Europe  Debate’.  29  Muslim 
university students and activists from 17 Member States discussed issues as diverse as social Europe, globalisation, 
workplace discrimination, identity, European citizenship, radicalisation, EU foreign policy, migration and integration 
in this one-day conference. 

On 23 May the Council adopted Conclusions on the EU strategic approach to international cultural relations. The 
Council underlined that such an approach should be bottom-up, respecting the independence of the cultural sector. 
EU  ministers  recognised  that  international  cultural  relations  can  only  develop  by  encouraging  cultural  diversity 
within the EU. It follows the strategy for international cultural relations adopted in 2016 by the Commission and the 
High Representative of the Union for Foreign Affairs and Security Policy. It focuses on three main objectives:  

1) supporting culture as an engine for social and economic development; 

2) promoting the role of culture for peaceful inter-community relations; and  

3) reinforcing cooperation on cultural heritage. 

On  5 July  2017  the  European  Parliament  adopted  a  Resolution  ‘Towards  an  EU  strategy  for  international  cultural 
relations’216. 

The 2018 European Year of Cultural Heritage was inaugurated at the European Culture Forum in Milan. The event 
took place from 7 to 9 December 2017 and opened the much-anticipated celebrations and presented the key topics 
of  this  pan-European  initiative.  Meanings  and  values  of  Europe’s  magnificent  heritage  were  put  in  the  spotlight 
through  a  series  of  speeches,  debates,  and  presentations.  Key  topics  included  the  potential  of  culture  to  tackle 
European and global challenges, the meanings of heritage for citizens, as well as the ways in which culture in cities 
and regions can help shape more cohesive and inclusive societies. 

216 European Parliament Resolution of 5 July 2017 ‘Towards an EU strategy for international cultural relations’. 

56 

 
 
 
                                                            
The  Creative  Europe  programme  (2014-2020)  aims  at  fostering  the  importance  and  understanding  of  cultural 
diversity  across  Europe  through  initiatives  such  as  European  heritage  label  for  sites  that  have  shaped  Europe’s 
history217.  The  European  Parliament  Resolution  of  2 March  2017  recognises  the  programme’s  objectives  of 
safeguarding and promoting European cultural and linguistic diversity, welcoming its growing intercultural dimension 
and hoping for more projects that boost cultural diversity and intercultural dialogue and promote multilingualism218. 

Article 23 — Equality between women and men 

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

Legislation 

In 2017 the Commission took a number of initiatives to promote gender equality. A key milestone was the proposal 
for a Directive of the European Parliament and of the Council on work-life balance for parents and carers219 which 
refers to equality between men and women and to reconciling family and work life. The Commission also presented 
an action plan to combat the gender pay gap220. 

There has been major progress on the legal framework to combat violence against women. On 13 June the EU signed 
the Istanbul Convention221. The EU’s accession to the Istanbul Convention will enable the EU and its Member States 
to develop a common framework to combat violence against women. By the end of 2017, all Member States signed 
the  Istanbul  Convention  and  17  Member  States222  have  so  far  ratified  it.  The  Commission  is  encouraging  the 
remaining Member States to swiftly ratify the Istanbul Convention and is also supporting the work to agree on the 
terms for the conclusion and ratification by the EU as soon as possible. 

Under WTO the EU endorsed the Joint Declaration on Trade and Women's Economic Empowerment on 12 December 
2017223 which is a collective initiative to increase the participation of women in trade. The EU’s recently negotiated 
trade agreements also contain commitments on women’s rights, equal pay and non-discrimination (ILO Conventions 
No 100 and No 111) and also other fundamental labour related provisions having a gender dimension, such as those 
on  forced  and  child  labour.  The  Convention  on  the  Elimination  of  All  Forms  of  Discrimination  against  Women 
(CEDAW) is one of the 27 international conventions that countries need to ratify and implement in order to benefit 
from the EU's Special Incentive Arrangement for Sustainable Development and Good Governance (GSP+).  

Policy 

Věra  Jourová,  European  Commissioner  for  Justice,  Consumers  and  Gender  Equality,  dedicated  the  year  2017  to  a 
Year  of  Focused  Actions  to  combat  violence  against  women.  Under  the  Rights,  Equality  and  Citizenship  and  the 

217 European Commission proposal for a Regulation of the European Parliament and of the Council amending Regulation (EU) No 1295/2013 
establishing the Creative Europe Programme (2014-2020). 
218  European  Parliament  resolution  of  2 March  2017  on  the  implementation  of  Council  Regulation  (EU)  No  390/2014  of  14 April 2014 
establishing the ʻEurope for Citizensʼ programme for the period 2014-2020. 
219 See further under Article 33 and 34. 
220 Communication from the Commission to the European Parliament, the Council and the European Economic and Social Committee ‘EU 
Action Plan 2017-2019. Tackling the gender pay gap’, 20 November 2017, COM(2017) 678 final. 
221 Council of Europe Convention on Preventing and Combating Violence against Women and Domestic Violence signed in Istanbul on 11 May 
2011,  https://rm.coe.int/168008482e. 
222 BE, DK, DE, EE, ES, FR, IT, CY, MT, NL, AT, PL, PT, RO, SI, FI, SE. 
223 https://www.wto.org/english/thewto_e/minist_e/mc11_e/genderdeclarationmc11_e.pdf 

57 

 
 
 
                                                            
Justice  Programmes  15  million  euros  was  made  available  to  12  national  authorities  and  32  grass  roots  projects 
addressing  violence  against  women  and  victim  support.  Several  European-wide  actions  were  also  carried  out.  For 
instance, a communication campaign ‘No Non.Nein. Say No Stop VAW’224 was launched with a dedicated website. In 
addition the Commission with support of the European Parliament continued the development of an  EU survey on 
gender-based  violence,  to  be  carried  out  by  national  statistical  institutes  and  coordinated  by  Eurostat.  Several 
events were also organised. For example, the Maltese Council Presidency conference in February 2017 focused on 
violence against women and included the launch of a web tool for professionals in contact with women affected by 
female  genital  mutilation.  On  11  December  a  joint  statement  by  the  Organisation  for  Economic  Cooperation  and 
Development,  the  Council  of  Europe,  the  European  Commission,  and  UN  Women  was  published225.    The 
organisations reaffirmed their commitment to eliminating gender-based violence and discussed the way forward for 
coordinated action. 

In  2017  the  Commission’s  Annual  Colloquium  on  Fundamental  Rights  focused  on  ‘women’s  rights  in  turbulent 
times’226.  The  high-level  Colloquium  brought  together  over  400  politicians,  national  and  EU  policy-makers, 
representatives  of  international  organisations,  civil  society  leaders,  academics,  legal  practitioners,  activists, 
businesses and trade unions, media representatives and journalists. They explored the link between the fulfilment of 
fundamental rights for women as well as pluralism, tolerance and equality, and agreed to step up efforts to protect 
and promote women’s rights in the EU. 

The Erasmus+ programme funded activities promoting gender equality both through formal education (learning to 
recognise and fight stereotypes) and non-formal education such as through sports and youth activities. 

Article 24 — The rights of the child 

Article 24 of the Charter recognises that children are independent and autonomous holders of rights and provides 
that  children  have  the  right  to  protection  and  care  necessary  for  their  well-being.  It  codifies  their  right  to 
participation, by emphasising that children may express their views freely, and that such views are to be taken into 
consideration  on  matters  that  concern  them  according  to  their  age  and  maturity.  Article 24  also  states  that  in  all 
action  affecting  children,  whether  by  public authorities  or  private institutions,  the  child’s  best  interests  must  be a 
primary consideration. It also enshrines every child’s right to maintain on a regular basis a personal relationship and 
direct contact with their parents, unless that is contrary to their interests. In line with Article 3(3) TEU, the rights of 
the child are a priority for the EU. 

Policy 

On 12 April 2017, the Commission’s Communication on the protection of children in migration227, followed by the 
Council  Conclusions  of  8 June  2017228,  took note  of  the  current situation  and  ongoing  challenges,  underlined that 
the protection of children in migration is a priority and set out urgent EU actions. The Commission recommended 
that the Member States:  

224 http://ec.europa.eu/justice/saynostopvaw/. 
225 http://europa.eu/rapid/press-release_STATEMENT-17-5243_en.htm 
226 http://europa.eu/!RN84wx 
227 Communication from the Commission to the European Parliament and the Council on the protection of children in migration, 12 April 2017, 
COM(2017) 211 final. 
228 Conclusions of the Council of the European Union and the representatives of the governments of the Member States on the protection of 
children in migration, Brussels, 8 June 2017, 10085/17 http://data.consilium.europa.eu/doc/document/ST-10085-2017-INIT/en/pdf 

58 

 
 
 
                                                            
  address the root causes;  
  ensure swift and comprehensive identification and protection;  
  provide adequate reception in the EU;  
  ensure swift and effective access to status determination procedures;  
 
  ensure durable solutions and cross-cutting actions.  

implement procedural safeguards; and  

The Communication also refers to cross-cutting actions at all migratory stages, such as making better use of EU 
financial support, improving data collection on children in migration and providing training to all those working 
with children in migration, and recalled that the principle of the best interests of the child must be a primary 
consideration in all actions or decisions on children. 

The  focus  on  children  in  migration  was  reflected  in  EU  funding.  For  example  under  the  Asylum,  Migration  and 
Integration Fund around 800 reception places for unaccompanied children in need of international protection were 
funded in Greece. Pending the establishment of a national guardianship system, the EU has allocated resources to 
the UN Refugee Agency to ensure the continuation of the guardianship network and foster care on mainland Greece 
and  its  islands.  Spain prioritised capacity-building  for  professionals  and  volunteers  responsible  for  unaccompanied 
children  and  in  Bulgaria  emergency  funding  was  provided  for  psychosocial  assistance  to  vulnerable  migrants, 
especially  unaccompanied  migrant  children.  In  Italy  funding  served  to  build  first  reception  conditions  for 
unaccompanied children and to provide services to them. 

Under  the rights,  equality  and  citizenship programme eight  projects  were  selected  to  build capacity  in  foster  care 
and  guardianship  for  unaccompanied  children  and  a  direct  grant  of  EUR 956 000  was  given  to  the  UN  Refugee 
Agency to promote child protection in some western European countries229. 

From 7-8 November 2017, the European Forum on the rights of the children deprived of liberty and alternatives to 
detention230 brought together over 300 participants with representatives invited from the EU-28, Norway, Iceland, 
Liechtenstein  and  Switzerland,  and  the  Western  Balkans  (Albania,  Bosnia  and  Herzegovina,  Kosovo,  Montenegro, 
Serbia, and the Former Yugoslav Republic of Macedonia). Participants represented national authorities, civil society, 
international  organisations,  and  ombudspersons  for  children,  academics,  practitioners  and  EU  institutions  and 
agencies. Discussions focused on four areas:  

1) children in conflict with the law;  

2) children detained in the context of migration;  

3) children in institutions; and  

4) children of parents in prison. 

229http://ec.europa.eu/newsroom/just/item-
detail.cfm?item_id=607382&utm_source=just_newsroom&utm_medium=Website&utm_campaign=just&utm_content=DG%20JUST%20award
s%20grant%20to%20UNHCR%20for%20the%20protection%20of%20children%20in%20 migration&utm_term=Fundamental%20rights&lang=e
n 
230 http://ec.europa.eu/newsroom/just/item-detail.cfm?item_id=128349 

59 

 
 
 
 
 
 
 
                                                            
At the side event to the forum, participants discussed the vulnerabilities of children deprived of their liberty. Over 
the three days, about 70 speakers shared their expertise and experience including 10 children and young people who 
gave personal testimonies on their experience of having been deprived of their liberty. 

On  17  February  2017,  Council  Conclusions  on  inclusion  in  diversity  to  achieve  high  quality  education  for  all 
emphasised the need for inclusive high-quality education available and accessible to all learners of all ages, including 
those  facing  challenges  and  regardless  of  sex,  racial  or  ethnic  origin,  religion  or  belief,  disability,  age  or  sexual 
orientation.  

On 23 May 2017, Council conclusions on sport as a platform for social inclusion through volunteering stressed the 
role  volunteering  in  sport  can  play  in  creating  inclusive  communities  and  helping  to  integrate  groups  at  risk  of 
marginalisation including people with disabilities231. 

In August 2017, the Commission Communication on the mid-term review of the EU framework for national Roma 
integration  strategies  focused  on  access  to  education  and  health  services  and  discrimination  against  Roma 
children232.  

On  4  December  2017,  the  Commission  adopted  a    Communication  on  ‘Reporting  on  the  follow-up  to  the  EU 
strategy towards the eradication of trafficking in human beings and identifying further concrete actions’233 setting 
out EU priorities and actions complementing the  Anti-trafficking Directive234. 

Based on a Commission proposal, the Parliament, the Council and the Commission jointly proclaimed the European 
pillar of social rights, principle 11 which states that children have the right to affordable early childhood education 
and care of good quality and the right to protection from poverty. Children from disadvantaged backgrounds have 
the right to specific measures to enhance equal opportunities. 

In April 2017 the Commission published a staff working document on ‘Taking stock of the 2013 investing in children 
recommendation:  breaking  the  cycle  of  disadvantage’235.  In  August  2017  the  European  Social  Policy  Network 
presented its latest report on ‘Progress across Europe in the implementation of the 2013 EU Recommendation on 
‘Investing in children: breaking the cycle of disadvantage’’236. In line with this the Commission issued a  number of 
country-specific recommendations to the Member States on children and families237.  

Article 25 — The rights of the elderly 

Article 25  of  the  Charter  sets  out  one  of  the  first  legally  binding  human  rights  provisions  addressing  the  rights  of 
older people and provides that the EU recognises and respects the rights of the elderly  to lead a life in dignity and 

231 See Articles 21 and 26. 
232 COM(2017) 458; 30.8.2017, available at http://ec.europa.eu/newsroom/just/item-detail.cfm?item_id=127519 
233  COM(2017) 728;  4.12.2017,  available  at:  https://ec.europa.eu/home-affairs/news/trafficking-human-beings-commission-adopts-new-
communication-and-commits-new-set-priorities_en 
234 Directive 2011/36/EU on preventing and combatting trafficking in human beings and protecting its victims, OJ L 101, 15.4.2011, p. 1. 
235    Commission  Staff  Working  Document  on  ‘Taking  stock  of  the  2013  Investing  in  children  recommendation:  breaking  the  cycle  of 
disadvantage’, Brussels, 26.4.2017  SWD(2017) 258 final. 
236 Available at the EPIC website cited in footnote 4. 
237  They cover inclusive education  and skills  (13 MS), poverty  and social inclusion  (3 MS), access  to healthcare (7 MS), access  to child  care/ 
ECEC (9 MS), effectiveness of social protection (7 MS), Roma children (4 MS) and financial disincentives to enter the labour market (6 MS). See  
https://ec.europa.eu/info/publications/2017-european-semester-country-specific-recommendations-commission-recommendations_en 

60 

 
 
 
                                                            
independence  and  to  participate  in  social  and  cultural  life.  Participation  in  social  and  cultural  life  also  covers 
participation in political life. 

An  aging  population  is  one  of  the  greatest  social  and  economic  challenges  facing  the  EU.  Projections  forecast  a 
growing number and share of elderly people (65 years and over), with a particularly rapid increase in the number of 
very old people (85 years and over). These demographic developments are likely to have a considerable impact on a 
wide range of policy areas: mostly on the different health and care requirements of the elderly, but also on labour 
markets, social security and pension systems, economic fortunes, as well as government finances238. 

Recent years have seen increased  calls for enhanced international thinking  and action on the human rights of  the 
elderly.  Various  stakeholders  have  called  for  more  visibility  and  increased  use  of  international  human  rights 
standards  to  address  the  situation  of  the  elderly.  Multiple  discrimination  emerges  as  an  essential  factor  in  any 
analysis, particularly given that age-related discrimination is often compounded by other grounds for discrimination, 
such as sex, socioeconomic status, ethnicity and health status.       

Policy 

In September 2017, the Lisbon Ministerial Declaration outlined the three policy goals until 2022 for Member States 
to  work  towards  the  recognition  of  the  potential  of  the  elderly,  encouraging  a  longer  working  life  and  ensuring 
ageing with dignity. 

The European pillar of social rights contains a number of key rights that are relevant for the elderly, namely:  

  equal  treatment  and  opportunities  on  employment,  social protection,  education,  and  access  to  goods  and 

 

 
 
 

services available to the public (principle 3);   
the  right  to  appropriate  leave,  flexible  working  arrangements  and  access  to  care  services  of  people  with 
caring responsibilities (principle 9);  
the right to old age income and pensions (principle 15);  
inclusion of people with disabilities in the labour market and in society (principle 17); and  
the  right  to  affordable  long-term  care  services  of  good  quality,  in  particular  home-care  and  community-
based services (principle 18).    

In addition to these rights, most of the rights and principles concern also the elderly. For instance life-long learning 
(principle  1);  adequate  minimum  income  benefits  ensuring  a  life  in  dignity  at  all  stages  of  life  (principle  14); 
affordable, preventive and curative healthcare of good quality, access to social housing or housing assistance of good 
quality, and access to essential services of good quality. 

The final conference of the European Network of National Human Rights Institutions’ project on the human rights 
of older people and long-term care co-funded by the Commission took place on 28 November in Brussels. As well as 
summarising  the  key  findings  from  the  project,  which  ended  in  December  2017,  the  conference  offered  further 
guidance  to  policymakers,  care  providers  and  advocates  for  the  elderly  on  implementing  a  human  rights-based 
approach in the long-term care  sector and protecting and promoting the rights of the elderly in (or seeking) care.  

in  the  EU  —  statistics  on  an  ageing  society,  Source:  Eurostat  (data  extracted 

238  People 
http://ec.europa.eu/eurostat/statistics-explained/index.php/People_in_the_EU_%E2 %80 %93_statistics_on_an_ageing_society. 
2 Human Rights Council (2016), Report of the Independent Expert on the enjoyment of all human rights by older persons, Human Rights Council, 
A/HRC/33/44, para. 126. 

in  November  and  December  2017) 

61 

 
 
 
                                                            
One of  the  main  findings  of  the project  was  that care  workers,  providers  and  policymakers,  were  not  always  sure 
what their human rights obligations were towards care home residents and how to put them into practice. 

Article 26 — Integration of persons with disabilities 

The  Charter  provides  that  the  EU  recognises  and  respects  the  right  of  people  with  disabilities  to  benefit  from 
measures designed to ensure their independence, social and occupational integration and participation in the life of 
the community. 

Legislation 

The proposed Directive on the approximation of the laws, regulations and administrative provisions of the Member 
States  on the  accessibility  requirements  for  products  and  services  (European  Accessibility  Act)  239  continued  to  be 
discussed by the Council and the European Parliament in 2017. Its adoption will contribute to the implementation of 
the  UN  Convention  on  the  Rights  of  Persons  with  Disabilities  and  improve  the  access  and  enjoyment  of  rights  for 
people with disabilities. 

The AudioVisual Media Service Directive encourages the accessibility of audiovisual media services for people with 
visual or hearing impairments240. The accessibility of the services providing access to audiovisual media services is 
also a subject of the proposal for a European Accessibility Act241. Efforts were also made during 2017 to implement 
the Web Accessibility Directive,  which  entered into  force on  22 December 2016242. It aims  at  helping  people with 
disabilities to have better access to public sector bodies website and mobile applications providing information and 
services that are essential for citizens.  

The  Standardisation  Mandate  was  adopted  in  March  and  preparatory  work  was  ongoing  for  the  drafting  of  the 
Implementing Acts, as a follow-up to the Directive. Developing solutions to improve media accessibility for all in the 
connected TV environment also remains a funding priority for the Commission through the project Hybrid Broadcast 
Broadband for All, funded under the Competitiveness and Innovation Framework Programme. 243 

On  27 September  2017,  the  Commission  adopted  a  proposal244  for  a  revision  of  the  Rail  Passenger  Rights 
Regulation245  which  aims  to  improve  the  protection  of  rail  passengers.  The  proposal  will  positively  affect  the 
integration  of  people  with  disabilities  protected  under  Article 26  of  the  Charter.  It  will  remove  the  possibility  for 
Member States’  to  exempt domestic services  from  certain  provisions,  notably  related to  the rights  of  people  with 
disabilities  or  reduced  mobility  and  will  to  enable  them  to  use  all  rail  services  on  an  equal  footing  with  other 
passengers.  

239 Proposal for a Directive of the European Parliament and of the Council on the approximation of the  laws, regulations and administrative 
provisions of the Member States as regards the accessibility requirements for products and services (COM(2015) 615 final, 2.12.2015. 
240 Article 7 of Directive 2010/13/EU of the European Parliament and of the Council of 10 March 2010 on the coordination of certain provisions 
laid down by law, regulation or administrative action in Member States concerning the provision of audiovisual media services (Audiovisual 
Media Services Directive). 
241 Proposal for a Directive of the European Parliament and of the Council on the approximation of the laws, regulations and administrative 
provisions of the Member States as regards the accessibility requirements for products and services. 
242 Directive (EU) 2016/2102 of the European Parliament and of the Council of 26 October 2016 on the accessibility of the websites and mobile 
applications of public sector bodies, OJ L 327, 2.12.2016, p. 1-15. 
243 http://www.hbb4all.eu/ 
244 2017 (COM(2017) 548). 
245 Regulation (EC) 1371/2007 on rail passengers’ rights and obligations, OJ L 315, 3.12.2007, p. 14. 

62 

 
 
 
                                                            
Overall, the rights of people with disabilities or reduced mobility were updated in line with the UN Convention on 
the  Rights  of  Persons  with  Disabilities,  notably  on  training  of  staff  providing  assistance  and  the  accessibility  of 
information for people with disabilities or reduced mobility. 

International Agreements 

The  Convention  on  the  Rights  of  Persons  with  Disabilities  is  the  first  international  legally  binding  human  rights 
instrument setting minimum standards for a range of civil, political, social, economic and cultural rights for people 
with  disabilities  around  the  world246.  It  is  also  the  first  human  rights  treaty  to  which  the  EU  is  a  party.  The  EU 
concluded the Convention on the Rights of Persons with Disabilities in 2010247. All EU-28 have signed it and 27 have 
ratified it (Ireland is making progress towards ratification). The EU reported back to the UN Committee in January 
2017  on  its  three  main  recommendations  ((i)  adoption  of  the  European  Accessibility  Act,  (ii)  withdrawal  of  the 
Commission from the Independent Framework, and (iii) list of powers) and presented the current situation regarding 
its activities and policies during the annual Convention on the Rights of Persons with Disabilities Conference in New 
York in June 2017. 

Policy 

The EU Agency for Fundamental Rights reported on the developments in the implementation of the Convention on 
the Rights of Persons with Disabilities248 recalling that 10 years after the United Nations General Assembly adopted 
the  Convention  on  the  Rights  of  Persons  with  Disabilities,  the  Convention  continues  to  spur  significant  legal  and 
policy changes in the EU and its Member States. 

Principle 17 of the European pillar of social rights on the ‘Inclusion of People with Disabilities’ states that they have 
the  right  to  income  support  that  ensures  living  in  dignity,  services  that  enable  them  to  participate  in  the  labour 
market  and  in  society,  and  a  work  environment  adapted  to  their  needs.  In  addition,  disability  concerns  are 
mainstreamed  into  all  principles  of  the  pillar.  In  particular  the  ones  related  to  education,  training  and  long-life 
learning,  equal  opportunities,  work-life  balance,  childcare  and  support  to  children,  long-term  care,  housing  and 
assistance for the homeless and access to essential services. 

In  February  2017  the  Commission  adopted  a  Progress  report  on  the  implementation  of  the  European  disability 
strategy  2010-2020249. The  report describes  the  main  achievements  in the  eight areas  covered  by  the strategy: (i) 
accessibility,  (ii)  participation,  (iii)  equality,  (iv)  employment,  (v)  education  and  training,  (vi)  social  protection,  (vii) 
health and (viii) external action, as well as on awareness training, funding and statistical data. The report contains 
also information on the internal implementation of the UN Convention on the Rights of Persons with Disabilities in 
the EU institutions. 

Each year, the Commission raises awareness of disability issues through a conference celebrating the European Day 
of Persons with Disabilities250, which it organises in cooperation with the European Disability Forum. The European 
Day  of  Persons  with  Disabilities  conference  in  2017  brought  together  a  wide  range  of  participants  representing 

246 http://www.un.org/disabilities/ 
247 Council Decision of 26 November 2009 concerning the conclusion, by the European Community, of the United Nations Convention on the 
Rights of Persons with Disabilities (2010/48/EC). 
248  Fundamental  Rights  Report  2017,  9.  Developments  in  the  implementation  of  the  Convention  on  the  Rights  of  Persons  with  Disabilities 
http://fra.europa.eu/en/publications-and-resources/publications/annual-reports/fundamental-rights-2017#crpd 
249 Commission Staff Working Document ‘Progress report on the implementation of the European Disability Strategy 2010-2020’ of 2 February 
2017, SWD (2017) 29. 
250 http://ec.europa.eu/social/main.jsp?langId=fr&catId=88&eventsId=1264&furtherEvents=yes 

63 

 
 
 
                                                            
people with disabilities, organisations or groups of persons with disabilities, policymakers from the Member States, 
disability  and  accessibility  experts,  academics  and  the  European  institutions.  The  theme  of  the  conference  was 
citizenship. Citizenship  is  a  great enabler,  bringing  with it  many  rights,  but  when trying  to  enjoy  their  rights  many 
people with disabilities face constant barriers251. 

The  Commission  organised  the  8th  Access  City  Award252  in  partnership  with  the  European  Disability  Forum.  This 
Award  promotes  accessibility  in  the  urban  environment,  especially  for  elderly  and  disabled  people  and  also 
recognises improvements made in this area by cities across the continent. 

Currently, there is no mutual recognition of disability status between Member States which may pose challenges for 
people  with  disabilities  travelling  to  other  EU  countries.  The  EU  is  developing  a  system  of  voluntary  mutual 
recognition based on an EU Disability Card. 

Under  the  European  Semester253  the  Commission  continues  to  monitor  the  situation  of  people  with  disabilities  in 
Member  States  notably  in  employment,  poverty  and  social  inclusion  and  education.  In  2017  disability  issues  have 
gained more visibility across the Country Reports published by the Commission. 

NATIONAL CASE LAW BOX 

The  Supreme  Administrative  Court  of  Bulgaria  in  a  case  concerning  a  teacher  who  had  refused  a  pupil  with  a 
disability  to  join  a  school  excursion  —  an  alleged  violation  of  the  Protection  against  Discrimination  Act  (Закон  за 
защита от дискриминация) — confirmed the lower court’s decision and rejected the teacher’s appeal. To reinforce 
its  argument,  the  Court  referred  to  various  rights  under  the  Charter,  including  Article 1  of  the  Charter  (human 
dignity), Article 24 (the rights of the child) and Article 26 (integration of people with disabilities)254. 

251 FRA http://fra.europa.eu/en/theme/people-disabilities 
252 http://ec.europa.eu/social/main.jsp?langId=en&catId=1141&eventsId=1208&furtherEvents=yes 
253https://ec.europa.eu/info/business-economy-euro/economic-and-fiscal-policy-coordination/eu-economic-governance-monitoring-
prevention-correction/european-semester_en 
254 Bulgaria, Supreme Administrative Court, case 10383/2015, 17 January 2017. 

64 

 
 
 
 
 
 
                                                            
Letters 

Justice 
17% 

Other 
11% 

Citizens' rights 
21% 

Equality 
29% 

Solidarity 
4% 

Freedoms 
18% 

Dignity 
1% 

Equality before the 
law 
0% 
Non-discrimination 
2% 

 - Homophobia  1% 
 - National and 
linguistic minorities  
12% 

 - Racism and 
xenophobia 2% 
 - Roma 
1% 

 - Other ground of 
discrimination 3% 

Cultural, religious and 
linguistic diversity 
0% 

The rights of the child 
2% 

Equality between 
women and men  0% 
Integration of persons 
with disabilities 4% 

65 

 
 
 
 
 
 
Justice 
7% 

Other 
7% 

Questions 

Citizens' rights 
15% 

Solidarity 
6% 

Freedoms 
27% 

Dignity 
7% 

Equality 
31% 

Non-discrimination 1% 

 Homophobia 2% 
 National and linguistic 
minorities  2% 

 Racism and 
xenophobia 4% 

Roma 2% 
 Other ground of 
discrimination 2% 
Cultural, religious and 
linguistic diversity 1% 

Equality between 
women and men 1% 

The rights of the child 
10% 

Integration of persons 
with disabilities  
7% 

66 

 
 
 
 
Petitions 

Citizens' rights 
30% 

Solidarity 
10% 

Justice 
8% 

Other 
10% 

Equality 
21% 

Freedoms 
18% 

Dignity 
3% 

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

 - Other ground of 
discrimination 
7% 

Cultural, religious and 
linguistic diversity 
3% 

The rights of the child 
3% 

The rights of the 
elderly 
Integration of persons 
2% 
with disabilities 
2% 

67 

 
 
 
 
 
Title IV 

Solidarity 

Drawing on the rights enshrined in the Charter, the European pillar of social rights was jointly signed and proclaimed 
by  the  European  Parliament,  the  Council  and  the  Commission  on  17 November  2017.  The  pillar  sets  out  20  key 
principles and rights to support fair and well-functioning labour markets and welfare systems. 

The  Commission  has  put  forward  in  2017  a  proposal  for  a  Directive  on  Transparent  and  Predictable  Working 
Conditions  in  the  European  Union.  This  instrument  complements  existing  obligations  and  creates  new  minimum 
standards to give all workers, including those on precarious forms of employment, more predictability and clarity on 
their working conditions.  

On  26 April  2017,  the  Commission  adopted  an  initiative  to  support  work-life  balance  for  working  parents  and 
carers  which  includes  measures  to  ensure  better  work-life  balance  opportunities  for  men  and  women  with  caring 
responsibilities  and  a  gender-balanced  use  of  leave  and  flexible  work  arrangements  as  well  as  an  action  plan  to 
combat the gender pay gap. In the 2017 State of the Union speech the Commission proposed to create in 2018 a 
European  Labour  Authority  to  strengthen  cooperation  between  labour  market  authorities  at  all  levels  and  better 
manage cross-border situations. 

In  April  the  Commission  adopted  a  Notice  on  access  to  justice  in  environmental  matters255,  which  clarifies  how 
individuals  and  associations  can  challenge  decisions,  acts  and  omissions  by  public  authorities  related  to  EU 
environmental law before national courts. 

The Commission is committed to strengthening the enforcement of European consumer laws to ensure the swifter 
enforcement  of  consumer  protection  laws.  In  his  2017  State  of  the  Union  speech  and  the  letter  of  intent  of 
13 September  2017,  President  Juncker  announced  a  ‘New  Deal  for  Consumers’  package,  aiming  to  improve 
coordination and action by national consumer authorities at EU level and reinforcing public enforcement action and 
better protection of consumer rights.  On 26 September 2017 the Commission published a set of Guidelines on the 
application of EU food and consumer laws to dual quality food products which explain the practical steps to enable 
measures to be taken by the competent food and consumer authorities. 

Article 27  —  Workers’  right  to 
undertaking 

information  and  consultation  within  the 

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

Policy 

Directive 2009/38 establishing European Works Councils (Recast Directive) was the subject of an evaluation in 2017. 
European  Works  Councils  are  bodies  representing  European  employees  within  cross-border  companies.  Through 

255 Communication from the Commission of 28.4.2017 ‘Commission Notice on Access to Justice in Environmental Matters’, C(2017) 2616 final, 
http://ec.europa.eu/environment/aarhus/pdf/notice_accesstojustice.pdf. 

68 

 
 
 
 
                                                            
them, employees are informed and consulted by management on the progress of the business and any significant 
decision  at  European  level  that  could  affect  their  employment  or  working  conditions.  As  part  of  the  coherence 
analysis, the evaluation concluded that the provisions of the Recast Directive are generally consistent with Article 27 
of the Charter.  

Article 28 — Right of collective bargaining and action 

Article 28 of the Charter provides that workers and employers, or their respective organisations, have, in line with 
EU law and national laws and practices, the right to negotiate and conclude collective agreements at the appropriate 
levels and, in cases of conflicts of interest, to take collective action to defend their interests, including strike action. 
There  is  no  specific  EU  law  regulating  the  conditions  and  consequences  of  the  exercise  of  these  rights  at  national 
level256.  Member  States  remain  bound  by  the  provisions  of  the  Charter,  including  the  right  to  strike,  in  instances 
where they implement EU law. 

Legislation 

In  its  proposal  for  a  Council  Regulation  on  the  establishment  of  the  European  Monetary  Fund  presented  in 
December  2017257  the  Commission  sought  to  ensure  the  respect  of  Article 28  of  the  Charter.  By  integrating  the 
current  European  Stability  Mechanism  within  the  EU  legal  framework,  the  proposal  aims  at  providing  financial 
stability  support  to  the  Member  States  within  the  Eurozone.  An  explicit  reference  to  Article 152  TFEU  has  been 
inserted  in  this  proposal  to  ensure  compliance  with  the  right  of  collective  bargaining  and  action  stating  that  the 
proposed  European  Monetary  Fund  Regulation  does  not  impinge  on  the  right  to  negotiate,  conclude  and  enforce 
collective agreements or to take collective action in line with national law. 

Article 29 — Right of access to placement services 

According  to  Article 29  of  the  Charter  everyone  has  the  right  of  access  to  a  free  placement  service.  The  Article  is 
based  on  Article 1(3)  of  the  European  Social  Charter  and  point  13  of  the  Community  Charter  of  the  Fundamental 
Social Rights of Workers. 

Article 30 — Protection in the event of unjustified dismissal 

According to Article 30 of the Charter every worker has the right to protection against unjustified dismissal, in line 
with  EU  law  and  national  laws  and  practices.  The  Article  draws  on  Article 24  of  the  revised  Social  Charter258.  It  is 
given  effect  by  Directive  2001/23/EC  on  the  safeguarding  of  employees’  rights  in  the  event  of  transfers  of 
undertakings,  and  Directive  2008/94/EC  on  the  protection  of  employees  in  the  event  of  the  insolvency  of  their 
employer as amended by Directive 2002/74/EC. 

Application by the Member States 

A substantial number of fundamental rights issues raised by citizens in complaints addressed to the Commission in 
the area of labour law relate to protection against unjustified dismissals. The number and proportion of complaints 

256 Article 153(5) TFEU stipulates that it does not apply to the right to strike. 
257 Proposal for a Council Regulation on the establishment of the European Monetary Fund, COM(2017) 827final. 
258 European Social Charter (revised) ETS No 163. 

69 

 
 
 
 
 
 
                                                            
in which the Charter is quoted has been growing significantly. The Charter is now being invoked in most complaints 
on labour law, notably on individual dismissals. However, in nearly all these cases the Charter did not apply due to 
the fact that the issues raised by the complainants were not covered by EU law. 

Article 31 — Fair and just working conditions 

Article 31 of the Charter guarantees that every worker has the right to working conditions that respects their health, 
safety and dignity. Every worker has the right to a limit on maximum working hours, to daily and weekly rest periods 
and to an annual period of paid leave. There is a substantial body of EU law in this area on health and safety at work. 

Legislation 

On 31 May 2017 the Commission adopted several proposals259 as part of the ‘Mobility package’ to ensure a better 
coherence  and  complementarity  between  the  social  and  market  rules  applicable  to  road  transport.  In  particular 
between the core road transport social rules on driving, working and resting times, the rules on posting of workers 
and the market rules on the access to occupation of road transport operator and access to haulage and passenger 
markets.  The  aim  is  to  ensure  a  balance  between  the  social  protection  rights  of  workers,  the  freedom  to  provide 
cross-border  services  and  the  freedom  to  freedom  to  conduct  a  business260  that  is  protected  by  the  Charter261. 
Furthermore, the Commission is supporting the dialogue between the social partners on the possibility to define and 
establish minimum rules on the social and security standards (social code) for mobile road transport workers. 

On 27 July the Commission adopted a proposal for a Council Directive amending Council Directive 2009/13/EC in line 
with the 2014 amendments to the Maritime Labour Convention262. Directive 2009/13/EC263 incorporates into EU law 
the  Convention  adopted  by  the  International  Labour  Organisation  in  2006  with  the  objective  to  create  a  single, 
coherent instrument bringing together all up-to-date standards for international maritime labour.  

The Maritime Labour Convention provides comprehensive rights and protection at work for all seafarers, regardless 
of  their  nationality  or  the  ship’s  flag.  A  number  of  amendments  to  the  Convention  were  approved  by  the 
International Labour Conference in 2014 with the aim to establish an effective financial security system that protects 
seafarers’  rights  in  the  event  of  abandonment  and  allows  compensation  for  contractual  claims  for  death  or  long-

259 Proposal for a Regulation of the European Parliament and of the Council amending Regulation (EC) No 561/2006 as regards on minimum 
requirements on maximum daily and weekly driving times, minimum breaks and daily and weekly rest periods and Regulation (EU) 165/2014 
as regards positioning by means of tachographs, COM(2017) 277 final; Proposal for a Directive of the European Parliament and of the Council 
amending Directive 2006/22/EC as regards enforcement requirements and laying down specific rules with respect to Directive 96/71/EC and 
Directive  2014/67/EU  for  posting  drivers  in  the  road  transport  sector,  COM(2017)  278  final;  Proposal  for  a  Regulation  of  the  European 
Parliament and of the Council amending Regulation (EC) No 1071/2009 and Regulation (EC) No 1072/2009 with a view to adapting them to 
developments in the sector, COM(2017) 281 final. 
260 See Article 15 and 16. 
261  As  highlighted  in  the  White  Paper  on  Transport  Roadmap  to  a  Single  European  Transport  Area  —  Towards  competitive  and  resource 
efficient transport system  (COM(2011) 144), where it makes clear that the creation of a Single European Transport Area should go together 
with a higher degree of convergence and enforcement of social rules. It adds that market opening needs to go hand in hand with quality jobs 
and working conditions. 
262 Proposal for a Council Directive implementing the Agreement concluded by the European Community Shipowners’ Associations (ECSA) and 
the European Transport Workers’ Federation (ETF) to amend Council Directive 2009/13/EC in accordance with the amendments of 2014 to the 
Maritime Labour Convention, 2006 as approved by the International Labour Conference on 11 June 2014, COM/2017/0406 final. 
263  Council  Directive  2009/13/EC  of  16 February  2009  implementing  the  Agreement  concluded  by  the  European  Community  Shipowners’ 
Associations (ECSA) and the European Transport Workers’ Federation (ETF) on the Maritime Labour Convention, 2006, and amending Directive 
1999/63/EC (OJ L 124, 20.5.2009, p. 30). 

70 

 
 
 
 
                                                            
term disability  of  seafarers  due to  occupational injury,  illness  or  hazard.  These  amendments  aim  at  improving the 
existing system of protection for seafarers in line with Article 31 of Charter.  

On 21 December 2017 the Commission adopted a proposal for a Directive on transparent and predictable working 
conditions  in  the  European  Union264  as  part  of  the  follow-up  to  the  European  pillar  of  social  rights.  The 
Commission’s  proposal  complements  and  modernises  existing  obligations  to  inform  each  worker  of  their  working 
conditions. In addition, the proposal creates new minimum standards to ensure that all workers, including those on 
atypical contracts, benefit from more predictability and clarity about their working conditions. The initiative builds 
on  the  Written  Statement  Directive265,  which  requires  updating  in  the  light  of  changes  in  employment  rules.  The 
Commission’s REFIT evaluation of that Directive266 showed that many workers in the EU, such as domestic workers 
and those who perform on-demand work, do not receive a written confirmation of their working conditions or do 
not receive all the information they need in a timely manner. The consultation on the European pillar of social rights 
also  showed  that  more  predictability  should  be  provided  to  workers,  in  particular  those  in  non-standard  forms  of 
employment, such as casual work.  

The  Commission  has  therefore  put  forward  a  proposal  which  will  repeal  the  current  Written  Statement  Directive. 
The new directive reinforces the rights provided for in the current rules and adds new common rights for all workers 
on their working conditions including on probation, work predictability, training and support to transition to more 
secure employment. 

Policy 

On  26  April  the  Commission  adopted  an  interpretative  communication  on  the  Working  Time  Directive,  providing 
guidance on how to interpret various aspects of this directive in line with a growing body of case law. This will help 
Member States implement the acquis correctly and avoid further infringements by Member States267. 

Case law 

In the case of Conley King268 the Court held that a worker must be able to carry over and accumulate unexercised 
rights to paid annual leave when an employer does not put that worker in a position in which he is able to exercise 
his  right  to  paid  annual  leave  which  is  expressly  set  out  in  Article 31(2)  of  the  Charter  and  which  Article 6(1)  TEU 
recognises  as  having  the  same  legal  value  as  the  EU  Treaties.  The  right  to  an  effective  remedy,  as  guaranteed  by 
Article 47 of the Charter, would not be guaranteed if, in a situation in which the employer grants only unpaid leave 
to the worker, the worker would not be able to rely, before the courts, on the right to take paid leave, but would be 
forced to take leave without pay and then bring an action to claim payment for it.  

The Court found that such a result is incompatible with the right to an effective remedy and to paid annual leave. EU 
law therefore precludes a situation where the worker must take their leave before establishing whether they have 
the right to be paid in respect of that leave. 

264 Proposal for a Directive of the European Parliament and of the Council on transparent and predictable working conditions in the European 
Union, COM(2017) 0797 final. 
265  Council  Directive  91/533/EC  of  14 October  1991  on  an  employer’s  obligation  to  inform  employees  of  the  conditions  applicable  to  the 
contract or employment relationship (OJ L 288, 18.10.1991, p. 32). 
266 http://ec.europa.eu/social/main.jsp?catId=1313&langId=en&moreDocuments=yes  
267 Interpretative Communication on Directive 2003/88/EC of the European Parliament and of the Council concerning certain aspects of the 
organisation of working time (2017/C 165/01). 
268 Judgment of 29 November 2017 in case C-214/16, Conley King v The Sash Window Workshop Ltd and Richard Dollar. 

71 

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

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

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

The  EU  was  well  represented  in  the  IV  Global  Conference  on  the  Sustainable  Eradication  of  Child  Labour  held  in 
November 2017 in Buenos Aires, Argentina. The conference focused on the eradication of child labour, forced labour 
and quality youth employment, and produced as outcome document  the Buenos Aires Declaration,  an instrument 
that will guide all efforts on the issues covered. During the conference the EU was present at the high level panel on 
‘Supply Chains: Getting on top of complexity’ and further hosted a special session on EU-ILO partnership to eliminate 
child labour and forced labour in supply chains. 

Article 33 — Family and professional life 

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

Legislation and policy 

On  26 April  2017,  the  Commission  adopted  an  initiative  to  support  work-life  balance  for  working  parents  and 
carers269.  This  initiative,  being  part  of  the  European  pillar  of  social  rights,  the  Commission  presented  a  set  of 
legislative  and  non-legislative  actions  to  modernise  the  existing  EU  legal  and  policy  framework  to  better  support 
work-life balance for men and women with caring responsibilities and a more equal use of leave and flexible work 
arrangements. This initiative aims at promoting a number of fundamental rights provided by the Charter270.  

A proposed Directive preserves and builds on existing rights, in particular under the Parental Leave Directive271 and 
includes a number of new rights. In particular, the possibility for flexible uptake (piece-meal and part-time) of the 
four months entitlement to parental leave paid at sick pay level which can be taken up until the child reaches the age 
of  12  and  cannot  be  transferred  between  parents.  Other  rights  include  an  entitlement  to  10  working  days  of 
paternity leave when a child is born paid at sick pay level,  an entitlement to five days of leave paid at sick pay level 
per  year  per  worker  to  take  care  of  seriously  ill  or  dependent  relatives  and  a  right  to  request  flexible  working 
arrangements for parents of children up to 12 years old and workers with caring responsibilities. 

269  Communication  from the  Commission, An  Initiative to Support Work-Life  Balance  for Working  Parents and Carers (COM(2017) 252 final, 
26.4.2017). 
270 See Article 21, 23, 24 and 34. 
271 Proposal for a Directive of the European Parliament and of the Council on work-life balance for parents and carers and repealing Council 
Directive 2010/18/EU, COM/2017/0253 final. 

72 

 
 
 
 
                                                            
Article 34 — Social security and social assistance 

Article 34  of  the  Charter  recognises  and  respects  the  entitlement  to  social  security  benefits  and  social  services 
providing protection in cases such as maternity, illness, industrial accidents, dependency or old age, and in the case 
of loss of employment. Everyone residing and moving legally within the EU is entitled to social security benefits and 
social advantages in line with EU law and national laws and practices. 

Legislation 

The Security of Gas Supply Regulation adopted in October 2017, puts more emphasis on combating energy poverty 
and social exclusion272. It recognises that ‘certain customers, including households and customers providing essential 
social services are particularly vulnerable and may need protection against the negative effects of disruption of gas 
supply’273. 

Policy 

Under  the  European  pillar  of  social  rights,  the  Commission  has  reinforced  EU  labour  mobility  by  ensuring  that  a 
modernisation of the social security coordination is properly implemented. On 3 July the Commission presented the 
new Information on Electronic Exchange of Social Security Information system274, an IT platform that will connect 
electronically  around  15 000  social  security  institutions  of  the  Member  States  plus  Iceland,  Liechtenstein,  Norway 
and  Switzerland.  The  new  tool  will  benefit  citizens  who  have  lived  and  worked  in  several  of  the  participating 
countries, and who will see their social security benefits calculated quicker and more efficiently.  

In the 2017 State of the Union speech, the Commission proposed to create in 2018 a European Labour Authority to 
strengthen cooperation between labour market authorities at all levels and better manage cross-border situations. 
The  European  Labour  Authority  should  be  an  effective  body  supporting  national  administrations,  businesses  and 
mobile  workers  by  improving  cooperation  at  EU  level  on  cross-border  mobility  and  social  security  coordination 
matters,  and  improving  access  to  information  and  transparency  on  rights  and  obligations  in  labour  mobility  and 
social security systems. 

The European Fund for Strategic Investment in 2017 invested EUR 10 million into a social impact bond scheme that 
will  support  the  integration  of  between  2 500  and  3 700  migrants  and  refugees  into  the  Finnish  labour  market  by 
providing training and job-matching assistance. In the European Fund for Strategic Investment 2.0 (the extension of 
the Fund275), social services have been added to the list of eligible sectors for this financing. 

Article 35 — Healthcare 

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

Policy 

272 See Article 17. 
273 Recital 23 of the Security of Gas Supply Regulation. 
274 https://ec.europa.eu/cefdigital/wiki/display/CEFDIGITAL/2017/05/30/Electronic+Exchange+of+Social+Security+Information. 
275 https://ec.europa.eu/commission/publications/whats-new-efsi-2_en 

73 

 
 
 
                                                            
During 2017 a significant number of actions and projects were funded under the EU 3rd Health programme (2014-
2020)276. ‘The State of Health in the EU’ — a package of actions developed by the Commission, the Organisation for 
Economic Cooperation and Development and the World Health Organization includes a report ‘Health at a Glance’ as 
well as country health profiles for the Member States and a Commission policy paper on the state of health  in the 
EU. The aim of this initiative is to contribute to country-specific knowledge, to inform health policies at national and 
European level and to enable policy dialogues among Member States277.  

‘The EU Health Award‘ is an initiative funded under the 3rd Health programme that aims at highlighting actions of 
non-governmental  organisations  which  have  made  a  significant  contribution  in  promoting  a  higher  level  of  public 
health  in  the  EU.  In  2017  three  NGOs  received  the  EU  Health  Award  to  reward  their  initiatives  in  promoting 
vaccinations in the EU278. 

The  most  important  projects  in  2017  focused  on  aiming  to  respond  to  the  high  influx  of  refugees  in  Europe, 
implementing the 2015 EU migration agenda and in particular the skills agenda on integration of non-EU nationals: 

  WHO Migration and Health Knowledge Management  project is an initiative of World Health Organization 
Europe which aims at raising awareness, sharing knowledge, and increasing the adoption of migrant-health 
good practices and evidence-based approaches across the EU279. 

  Re-Health II project implemented by the International Organisation for Migration aims at supporting the EU 
Member States in improving healthcare provision for migrants and integrating them into national healthcare 
systems280. 

  Pilot  specific  training  modules  for  health  professionals,  border  guards  and  trainers  in  migrants’  and 
refugees’ health (MIG-H-Training)281 on mental health and post-traumatic stress detection and on screening 
for communicable diseases in migrants and refugees. 

  Provision of training for frontline health professionals and law enforcement officers working at local level 
with  migrants  and  refugees,  and  training  of  trainers282  aimed  at  improving  their  skills,  promoting 
understanding, positive attitudes and holistic approach in the work with migrants and refugees at first points 
of arrival, transit and destination countries. 

Under  ‘Migrants’  health:  best  practice  in  care  for  vulnerable  migrants  and  refugees’,  major  projects  started  in 
2017: 

276  Regulation (EU) No 282/2014 of the European Parliament and of the Council of 11 March 2014 on the establishment of a third Programme 
for the Union’s action in the field of health (2014-2020) and repealing Decision No 1350/2007/EC Text with EEA relevance, OJ L 86, 21.3.2014, 
p. 1. 
277 https://ec.europa.eu/health/state/summary_en 
278 https://ec.europa.eu/health/ngo_award/home_en 
279http://www.euro.who.int/en/health-topics/health-determinants/knowledge-hub-on-health-and-migration/about/migration-health-
knowledge-management-mihkma 
280 http://re-health.eea.iom.int/ 
281Call  for  tender  https://etendering.ted.europa.eu/cft/cft-display.html?cftId=2049,  contract  awarded  to  Deutsche  Gesellschaft  für 
internationale Zusammenarbeit (GIZ). 
282https://etendering.ted.europa.eu/cft/cft-display.html?cftId=2050  contract  awarded 
Zusammenarbeit (GIZ). 

to  Deutsche  Gesellschaft 

internationale 

für 

74 

 
 
 
                                                            
  Mig-HealthCare283 project that focuses on the effective community-based care models to improve physical 
and  mental  healthcare  services,  support  the  inclusion  and  participation  of  migrants  and  refugees  in 
European communities and reduce health inequalities. 

  MyHealth284  project  that  develops  and  implements  models  based  on  the  know-how  of  a  European 
multidisciplinary  network,  to  reach  out  to  vulnerable  migrants  and  refugees  about  their  health  —  in 
particular women and unaccompanied minors. 

  The  project  Operational  Refugee  and  Migrant  Maternal  Approach285  that  develops  an  operational  and 
strategic approach to promote safe motherhood, to improve access and delivery of maternal healthcare for 
refugee and migrant women and to improve maternal health equality within the EU. 

The Commission continued to support the Member States’ actions aimed at improving mental health in line with the 
Convention  on  the  Rights  of  Persons  with  Disabilities  that  covers  the  rights  of  people  with  mental  health 
problems286. EU actions were carried out under the EU Compass on Mental Health and Well-being287. Priority areas 
were the improvement of mental health at work, mental health in schools and the prevention of suicide. 

Parliamentary questions 

The  Commission  received  a  significant  number  of  questions  from  Members  of  the  European  Parliament  on  issues 
related to healthcare and the Charter. The questions concerned issues related to the protection of victims of Toxic 
Oil  Syndrome  in  Spain,  grounds  for  euthanasia  in  the  Netherlands,  the  measures  preventing  abortion  in  the 
amendments of the French Public Healthcare code and the pollution by installation of biogas in Germany.  

In its replies, the Commission recalled its commitment to effectively monitor the correct implementation of the EU 
rules,  underlining  that  it  can  intervene  only  if  a  violation  of  EU  law  is  involved  [in  line  with  Article 51(1)  of  the 
Charter] and stressing that in the absence of EU law, the responsibility for healthcare remains the competence of the 
Member States.  

Article 36 — Access to services of general economic interest 

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

Article 37 — Environmental protection 

Article 37  of  the  Charter  provides  that  a  high  level  of  environmental  protection  and  improving  the  quality  of  the 
environment must be integrated into EU policies and ensured in line with the principle of sustainable development. 

Policy 

283 http://www.mighealthcare.eu/ 
284 http://healthonthemove.net/ 
285 https://oramma.eu/ 
286 See Article 26. 
287 A mechanism financed under the 3rd Health Programme aimed at collecting, exchanging, analysing and disseminating information on policy 
and stakeholder activities in the area of mental health. 

75 

 
 
 
 
                                                            
In April 2017 the Commission adopted a Notice on access to justice in environmental matters288 which clarifies how 
individuals and associations can challenge before national courts decisions, acts and omissions by public authorities 
in EU environmental law. The Notice provides the useful guidance to citizens by helping them to decide whether to 
bring a case before national courts. It also helps the national courts to identify all the Court’s jurisprudence that they 
should take into account when faced with questions related to access to justice. The Notice mentions the Charter as 
a key framework text and explains its specific relevance to legal aid. 

Article 38 — Consumer protection 

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

Legislation 

On  12  December  2017  the  new  Consumer  Protection  Cooperation  Regulation289  was  adopted.  Consequently, 
enforcement authorities are better equipped to work together, more swiftly and more efficiently, also enabling the 
Commission  to  launch  and  coordinate  common  actions  against  EU-wide  sharp  practices.  Organisations  with  an 
interest  in  consumer  protection  are  also  involved  in  detecting  market  problems,  signalling  unlawful  cross-borders 
practices to national enforcers and to the Commission. 

On  4  July  2017  the  new  Energy  Labelling  Regulation290  was  adopted.  The  Regulation  updates  and  clarifies  the 
existing energy labelling framework taking into account the technological progress achieved in energy efficiency. In 
particular,  energy  labelling  enables  consumers  to  make  informed  choices  and  encourages  improvements  in  the 
efficiency of energy-related products thus ultimately saving consumers money on energy bills. 

The  proposal  for  a  revision  of  the  Rail  Passenger  Rights  Regulation291  aims  at  improving  the  protection  of  rail 
passengers  while  taking  account  the  burdens  on  the  rail  sector.  The  proposal  will  have  an  impact  on  consumer 
protection  as  guaranteed  by  Article 38  of  the  Charter.    In  particular,  it  improves  the  information  that  has  to  be 
provided  to  passengers  by  requiring  the  rail  sector  to  better  inform  passengers  on  the  type  of  ticket  or  travel 
contract they have bought and the rights and obligations linked to it. 

Policy 

In his 2017 State of the Union speech and the letter of intent of 13 September 2017, Commission President Juncker 
announced  a  ‘New  Deal  for  Consumers’  package  that  aims  at  facilitating  coordination  and  effective  action  by 
national consumer authorities at EU level and reinforcing public enforcement action and better protecting consumer 
rights.  

288 Communication from the Commission of 28.4.2017 ‘Commission Notice on Access to Justice in Environmental Matters’, C(2017) 2616 final, 
http://ec.europa.eu/environment/aarhus/pdf/notice_accesstojustice.pdf 
289  Regulation  (EU)  2017/2394  of  the  European  Parliament  and  of  the  Council  of  12 December  2017  on  cooperation  between  national 
authorities responsible for the enforcement of consumer protection laws and repealing Regulation (EC) No 2006/2004, OJ L 345, 27 December 
2017, p. 1-26. 
290  Regulation  (EU)  2017/1369  of  the  European  Parliament  and  of  the  Council  of  4 July  2017  setting  a  framework  for  energy  labelling  and 
repealing Directive 2010/30/EU, OJ L 198, 28 July 2017, p. 1. 
291 See Article 26. 

76 

 
 
 
                                                            
As part of the Commission’s 2018 work programme, the New Deal includes a targeted revision of EU consumer law 
directives  following  on  the  Fitness  Check  of  consumer  and  marketing  law292  that  was  finalised  in  May  2017.  The 
initiative aims to make enforcement action against breaches of consumer law by public and private bodies as well as 
redress for consumers more effective. 

In order to restore citizens’ confidence and trust in the Single Market following claims by some Member States in 
Central  and  eastern  Europe  on  differences  in  the  quality  of  food  products  sold  across  the  EU,  the  Commission 
published  on  26 September  2017  a  set  of  Guidelines  on  the  application  of  EU  food  and  consumer  laws  to  dual 
quality  food  products293  which  explains  the  practical  steps  to  enable  practical  measures  to  be  taken  by  the 
competent  food  and  consumer  authorities.  The  Joint  Research  Centre  has  started  preparing  a  harmonised  testing 
methodology which is a step towards comparable and authoritative tests across the EU. In addition, the Commission 
has made available EUR 1 million to develop Member States’ enforcement capacities. 

On 13 December 2017, the Commission adopted its first Report on the functioning of the Online Dispute Resolution 
platform294.  The  platform  was  launched  in  February  2016,  and  has  since  then  helped  consumers  and  traders  to 
resolve their disputes online without going to court — by connecting them with alternative (i.e. out-of-court) dispute 
resolution bodies. 

The  Rapid  Alert System  for dangerous  non-food products  ensures  the exchange  of  information  between national 
authorities and the Commission on measures against dangerous products detected on the EU market and measures 
taken on risks that have been identified. Since 2004, over 25 000 alerts for dangerous consumer products have been 
circulated in Europe, of which 2 201 were in 2017 alone. Particular  care is taken with child-related products and a 
quarter of all alerts sent by national authorities concerned safety issues with toys. 

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

Four infringement cases were closed following legislative changes in the Member States concerned on the incorrect 
transposition  of  the  Unfair  Commercial  Practices  Directive  (2005/29/EC),  whereas  nine  cases  were  still  pending  at 
the end of 2017. On the incorrect transposition of the recently adopted Consumer Rights Directive (2011/83/EU), the 
first two letters of formal notice were sent in 2017. Two infringement procedures were closed following legislative 
changes in Italy and Lithuania on the Package Travel Directive (90/314/EEC). The Commission continued its work to 
ensure the full and correct application of the Unfair Contract Terms Directive (93/13/EEC) and one infringement case 
on full implementation of the relevant CJEU case law is still pending. 

Case law 

In Banco Primus295 the CJEU further developed its case law on the ex officio examination of the unfairness of contract 
within the meaning of Directive 93/13/EEC on unfair terms in consumer contracts and clarified that the res judicata 

292 The exercise covered the  Unfair Commercial Practices Directive (2005/29/EC), the Unfair Contract Terms Directive (93/13/EEC), the Price 
Indication  Directive  (98/6/EC),  the  Consumer  Sales  and  Guarantees  Directive  (1999/44/EC),  the  Injunctions  Directive  (2009/22/EC),  and  the 
Misleading  and  Comparative  Advertising  Directive  (2006/114/EC).  In  parallel,  the  Consumer  Rights  Directive  (2011/83/EU)  was  subject  to  a 
separate evaluation. 
293 Commission Notice on the application of EU food and consumer protection law to issues of Dual Quality of products — The specific case of 
food, C/2017/6532, OJ C 327, 29.9.2017, p. 1-7. 
294 Report from the Commission to the European Parliament and the Council on the functioning of the European Online Dispute Resolution 
platform established under Regulation (EU) No 524/2013 on online dispute resolution for consumer disputes, COM/2017/0744 final. 
295  Judgment of 26 January 2017 in case C-421/14, Banco Primus SA v Jesús Gutiérrez García. 

77 

 
 
 
                                                            
principle may not preclude an appeal court from assessing, ex officio, the unfairness of contract terms different from 
those which may have already been assessed by the first instance court. 

In  Air  Berlin  plc  &  Co296  the  Court  clarified  that  Directive  93/13/EEC  is  also  applicable  to  travel.  The  German 
consumer  organisation  argued  that  the  flat-rate  handling  fee  that  was  charged  by  the  airline  in  cases  where  the 
passenger  did not  take the flight  or  cancelled their  booking  could be  considered  unfair.  The Court stated that  the 
principle  of  pricing  freedom  as  envisaged  in  Article 22(1)  of  Regulation  No  1008/2008  does  not  preclude  the 
application of any consumer protection rule; therefore the terms of contracts of carriage by air are also subject to an 
assessment of their fairness. 

In  Zentrale  zur  Bekämpfung  unlauteren  Wettbewerbs  Frankfurt  am  Main297  the  Court  clarified  that  the  concept  of 
‘basic rate’ referred to in Article 21 of Directive 2011/83/EU on consumer rights means that charges for the use of a 
telephone helpline operated by the trader in order to contact them about a contract may not exceed the cost of a 
call to a standard geographic landline or mobile telephone line, regardless of whether the trader concerned makes 
or does not make a profit through that telephone helpline. 

In  Andriciuc  and  Others298  the  Court  clarified  that  a  contractual  term  in  a  loan  agreement  expressed  in  a  foreign 
currency which specifies that the loan must be repaid in the  same foreign currency relates to the definition of the 
‘main subject matter of the contract’, meaning that national courts do not have to assess its unfairness if such term 
is drafted in plain language.  

At the same time the Court, building on its previous case law, clarified that this transparency requirement implies 
that,  in  the  case  of  loan  agreements,  financial  institutions  must  provide  borrowers  with  sufficient  information  to 
enable  them  to  take  prudent  and  well-informed  decisions.  This  means  that  this  term  must  be  understood  by  the 
consumer also in terms of its real effects, so that the average consumer would be aware both of the possibility of a 
rise or fall in the value of the foreign currency in which the loan was taken out, and would also be able to assess the 
potentially significant economic consequences of such a term on their financial obligations. 

296  Judgment  of  6 July  2017  in  case  C-290/16,  Air  Berlin  plc  &  Co.  Luftverkehrs  KG  v  Bundesverband  der  Verbraucherzentralen  und 
Verbraucherverbände — Verbraucherzentrale Bundesverband e.V. 
297 Judgment of 2 March 2017 in case C-568/15, Zentrale zur Bekämpfung unlauteren Wettbewerbs Frankfurt am Main eV v comtech GmbH. 
298 Judgment of 20 September 2017 in case C-186/16, Ruxandra Paula Andriciuc and Others v Banca Românească SA. 

78 

 
 
 
                                                            
Letters 

Justice 
17% 

Citizens' rights 
21% 

Other 
11% 

Equality 
29% 

Freedoms 
18% 

Workers right to 
information and 
consultation 
0% 

Protection in the event 
of unjustified dismissal 
0% 
Fair and just working 
conditions 
0% 

Prohibition of child 
labour 
0% 
Socal security and 
social assistance  
1% 

Health care 
0% 

Consumer protection 
3% 

Solidarity 
4% 

Dignity 
1% 

79 

 
 
 
 
Questions 

Equality 
31% 

Citizens' rights 
15% 

Justice 
7% 

Other 
7% 

Solidarity 
6% 

Dignity 
7% 

Freedoms 
27% 

Right of collective 
bargaining  1% 

Fair and Just working 
conditions 0% 

Heath care 0% 
Environment 
protection  1% 

Consumer protection  
4% 

80 

 
 
 
 
Petitions 

Citizens' rights 
30% 

Justice 
8% 

Other 
10% 

Solidarity 
10% 

Equality 
21% 

Freedoms 
18% 

Dignity 
3% 

Right of collective 
bargaining and action 
1,7% 

Protection in the event 
of unjustified dismissal 
1,7% 

Fair and just working 
conditions 
1,7% 

Family and 
professional life 
1,7% 

Social security and 
social assistance 
1,7% 

Consumer protection 
1,7% 

81 

 
 
 
 
 
Title V 

Citizens’ rights 

In  2017  the  Commission  adopted  its  3rd  report  on  EU  citizenship  entitled  ‘EU  Citizenship  Report  2017: 
Strengthening Citizens’ Rights in a Union of Democratic Change’.  The Report covers both EU citizenship rights and 
individuals’ rights to be protected from discrimination. It sets out Commission’s four priorities for EU citizenship for 
the next three years:  

1) promoting EU citizenship rights and EU common values; 

2) promoting and enhancing citizens’ participation in the democratic life of the EU;  

3) simplifying daily life for EU citizens and strengthening security; and  

4) promoting equality. 

The withdrawal of the United Kingdom from the EU continued to be a main concern of citizens. Safeguarding the 
status and rights derived from EU law at the date of withdrawal of EU citizens and UK nationals, and their families, is 
an essential objective of the ongoing negotiations with the United Kingdom. The December 2017 Joint report from 
the negotiators confirmed that both the EU and United Kingdom wish to guarantee in the Withdrawal Agreement 
that those who have exercised their right to move and reside freely in line with EU law in the host Member State on 
Brexit will be allowed to stay. The Commission published the draft Withdrawal Agreement on 28 February 2018. 

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

Article 39  of  the  Charter  and  Article 20  (2)  b  TFEU  guarantee  the  right  of  every  EU  citizen  to  vote  in  European 
Parliament elections in the Member State where they reside. 

Application by Member States 

In  2017  the  Commission  continued  its  dialogue  with  a  number  of  Member  States  on  their  implementation  of 
European electoral law (Articles 39 and 40 of the Charter). 

Two Member States amended their legislation to address issues raised by the Commission. 

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

Under  Article 40  of  the  Charter,  all  EU  citizens  have  the  right  to  vote  and  to  stand  as  a  candidate  in  municipal 
elections in the Member State where they reside under the same conditions as nationals of that Member State. 

Article 41 — Right to good administration 

Under Article 41 of the Charter, every person has the right to have their affairs handled impartially, fairly and within 
a reasonable timeframe by the Institutions, bodies and agencies of the EU. This also includes the right to be heard 
and to receive a reply. 

82 

 
 
 
 
 
 
Policy 

‘Revolving doors’ phenomenon 

The phenomenon of staff leaving the EU institutions to take up positions in the private sector, or staff joining the 
institutions from the private sector, often referred to as the ‘revolving doors’ phenomenon, may raise concerns due 
to  the  risk  of  conflicts  of  interest,  thus  undermining  citizens’  trust  in  the  independence  and  objectivity  of  EU 
institutions. Therefore, being transparent on ‘revolving doors’ contributes to better guaranteeing the right to good 
administration, as enshrined in Article 41 of the Charter.  

This  issue  was  at  the  centre  of  an  inquiry  opened  in  2014  where  the  EU  Ombudsman  made  specific 
recommendations to the Commission aimed at strengthening its review processes for ‘revolving door’ cases. On the 
basis of the replies provided by the Commission and the publication by the Commission in December 2015 of names 
of  senior  officials  who  had  left  the  Commission  for  new  jobs,  including  positions  in  the  private  sector,  the  EU 
Ombudsman in September 2016 closed the inquiry, welcoming the cooperative approach taken by the Commission 
and making some suggestions for improvements. 

In  March  2017  the  EU  Ombudsman  opened  a  follow-up  inquiry.  The  new  inquiry  focuses  on  the  systemic  issues 
identified  in  the  EU  Ombudsman’s  previous  inquiry.  As  a  first  step,  the  EU  Ombudsman  asked  the  Commission  to 
provide a list of cases dealt with by the Commission during 2015 and 2016, including cases of EU officials, temporary 
agents  and  contract  agents  with  access  to  sensitive  information  who  had  left  the  Commission  to  take  up  an 
occupational activity, including leave on personal grounds. The Commission assisted the EU Ombudsman’s office in 
identifying  the  requested  files  during  a  series  of  inspection  meetings  held  in  November  2017.  The  inquiry  is  still 
ongoing. 

Appointment of Special Advisers 

In  May  2016,  the  EU  Ombudsman  opened  an  own-initiative  inquiry  on  the  Commission’s  rules  and  practices  to 
prevent possible conflicts of interest in the Commission’s appointment of Special Advisers. The inquiry covered the 
scope of the examination conducted by the Commission before the appointment of Special Advisers, the assessment 
of conflict of interest issues during their mandate as well as public access to documents and information about the 
appointment  procedure.  In  December  2016,  the  EU  Ombudsman  informed  the  Commission  that  while  significant 
progress  had  been  made  by  the  Commission  on  certain  aspects  of  the  procedure,  further  improvements  were 
needed. 

The EU Ombudsman published its decision in June 2017, addressing a series of recommendations on the conflict of 
interest  assessment;  the  application  of  mitigating  measures;  the  duty  of  Special  Advisers  to  notify  changes  of 
activities  and  making  information  available  to  citizens  on  the  Internet.  In  its  reply  from  November  2017,  the 
Commission  stated  that  it  would  endeavour  to  make  further  progress  in  line  with  the  EU  Ombudsman’s 
recommendations. 

Code of conduct of Commissioners/Role of the Ad hoc Ethical Committee 

In  2016,  the  EU  Ombudsman  received  complaints  on  the  Commission’s  handling  of  issues  to  do  with  the  post‐
mandate  activities  of  former  Commissioners,  including  former  Commission  President  Barroso’s  appointment  with 

83 

 
 
 
 
 
 
 
Goldman Sachs. The complaints raised issues also on the code of conduct for Commissioners and the role of the Ad 
Hoc Ethical Committee.  

On that basis, the EU Ombudsman opened a joint inquiry to examine how the Commission had handled these cases 
and  how  the  Ad  Hoc  Ethical  Committee  conducts  its  work.  Before  the  EU  Ombudsman  drew  its  conclusions,  the 
Commission, in November 2016, announced that it would propose to tighten the Code of conduct by extending the 
‘cooling-off’ period from 18 months to two years for former Commissioners and to three years for the President of 
the Commission. This initiative was welcomed by the EU Ombudsman, although it noted that the Code of conduct 
should also be made more explicit and announced that it would also consider improvements to the role of the Ad 
Hoc Ethical Committee. In July 2017 the EU Ombudsman asked the Commission to reply to a series of questions on 
the functioning of the Ad Hoc Ethical Committee. 

Following  up  on  the  announcement  from  November  2016,  the  Commission  on  12 September  2017  approved  in 
principle a new Code of conduct for Commissioners which significantly reinforces the existing Code. The new Code 
incorporates  requests  from  the  European  Parliament,  the  EU  Ombudsman  and  NGO’s,  reinforcing  many  of  the 
provisions contained in the current Code and covering new issues. 

In  November  2017  the  Commission  replied  to  the  EU  Ombudsman’s  request  from  July  2017,  explaining  how  the 
issues at stake were dealt with under the existing Code and highlighting relevant parts that had been tightened in 
the new Code.  

On  former  Commission  President  Barroso’s  appointment  with  Goldman  Sachs,  the  reply  recalled  that  Commission 
President Juncker had decided to request the Ad Hoc Ethical Committee’s opinion although the ‘cooling-off’ period 
had  already  expired.  On  the  Commission’s  handling  of  former  Commissioners’  post-mandate  activities  and  the 
functioning of  the Ad  Hoc  Ethical Committee,  the Commission explained  how  it had  sought  to  ensure  that  former 
Commissioners’ activities abide by the rules enshrined in Article 245 TFEU and underlined the parts that had been 
tightened up in the new Code of Conduct. 

Case law 

In case E-Control v ACER299, the applicant had sought the annulment of a decision of the Agency for the Cooperation 
of  Energy  Regulators  Board  of  Appeal  by  arguing  that  the  Board  had  infringed  the  obligation  to  state  adequate 
reasons  arising  under  Article 41(2)  of  the  Charter.  The  Court  addressed  the  right  to  a  good  administration  and 
concluded that the reasons stated in the contested decision were sufficient. 

On 9 March 2017 the Court delivered a judgment in Doux SA  300 on the question whether the requests for counter-
analyses which are provided for by Regulation No 543/2008, on marketing standards for poultry meat, in respect of 
the  results  of  slaughterhouse  checks  can  be  extended  to  checks  carried  out  at  the  stage  of  marketing  of  export 
products, under Article 41 of the Charter. The Court confirmed its previous case law301 as it found that this provision, 

299 Judgment of 29 June in case T-63/16, Energie-Control Austria für die Regulierung der Elektrizitäts- und Erdgaswirtschaft (E-Control) v Agency 
for the Cooperation of Energy Regulators. 
300 Judgment of 9 March 2017 in case C-141/15, Doux SA, in administration v Établissement national des produits de l’agriculture et de la mer 
(FranceAgriMer). 
301 Judgment of 17 December 2015 in case C‑419/14, WebMindLicenses kft v Nemzeti Adó- és Vámhivatal Kiemelt Adó- és Vám,  paragraph 83. 

84 

 
 
 
 
 
 
 
 
 
 
                                                            
which is addressed not to the Member States but solely to the institutions, bodies, offices and agencies of the EU, 
was not relevant to the case in the main proceedings. 

Article 42 — Right of access to documents 

Article 42  of  the  Charter  guarantees  that  all  EU  citizens,  and  any  natural  or  legal  person  residing  or  having  its 
registered  office  in  a  Member  State,  has  a  right  of  access  to  documents  of  the  institutions,  bodies,  offices  and 
agencies.  This  right  is  subject  to  certain  exceptions302.  In  particular,  the  institutions  may  refuse  access  where 
disclosure  would  undermine  the  protection  of  the  public  interest,  or  the  right  to  privacy  and  integrity  of  the 
individual. 

Policy 

In 2017, the Commission registered more than 6 255 initial requests for access to documents. Full or partial access 
was granted in more than 82 % of cases. The Commission received around 300 applications asking for a review of the 
initial decision. This independent review led to wider access being granted in almost 50 % of cases. 

In 2017, the Commission also honoured its commitment to ensure transparency in the Brexit negotiations. As from 
May 2017, the Commission’s Taskforce on Article 50 negotiations with the United Kingdom has been publishing, on a 
regular basis, all agendas for and reports of negotiating rounds, EU position papers, joint reports, and technical notes 
on the EU and the UK positions. 

The  Commission  also  continued  to  publish  information  about  lobbyists  who  meet  its  political  leaders  and  senior 
officials,  also  applying  the  rule  ‘‘not  on  the  Transparency  Register,  no  meeting.’’  By  the  end  of  December  2017, 
information  had  been  published  about  more  than  15 000  bilateral  meetings  between  Commissioners,  Cabinet 
members and Directors-General, and lobbyists. This allowed citizens and stakeholders to know who is meeting the 
Commission and on which subjects. 

Legislation 

The proposal of 6 December 2017 for a Council Regulation on the establishment of the European Monetary Fund303 
provides a reference to the right of access to documents (Article 42) in line with the rules enshrined in Regulation 
(EC)  No  1049/2011.  The  European  Monetary  Fund  should  within  a  short  period  after  the  entry  into  force  of  the 
Regulation adopt internal measures to this end. 

Under the Regulation of the European Parliament and of the Council amending Regulations (EU) No 1316/2013 and 
(EU)  2015/1017  on  the  extension  of  the  duration  of  the  European  Fund  for  Strategic  Investments  as  well  as 
introducing  technical  enhancements  for  that  Fund  and  the  European  Investment  Advisory  Hub304  (‘EFSI  2.0’),  the 
detailed  minutes  of  the  Steering  Board  will  be  made  publicly  available.  The  scoreboard,  a  tool  for  the  Investment 
Committee in making its investment decisions, will from now on be made publicly available as soon as a project has 
been signed, excluding commercially sensitive information. Its publication will provide additional transparency in the 
selection  of  the  EFSI  projects  against  measurable  criteria.  Moreover,  there  will  be  more  transparency  on  the 

302 Under Regulation (EC) No 1049/2001 regarding public access to European Parliament, Council and Commission documents, 
OJ L 145, 31.5.2001, p. 43. 
303 COM(2017) 827final. 
304 COM(2016) 0597 — C8-0375/2016 - 2016/0276(COD). 

85 

 
 
 
 
 
 
 
 
                                                            
financing  decisions  of  the  Investment  Committee,  who  will  be  required  to  explain  them  and  state  the  reasons  for 
granting support under the EU guarantee for each operation. 

Case law 

In  Saint-Gobain  Glass  Deutschland  GmbH  v  Commission305,  the  CJEU  clarified  the  strict  interpretation  of  the  term 
‘decision-making  process’  in  Article 4(3)  of  Regulation  No  1049/2001  in  the  context  of  environmental  information 
falling under the Aarhus Convention. The case concerned the right of access to documents held by EU institutions on 
the emissions trading system. The complainant had requested the disclosure of the files, while the Commission had 
refused  access  on  the  basis  of  the  first  subparagraph  of  Article 4(3)  of  Regulation  No  1049/2001  arguing  that 
disclosure of the requested information would seriously undermine its decision-making process. The Court held that 
a  strict interpretation  of  the first subparagraph  of  Article 4(3) of  Regulation  No  1049/2001  was  compelling,  as  the 
respective  documents  contained  environmental  information.  The  Court  based  its  decision  on  Regulation  No 
1367/2006 applying the provisions of the Aarhus Convention to the institutions and bodies of the EU. 

Article 43 — EU Ombudsman 

Article 43 of the Charter provides that all  EU citizens and any natural or legal person residing or having its registered 
office in a Member State has the right to refer to the EU Ombudsman cases of maladministration in the activities of 
the institutions, bodies, offices or agencies, with the exception of the Court acting in its judicial role. 

Every  year,  the  EU  Ombudsman  presents  an  annual  report  on  its  activities  before  the  European  Parliament.  The 
Committee  on  Petitions  publishes  an  own-initiative  report  on  the  annual  report,  together  with  a  motion  for  a 
resolution subject to a debate and vote in a plenary session, which provides an overview of the petitions received 
during the year and of its relations with other institutions306. 

In 2017, the EU Ombudsman received 15 872 citizens’ complaints. This includes individuals who complained directly 
to the EU Ombudsman (2 216 complaints), those who received a reply to their request for information (1 135), and 
those who obtained advice through the interactive guide on the EU Ombudsman’s website (12 521). 

About 624 complaints fell within the competence of a member of the European Network of Ombudsmen, of which 
566  fell  within  the  competence  of  a  national/regional  ombudsman  or  similar  body  and  58  were  referred  to  the 
European Parliament’s Committee on Petitions. 

Article 44 — Right to petition 

Article 44  of  the  Charter  provides  that  all  EU  citizens,  as  well  as  any  natural  or  legal  person  residing  or  having  its 
registered  office  in  a  Member  State,  have  the  right  to  petition  the  European  Parliament  on  matters  which  come 
within the EU’s activity and which affect the petitioner directly. 

Petitions  addressed  to  the  European  Parliament  are  considered  by  the  European  Parliament’s  Committee  on 
Petitions. Each year, the Committee draws up a report on its activities which provide an overview of the petitions 

305 Judgment of 13 July 2017 in case C-60/15 P, Saint-Gobain Glass Deutschland GmbH v Commission. 
306http://www.europarl.europa.eu/sides/getDoc.do?pubRef=-%2f%2fEP%2f%2fNONSGML%2bREPORT%2bA8-2017-
0328 %2b0 %2bDOC%2bPDF%2bV0 %2f%2fEN 

86 

 
 
 
 
 
 
                                                            
received  during  the  year  under  consideration  and  of  relations  with  other  institutions.  This  report  is  then  debated 
during a plenary sitting of the Parliament which adopts a resolution307. 

Petitions can be addressed to the Parliament either in writing or electronically, using the Parliament’s web portal308 
which  has  been  established  to  make  easier  the  public’s  interaction  with  the  work  of  the  Committee  on  Petitions. 
Petitioners  have  the  right  to  attend  the  Committee  meeting  when  their  petition  is  being  debated.  Such  meetings 
provide the Committee and representatives of the Commission, who are also invited to attend, the opportunity to 
hear directly from citizens who consider that their rights have not been respected. 

Under the European Parliament’s rules of procedure, the Committee on Petitions may request assistance from the 
Commission  in  the  form  of  information  on  the  application  of,  or  compliance  with,  Union  law  and  information  or 
documents relevant to the petition. 

In 2017 the Commission received a total of 411 petitions from the Committee on Petitions, 61 of which concerned 
fundamental rights. The Commission’s Directorate-General for Justice was responsible for addressing the petitioners 
concerns.  Recurring  fundamental  rights  issues  raised  by  citizens  in  2017  included  freedom  of  movement  and  of 
residence (Article 45); right to an effective remedy and fair trial, functioning of National judicial systems, EU Arrest 
Warrant (Article47); and non-discrimination (Article 21).  

European citizens’ initiatives 

Another instrument in the hands of EU citizens is the European Citizens’ Initiative. The European Citizens’ Initiative is 
a right enshrined in the TEU and allows citizens to participate directly in the development of EU policies by calling on 
the Commission, under its powers, to propose legislation on matters where the EU has competence to legislate for 
implementing the EU Treaties. A citizens’ initiative has to be backed by at least one million EU citizens, from at least 
seven out of the EU-28. A minimum number of signatories are required in each of those seven Member States. The 
organisers must collect all signatures within one year from the date of the registration of the citizens’ initiative. 

In 2017, the Commission registered eight initiatives (an increase from three in 2016)309: 

  STOP TTIP 

  Stop Extremism 

  Let us reduce the wage and economic differences that tear the EU apart! 

  Retaining European Citizenship 

  Minority SafePack — one million signatures for diversity in Europe 

  EU Citizenship for Europeans: United in Diversity in Spite of ius soli and ius sanguinis 

  Ban glyphosate and protect people and the environment from toxic pesticides 

  European Free Movement Instrument. 

307http://www.europarl.europa.eu/sides/getDoc.do?pubRef=-%2f%2fEP%2f%2fNONSGML%2bREPORT%2bA8-2017-
0387 %2b0 %2bDOC%2bPDF%2bV0 %2f%2fEN 
308 https://petiport.secure.europarl.europa.eu/petitions/en/home 
309 Details on the initiatives are available on the ECI website: http://ec.europa.eu/citizens-initiative/public/welcome. 

87 

 
 
 
 
 
 
 
                                                            
The  Commission  Decision  of  2014  refusing  the  registration  of  the  proposed  initiative  entitled  ‘Stop  TTIP’  was 
annulled by the judgment of the General Court in Effler310 . Following the judgment, a new Commission Decision on 
the registration of the proposed citizens’ initiative was adopted on 4 July 2017311 . 

On 13 September 2017, the Commission adopted a proposal for a new Regulation of the European Parliament and 
of  the  Council  on  the  European  Citizens’  Initiative312,  with  the  policy  objectives  of  making  this  instrument  more 
accessible  and  citizen-friendly  so  that  it  reaches  its  full  potential  as  an  instrument  for  citizen  participation  at 
European level and helps bring the EU closer to its citizens. 

Article 45 — Freedom of movement and of residence 

Article 45 of the Charter guarantees the right of all EU citizens to move and reside freely, while respecting certain 
conditions, within the territory of the Member States. This fundamental right is also included in the TFEU. Freedom 
of  movement  and  residence  may  be  granted,  in  line  with  the  Treaties,  to  nationals  of  non-EU  countries  legally 
resident in the territory of a Member State. 

Legislation 

The protection of fundamental rights, including the right to free movement, was taken into account in two proposals 
of  25 January  2017  and  2 May  2017  for  Council  Implementing  Decisions  setting  out  a  Recommendation  for 
prolonging  temporary  internal  border  control  in  exceptional  circumstances  putting  the  overall  functioning  of  the 
Schengen area at risk313 . 

Case law 

The CJEU clarified its Zambrano jurisprudence in Chavez Vilez, a case on the right of a non-EU country national, as a 
parent of a minor child who is an EU citizen, to rely on a derived right of residence in the EU314. 

 Application by Member States 

The Commission continued its dialogue with a number of Member States on their transposition and implementation 
of the EU body of legislation on the free movement of EU citizens and their  family members, including substantial 
and procedural safeguards (Articles 21, 41 and 45 of the Charter).  

The  Commission  was  assisted  in  its  enforcement  dialogue  on  obstacles  to  free  movement  as  regards  registration 
requirements  and  procedures  for  EU  citizens  and  their  family  members  by  the  European  Parliament’s  Petitions 
committee, which undertook a fact-finding visit, thereby encouraging one Member State to re-examine its legislation 
and  practices.    The  Commission  continues  its  dialogue  in  this  particular  case  to  ensure  the  rights  provided  by 
Article 45 in particular are respected. 

The Commission held a dialogue with the authorities of one Member State about a refusal to recognise voluntary 
name  change  that  took  place  in  another  Member  State.  The  recent  clarifications  by  the  Court315  raised  concerns 

310 Judgment of 10 May 2017 in case T-754/14 Michael Efler and Others v European Commission. 
311  Commission  decision  C(2017)4725  final  on  the  registration  of  the 
http://ec.europa.eu/citizens-initiative/public/initiatives/open/details/2017/000008 
312 COM(2017) 482 final. 
313 COM(2017) 40 final and COM(2017) 226 final. 
314 See Article 7. 

initiative  —  also  available 

in  the  ECI  register  website:  

88 

 
 
 
 
                                                            
about  the  compatibility  of  certain  national  legislative  provisions  with  the  EU  law.  In  2017  the  Member  State 
amended its legislation on personal names, thus addressing the Commission concerns. 

Article 46 — Diplomatic and consular protection 

Article 46  of  the  Charter  guarantees  the  right  of  EU  citizens  to  seek  diplomatic  or  consular  protection  from 
embassies  or  consulates  of  other  Member States  in  third  countries  under  the  same  conditions  as  nationals,  when 
their  own  Member  State  of  nationality  is  not  represented.  EU  citizens  must  be  able  to  rely  on  this  right  when 
travelling abroad. 

With regard to Article 46 on consular protection, the Commission has assisted throughout the year Member States in 
their preparations for turning the Consular Protection Directive 2015/637 (due by 1 May 2018), which extends and 
clarifies  the  scope  of  consular  protection  for  unrepresented  EU  citizens  in  non-EU  countries.  The  Commission  has 
equally been conducting awareness-raising activities during 2017 in relation to consular protection. Further activities 
are planned for 2018. 

Letters 

Solidarity 
4% 

Justice 
17% 

Other 
11% 

Equality 
29% 

Citizen's rights 
20% 

Dignity 
1% 

Freedoms 
18% 

Right to vote & stand 
as candidate (EP) 
0% 
Right to good 
administration 
0% 
Right of access to 
documents 
0% 

European Ombudsman 
1% 
Right to petition 
0% 
Freedom of movement 
and residence  
17% 
Diplomatic and 
consular protection 
0% 

EU citizenship in 
general 
2% 

315  Judgment  of  2 June  2016  in  case  C-438/14,  Nabiel  Peter  Bogendorff  von  Wolffersdorff  v  Standesamt  der  Stadt  Karlsruhe  and  Zentraler 
Juristischer Dienst der Stadt Karlsruhe and judgment of 8 June 2017 in Case C-541/15, Mircea Florian Freitag. 

89 

 
 
 
 
 
 
                                                                                                                                                                                                                      
Questions 

Solidarity 
6% 

Equality 
31% 

Freedoms 
27% 

Justice 
7% 

Other 
7% 

Citizen's rights 
15% 

Dignity 
7% 

Petitions 

Justice 
8% 

Other 
10% 

Solidarity 
10% 

Equality 
21% 

Citizen's rights 
30% 

Freedoms 
18% 

Dignity 
3% 

Electoral rights (EP and 
local elections) 
3% 

Right to access to 
documents 1% 
Right to petition  0% 

European Ombudsman 
0% 

Freedom of movement 
and residence 
10% 

EU citizenship in 
general 1% 

Electoral rights (EP and 
local elections) 
3% 

Right to good 
administration 
2% 

Freedom of movement 
and of residence 
23% 

EU citizenship in 
general 
2% 

90 

 
 
 
 
 
 
 
Title VI 

Justice 

Improving the quality, independence and efficiency of national justice systems are among the  key priorities of the 
European Semester — the EU annual cycle of economic policy coordination. 

Initiatives in supporting judicial training also contributed to the promotion of the  right to an effective remedy for 
the enjoyment of rights derived from EU law, including fundamental rights enshrined in the Charter. The 2017 call 
for proposals for action grants in European judicial training specifically mentioned fundamental rights as one of the 
priority topics on which the training projects should focus. 

The Commission adopted, for the first time, a reasoned proposal under Article 7(1) TEU on a Member State, inviting 
the Council to determine the existence of a clear risk of a serious breach of the rule of law in particular in relation to 
the principle of judicial independence in Poland316. 

Various legislative proposals adopted in the course of 2017 directly promote the right to an effective remedy. The 
Directive  on  combating  terrorism  contains  several  provisions  on  support,  assistance  and  protection  of  victims  of 
terrorism. The Commission has been assisting the Member States in ensuring full and effective transposition of the 
Directive  in  line  with  the  requirements  of  the  Charter.  The  Directive  on  tax  dispute  resolution  mechanisms  gives 
taxpayers access to their national competent court at the dispute resolution stage. The Commission also provided 
guidance on the respect of the right to access to justice when implementing EU rules on environmental matters. 

The  European  Public  Prosecutor’s  Office  was  established  by  the  Council  Regulation  2017/1939  implementing 
enhanced  cooperation  on  the  establishment  of  the  European  Public  Prosecutor’s  Office.  The  European  Public 
Prosecutor’s Office activities must be carried out in full compliance with the rights of suspects and accused persons 
enshrined in the Charter, including the rights of defence. 

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

Article 47 of the Charter provides that people have the right to an effective remedy before a court if a right granted 
under EU rules is violated. This ‘right to an effective remedy’ provides individuals with a legal solution decided by a 
court if an authority applies EU law incorrectly. It guarantees judicial protection against any such infringement and 
therefore  plays  a  key  role  in  ensuring  the  effectiveness  of  all  EU  provisions,  ranging  from  social  policy  to  asylum 
legislation, competition, agriculture, etc. 

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

Article 47  also  states  that,  in  all  judicial  proceedings  which  relate  to  the  interpretation  or  the  validity  of  EU  rules, 
everyone should have the right to a fair trial. This encompasses: 

316 http://europa.eu/rapid/press-release_IP-17-5367_en.htm 

91 

 
 
 
 
                                                            
 

 

 

 

the right to a fair and public hearing; 

the right to have one’s case adjudicated within a reasonable time; 

the principles of independence and impartiality of the tribunal; and 

the right to be advised, defended and represented. 

Legislation and policy 

An effective justice system is essential for guaranteeing the respect of the right to an effective remedy and to a fair 
trial, as well as all other rights enshrined in the Charter. Every year, the Commission publishes its annual EU justice 
scoreboard, to provide comparable data on the independence, quality, and efficiency of national justice systems and 
recommendations  paving  the  way  for  a  more  investment,  business  and  citizen-friendly  environment317.  Improving 
the  quality,  independence  and  efficiency  of  national  justice  systems  are  also  among  the  key  priorities  of  the 
European  Semester  —  the  EU  annual  cycle  of  economic  policy  coordination,  as  expressed  in  the  Communication 
from the Commission on the Annual Growth Survey for 2018318.  

The Commission closely follows justice reforms in Member States and the Council adopts each year country-specific 
recommendations  in  this  area  on  the  basis  of  Commission  proposals.  In  2017,  Croatia,  Italy,  Cyprus,  Slovakia  and 
Portugal received a Country Specific Recommendation to improve their justice system319. The Commission has also 
closely  monitored  the  efforts  in  this  area  in  other  Member  States  such  as  Belgium,  Spain,  Latvia,  Malta,  Poland, 
Romania and Slovenia.  

Various  legislative  proposals  were  adopted  in  the  course  of  2017  which  directly  promote  the  right  to  an  effective 
remedy.  In  October  2017,  the  Directive  on  tax  dispute  resolution  mechanisms320  was  adopted,  which  seeks  to 
promote the  right to an effective remedy by giving taxpayers access to their national competent court at the dispute 
resolution stage in cases where access is denied or if the Member State fails to establish an advisory commission, 
while also taking into account the requirements of the freedom to conduct a business321. 

The  new  Directive  on  combating  terrorism322  was  also  adopted  in  March  2017.  The  Directive  contains  several 
provisions  on  support,  assistance  and  protection  of  victims  of  terrorism  which  build  upon  the  Victims’  Rights 
Directive323 to respond more directly to the specific needs of victims of terrorism. These provisions increase access to 
justice for victims of terrorism in particular by  strengthening access to legal aid (Member States will have to take 
into account the gravity and circumstances of the offence when deciding on legal aid to victims of terrorism, if such 
approach is not contrary to their legal systems); and facilitating access to compensation (victims’ support services 
will be providing for assistance in claiming compensation). 

317 https://ec.europa.eu/info/strategy/justice-and-fundamental-rights/effective-justice/eu-justice-scoreboard_en 
318 https://ec.europa.eu/info/publications/2018-european-semester-annual-growth-survey_en 
319 Justice related CSR have been adopted for 5 Member States HR, IT, CY, SK and PT: 
     https://ec.europa.eu/info/publications/2017-european-semester-country-specific-recommendations-commission-recommendations_en 
320 Council Directive (EU) 2017/1852 of 10 October 2017 on tax dispute resolution mechanisms. 
321 See Article 16. 
322 Directive (EU) 2017/541 of the European Parliament and of the Council of 15 March 2017 on  combating terrorism and replacing Council 
Framework Decision 2002/475/JHA and amending Council Decision 2005/671/JHA. 
323  Directive 2012/29/EU  of  the  European Parliament and of  the Council of  25 October 2012 establishing  minimum  standards on the  rights, 
support and protection of victims of crime, and replacing Council Framework Decision 2001/220/JHA. 

92 

 
 
 
                                                            
The right to an effective remedy, and in particular the right to access to a court, is also at the core of the Commission 
Notice on access to justice in environmental matters324, which was adopted in April 2017. Building on the standards 
laid down in Article 47 of the Charter, the Notice provides extensive guidance on case law of the Court relevant to 
legal  challenges  brought  by  individuals  and  environmental  NGOs  against  decisions,  acts  or  omissions  of  public 
authorities on EU environmental law, including for legal aid. 

Initiatives in supporting judicial training also contributed to the promotion of the  right to an effective remedy for 
the enjoyment of rights derived from EU law, including fundamental rights enshrined in the Charter. The 2017 report 
on European judicial training, based on the results of a questionnaire sent in 2017 to Member States’ authorities, 
European networks of legal professionals and their members and the main training providers at European level on 
training of legal practitioners, showed that 5.8 % of the training activities followed by legal practitioners on EU law or 
on the law of another Member States in 2016 dealt mainly or exclusively with fundamental rights325.  

The 2017 call for proposals for action grants in European judicial training specifically mentioned fundamental rights 
as one of the priority topics on which the training projects should focus. More specifically, the call included among 
its priorities the setting up or expanding of a network of contact points of training providers (or similar cooperation 
mechanisms)  for  lawyers,  notaries,  court  staff/bailiffs,  prison  and  probation  staff  with  the  aim  of  exchanging 
information also on implementation of sanctions in respect of fundamental rights and countering radicalisation.  

Expected results of the call are an increased knowledge of fundamental rights instruments among legal practitioners, 
and  an  increased  awareness  on  the  added  value  and  scope  of  application  of  the  Charter  among  judges,  public 
prosecutors, lawyers and practitioners to strengthen fundamental rights protection across the EU. 

In the same vein, a preparatory action was adopted in 2017 by the European Parliament under the EU budget 2018, 
to  explore  possibilities  for  financial  support  for  awareness  rising  and  legal  assistance  to  individuals  and  civil 
society organisations litigating democracy, rule of law and fundamental rights violations based on the outcome of 
a requested feasibility study326. 

Application by Member States 

In 2017 the Commission initiated infringement proceedings against Poland alleging the violation of the principle of 
judicial independence as enshrined in Article 47 of the Charter read in conjunction with Article 19(1) TEU on account 
of  national  provisions  on  the  organisation  and  functioning  of  ordinary  courts  providing.  In  particular,  for  a  wide 
discretionary  power  assigned  to  the  Minister  of  Justice  to  prolong  the  mandate  of  judges  which  have  reached 
retirement age.  

Another concern raised by the Commission in this context related to alleged discrimination on the basis of gender327 
due to the introduction of a different retirement age for female judges (60 years) and male judges (65 years), which 
the  Commission  found  to  be  contrary  to  Article 157  TFEU  and  to  relevant  provisions  of  the  Directive  on  gender 

324 Commission Communication of 28 April 2017, Commission Notice on Access to Justice in Environmental Matters. 
325 https://ec.europa.eu/info/sites/info/files/report_europeanjudicialtraining_2016.pdf 
326 For more information, see http://ec.europa.eu/budget/biblio/documents/2018/2018_en.cfm 
327 See Article 23. 

93 

 
 
 
                                                            
equality  in  employment328.  Having  found  the  explanations  provided  by  the  national  authorities  insufficient  to 
address its concerns, the Commission decided in December 2017 to refer the case to the Court329. 

The Commission also adopted, for the first time, a reasoned proposal in accordance with Article 7(1) TEU on Poland, 
inviting  the  Council  to  determine  the  existence  of  a  clear  risk  of  a  serious  breach  of  the  rule  of  law.  330  In  this 
proposal the Commission set out the concerns on the basis of which it concluded that there is a systemic threat to 
the rule of law to be addressed as a matter of urgency, which relate specifically to the lack of an independent and 
the  several  warnings  and 
legitimate  constitutional 
recommendations331 taken under the rule of law framework332. 

independence, 

review  and 

recalling 

judicial 

to 

Case law 

The issue of the legal standing of a NGOs against a national administrative decision in environmental matters was 
once again brought before the CJEU in the case Protect Natur-,Arten- und Landschaftsschutz Umweltorganisation333.  

Building  on  previous  jurisprudence,  the  Court  found  that  restrictions  in  Austrian  law  on  an  environmental  NGO’s 
entitlement  to  bring  a  legal  challenge  against  an  administrative  decision  on  a  hydro-electric  project  were  not 
compatible with EU environmental law provisions, the Aarhus Convention334 and Article 47 of the Charter.  

The  Court  also  had  the  opportunity  to  reiterate  its  interpretation  of  the  requirements  provided  for  in  Article 263 
TFEU for bringing an action before the EU Courts, in a case concerning an  action for annulment brought against a 
Commission Decision authorising aid in support of a nuclear power station, according to which, while the mere fact 
that the applicant was in a competitive relationship with the addressee of the contested measure cannot suffice for 
that  undertaking  to  be  regarded  as  being  individually  concerned  by  that  measure  for  the  purpose  of  bringing  an 
action under Article 263 TFEU, it is for the Member State concerned to establish a system of legal remedies and 
procedures which ensure respect for the fundamental right to an effective remedy, in line with Article 19(1) TEU 
read in conjunction with Article 47 of the Charter335. 

The Court also delivered two judgments on the right to an effective remedy in asylum matters. The Court clarified in 
Shiri336  that  the  right  to  effective  remedy  in  ‘Dublin’  cases  extends  to  invoking  by  the  applicant  the  shift  of 
responsibility after the expiry of the deadline for transfer.   

According to the Court, relevant provisions of EU law337, read in light of Article 47 of the Charter, must be interpreted 
as meaning that an applicant for international protection must have an effective and rapid remedy available which 
enables him or her to rely on the expiry of the six-month period defined by EU law that occurred after the transfer 
decision was adopted.  

328  Directive  2006/54/EC  of  the  European  Parliament  and  of  the  Council  of  5 July  2006.  on  the  implementation  of  the  principle  of  equal 
opportunities and equal treatment of men and women in matters of employment and occupation (recast). 
329 http://europa.eu/rapid/press-release_IP-17-2205_en.htm 
330 http://europa.eu/rapid/press-release_IP-17-5367_en.htm 
331  The  Commission  adopted  four  subsequent  Recommendations  regarding  the  Rule  of  Law  in  Poland,  on  27 July  2016,  21 December  2016, 
27 July 2017 and 20 December 2017. 
332 Communication ‘A new EU Framework to Strengthen the Rule of Law’, COM(2014) 158 final. 
333 C-664/15, Protect Natur-,Arten- und Landschaftsschutz Umweltorganisation v Bezirkshauptmannschaft Gmünd, see further under Article 37. 
334 The United Nations Economic Commission for Europe (UNECE) Convention on Access to Information, Public Participation in Decision-
Making and Access to Justice in Environmental Matters of 25 June 1998. 
335 Order of 10 October 2017 in case C-640/16 P, Greenpeace Energy eG v Commission. 
336 Judgment of 25 October 2017 in case C-201/16, Majid auch Madzhdi Shiri v Bundesamt für Fremdenwesen und Asyl. 
337 In particular Articles 27(1), 29(1) and (2) of the Dublin III Regulation. 

94 

 
 
 
                                                            
The  Court  also  clarified,  in  its  ruling  in  Sacko338,  that  subject  to  certain  conditions,  a  national  court  can  decide 
appeals deemed to be manifestly unfounded without the need for a further hearing of the applicant, in particular 
where it considers that the case does not raise any questions of fact or law that cannot be adequately resolved by 
referring to the file and the written submissions of the parties.  

This is, according to the Court, fully in line with the requirements of Article 47 of the Charter, which does not impose 
an absolute obligation to hold a hearing in all proceedings, as well as with EU rules on asylum procedures339, from 
which  it  can  be  derived  that  the  obligation  to  grant  the  applicant  a  hearing  has  to  be  assessed  in  the  light  of  the 
obligation to carry out a full and ex nunc examination of the appeal. On the contrary, the hearing of the applicant 
may never be dispensed with in order to speed the procedure, where the court considers that it is necessary in order 
to carry out the full and ex nunc examination required. 

The right to access to a court and the scope of the judicial review were the object of the ruling issued by the CJEU in 
the Berlioz Investment  Fund  case340  on a preliminary  reference  on  whether  the  courts  of one  Member  State  may 
review  the  legality  of  requests for  tax  information  sent  by  another  Member  State,  having regard to  EU rules  on 
administrative cooperation in the field of taxation341 read in light with Article 47 of the Charter.  

The Court answered in the affirmative and established that a relevant person on whom a pecuniary penalty has been 
imposed  for  failure  to  comply  with  an  administrative  decision  directing  that  person  to  provide  information  in  the 
context  of  an  exchange  between  national  tax  administrations  pursuant  to  EU  rules  is  entitled  to  challenge  the 
legality  of  that  decision.  In  this  context,  the  national  court  must  not  only  have  jurisdiction  to  vary  the  penalty 
imposed but also to review the legality of that information order. The review must be limited to checking whether 
the information sought is not manifestly devoid of any foreseeable relevance to the tax investigation concerned. For 
that purpose, the court must have access to the request for information addressed to the requested Member State 
by the requesting Member State, and the relevant person must be in possession of the information sufficient to be 
given a full hearing of their case. 

The right to access to a court and to a judicial appeal in case of a visa refusal were the object of a ruling delivered 
by the CJEU in El Hassani342.  The Visa Code Regulation sets out the procedures and conditions for issuing visas for 
the purpose of short stays and airport transit. It establishes the obligation for Member States to provide for a right of 
appeal  against  a  visa  refusal/annulment/revocation.  In  addition,  the  EU  Treaty  obliges  Member  States  to  provide 
remedies  sufficient  to  ensure  an  effective  legal  protection  in  the  fields  covered  by  EU  law  and  the  Charter  grants 
individuals  the  right  to  an  effective  remedy  before  a  tribunal,  when  rights  and  freedoms  under  Union  law  are 
violated.  

In the El Hassani case, the Court concluded that Article 32(3) of the Visa Code, read in the light of Article 47 of the 
Charter, must be interpreted as meaning that it requires Member States to provide for an appeal procedure against 
decisions refusing visas, the procedural rules for which are a matter for the legal order of each Member State in line 

338 Judgment of 26 July 2017 in case C-348/16, Moussa Sacko v Commissione Territoriale per il riconoscimento della Protezione internazionale 
di Milano. 
339 Article 46 of Directive 2013/32/EU of the European Parliament and of the Council of 26 June 2013 on common procedures for granting and 
withdrawing international protection. 
340 Judgment of 16 May 2017 in case C-682/15, Berlioz Investment Fund SA v Directeur de l’administration des contributions directes. 
341  Council  Directive  2011/16/EU  of  15 February  2011  on  administrative  cooperation  in  the  field  of  taxation  and  repealing  Directive 
77/799/EEC. 
342 Judgment of 13 December 2017 in Case C-403/16 Soufiane El Hassani v Minister Spraw Zagranicznych. 

95 

 
 
 
                                                            
with the principles of equivalence and effectiveness. Those proceedings must, at a certain stage of the proceedings, 
guarantee a judicial appeal. 

In  King343,  the  Court  explored  the  requirements  of  Article 47  of  the  Charter  in  relation  to  remedies  available  to  a 
worker to enforce his or her right to take paid leave under EU law344. The Court held that the right to an effective 
remedy would not be guaranteed if, in a situation in which the employer grants only unpaid leave to the worker, the 
worker would not  be able to  rely,  before  the  courts,  on the right to  take paid leave,  but  would be forced  to  take 
leave without pay and then bring an action to claim payment for it.  

The Court further held that EU law precludes national provisions or practices that prevent a worker from carrying 
over  and,  where  appropriate,  accumulating,  until  termination  of  his  or  her  employment  relationship,  paid  annual 
leave rights not exercised in respect of several consecutive reference periods because the employer refused to pay 
that leave. 

The  Court  issued  another  judgment  whereby  it  annulled  a  Council  decision  on  restrictive  measures  under  the 
common foreign and security policy345. The case concerned an action brought against the decision of 2014 by which 
the  Council  decided  to  maintain  Ms  Aisha  Muammer  Mohamed  El-Qaddafi,  a  Libyan  national  daughter  of  former 
Libyan leader Muammar Qadhafi, in the list of individuals targeted by restrictive measures taken against Libya and 
against individuals and entities involved in serious human rights abuses in Libya, first adopted in 2011.  

The Court found that the contested measures were to be considered invalid, as the acts mentioned no information, 
and  even  less  individual,  specific  and  concrete  reasons,  that  would  explain  why  the  Council  decided  to  retain  the 
applicant’s name on the lists at issue in June 2014, apart from the reasons that were put forward to justify the entry 
of her name on the relevant lists in February 2011.  

The  lack  of  reasons  were,  according  to  the  Court,  even  more  obvious  given  that  it  is  common  ground  that  the 
context in which the contested measures were adopted differed considerably from that when the original restrictive 
measures were first adopted in 2011. 

Article 48 — Presumption of innocence and right of defence 

Article 48  of  the  Charter  provides  that  everyone  who  has  been  charged  is  to  be  presumed  innocent  until  proven 
guilty according to the law. It further states that respect for such persons’ right to defence is to be guaranteed. 

Legislation 

2017 was marked by crucial progress in the establishment of the European Public Prosecutor’s Office, thanks to the 
entry into force of Council Regulation 2017/1939 implementing enhanced cooperation on the establishment of the 
European  Public  Prosecutor’s  Office.  Following  a  build-up  phase  of  three  years,  the  European  Public  Prosecutor’s 
Office is envisaged to take up its investigative and prosecutorial functions by the end of 2020.  

Pursuant to Article 41 of the Regulation, the European Public Prosecutor’s Office activities must be carried out in full 
compliance with the rights of suspects and accused persons enshrined in the Charter, including the rights of defence.  

343 C-214/16,  King, see Article 31. 
344  Article 7  of  Directive  2003/88/EC  of  the  European  Parliament  and  of  the  Council  of  4 November  2003  concerning  certain  aspects  of  the 
organisation of working time. 
345 Judgment of 28 March 2017 in Case T 681/14, Aisha Muammer Mohamed El-Qaddafi v Council of the European Union. 

96 

 
 
 
                                                            
The Commission has put in place a regular and constructive dialogue with the relevant European bar associations to 
ensure that defence practitioners are fully aware of the Regulation’s requirements. 

Application by Member States 

The  EU  has  set  an  ambitious  legislative  programme  on  procedural  rights  for  suspects  and  accused  persons  in 
criminal  proceedings  which directly  contribute  to the right to a  fair trial, including notably the rights enshrined  in 
Article 48 of the Charter. Since 2009 considerable progress has been made with the adoption of six Directives on:  

1) the right to interpretation and translation (2010)346;  

2) the right to information (2012)347; 

3) the right of access to a lawyer (2013)348; 

4) the presumption of innocence and the right to be present at the trial349; 

5) the procedural safeguards for children350 and 

6) legal aid351.  

Recommendations were also issued by the Commission on safeguards for vulnerable people352 and the right to legal 
aid for suspects or accused people in criminal proceedings353. 

In  2017  the  Commission  launched  infringement  proceedings  against  nine Member  States  for  not  communicating 
their  national  measures  turning  the  Directive  on  the  right  of  access  to  a  lawyer,  and  started  in  parallel  its 
assessment  of  the  completeness  and  correctness  of  the  other  Member  States’  transposition  of  the  Directive.  In 
addition, the Commission organised several expert meetings in order to assist Member States with the turning the 
Directives  on  the  presumption  of  innocence,  on  procedural  safeguards  for  children  and  on  legal  aid  which  will 
enter into force in 2018 and 2019 respectively into national law. 

Case law 

The judgment in Tranca and others354 concerned the interpretation of the requirements of the Directive on the right 
to  information  in  criminal  proceedings  and  clarification  of  the  consequences  of  the  Covaci  judgment355  in  cases 
where  the  non-resident  accused  person  has  no  fixed  place  of  residence.  The  CJEU    ruled  that  the  relevant 

346 Directive 2010/64/EU on the right to interpretation and translation in criminal proceedings, to be transposed by 27 October 2013. 
347 Directive 2012/13/EU on the right to information in criminal proceedings, to be transposed by 2 June 2014. 
348 Directive 2013/48/EU on the right of access to a lawyer in criminal proceedings and in European arrest warrant proceedings, and on the 
right to have a third party informed upon deprivation of liberty and to communicate with third persons and with consular authorities while 
deprived of liberty, to be transposed by 27 November 2016. 
349 Directive (EU) 2016/343 on the strengthening of certain aspects of the presumption of innocence and the right to be present at the trial in 
criminal proceedings (to be transposed by 1 April 2018). 
350 Directive (EU) 2016/800 on procedural safeguards for children who are suspects and accused in criminal proceedings (to be transposed by 
11 June 2019). 
351  Directive  (EU)  2016/1919  on  legal  aid  for  suspects  and  accused  persons  in  criminal  proceedings  and  for  requested  persons  in  European 
arrest warrant proceedings (to be transposed by 25 May 2019). 
352 OJ C 378, 24.12.2013, p. 8. 
353 OJ C 378, 24.12.2013, p. 11. 
354  Judgment  of  22 March  2017  in  joined  cases  C-124/16,  Criminal  proceedings  against  Ianos  Tranca  and  Others,  C-188/16,  Reiter  and 
C-213/16, Opria. 
355Judgment of 15 October 2015 in case C-216/14, Criminal proceedings against Gavril Covaci. 

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provisions  of  the  Directive356  allow,  under  certain  conditions,  that  the  Member  State’s  rules  require  in  some 
circumstances the non-resident accused person to appoint an agent in criminal proceedings. 

In the case Sleutjes357, the Court ruled that Article 3 of the Directive on the right to interpretation and translation in 
criminal  proceedings  must  be  interpreted  as  meaning  that  an  order  provided  for  in  national  law  for  imposing 
sanctions  in  relation  to  minor  offences  and  delivered  by  a  judge  following  a  simplified  unilateral  procedure, 
constitutes  a  ‘document  which  is  essential’,  within  the  meaning  of  that  provision.  Therefore  a  written  translation 
must  be  provided  to  suspected  or  accused  people  who  do  not  understand  the  language  of  the  proceedings  in 
question, for the purposes of enabling them to exercise their rights of defence and thus safeguarding the fairness of 
the proceedings. 

In the case Zdziaszek358, concerning the interpretation of relevant provisions of the European Arrest Warrant359, the 
Court  ruled  that,  while  where  the  person  concerned  had  not  appeared  in  person  the  executing  judicial authority 
may  refuse  to  execute  the  European  Arrest  Warrant,  EU  rules,  as  amended,  do  not  prevent  that  authority  from 
taking account of all the circumstances characterising the case brought before it in order to ensure that the rights 
of the defence of the person concerned are respected during the relevant proceeding or proceedings.  

The  Court  also  clarified  that  the  concept  of  ‘trial  resulting  in  the  decision’  object  of  the  procedure  must  be 
interpreted as referring not only to the proceedings which gave rise to the decision on appeal, where that decision, 
after a fresh examination of the case on the merits, finally determined the guilt of the person concerned, but also to 
subsequent proceedings, at the end of which the decision that finally amended the level of the initial sentence was 
handed down, inasmuch as the authority that adopted the latter decision enjoyed a certain discretion in that regard. 

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

Article 49  of  the  Charter  provides  that  no  one  is  found  guilty  of  any  criminal  offence  on  account  of  any  act  or 
omission which did not constitute a criminal offence under national law or international law at the time when it was 
committed. Nor must a heavier penalty be imposed than the one that was applicable at the time the criminal offence 
was committed. 

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

Legislation 

The  Directive  on  combating  terrorism360  was  adopted  in  March  2017.  The  Commission  has  been  assisting  the 
Member  States  in  ensuring  full  and  effective  transposition  of  the  Directive  in line  with  the  requirements  of  the 
Charter,  and  notably  the  principle  of  legality  and  proportionality  of  criminal  offences  and  penalties  enshrined  in 

356 Article 2, Article 3(1)(c), and Article 6(1) and (3) thereof. 
357 Judgment of 12 October 2017 in case C-278/16, Criminal proceedings against Franck Sleutjes. 
358 Judgment of 10 August 2017 in case C-271/17 PPU, Openbaar Ministerie v Slawomir Andrzej Zdziaszek. 
359 Article 4a(1) of Council Framework Decision 2002/584/JHA of 13 June 2002 on the European arrest warrant and the surrender procedures 
between Member States, as amended by Council Framework Decision 2009/299/JHA of 26 February 2009. 
360 Directive (EU) 2017/541 of the European Parliament and of the Council of 15 March 2017 on  combating terrorism and replacing Council 
Framework Decision 2002/475/JHA and amending Council Decision 2005/671/JHA. 

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Article 49 of the Charter. To that end, the Commission has organised various transposition workshops shortly after 
the adoption of the Directive, bringing together Member States and representatives from civil society to discuss best 
practices  and  learn  from  each  other’s  experiences.  The  Commission  also  continues  to  engage  with  civil  society  to 
better understand their  concerns as to developments in the field of counter-terrorism that may negatively impact 
fundamental rights. All of this will enable the Commission to submit an evaluation report to the European Parliament 
and to the Council, assessing the added value of the Directive with regard to combating terrorism and examining the 
impact of the Directive on fundamental rights and freedoms, including non-discrimination, the rule of law, and the 
level of protection and assistance provided to victims of terrorism361.  

Case law 

The principle of legality of criminal offences and penalties was the object of the CJEU ruling in M.A.S. and M.B362. The 
case concerned the interpretation of the obligation to set aside provisions of national law laying down limitation 
periods liable to prevent the prosecution of infringements relating to VAT and thereby the application of effective 
and deterrent criminal penalties in a significant number of cases of serious fraud, liable to have an adverse effect on 
the financial interests of the EU, as derived from previous case law of the Court in Taricco363.  

The  Court  clarified  that  the  obligation  to  ensure  the  effective  collection  of  the  EU’s  resources,  following  from 
Article 325  TFEU,  should  not  be  applied  as  to  run  counter  to  the  principle  that  offences  and  penalties  must  be 
defined  by  law  and  that  of  non-retroactivity  of  criminal  law.  Consequently,  if  a  national  court,  in  proceedings 
concerning  persons  accused  of  committing  offences  relating  to  VAT,  considers  that  the  obligation  to  apply  the 
principles stated in the Taricco judgment conflicts with one of these principles, it is not required to comply with that 
obligation, even if compliance would allow a national situation incompatible with EU law to be remedied. 

The  Court  also  ruled  in  Vaditrans364  that  an  implementation  of  EU  rules  on  the  harmonisation  of  certain  social 
legislation relating to road transport365 leading to a penalty provided for in national law imposed on lorry drivers 
who take their compulsory weekly rest period in their vehicle and not elsewhere, even in the absence of express 
EU rules to that effect, may not be regarded as incompatible with the principle of legality.  

According to the Court, the legality of such a sanction rests in the prohibition on taking regular weekly rest periods in 
a vehicle contained in relevant EU provisions, which, while not imposing themselves any penalty, require Member 
States to provide for penalties for infringement of that obligation and to take all necessary steps to ensure that those 
penalties are applied, recognising them a certain discretion on the nature of the applicable penalties. 

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

The ne bis in idem principle is one of the cornerstones of criminal law and is based on the principle that no-one can 
be held liable to be tried or punished again in criminal proceedings for an offence for which he or she has already 

361 As required by Article 29 of the Directive. 
362 Judgment of 5 December 2017 in case C-42/17, Criminal proceedings against M.A.S. and M.B. 
363 Judgment of 8 September 2015 in case C-105/14, Criminal proceedings against Ivo Taricco and Others. 
364 Judgment of 20 December 2017 in case C-102/16, Vaditrans BVBA v Belgische Staat. 
365 Regulation (EC) No 561/2006 of 15 March 2006 on the harmonisation of certain social legislation relating to road transport and amending 
Council Regulations (EEC) No 3821/85 and (EC) No 2135/98 and repealing Council Regulation (EEC) No 3820/85. 

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been  finally  acquitted  or  convicted  (the  double  jeopardy  principle).  Article 50  provides  that  criminal  laws  should 
respect this. 

NATIONAL CASE LAW BOX 

Another example is a case decided by the Supreme Court of Croatia that was dealing with a Finnish citizen arrested 
in  Croatia  following  a  Turkish  international  arrest  warrant.  The  person  had  belonged  to  a  group  of  five  who  had 
thrown  a  homemade  Molotov  cocktail  at  the  Turkish  Embassy  in  Helsinki,  causing  fire  and  material  damage.  The 
Helsinki District Court convicted the defendant of criminal mischief in 2009. The question arose whether the Finnish 
final judgment can be considered equal to a domestic judgment in line with Croatian legislation.  

The Court confirmed that the Dubrovnik county court had correctly concluded that the term ‘domestic court’ from 
Article 35,  paragraph  1,  point  5  of  the  Act  on  International  Legal  Assistance  in  Criminal  Matters  (Zakon  o 
međunardonoj  pravnoj  pomoći  u  kaznenim  stvarima),  in  this  case  covers  not  only  the  courts  of  the  Republic  of 
Croatia, but also the Courts of other EU Member States. The provision has to be interpreted in light of Article 50 of 
the Charter according to which no one can be tried or punished twice in criminal proceedings for the same criminal 
offence. Croatia, Supreme Court, case II-8 Kr 3/17-4, 13 July 2017. 

Letters 

Solidarity 
4% 

Equality 
29% 

Citizens' rights 
21% 

Other 
11% 

Justice 
14% 

Dignity 
1% 

Freedoms 
18% 

Right to an effective 
remedy and fair trial: 
3% 
 - Functioning of 
National judicial 
systems 
5% 

 - Detention 
2,9% 

 - Access to justice 
1% 

 - EU Arrest Warrant 
1% 

 - Victims' rights 
3,1% 
Presumption of 
innocence 
0,7% 

Principles of legality 
and proportionality 
0,7% 

Right not to be tried or 
punished twice  0% 

100 

 
 
 
 
 
 
 
 
 
Questions 

Solidarity 
6% 

Citizens' rights 
15% 

Equality 
31% 

Other 
7% 

Justice 
5% 

Dignity 
7% 

Freedoms 
28% 

Right to an effective 
remedy and fair trial: 
0,9% 

 - Functioning of 
National judicial 
systems 
2,0% 

 - Access to justice 
0,4% 

 - EU Arrest Warrant 
1,1% 

 - Victims' rights 
0,2% 
Presumption of 
innocence 0% 
Principles of legality 
and proportionality of 
criminal offences and 
penalties 0% 

101 

 
 
 
 
Petitions 

Citizens' rights 
30% 

Solidarity 
10% 

Other 
10% 

Justice 
8% 

Dignity 
3% 

Equality 
21% 

Freedoms 
18% 

Right to an effective 
remedy and fair trial: 
5% 

 - Functioning of 
national judicial 
systems 
2% 

 - EU Arrest Warrant 
1% 

Title VII 

General provisions governing the interpretation and application of the 
Charter 

Article 51 — Field of application 

The  scope  of  the  Charter  is  defined  in  Article 51,  which  clearly  states  that  it  applies  to  all  EU  institutions,  bodies, 
offices  and  agencies,  and  to  the  Member  States  where  they  are  implementing  EU  law.  It  further  clarifies  that  the 
Charter cannot extend the field of application of EU law or any competences of the EU as defined in the EU Treaties. 

Article 52 — Scope and interpretation of rights and principles 

Article 52 of the Charter lays down general provisions on the scope and interpretation of rights and principles. In its 
first paragraph, it defines the strict conditions under which the rights of the Charter can be limited. It also explains 
how the Charter relates to the European Convention on Human Rights, the aim being to secure the highest possible 
level of protection for fundamental rights (paragraph 3). It also clarifies that the principles set out in the Charter may 
be implemented by the EU institutions in their legislative and executive acts — and similarly by the Member States 
where they implement EU law (paragraph 5). However, they can be invoked in court only in view of interpreting such 
acts. This means that the principles do not confer subjective rights on the individual. 

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Article 53 — Level of protection 

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

Article 54 — Prohibition of abuse of rights 

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

103