Source: EURLEX
Language: en
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# 52014SC0141

**COMMISSION STAFF WORKING DOCUMENT 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 2013 Report on the application of the EU Charter of Fundamental Rights /\* SWD/2014/0141 final \*/**

  

Introduction

After the entry
into force of the EU Charter of
Fundamental Rights[1]
(the Charter), in December 2009, the European Commission adopted a Strategy on the
effective implementation of the Charter[2] setting
as an objective that the EU is beyond reproach as regards the respect of
fundamental rights, in particular when it legislates. The European Commission
further committed to preparing Annual Reports to better inform citizens on the
application of the Charter and to measure progress in its implementation. The
reports are intended to serve as a factual basis for the continuing informed
dialogue between all EU institutions and Member States on the implementation of
the Charter.

This
Report covers the year 2013 and informs the public about situations in which
they can rely on the Charter and on the role of the European Union in the field
of fundamental rights. In covering the full range of Charter provisions on an
annual basis, the Annual Report aims to track where progress is being made, where
further efforts are still necessary and where new concerns are arising.

The Annual
Report is based on the actions taken by the EU institutions, on the analysis of
letters and petitions from the general public and questions from the European
Parliament. In addition, the report covers key developments as regards the
jurisprudence of the Court of Justice of the European Union (CJEU), and provides
information on the case law of national courts on the Charter, based on the
contributions received from Member States and further analysis carried out by
the EU Agency for Fundamental Rights (FRA).

Protection of Fundamental
Rights in the EU

In the European
Union, the protection of fundamental rights is guaranteed both at national
level by Member States' constitutional systems and at EU level by the Charter.

The Charter applies
to all actions taken by the EU institutions. The role of the European
Commission is to ensure that all its acts respect the Charter. In fact, all EU
institutions (including the European Parliament and the Council) must respect
the Charter, in particular throughout the legislative process.

The Charter applies
to Member States only when they implement EU law. Hence it does not
replace national fundamental rights systems but complements them. The factor
connecting an alleged violation of the Charter with EU law will depend on the
situation in question. For example, a connecting factor exists: when national
legislation transposes an EU Directive in a way contrary to fundamental rights,
when a public authority applies EU law in a manner contrary to fundamental
rights, or when a final decision of a national court applies or interprets EU
law in a way contrary to fundamental rights.

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

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

The European
Commission cannot pursue complaints which concern matters outside the scope of
EU Law.
This
does not necessarily mean that there has not been a violation of fundamental
rights. If a situation does not relate to EU law, it is for the Member States
alone to ensure that their obligations regarding fundamental rights are
respected. Member States have extensive national rules on fundamental rights,
which are guaranteed by national judges and constitutional courts. Accordingly,
complaints in this context need to be directed to the national level.

In addition, all EU
Member States are bound by the commitments they have made under the European
Convention on Human Rights (ECHR), independent of their obligations under
EU law. Therefore, as a last resort and after having exhausted all legal
remedies available at national level, individuals may bring an action before
the European Court of Human Rights in Strasbourg for a violation by a Member State of a right guaranteed by the ECHR. The European Court of Human Rights (ECtHR) has
designed an admissibility checklist in order to help potential applicants work
out for themselves whether there may be obstacles to their complaints being examined
by the ECtHR[3].

The
European Convention of Human Rights (ECHR)

Therefore,
where the Charter is not applicable in certain situations within an EU Member
State two other sources of protection for fundamental rights exist: Individuals
may have recourse to national remedies and, after having exhausted them, they
can lodge an application to the ECHR, in conformity with that convention.

The
Treaty of Lisbon has imposed an obligation on the EU to accede to the ECHR. In
April 2013, the draft agreement on accession of the EU to the ECHR was
finalized, which can be considered a milestone in the accession process. As a
next step, the European Commission has asked the Court to give its opinion on
the draft agreement.

Furthermore,
any application of the Charter must comply with the ECHR as interpreted in the
case law of the ECtHR. The Charter itself contains an explicit reference to the
ECHR in its Articles 52 and 53. Data collected by the EU Fundamental Rights
Agency on references made to the Charter in national judgments in two thirds of
the cases also show references to the ECHR. Thus, there is a certain degree of
parallelism when referring to both the ECHR as well as the Charter in judgments
handed down in the Member States.

Overview of
the letters and questions to the European Commission on fundamental rights

Among the letters
from the general public on fundamental rights issues received by the European
Commission in 2013, 69 % concerned situations where the Charter could apply. In
a number of cases, the European Commission requested information from the
Member States concerned or explained to the complainant the applicable EU
rules. In other cases, the complaints should in fact have been addressed to the
national authorities or to the ECtHR. Where possible, complainants were
redirected to other bodies for more information (such as national data
protection authorities).

Among the questions
from the European Parliament 60 % concerned issues within EU competence
whereas among its petitions 55% concerned such issues. In a number of cases,
the European Commission contacted the Member States to obtain clarifications on
alleged violations. The replies given by the European Commission explained or
clarified the relevant policies and on-going initiatives.

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

The European Union
Courts have increasingly referred to the Charter in their decisions. The number
of decisions of these Courts quoting the Charter in their reasoning developed
from 43 in 2011 to 87 in 2012. In 2013, the number of these decisions quoting
the Charter amounted to 114, which is almost a triple of the number of cases of
2011 (see Appendix I for an overview of all relevant rulings).

National courts when addressing
questions to the CJEU (preliminary rulings) are often referring to the Charter.
Regarding applications for preliminary rulings submitted by national judges to
the CJEU in 2013, 41 of the requests submitted contained a reference to the
Charter, which is exactly the same number as for 2012 (See Appendix II for an
overview of the applications for preliminary rulings submitted in 2013 which
refer to the Charter). This is a rise by 65 % as compared to 2011, when only 27
requests submitted contained a reference to the Charter.

References to Charter rights in decisions of the Court of
Justice of the European Union and of national courts

When focussing on
the different articles of the Charter referred to in cases before the EU Courts
and before national courts the following articles featured prominently in both
scenarios: the right to an effective remedy and to a fair trial, and the right
to good administration. However, the right to property, the right not to be
discriminated against, the presumption of innocence and the right of defence,
and the right to equality before the law were more often referred to in the jurisprudence
of the EU Courts, whereas the right to respect for private and family life and
rights of the child played a more important role before national courts.

source: European European Commission

Note: The basis for
this pie chart is the case law as referred to in Appendix I. In those cases
where reference was made to both a Title VII (general provisions) article and
an article contained in Title I-VI, only the latter was taken into account.
Those cases which only referred to a Title VII article (C-276/12 Sabou) were
not taken into account. The total number of judgments analysed therefore
amounted to 113, and the total number of references to different Charter
articles amounted to 212, as several judgments referred to more than one
article. The percentages were calculated on the basis of these 211 references. The
category 'Other rights' refers to all rights for which the percentage amounts
to less than 3 %.

The rights mostly
referred to in decisions of national courts in 2013 were the right to an
effective remedy and to a fair trial, the right to good administration, and the
right to respect for private and family life. Please note that the chart below
only takes into account those decisions were the Charter was referred to in the
reasoning of the court.

Source: European Union Agency for Fundamental Rights (FRA)[4]

Note: Only decisions
where the Charter was referred to in the reasoning of the courts were taken
into account, and only up to 5 judgments per Member State were considered. Just
as with the pie-chart on the EU Courts, references to articles in Title VII
(general provisions) were not taken into account. The category 'Other Rights'
refers to all rights for which the percentage amounts to less than 3 %.

Overview of enquiries
with the Europe Direct Contact Centres

The figures
collected by the Europe Direct Contact Centres (EDCC) confirm that there
is a high degree of interest among citizens on justice, citizenship and
fundamental rights. In 2013, the EDCC replied to 11974 enquiries from citizens on
topics such as free movement of persons (48 % of the total number of enquiries),
consumer rights (12%) and judicial cooperation (11%).

Methodology and Structure of the Staff Working Document

The Staff Working
Document annexed to the Annual Report does not look at the Charter only as a
legally binding source of law. It rather aims also to render account, from a
broader perspective, of the different ways the Charter was invoked and
contributed to the progress made in respecting and promoting fundamental rights
in a number of areas during 2013. As a consequence, the Staff Working Document refers
to the Charter as a legally binding instrument as well as a policy objective
depending on the areas concerned. Furthermore, accounts given under the
different chapters of the report vary in breadth as well depth.

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

Some measures and
cases may have an impact on different articles of the Charter. Hence, while a
measure and/or case are explained in a more detailed manner under one chapter
(the heading of one article) it may be referred to under a different one as
well.

The structure of
the Staff Working Document follows the six titles of the Charter itself:
Dignity, Freedoms, Equality, Solidarity, Citizens’ rights and Justice. Each of
the six chapters of the Staff Working Document contains the following
information on the application of the Charter, where available and relevant:

·
Legislation:

·
Examples
of EU institutions (proposed or adopted) legislation promoting the Charter rights;

·
Examples
of how the EU institutions and the Member States ensured compliance with and
have

applied the Charter
in 2013 within other (proposed or adopted) legislation;

·
Follow-up:
infringement procedures launched by the Commission against Member States for

not or
wrongly implementing relevant legislation;

·
Policies:

·
Examples
of how the EU institutions and the Member States ensured compliance with and
have

applied the Charter in 2013 within policy
areas, e.g. through recommendations and guidelines and best practices;

·
Case
law:

·
Relevant
jurisprudence of the CJEU;

·
Case
law of national courts referring to the Charter (be it within or outside the
scope of EU

law);

·
An
overview of questions and petitions from the European Parliament, and
letters from the general public received in 2013 focusing on main fundamental
rights issues;

·
Data
gathered by the EU Agency for Fundamental Rights throughout 2013.

1. Dignity

In
2013, The European Commission adopted its first Communication on female
genital mutilation demonstrating the commitment of the EU to address effectively
one aspect of the issue of gender based violence.

A recast piece of legislation on asylum (determination of
Member States responsible for examining applications and reception of
applicants) was adopted. It guarantees effective remedies to asylum applicants
as regards appeals against transfer decisions in accordance with case law of
the CJEU. This ensures that asylum
seekers cannot be sent back to a Member State where there is a serious risk of
violation of their fundamental rights under the newly agreed rules. It also offers better protection to the most vulnerable asylum
seekers, e.g. minors.

The European
Commission presented a Proposal for a Regulation establishing rules for the
surveillance of the external sea borders in the context of operational
cooperation coordinated by Frontex in response to the judgment of the CJEU,
European Parliament v. Council of EU (C-355/10).
It aims at establishing clear rules for joint patrolling as
regards interception, including on the high seas, search and rescue situations
which arise during these surveillance operations and disembarkation. It
emphasises also the obligation to respect the principle of non-refoulement.

The European
Commission adopted the EU Strategy towards the Eradication of Trafficking in
Human Beings 2012-2016 in June 2012., One of its actions was the launch of the
European Civil Society Platform against Trafficking in Human Beings in
2013 which brought together numerous civil society organisations from the EU MS as well as neighbouring priority countries. The European
Commission also established an EU anti-trafficking website. The EU Anti-trafficking
Day conference in Vilnius explored the links between Trafficking in Human
Beings and the Internet; issues discussed
included the problem of online recruitment of victims and facilitation of trafficking
in human beings as well as online awareness raising and investigation.

Article 1: Human dignity

Human dignity, as
protected in Article 1 of the Charter, is the basis of all fundamental rights.
It guarantees the protection of human beings from being treated as a mere
objects by the State or by his/her fellow citizens. It is not only a right in
its own but also part of the very substance of each right. Thus it needs to be
respected when any of these rights are restricted. All subsequent rights and
freedoms under the title Dignity, such as the right to life, and the
prohibition of torture and slavery add specific protection against
infringements of dignity.[5] They must
equally be respected in order to allow enjoyment of other rights and freedoms
in the Charter, for example freedom of expression and freedom of association.
None of the rights laid down in the Charter may be used to harm the dignity of
another person.

Legislation

Human dignity
issues arose in a few instances in 2013. Thus, the European Commission
took
the right to human dignity into account when preparing a legislative proposal[6] for
amendment of Regulation
1236/2005 concerning trade in certain goods which could be used for capital
punishment, torture or other cruel, inhuman or degrading treatment or
punishment, notably with a view to improving export controls on certain
medicinal products to prevent the use of such products for capital punishment.[7]

Furthermore, when
adopting a legislative package (notably Regulations 1141/2011, 1147/2011 and Decision
2011/8042)[8]
allowing the use of security scanners at EU airports the European
Commission had considered the impact on fundamental rights, namely on human
dignity. Subsequently, in 2013, the European Commission received a number of
parliamentary written questions and letters from citizens on security scanners
and their deployment at the airports of a Member State. The issues raised
concerned the policy of not offering passengers alternative control methods ("opt-out")
on request, as provided for in the regulation. Thus, the services of the European
Commission investigated the compliance of such a policy with EU law. They came
to the conclusion that the policy of the Member State in question risks to
constitute a breach of EU law. The European Commission informed this Member State of the assessment of their policy requesting it on 8 July 2013 to take
corrective action. On 21 November the Member State issued a new measure. This
new legal framework offers to passengers the possibility to opt out of being
scanned by a security scanner.

Case law

As regards minimum
benefits for asylum seekers the CJEU had already decided in 2012[9] that a
Member State in receipt of an application for asylum is obliged to grant the
minimum conditions for reception of asylum seekers laid down in Directive
2003/9 even to an asylum seeker in respect of whom it decides to call upon
another Member State, as the Member State responsible for examining his
application for asylum, to take charge of or take back that applicant.
Subsequently, on 17 April 2013, the French Conseil d'Etat annulled
internal guidelines which until then had excluded such asylum applicants
from minimum benefits.

Ruling of the
Supreme Court of the Czech Republic[10]

In a case where a
patient in a psychiatric hospital was fastened to a toilet for 4 hours and
found death after insufficient supervision, the mother of the patient brought
proceedings against the hospital claiming among others an infringement of the
right to human dignity. The district court held that, even though the way the
patient was treated restricted her right to human dignity, it was legitimate.
The case went up to the Supreme Court. One of the legal questions raised before
the Supreme Court was whether a person with a grave mental disorder can be
treated in a less dignified manner than a healthy person. The Supreme Court determined
that human dignity is protected by both national and international law, including
the Charter of Fundamental Rights. The Supreme Court disagreed with the
district court and concluded that the right to human dignity is absolute. The
right to human dignity of a mentally disordered person cannot be any different
from the protection of this right of any other person. Although the Charter was
not directly applicable in this purely internal case it was used by the Supreme
Court as point of reference to interpret the notion of human dignity.

Article 3: Right to the integrity of the person

The right to physical
and mental integrity of the person (Article 3 (1) of the Charter) on the one
hand protects from infringements by public authorities. On the other hand it
also puts them under an obligation to promote such protection, e.g. by concrete
legislation.

Legislation

In this context attention
is drawn to the Directive on combating the sexual abuse and sexual
exploitation of children and child pornography.[11] The
deadline for the Member States to transpose this directive into national law
was on 18 December 2013.

Article 3 (2) (c)
of the Charter prohibits making the human body as such a source of financial
gain in the fields of medicine and biology. Hence, Article 20 of Directive
2002/98/EC[12] sets
out principles governing voluntary and unpaid donation of blood and blood
components. It states that Member States shall take the necessary measures
to encourage voluntary and unpaid blood donations with a view to ensuring that
blood and blood components are as far as possible provided by such donations. In
accordance with Article 20 (2) of the Directive, Member States shall submit
reports on the practice of voluntary and unpaid blood donation to the European
Commission every three years. The European Commission prepared a new survey on
the implementation of this principle in the Member States which was launched by
the end of 2013.

Policy

The European
Commission supports Member States in key policy areas, such as policies putting
an end to gender-based violence. Gender-based violence constitutes a breach of
the fundamental right to dignity and physical and mental integrity of a person,
as well as the rights to life, liberty, security, equality between women and
men, non-discrimination.[13] In
2013, the European Commission adopted its first Communication on female genital
mutilation demonstrating the commitment of the EU to address the issue
effectively. It also co-finances national awareness-raising campaigns against
gender-based violence.

Article 4: Prohibition of torture and inhuman or degrading
treatment or punishment

Article 4 of the
Charter provides that no one shall be subjected to torture or to inhuman or
degrading treatment or punishment. This was in particular taken into account by
EU Institutions in 2013 when dealing with provisions that concern border
controls immigration and asylum issues.

Legislation

On 12 April 2013,
the European Commission presented a Proposal for a Regulation establishing
rules for the surveillance of the external sea borders in the context of
operational cooperation coordinated by Frontex[14] in
response to the judgment of the CJEU in the case of European Parliament v.
Council of EU[15]. The
aim of the proposal is to establish clear rules for joint patrolling as regards
interception, including on the high seas, search and rescue situations which
arise during these surveillance operations and disembarkation. The proposal
takes into account recent legal and judicial developments, such as the
amendments to the Regulation establishing Frontex[16] and the
judgment of the European Court of Human Rights in Hirsi Jamaa and Others v.
Italy[17], as well as the
practical experiences of Member States and the Agency when implementing the
annulled Council Decision. The European Commission proposal now provides that
any measures taken during surveillance operations must be in full respect of
fundamental rights and the principle of non-refoulement. Before disembarkation
in a third country, Member States must take into account the general situation
in that country to ensure that it is not engaged in practices in violation of
the principle of non-refoulement. Furthermore, the persons intercepted or
rescued must be identified and their personal circumstances must be assessed to
the extent possible before disembarkation. They must be informed of the place
of disembarkation in an appropriate way and they must be given an opportunity
to express any reasons for believing that disembarkation in the proposed place
would be in violation of the principle of non-refoulement. This guarantees that
the migrants are informed about their situation and the proposed place of
disembarkation thereby allowing them to express any objections.

Following another European
Commission proposal, the co-legislator adopted the recast Dublin Regulation[18]. Its
provisions guarantee effective remedies to asylum applicants as regards appeals
against transfer decisions, thus ensuring full effect of the right to remain on
the territory and reducing the risk of "chain refoulement". It provides
for widened rules of reunification for unaccompanied minors, guarantees the
right to a guardian, the right of all applicants to detailed information on the
functioning of the Dublin system including, for minors, in a manner adequate
for their understanding.[19] The
regulation contains furthermore substantial provisions on detention, limiting
it to cases of established risk of absconding, restricting it to a maximum of
three months, and providing that the detention conditions and guarantees
applicable to asylum seekers under this procedure are the ones foreseen by the Reception
Conditions Directive[20] (thus
ensuring the same level of rights as for any other asylum applicant). The
latter was adopted by the co-legislator following a European Commission
proposal. It lays down improved and clearer standards to more effectively
safeguard the fundamental right to dignity, especially as regards vulnerable
asylum seekers. In particular it further harmonises the rules on detention
lying down clear and restrictive grounds, conditions for detention and
guarantees for detainees.

The Regulation also
incorporates in an article the judgment of the CJEU in the case NS v UK
(case C-411/10)[21],
whereby an asylum seeker cannot be sent to a Member State where there is a
serious risk of violation of his/her fundamental rights, but instead another
Member State is to assume responsibility on the basis of the Dublin criteria,
within the shortest delay, in order not to jeopardize his/her quick access to
procedure.

In a declaration
annexed to the recast Dublin Regulation, the European Parliament, the Council,
and the European Commission declared to use their respective legislative powers
for a revision of the provisions in the recast Dublin Regulation, so as to
ensure that the best interest of the child is safeguarded, once the CJEU has ruled
on case C-648/11 MA and Others vs. Secretary of State for the Home
Department. [22] This
judgement has been delivered on 6 June 2013, clarifying that in an
abovementioned scenario the Member State in which that minor is present after
having lodged an asylum application there is to be designated the ‘Member State
responsible’[23].

Article 5: Prohibition of slavery and forced labour, including trafficking
in human beings

Slavery violates human
dignity. Trafficking in human beings is one form of slavery. The Charter
explicitly prohibits trafficking in human beings in Article 5 (3). Preventing
and combating it is a priority for the Union and the Member States.

Legislation/Policy

On 19 June 2012,
the European Commission had presented a Communication on the "EU
Strategy towards the Eradication of Trafficking in Human Beings 2012-2016"[24] , which
aims to address in a comprehensive, integrated and structured way the challenges
for the next five years. It proposes a series of 40 concrete and time-bound
actions emphasizing the necessity to respect and promote fundamental rights in legislative
and policy measures which address trafficking in human beings.

One of the latest
actions delivered under the Strategy is the launch in May 2013 of an EU
Civil Society Platform against Trafficking in Human Beings which
aims at bringing together more than 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 third countries.

By prioritising
prevention of the crime, prosecution of traffickers, the protection of the
victims, as well as cooperation and coordination, the EU Strategy complements
the Directive 2011/36/EU[25] on preventing and
combating trafficking in human beings, which has a strong focus on victim protection,
assistance and support. This directive adopts an integrated, holistic, and
human rights-based approach in addressing trafficking in human beings,
recognising the latters the gender-specific nature. It also refers to the role
of an EU Anti-Trafficking Coordinator providing the overall strategy policy
orientation in the field of trafficking in human beings. He or she will improve
coordination and coherence between EU institutions, EU agencies, Member States
and international actors. The Directive should have been transposed into
national law by 6 April 2013. As thirteen Member States had not communicated by
that deadline any measures transposing the directive, infringement procedures
have been launched against them. Letters of formal notice (under
Article 258 TFEU) were sent on 29 May 2013 to these thirteen Member States. In
November 2013, Reasoned Opinions on non-communication basis were sent to Cyprus, Italy, Spain and Luxembourg.

Furthermore, the EU
anti-trafficking website launched by the European Commission serves as
one-stop shop, containing all relevant information on EU policy and
legislation, National Information Pages on all Member States, European
Commission funded projects and publications by relevant stakeholders.[26]

Finally, the EU
Anti-Trafficking Day was established by the European Commission in 2007,
marked on 18 October every year, with the aim to raise awareness on trafficking
in human beings and to increase the exchange of information and networking
between the different actors working in the field of combating trafficking in
human beings. For 2013, the Lithuanian Presidency and the European Commission
organised a conference in Vilnius to mark the 7th EU Anti-Trafficking Day
exploring the links between the Internet and combating Trafficking in Human
Beings ("Cyberspace for Prevention, not Recruitment").

On 13 June 2013 the
Council the published its Revised Draft Conclusions on an EU
Framework for the Provision of Information on the Rights of Victims of
Trafficking in Human Beings, wherein it invited Member States to promote the
rights of victims, by rendering available the relevant information to them,
among others on labour, social, victim and migrant rights that victims of
trafficking in human beings have under EU law in their jurisdiction with
special attention being given to child victims.[27] At the
same time it asked the European Commission to support the Member States efforts
and allocate the necessary budget funding projects to implement the rights of
victims. [28]

2. Freedoms

As regards the reform of EU data protection law, the Committee
for Civil Liberties, Justice and Home Affairs (LIBE) of the European
Parliament backed the European Commission's data protection proposal

Following
last year's revelations about mass surveillance programmes the European
Commission set out actions that need to be taken to restore trust in data flows
between the EU and the US. These include ensuring that safeguards apply
to EU citizens in US surveillance programmes as well as concluding negotiations
concerning a EU-US umbrella agreement on data protection in the law enforcement
sector. The agreement should include enforceable rights of judicial redress for
citizens on both sides of the Atlantic. The European Commission also made 13
recommendations to improve the functioning of the Safe Harbour scheme. Remedies
should be identified by summer 2014. The European Commission will then review
the functioning of the scheme based on the implementation of these 13
recommendations.

In
the framework of the Common Agricultural Policy (CAP) and the Common
Fisheries Policy (CFP) post 2013, the European Commission proposal on the publication
of information about beneficiaries of funds specific to these policy fields
reflect the attention given to the protection of individuals' rights to privacy
as well as personal data.

On 10
September 2013, the European Parliament adopted its Resolutions on the European
Commission proposals for a Council Regulation on jurisdiction, applicable law
and the recognition and enforcement of decisions in matters of matrimonial
property regimes and for a Council Regulation on jurisdiction, applicable
law and the recognition and enforcement of decisions regarding the property
consequences of Registered Partnerships.

In
order to address the growing number of calls for the European Commission to
intervene with regard to media freedom and pluralism, an independent
expert group presented 30 recommendations addressed to the EU institutions,
Member States and relevant stakeholders. In public consultations on the
report Member States and media organisations were reluctant to see increased European
Commission intervention in media pluralism whereas citizen respondents on the
other hand were largely in favour of intervention.

As
already mentioned above one of the most important developments in this area is
the strengthening of the Common European Asylum System by adoption of
the revised Dublin Regulation, the Eurodac Regulation, Directives on  the
Reception Conditions and on the Asylum Procedures[29].

Article 7: Respect for private and family life

Article
7 of the Charter guarantees the right of everyone to respect of their private
and family life as well as home and communications.

The
right to private life includes the protection of privacy in relation to
any information about a person.

Legislation

This
right as well as the right to protection of personal data of individuals
(Article 8 of the Charter) naturally had to be considered and balanced against
the taxpayer's right to be kept informed about the use made of public funds in
the context of beneficiaries of European agricultural funds.[30]
Thus, the proposals for the Common Agricultural Policy (CAP) post 2013,
confirmed by the political agreement of June 2013,[31]
which contained the European Commission proposal on the publication of
information of CAP beneficiaries but on the other hand also reflects the
attention given to the protection of individuals' rights to privacy as well as
personal data. Provisions of general scope were added during the negotiation
with the other two institutions. The main elements of the political agreement
are:

o publication
of the name of beneficiaries, with the exception of those receiving an amount
of annual aid which does not exceed a certain threshold. The modalities for
fixing the threshold are part of the new provisions and accommodate the
principle of proportionality and non-discrimination;

o publication
of details on the measures financed by the CAP funds under which the
beneficiaries received the aid and also details on the obligations that the
beneficiaries need to respect.

The
first publication under the new rules should take place in 2015.

The
proposed regulation on the European Maritime and Fisheries Fund (EMFF), which
will replace the current European Fisheries Fund (EFF) and during the period of
the next multiannual financial framework (2014-2020) finance measures in the
field of fisheries and maritime policies, constitutes a further case in which
the EU had to balance the rights to respect for private life (Article 7 of the
Charter) and to the protection of personal data (Article 8 of the Charter and Article
16 TFEU) of beneficiaries of funds with the principle of transparency (Articles
1 TEU and 10 TEU and Article 15 TFEU). Taking into account the CJEU's judgment
in Schecke and Eifert v. Land Hessen[32], the European
Commission addressed the topic in its amended proposal for the EMFF regulation
of April 2013[33]. The political agreement on the EMFF
regulation reached by the EU legislators protects beneficiaries by foreseeing
the publication of names of private persons only if such publication is in line
with legislation of the respective Member State and by publishing detailed
information on the financed operation, like a summary, key dates, and
corresponding Union priorities.[34]

Furthermore,
in order to protect the right to privacy in a balanced manner the European
Commission ensured an effective protection of professional legal privilege
within the EU's money laundering legislation. The proposed Anti-Money
Laundering Directive of February 2013 imposes an obligation to report
suspicions of money laundering or terrorist financing to the authorities in a
number of professional activities. However, considering the crucial importance
of the right to defence in a democratic society, the proposed Directive obliges
Member States not to apply the reporting obligation to lawyers under certain
circumstances, for instance when it relates to information received in the
course of ascertaining the legal position of a client or performing their task
of defending or representing that client in, or concerning judicial proceedings[35].
Furthermore, the Member States have the possibility to set in place a system of
first instance reporting to a self-regulatory body which constitutes further
safeguards to uphold the protection of fundamental rights with view to
reporting obligations applicable to lawyers.

Of
particular relevance to the right to respect of family life, including the
right to marry and to found a family according to Article 9 of the Charter and national
laws are the on-going negotiations on the European Commission proposals on
matrimonial property regimes[36] and on
property regimes for registered partnerships[37]. No
differentiation is introduced in the legislation on the basis of sexual
orientation.[38] On 10
September 2013, the European Parliament adopted its Resolutions on the European
Commission proposals for a Council Regulation on jurisdiction, applicable law
and the recognition and enforcement of decisions in matters of matrimonial
property regimes[39] and for a
Council Regulation on jurisdiction, applicable law and the recognition and
enforcement of decisions regarding the property consequences of Registered
Partnerships.[40] The Resolutions contained several amendments
mentioning the Charter, such as

o inserting
a reference to Article 20 of the Charter, which guarantees the equality before
the law and to Article 23 on the equality between women and men[41] and

o stating
that the competent authorities should not interpret the public policy exception
in a way that is contrary to the Charter, and in particular Article 21 thereof,
which prohibits all forms of discrimination.[42]

Policy

Furthermore,
an increase in the number of petitions to the European Commission
concerning the functioning of the German Youth Welfare Offices (Jugendämter)
has to be mentioned in relation to the right to respect for family life. These
petitions mainly concerned amongst others the following: alleged imposition of
restrictions on access of non-German parents to their children; alleged discriminatory
interventions of Jugendämter during the custody court proceedings e.g.
favouring the German parent when Jugendämter officials provide evidence in
court; alleged violation of the right to be heard by the Jugendämter; alleged
incorrect implementation of the best interests of the child principle -"Kindeswohl"
– which is allegedly used rather to protect the interests of the German state
than the best interests of the children; alleged lack of complaint mechanisms
and review procedures against the decisions of certain Jugendämter, or
little awareness about these mechanisms. Vice President Reding has contacted the
German authorities on these issues.

Case law

As
regards case law the important ruling in Deutsche Bahn v European
Commission[43] on the
right to private life by the General Court of 6 September 2013 has to be
emphasised. Here the Court ruled that carrying out inspections of
undertakings or associations of undertakings on the basis of a European
Commission decision is not a violation of Article 7 of the Charter on
respect for private and family life. It held that prior judicial authorisation
of such inspections is not required, provided comprehensive judicial review is
available after the inspection. By this ruling, the Court confirmed its
established case law on the European Commission's powers of inspection of
undertakings and associations of undertakings as laid down in Article 20 of
Regulation 1/2003 (formerly Article 14 of Regulation No. 17). It pointed to the
safeguards provided by Regulation 1/2003, namely the obligation to state the
reasons on which an inspection decision is based, the need to act within
certain limits when carrying out inspections (respect of right to privacy,
Legal Professional Privilege, privilege against self-incrimination), the fact
that the European Commission does not have the power to enforce its inspection
powers by force, the fact that the European Commission must seek the assistance
of national police or equivalent enforcement authorities to overcome assistance
to an inspection, as well as the fact that the legality of the inspection
decision may be challenged before the CJEU. It concluded that these safeguards
had been duly respected in the case before it.

Article 8: Protection of personal data

The
fundamental right of everyone to the protection of personal data is now
explicitly recognised by Article 8 of the Charter. It is also
explicitly stated in Article 16 of the Treaty on the Functioning of the
European Union. This gives the EU new responsibilities to protect personal data
in all areas of EU law, including police and judicial cooperation. In view of
this year's revelations about worldwide surveillance programmes potentially
monitoring citizens' communication it was imperative for the EU institutions to
progress in their negotiations about a new data protection level. The revelations
have shown how technological progress and globalisation have profoundly changed
the way personal data is collected, accessed and used. In addition, the 28 EU
Member States have implemented the 1995 EU Data Protection Directive[44] differently,
resulting in divergences in enforcement.

Legislation/Policy

The European
Commission has already proposed a major reform of the EU's rules on the
protection of personal data.[45] The proposals
include a policy Communication setting out the European Commission's objectives[46] and two
legislative proposals: a Regulation setting out a general EU framework for
personal data protection[47] and a
Directive[48] on
protecting personal data processed for the purposes of prevention, detection,
investigation or prosecution of criminal offences and related judicial
activities.

In
October 2013 the Committee for Civil Liberties, Justice and Home Affairs
(LIBE) of the European Parliament supported the European Commission's
proposal. The aim of the reform is to put individuals back in control of their
data by updating their rights , in order to fully respect Article 8 of the
Charter. Explicit consent, the right to be
forgotten, the right to data portability and the right to be informed of
personal data breaches are important elements. They will help to close the
growing rift between citizens and the companies with which they share their
data, willingly or otherwise.

Recent revelations
of large-scale US intelligence collection programmes have negatively
affected the trust on which the transatlantic relationship is based. As Vice-President
Viviane Reding, the EU's Justice  Commissioner pointed out: "Massive spying on our citizens, companies and leaders is
unacceptable. Citizens on both sides of the Atlantic
need to be reassured that their data is protected and companies need to know
existing agreements are respected and enforced."[49] Following these deep concerns the European Commission in
2013 set out actions that need to be taken to restore trust
in data flows between the EU and the US.[50] An EU-US
working group was set up in July 2013 the findings of which were set out in a
report of the EU Co-Chairs[51] . On this basis, the European
Commission's response took the form of

o a
strategy paper (a Communication) on transatlantic data flows setting
out the challenges and risks following the revelations of US intelligence
collection programmes, as well as the steps that need to be taken to address
these concerns;

o a report
on the functioning of "Safe Harbour" which regulates
data transfers for commercial purposes between the EU and US.

In particular
the European Commission called for actions in several areas, such as:

o
The
EU data protection reform: The data protection
reform proposed by the European Commission in January 2012[52]
provides key responses, in particular as as regards territorial scope, on
international transfers, enforcement and sanctions, obligations and liabilities
of data processors as well as with the establishment of comprehensive rules for
the protection of personal data processed by competent authorities in the law
enforcement sector in the Union.

o Making Safe Harbour safer: the
European Commission made 13 recommendations to improve the functioning of the Safe Harbour scheme and after an analysis found the functioning of the scheme deficient in
several respects. Remedies should be identified by summer 2014. The European
Commission will then review the functioning of the scheme based on the
implementation of these 13 recommendations.

o Strengthening
data protection safeguards in the law enforcement area: the
current negotiations on an “umbrella agreement” for transfers and processing of
data in the context of police and judicial cooperation should be concluded
swiftly. An agreement must guarantee a high level of protection for citizens
who should benefit from the same rights on both sides of the Atlantic. Notably,
EU citizens not resident in the US. should benefit from judicial redress
mechanisms.

o Using
the existing Mutual Legal Assistance and Sectoral agreements to obtain data: the US
administration should commit to, as a general principle, making use of a legal
framework like the mutual legal assistance and sectoral EU-US Agreements such
as the Passenger Name Records Agreement and Terrorist Financing Tracking Programme
whenever transfers of data are required for law enforcement purposes. Asking
the companies directly should only be possible under clearly defined
situations.

o Addressing
European concerns in the on-going US reform process:
US President Obama has announced a review of US national security authorities’
activities. This process should also benefit EU citizens. The most important
changes should be extending the safeguards available to US citizens to EU
citizens not resident in the US, ensuring the necessity and proportionality of
the programmes, increased transparency and better oversight.

In
August 2013 the Directive on attacks against information systems[53] was
adopted. It aims at dealing with the growing number of large-scale cyber-attacks
against businesses and also government organisations. The Directive addresses
the penalisation of illegal access, system interference and data interference,
and as such its implementation (by September 2015) will strengthen the
protection of personal data by reducing the ability of cybercriminals to abuse
victims' rights without impunity. The Directive seeks to ensure full respect of
the protection of personal data, the right to privacy, freedom of expression
and information, the right to a fair trial, the presumption of innocence and
the rights of the defence, as well as the principles of legality and
proportionality of criminal offences and penalties.[54]

Furthermore,
in January 2013 the European Cybercrime Centre ('EC3') has been created within
Europol to help protect European citizens, in particular their personal data
and privacy, against threats from cybercriminals. The EC3 pools expertise and information,
supports criminal investigations and promotes EU-wide solutions, while raising awareness
of cybercrime issues across the Union. In February, a cyber-security
strategy was presented that outlines the EU’s comprehensive vision on how
best to prevent and respond to cyber disruptions and attacks. The European
Commission and Catherine Ashton, the High Representative of the Union for
Foreign Affairs and Security Policy and Vice-President of the European
Commission, have jointly adopted this strategy alongside a directive proposed
by the European Commission on network and information security (NIS). Specific actions are aimed at enhancing the cyber resilience of information systems,
reducing cybercrime and strengthening the EU’s international cyber-security
policy and cyber defence.

The European
Commission routinely checks its legislative proposals and the acts it adopts to
ensure that they are compatible with the Charter (sometimes called
"mainstreaming") such as in the following cases.

As a new
major initiative in the field of EU border management, the European Commission in
February 2013 adopted the Smart Borders package. The main
objective of the initiative is two-fold - the proposed Regulation for the Entry
Exit System shall secure by means of automated registration of external border
crossings of the third country nationals and subsequent calculation thereof the
enforcement of the rule on short stay of in the EU whilst the Regulation for
the Registered Traveller Programme would contribute to better management of the
increasing travel flows and simplify the external borders' crossing of frequent
and pre-screened and pre-vetted third country travellers. Acknowledging the
need to safeguard privacy and guarantee data protection, the European
Commission has attached high importance to the principles of proportionality,
necessity and purpose limitation as well as to fundamental rights. Accordingly,
both proposals contain a specific chapter on rights of data subjects and
supervision of data protection. Overall, a special attention has been paid to
the rights of the data subject and data protection aspects and the supervision
thereof. The proposals contain provisions on liability, rights of persons,
remedies and supervision of the lawfulness of processing the data by both the
national supervisory authorities as well as the European Data Protection
Supervisor. In full transparency, a joint report of their activities will be
sent to the European Parliament, the Council, the European Commission and the
eu-LISA every two years.

On 11
December 2013, a new basic regulation on the Common Fisheries Policy
(CFP) was adopted which entered into force on 1 January 2014.[55] It defines
core elements of this policy, like its general and specific objectives, basic
instruments, key actors, and procedures. The regulation covers the collection
and management of various kinds of data, including biological, environmental,
technical, and socio-economic data necessary for fisheries management. Such data can also include personal data,
like information collected for fishing fleet registers, information on
individual catches by vessel owners, and on positions of vessels. The
regulation, establishes certain basic principles for the "collection,
management and use of data", thereby requiring the EU institutions and the
Member States to respect the rules on the protection of personal data, e.g.
through safe storage and protection of collected data in computerised
databases, and their public availability where appropriate, including at
aggregated level, whilst ensuring confidentiality. [56]

The
right to data protection was furthermore taken into account during legislative
procedures in a number of policy areas, such as:

o the European
Commission proposal for a Regulation on the financing, management and
monitoring of the common agricultural policy, balancing the rights of
beneficiaries of European agricultural funds  to protection of personal data
against the taxpayer's right to be kept informed about the use made of public
funds[57],

o the
adoption of the recast Eurodac Regulation in the field of asylum policy[58]

o the European
Commission proposal for a regulation on the European Maritime and Fisheries
Fund (EMFF), in which the right to protection of personal data of beneficiaries
under the EMFF was balanced against the principle of transparency[59],

o a
proposal for the revision of the third anti-money laundering Directive
and Fund Transfer Regulation which purports to clarify the interaction between
the AML rules and the protection of personal data by bringing clarification on
how institutions need to apply anti-money laundering/terrorist financing
requirements in a way which is compatible with a high level of protection
of personal data.

o the European
Commission's proposal to boost Europol's role as a law enforcement
agency and a EU hub for information exchange which provides for a re-designed
data processing structure entailing the strengthening of the rights of
individuals affected by data processing and ensuring robust supervision of
Europol's data processing by the European Data Protection Supervisor.

o a
proposal for a Regulation setting up the European Public Prosecutor's Office
(EPPO) to improve Union-wide prosecution of criminals who defraud EU taxpayers
defines a very important number of rights of the data subjects and also ensures
supervision of the Office by the European Data Protection Supervisor.

o the
reform for the European Union’s Agency for criminal justice
cooperation (Eurojust) which provides for its supervision
by the European Data Protection Supervisor and ensures that persons whose data
are being processed can truly exercise their rights.

Finally,
following privacy and data protection issues raised by MEPs in connection with the
development of Remotely Piloted Aircraft Systems (RPAS) applications, the
European Commission is currently considering the preparation of a supportive
and enabling policy framework for the civilian use RPAS. The policy framework
may include safety regulation and other relevant topics like security, privacy
and data protection and therefore should ensure a balance of promoting the new
technologies and industries involved and providing the highest levels of
safety, security and privacy for citizens. With regard to data protection in
particular, the European Commission is conducting a study to identify potential
shortfalls in the current regulatory framework and ways to ensure drones comply
with data protection rules and fundamental rights to privacy. The European
Commission will also promote the adoption of relevant measures under national
competence and ensure continuous monitoring of privacy and data protection
issues.

                International
agreements

                The modernisation of the Council of Europe's rules on data
protection coincides with the comprehensive reform of the European Union's laws
in this area. In order to respond to the rapid technological developments and
globalisation trends that have brought new challenges for the protection of
personal data, the Council of Europe has begun discussions on the modernisation
of Convention of the Council of Europe for the Protection of Individuals
with regard to Automatic Processing of Personal Data (Convention 108),
which was the first legally binding international instrument in the field of
data protection. In 2013 the European Commission was mandated by the Council to
negotiate on this modernisation, in order to provide for a high level of
protection of fundamental rights and freedoms with respect to processing of
personal data, which reflects the EU's internal rules.

Furthermore
as already pointed out above, the European
Commission is currently negotiating an “umbrella agreement” with the US for transfers and processing of data in the context of police and judicial
cooperation. The aim is to guarantee a high level of protection for citizens
who should benefit from the same rights on both sides of the Atlantic, in
particular rights of judicial redress.

Case law

In 2013
the CJEU issued several rulings relevant to the protection of data. Thus,
on the case of Worten/ACT[60] it held in a
preliminary ruling that the recording of working time is covered by the
guarantees in EU law on personal data. However, this does not preclude any national
legislation which requires an employer to make the record of working time
available to the national authorities responsible for the monitoring of working
conditions.

Further,
in another preliminary ruling, the case of Case C-291/12 Schwarz,[61] the
court held that including fingerprints in passports was lawful. Although the
taking and storing of fingerprints in (biometric) passports constitutes
a restriction of the rights to respect for private life (Article 7 of the
Charter) and the right to protection of personal data (Article 8 of the
Charter), such measures are nonetheless justified for the purpose of preventing
any fraudulent use of passports. The Court added, with a clear reference to the
case-law of the ECtHR  (S. and Marper)[62], that
the legislature must ensure that there are specific guarantees that the
processing of such data will be effectively protected from misuse and abuse. In
that respect, the Court noted that Article 4(3) of the Regulation on standards
for security features and biometrics[63] explicitly states
that fingerprints may be used only for verifying the authenticity of a passport
and the identity of its holder. In addition, that regulation ensures protection
against the risk of data including fingerprints being read by unauthorised
persons. In that regard, Article 1(2) of that regulation makes it clear that
such data are to be kept in a highly secure storage medium in the passport of
the person concerned.

In a
preliminary ruling, the CJEU in C-473/12 IPI[64] referred
to its settled case-law stating that derogations and limitations in relation to
the protection of personal data need to be applied only in so far as is
strictly necessary in view of the  fundamental right to privacy. Furthermore, the
Court held that Member States have no obligation, but rather an option, to
transpose into their national law one or more of the exceptions to the
obligation to inform data subjects of the processing of their personal data as
laid down in Article 13 (1) of Directive 95/46/EC. It also concluded that the
activity of a private detective acting for a professional body in order to
investigate breaches of ethics of a regulated profession - the profession of an
estate agent in the case at hand - is covered by the exception in Article
13(1)(d) of Directive 95/46. The Court also observed that it is open to the
Member States to take the view that those professional bodies and the private
detectives acting for them have sufficient means, notwithstanding the
application of Articles 10 and 11 of Directive 95/46/EC, of detecting the
breaches of ethics at issue. Thus, it is not necessary for that exception to be
implemented in order for those bodies to be able to carry out their duty of
ensuring compliance with the rules.

In case C-486/12
X[65], another
prelimary ruling, the Court of Justice held that Article 12(a) of Directive
95/46/EC does not preclude the levying of fees in respect of the communication
of personal data by a public authority. It has also clarified that in view of
the importance of protecting privacy, emphasised in the case-law of the Court
and enshrined in Article 8 of the Charter, the fees which may be levied under
Article 12(a) may not be fixed at a level likely to constitute an obstacle to
the exercise of the right of access guaranteed by that provision. Consequently,
in order to ensure that fees levied when the right to access personal data is
exercised are not excessive, the level of those fees must not exceed the cost
of communicating such data. That upper limit does not prevent the Member States
from fixing such fees at a lower level in order to ensure that all individuals
retain an effective right to access such data.

In its
judgment in T-214/11 ClientEarth[66] the
General Court applied the case law of the Court of Justice of the EU (notably
C-28/08 P European Commission v Bavarian Lager) and held that where an
application based on Regulation 1049/2001 seeks to obtain access to documents
containing personal data, the provisions of Regulation 45/2001 become
applicable in their entirety. The latter regulation has to be complied with by
the European institutions when they receive an application for access to
documents containing personal data. The Court went on to observe that that data
may be transferred only if the applicant establishes the necessity of having
the data transferred and if there is no reason to assume that the data
subject’s legitimate interests might be prejudiced, pursuant to Article 8(b) of
Regulation No 45/2001. Where the recipient does not provide any express and
legitimate justification or any convincing argument in order to demonstrate the
necessity for that personal data to be transferred, the institution which has
received the application is not able either to weigh up the various interests
of the parties concerned or to verify that there is no reason to assume that
the data subjects’ legitimate interests might be prejudiced by the transfer of
data and is therefore entitled to refuse the particular application for access.

Article 10: Freedom of thought, conscience and religion

The right guaranteed in paragraph 1 of
Article 10 of the Charter corresponds to the right guaranteed in Article 9 of
the ECHR. Besides the freedom of adhering to a chosen religious belief and
practicing it, the right protects actions of conscience such as for example
those of conscientious objectors.

Policy

Within Member States there are several
issues concerning freedom of religion and belief, as well as the freedom of
conscience that are currently being discussed by stakeholders.

Thus, in the context of the dialogue with
churches, religious associations or communities and philosophical and
non-confessional organisations (Article 17 TEU) the concerns raised relate in
particular to issues of religious expression in the public space and the work
place, such as ritual slaughter in view of animal welfare, home schooling with
a view to conscientious objection, e.g. in Germany and Sweden and the debate on
circumcision following a German court case.

These dialogue partners were consulted
during the drafting process of the EEAS guidelines on freedom of religion and
belief, adopted in June 2013.

While some of the above-mentioned issues do
not fall within EU competence, a number of dialogue partners seem to feel that
the issues relate to their fundamental rights of expressing their religion and
belief and are of the strong opinion that given the Charter is part of the EU acquis,
the EU should help to uphold them.

Ruling of the
Federal Administrative Court of Germany[67]:
limitation of the freedom of religion as an act of persecution

Applications of a
Pakistani citizen for asylum in Germany had been dismissed. The applicant then
claimed that EU Directive 2004/83/EG on minimum standards for the
qualification and status of third country nationals or stateless persons as
refugees or as persons who otherwise need international protection (the asylum
qualification directive) and the content of the protection granted had
changed his legal situation: the extent of protection was broadened to cover
also active proselytization, which was the primary reason for the persecution
in Pakistan. Both the Stuttgart Administrative Court and the Mannheim Higher Administrative Court ruled that the applicant should be recognized as a
refugee. The Federal Administrative Court repealed the judgment. It referred to
the freedom of religion as enshrined in Article 10 (1) of the Charter and ruled
that an interference with the right to freedom of religion comes within the
scope of the asylum qualification directive, but only if the limitation of the
freedom of religion is not provided by law as defined in Article 52 (1) of the
Charter, and the limitation of this right is severe, affecting the person
concerned remarkably. The Court concluded that the seriousness of the actions
and sanctions that are taken or may be taken towards the person concerned
determines whether a violation of the right guaranteed in Article 10 (1) of the
Charter can be classified as an act of persecution as defined by Article 9 (1)
of the asylum qualification directive. The Federal Administrative Court held
that this was not case for the Pakistani citizen.

Article 11: Freedom of expression and information

The right to freedom of expression
for everyone is guaranteed in Article 11 (1) of the Charter. This right
includes freedom to hold opinions and to receive and impart information and
ideas without interference by public authority and regardless of frontiers. Article
11 (2) ensures respect for freedom and pluralism of media.

Policy

In order to address the growing number of
calls for the European Commission to intervene with regard to media freedom
and pluralism, an independent expert group was tasked to explore challenges
and make recommendations. In January 2013 this High Level Group on Media
Freedom and Pluralism presented 30 recommendations addressed to the European
Union institutions, Member States and relevant stakeholders. Subsequently,
public consultations on the report were launched with a view to seek opinions
of different stakeholders on the recommendations. Levels of support varied
according to the topics, the type of respondent and their geographical origin.
Generally, citizens showed more enthusiasm for stepping up activities by the
European Union in support of media pluralism. Member States and media
organisations were more reluctant[68].

Furthermore, the feedback from a specific consultation
on independence of audio-visual regulators very strongly supported the need for
EU legislative action to ensure independence of the national regulators and
formalisation of cooperation between audio-visual regulators.

The importance of media freedom and
pluralism was recognised in the Council Conclusions[69] in
November 2013. The European Commission is working on the follow up to the
invitations addressed to it by the Council.

                Case law

The case C-283/11 Sky Österreich v ORF[70] concerned
compensation available to holders of exclusive broadcasting rights to
events of high public interest in those cases, where other broadcasters
seek access to short extracts for news reporting purposes. The European Court of
Justice found that the arrangement under review fairly balanced the competing
interests of the holder of exclusive broadcasting rights against the general
interests in receiving information and promoting pluralism of the media, as
guaranteed by Article 11 of the Charter.

In a number of cases[71]
concerning broadcasting of events of major interest to society, namely
football matches, the Court found that Article 14 of the relevant Audio-visual
Media Services Directive[72],
appropriately restricted the right of property in the general interests of the
freedom to receive information and ensuring wide public access to coverage of
major events. Any necessity for the General Court to consider less invasive applications
of that provision capable of attaining its objective (than the decisions having
originally given rise to the proceedings before it), was held to exist only where
the appellants had successfully established an excessive interference with
their property rights.

The preliminary ruling in case C-234/12 Sky
Italia v AGCOM[73] addressed
the question of whether national rules laying down shorter hourly
advertising limits for pay-TV broadcasters than those set for free-to-air
broadcasters infringed the general principle of equality and the rules of the
TFEU relating to the free movement of services. The Court held that the
national legislature was able, without infringing the principle of equal
treatment, to set such a rule. It is however for the referring court to assess
whether that rule complies with the principle of proportionality.

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

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

Legislation

To promote this right a Directive
modernising the Professional Qualifications Directive was adopted on 20
November 2013 and has entered into force on 17
January 2014.[74] The recast
Directive must be implemented by Member States within two years after entry
into force, by 18 January 2016. It allows EU qualified citizens to obtain the
recognition of their qualifications in order to establish and provide services
in another Member State.

Furthermore, the European Commission
requested Italy to allow third country nationals who are family members of
EU citizens to access public employment to promote the right to engage in
work. As a result, Italy modified its legislation in accordance with EU law.

Article 16: Freedom to conduct a business

The Charter in Article 16 recognises
the freedom to conduct a business in accordance with Union law and
national laws and practices.

Legislation

To promote this
freedom the European Commission had in 2012 made a proposal to modernise the
current rules on cross-border insolvency.[75] During the negotiations, which have made real progress in
2013, the impact on minority creditors in terms of right to an effective remedy
and right to property had been thoroughly considered. Thus the proposal is
aimed at striking a fair balance between promoting the right to conduct a
business on the one hand by and procedural rights of potential debtors on the
other.  The revision of the EU Insolvency Regulation will increase legal certainty,
by providing clear rules to determine jurisdiction, and ensuring that when a
debtor is faced with insolvency proceedings in several Member States, the
courts handling the different proceedings work closely with one another.
Information to creditors will be improved by obliging Member States to publish
key decisions – about the opening of insolvency proceedings, for example, while
strictly respecting the data protection rules.

Case
law

In the case of Schaible[76] the European Court of Justice decided in a preliminary
ruling that an obligation created individual electronic identification for
sheep and goats did not infringe the right to conduct a business. Therefore,
the relevant EU legislation establishing a system for the identification and
registration of ovine and caprine animals was held to be valid. By adopting
such identification measures which were intended to improve prevention of
epizootic diseases, the legislature was held not to have infringed the freedom
of animal keepers to conduct a business or the principle of equal treatment. In
particular these measures were deemed proportional with view to their
objective.

Article 17: Right to property

Article 17 of the Charter protects
the right of everyone 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

In November 2013, the European
Commission submitted a proposal for a Directive on the protection of
undisclosed know-how and business information (trade secrets) against their
unlawful acquisition, use and disclosure[77]. This proposal, seeks to approximate
national legislation to ensure that in case a trade secret is unlawfully
acquired, used or disclosed by another person, the victim has access to a
sufficient and comparable level of redress across the internal market.  The European
Commission paid special attention to fundamental rights in the preparation of
the proposal, in particular the right to property, and also the right to the
respect for private life (Article 7).[78]

Moreover, when preparing the
proposal for a Directive of the European Parliament and of the Council on the
return of cultural objects unlawfully removed from the territory of a Member State[79] , the
right to property was taken into account accordingly.

The European Account Preservation
Order strengthens the right to property and the procedural rights of
potential debtors, such as the right to an effective remedy. In 2011 the European
Commission had proposed a regulation on the subject. On 6 December 2013 the
Council agreed on a general approach on the draft regulation creating a
European Account Preservation Order.[80] The aim of the proposed regulation[81]
is to facilitate cross-border debt recovery by creating a uniform European
procedure leading to the issue of a European Account Preservation order
("Preservation Order"). This European procedure will be available only
to citizens and businesses residing in the participating Member States as an
alternative to national procedures, but will not replace national procedures.
It will apply only to cross-border cases. By way of this new European procedure,
a creditor would be able to obtain a preservation order which would block funds
held by the debtor in a bank account in a member state and thereby prevent the
debtor from dissipating such funds with the aim of frustrating the creditor's
efforts to recover his debt.

UK catch
quota

Vessel
owners or organisations representing vessel owners have at times challenged the
allocation of fishing opportunities by individual Member States before national
courts. A case in point is UK Association of Fish Producer Organisations v.
Secretary of State for Environment, Food and Rural Affairs, a case
decided by a UK court in July 2013. [82]  Importantly, the judgment concerned the redistribution
of national UK catch quota and analysed in detail whether the decision by the
English authorities on the re-distribution of quota was not only in conformity
with national law, but did also respect fundamental rights and principles of EU
law. It analysed, in particular, the right to property, the principle of
legitimate expectations, and the principle and right to non-discrimination. The
ruling explicitly referred to the Charter. The judge deciding the case
concluded that the relevant English authority had acted in conformity with the
latter and EU law in general. (see also below under Article 21 for an analysis
of the case from the angle of the right to non-discrimination)

Article 18: Right to asylum

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

Legislation

As already
mentioned above one of the most important developments in this area is the
establishment of a Common European Asylum System by adoption of the recast
Dublin Regulation and the Reception Conditions Directive.[83] This was further supplemented by the adoption
of the Asylum Procedures Directive.[84] The latter reinforces the guarantees
safeguarding the fundamental right to asylum, in particular by strengthening
the right to access to the asylum procedure, the right of asylum seekers to receive
legal and procedural information free of charge already during the first
instance procedure, it reinforces the provisions on the fundamental right to an
effective remedy, including the rules on the provision of free legal assistance.

Following a European
Commission proposal, the co-legislator adopted a recast Eurodac Regulation[85] , touching upon issues of asylum procedures
and the right to data protection.  The regulation extends the scope permitting
law enforcement access to the Eurodac database under strictly defined
circumstances for the purposes of preventing, detecting or investigating
serious crimes and terrorist offences. The use of Eurodac data for law
enforcement purposes implies a change of purpose of access to the data
processed and constitutes an "interference" with the right to data
protection.  As stipulated by Article 52 (1) of the Charter, any limitation to
the right to the protection of personal data must be provided for by law, must
respect the essence of the right, must be necessary to achieve an objective of
general interest recognised by the Union or to protect the rights and freedoms of
others, and must
be proportionate, i.e. appropriate for attaining the objective pursued and not
going beyond what is necessary to achieve it.

The regulation
provides for a more effective and less intrusive measure for competent law
enforcement authorities to determine if another Member State holds data on an
asylum seeker. Under current rules, Member States' law enforcement authorities
have to contact bilaterally all other Member States participating in Eurodac to
determine if another Member State holds data on an asylum seeker. The current
rules are inefficient and require that law enforcement authorities access more
personal data or data on more persons than is necessary to establish whether
relevant information exists. Therefore, the regulation provides for effective
safeguards that mitigate the limitation of the right to the protection of
personal data.

There are currently
a number of on-going infringement procedures concerning Member States
that have not fully implemented the EU asylum acquis: In 2013 the
European Commission has launched infringement procedures against two Member
States on the Reception Conditions Directive (Directive 2003/9), Asylum
Procedures Directive (Directive 2005/85), the Asylum Qualification Driective
(Directive 2004/83) and the Charter. The European Commission is currently
considering launching further infringement procedures.

Asylum and
immigration as the most relevant policy fields for references to the Charter in
national case law

Out of the 69
national judgements analysed by FRA for the year 2013, the biggest group,
namely 14 judgements, concerned the policy fields of immigration and asylum.
This resembles the findings of last year’s data collection: research into 240
national cases handed down in the recent years revealed that half of them dealt
with asylum and immigration issues.

Case law

In the case MA
and Others v. Secretary of State for the Home Department[86] the
CJEU interpreted the relevant provision of the Dublin Regulation in such a way
that it respects fundamental rights, in particular those guaranteed in Article
24 (2) of the Charter, whereby in all actions relating to children, whether
taken by public authorities or private institutions, the child’s best
interests are to be a primary consideration. In this specific case the CJEU
interpreted the relevant provision to mean that where an unaccompanied minor
with no member of his/her family legally present in the territory of a Member
State has lodged asylum applications in more than one Member State, the Member
State in which that minor is present after having lodged an asylum application
there is to be designated the ‘Member State responsible’.

In the case Bundesrepublik
Deutschland v Kaveh Puid[87], the CJEU interpreted Article
3(2) of the Dublin Regulation and more precisely whether the duty of the Member
States to exercise their right under the first sentence of Article 3(2) results
in an enforceable personal right on the part of the asylum seeker to force a
Member State to assume responsibility, in particular in light of Article 4 of
the Charter. It ruled that where the Member States cannot be unaware that
systemic deficiencies in the asylum procedure and in the conditions for the
reception of asylum seekers in the Member State initially identified as
responsible in accordance with the criteria set out in Chapter III of Council
Regulation (EC) No 343/2003 of 18 February 2003 establishing the criteria and
mechanisms for determining the Member State responsible for examining an asylum
application lodged in one of the Member States by a third-country national
provide substantial grounds for believing that the asylum seeker concerned
would face a real risk of being subjected to inhuman or degrading treatment
within the meaning of Article 4 of the Charter, which is a matter for the
referring court to verify, the Member State which is determining the Member
State responsible is required not to transfer the asylum seeker to the Member
State initially identified as responsible and, subject to the exercise of the
right itself to examine the application, to continue to examine the criteria
set out in that chapter, in order to establish whether another Member State can
be identified as responsible in accordance with one of those criteria or, if it
cannot, under Article 13 of the Regulation. Conversely, in such a situation, a
finding that it is impossible to transfer an asylum seeker to the Member State
initially identified as responsible does not in itself mean that the Member
State which is determining the Member State responsible is required itself,
under Article 3(2) of Regulation No 343/2003, to examine the application for
asylum.

In Shamso
Abdullahi v Bundesasylamt[88], the CJEU ruled that Article 19(2) of
Council Regulation (EC) No 343/2003 must be interpreted as meaning that, in
circumstances where a Member State has agreed to take charge of an applicant
for asylum on the basis of the criterion laid down in Article 10(1) of that
regulation – namely, as the Member State of the first entry of the applicant
for asylum into the European Union – the only way in which the applicant for
asylum can call into question the choice of that criterion is by pleading
systemic deficiencies in the asylum procedure and in the conditions for the
reception of applicants for asylum in that Member State, which provide
substantial grounds for believing that the applicant for asylum would face a
real risk of being subjected to inhuman or degrading treatment within the
meaning of Article 4 of the Charter of Fundamental Rights of the European
Union.

On 7 November 2013,
the CJEU ruled on preliminary questions referred to it by the Dutch Council of
State.[89]
 The applicants in the three joined cases brought an appeal against the
decision of the Minister for Asylum and Immigration in which their request for
a residence permit was declined. The applicants claimed that they feared
persecution in their countries of origin on account of their homosexuality. The
national court asked the CJEU (1) if Article 10(1)(d) of Directive 2004/83/EC
on asylum qualification must be interpreted as meaning that homosexuals may be
regarded as being members of a particular social group, (2) whether Article
9(1)(a) of the Directive, read together with Article 9(2)(c) thereof, must be
interpreted as meaning that the mere fact that homosexual acts are criminalised
and accompanying that criminalisation with a term of imprisonment is an act of
persecution and (3) whether a distinction must be made between homosexual acts
which fall within the scope of the directive and those which do not. The CJEU
decided that the existence of criminal laws, which specifically target
homosexuals, supports the finding that those persons form a particular social
group which is perceived by the surrounding society as being different.
Furthermore the CJEU ruled that the criminalisation of homosexual acts per se
does not constitute an act of persecution. However, a term of imprisonment
which sanctions homosexual acts and which is actually applied, must be regarded
as being a punishment which is disproportionate or discriminatory and thus
constitutes an act of persecution. The CJEU then stated that only homosexual
acts which are criminal in accordance with the national law of the Member
States are excluded from the scope of Directive 2004/83/EC.

Already before this judgment of the
CJEU was issued, the German Higher Administrative Court of Baden-Württemberg
decided on a similar case[90]. It came to the same conclusion,
stating that a homosexual belongs to a 'social group' for the purpose of the
asylum qualification directive. It held that this sexual orientation
is a part of a person's sphere of privacy which is protected under Article 8
ECHR and Article 7 of the Charter, both of which needed to be taken into
account when interpreting the relevant EU directive and national law. Yet it
held that in the particular case the country of origin did not practice a
persecution of that group. Thus, it had to be decided on the basis of the
individual circumstance of the case if the applicant in the concrete case would
face persecution in his country of origin if he were to be returned there. This
the court answered in the affirmative.

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

The Charter in Article 19 prohibits
removal, expulsion or extradition to a State where there is a serious risk that
an individual would be subject to the death penalty, torture, or other inhuman
or degrading treatment or punishment.

Legislation

Following
the CJEU's annulment of Council Decision 2010/252/EU on surveillance of the sea
external borders,[91] the European Commission presented a new Proposal
for a Regulation establishing rules for the surveillance of the external sea
borders in the context of operational cooperation coordinated by Frontex[92]. As
already indicated above,[93] This European
Commission proposal provides that any measures taken during surveillance
operations must be in full respect of fundamental rights and the principle of
non-refoulement.

Laws that criminalise ‘irregular
entry and/or stay’, in different forms exist in the majority of Member
States. Neither the Return Directive nor any other EU legal instrument prevent
Member States from considering irregular entry and/or stay as a criminal
offence under their national criminal law. However, several ECJ judgments have
limited and constrained Member States’ ability to keep returnees in prison as a
consequence of this[94]. These
rulings have resulted in a wide range of changes to national legislation in the
countries examined and several Member States have recently changed their
legislation as a consequence of this jurisprudence. The European Commission is
following the situation closely and has already launched EU Pilot procedures
against certain Member States.

International agreements

Ensuring respect
for human rights – including those enshrined in the Charter and the 1951 Geneva
Convention in the implementation of EU Readmission Agreements (EURA) -
is considered of utmost importance by the European Commission, as outlined in
its Communication to the European Parliament and the Council on the Evaluation
of EU Readmission Agreements[95]. The
Return Directive and the Asylum Procedures Directive contain clear safeguards on
access to the asylum procedure and the protection of the non-refoulement
principle, and EURAs cannot be applied in violation of these guarantees. Without
questioning the applicability of the current EU acquis and other
relevant international instruments (which must always be observed during the
implementation of EURAs), the European Commission has proposed several flanking
measures which would further ensure the full respect of human rights of
returnees. In response to the Stockholm programme, the European Commission
proposed 15 recommendations addressing the implementation and negotiation of
EURAs as well as the further strengthening of human rights guarantees of
readmitted persons.

As a result, the latest EURAs
contain new provisions, in particular the Agreement with Armenia – which
was signed on 19 April 2013 and entered into force on 1 January 2014 – and the Agreement
with Azerbaijan, which was signed on 28 February 2014. A new article was
added on ‘fundamental principles’, which ensures respect for the human rights
of persons in the readmission procedure, and safeguards the treatment of
persons in accordance with relevant international obligations after their
readmission. This provision also stipulates the priority that voluntary return
should enjoy over forced return. A suspension clause has been added to the
final provisions of these agreement that, although formulated neutrally, would
allow for unilateral suspension of the Agreement in case of a deterioration
over a protracted period of the overall human rights situation in a third
country. Finally, the European Commission has together IOM and UNHCR developed
a pilot project introducing a post-return monitoring mechanism in selected
third countries (Pakistan and Ukraine), which has started
operations to monitor the well-being of persons after being returned under an
EURA (own nationals as well as third country nationals and stateless persons).

Case law

The CJEU in case G and R[96]
expressly confirmed that the rights of the defence referred to in
Article 41 (2) of the Charter (the right to be heard and the right to have
access to the file) must be observed when taking decisions under the Return Directive
even where this Directive does not expressly provide for such a procedural
requirement. In this context the CJEU clarified that not every irregularity in
the observation of the rights of the defence brings about the annulment of the
decision.

Ruling of the
Federal Administrative Court of Germany[97]

In this case an
Afghan citizen applied for asylum in Germany, because he feared discrimination
in his home country. The Federal Administrative Court decided that the national
relevant law, providing that a foreigner must not be deported to a state in
which he is facing threat of torture, inhumane or humiliating treatment or
punishment, must be interpreted in line with EU Directive 2011/95/EU (the Asylum
Qualification Directive), Article 3 of the ECHR and Article 19 of the Charter.
The Federal Administrative Court repealed the judgment of the Mannheim Higher Administrative Court since it referred to the region of Kabul to determine
whether there is an armed conflict at the destination of the applicant and did
not refer to the native region of the applicant.

3. Equality

As in the previous years, the
year 2013 witnessed a number of serious incidents of racism and xenophobia
in the EU, including racist and xenophobic hate speech and violence against
Roma and immigrants. The majority of Member States have provisions penalising
incitement to racist and xenophobic violence and hatred, but these do not
always seem to fully transpose the offences covered by the Framework Decision
2008/913/JHA on combating certain forms and expressions of racism and
xenophobia by means of criminal law.

Data collected by the EU
Fundamental Rights Agency (FRA) on Jewish people's experiences and
perceptions of hate crime has revealed that one third of the respondents
(33 %) experienced some form of anti-Semitic harassment in the five years
before the survey, while one quarter (26 %) encountered such harassment in the
12 months before the survey, and that on average, minorities are victims of
assault or threat more often than the majority population.

Regarding the inclusion of
the Roma, the Council has adopted a recommendation on effective Roma
integration measures in the Member States. It is the first ever EU-level legal
instrument for Roma inclusion. It reinforces the EU Framework for national Roma
integration strategies agreed by all Member States in 2011 and gives specific
guidance to help Member States strengthen and accelerate their efforts in order
to bridge the gaps between the Roma and the rest of the population.

Results of the FRA LGBT
survey have provided valuable evidence of how LGBT persons in the EU and Croatia experience bias-motivated discrimination, violence and harassment in different
areas of life, including employment, education, healthcare, housing and other
services.

The European Commission
launched an infringement procedure against Finland concerning
inadequacies relating to the country’s national equality body, which all Member
States are required to set up under Directive 2000/43/EC (the Racial Equality Directive).

The European Commission has
proposed a Directive on procedural safeguards for children suspected or
accused in criminal proceedings, which is to ensure that children have
mandatory access to a lawyer at all stages of criminal proceedings.

The Social Investment Package[98]
and its accompanying Recommendation on Investing in Children: breaking the
cycle of disadvantage calls on Member States to step up early, preventative
social investments targeting children to ensure that children are given the
best start in life and to make sure that children are not locked into a life of
disadvantage. To support its
implementation, the European Commission has also created a European Platform
for investing in Children which collects and disseminates evidence- based good
practices in such areas as or parental support, or early childhood education
and care.

The European Commission
engaged with all relevant stakeholders on how to support integrated child
protection systems through the implementation of the EU Agenda during the 8th
Forum on the Rights of the child. It has also set up an informal Member State expert group as a further step towards enhanced cooperation and dialogue
with stakeholders.

In the joined cases Ring
and Skouboe Werg, the CJEU interpreted Council Directive 2000/78/EC
establishing a general framework for equal treatment in employment and
occupation in the light of Article 1 UN Convention on the Rights of Persons
with Disabilities and adopted a broad interpretation of the concept of
disability provided in the Directive.

In the IBV case, the CJEU held that the Charter and the
principle of non-discrimination as enshrined in its Article 21 apply to a
Belgian support scheme for renewable energy (biomass).

Article 21: Non-discrimination

The Charter prohibits any discrimination
based on any ground such as sex, race, colour, ethnic or social origin, genetic
features, language, religion or belief, political or any other opinion,
membership of a national minority, property, birth, disability, age or sexual
orientation. The Charter also prohibits discrimination on grounds of
nationality, within the scope of application of the Treaties and without
prejudice to any of their specific provisions. Discrimination based on racial
or ethnic origin is a violation of the principle of equal treatment and is
prohibited in the workplace and outside the workplace. In the area of
employment and occupation, EU legislation prohibits discrimination on grounds
of religion or belief, disability, age or sexual orientation.

Legislation

The Irish Presidency continued the
discussions in the Council working group on the European Commission's Proposal
for an Equal Treatment Directive, prohibiting discrimination on grounds of
religion or belief, disability, age or sexual orientation also outside the area
of employment and occupation[99]. Its work
focused on the scope of the Directive, providing a definition of the wording
'access to' in this context as opposed to the concept of 'eligibility' (as the
setting of eligibility criteria in the area of education and social protection
remains in exclusive Member State competence). The Presidency also worked on
the definition of 'reasonable accommodation' for people with disabilities,
discrimination 'by association', and preferential pricing for certain age groups.
The aim is to improve the text at technical level, as long as no political
compromise is in sight.

Negotiations for a Directive on
improving the gender balance among non-executive directors of companies
listed on the stock exchange are on-going[100].
On 20 November 2013 the European Parliament adopted its first reading report on
the proposed Directive[101] by a vast majority of its members,
confirming a broad consensus on the objective of increasing women's
representation on corporate boards and largely endorsing the European
Commission's approach to redressing the current imbalance.[102] The
European Commission also adopted on 13 April 2013 a Proposal for a Directive
amending Council Directives 78/660/EEC and 83/349/EEC as regards disclosure of
non-financial and diversity information by certain large companies and groups.
This proposal would oblige companies to disclose their diversity policies for
their administrative, management and supervisory bodies with regard to aspects
such as age, gender, geographical diversity, educational and professional
background. It only applies to large companies listed on the stock exchange. A
political compromise was reached by the European Parliament and Council on 26
February and the Parliament will likely adopt the measure in April 2014.

The European
Commission also ensures that its legislative proposals under negotiation in
2013, such as the Proposal for a Council Regulation on jurisdiction, applicable
law and the recognition and enforcement of decisions in matters of matrimonial property
regimes and the Proposal for a Council Regulation on jurisdiction, applicable
law and the recognition and enforcement of decisions regarding the property
consequences of registered partnerships comply with the principle of equal
treatment of same sex couples.[103]

Furthermore, the European
Commission continued monitoring the transposition and implementation of the Framework
Decision 2008/913/JHA on combating certain forms and expressions of racism and
xenophobia by means of criminal law, which all Member States were obliged
to transpose into their national legislation by 28 November 2010. By the end of
2013 all Member States had notified their national implementing measures to the
European Commission. The European Commission finalised its assessment of the
notifications and prepared a report on Member States' compliance with the
Framework Decision, which was adopted on 27 January 2014, honouring
International Holocaust Remembrance Day.

The report
concludes that a number of Member States have not transposed fully and/or
correctly all the provisions of the Framework Decision, namely in relation to
the offences of denying, condoning and grossly trivialising certain crimes. The
majority of Member States have provisions on incitement to racist and xenophobic
violence and hatred but these do not always seem to fully transpose the
offences covered by the Framework Decision. Some gaps have also been observed
in relation to the racist and xenophobic motivation of crimes, the liability of
legal persons and jurisdiction. The European Commission therefore considers
that the full and correct legal transposition of the existing Framework
Decision constitutes a first step towards effectively combating racism and
xenophobia by means of criminal law in a coherent manner across the EU. Since
infringement procedures for Framework Decisions are not possible before 1
December 2014, the European Commission will engage in bilateral dialogues with
Member States during 2014 with a view to ensuring full and correct
transposition of the Framework Decision, giving due consideration to the
Charter.

The European Commission has also shown that
it is strict and serious about the full and correct implementation of the
provisions of Directive 2000/43/EC (the Racial Equality Directive) relating to
equality bodies and that it pays importance to the well-functioning of these
equality bodies. It has issued a reasoned opinion to Finland in the second stage of the infringement procedure concerning inadequacies
relating to the country’s national equality body, which all Member States are
required to set up under Directive 2000/43/EC. EU anti-discrimination rules
make it obligatory for Member States to establish a national equality body
tasked with providing independent assistance in pursuing complaints to victims
of discrimination, as well as monitoring and reporting on discrimination. National
equality bodies are crucial, in particular for the proper enforcement of the
Directive and to ensure protection for victims of discrimination. It is
essential that the national equality bodies actually carry out all the tasks
required by the Directive. The European Commission considers that Finnish law
currently fails to designate any equality body responsible for addressing cases
of racial or ethnic discrimination in employment. The European Commission is
therefore calling on Finland to bring its rules in line with EU requirements to
ensure victims of discrimination can receive proper assistance.

A case of discrimination in
relation to the disbursement of rural development payments, can be found in
the provisions of Polish legislation, stipulating that farming spouses should
be given one single identification number, regardless of whether the spouses
co-own and jointly run farm holdings or not. As a result of this, only the
spouse who has been registered in the system can apply for direct payments and
rural developments payments. The European Commission considered that the Polish
legislation is not in line with Article 40(2) TFEU concerning the equal
treatment of agricultural producers. In addition, it considered the legislation
to be contrary to Article 21 of the Charter, and to every active agricultural
producer's right to receive payments according to Regulation (EC) No 73/2009
and the rights for farmers to receive rural development subsidies according to
Regulation (EC) No 1698/2005. The Polish authorities agreed to add a provision
to the Act on the National Registration System, which will allow spouses owning
a farm to be issued an identification number.

In November 2013, the European
Commission has formally closed the infringement procedures launched against Hungary on 17 January 2012 over the country’s forced early retirement of around 274
judges and public prosecutors[104]. This had been caused by a sudden
reduction in the mandatory retirement age for these professions from 70 to 62.
Following the European Commission’s legal action, the CJEU upheld the European
Commission's assessment[105] that
the change was incompatible with Directive 2000/78/EC which prohibits discrimination
at the workplace on grounds of age. Following calls by the European Commission
for Hungary to comply with the judgment as soon as possible, the country took
the necessary measures and adopted changes to its law. The European Commission
is now satisfied that Hungary has brought its legislation in line with EU law.
A new law adopted by the Hungarian Parliament on 11 March 2013 lowers the
retirement age for judges, prosecutors and notaries to 65 over a period of 10
years, rather than lowering it to 62 over one year, as before. This aligns it
with the general retirement age of 65. The new law also provides for the right
for all judges and prosecutors who had been forced to retire before to be
reinstated in their posts, with no need to bring a case to court. Moreover,
they will be compensated for remuneration lost during the period they were not
working. The European Commission has closely monitored the correct
implementation of the new legislation in practice.

Infringement procedures were
initiated against Italy for non-conformity with Directive 2006/54/EC
on
the implementation of the principle of equal opportunities and equal treatment
of men and women in matters of employment and occupation (recast). Italian
Law No 214 of 22 December 2011 implementing that directive establishes a
different number of years of financial contributions after which men and women
are entitled to an early retirement pension. Under Directive 2006/54/EC it is
not allowed to set a different retirement age and different conditions for men
and women in order to get an occupational pension. These infringement procedures
against Italy are based on hundreds of individual complaints.

A letter of formal notice was sent
to Czech Republic
in a case concerning the non-conformity of the Czech Employment Act with
Directive 2000/78/EC on Employment Equality, due to the prohibition on
employment agencies from assigning disabled people to temporary work. The
Directive provides that there shall be no discrimination on grounds of
disability. The European Commission was of the opinion that the prohibition in
the Czech law effectively excludes all disabled people from a sector of the
labour market irrespective of the type of activity and the nature of the
disability. Consequently, the Czech Employment Act was held to directly
discriminate against disabled people and considered to be in breach of the
Directive.

Policy

The European
Commission has supported work to promote equal rights for all groups at risk of
discrimination through its PROGRESS funding programme. PROGRESS is the EU's
employment and social solidarity programme. With regard to Justice policies,
PROGRESS covers both gender equality and tackling discrimination themes.[106]

Manifestations
of intolerance, racism and xenophobia in the EU

The year 2013, as
in the previous year, witnessed a number of serious incidents of racism and
xenophobia in the EU, including racist and xenophobic hate speech and
violence against Roma and immigrants.

The European
Commission received a considerable amount of parliamentary questions on
racism, xenophobia and anti-Semitism, which underlines the need for the
Member States to step up their efforts to tackle these problems. The issues
brought to the attention of the European Commission included, in particular, alleged
xenophobic violence against ethnic minorities and immigrants, racism and
xenophobia against certain minorities as well as the statements and actions of
certain extremist political parties and organisations. In reply to these
concerns, the European Commission reaffirmed its commitment to fight against
racism and xenophobia by all means available under the Treaties and recalled
the responsibility of the Member States' authorities to effectively implement
the EU legislation prohibiting racist or xenophobic hate speech and hate crime
based on a racist or xenophobic motivation.

This year's Fundamental
Rights conference, organised by the FRA in cooperation with the Lithuanian
Presidency gave participants the opportunity to look into the situation on the
ground and to examine the effectiveness of existing legal and practical tools
for fighting hate crime. The conference brought together around 400
participants from EU institutions and agencies, international organisations,
national governments and parliaments, law enforcement, civil society and more.
On 11 November 2013, FRA brought together 30 participants at a stakeholder
meeting to discuss ways forward in combating anti-Semitism in the EU following
its 8 November publication of its report on Discrimination and hate crime
against Jews in the EU Member States – experiences and perceptions of
anti-Semitism. The European Commission actively participated in both events.

The 7th
seminar between the European Commission and the State of Israel on the Fight
against Racism, Xenophobia and Anti-Semitism was held in December 2013,
together with the 6th meeting of the Expert Group on Framework
Decision 2008/913/JHA. The FRA presented the results of its survey on
discrimination and hate crime against Jews in certain EU Member States, which
shows worrisome figures on anti-Semitic incidents as perceived and experienced
by victims. The Member States were reminded of the crucial importance of the
correct implementation and application of the Framework Decision. The Israeli delegation
reported on the outcome of the 4th Global Forum on the fight against
anti-Semitism that took place in Jerusalem in May 2013. The main discussion
focused on online hate speech and anti-Semitism, and human rights and Holocaust
remembrance training were also discussed.

The data collected
by the EU Agency for Fundamental Rights shows that racism, discrimination,
extremism and intolerance currently pose a great challenge for the EU:

The survey on
Jewish people's experiences and perceptions of hate crime has revealed that
one third of the respondents (33 %) experienced some form of anti-Semitic
harassment in the five years before the survey, while one quarter (26 %)
encountered such harassment in the 12 months before the survey. Almost half (46
%) of the respondents worry about becoming the victim of an anti-Semitic verbal
insult or harassment in the 12 months following the survey, while one third (33
%) fear a physical attack in the same period. Close to one quarter (23 %) of
the respondents said that they at least occasionally avoid visiting Jewish
events or sites because they would not feel safe there, or on the way there, as
a Jew. Over one quarter of all respondents (27 %) avoid certain places in their
local area or neighbourhood at least occasionally because they would not feel
safe there as a Jew. Over half of all survey respondents (57 %) heard or saw
someone claiming that the Holocaust was a myth or that it had been exaggerated
in the 12 months before the survey. Notwithstanding these figures, almost two
thirds (64 %) of those who experienced physical violence or threats of violence
did not report the most serious incident to the police or to any other
organisation. Three quarters (76 %) of the respondents who experienced
anti-Semitic harassment in the past five years did not report the most serious
incident. More than four in five (82 %) of those who said that they felt
discriminated against in the 12 months before the survey because they are
Jewish did not report the most serious incident. About half of the respondents,
are not aware of the legislation that protects Jewish people from
discrimination[107].

The FRA has also
examined the responses of Greece and Hungary to racism, discrimination,
extremism and intolerance given the significant parliamentary presence of
political parties standing for and promoting an extremist ideology that
particularly targets irregular migrants (in Greece) and the Roma and Jews (in
Hungary), and which are either themselves or have links to paramilitary
organisations committing racially motivated acts of violence. These countries
are also taken as case studies to demonstrate the need for more targeted and
effective measures to combat these phenomena throughout the EU. According to the
report, although the EU and its Member States already have strong legislation
in place to fight racism, intolerance and extremism, greater efforts are needed
to ensure effective implementation. In addition, more needs to be done,
particularly at local level, to foster social cohesion and increase trust in
the police and other law enforcement authorities[108].

The FRA assessed
the impact of Framework Decision 2008/913/JHA on the rights of the victims of
crimes motivated by hatred and prejudice, including racism and xenophobia. The
Opinion illustrates how hate crime can vary from everyday acts committed by
individuals on the street or on the Internet, to large-scale crimes carried out
by extremist groups or totalitarian regimes[109].

                                EU
Framework for National Roma Integration Strategies

Major progress has
been achieved in 2013 on making the common EU approach in tackling the
exclusion of Roma from our societies operational.

In June 2013, the European
Commission assessed progress made in the Member States on the five
preconditions for a successful implementation of national Roma integration
strategies and measures. These conclusions[110] have
allowed formalising the shift of the European and national paradigm towards the
local level, where major bottlenecks regarding Roma integration are situated.

This shift was
reflected at the second meeting (on 7-8th March 2013) of the National Roma
Contact Points where prominent attention was paid to the EU funding and
coordination mechanisms that may support local and regional authorities when
meeting the challenge of Roma integration. The third meeting (on 30th September
and 1st October 2013) included a full session on exchanges on possible
solutions to the challenges met by local and regional authorities when dealing,
on the one hand, with Roma coming from other EU Member States and settling on
their territory and, on the other hand, with native Roma and travellers (who
have not experienced intra-EU migration). Representatives from local and
regional authorities participated in both meetings.

The conclusions
from the European Commission's assessment of progress also allowed to identify
a number of issues needing a stronger commitment from the Council in order to
ensure that the strategies are operational and are well implemented, based on
the European Commission's recommendations on effective Roma integration
measures in the Member States[111].

The European
Commission strengthened its dialogue with civil society and the Roma
themselves, including at the highest decision-making levels (such as a
meeting of Vice-President Reding and European Commissioner Andor with civil
society representatives on 14th May 2013) and the Roma Platform on 26th June
2013 gave a prominent visibility and role to the Roma and their
representatives.

Members of the
European Parliament have maintained their strong involvement in the process.
The European Commission has received several written questions all through the
year concerning Roma integration and possible discrimination. The European
Commission participated in the Hearing organised in the European Parliament on
the EU Framework for national Roma integration strategies, but also in the
debates regarding the possible adoption of a Motion on Gender aspects of the EU
Framework for national Roma integration strategies.

On 9 December 2013,
with the adoption of the Council recommendation on effective Roma integration
measures in the Member States[112], all 28 EU Member
States committed to implementing a set of recommendations, proposed by the European
Commission, to step up the economic and social integration of Roma communities.
The Council recommendation is the first ever EU-level legal instrument[113] for
Roma inclusion and it gives specific guidance to help Member States strengthen
and accelerate their efforts in order to bridge the gaps between the Roma and
the rest of the population. It reinforces the EU Framework for national Roma
integration strategies agreed by all Member States in 2011. Based on European
Commission reports on the situation of the Roma over recent years, the Council
recommendation focuses on the four areas where EU leaders signed up to common
goals for Roma integration under the EU Framework for national Roma integration
strategies: access to education[114], employment,
healthcare and housing. To put in place targeted actions, it asks Member States
to allocate not only EU but also national funds to Roma inclusion.

Fight
against homophobia

In light of a lack
of comparable data on the respect, protection and fulfilment of the fundamental
rights of lesbian, gay, bisexual and transgender (LGBT) persons, the FRA
launched in 2012 its EU online survey of LGBT persons’ experiences of
discrimination, violence and harassment, of which the results were
published in May 2013[115]. The
survey results provide valuable evidence of how LGBT persons in the EU and Croatia experience bias-motivated discrimination, violence and harassment in different
areas of life, including employment, education, healthcare, housing and other
services. The findings show that many hide their identity or avoid locations
because of fear. Others experience discrimination and even violence for being
LGBT. Most, however, do not report such incidents to the police or any other
relevant authority. The report assisted the EU institutions and the Member
States in identifying the fundamental rights challenges faced by LGBT people
living in the EU and Croatia. Basing itself on the results of the survey, the European
Commission brought together interested Member States to discuss existing best
practices in those areas identified in the survey as most problematic and to
discuss appropriate policy responses to address the needs of LGBT persons and
ensure the protection of their fundamental rights.

The European
Commission sponsored and provided policy support to the initiative of the
French government to host the regional UN conference on LGBT rights for Europe, in March 2013. The event aimed at raising awareness at the highest level about the
violations of fundamental rights of LGBT people, the need to fight
discrimination and violence grounded in sexual orientation and the need to
reinforce cooperation with civil society.

Questions were
raised regarding the critical situation in Lithuania where the government banned
the Pride parade in June 2013 and has tabled several legislative proposals
which would impair the rights of LGBT persons. The European Commission is
committed to combating homophobia and discrimination based on sexual
orientation within the limits of the powers conferred on it by the Treaties.

Rights
of persons belonging to minorities

The respect of the rights
of persons belonging to minorities is one of the founding values of the EU
and is explicitly mentioned in Article 2 of the Treaty on European Union.
Articles 21 and 22 of the Charter prohibit discrimination based on membership
of a national minority and provide for the respect by the Union of cultural,
religious and linguistic diversity. However, the EU has no general powers as
regards minorities, in particular, over matters concerning the definition of a
national minority, the recognition of the status of minorities, their
self-determination and autonomy, or the regime governing the use of regional or
minority languages. It is therefore up to the Member States to use all legal
instruments available to them in order to guarantee that fundamental rights of
minorities living on their territories are effectively protected in accordance
with their constitutional order and obligations under international law,
including the relevant instruments of the Council of Europe. For instance,
monitoring the application of the Framework Convention for the Protection of
National Minorities[116] as well
as of the European Charter for Regional or Minority Languages[117] by its
States Parties, falls within the mandate of the Council of Europe.

At the same time,
EU legislation addresses certain difficulties affecting persons belonging to
minorities, such as discrimination and incitement to violence or hatred
based on race or national or ethnic origin, via a number of programmes or
legislative measures.[118] Directive 2000/43/EC establishes a
binding legislative framework prohibiting discrimination based on grounds of
racial or ethnic origin in the areas of employment and training, education,
social protection (including social security and healthcare), social advantages
and access to goods and services (including housing). This Directive has been
transposed into the legal order of every Member State and the European
Commission ensures proper implementation. In addition, the European Commission
supports projects related to regional and minority languages through a variety
of programmes, including in areas such as education and training, culture and
youth support. In particular, the Lifelong Learning Programme finances projects
to promote language learning and linguistic diversity, either through the
different sub-programmes (Comenius, Erasmus, Leonardo da Vinci or Grundtvig) or
through its transversal programme (key activity 2 ‘Languages’).

Case law

In the case of
homophobic statements by the patron of a football club[119], ruling
out the recruitment of a footballer presented as being homosexual, the CJEU
held that the rules on sanctions put in place in order to transpose the
provisions of Directive 2000/78/EC on equal treatment in employment and
occupation into the national law of a Member State must ensure real and
effective legal protection of the rights deriving from it. The severity of the
sanctions must be commensurate to the seriousness of the breaches for which
they are imposed, in particular by ensuring a genuinely dissuasive effect. A
purely symbolic sanction cannot be regarded as being compatible with the
correct and effective implementation of Directive 2000/78/EC. Therefore the
CJEU requested the referring court to ascertain the appropriateness of the
sanction in the case at stake, which consisted in a simple warning only. The
CJEU held that national rules are not in line with Directive 2000/78/EC if
these national rules, in cases, where there is a finding of discrimination on
grounds of sexual orientation within the meaning of Directive 2000/78/EC, allow
to impose a warning only, without sanctioning the discrimination under
substantive and procedural conditions that render the sanction effective,
proportionate and dissuasive.

In 2013, the CJEU
has further developed its case law on the prohibition of discrimination on
the ground of age. The fact that the CJEU in its case law on age
discrimination explicitly refers to Article 21 of the Charter, which contains
the prohibition of any discrimination on ground of age, is to be welcomed. In
the case HK Danmark v Experian A/S[120], a
request for a preliminary ruling from a Danish court on the interpretation of
Council Directive 2000/78/EC, the question of the lawfulness of the
occupational pension scheme operated by Experian was at stake. Experian had
namely set up a pension scheme with different applicable rates according to
different age categories, and argued that pension schemes are not covered by
the prohibition of discrimination on the grounds of age, as laid down by the
Danish Anti-Discrimination Law. The CJEU held, however, that these pension
schemes are covered by the said legislation. It concluded that the principle of
non-discrimination on grounds of age, enshrined in Article 21 of the Charter
and given specific expression by Directive 2000/78/EC, must be interpreted as
allowing an occupational pension scheme under which an employer pays, as part
of pay, pension contributions which increase with age, provided that the
difference in treatment on grounds of age that arises therefrom is appropriate
and necessary to achieve a legitimate aim, which it is for the national court
to establish.

Another Danish age
discrimination case Toftgaard[121], is a
case on the refusal to grant availability pay to civil servants who have
reached the age of 65 and are entitled to a pension. The Danish Law on Civil
Servants foresees a system of “rådighedsløn” (availability pay), under which a
civil servant may, as special protection in the event of dismissal on grounds
of redundancy, retain his current salary for three years and continue to be
credited for years of pensionable service, provided he remains available for
assignment to another suitable post. Mr Toftgaard was not granted availability
pay as he had reached the age of 65 and was entitled to a pension. The CJEU
held that Directive 2000/78/EC must be interpreted as precluding a national
provision under which a civil servant who has reached the age at which he is
able to receive a retirement pension is denied, solely for that reason,
entitlement to availability pay intended for civil servants dismissed on
grounds of redundancy.

Not only the Danish
retirement scheme was under scrutiny by the CJEU regarding its compliance with
the Charter, but also the Czech retirement scheme, and more particularly the early
retirement support in the agricultural sector. In the Soukupova case[122],
a case referred to the CJEU by the Czech Supreme Administrative Court, the CJEU
held that in implementing Council Regulation (EC) No 1257/1999 of 17 May 1999
on support for rural development from the European Agricultural Guidance and
Guarantee Fund ('EAGGF') Member States are required, pursuant to Article 51 (1)
of the Charter, to respect the principles of equal treatment and
non-discrimination, enshrined in Articles 20, 21 (1) and 23 of the Charter.
Member States, when granting early retirement support in the agricultural
sector, financed by the EAGGF, may not rely on the difference in treatment that
they are authorized to retain when defining retirement age in the field of social
security. On the contrary, in the context of early retirement support for
elderly farmers, Member States are required to ensure equal treatment between
women and man, and, thereto, to prohibit any discrimination on grounds of
gender. In the present case, the difference in treatment by the Czech
authorities, consisting in the determination, depending on the gender or number
of children, of the age from which that support may no longer be claimed, could
not be objectively justified and thus amounted to a violation of the Charter.[123]

In the case Industrie
du bois de Vielsalm & Cie (IBV) SA v Région wallonne[124] of 26
September 2013, the Belgian Constitutional Court had submitted a reference for
a preliminary ruling on whether the granting of a larger number of green
certificates to cogeneration plants processing principally forms of biomass
other than wood or wood waste is in compliance with the principle of equal
treatment and non-discrimination as enshrined in Articles 20 and 21 of the
Charter. The possibility for setting up national support schemes for
cogeneration and electricity production from renewable energy sources is
foreseen in Article 7 of Directive 2004/8 and Article 4 of Directive 2001/77/EC
of the European Parliament and of the Council of 27 September 2001 on the
promotion of electricity produced from renewable energy sources in the internal
electricity market. The question arising in this context is whether the setting
up of a grant scheme which gives preferential treatment to cogeneration plants
processing principally forms of biomass, to the detriment of those processing wood
or wood waste is in line with the principle of non-discrimination. The novelty
of the judgment was in the fact that the CJEU for the first time declared that
Member States are implementing EU law in the sense of Article 51 (1) of the
Charter when setting up and regulating these support schemes.

Regarding the
outcome of the case, the CJEU held that, in the present state of European Union
law, the principle of equal treatment and non-discrimination laid down in
particular in Articles 20 and 21 of the Charter does not preclude the Member
States from providing for an enhanced support measure capable of benefiting all
cogeneration plants principally using biomass with the exclusion of
cogeneration plants principally using wood and/or wood waste. The CJEU stressed
the broad margin of discretion allowed to the Member States by Directives
2001/77 and 2004/8 for the adoption and implementation of support schemes
intended to promote cogeneration and electricity production from renewable
energy sources.

Rulings on age
discrimination in France and Germany

In France[125] and Germany[126]  cases were brought to court regarding discrimination
on the basis of age. The French case concerned a national law which provides
that an agent of national electricity and gas industries from 65 to 67 years
old can be retired at the initiative of the employer. The German case concerned
a state regulation on authorized inspectors and official experts providing for an
absolute age limit of 70 years. In both cases the national courts decided that
the age limit constituted age discrimination according to Article 21 of the
Charter, however, the infringement was justified under Article 52 of the
Charter. Article 52 states that fundamental rights can only be limited if this
is provided for by law with respect to the essence of those rights. Subject to
the principle of proportionality, limitations may be made only if they are
necessary and genuinely meet objectives of general interest recognised by the Union or the need to protect the rights and freedoms of others. The French High
Administrative Court decided that the limitation was justified because the
age limit is necessary to promote access to employment through better distribution
between generations. The German Higher Administrative Court decided that the
infringement was justified because of public security.

[1]
Available at: http://eur-lex.europa.eu/LexUriServ/LexUriServ.do?uri=OJ:C:2010:083:0389:0403:en:PDF.

[2]
Available at: http://ec.europa.eu/justice/news/intro/doc/com\_2010\_573\_en.pdf.

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

[4] For more
information, see also the 2013 Annual Report of the European Union Agency for
Fundamental Rights, which is expected to be adopted in June 2014, and which
will be available on the FRA website under "publications and
resources": http://fra.europa.eu/en/publications-and-resources.

[5] In similar form they are guaranteed
by the European Convention of Human Rights.

[6] Document
COM(2014)1 of 14 January 2014, Proposal for a Regulation of the European
Parliament and of the Council amending Council Regulation (EC) No 1236/2005
concerning trade in certain goods which could be used for capital punishment,
torture or other cruel, inhuman or degrading treatment or punishment; available
under:
http://eur-lex.europa.eu/LexUriServ/LexUriServ.do?uri=CELEX:52014PC0001:EN:NOT
.

[7] See also European Commission Regulation
1352/2011 of 20 December 2011.European Commission

[8] European Commission Regulation No 1141/2011
amending Regulation No 272/2009 supplementing the common basic standards on
civil aviation security as regards the use of security scanners at EU airports
Text with EEA relevance, OJ L 293, 11.11.2011, p. 22; European Commission
Implementing Regulation No 1147/2011 amending Regulation No 185/2010
implementing the common basic standards on civil aviation security as regards
the use of security scanners at EU airports Text with EEA relevance; European
Commission Decision 2011/8042/EU of 14 November 2011 addressed to all Member
States; OJ L 294, 12.11.2011, p. 7.

[9] CJEU, Case C-179/11, Cimade and GISTI
, 27.09.2012.

[10] Supreme
Court of the Czech Republic (Nejvyšší soud), case 30 Cdo 3223/2011, J.M. v. The
psychiatric hospital in Bohnice, 14.5.2013.

[11] Directive
2011/92/EU on combating the sexual abuse and sexual exploitation of children
and child pornography, and replacing Council Framework Decision 2004/68/JHA, OJ L 335,
17.12.2011, p. 1.

[12] Directive
2002/98/EC setting standards of quality and safety for the collection, testing,
processing, storage and distribution of human blood and blood components and
amending Directive 2001/83/EC, OJ L 33, 8.2.2003, p. 30.

[13] see:
Council Conclusions on Combating Violence Against Women, and the Provision of
Support Services for Victims of Domestic Violence adopted on 6 December 2012,
available at: http://www.consilium.europa.eu/uedocs/cms\_data/docs/pressdata/en/lsa/134081.pdf.

[14] Proposal
for a Regulation establishing rules for the surveillance of the external sea
borders in the context of operational cooperation coordinated by Frontex
(COM(2013) 197 final), available at: http://eur-lex.europa.eu/LexUriServ/LexUriServ.do?uri=COM:2013:0197:FIN:EN:PDF.

[15] CJEU, Case
C-355/10, Parliament v Council, 05.09.2012.

[16] Regulation
(EC) No 2007/2004 establishing a European Agency for the Management of
Operational Cooperation at the External Borders of the Member States of the
European Union, OJ L 349, 25.11.2004, p. 1.

[17] ECtHR, Hirsi
Jamaa and Others v. Italy [GC], no. 27765/09, 23.02.2012,

[18] Regulation
No 604/2013 establishing the criteria and mechanisms for determining the Member State responsible for examining an application for international protection lodged in
one of the Member States by a third-country national or a stateless person, OJ
L 180, 29.6.2013, p. 31.

[19] Thus,
together with the Directive on common procedures for granting and withdrawing
international protection status (Recast) expressly mention the best interest of
the child principle; for the rights of the child see also below Article 24.

[20] Directive
2013/33/EU laying down standards for the reception of applicants for
international protection, OJ L 180, 29.6.2013, p. 96.

[21] CJEU,
Joined cases C-411/10 and C-493/10, N.S. v. Secretary of State for the Home
Department and M.E. and Others v. Refugee Applications European Commissioner, 21.12.2011.

[22] CJEU,
Case C-648/11, MA and others, 06.06.2013.

[23] For a
more extensive analysis of the case MA and Others and the obligation to
interpret the provisions of the Dublin II Regulation in conformity with Article
24 of the Charter on the Rights of the Child, see below Article 24 under the
section "CJEU jurisprudence".

[24] Available
at: http://eur-lex.europa.eu/LexUriServ/LexUriServ.do?uri=COM:2012:0286:FIN:EN:PDF.

[25] Directive
2011/36/EU on preventing and combating trafficking in human beings and
protecting its victims, and replacing Council Framework Decision 2002/629/JHA,
OJ L 271, 18.10.2011, p. 49.

[26] The
link to the website is: http://ec.europa.eu/anti-trafficking
. The European Commission is funding many projects on trafficking in human
beings. Addressing human trafficking in Europe is a priority under the
financing programme “Prevention of and Fight against Crime” – as part of the
General Programme “Security and Safeguarding Liberties” – (2007-2013). A
targeted call for projects was launched in the summer of 2013 with a deadline
of 31 October.

[27] On the
rights of the child, see below under Article 24.

[28] Available
at: http://ec.europa.eu/anti-trafficking/entity.action?path=EU+Policy%2FRevised\_Draft\_Council\_Conclusions
.

[29] Dublin
Regulation: Regulation (EU) No 604/2013 of 26 June 2013 establishing the
criteria and mechanisms for determining the Member State responsible for
examining an application for international protection lodged in one of the Member
States by a third-country national or a stateless person, OJ L 180, 29.6.2013,
p.31. Article 33 of the Dublin regulation concerns "A mechanism for early
warning, preparedness and crisis management"; Reception Conditions
Directive: Directive 2013/33/EU of 26 June 2013 laying down standards for
the reception of applicants for international protection, OJ L 180, 29.6.2013,
p.96; Asylum Procedures Directive: Directive 2013/32/EU of 26 June 2013
on common procedures for granting and withdrawing international protection OJ L
180, 29.6.2013, p.60; Eurodac Regulation: Regulation (EU) No 603/2013 of
26 June 2013  on the establishment of 'Eurodac' for the comparison of
fingerprints for the effective application of Regulation (EU) No 604/2013
establishing the criteria and mechanisms for determining the Member State
responsible for examining an application for international protection lodged in
one of the Member States by a third-country national or a stateless person and
on requests for the comparison with Eurodac data by Member States' law
enforcement authorities and Europol for law enforcement purposes, and amending
Regulation (EU) No 1077/2011 establishing a European Agency for the operational
management of large-scale IT systems in the area of freedom, security and
justice, OJ L 180 29.6.2013, p.1. The Asylum Qualification Directive was
already adopted in 2011: Directive 2011/95/EU of 13 December 2011 on standards
for the qualification of third-country nationals or stateless persons as
beneficiaries of international protection, for a uniform status for refugees or
for persons eligible for subsidiary protection, and for the content of the
protection granted OJ L 337, 20.12.2011, p.9.

[30]
Following in partiuclar the CJEU case law: CJEU, Joined cases C-92/09 and
C-93/09, Volker und Markus Schecke GbR & Hartmut Eifert v. Land Hessen
& Bundesanstalt für Landwirtschaft und Ernährung, 10.11.2010

[31] See EU European
Commission website on "The Common Agricultural Policy after 2013",
available at:  http://ec.europa.eu/agriculture/cap-post-2013/;
see also: Amendment to the European Commission proposal COM(2011) 628 final/2
for a Regulation on the financing, management and monitoring of the common
agricultural policy, COM(2012) 551 final, http://ec.europa.eu/agriculture/funding/regulation/amendment-com-2012-551\_en.pdf
.

[32] CJEU,
Joined cases C-92/09 and C-93/09, Volker und Markus Schecke GbR &
Hartmut Eifert v. Land Hessen & Bundesanstalt für Landwirtschaft und
Ernährung, 10.11.2010.

[33] Amended
proposal for a Regulation of the European Parliament and the Council on the
European Maritime and Fisheries Fund [repealing Council Regulation (EC) No
1198/2006 and Council Regulation (EC) No 861/2006 and Council Regulation No
XXX/2011 on integrated maritime policy], COM(2013) 245 final.

[34] Council
of the European Union, Amended proposal for a Regulation of the European
Parliament and of the Council on the European Maritime and Fisheries Fund
repealing Council Regulation (EC) No 1198/2006 and Council Regulation (EC) No
861/2006 and Council Regulation No XXX/2011 on integrated maritime policy -
Approval of the final compromise text, Interinstitutional File: 2011/0380
(COD), 6152/14 ADD 1 REV 1, Brussels, 10 February 2014.

[35] See
CJEU, C-305/05, Ordre des barreaux francophones et germanophones,
26.6.2007.

[36] Proposal
for a Council Regulation on jurisdiction, applicable law and the recognition
and enforcement of decisions in matters of matrimonial property regimes,
COM/2011/0126 final. Available at: http://eur-lex.europa.eu/LexUriServ/LexUriServ.do?uri=CELEX:52011PC0126:en:NOT.

[37] Proposal
for a Council Regulation on jurisdiction, applicable law and the recognition
and enforcement of decisions regarding the property consequences of registered partnerships,
COM(2011) 127/2. Available at: http://ec.europa.eu/justice/policies/civil/docs/com\_2011\_127\_en.pdf.

[38] See also
below under Article 21 non-discrimination, and more specifically under the
heading 'Fight against homophiobia'.

[39] Draft
European Parliament legislative resolution on the proposal for a Council
regulation on jurisdiction, applicable law and the recognition and enforcement
of decisions in matters of matrimonial property regimes (COM(2011)0126 –
C7-0093/2011 – 2011/0059(CNS)); available at: http://www.europarl.europa.eu/sides/getDoc.do?type=REPORT&reference=A7-2013-0253&language=EN
.

[40] European
Parliament legislative resolution of 10 September 2013 on the proposal for a
Council regulation on jurisdiction, applicable law and the recognition and
enforcement of decisions regarding the property consequences of registered
partnerships (COM(2011)0127 – C7-0094/2011 – 2011/0060(CNS)) available at: http://www.europarl.europa.eu/sides/getDoc.do?type=TA&language=EN&reference=P7-TA-2013-337.

[41] Amendment
25 to Recital 32 of the Proposal on the Matrimonial Property Regimes; Amendment
29 to Recital 28 of the Proposal on the Property Consequences of Registered
Partnerships.

[42]
Amendment 69 to Article 22 of the Proposal on the Matrimonial Property Regimes;
Amendment 70 to Article 17 of the Proposal on the Property Consequences of
Registered Partnerships.

[43] Joined
Cases T-289/11, T-290/11 and T-521/11, judgment of 6 September 2013, not yet
reported.

[44]
Directive 95/46/EC on the protection of individuals with regard to the
processing of personal data and on the free movement of such data, OJ L 281,
23.11.1995, p.31.

[45] The European
Commission’s package also includes the following other documents:
Report from the European Commission based on Article 29 (2) of the Council
Framework Decision of 27 November 2008 on the protection of personal data
processed in the framework of police and judicial cooperation in criminal
matters (including annex), COM (2012) 12 final,

Available at: http://eur-lex.europa.eu/LexUriServ/LexUriServ.do?uri=COM:2012:0012:FIN:EN:PDF

Impact assessment (including annexes) accompanying the
proposed Regulation and the proposed Directive, SEC (2012) 72 final, Available
at: http://eur-lex.europa.eu/LexUriServ/LexUriServ.do?uri=COM:2012:0011:FIN:FR:PDF

Executive summary of the impact assessment, SEC (2012)
73 final, Available at: http://eur-lex.europa.eu/LexUriServ/LexUriServ.do?uri=SEC:2012:0073:FIN:FR:PDF

[46]
Communication on ‘Safeguarding Privacy in a Connected World – A European Data
Protection Framework for the 21st Century’, COM (2012) 09 final. Available at: http://eur-lex.europa.eu/LexUriServ/LexUriServ.do?uri=CELEX:52012DC0009:en:NOT

[47] Proposal
for a Regulation on the protection of individuals with regard to the processing
of personal data and on the free movement of such data (General Data Protection
Regulation)’, COM (2012) 11 final. Available at:

http://eur-lex.europa.eu/smartapi/cgi/sga\_doc?smartapi!celexplus!prod!CELEXnumdoc&lg=en&numdoc=52012PC0011

[48] Proposal
for a Directive on the protection of individuals with regard to the processing
of personal data by competent authorities for the purposes of prevention,
investigation, detection or prosecution of criminal offences or the execution
of criminal penalties, and the free movement of such data’, COM (2012) 10
final. Available at:

http://eur-lex.europa.eu/LexUriServ/LexUriServ.do?uri=CELEX:52012PC0010:en:NOT

[49] Press
release IP/13/1166 of 27.11.2013, available at: http://europa.eu/rapid/press-release\_IP-13-1166\_en.htm
.

[50] Press
release IP/13/1166 of 27.11.2013, available at: http://europa.eu/rapid/press-release\_IP-13-1166\_en.htm
.

[51] See MEMO/13/1059  
27/11/2013 available at:
http://europa.eu/rapid/press-release\_MEMO-13-1059\_en.htm.

[52]          COM(2012)
10 final: Proposal for a Directive of the European Parliament and the Council
on the protection of individuals with regard to the processing of personal data
by competent authorities for the purposes of prevention, investigation,
detection or prosecution of criminal offences or the execution of criminal
penalties, and the free movement of such data, Brussels, 25.1.2012, and
COM(2012) 11 final: Proposal for a Regulation of the European Parliament and
the Council on the protection of individuals with regard to the processing of
personal data and on the free movement of such data (General Data Protection
Regulation).

[53] Directive
2013/40 on attacks against information systems and replacing Council Framework
Decision 2005/222/JHA, OJ L 218, 14.8.2013, p. 8.

[54] Recitals
29 and 30 of Directive 2013/40.

[55] Regulation
(EU) No 1380/2013 on the Common Fisheries Policy, amending Council Regulations
(EC) No 1954/2003 and (EC) No 1224/2009 and repealing Council Regulations (EC) No
2371/2002 and (EC) No 639/2004 and Council Decision 2004/585/EC, OJ L 354,
28.12.2013, p. 22. It will enter into force on 1.1.2014.

[56] Article
25 of Regulation 1380/2013.

[57] Articles
111-114 of Regulation (EU) No 1306/2013 of 17 December 2013 on the financing,
management and monitoring of the common agricultural policy and repealing
Council Regulations (EEC) No 352/78, (EC) No 165/94, (EC) No 2799/98, (EC) No
814/2000, (EC) No 1290/2005 and (EC) No 485/2008, OJ L 347,
20.12.2013, p. 549; see also section above:
Right to respect for Private and family life.

[58] For
further information see below section on the right to asylum Article 18.

[59] Ibid.

[60] CJEU,
Case C-342/12, Worten v ACT, 30.05.2013.

[61] CJEU,
Case C-291/12, Michael Schwarz v Stadt Bochum, 17.10.2013.

[62] ECtHR,
S. and Marper v. the United Kingdom [GC], nos. 30562/04 and 30566/04,
4.12.2008.

[63] Regulation
(EC) No 2252/2004 on standards for security features and biometrics in
passports and travel documents issued by Member States, OJ L 385, 29.12.2004,
p. 1.

[64] Case
C-473/12 – IPI, 7.11.2013,

[65] Case
C-486/12 – X, 12.12.2013.

[66] Case
T-214/11, ClientEarth and PAN Europe v EFSA,
13.09.2013, currently under appeal..

[67] Federal
Administrative Court of Germany (Bundesverwaltungsgericht), case 10 C 23.12,
20.02.2013

[68] https://ec.europa.eu/digital-agenda/en/news/public-consultation-independent-report-hlg-media-freedom-and-pluralism-%E2%80%93-read-contributions.

[69] http://www.consilium.europa.eu/uedocs/cms\_data/docs/pressdata/en/educ/139725.pdf

[70] CJEU, Case C-283/11 Sky Österreich v ORF, 22.01.2013.

[71] CJEU,
Case C-201/11 P UEFA v European Commission, 18.07.20013 ; CJEU,
Case C-204/11 P FIFA v European Commission, 18.07.2013; and CJEU, C-205/11
P FIFA v European Commission, 18.07.2013.

[72] Directive 2010/13 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) OJ L 95, 15.4.2010, p. 1.

[73] CJEU,
Case C-234/12 Sky Italia v AGCOM, 18.07.2013.

[74] Directive
2013/55 amending Directive 2005/36/EC on the recognition of professional
qualifications and Regulation (EU) No 1024/2012 on administrative cooperation
through the Internal Market Information System (‘the IMI Regulation’), OJ L
354, 28.12.2013, p. 132.

[75] COM(2012)
744 final, 12.12.2012.

[76] CJEU,
Case C-101/12 Herbert Schaible v Land Baden-Württemberg, 17.10.2013.

[77] COM(2013)813
final.

[78] SWD(2013)471
final, Annex 21.

[79] COM(2013)
311; available at: http://www.europarl.europa.eu/oeil/popups/ficheprocedure.do?lang=en&reference=COM(2013)0311
.

[80] See
press release, available at: http://www.consilium.europa.eu/uedocs/cms\_data/docs/pressdata/en/jha/139938.pdf.

[81] Proposal
for a Regulation of the European Parliament and of the Council creating a
European Account Preservation Order to facilitate cross-border debt recovery in
civil and commercial matters, COM(2011) 445, Available at: http://ec.europa.eu/justice/civil/files/comm-2011-445\_en.pdf.

[82] UK
Association of Fish Producer Organisations v. Secretary of State for
Environment, Food and Rural Affairs, Case No: CO/4796/2012, [2013] EWHC 1959
(Admin). The case also touches on issues of discrimination, see below under the
heading of Article 21.

[83] See
above section 1 on Dignity.

[84] Directive
2013/32 on common procedures for granting and withdrawing international protection,
OJ L 180, 29.6.2013, p. 60.

[85] Regulation
No 603/2013 on the establishment of 'Eurodac' for the comparison of
fingerprints for the effective application of Regulation (EU) No 604/2013
establishing the criteria and mechanisms for determining the Member State
responsible for examining an application for international protection lodged in
one of the Member States by a third-country national or a stateless person and
on requests for the comparison with Eurodac data by Member States' law
enforcement authorities and Europol for law enforcement purposes, and amending
Regulation (EU) No 1077/2011 establishing a European Agency for the
operational management of large-scale IT systems in the area of freedom,
security and justice. OJ L 180, 29.6.2013,
p. 1.

[86]  CJEU,
Case C-648/11, MA and others v.
Secretary of State for the Home Department, 06.06.2013.

[87] CJEU,
Case C 4/11, Bundesrepublik Deutschland v Kaveh Puid, 14.11.2013.
For
more on the Kaveh Puid case from the angle of the applicability of the
Charter, see  the 2013 Report on the Application of the EU Charter of
Fundamental Rights, under 2. Applicability of the Charter to the Member States.

[88] CJEU,
Case C 394/12, Shamso Abdullahi v Bundesasylamt, 10.12.2013

[89] CJEU,
Joined Cases C-199/12, C-200/12 and C-201/12, X, Y, Z, 7.11.2013.

[90] Higher
Administrative Court of Baden-Württemberg (Verwaltungsgerichtshof
Baden-Württemberg), case A 9 S 1872/12, 07.03.2013.

[91] CJEU, Case
C-355/10, Parliament v Council, 05.09.2012.

[92] Proposal
for a Regulation establishing rules for the surveillance of the external sea
borders in the context of operational cooperation coordinated by Frontex
(COM(2013) 197 final), available at: http://eur-lex.europa.eu/LexUriServ/LexUriServ.do?uri=COM:2013:0197:FIN:EN:PDF.

[93] See
above section 1 on Dignity.

[94] CJEU,
Case C-61/11, El Dridi,  28.4.2011 & Case C-329/11, Achughbabian,
6.12.2011. The Court had found that these rules preclude national law from imposing
a prison term on an irregularly staying third-country national who does not
comply with an order to leave the national territory. In a further case, the
Court found that EU rules preclude national legislation imposing a prison
sentence on an irregularly staying third-country national during the return
procedure. However, the Court specified that such prison sentences could be
applied to third-country nationals to whom the return procedure has been
applied and staying irregularly with no justified grounds for non-return.

[95] COM(2011)
76 of 23 February 2011. Available at: http://eur-lex.europa.eu/LexUriServ/LexUriServ.do?uri=COM:2011:0076:FIN:EN:PDF
.

[96] CJEU,
Case 383/13 PPU (G and R), 10.09.2013.

[97]  Federal
Administrative Court of Germany (Bundesverwaltungsgericht), case 10 C 15.12,
31.01.2013.

[98] Towards
Social Investment for Growth and Cohesion – including implementing the European
Social Fund 2014-2020 COM(2013) 83 final

Available at:
http://ec.europa.eu/social/BlobServlet?docId=9761&langId=en              .

[99] 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. Available at: http://eur-lex.europa.eu/LexUriServ/LexUriServ.do?uri=CELEX:52008PC0426:EN:NOT

[100] A
European Commission proposal for a Directive of the European Parliament and of the
Council on improving the gender balance among non-executive directors of
companies listed on stock exchanges and related measures, COM (2012) 614 final,
14.11.2012.

[101] Document no
A7-0340/2013.

[102] See also
the 2013 Report on the Application of the EU Charter of Fundamental Rights
under 3.2 Positive measures.

[103] For more
details, see above under Article 7 Respect for private and family life.

[104] For
more information about the infringement proceedings, see the European European
Commission Press Release IP/12/24, 'European European Commission launches
accelerated infringement proceedings against Hungary over the independence of
its central bank and data protection authorities as well as over measures affecting
the judiciary', 17.01.2012, available at http://europa.eu/rapid/press-release\_IP-12-24\_en.htm.

[105] CJEU,
C-286/12, European European Commission v. Hungary, 06.11.2012.
See also MEMO/12/832.

[106] More
information on the PROGRESS funding programme can be found at http://ec.europa.eu/justice/grants/programmes/progress/index\_en.htm.

[107] FRA, Jewish
people's experience of discrimination and hate crime in European Union Member
States, November 2013.

[108] FRA, Racism,
discrimination, intolerance and extremism: learning from experiences in Greece and Hungary, December 2013.

[109] FRA
Opinion on the Framework Decision on Racism and Xenophobia – with special
attention to the rights of victims of crime, October 2013.

[110] Steps
forward in implementing national Roma integration strategies, COM (2013) 454
final, 26.06.2013.

[111] Proposal
for a Council Recommendation on effective Roma integration measures in the
Member States, COM(2013) 460, 26.06.2013.

[112] Council
recommendation on effective Roma integration measures in the member states, Brussels, 9 and 10 December 2013, available at http://www.consilium.europa.eu/uedocs/cms\_data/docs/pressdata/en/lsa/139979.pdf

[113] It
should be noted, however, that a Council recommendation is not legally binding
the Member States.

[114] Special
attention is paid to the rights of Roma children, especially in the context of
full and equal access to quality education of Roma children. In the part on
substantive policy issues regarding access to education, COM(2013) 454 refers
to a child's right to education as enshrined in Article 28 of the UN Convention
on the Rights of the Child. The rights of the child are discussed below under
Article 24.

[115] FRA, 'EU LGBT Survey: European
Union lesbian, gay, bisexual and transgender survey - Results at a glance', May
2013, available at http://fra.europa.eu/sites/default/files/eu-lgbt-survey-results-at-a-glance\_en.pdf

[116] Council
of Europe Framework Convention for the Protection of National Minorities, Strasbourg, February 1995, available at http://www.coe.int/t/dghl/monitoring/minorities/1\_AtGlance/PDF\_H(95)10\_FCNM\_ExplanReport\_en.pdf.

[117] Council
of Europe European Charter for Regional or Minority Languages, Strasbourg, November 1992, available at http://conventions.coe.int/treaty/Commun/QueVoulezVous.asp?NT=148&CM=1&CL=ENG.

[118] Council
Framework Decision 2008/913/JHA of 28 November 2008 on combating certain forms
and expressions of racism and xenophobia by means of criminal law, OJ L 328,
6.12.2008, p. 55; Council Directive 2000/43/EC of 29 June 2000 implementing the
principle of equal treatment between persons irrespective of racial or ethnic
origin, OJ L 180, 19.7.2000, p. 22.

[119] CJEU,
C-81/12, Asociaţia ACCEPT v Consiliul Naţional pentru Combaterea
Discriminării, 25.04.2013.

[120] CJEU,
C-476/11, HK Danmark v Experian A/S, 26.09.2013 ('Kristensen').

[121] CJEU,
C-546/11, Dansk Jurist- og Økonomforbund v Indenrigs- og
Sundhedsministeriet, 26.09.2013 ('Toftgaard').

[122] CJEU,
C-401/11, Blanka Soukupová v Ministerstvo zemědělství,
11.04.2013.

[123] See also
the 2013 Report on the Application of the EU Charter of Fundamental Rights
under 2. Applicability of the Charter to the Member States.

[124] CJEU,
C-195/12, Industrie du bois de Vielsalm & Cie (IBV) SA v Région wallonne,
26.09.2013.

[125] High
Administrative Court of France (Conseil d’Etat), case N° 352393 ECLI FR CESSR 2013
352393.20130313, Mrs A v the State of France, 13.3.2013.

[126] Hessian
Higher Administrative Court (Hessischer Verwaltungsgerichtshof, 7. Senat),
case 7 C 897/13.N, 7.8.2013.

Article 24: The rights of the child

With respect to
Article 24 of the Charter on the rights of the child, progress was made in the
completion of the actions[1]
set out in the EU Agenda for the rights of the child[2].

Legislation

The European
Commission's proposal for a Directive on procedural safeguards for children
suspected or accused in criminal proceedings[3] will ensure that
children have mandatory access to a lawyer at all stages. This means that
children cannot waive their right to be assisted by a lawyer, to ensure that a
lacking understanding of the consequence of their actions does not lead them to
waive their rights. Children are also set to benefit from other safeguards such
as being promptly informed about their rights, being assisted by their parents
(or other appropriate persons), not being questioned in public hearings, having
the right to receive a medical examination and being kept separate from adult
inmates if deprived of liberty.[4]

In conjunction with
Directive 2012/29/EU establishing minimum standards on the rights, support and
protection of victims of crime of 2012[5],
and the 2011 legislation on child sexual abuse and exploitation and trafficking
in human beings, this proposal will contribute to creating a more
child-friendly justice system for all children involved in judicial
proceedings.

Technical amendments to the Schengen Borders Code were adopted
by Regulation 610/2013[6]
which foresees, among others, that training curricula for the border guards
shall include specialized training for detecting and dealing with situations
involving vulnerable persons, such as unaccompanied minors and victims of
trafficking.

In December 2013,
the deadline for the transposition of the Directive on combating the sexual
abuse and sexual exploitation of children and child pornography[7]
had lapsed. To date 5 Member States (Luxembourg, Estonia, Croatia, France and Sweden) have notified full transposition and 10 Member States (Bulgaria, Czech Republic, Germany, Latvia, Lithuania, Austria, Poland, Slovenia, Slovakia and Finland) partial transposition. In January 2014, 11 infringement cases were launched
for non-communication of the measures transposing Directive 2011/93/EU on
sexual abuse and sexual exploitation of children. The letters of formal notice
were sent to those Member States which did not communicate any measures of
transposition.

Policy

The 8th European
Forum on the rights of the child focused on supporting integrated child
protection systems through the implementation of the EU Agenda[8].
Representatives of a wide range of organisations involved in the national child
protection systems from all Member States, including justice, social affairs,
health and education authorities, as well as Members of the European
Parliament, NGOs, experts and professionals working with and for children
exchanged good practices and provided input for future European guidelines on
child protection systems. The Forum highlighted the importance of integrated
child protection systems to effectively address the diverse protection needs of
children in all circumstances. To achieve this, good cooperation among all
actors and the need for multidisciplinary teams of specially trained
professionals were seen as essential components of any child protection system,
as well as the appropriate collection and sharing of data and information.
While maintaining the need for a comprehensive approach to child protection,
the Forum featured specific sessions on ensuring the best interests of the
child in cases of cross-border parental child abduction, meeting the needs of
children on the move, protecting children from bullying and cyber bullying and
protecting girls from female genital mutilation (FGM).

In January 2013,
the European Commission established an informal Member State expert group on the rights of the child.[9] This is a further step
towards enhanced cooperation and dialogue with stakeholders, besides the annual
European Forum on the rights of the child. Through the expert group, the European
Commission seeks to continue to support Member States' efforts by promoting
exchange of best practice, cooperation and communication with and among
national authorities responsible for protecting and promoting the rights of the
child. The group met three times in 2013 and the European Commission presented
new legal instruments and policies connected to the Rights of the child in
areas such as Justice, Home affairs, Employment and Education. The wider
international context was also discussed, including the United Nations Convention
on the Rights of the Child third optional protocol[10] (allowing
children to file individual complaints) and the Committee on the Rights of the
Child's – General comment No. 14[11]
(the right of the child to have his or her best interests taken as a primary
consideration).

Regarding
trafficking in human beings, in May 2013 an EU Civil Society Platform
against Trafficking in Human Beings was launched, to bring together more
than hundred civil society organisations, including organisations promoting the
rights children from EU MS and third countries. This is one of the latest
actions delivered under the "EU Strategy towards the Eradication of
Trafficking in Human Beings 2012-2016"[12] which complements the Directive 2011/36/EU on preventing
and combating trafficking in human beings. The Directive adopts an
integrated, holistic, and human rights-based approach, with special attention
to the rights of the child.[13]

In 2012, the European
Commission adopted the European Strategy Better Internet for Children[14]
setting out a plan to give children the digital skills and tools they need to
use the Internet to their advantage, safely and responsibly. The strategy
advocates for a multi-stakeholder approach. A range of industry players have
been engaged throughout 2013 to make devices and services appropriate for
children and youth in the CEO Coalition to make the Internet a better place for
kids. The European Commission aims to engage industry further, also aligning
with existing initiatives as well as developing partnerships with industry and
third party stakeholders. The Safer Internet Programme running between 2009 and
2013 has been the main instrument for implementing the
Better Internet for Children strategy. Future actions
will be funded under the Connecting Europe facility which will support the set
up and operation of a Digital Services Infrastructure for Safer Internet
Centers.

The European
Commission published a large-scale study on missing children in the EU[15]
in December 2013. The study maps the situation of and responses to
children going missing for the period 2009-2012 in 27 EU Member States. It
reveals a variety of definitions and procedures used by the Member States as well as greatly varying degrees of data available. It highlights the magnitude
of the problem with a quarter of a million cases of missing children officially
reported in 2011. The study concludes that there is a strong case for improving
data collection, including using common definitions, reporting of cases and
coordinating the actions taken by the different services in the national child
protection systems. Furthermore, it makes recommendations to broaden the type
of data recorded to understand underlying causes for disappearances, allow
targeted prevention and adequate follow-up to the cases, and to raise awareness
about the services available, including the 116 000 hotlines for missing
children.

The European
Commission stepped up its efforts to support the setting up of the remaining
116 000 hotlines for missing children. To this effect and to improve the
quality of existing hotlines, the European Commission awarded a total of €4.5
million through the Daphne III Programme to organisations in 18 Member States.
After four new hotlines were launched in 2013, the hotline was available in 26
Member States at the end of the year.[16]

The Recommendation
Investing in Children: breaking the cycle of disadvantage;[17]
calls on Member States to step up social investment targeted towards children
and explains how EU financial instruments can be better mobilised to ensure
that children are given the best start in life and to make sure that children
are not locked into a life of disadvantage. The Recommendation is embedded in a
rights-based approach, drawing on the founding values of fundamental rights of
the European Union in its first article. It recommends Member States to address
child poverty and social exclusion from a children's rights approach, to refer
to the Charter and the UN Convention on the Rights of the Child, and to make
sure that these rights are respected, protected and fulfilled. The
Recommendation is centred on three pillars, covering access to adequate
resources (access to labour market for parents, income support), access to
affordable quality services (such as childcare, education, healthcare, housing,
social services) and the children's right to participate. The Recommendation
focuses on prevention measures, with a particular focus on children who are
more at risk because they face multiple disadvantages, for example Roma
children[18] or migrant children.[19]

Children are placed
at the centre of the EU's efforts to eliminate female genital mutilation (FGM).
On 25 November, the European Commission announced through its Communication:
"Towards the elimination of female genital mutilation"[20]
a new push to eliminate female genital mutilation in the EU and beyond. The
practice, internationally recognised as a violation of women’s human rights and
as a form of child abuse, is thought to have affected 500,000 victims in the EU
alone, and more than 125 million worldwide. To fight female genital mutilation,
the European Commission will make full use of future EU funding to help preventing
the practice; improve support for victims; support health practitioners, as
well as national enforcement of anti-FGM laws; and improve protection under EU
asylum rules for women at risk. The European Commission and the European
External Action Service have also committed to promoting worldwide elimination
of FGM through bilateral and multilateral dialogue. Finally, the European
Commission will encourage more research into the number of women and girls at
risk. In order to exchange best practices the European Commission organised a specific
session at the 8th Forum on the Rights of the Child focusing on the
role of child protection systems in protecting children from female genital
mutilation.

                Case
law

In MA and others v Secretary of State for the Home Department[21], the CJEU held that, when
interpreting the provisions of the Dublin II Regulation[22] on the Member State which is responsible for examining an
asylum application made in more than one Member State by an unaccompanied
minor, the responsible State should be the State in which the minor is present
after having lodged an application there. The relevant provision of the Dublin
II Regulation merely states that the Member State responsible for examining the
application is to be that where the minor has lodged his applications for
asylum, but it does not specify whether that is the first application which the
minor lodged in a Member State, or the most recent application lodged in
another Member State. The CJEU in its judgment stresses that this provision has
to be interpreted in the light of Article 24 of the Charter, which states that
in all actions related to children, the child's best interests must be a
primary consideration. As unaccompanied minors form a category of particularly
vulnerable persons, it is important not to prolong more than it is strictly
necessary the procedure for determining the Member State responsible, which
means that unaccompanied minors should not be transferred to another Member State. The Charter friendly interpretation of the said provision of the Dublin II
Regulation leads thus to the Member State in which the minor is present after
having lodged an application there to be responsible for examining an asylum
application, even if an earlier application was lodged in another Member State.

This judgment is a
nice illustration of the obligation on both national judges and the CJEU to
adopt a ‘Charter-friendly’ interpretation in cases where there are several
possibilities to interpret EU law.

Ruling of the
Supreme Court of the Czech Republic[23]

A Czech district
court decided to deprive a father of his parental rights and responsibilities
after he was found guilty of murder. This decision was confirmed by the
appellate court. In appeal the father argued that the courts had not
interrogated his daughter. The Supreme Court referred to CJEU case law[24]
on Council Regulation No 2201/2003 and Article 24 of the Charter and concluded
that although it is a right of every child to express opinions and to be heard,
an interrogation cannot be compulsory in every case, but has to be considered
with respect to the inherent interest of every child. The Supreme Court decided
that the courts' decision not to interrogate the children, considering their
age and the harmfulness to their mental health of the interrogation, was not
contrary to Article 24 of the Charter.

Article 26: Integration of persons with disabilities

The Charter
provides that the Union recognises and respects the right of persons with
disabilities to benefit from measures designed to ensure their independence,
social and occupational integration and participation in the life of the
community. The Charter in Article 53 on the level of protection relates it inter
alia "to international law and international agreements to which the
Union or all the Member States are party".

International
agreements

The EU became a
party to the UN Convention on the Rights of Persons with Disabilities
('the UN Convention') on 22 January 2011 by virtue of Council Decision
2010/48/EC. This implies that the rights enshrined therein need to be
implemented and respected by the EU in its legislative actions as well as its
policy-making, to the extent of its competences.

The UN Convention
provides that its parties shall maintain, strengthen, designate or establish a
framework including at least one independent mechanism to promote, protect and
monitor the implementation of the UN Convention (Article 33.2). To that end,
and in accordance with paragraph 13 of the Code of Conduct between the Council,
the Member States and the European Commission setting out the intra-EU
arrangement for the implementation of the UN Convention, the European
Commission proposed in 2012 that the following five entities jointly form
"the EU Framework":

- the European
Parliament's Petitions Committee;

- the European
Ombudsman;

- the EU Agency for
Fundamental Rights;

- the European
Disability Forum, and

- the European European
Commission.

The Council
endorsed the European Commission's proposal on 29 October 2012.[25]

The EU Framework's
activities concern the implementation of the Convention:

(i) with respect to
EU legislation and policy in those areas where the Member States have
transferred competences to the EU; and

(ii) within the EU
institutions themselves as public administration, for example in relation to
interaction with citizens and the public, and staff matters.

The EU Framework
complements the national frameworks and independent mechanisms which bear the
main responsibility for the promotion, protection and monitoring of the UN
Convention in the Member States.

During its initial
meetings in 2013 (in January and May) the EU Framework agreed on a number of
organisational issues like the role of the Secretariat, of the Chairperson and
the Framework's working methods. The European Commission was appointed to
perform the function of Framework Secretariat for a period of two years after
which this appointment would be reviewed. For the same duration, the European
Disability Forum will perform the role of Chair of the Framework's meetings. In
2013 the European Commission organized the fourth Work Forum on the implementation
of the UN Convention with a focus on the reporting to and examination by the
CRPD Committee, on the protection of the rights of persons with disabilities
and the individual communication procedure under the Optional Protocol to the
Convention, and on the complementarity and cooperation between the EU-level
Framework and frameworks established by the EU Member States.

In addition,
Article 35 of the UN Convention provides that each (State) Party shall submit
to the Committee on the Rights of Persons with Disabilities a comprehensive report
on measures taken to give effect to its obligations under the Convention,
and on the progress made in that regard. The European Commission, as focal
point for the implementation of the Convention by the EU, has been preparing
the EU report in 2013. This will addresses matters governed by the Convention
falling under EU competence. Focusing on EU competences, it will examine the
use of EU legislation, policies and other measures and their impact on the
realisation of the rights enshrined in the Convention. It will also identify
challenges in the implementation process. The report is meant to be underpinned
by available statistical data.

The European
Commission also participated in the 6th Session of the UNCRPD Conference
of State Parties which took place in New York in July 2013. The main theme
of the Conference was "Ensuring adequate standard of living: empowerment
and participation of persons with disabilities within the framework of the
CRPD". At this occasion, the European Commission made a statement on
behalf of the Union and stressed the importance of cooperation and coordination
between the Union and the Members States in line with the duty of sincere
cooperation.

Every year, the European
Commission presents a Disability High Level Group Report on the
Implementation of the UNCRPD. This report, prepared on the basis of
submissions received from the 28 EU Member States, Norway and various EU-level
civil society organisations and DPOs, gives an overview of progress made in
ratifying and implementing the Convention in the EU and its Member States. In 2013, the report also included a thematic chapter specifically dedicated to
disability and development cooperation, providing detailed information on the
implementation of Article 32 of the UN Convention.[26] The
European Commission also hosted a European regional consultation meeting in
preparation for the High Level Meeting of the UN General Assembly on Disability
and Development that took place in New York on 23 September 2013. The report of
the meeting contains very supportive suggestions to better take care of the
needs of persons with disabilities in the post-2015 development agenda.

Hungary: EU
Funds and the deinstitutionalisation process

In its concluding
observations on the initial periodic report of Hungary, the UN Committee on
the Rights of Persons with Disabilities, the body of independent experts
which monitors implementation of the UN Convention on the Rights of Persons
with Disabilities (UN CRPD) by the States Parties, criticized the fact that
Hungary uses EU funds to build large social institutions for persons
with disabilities in community-based settings. This is not in line with the aim
of deinstitutionalisation as stipulated in the UN CRPD. The UN Committee noted
with concern that Hungary "has set a 30-year time frame for its plan for
deinstitutionalization. It is furthermore concerned that the State party has
dedicated disproportionally large resources, including regional European Union
funds, to the reconstruction of large institutions, which will lead to
continued segregation, in comparison with the resources allocated for setting
up community-based support service networks." The Committee is concerned "that
Hungary fails to provide sufficient and adequate support services in local
communities to enable persons with disabilities to live independently outside a
residential institutional setting." The European Commission has received
several complaints in 2013 from NGOs on the fact that Hungary uses EU funds to construct large institution leading to segregation of the
disabled. Actions are taken to ensure that Structural Funds support the
deinstitutionalisation process in the best way possible under the next programming
period 2014-2020.

Legislation

As regards the
Accessibility objective, the European Commission continued to explore the
possibility of proposing a European Accessibility Act. Such a business
friendly initiative, addressed from an internal market perspective and dealing
with issues of market fragmentation, would aim at improving the market of goods
and services that are accessible for persons with disabilities and elderly
persons, based on a “design for all” approach.

The European
Commission also followed up the development of the discussions on the proposal
for a Web-Accessibility Directive at the European Parliament and the
Council. The proposal, which is based on an internal market legal basis,
establishes a harmonised set of accessibility requirements for a set of public
sector bodies' websites which would result in an increase in the overall
accessibility of public sector's websites across the EU. The European
Commission also followed up the development of the discussions on the proposal
for a Web-Accessibility Directive[27] at the European Parliament and the
Council. The proposal, which is based on an internal market legal basis,
establishes a harmonised set of accessibility requirements for a set of public
sector bodies' websites which would result in an increase in the overall
accessibility of public sector's websites across the EU.

The European
Commission invited Member States to provide information on the measures they
undertook in order to ensure that disabled end-users enjoy tailored solutions
for equal access to the emergency number 112, taking into account aspects such
as speed, mobility, reliability, coverage or language handling. Art 26 (4) of
the Universal Service Directive[28] includes measures
in favour of persons with disability which are an expression of Article 26 of
the Charter. The provision provides for the obligations on Member States to
ensure that disabled end-users enjoy equivalent access to 112. Out of the 27
replies received, 11 Member States mentioned the existence of alternative means
to voice as a means to access emergency services.[29]

Policy

In 2013, the European
Commission also pursued the implementation of the European Disability
Strategy which covers the period from 2010 to 2020[30].
This Strategy aims to empower women and men with disabilities so they can enjoy
their full rights and benefit fully from their participation in society and the
economy on an equal basis with others. The Strategy also aims to facilitate the
implementation of the UN Convention at EU level and support the Members States
in their implementation process. It includes a list of actions for 2010-2015 in
eight main areas: accessibility, participation, equality, employment, education
and training, social protection, health and EU external action.

The European
Parliament Committee on Civil Liberties, Justice and Home Affairs has
commissioned a study in 2013 on Member States' policies for children[31] with
disabilities.[32] The
study identified a broad recognition of the rights of children with
disabilities under national legal systems either through general or specific
legislation. However, their practical implementation revealed to be problematic
in most Member States resulting in obstacles faced by children with
disabilities in their day to day life.

Case law

Worth nothing is
the new CJEU jurisprudence with regard to the definition of disability.
In the joined cases Ring and Skouboe Werg[33] the
CJEU interpreted Council Directive 2000/78/EC establishing a general framework
for equal treatment in employment and occupation in the light of Article 1
UNCRPD and the concept of disability provided therein. In its judgement, the
CJEU established that Council Directive 2000/78/EC precludes a national
provision under which an employer is entitled to dismiss an employee with a
shortened period of notice on account of absences due to sickness where such
sickness is the result of a disability. Hereby the notion of disability is
interpreted in a broad way, covering a limitation which results in particular
from physical, mental or psychological impairments and which hinders the participation
of the person concerned in professional life. The CJEU thus moved away from the
restrictive definition of the previous Chacón Navas judgement[34]. It
clearly stated that an employee unable to work for a long period of time due to
his or her disability cannot be dismissed without considering the possibility
of providing reasonable accommodation for that employee and re-integrating the
person in the workplace.

This jurisprudence
was confirmed in a case regarding infringement procedures against Italy a few months later. The European Commission has brought an action for failure to
fulfil obligations before the CJEU against Italy[35],
claiming that Italy has transposed Directive 2000/78 into its national law
without ensuring that the guarantees and adjustments provided for regarding the
treatment of persons with disabilities in the workplace are to apply to all
persons with disabilities, all employers, and all aspects of the employment
relationship. Furthermore, application of the Italian legislation on that
subject is dependent on the adoption of further measures by the local
authorities or the conclusion of special agreements between those authorities
and employers and thus does not confer upon persons with disabilities rights
which could be directly relied on before a court. In its judgment, the CJEU
adopted the same broad definition of 'disability' as in the joined cases Ring
and Skouboe Werg, referring to the concept of disability under the UN
Convention. It also referred to UN Convention for the interpretation of the
concept of 'reasonable accommodation', which are the adjustments to be made,
where needed in a particular case, to ensure to a person with disabilities the
enjoyment or exercise of all human rights and fundamental freedoms on an equal
basis with other workers. In order to comply with the requirement of reasonable
accommodation, Member States must create an obligation for employers to adopt
effective and practical measures (adapting premises, equipment, patterns of
working time, the distribution of tasks), taking into account each individual
situation, which will enable any person with a disability to have access to,
participate in, or advance in employment, and to undergo training, without
imposing a disproportionate burden on the employer. The CJEU emphasised that
that obligation covers all employers. It is not sufficient for Member States to
provide support and incentives: they must require all employers to adopt
effective and practical measures, where needed in particular cases.

Upon examining the
various measures adopted by Italy for the integration of persons with
disabilities into the labour force, the CJEU found Italy had failed to fulfil
its obligation, as those measures, even when assessed as a whole, did not
require all employers to adopt effective and practical measures, where needed
in particular cases, for all persons with disabilities, covering different
aspects of work and enabling them to have access to, participate in, or advance
in employment, and to undergo training.

A mutually-recognized EU-model disability card scheme The 2013 European Commission's citizenship report includes an action specifically dedicated to citizens with disabilities. This action (No. 6) aims at facilitating the mobility of persons with disabilities within the EU. To that end, the European Commission will launch a pilot initiative, planned for the 3rd and 4th quarter of 2014, in view of developing a mutually-recognized EU-model disability card scheme that will allow persons with disabilities who travel to other EU countries to be treated in the same way as nationals, when it comes to access to culture, tourism, transport and leisure.

4. Solidarity

The
European Commission presented proposals requiring Member States to establish
collective redress mechanisms. These proposals make it possible for
consumers to bring to court similar claims in one legal action.

The Market
Surveillance and Product Safety Package has been adopted by the European
Commission. The package ensures a high level of human health and consumer
protection by strengthening the means to tackle unsafe and non-compliant
products.

In
2013 the deadline for the transposition of the Consumer Rights Directive
has lapsed. This means that all Member States must now have transposed the new
rules into their national laws. The Consumer Rights Directive protects
consumers, especially those buying on the internet. The Directive guarantees,
amongst others, the right to return goods within a period of 14 days.

The deadline for the transposition of Council Directive
2010/32/EU of 10 May 2010 implementing the Framework Agreement on prevention
from sharp injuries in the hospital and healthcare sector concluded by
HOSPEEM and EPSU has also expired in 2013. The purpose of this directive is to
implement the above mentioned Framework Agreement aiming notably at preventing
workers’ injuries caused by all medical sharps (including needle-sticks),

The EU adopted a new directive to address the protection of
workers exposed to electromagnetic fields.[36] The directive covers all known direct biophysical effects and
other indirect effects caused by electromagnetic fields. Further to this
directive, the employer shall notably eliminate or reduce to a minimum the risks
that arise from electromagnetic fields at the workplace in line with the
principles of the Framework Directive[37]. Transposition into national law by all Member States is
strived for by July 2016.

In
the course of 2013, the EU Charter of Fundamental Rights was directly or
indirectly invoked in a number of parliamentary questions enquiring about
possible breaches of fundamental rights, notably economic and social rights, by
austerity measures passed in response to the economic and financial crisis, in
particular in Member States with an Economic Adjustment Programme.

Article 27: Workers' right to information and consultation
within the undertaking

The Charter in
Article 47 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 provided for by EU law and national laws
and practices.

Legislation

The European
Commission carried out an ex-post evaluation of three directives in the area
of employees' information and consultation at national company level. The
evaluation aimed to identify excessive burdens, overlaps, gaps or
inconsistencies which may have appeared since the adoption of the Collective
Redundancies Directive[38], the
Transfer of undertakings Directive[39] and the
Information and Consultation Directive[40]. The European
Commission published the results of this so called 'fitness check' on 26 July
2013[41]. The
report finds that the three EU Directives are generally relevant, effective, efficient,
coherent and mutually reinforcing. The 'fitness check' brought also to light,
however, a number of gaps and shortcomings. As a follow up,
the European Commission announced that it would, among others, consider a
possible consolidation of the three directives on information and consultation,
subject to the results of a consultation of social partners[42].

The European
Commission on 18 November 2013 presented a legislative proposal for a directive
on seafarers[43] aiming to
lift the exclusion of seafaring workers from the personal scope of
application of a number of EU labour law directives (the Works Council
Directive[44], the Insolvency Directive[45],
the Information and Consultation Directive, the Transfer of undertakings
Directive and the Collective Redundancies Directive mentioned above).

Article 28: Right of
collective bargaining and action

Article 28 of the
Charter provides that workers and employers, or their respective organisations,
have, in accordance with EU law and national laws and practices, the right to
negotiate and conclude collective agreements at the appropriate levels and, in
cases of 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 level[46].
Member States remain, of course, bound by the provisions of the Charter,
including the right to strike, in instances where they implement EU law.

Legislation

The European
Commission proposed in 2012 a number of specific rules and obligations in order
to enhance the implementation, application and enforcement of the Posting of
Workers Directive[47]. The
proposal for the Enforcement Directive[48] contains
provisions improving the effectiveness of controls and sanctions and
possibilities given to posted workers to defend their rights better.
Furthermore the proposal introduces solutions to effectively prevent abuses,
circumvention or disrespect of law. In 2013 the proposal was extensively
discussed in the Council, and discussions are still ongoing.

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.

Policy

On 4 December 2013
the European Commission presented a proposal for a quality framework for
traineeships[49]. The
quality framework sets out the main features of high quality traineeships in
terms of protecting trainees’ rights and helping them make the most of their
working experience. The quality framework will enable young people to find
quality work experience in another EU country under safe and fair conditions.

EURES provides
information, advice and recruitment/placement (job-matching) services for the
benefit of workers and employers as well as any citizen wishing to benefit from
the principle of the free movement of persons. A modernisation of EURES
should make it more suitable to the real needs of the labour market by
enhancing job matching services. The European Commission will, in addition,
launch a pilot initiative with some Member States to improve the EURES
information exchange about traineeships and apprenticeships with a view to
further facilitating the transition to work for young people.

Article 31: Fair and just working conditions

The Charter
guarantees that every worker has the right to working conditions which respect
their health, safety and dignity. Every worker has the right to a limitation of
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 concerning,
in particular, health and safety at work[50].

Legislation

The EU adopted a
new directive to address the protection of workers exposed to
electromagnetic fields[51]. The European
Commission will publish practical guidelines to assist employers in meeting
their obligations. Transposition into national law by all Member States is
strived for by July 2016.

The European
Commission presented a proposal for a Council Decision authorising Member
States to ratify the International Labour Organisation 2011 Convention
concerning decent work for domestic workers (Convention No. 189)[52]. Member
States ratifying the ILO Convention agree to ensure fair and decent conditions
for domestic workers by protecting their fundamental labour related rights,
preventing abuse and violence and establishing safeguards for young domestic
workers. The Convention contains provisions that ensure equal payment of domestic
workers, decent living conditions and access to complaint mechanisms.

Following the
failure of the negotiations between the social partners at the end of 2012 on the review of the Working Time Directive[53], the European
Commission is currently working on a detailed Impact Assessment. The European
Commission is assessing a range of possible options before deciding on future
action.

Policy

The
European Commission has taken action to address, within the scope of its
mandate, the social consequences of the economic crisis.

On
22 April 2013 the Council adopted the Youth Guarantee Recommendation[54]. The Youth Guarantee aims to tackle youth unemployment by
ensuring that all young people under 25 get a good-quality, concrete offer for
a job, apprenticeship, traineeship, or continued education within 4 months of
them leaving formal education or becoming unemployed. The European Commission
is helping Member States to develop a national Youth Guarantee Implementation
Plan and set up the Youth Guarantee scheme. The European Commission also
facilitates the sharing of best practices between governments.

The
European Commission contributed to the debate on the deepening of the Economic
and Monetary Union and adopted a Communication on strengthening the social
dimension of the Economic and Monetary Union[55]. In the European Commission's view surveillance of
employment and social policies under the European Semester should be
strengthened and national trade unions and employers' organisations should be
more involved.

Ruling of the
Constitutional Court of Poland[56]

 When
answering a legal question arising from a labour
dispute, regarding an unjustified dismissal and the right to
remuneration for the period of unemployment, the Constitutional
Court of Poland referred to the Charter. The Constitutional Court was asked to
judge on the constitutionality of Article 57 of the Polish Labour Code, which
sets a ceiling for compensation in the event of unjustified dismissal and which
prevents the application of the general rules contained in the Civil
Code relating to compensation for a damage caused by improper performance of
obligations.
The applicant claimed that he had a right to continue to receive his wage
during the entire period while waiting to take up his job again after the
unjustified dismissal. The Constitutional Court cited article 30 of the Charter
and determined that it is clear that the protection of the right to work also
entails the fact that a person cannot be deprived of his work without a good
reason or in violation of the law. It thus referred to the Charter to interpret
the scope of the right to work in a broad way, also including protection in the
event of unjustified dismissal. It held, however, that Article 57 of the Polish
Labour Code was in line with the provisions of the Polish Constitution and that
the provisions of the Labour Code and the Civil Code are different in nature
and purpose.

Article 34: Social security and social assistance

Article 34 of the
Charter recognises citizens' entitlement to social security benefits and social
services providing protection in cases of maternity, illness, industrial
accidents, dependency or old age, and in the case of loss of employment.
Everyone residing and moving legally within the European Union is entitled to
social security benefits and social advantages in accordance with Union law and
national laws and practices. Member States are free to determine the details of
their social security systems, including which benefits shall be provided, the
conditions of eligibility, how these benefits are calculated, as well as how
much contribution should be paid, provided it complies with applicable EU law. 
European rules ensure that the application of the different national
legislations respects the basic principles of equality of treatment and
non-discrimination. They guarantee that migrant EU workers are treated in the
same way as national workers and that the application of the different national
legislations does not adversely affect them.

Legislation

The European
Commission continued negotiations on EU legislation on seasonal workers and
intra-corporate transferees. The extent of the rights that should be
granted to the third-country nationals is an important element of the discussions
in the Council and in the European Parliament. Upon suggestion by the European
Commission the co-legislators agreed to strengthen the reference to the Charter
in a recital of the Seasonal Workers Directive[57].
Moreover, agreement has been reached as regards the equal treatment of
third-country national seasonal workers in respect of working conditions.
Discussions on the Directive on Intra-Corporate Transferees[58] are
on-going, yet an explicit reference to the Charter has been included.

The 2013 Portability
on Pensions Directive safeguards the supplementary pension rights of
employed and self-employed persons moving within the Community and sets out
certain rights and obligations for members of supplementary pension schemes in
order to safeguard their entitlements and help to ensure the adequacy of their
retirement income.

Policy

In 2013 the European
Commission adopted the Social Investment Package[59], which
provides social policy guidance to Member States to address increasing levels
of poverty and social exclusion. The Package specifically stresses the
importance of improving the adequacy of social assistance so that benefits
better reflect the costs of living, and integrating benefits with quality
social services and inclusive labour market measures. The package also includes
several staff working documents on different thematic areas of social policy,
including a Staff Working Document on Confronting Homelessness in the
European Union[60], encouraging
Member States to implement integrated, preventative, long-term housing-led
homeless strategies to reduce the number of people living in this extreme form
of social exclusion. The Staff Working Document emphasizes that imposing
penalties on homeless people seems inefficient, costly and stigmatising. It also
highlights that having a basic bank account, an address, ID card and a passport
are necessary preconditions for allowing homeless people to exercise certain
fundamental rights. The package also provides policy advice on how to achieve
efficiency gains in social protection systems whilst ensuring the adequacy of
benefits and services. For instance, the package provides guidance on reducing
administrative inefficiencies through streamlining benefits and services and
creating ‘one stop shops’ to claim support, which can also make access easier
and less time-consuming for beneficiaries. Further to this, the European
Commission has worked together with Member States on a methodology to assess
the efficiency and effectiveness of social policies. The concept is introduced
in detail in the report on Employment and Social Developments in Europe 2013,
published on 21 January 2014 (see IP/14/43). The methodology can spot key
social challenges in the European Semester, the EU's yearly cycle for
coordinating economic, employment and social policies.

Article 35: Health care

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

Legislation

After the adoption
of the European Commission's proposal on Tobacco Products Directive[61] at the
end of 2012, negotiations have started in 2013. In its proposal the European
Commission gives concrete effect to the obligation to guarantee a high level of
human health protection and of consumer protection, while placing a
proportionate restriction on other fundamental rights. Both the European
Parliament and the Council have raised their concerns with regard to the European
Commission's proposal to require a health warning covering 75% of the package. The
Parliament and Council have proposed to reduce this in order to strike a right
balance between health protection and the right to property, freedom of
expression and information and freedom to conduct business. The Committee of
the Regions and the European Economic and Social Committee both adopted an
opinion[62]. They
welcomed the European Commission's proposal and underlined the importance of a
high level of human health protection.

In February 2013
the European Commission adopted the Market Surveillance and Product Safety
Package[63]. The package
imposes a number of obligations on businesses and it provides market
surveillance authorities with the possibility to take measures against unsafe
or non-compliant products. The package seeks to ensure a high level of human
health protection and consumer protection. The legislative process before the
European Parliament and the Council is on-going.

On 6 November 2013
the European Commission's Decision on serious cross-border threats to health[64] entered
into force. The decision improves preparedness across the EU and strengthens
the capacity to coordinate response to health emergencies. It will help Member
States prepare for and protect citizens against possible future pandemics and
serious cross-border threats caused by communicable diseases, chemical,
biological or environmental events.

Policy

An EU Action
Plan on Drugs[65] has been adopted
for the period 2013 – 2016. The plan focuses on improving coordination and
cooperation, contributing to a measurable reduction in the use of illicit drugs
and its availability and supply and contributing to a better understanding of
all aspects of the drugs phenomenon.

Article 37: Environmental protection

The Charter in
Article 37 establishes that everyone has the right to access preventive health
care and the right to benefit from medical treatment under the conditions
established by national law and practices. A high level of human health
protection shall be ensured in the definition and implementation of the Union's policies and activities.

Legislation

The European
Commission adopted a proposal for a revised Nuclear Safety Directive[66] which
in the European Commission's view would have a potential beneficial impact on environmental
protection, as well as fundamental rights related to fair and just working
conditions and health care. In its proposal the European Commission introduces
more stringent EU‑wide safety rules. Primary responsibility
for the safety of nuclear power plants lies with their operators who are
supervised by national regulators. The revised Nuclear Safety Directive
strengthens the role and independence of these national regulators. The
proposal also establishes a mechanism for developing EU-wide harmonised nuclear
safety guidelines and includes new provisions for on-site emergency
preparedness and response.

Dropping of blocks
in Algeciras Bay

MEPs
have raised several questions concerning landfill practices in Gibraltar. MEPs pointed out that blocks have been dumped in Algeciras Bay by Gibraltar, which will have a major environmental impact. This matter was also brought to
the attention of the European Commission by Spain. While the EU law on the
Common Fisheries Policy does not apply to Gibraltar[67], the European Commission has started assessing those parts
of the claims that pertain to applicable EU law (i.e. environmental law).

Article 38: Consumer protection

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

Legislation

13 December 2013
was the deadline for transposing into national laws the Consumer Rights
Directive[68]. The
new Directive strengthens consumer protection in particular when buying on the
Internet. The new rules will, amongst others, eliminate hidden charges and
costs on the Internet and ban pre-ticked boxes that offer additional options.
Furthermore, consumers can return goods within a period of 14 days and they
have better refund rights. In the course of 2013, the European Commission
continued assisting Member States in the transposition of the Consumer Rights
Directive. The European Commission also worked on guidance for the national
enforcement authorities, which will be issued in 2014. The national measures
will apply as from 13 June 2014, so that the European Commission will now check
if all Member States have implemented the rules correctly.

National consumer
law enforcement authorities continued to check, coordinated by the European
Commission, if traders of websites selling digital content (i.e. games,
e-books, videos and music), complied with EU consumer law. As of October 2013, 80%
of the 330 websites checked, which cover a large share of the market, were
found to be in line with EU consumer law.

On 14 March 2013,
the European Commission adopted a Report[69] and a
Communication[70] on the Functioning
of the Unfair Commercial Practices Directive. This Directive[71]
provides the legal basis to tackle misleading and aggressive commercial
practices across the EU, such as fake ‘free’ offers, ‘bait’ advertising for
products which cannot be supplied, and direct targeting of children. It appears
that the directive helps restraining unfair business practices. However, it
also emerged that further enforcement efforts should be made, especially at
cross-border level. The European Commission will take a more prominent role in
this process. The European Commission continued a pre-infringement dialogue
with 25 Member States regarding the correct transposition of the Directive.
Whilst a number of cases could be closed and/or the necessary legislative
amendments were tabled by the Member State concerned, the European Commission
also opened a number of infringement procedures for incorrect transposition.

The European
Commission completed the transposition conformity check of the Timeshare
Directive[72]. It
opened the pre-infringement dialogue with 19 Member States. The Timeshare
Directive ensures consumer protection by imposing more stringent rules related
to the information the trader has to provide to the consumer. It also
safeguards the consumer's right to withdraw from a contract.

In 2013, the European
Commission also worked actively to ensure full and correct implementation of
other existing consumer protection directives.

Two new EU
legislative acts, aiming to promote consumer rights, were adopted on 21 May
2013. The Directive on alternative dispute resolution for consumer disputes[73] ensures
that for resolving consumer disputes, consumers have access to alternative
dispute resolution entities and procedures that respect a number of binding requirements.
The Regulation on online dispute resolution for consumer disputes[74]
provides for the establishment of a European Online platform that facilitates
the resolution of consumer disputes arising from online transactions.

On 9 July 2013 the European
Commission adopted a proposal to reform the Package Travel Directive[75]. The
reform proposal responds to changes in the travel market. The proposal extends
the protection granted to traditional pre-arranged package holidays also for
customised holidays. The reform further increases transparency and strengthens
consumer protection in case something goes wrong.

The European
Commission also presented a legislative package on payment accounts[76].
Consumers will have to be provided by transparent and comparable information
concerning financial products. In addition the proposal contains a specific
provision on non-discrimination, requiring Member States to ensure that
consumers are not discriminated against when applying for or accessing a
payment account. The package is currently under consideration by the European
Parliament and the Council.

In September 2013,
the European Commission adopted a proposal for a Regulation on indices used as
benchmarks in financial instruments and financial contracts[77]. The
proposal aims to subject benchmarks as provided by market players in the
financial sector to clearer standards and supervision. It envisaged giving
competent authorities powers of control and enforcement, including e.g. access
to data transfers upon request. The European Commission assessed the potential
impact of the proposal on the right to the protection of personal data, the
right to freedom of expression and information and the freedom to conduct a
business.[78]

Negotiations on the
Directive on credit agreements relating to residential immovable property[79] have
continued in 2013. The level of consumer protection has been duly taken into
consideration during the discussions with the Council and European Parliament,
by for instance the introduction of a ban on tying practices.

Policy

Collective redress is one
of the mechanisms that has been analysed since several years by the EU
institutions as to its capacity to contribute to the development of the
European area of justice to ensure a high level of consumer protection. On 11
June 2013 the European Commission adopted instruments[80] inviting
Member States to establish collective redress mechanisms in cases of
infringements of rights granted under Union law. Collective redress allows
similar legal claims to be bundled into a single court action. It is expected
that consumers will be the main beneficiary group of the introduction of
collective redress at national level.

5. Citizens' rights

The European Commission
adopted its 2013 EU Citizenship Report putting forward new actions in
key areas to ensure that citizens can fully enjoy their EU rights in their
everyday life.

In order to make it less
burdensome for EU citizens to participate in the European elections, the
procedure for EU citizens to stand as candidates for the European Parliament
when residing in an EU Member State of which they are not nationals was
simplified.

The European Commission made recommendations
to further enhance the transparency and efficiency of the European elections,
such as the recommendation that European and national political parties make
known their preferred candidate for President of the European Commission and
inform citizens about that candidate's programme.

The European Commission
pursued a rigorous enforcement policy with a view to achieving the full and
correct transposition and application of the EU free movement rules across
the EU.
Following the action announced in its 2010 EU Citizenship Report,
the European Commission pursued a dialogue with several Member States to ensure
that EU citizens can found and become members of political parties in the Member State in which they reside.

Article 39: Right to vote and stand as a
candidate at elections

Article
39 of the Charter as well as Article 20 (2) b of the Treaty on the Functioning
of the European Union (TFEU) guarantee the right of every EU citizen to vote in
the European elections in whichever Member State they reside. Both articles also
provide for the right of EU citizens to vote and to stand as candidates at
municipal elections in the Member State in which they reside.

Legislation

In
January 2013 a directive[81] adopted on a proposal by the European
Commission entered into force. It simplifies the procedure for EU citizens to
stand as candidates for the European Parliament when residing in an EU Member
State of which they are not nationals and hence contributes to mobilizing
citizens' participation in the democratic life of the EU. The European
Commission is following the transposition of this Directive in the national
legislation of the Member States for which the deadline is 28 January 2014.

Policy

On 12
March 2013, the European Commission adopted a Communication[82]
and a Recommendation[83] for further enhancing the
democratic and efficient conduct of the European Parliament elections. The European
Commission called on national political parties, European political parties and
the Member States to take measures to promote the transparency of the European
Parliament elections and encourage genuine pan European debates to help
stimulate voter interest and ultimately reinforce the democratic legitimacy of
the EU decision-making process.

The European
Commission recommended notably that:

· Voters
are informed of the affiliation between national parties and European parties;

· European
and national political parties make known their preferred candidate for
President of the European Commission and inform citizens about that candidate's
programme;

· Member
States should agree on a common day for the European elections, with polling
stations closing at the same time.

The European
Commission will report on the implementation of these recommendations after the
2014 European elections.

Reform of the Bulgarian electoral
legislation

The Bulgarian legislation provided additional
requirements on non-Bulgarian EU citizen asking them to submit the number of
their residence certificate and date of registration as a condition for their
inclusion on the electoral rolls or for standing as candidates.

The European Commission considered that such
requirements went beyond what national authorities could require under EU law
(Directive 94/80/EC on municipal elections and Directive 93/109/EC on European
Parliament elections) and launched an infringement proceeding against Bulgaria. On 25 February 2013, the Bulgarian authorities announced that the Electoral Code
had been amended to remove the additional requirements.

Following
the action announced in its 2010 EU Citizenship Report (action 18), the European
Commission pursued a dialogue with Member States to ensure that EU citizens can
found and become members of political parties in the Member State in which they
reside. Four cases were successfully clarified. Two Member States provided
satisfactory explanations on the domestic legislation. Two further Member
States modified their legislations by removing the restrictions identified by
the European Commission. The European Commission launched infringement procedures
against seven other Member States.

Article 41: Right to good administration

Every
person according to Article 41 of the Charter has the right to have his or her
affairs handled impartially, fairly and within a reasonable timeframe by the
Institutions, bodies and agencies of the Union. It also includes the right to
be heard and to receive a reply.

Policy

A huge
number of enquiries are addressed by citizens to the European Commission,
whether by phone, e-mail or correspondence. The European Commission commits
itself to answering them in the most appropriate manner and as quickly as
possible. The general rule applied in the European Commission is that every
letter is registered and, with the exception of those that are unreasonable,
repetitive or abusive, should receive a reply within 15 working days from the
date of receipt of the letter. The European Commission also takes care that
replies are sent in the language of the author of the correspondence, provided
that it was written in one of the official language of the Union. For
complaints and enquiries by citizens on the application of EU law, the European
Commission uses an IT tool for registering and managing this specific kind of
correspondence.

Ruling of the Spanish Supreme Court[84]

In this case the Regional Council of Alava decided to
recover an amount of tax benefits of the applicant, a company. The decision of
the Regional Council of Alava implemented a decision of the European Commission
(Decision 2002/820/EC) in which the European Commission declared the tax
benefits to constitute unlawful and incompatible State aid. The Regional Council
of Alava took its decision without the hearing of the applicant. The applicant
brought the case to court and claimed that there had been a violation of its
right to be heard. The Supreme Court determined that the provisions of the
Charter are also addressed to the Member States while applying EU law and that
this was the case at stake since Spain was implementing a European Commission
Decision. The Supreme Court thus ruled that Article 41(2) of the Charter, which
guarantees "the right of every person to be heard, before any individual
measure which would affect him or her adversely is taken", must be taken
into account. Despite the principle of procedural autonomy and that European
Commission Communication 2007/C272/05 states that Member States should use
fast-track procedures where possible, these procedures must be in accordance
with the fundamental rights laid down in the Charter. The Supreme Court decided
that the procedure to recover unlawful State aid must always respect the right
to be heard.

Article 42: Right of access to documents

The
Charter in Article 42 guarantees that any EU citizen and any natural or legal
person residing or having its registered office in a Member State, has a right
of access to documents of the EU institutions, bodies, offices and agencies.
This right is subject to certain exceptions.[85] In
particular, the institutions refuse access where disclosure would undermine the
protection of the public interest and the lawful exercise of their duties.

In 2012,
the European Commission registered 6525 requests for access to documents, which
is about 500 more than in 2012. As in the past, 4 out of 5 requests were
granted at the initial stage. In 2013, the European Commission received 237
confirmatory applications, a slight increase compared to 2012. Such
applications are reassessed by case handlers acting independently from the ones
that handled the initial application. This review has led to wider access being
granted in around half the cases. In 2013 the European Commission received by
the European Ombudsman 21 cases concerning the fundamental right of access to
documents, of which 15 cases were strictly related to access to documents, and
in 6 cases access to documents was a subsidiary concern.

Case law

In 2013,
the CJEU delivered several interesting judgments concerning access to
documents. In the first case[86] concerning
transparency and access to documents the CJEU confirmed the judgment of the
General Court[87] which gave access
to a document of the Council including the identities of the Member States
which had intervened during a meeting of a Council Working Group concerning
the proposal for a new regulation regarding public access to EP, Council and European
Commission documents. The Council had justified its refusal to disclose the
identities of those Member States on the ground that disclosure of those
identities would have seriously undermined its decision-making process and
there was no overriding public interest in such disclosure.[88]

In
another case concerning the right of access to documents containing
environmental information, the Court[89] decided
that a document where the information requested relates to emissions into the
environment must be disclosed, even if such disclosure is liable to
undermine the protection of the commercial interests of a particular natural or
legal person, including that person’s intellectual property. The Court
added that this interpretation cannot be called into question under the pretext
of an interpretation that is in conformity with Articles 16 and 17 of the
Charter which enshrine, respectively, the freedom to conduct a business and the
right to property.

Furthermore,
the Besselink case[90] needs to be
pointed out, where the General Court annulled in part the Council decision
refusing access to a document concerning the accession of the EU to the ECHR.
The Court held that the Council made an error of assessment in refusing access
to one of the negotiating directives it had adopted when authorising the European
Commission to open the accession negotiations. The position reflected in this
directive had already been communicated to the negotiating partners and
therefore the disclosure of that document could not jeopardise the climate of
confidence between the negotiating parties.

Article 43: European Ombudsman

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

In 2013,
the Ombudsman was able to help more than 23 000 citizens. This includes
individuals who complained directly to the European Ombudsman (2 420 complaints),
those who received a reply to their request for information ( 1 407) and those
who obtained advice through the interactive guide on the European Ombudsman's
website (19 418).

Over 60
% of the complaints were within the competence of a member of the European
Network of Ombudsmen, and 31 % fell within the European Ombudsman's mandate.[91]

Article 45:
Freedom of movement and residence

The
Charter guarantees the right of every EU citizen to move and reside freely,
whilst respecting certain conditions, within the territory of the Member
States. This fundamental right is also included in the Treaty on the
Functioning of the EU.

Legislation

Concerning
the freedom of movement of workers, the European Commission proposed measures
facilitating the exercise of rights conferred on workers[92] by introducing a
legal obligation for Member States to provide workers who consider they have
suffered or are suffering from unjustified restrictions to their right to free
movement or consider themselves wronged by failure to apply the principle of
equal treatment to them, with appropriate means of redress at national level.
The proposal covers both judicial and extra-judicial means of redress,
including alternative dispute settlement mechanisms such as conciliation and
mediation. Ombudsmen and equality bodies or other similar structures may also
provide an alternative to the general courts, in accordance with Article 47 of
the Charter which encourages Member States where only administrative procedures
are provided to ensure that any administrative decision may be challenged
before a tribunal.

In 2005,
the European Commission had submitted a proposal Directive on facilitating
free movement through better conditions for the acquisition and preservation of
supplementary pension rights, and a revised proposal in 2007. The Council
reached a general approach in June 2013. The trilogue concluded with a
compromise agreement in November 2013, thus paving the way for the adoption of
the Directive before the 2014 European elections. The agreed proposal provides
that workers' occupational pension rights should be granted no later than after
three years of employment relationship and preserved after they leave the
pension scheme. Under the compromise agreement, the Directive would only apply
to workers who move between Member States, however Member States may extend
these standards also to workers who change jobs within a single country.

The
European Commission also adopted a proposal on promoting the free movement
of citizens and businesses by simplifying the acceptance of certain public
documents in the EU[93]. This proposal
promotes the application of the Charter in particular by addressing the
indirect discrimination of nationals of other Member States in comparison with
own nationals; by promoting the right to move and reside freely within the
territory of the Member States, to seek employment, to exercise the right of
establishment and to provide services or conduct business in other Member
States (Articles 45, 15 and 16 of the Charter). The proposal also positively
impacts on the right to respect for private and family life, the right to marry
and found a family, the right to property as well as on the rights of the child
(Articles 7, 9, 17 and 24 of the Charter).

In order
to achieve
correct transposition and application of EU free movement rules across the EU
the European Commission had launched infringement procedures against
twelve Member States in 2011, followed by
reasoned opinions in seven instances in 2012. In the course of 2013, two Member
States adopted the provisions necessary to fully transpose the EU free movement
rules, hence solving all the issues raised by the European Commission. The European
Commission is closely monitoring progress in the remaining Member States.

Based on
numerous individual complains and petitions received, the European Commission
took action to ensure that nationals of other Member States residing in Malta
are not discriminated against on grounds of their nationality. It raised
in particular issues related to discriminatory treatment as regards access to
reduced water and electricity tariffs and bus tariffs, treatment which creates
an unacceptable obstacle to exercising the right to free movement and
residence. The European Commission is also investigating other cases in which
Maltese nationals have allegedly obtained preferential treatment in comparison
with other EU citizens.

The European
Commission requested Italy to allow third country nationals who are family
members of EU citizens to access public employment. As a result, Italy modified its legislation in accordance with EU law.

Within
the scope of proceedings against Belgium aiming to ensure that children born in
Belgium with one Belgian parent and one parent of another EU Member State can
be registered with the double surname with which they are registered in
the consulate of another EU Member State, Belgium has committed itself to amend
its legislation. The European Commission is pursuing its dialogue with the
Belgian authorities about the attribution of surnames to children born in Belgium where both parents are EU citizens from another Member State.

Spain
promised to amend its legislation in response to the European Commission's request
to ensure that partners in a durable relationship are able to enjoy
their right of free movement.

After receiving numerous
complaints from holders of Swedish identity cards prevented from
travelling to an EU country outside the Schengen area on the basis of this
document, the European Commission contacted the Swedish authorities who
committed to amend their legislation to ensure that Swedish nationals can
travel freely to any country within the EU with their national identity card.

Policy

In
November 2013, the European Commission has adopted a Communication on Free
Movement[94], which underlines
the joint responsibility of Member States and the EU institutions to uphold EU
citizens' rights to live and work in another EU country and outlines concrete
actions to support Member States efforts to do so while helping Member States
to reap the positive benefits it brings. The policy paper clarifies EU
citizens' rights to free movement and access to social benefits, and addresses
the concerns raised by some Member States in relation to the challenges that
mobility can represent for local authorities.

Actions 3 and 10 of the 2013 EU Citizenship
Report – lifting obstacles to free movement of persons

Almost one in
five of the respondents to the 2012 public consultation on EU citizenship who
used their right to free movement experienced problems, often due to lengthy or
unclear administrative procedures. Another problem was that local
administrations were not always aware of citizens’ free movement rights.

 Source: 2012 Public consultation on EU
citizenship - Base: Respondents who faced problems while moving or residing in
another EU country

The European
Commission committed to further list obstacles to citizens' enjoyment of their
rights to free movement and residence by developing an e-training tool
enabling local administrations to fully comprehend free movement rights of EU
citizens (action 10). It also announced solutions to remove obstacles faced by
EU citizens and their family members in relation to identity and residence
documents issued by Member States, including through optional uniform
European documents for citizens, where applicable (action 3).

Article 46: Diplomatic and consular
protection

Article
46 of the Charter guarantees the right of unrepresented EU citizens to seek
diplomatic or consular protection from embassies or consulates of other Member
States in third countries under the same conditions as nationals. EU citizens
must be able to rely effectively on this right when travelling abroad.

Legislation

The right
of unrepresented Union citizens to enjoy the protection of the diplomatic or
consular authorities of any Member State under the same conditions as for the
nationals of that Member State is enshrined in the Treaty on the
Functioning of the EU (Article 20 (2) (c) and 23) and in the Charter (Article
46). The European Commission proposed on 14 December 2011 a set of clear
and legally binding rules on cooperation and coordination between the Member
States' consular authorities, with a view to ensuring that Union citizens enjoy
effective consular protection, regardless of their nationality. The discussions
on this proposal are still on-going in the Council.

6. Justice

Following
the analysis of the national implementation of the Visa Code on the
right to appeal against a visa refusal/annulment/revocation, the European
Commission raised a number of questions on the compatibility of national
legislations with the provisions of the Visa Code and of the Charter. It
concluded that the right to an effective remedy and to a fair trial, as
enshrined in Article 47 of the Charter, requires that the appeal against a visa
refusal, annulment or revocation, includes, as only or last instance of appeal,
access to a judicial body. Letters of Formal Notice were sent to several Member
States.

In
November 2013, the European Commission has proposed a procedural
rights package consisting of three directives and two European Commission
recommendations. These five legal measures are to make further
progress on the Procedural Rights Agenda and to strengthen the foundation for
the European area of criminal justice.

The European Commission has also adopted a proposal for a Council
Regulation on the establishment of a European Public Prosecutor's Office
(EPPO). The Charter constitutes the common basis for the protection of
rights of suspected persons in criminal proceedings during the pre-trial and
trial phase. The activities of the European Public Prosecutor's Office should
in all instances be carried out in full respect of those rights.

The
CJEU held in Åkerberg
Fransson that the right not to be tried or
punished twice in criminal proceedings for the same offence does not
preclude a Member State from imposing, for the same acts, a combination of tax
penalties and criminal penalties.

In the Melloni
case, the CJEU confirmed that the fundamental constitutional principle of primacy
of EU law also applies to the relationship between the Charter, on the one
hand, and the national constitutional provisions on fundamental rights, on the
other hand. A Member State may thus not invoke a provision of its
constitution, even if it ensures a higher level of protection of a fundamental
right than the Charter, as a ground for not applying a clear provision of
EU law.

Article 47: Right to
an effective remedy and right to a fair trial

Article 47 of the Charter provides that when EU rules give a
right to a person, he or she can go before a court in case this right is
violated. This protection is called a right to an effective remedy,
because it provides to individuals a legal solution decided by a tribunal when
an authority used EU law in an incorrect way. The right to an effective remedy
guarantees judicial protection against violations of any EU rule which grants
rights to people. It therefore plays a key role in ensuring the effectiveness
of all EU law, ranging from social policy, to asylum legislation, competition,
agriculture, etc.

Article 47 of the Charter does not only provide a right to an
effective remedy and to a fair trial, but it also stipulates that legal aid
shall be made available to those who lack sufficient resources, in so far as
such aid is necessary to ensure effective access to justice. This means that
the right to effective access to justice cannot be hampered by the fact that a
person cannot afford to take a lawyer.

The right to an
effective remedy and to a fair trial as the Charter right most frequently
referred to in national case law

Data collected by
FRA shows that
the right to an effective remedy and a fair trial was the Charter right most
frequently referred to in national court rooms, accounting for 14% of all the
references to the Charter which were analysed in 69 national judgments. This is
in line with earlier findings, including the data collection by FRA of 2012.

             Right to an effective
remedy and a fair trial

Legislation

The EU legal framework on victim's rights was significantly
reinforced by the adoption, of a Regulation on mutual recognition of
protection measures in civil matters[95].
The Regulation establishes a simple and rapid mechanism for the recognition
of protection measures ordered in a Member State in civil matters. With this
Regulation, citizens (in most cases women who have restraining orders against
someone) can be assured that the order obtained in their home country will have
the same standing wherever they are in the EU.

The European Commission has launched infringement procedures
against Poland on this matter as a result of which Poland has amended its Civil
Procedural Code, and excluded the application of this notional service method
in relation to addressees residing in other Member States. The amendment
entered into force in August 2013.

After careful analysis of the information provided by Member
States on the national implementation of the provisions of the Visa Code
(Regulation (EC) No 810/2009) on the right to appeal against a visa
refusal/annulment/ revocation, the European Commission raised a number of
questions on the compatibility of the national legislation of several Member
States with the provisions of the Visa Code and Article 47 of the Charter. The European
Commission concluded that the right to an effective remedy and to a fair trial
enshrined in Article 47 of the Charter requires that the appeal against a visa
refusal, annulment or revocation, includes, as only or last instance of appeal,
access to a judicial body. The European Commission considered that 6 Member
States were not compliant with Article 47 of the Charter combined with the
relevant articles of the Visa Code, as these Member States did not provide
access to a judicial body. Letters of Formal Notice were sent to these Member
States in early 2013. In reply to the European Commission's letter of formal
notice, the Hungarian authorities announced that they accept the European
Commission's analysis and that they have decided to amend Hungarian law in
order to introduce, as a last instance of appeal, access to a judicial body.
The amending act introducing into Hungarian law the possibility for judicial
review as a last instance of appeal against decisions to refuse/revoke/annul a
Schengen visa has entered into force on 1 July 2013. Against this background, the
European Commission decided to close the case. The initial replies from the 5
other concerned Member States stated their disagreement with the analysis made
by the European Commission. These replies are currently under assessment.

The European Commission welcomed the adoption of the Fifth
Amendment to Hungary's Fundamental Law which addressed the Commission's
concerns as to the conformity of the Fourth Amendment with EU law. These
concerns related in particular to the clause on European Court of Justice
judgments entailing payment obligations and the clause giving powers to the
president of the national office for the judiciary to transfer cases from one
court to another. The Commission was concerned that these clauses could affect
the effective application of Union law in Hungary and the fundamental
rights of citizens and businesses to an effective remedy by an independent
court in Union law cases, as guaranteed by Article 47 of the EU
Charter of Fundamental Rights. These clauses have now been removed.

Case law

The EU has the possibility to take sanctions or restrictive
measures which might impact on the fundamental rights of the addressee of these
measures. In the Kadi II[96]
appeal judgment, the Court clarified certain procedural rights of persons
suspected to be associated with terrorism, such as the right to good
administration and the right to an effective remedy and to a fair trial
(Articles 41 and 47 of the Charter). The Court ensured the protection of
fundamental rights and freedoms whilst recognising the imperative need to
combat international terrorism. The assets of Mr Kadi had been frozen by
the European Commission to implement a decision of the UN Sanctions Committee
established by a resolution of the UN Security Council. The Court stated that,
since no information or evidence had been produced by the European Commission
to substantiate the allegations of Mr Kadi being involved in activities linked
to international terrorism, roundly refuted by him, those allegations did not
justify the adoption, at EU level, of restrictive measures against him.[97]

In a preliminary ruling regarding costs of national
judicial proceedings in EU environmental matters[98], the CJEU
clarified that the requirement under the EU Directive that the cost should be
‘not prohibitively expensive’ also concerns the respect of the right to an
effective remedy under Article 47 of the Charter. The Court explained that in
its assessment whether the national rules (in this case UK law) ensure
effective judicial protection in the field of environmental law without
excessive cost, the national court should not only look at the claimant's
financial situation (subjective analysis), but should also carry out an
objective analysis of the amount of the costs of litigation before national
courts. The cost of proceedings must neither exceed the financial resources of
the person concerned nor appear, in any event, to be objectively unreasonable.
The national court may also take into account the situation of the parties
concerned, whether the claimant has a reasonable prospect of success, the
importance of what is at stake for the claimant and for the protection of the
environment, the complexity of the relevant law and procedure, the potentially
frivolous nature of the claim at its various stages, and the existence of a
national legal aid scheme or a costs protection regime. The CJEU stated that
the requirement under the EU directive that judicial proceedings should not be
prohibitively expensive means that the persons covered by those provisions
should not be prevented from seeking a review by the courts by reason of the
financial burden that might arise as a result.

In a preliminary ruling concerning national court jurisdiction
for disputes regarding EU agricultural aid[99], the CJEU examined
whether it is in accordance with Article 47 of the Charter if national
jurisdictional rules confers all the disputes relating to decisions of a
national authority responsible for the payment of agricultural aid under the
common agricultural policy to a single national court. The CJEU looked into the
length of proceedings before this specialised national court (in Bulgaria) and found that the average length of proceedings of six to eight months, in
principle, does not appear excessive in the context of the single area payment
scheme. The CJEU clarified that the fact that disputes are concentrated before
the referring court allows that court to acquire specific expertise by ruling
on issues relating to agricultural aid, thereby limiting the average length of
the proceedings. In addition, a centralised court, specialising in agricultural
aid, seems likely to ensure uniform practice throughout the national territory,
thereby contributing to legal certainty. The CJEU noted that that a farmer who
is challenging a decision of the national administration on agricultural aid,
is not obliged to appear in person before this specialised court but can be
represented by a lawyer, a relative or other persons. The CJEU concluded that
Article 47 of the Charter does not preclude a national rule of jurisdiction
conferring on a single court all disputes relating to EU agricultural aid,
provided that court actions are not conducted in in less advantageous
conditions to those under national aid schemes, and that jurisdiction rule does
not cause individuals procedural problems, e.g. regarding the duration of the
proceedings, such as to render the exercise of the rights derived from EU law
excessively difficult.

In June 2013, the Austrian Administrative Court ‘Unabhängiger
Verwaltungssenat’ has lodged a request for a preliminary ruling to the CJEU[100] on the interaction between the transparency principle
under the ‘Environmental Information Directive’ 2003/4/EC and the right to a
fair trial as stipulated in Article 47 of the Charter. The case is still pending.

In the Alder case[101] the CJEU held that a system for national domestic service of
documents in cases where the party to be served resides in another Member State and has a known address there, is incompatible with the objective of
protecting the rights of the defence envisaged in Regulation No
1393/2007. In this case, Polish procedural law required a representative in the
forum Member State for purposes of serving judicial documents to parties
residing in other Member States, and allowed the court as a sanction for not
complying with this rule to use a notional service method, according to which
judicial documents addressed to that party were placed in the case file and
were deemed to have been effectively served.

Regulation 44/2001 on jurisdiction and the recognition and
enforcement of judgments in civil and commercial matters foresees the
recognition and enforcement of judgments in civil and commercial matters in
other Member States without exequatur, which is the procedure
for recognition and enforcement of a judgment in another Member State. The question which arises in this context is if automatic enforcement of a judgment
rendered in another Member State also has to take place, if this judgment was
rendered in clear violation of the right to a fair trial. In a case of a judgment rendered against it in the UK, the company Trade Agency submitted a cassation complaint to the Latvian Supreme Court[102]
complaining about the lower instance Latvian courts which had recognized a
judgement of the Supreme Court the United Kingdom by default. The company
claimed it did not receive the notification of the litigation process in the United Kingdom, which constituted a violation of the right to a fair trial. The Senate of
the Supreme Court in Latvia referred two questions to the CJEU. It asked if the
Latvian Court had a competence to review the evidence before recognizing the
judgement under the Regulation 44/2001 on jurisdiction and the recognition and
enforcement of judgments in civil and commercial matters. It also asked if the
fact that the decision was given in default of appearance of the applicant was
compatible with Article 47 of the Charter. The CJEU[103] ruled that Regulation 44/2001 shall be interpreted in a way
which (1) allows the court of the Member State where the judgement shall be
enforced to crosscheck the evidence and (2) does only allow refusal of the
enforcement of the judgement if it is clear from the context of the case that
there is a violation of fair trial rights enshrined in Article 47 of the Charter.

Ruling of the
Constitutional Court of the Slovak Republic[104]

A Slovak
Arbitration Court ruled on a case in which the applicant claimed
insurance payments. The Arbitration Court ruled in favour of the applicant. The
executor then asked the district court to issue authorisation to launch
distraint proceedings, which consist in the seizure of someone's property in
order to obtain payment of a dept. When deciding on the case, the district
court established the facts of the case anew, ignoring the case file of the Arbitration Court. Based on gathered evidence, it refused to schedule a hearing and
adjudicated without the applicant’s participation, rejecting the executor’s
motion for the commencement of distraint procedures. The case was brought to
the Constitutional Court, which made reference to Directive 93/13/EEC on unfair
terms in consumer contracts and to case law of the CJEU. The Constitutional Court pointed out that when implementing EU law the national court must
respect the requirements of effective judicial protection of the rights that
individuals derive from Union law, as guaranteed by Article 47 of the Charter.
Among those requirements is the principle of audi alteram partem, which
does not only confer on each party to proceedings the right to be apprised of
the documents produced and observations made to the court by the other party
and to discuss them, but it also confers a right on the parties to be apprised
of pleas in law raised by the court of its own motion, on which it intends to
base its decision, and to discuss them. The Constitutional Court thus confirmed
the case law of the CJEU and decided that the lower courts were bound to ensure
the protection of the applicant's right to be present when his case was tried
and his right to deliver opinions on all pieces of evidence.

             Right to legal aid

The main recurrent problem addressed by citizen's in their
letters to the European Commission in regard to the right to legal aid as
enshrined in Article 47 of the Charter is the restriction of the scope of
Directive 2003/8/EC to improve access to justice in cross-border disputes by
establishing minimum common rules relating to legal aid for such disputes ('the
legal aid directive') to civil and commercial matters, excluding administrative
matters. The provisions of this directive apply to
"cross-border" civil cases, in other words where the person
requesting legal aid does not live in the Member State where the case will be
heard or where the decision is to be enforced. In
2013, the European Commission has contacted 18 Member States via the EU Pilot
communication system regarding their implementation of the legal aid Directive.

The European Commission's Recommendation on the right to
legal aid for suspects or accused persons in criminal proceedings, which forms
part of the procedural rights package proposed in November 2013, is discussed
below under Article 48 on the presumption of innocence and the right of
defence.

Ruling of the
Supreme Administrative Court of Poland[105]

In this case the
applicant initiated an appeal before the Regional Administrative Court. The Regional Administrative Court pointed out that the cassation complaint brought by the
applicant did not contain the applicant’s personal signature, but only
contained the electronic signature. The applicant was asked to rectify this
formal shortcoming; otherwise his cassation complaint would be rejected. The
applicant refused, as he considered that he was authorized to use the
electronic signature. When the case was brought before the Supreme Administrative
Court it decided that the lack of procedural regulation for lodging pleadings
signed with an electronic signature does not affect the right to access to a
court under Article 47 of the Charter as neither this provision nor the CJEU
provide for such procedural requirements. Although this is a purely internal
matter and the Charter is not applicable, the Court used the Charter to check
the legality of national law. The Supreme Administrative Court concluded that
the adoption of appropriate procedural rules to allow enjoyment of the right to
access to a court is left to the Member States, in accordance with the
principle of procedural autonomy, and thus confirmed that the cassation
complaint could be rejected due to formal shortcomings.

Article 48: Presumption
of innocence and right of defence

Article 48 of the Charter provides that everyone who has been
charged shall be presumed innocent until proven guilty according to the law. It
further specifies that respect for the right to defence of anyone who has been
charged shall be guaranteed.

Safeguarding procedural rights of suspect and accused
persons remains a priority of the European Commission. Both the Charter
(especially Articles 47 and 48) and the ECHR (especially Articles 5 and 6)
constitute the common basis for the protection of the rights of suspected or
accused persons in criminal proceedings in the pre-trial and in trial stages.

Legislation

Mutual recognition as the cornerstone of judicial cooperation
implies the development of equivalent standards of procedural rights in
criminal proceedings. It presupposes that the competent authorities of the
Member States trust the criminal justice systems of the other Member States.
Mutual trust will be greatly enhanced if Member States are confident that their
neighbours have a criminal justice system that guarantees fair trials.

On 27 November 2013, the European Commission has
proposed a procedural rights package consisting of three directives and
two European Commission recommendations[106].
These five legal measures are to make further progress on the
Procedural Rights Agenda and to strengthen the foundation for the European area
of criminal justice.

First, the European Commission is proposing a directive on
the presumption of innocence, as it should always be for the prosecution
to prove a suspect is guilty, and not for the suspect to prove he is innocent.
A suspect cannot be considered guilty if he was never given the chance to
defend himself in trial by being present, and no one can infer guilt from a
suspect's silence.

Second, the European Commission is proposing a directive on special
safeguards for children involved in criminal proceedings. Children do not
always understand the consequences of their actions. They should not be allowed
to waive their right to a lawyer. Children should also benefit from a set of
other safeguards such as prompt information about their rights, assistance by
their parents or another appropriate adult, recording of interviews and
specific protection in case of deprivation of liberty. All these measures
should enable children to exercise their right to a fair trial, to prevent
re-offending and foster their social reintegration. Through the European
Commission Recommendation on procedural safeguards for vulnerable persons
suspected or accused in criminal proceedings, the European Commission is asking
Member States to provide a set of similar safeguards to vulnerable suspects
such as persons with a disability or mental impairment.

Third, the European Commission is proposing a Directive on
provisional legal aid for suspects or accused persons deprived of liberty
and legal aid in European arrest warrant proceedings, which will cover the
early stages of proceedings, when suspects are deprived of liberty and thus in
most need of help. The European Commission wants to make sure any suspect under
a European Arrest Warrant has access to legal aid in both the country of
issuance and the country of execution. The European Commission in its
Recommendation on the right to legal aid for suspects or accused persons
in criminal proceedings is also recommending to Member States to take into
account common objective criteria when assessing if a person is eligible for
legal aid. The European Commission recommendation clarifies the case-law and
promotes convergence between the different legal systems with a view to
strengthening mutual trust.

Another important step in safeguarding procedural rights in
the EU was the adoption of the Directive on the right of access to a lawyer
and to have a third party informed upon deprivation of liberty[107].
With this landmark Directive, all suspects are guaranteed the right to be
advised by a lawyer (including confidential meetings and allowing the lawyer to
play an active role) from the earliest stages of proceedings (including at
police questioning) until their conclusion. Where a suspect is arrested, the
Directive also ensures that the person has the opportunity to communicate with
the family. If they are outside of their home country, citizens have the right
to be in contact with their country’s consulate.

The provisions of the Charter are taken into account in new
legislation proposed by the European Commission, and during the revision
processes of existing legislation. Examples of the mainstreaming of procedural
rights as enshrined in the Charter are the proposal on the European Public
Prosecutor's Office[108],
the revised Eurojust regulation[109],
the new OLAF regulation[110], and the negotiations on the confiscation and recovery of
criminal assets.[111]

On 17 July 2013 the European Commission adopted a proposal
for a Council Regulation on the establishment of a European Public
Prosecutor's Office (EPPO). Its exclusive task will be to investigate and
prosecute and, where relevant, bring to judgment – in the Member States' courts
- crimes affecting the EU budget. The European Public Prosecutor's Office will
be an independent institution, subject to democratic oversight. The proposal
includes a robust and comprehensive set of procedural safeguards, which will
ensure that the rights of suspects and other persons involved in the European
Public Prosecutor's investigations will be protected both by existing EU
legislation and by national defense rights. The proposal clarifies that the
suspected person has all rights granted by EU legislation and the Charter.
These rights are listed explicitly, and include the rights to:

·
interpretation and translation,

·
information and access to the case materials,

·
access to a lawyer and to communicate with and have third
persons informed in case of detention,

·
remain silent and to be presumed innocent,

·
legal aid,

·
present evidence, appoint experts and hear witnesses.

In addition, the suspected person has the defense rights
granted by the national law governing the procedure. The
 Commission's proposal on the establishment of the EPPO contributes to
the strengthening of the protection of the Union's financial interests and the
further development of an area of justice, and to enhance the trust of EU businesses
and citizens in the Union’s institutions, while respecting all fundamental
rights enshrined in the Charter. The Charter constitutes the common basis for
the protection of rights of suspected persons in criminal proceedings during
the pre-trial and trial phase. The activities of the European Public
Prosecutor's Office should in all instances be carried out in full respect of
those rights. This basic principle is enshrined in Articles 11 and 32 of the Commission's
proposal. Furthermore, the respect of the Charter is one of the key criteria
for the admissibility of evidence collected by the EPPO, as reflected in
Article 30 of the proposal.

The reform of Eurojust, which has taken the form of a
draft Regulation replacing the current Eurojust Council Decision, takes full
account of the Charter. An explicit reference to the compliance with the
Charter has been included in recital 8 of the proposal. Specific provisions
have been included to deal with the processing of personal data, and the
supervision over that processing has been entrusted to the European Data
Protection Supervisor.

A new Regulation 883/2013
concerning investigations conducted by OLAF[112] has been adopted in September 2013 and entered into force in
October 2013. It provides for specific procedural guarantees of the persons
subject to OLAF investigations. Although OLAF conducts purely administrative
investigations, a set of rights and guarantees for the person subject to
investigations applies. These include: the presumption of innocence, the right
to avoid self-incrimination, the right to be assisted by a person of his
choice, the right to obtain a copy of the interview records, and the right to
be given an opportunity to comment before conclusions of the investigation are
drawn up.

Data Protection
during computer forensic examination by the European Anti-Fraud Office OLAF

The European Data
Protection Supervisor (EDPS) has received several complaints about the manner in which OLAF had conducted an investigation and
an on-the-spot inspection, including a forensic examination of digital media,
in an EU institution. The EDPS examined the matter and concluded that OLAF’s
execution of the digital forensic examination complied with data protection
requirements.

The Staff Working Document on the Application of the Charter
in 2012 has already highlighted that the European Commission conducted a
thorough impact assessment and held extensive internal consultations in order
to ensure that all provisions of the proposal for a Directive on the
confiscation and recovery of criminal assets in the European Union[113]
fully respect fundamental rights. The Directive aims at attacking the financial
incentive which drives most serious and organised crime, at protecting the EU
economy against infiltration by criminal groups, and at returning criminal
assets to governments and citizens.
It lays down minimum rules for Member States with respect to
freezing and confiscation of criminal assets through direct confiscation, value
confiscation, extended confiscation, non-conviction based confiscation and
third-party confiscation. Non-conviction based confiscation procedures allow
the freezing and confiscation of property irrespective of a prior conviction of
its owner in a criminal court, and third-party confiscation involves the confiscation
of assets that have been transferred by an investigated or convicted person to
a third party. In order for the presumption of innocence and the rights of
defence of the person whose assets are confiscated to be respected, the introduction of harmonised non-conviction based
confiscation provisions is foreseen only for very limited circumstances, that
is where the defendant cannot be prosecuted due to death, illness or flight.
Extended confiscation is allowed only to the extent that a court finds, based
on specific facts, that a person convicted of an offence is in possession of
assets which are substantially more probable to be derived from other similar
criminal activities than from non-criminal activities. The convicted person is
given an effective possibility of rebutting such specific facts. Moreover, the
extended powers of confiscation cannot be applied to the alleged proceeds of
criminal activities for which the affected person has been acquitted in a
previous trial, or in other cases where the ne bis in idem principle
applies. Third party confiscation is allowed only under specific conditions,
that is where the acquiring third party paid an amount lower than market value
and should have suspected that the assets are proceeds of crime, and after an
assessment showing that confiscation of assets directly from the person who
transferred them is unlikely to succeed. Finally, specific safeguards and
judicial remedies are included in the proposal in order to ensure an equal
level of protection and respect for fundamental rights. These include the right
to be informed about the proceedings, the right to be represented by a lawyer,
the obligation to communicate any decision affecting property as soon as
possible and to have an effective possibility to appeal against such decision.
These specific remedies are foreseen not only for accused or suspected person
but also for other persons in the context of third party confiscation. The
proposal is currently being discussed in the European Parliament..

Policy

The European Commission continues to give financial
support for the training of legal practitioners on fundamental rights, following
the ambitious targets set in 2011 for expanding training for legal
practitioners in Europe on how to apply European law[114]. During 2013,
throughout the EU, training activities on EU fundamental rights were organised
for legal practitioners (judges, prosecutors, lawyers, notaries, court staff,
bailiffs, mediators). Around 9 % of all training activities on EU law topics
had their main EU component on EU fundamental rights issues. It should be noted
though that there are differences among the Member States: half of the
activities reported to the European Commission were organised in only 4 Member
States.

Case law

The EU institutions in a number of cases, irrespective of the
existence of UN Security Council resolutions, have adopted decisions and
regulations freezing the funds of persons and entities identified by the EU
institutions as involved in nuclear proliferation. Some of the persons and
entities concerned brought actions for annulment. They considered that the EU
institutions had not respected their rights of defence, as the reasons for the
restrictive measures had not been revealed to them, so they could not refute
the allegations. In a series of judgments[115]
the General Court annulled the acts of the EU institutions as regards several
of the applicants. It found that the EU institutions had not produced enough
evidence to justify the measures taken, and in certain cases that the EU
institutions had breached the obligation to state reasons and disclose
evidence.[116]

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

Some fundamental rights are guaranteed in absolute terms and
cannot be subject to any restrictions. Interferences with other rights may be
justified if, subject to the principle of proportionality, they are necessary
and genuinely serve to meet objectives of general interest recognised by the Union. Such justification is provided for in the proposal of the European Commission on the
protection of the euro and other currencies by criminal law[117].
In particular the right to liberty (Article 6), the respect for private and
family life (Article 7), the freedom to choose an occupation and right to
engage in work (Article 15), the freedom to conduct a business (Article 16),
the right to property (Article 17), the right to an effective remedy and a fair
trial (Article 47), the presumption of innocence and the right of defence
(Article 48), the principles of legality and proportionality of criminal
offences (Article 49), the right not to be tried and punished twice (Article
50) were assessed by the European Commission in relation to the proposed
criminal law measures. It was concluded that the proposed measures would affect
these fundamental rights, but that these interferences with fundamental rights
are justified because they serve to meet objectives of general interest
recognised by the Union, in this case to provide effective and deterring
measures for the protection of currencies.

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 shall be
held liable to be tried or punished again in criminal proceedings for an
offence for which he or she has already been finally acquitted or convicted.
Article 50 provides that criminal laws should respect this.

Legislation

The European Commission has advanced in negotiations on the
proposal for a Directive on the fight against fraud to the Union's financial
interests by means of criminal law[118]. The Union's financial
interests can be protected by both administrative and criminal sanctions. Both
types of sanctions co-exist at EU level. Severe administrative sanctions may be
considered punitive in nature. In that case, the imposition of such
'administrative' alongside criminal sanctions for the same offence upon the
same offender violates the right not to be tried or punished twice in criminal
proceedings for the same criminal offence under Article 50 of the Charter. The
proposal clarifies the relation between penalties under that directive and
other relevant administrative measures under Union law and requires full
respect for the right not to be punished twice.

Case law

In Åkerberg Fransson[119], the Haparanda District Court in Sweden was uncertain
whether criminal proceedings for tax evasion could be brought against a
defendant where a tax penalty had already been imposed upon him for the same
acts of providing false information. It referred the question to the CJEU
whether this practice is in line with the fundamental right not to be tried or
punished in criminal proceedings twice for the same offence. The CJEU observed
that with regard to the principle preventing a person from being punished
twice, this principle does not preclude a Member State from imposing, for the
same acts, a combination of tax penalties and criminal penalties. It is only if
the tax penalty is criminal in nature and has become final, that the principle
preventing a person from being punished twice will preclude the bringing of
criminal proceedings for the same acts. In the case at stake, the administrative
penalties were held to be criminal in nature and therefore are not applied any
more by Sweden in combination with criminal law sanctions when punishing the
same act.

Whereas the CJEU in the present case pronounced on the
compatibility with the Charter of the Swedish tax penalties and criminal
proceedings for tax evasion in relation to the EU rules on indirect tax, notably
VAT, the CJEU did however not rule on the legality of the parallel imposition
of tax penalties and criminal proceedings as concerns direct tax, including income
tax, since this is not regulated at Union level. In NJA 2013 s. 502, the
Swedish Supreme Court has, in a case of similar circumstances, extended the
reasoning of the Åkerberg Fransson judgment to a case of imposition of
tax penalties and criminal proceedings in the area of income tax. In this
judgement, where the Court had to assess the obligation to respect the
principle of ne bis in idem under the European Convention of Human
Rights (ECHR) it was concluded that the meaning of article 50 of the Charter
and the corresponding rule in article 4 of the ECHR protocol 7, should be given
the same interpretation and that, in any event, Article 4 of the protocol
should not entail a lower level of protection than Article 50 of the Charter.
It would thus appear that the Swedish Supreme Court referred to the CJEU
interpretation of a Charter provision, in order to establish the level of
protection of a corresponding provision in the ECHR.

The Charter is both
invoked by the parties as well as by the judge of his own motion in national
proceedings

Data collected by
FRA shows that
in approximately half of the national cases where the Charter is mentioned (out
of 69 national judgments analysed), the Charter was invoked by the parties in
the proceedings. In the other half of the cases the Court raised the Charter as
a legal argument of its own motion. This shows that the national courts are not
only reacting to Charter related arguments brought forward by the parties but
rather take a proactive approach by using the Charter as a legal source of
their own motion.

Article 53: Level of
Protection

Article 53 of the Charter stipulates that the Charter shall
not be interpreted in such a way as to restrict human rights and fundamental
freedoms as recognised in the Member States' constitutions, by Union law, by
international law, and by international agreements to which the Union or all
the Member States are a party. This provision is intended to maintain the level
of protection currently afforded within their respective scope by Union law,
national law and international law.

Case law

In the Melloni case[120], the CJEU was asked if a Member State could make the surrender of a person convicted in absentia conditional upon
the conviction being open to review in the issuing Member State. Mr Melloni had
been sentenced in absentia in Italy to 10 year's imprisonment for bankruptcy
fraud. Following his arrest by the Spanish police, he opposed surrender to the
Italian authorities. He contended that under Italian procedural law it is
impossible to appeal against sentences imposed in absentia. He argued that the
execution of the European arrest warrant issued against him should be made
conditional upon Italy's guaranteeing the possibility of appealing against the
judgment. He based his argument on Art. 47 of the Charter, the right to an
effective remedy and to a fair trial, and on Art. 53 of the Charter, arguing
that the Charter should be interpreted in the light of the provisions of the
Spanish constitution, which foresees the possibility of judicial review of
convictions.

The CJEU held that the Framework Decision on the European
arrest warrant reflects the consensus reached by all the Member States
regarding the scope of the procedural rights enjoyed by persons convicted in
absentia who are subject to the European arrest warrant. Although the right of
the accused to appear in person at his trial is an essential component of the
right to a fair trial, that right is not absolute. To make the surrender of a
person subject to a condition not provided for under the Framework Decision
would undermine the principles of mutual trust and recognition which that
decision purports to uphold and would compromise its efficacy. The Court also
confirmed that the fundamental constitutional principle of primacy of EU law
also applies to the relationship between the Charter, on the one hand, and the
national constitutional provisions on fundamental rights, on the other hand. A Member State may thus not invoke a provision of its constitution, even if it ensures a higher
level of protection of a fundamental right than the Charter, as a ground for
not applying a clear provision of EU law.

[1] On
the state of play of the 11 actions taken to implement the EU Agenda for the
Rights of the Child, see http://ec.europa.eu/justice/fundamental-rights/files/eu\_agenda\_state\_of\_play\_2013\_en.pdf

[2] European
Commission Communication: An EU Agenda for the Rights of the Child, COM(2011)
60 final. Available at: http://eur-lex.europa.eu/LexUriServ/LexUriServ.do?uri=CELEX:52011DC0060:en:NOT

[3] Proposal
for a Directive of the European Parliament and of the Council on procedural
safeguards for children suspected or accused in criminal proceedings, COM(2013)
822 final, available at http://eur-lex.europa.eu/LexUriServ/LexUriServ.do?uri=CELEX:52013PC0822:en:NOT.

[4] See also
the on-going FRA research on forms of child participation in criminal
and civil judicial proceedings. Practices of child participation in justice
proceedings vary considerably across EU Member States. There are gaps in
relation to clear, consistent standards and guidelines on how and when children
should be involved. In 2011, the European Commission highlighted in the EU
Agenda for the Rights of the Child that promoting child-friendly justice is at
the center of its actions. Therefore, in close cooperation with the European
Commission, FRA is engaging in research to examine practices and procedures of
child participation in justice proceedings which should conform to the Council
of Europe’s guidelines on child-friendly justice. More information on the
research project is available at http://fra.europa.eu/en/project/2012/children-and-justice.

[5]
Directive 2012/29/EU establishing minimum standards on the rights, support and
protection of victims of crime, and replacing Council Framework Decision
2001/220/JHA, OJ L 315, 14.11.2012.

[6]
Regulation No 610/2013 of the European Parliament and of the Council of 26 June
2013 amending Regulation (EC) No 562/2006 of the European Parliament and of the
Council establishing a Community Code on the rules governing the movement of
persons across borders (Schengen Borders Code), the Convention implementing the
Schengen Agreement, Council Regulations (EC) No 1683/95 and (EC) No 539/2001
and Regulations (EC) No 767/2008 and (EC) No 810/2009 of the European Parliament
and of the Council, OJ L 182, 29.06.2013.

[7] Directive
2011/92/EU on combating the sexual abuse and sexual exploitation of children
and child pornography, and replacing Council Framework Decision 2004/68/JHA, OJ L 335,
17.12.2011, p. 1.

[8] For more
information on the 8th Forum of the Rights of the Child, see http://ec.europa.eu/justice/events/child-forum-2013/index\_en.htm

[9] See also
the Member State expert group on Early Childhood Education and Care, which is
working on a proposal for an Early Childhood Education and Care European
Quality Framework.

[10] Optional
Protocol to the Convention on the Rights of the Child on a Communications
Procedure, available at https://treaties.un.org/doc/source/signature/2012/ctc\_4-11d.pdf.

[11] UN
Committee on the Rights of the Children, General comment No. 14 (2013) on the
right of the child to have his or her best interests taken as a primary
consideration (art. 3, para. 1), see http://www2.ohchr.org/English/bodies/crc/docs/GC/CRC\_C\_GC\_14\_ENG.pdf

[12] European
Commission Communication: The EU Strategy towards the Eradication of
Trafficking in Human Beings 2012–2016, COM(2012) 286 final, 19.06.2012.

[13] On trafficking in human beings, see above under Article 5 on
the Prohibition of slavery and forced labour.

[14]
Communication on a European Strategy Better Internet for Children, COM(2012)
196 final. Available at: http://eur-lex.europa.eu/LexUriServ/LexUriServ.do?uri=COM:2012:0196:FIN:EN:PDF

[15] The study
on missing children in the EU is available at http://ec.europa.eu/justice/fundamental-rights/files/missing\_children\_study\_2013\_en.pdf

[16]
More information on the
116 000 hotlines is available at
http://ec.europa.eu/justice/fundamental-rights/rights-child/hotline/index\_en.htm

[17]
European Commission
Recommendation of 20 February 2013 Investing in Children: breaking the cycle of
disadvantage, OJ L 59, p. 5,
2.3.2013.

[18] On Roma
children see above under Article 21 non-discrimination, under 'EU Framework for
National Roma Integration Strategies'.

[19] Please
also note the references to children's rights in the other communications which
are part of the Social Investment Package, such as the Communication from the European
Commission: Towards Social Investment for Growth and Cohesion – including
implementing the European Social Fund 2014-2020, COM (2013) 83, which
highlights the importance of targeting funds to invest in children, and the
accompanying European Commission Staff Working Document Confronting
Homelessness in the European Union, SWD(2013)42 which draws special attention
to the situation of homeless children.

[20] European
Commission Communication: Towards the elimination of female genital mutilation,
COM(2013) 833, 25.11.2013, available at  http://ec.europa.eu/justice/gender-equality/files/gender\_based\_violence/131125\_fgm\_communication\_en.pdf

[21] CJEU,
case C-648/11 MA, BT, DA v Secretary of State for the Home Department,
6.6.2013.

[22] For an
analysis of the adopted recast Dublin II Regulation and the Dublin system from
the angle of the prohibition of torture and inhuman or degrading treatment or
punishment, see above under Article 4.

[23] Supreme
Court of Czech Republic (Nejvyšší soud), case 30 Cdo 1376/2012, Municipality of
Olomouc v. Regional Attorney’s Office, 22.5.2013

[24] CJEU, Case
C-491/10 PPU, Aguirre Arraga, 22.12.2010.

[25] Council
of the European Union, Press Release, 3196th, Transport,
Telecommunications and Energy, Transport Items, Luxembourg, 29 October 2012,,
15491/12, available at http://register.consilium.europa.eu/pdf/en/12/st15/st15491.en12.pdf
- see p. 20 under "foreign affairs" for rights of persons with
disabilities – EU level framework.

[26] The full
report is available at: http://ec.europa.eu/justice/discrimination/document/index\_en.htm#h2-5

[27] Proposal
for a Directive on the accessibility of public sector bodies' websites
COM(2012) 721 final

[28] Directive 2002/20/EC of 7 March 2002
on on the authorisation of electronic communications networks and services, as
amended by Directive 2009/139/EC, OJ L 108, 24.04.2002, p. 21.

[29] In Denmark, Spain, Luxembourg, Austria, Sweden, Slovenia, the United Kingdom, France and Iceland 112 services can be contacted by means of SMSs. Finland will introduce 112 SMS in
2015. Germany, Spain (partially), Belgium , France and Luxembourg mentioned fax.

In the following Member States, other means of access
are available: Spain has chat; the Netherlands have real time texting; the United Kingdom and the Czech Republic have text relay using appropriate terminals; Slovenia has WAP. France, Hungary and Austria provide non-voice access to emergency
services to another number than 112. 7 Member States mentioned that there are
either plans or on-going trials to introduce in the near future alternative
means for disabled end-users (such as SMS or video).

[30]
Communication from the European Commission: European Disability Strategy
2010-2020: A Renewed Commitment to a Barrier-Free Europe, COM(2010) 636 final,
available at: http://eur-lex.europa.eu/LexUriServ/LexUriServ.do?uri=COM:2010:0636:FIN:EN:PDF

[31] On the
rights of the child, see below under Article 24.

[32] European
Parliament, Member States' Policies for Children with Disabilities, 2013,
available at
http://www.europarl.europa.eu/RegData/etudes/etudes/join/2013/474416/IPOL-LIBE\_ET(2013)474416\_EN.pdf

[33] CJEU, Joined
cases C-335/11 and C-337/11, HK Danmark, acting on behalf of Jette Ring v
Dansk almennyttigt Boligselskab (C-335/11) and HK Danmark, acting on behalf of Lone Skouboe
Werge v Dansk Arbejdsgiverforening acting on behalf of Pro Display A/S
(C-337/11), 11.04.2013.

[34] CJEU,  C-13/05.
Sonia
Chacón Navas v Eurest Colectividades SA, 11.07.2006.

[35] CJEU,
C-312/11, European Commission v Italy, 4.07.2013.

[36] Directive
2013/35/EU on the minimum health and safety requirements regarding the exposure
of workers to the risks arising from physical agents (electromagnetic fields)
(20th individual Directive within the meaning of Article 16(1) of Directive
89/391/EEC) and repealing Directive 2004/40/EC. Available at: http://eur-lex.europa.eu/LexUriServ/LexUriServ.do?uri=OJ:L:2013:179:0001:0021:EN:PDF.

[37] Council
Directive 89/391/EEC of 12 June 1989 on the introduction of measures to
encourage improvements in the safety and health of workers at work. Available
at http://eur-lex.europa.eu/LexUriServ/LexUriServ.do?uri=OJ:L:1989:183:0001:0008:EN:PDF.

[38] Directive
98/59/EC on the approximation of the laws of the Member States relating to
collective redundancies, OJ L 225, 12.8.1998, p. 16.

[39] Directive
2001/23/EC on the approximation of the laws of the Member States relating to
the safeguarding of employees' rights in the event of transfers of
undertakings, businesses or parts of undertakings or businesses, OJ L 82,
22.3.2001, p. 16.

[40] Directive
2002/14/EC on the establishing a general framework for informing and consulting
employees in the European Community, OJ L 80, 23.3.2002, p. 29.

[41] European
Commission Staff Working Document 'Fitness check' on EU law in the area of
Information and Consultation of Workers, SWD(2013) 293 final. Available at: http://ec.europa.eu/social/BlobServlet?docId=10415&langId=en

[42] See
European Commission communication on 'Regulatory Fitness and Performance
(REFIT): Results and Next Steps' (COM(2013) 685 final)

[43] Proposal
for a Directive of the European Parliament and of the Council on seafarers
amending Directives 2008/94/EC, 2009/38/EC, 2002/14/EC, 98/59/EC and
2001/23/EC, COM(2013) 798 final. Available at: http://ec.europa.eu/social/BlobServlet?docId=11129&langId=en

[44]
Directive 2009/38/EC on the establishment of a European Works
Council or a procedure in Community-scale undertakings and Community-scale
groups of undertakings for the purposes of informing and consulting employees, OJ L
122, 16.5.2009, p. 28.

[45]
Directive 2008/94/EC on the protection of employees in the event of the
insolvency of their employer, OJ L 283, 28.10.2008, p. 36.

[46] Article
153(5) of the Treaty on the Functioning of the EU (TFEU) stipulates that it
does not apply to the right to strike.

[47] Directive
96/71/EC of the European Parliament and of the Council of 16 December 1996
concerning the posting of workers in the framework of the provision of services,
OJ L 18 , 21.1.1997, p. 1. Available at:

http://eur-lex.europa.eu/LexUriServ/LexUriServ.do?uri=OJ:L:1997:018:0001:0006:EN:PDF

[48] Proposal
for a Directive on the enforcement of Directive 96/71/EC concerning the posting
of workers in the framework of the provision of services, COM(2012) 131 final. Available
at: http://eur-lex.europa.eu/LexUriServ/LexUriServ.do?uri=COM:2012:0131:FIN:EN:PDF

[49] Proposal
for a Council Recommendation on a Quality Framework for Traineeships, COM(2013)
857 final. Available at:

http://eur-lex.europa.eu/LexUriServ/LexUriServ.do?uri=SWD:2013:0495:FIN:EN:PDF

[50] The
central piece is the Council Directive 89/391/EEC of 12 June 1989 on the
introduction of measures to encourage improvements in the safety and health of
workers at work, OJ L 183, 29.6.1989, p. 1, which lays down general principles
on the protection of workers' health and safety. Several specific directives
cover a number of specific risks, e.g. exposure of workers to biological and
chemical agents at work, noise, work at the construction sites, manual handling
of loads, etc. Another important piece of legislation covers working time and
regulates issues such as minimum daily and weekly rest periods, breaks, maximum
weekly working time, night work and annual leave.

[51] Directive
2013/35/EU on the minimum health and safety requirements regarding the exposure
of workers to the risks arising from physical agents (electromagnetic fields)
(20th individual Directive within the meaning of Article 16(1) of Directive
89/391/EEC) and repealing Directive 2004/40/EC. Available at: http://eur-lex.europa.eu/LexUriServ/LexUriServ.do?uri=OJ:L:2013:179:0001:0021:EN:PDF

[52] Proposal
for a Council Decision authorising Member States to ratify, in the interests of
the European Union, the Convention concerning decent work for domestic workers,
2011, of the International Labour Organisation (Convention No 189), COM(2013) 152
final.

Available at: http://eur-lex.europa.eu/LexUriServ/LexUriServ.do?uri=COM:2013:0152:FIN:EN:HTML

[53] 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, OJ L 299,
18.11.2003, p. 9.

[54] Council
Recommendation of 22 April 2013 on establishing a Youth Guarantee, OJ C 120,
26.4.2013, p. 1. Available at: http://eur-lex.europa.eu/LexUriServ/LexUriServ.do?uri=CELEX:32013H0426(01):EN:NOT

[55] European
Commission Communication: Strengthening the Social Dimension of the Economic
and Monetary Union, COM(2013) 690,. available at: http://ec.europa.eu/European
Commission\_2010-2014/president/news/archives/2013/10/pdf/20131002\_1-emu\_en.pdf

[56]
Constitutional Court of Poland (Trybunał Konstytucyjny), case P 46/11,
District Court in Gliwice, Parliament and the Prosecutor General, 22.5.2013.

[57] 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 seasonal
employment, COM(2010) 379 final. Available at:

http://eur-lex.europa.eu/LexUriServ/LexUriServ.do?uri=COM:2010:0379:FIN:EN:PDF

[58] Proposal
for a Directive of the European Parliament and of the Council on conditions of
entry and residence of third-country nationals in the framework of an intra-corporate
transfer, COM(2010) 378 final. Available at:

http://eur-lex.europa.eu/LexUriServ/LexUriServ.do?uri=COM:2010:0378:FIN:EN:PDF

[59] Towards Social Investment for Growth and Cohesion –
including implementing the European Social Fund 2014-2020 COM(2013) 83 final

Available at: http://ec.europa.eu/social/BlobServlet?docId=9761&langId=en

[60] European
Commission Staff Working Document Confronting Homelessness in the European
Union SWD(2013) 42 final. Available at:

http://ec.europa.eu/social/BlobServlet?docId=9770&langId=en

[61] 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 concerning the manufacture, presentation and
sale of tobacco and related products, COM(2012) 788 final. Available at: http://ec.europa.eu/health/tobacco/docs/com\_2012\_788\_en.pdf

[62]  Opinion
of the Committee of the Regions on Manufacture, presentation and sale of
tobacco and related products. Available at: http://eur-lex.europa.eu/LexUriServ/LexUriServ.do?uri=OJ:C:2013:280:0057:0065:EN:PDF;
Opinion of the European Economic and Social Committee on the 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
concerning the manufacture, presentation and sale of tobacco and related
products. Available at:

http://eur-lex.europa.eu/LexUriServ/LexUriServ.do?uri=OJ:C:2013:327:0065:0081:EN:PDF

[63] The
package includes: Communication on More Product Safety and better Market
Surveillance in the Single Market for Products, COM(2013) 74 final. Available
at: http://ec.europa.eu/consumers/safety/psmsp/docs/psmsp-communication\_en.pdf;
Proposal for a Regulation on consumer product safety and repealing Council
Directive 87/357/EEC and Directive 2001/95/EC, COM(2013) 78 final. Available
at: http://ec.europa.eu/consumers/safety/psmsp/docs/psmsp-act\_en.pdf;
Proposal for a Regulation on market surveillance of products and amending
Council Directives 89/686/EEC and 93/15/EEC, and Directives 94/9/EC, 94/25/EC,
95/16/EC, 97/23/EC, 1999/5/EC, 2000/9/EC, 2000/14/EC, 2001/95/EC, 2004/108/EC,
2006/42/EC, 2006/95/EC, 2007/23/EC, 2008/57/EC, 2009/48/EC, 2009/105/EC,
2009/142/EC, 2011/65/EU, Regulation (EU) No 305/2011, Regulation (EC) No
764/2008 and Regulation (EC) No 765/2008 of the European Parliament and of the
Council, COM(2013) 75 final. Available at: http://ec.europa.eu/consumers/safety/psmsp/docs/psmsp-surveillance\_en.pdf; Communication
on 20 actions for safer and compliant products for Europe: a multi-annual
action plan for the surveillance of products in the EU, COM(2013) 76 final.
Available at: http://ec.europa.eu/consumers/safety/psmsp/docs/psmsp-communication-actions\_en.pdf;
Report on the implementation of Regulation (EC) No 765/2008 of the European
Parliament and of the Council of 9 July 2008 setting out the requirements for
accreditation and market surveillance relating to the marketing of products and
repealing Regulation (EEC) No 339/93, COM(2013) 77 final. Available at: http://ec.europa.eu/consumers/safety/psmsp/docs/psmsp-implementation-report\_en.pdf

[64] European
Commission Decision No 1082/2013/EU on serious cross-border threats to health
and repealing Decision No 2119/98/EC, OJ L 293, 5.11.2013, p.1. Available at: http://ec.europa.eu/health/preparedness\_response/docs/decision\_serious\_crossborder\_threats\_22102013\_en.pdf

[65] EU Action Plan on Drugs
2013 – 2016. Available
at:

http://eur-lex.europa.eu/LexUriServ/LexUriServ.do?uri=OJ:C:2013:351:0001:0023:en:PDF

[66] Final
proposal for a Council Directive amending Directive 2009/71/EURATOM
establishing a Community framework for the nuclear safety of nuclear
installations, COM(2013)715 http://eur-lex.europa.eu/LexUriServ/LexUriServ.do?uri=COM:2013:0715:FIN:EN:PDF

[67] Treaty
of Accession of the United Kingdom to the European Communities.

[68] Directive
2011/83/EU on consumer rights, amending Council Directive 93/13/EEC, Directive
1999/44/EC 85/577/EEC and Directive 97/7/EC, OJ L 304, 22.11.2011, p.64.

[69] First
Report on the application of Directive 2005/29/EC of the European Parliament
and of the Council of 11 May 2005 concerning unfair business-to-consumer
commercial practices in the internal market, COM(2013) 139 final. Available at:
http://ec.europa.eu/justice/consumer-marketing/files/ucpd\_report\_en.pdf

[70] Communication
on the application of the Unfair Commercial Practices Directive, COM(2013) 138
final. Available
at:http://ec.europa.eu/justice/consumer-marketing/files/ucpd\_communication\_en.pdf

[71] Directive
2005/29/EC of the European Parliament and of the Council of 11 May 2005
concerning unfair business-to-consumer commercial practices in the internal
market and amending Council Directive 84/450/EEC, Directives 97/7/EC, 98/27/EC
and 2002/65/EC of the European Parliament and of the Council and Regulation
(EC) No 2006/2004 of the European Parliament and of the Council, OJ L 149,
11.6.2005, p. 22.

[72] Directive
2008/122/EC on the protection of consumers in respect of certain aspects of
timeshare, long-term holiday product, resale and exchange, OJ L 33, 3.2.2009,
p. 10.

[73] Directive
2013/11/EU on alternative dispute resolution for consumer disputes and amending
Regulation (EC) No 2006/2004 and Directive 2009/22/EC, OJ L 165, 18.6.2013, p.
63.

[74] Regulation
(EU) No 524/2013 on online dispute resolution for consumer disputes and
amending Regulation (EC) No 2006/2004 and Directive 2009/22/EC, OJ L 165, 18.6.2013,
p. 1.

[75] Proposal
for a Directive on package travel and assisted travel arrangements, amending
Regulation (EC) No 2006/2004, Directive 2011/83/EU and repealing Council
Directive 90/314/EEC, COM(2013) 512 final. Available at: http://ec.europa.eu/justice/consumer-marketing/files/com\_2013\_512\_en.pdf

[76] Proposal
for a Directive on the comparability of fees related to payment accounts,
payment account switching and access to payment accounts with basic features,
COM(2013) 266 final. Available at: http://eur-lex.europa.eu/LexUriServ/LexUriServ.do?uri=COM:2013:0266:FIN:EN:PDF

[77] Proposal for a Regulation on indices used as benchmarks
in financial instruments and financial contracts, COM(2013) 641 final.
Available at: http://eur-lex.europa.eu/LexUriServ/LexUriServ.do?uri=COM:2013:0641:FIN:EN:PDF

[78] See
2013 Report on the Application of the Charter of Fundamental Rights, under
3.1.1 Legislative proposals as well as Chapter 2 of this report.

[79] Proposal
for a Directive on credit agreements relating to residential property,
COM(2011) 142 final. Available at: http://eur-lex.europa.eu/LexUriServ/LexUriServ.do?uri=COM:2011:0142:FIN:EN:PDF

[80] European
Commission Recommendation on common principles for injunctive and compensatory
collective redress mechanisms in the Member States concerning violations of
rights granted under Union Law, OJ L 201, 26.7.2013, p. 60; European Commission
Communication: 'Towards a European Horizontal Framework for Collective
Redress', COM(2013) 401/2. Available at: http://ec.europa.eu/justice/civil/files/com\_2013\_401\_en.pdf

[81] Directive
2013/1/EU amending Directive 93/109/EC as regards certain detailed arrangements
for the exercise of the right to stand as a candidate in elections to the
European Parliament for citizens of the Union residing in a Member State of which they are not nationals. OJ L 26, 26.1.2013, p. 27.

[82] European
Commission Communication: 'Preparing for the 2014 European elections: further
enhancing their democratic and efficient conduct', COM(2013) 126 final.  Available
at: http://eur-lex.europa.eu/LexUriServ/LexUriServ.do?uri=COM:2013:0126:FIN:EN:PDF.

[83] European
Commission Recommendation on enhancing the democratic and efficient conduct of
the elections to the European Parliament, OJ L 79, 21.3.2013, p. 29.

[84] Judgment
4968/2013 and Appeal 361/2012, El Coto de Rioja, S.A v. Foral Diputation of Alava,
14.10.2013. Available at: www.poderjudicial.es/search/doAction?action=contentpdf&databasematch=TS&reference=6865959&links=%22361/2012%22&optimize=20131029&publicinterface=true
.

[85] Under
Regulation (EC) No 1049/2001 regarding public access to European Parliament,
Council and European Commission documents, OJ L 145, 31.5.2001, p. 43.

[86] CJEU,
Case C-280/11 P, Council v Access Info Europe, 17.10.2013.

[87] General
Court (GC), Case T-233/09 Access Info Europe v Council, 22.3.2011.

[88] Exception
provided for in the first subparagraph of Article 4(3) of Regulation (EC) No
1049/2001 regarding public access to European Parliament, Council and European
Commission documents, OJ L 145, 31.5.2001, p. 43.

[89] General Court,
Case T‑545/11, Stichting
Greenpeace Nederland and PAN Europe v European Commission; 8.10.2013

[90] General
Court, Case T-331/11, Besselink v Council, 12.9.2013 – see 2013 Report
on the Application of the Charter of Fundamental Rights, under 3.4 Control of
the Court over the EU institutions.

[91] It is
not possible to indicate how many users who were advised by the Interactive
Guide to complain to the European Ombudsman actually did so, since the
Interactive Guide does not require a login name and password in the way that
the online complaint form does, and this for data protection reasons.

[92] Proposal
for a Directive on measures facilitating the exercise of rights conferred on
workers in the context of freedom of movement for workers, COM(2013) 236 final.
Available at: http://ec.europa.eu/social/BlobServlet?docId=10017&langId=en.

[93] Proposal
of 24 April 2013 for a Regulation on promoting the free movement of citizens
and businesses by simplifying the acceptance of certain public documents in the
European Union and amending Regulation (EU) No 1024/2012, COM(2013) 228 final.
Available at: http://ec.europa.eu/justice/civil/files/com\_2013\_228\_en.pdf.

[94] European
European Commission, European European Commission upholds free movement of
people, MEMO/13/1041, 25.11.2013, available at
http://europa.eu/rapid/press-release\_MEMO-13-1041\_en.htm.

[95]
Regulation (EU) No 606/2013 of the European Parliament and of the Council of 12
June 2013 on mutual recognition of protection measures in civil matters (OJ L
181, 29.6.2013, p. 4).

[96] CJEU,
Case C-584/10 P European Commission and Others v Kadi (Kadi II), Appeal
Case against T-85/09 Kadi v European Commission (Kadi I), 18.7.2013.

[97] See also
the 2013 Report on the Application of the EU Charter of Fundamental Rights
under 3.4 Control of the Court over the EU institutions.

[98] CJEU,
Case C-260/11, Edwards & Pallikaropoulos, 11.3.2013.

[99] CJEU,
Case C-93/12, Agrokonsulting, 27.6.2013.

[100] CJEU,
Case C-329/13, Stefan, case in progress.

[101] CJEU,
Case C-325/11, Krystyna Alder and Ewald Alder v Sabina Orlowska and Czeslaw
Orlowski, 19.12.2012.

[102] Civil
Cases Department of the Senate of the Supreme Court  (Latvijas Republikas
Augstākās tiesas Senāta Civillietu departamenta), case No.
SKC-1/2013. 13.2.2013

[103] CJEU,
Case C-619/10, Trade Agency, 6.9.2012.

[104]
Constitutional Court of the Slovak Republic (Ústavný súd Slovenskej republiky),
case II. ÚS 499/2012-47, Company R v. Supreme Court of the Slovak Republic, 10.6.2013.

[105] Supreme
Administrative Court of Poland (Naczelny Sąd Administracyjny), case II OZ
327/13, Minister of Economy, Labour and Social Policy v. applicant P.S.,
1.8.2013.

[106] COM(2013)
821, 822 and 824, 27.11.2013, and COM(2013) 8178 and 8179, 27.11.2013.

[107] Directive
2013/48/EU of the European Parliament and of the Council of 22 October 2013 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, OJ L 294, 6.11.2013, p. 1.

[108] Proposal
for a Council Regulation on the establishment of the European Public
Prosecutor's Office, COM(2013) 534.

[109] Proposal
for a Regulation of the European Parliament and of the Council on the European
Union Agency for Criminal Justice Cooperation (Eurojust), COM(2013) 535.

[110] Regulation
No 883/2013 of 11 September 2013 concerning investigations conducted by the
European Anti-Fraud Office (OLAF) and repealing Regulation (EC) No 1073/1999 of
the European Parliament and of the Council and Council Regulation (Euratom) No
1074/1999, OJ L 248, p. 1, 18.09.2013.

[111] Proposal
for a Directive of the European Parliament and of the Council on the freezing
and confiscation of proceeds of crime in the European Union, COM(2012) 85.

[112]
Regulation No 883/2013 of 11 September 2013 concerning investigations conducted
by the European Anti-Fraud Office (OLAF) and repealing Regulation (EC) No
1073/1999 of the European Parliament and of the Council and Council Regulation
(Euratom) No 1074/1999, OJ L 248, p. 1, 18.09.2013.

[113] Proposal
for a Directive on the confiscation and recovery of criminal assets in the
European Union, COM(2012) 85 final, 12.03.2012.

[114] European Commission Communication: Building trust in EU-wide
justice, a new dimension to European judicial training, COM(2011) 551 final, available
at: http://ec.europa.eu/justice/criminal/files/2011-551-judicial-training\_en.pdf

[115] General
Court, joined cases T-35/10 and T-7/11 Bank Melli Iran; Case T-493/10 Persia
International Bank plc; joined cases T-4/11 and T-5/11 Export
Development Bank of Iran; T-12/11 Iran Insurance Company; T-13/11 Post
Bank Iran; T-24/11 Bank Refah Kargaran; T-434/11 Europäisch-Iranische
Handelsbank AG; joined cases T-42/12 and T-181/12 Naser Bateni;
T-57/12 Good Luck Shipping, and Case T-110/12 Iranian Offshore
Engineering & Construction Co. v Council, 6.9.2013.

[116] See also
the 2013 Report on the Application of the EU Charter of Fundamental Rights
under 3.4 Control of the Court over the EU institutions.

[117] Proposal
for a Directive on the protection of the euro and other currencies against
counterfeiting by criminal law, and replacing Council Framework Decision
2000/383/JHA, COM (2013)42 final, 5.02.2013.

[118] Proposal
for a Directive on the fight against fraud to the Union's financial interests
by means of criminal law, COM(2012) 363 final. Available at: http://eur-lex.europa.eu/LexUriServ/LexUriServ.do?uri=COM:2012:0363:FIN:EN:PDF.

[119] CJEU, Case C-617/10
Åklagaren v. Hans Åkerberg Fransson, 26.02.2013. For a
discussion on the applicability of the Charter in this case, see the 2013
Report on the Application of the Charter of Fundamental Rights, under 2.
Applicability of the Charter to the Member States.

[120] CJEU,
Case C-399/11 Stefano Melloni v Ministerio fiscal, 26.02.2013.

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