Source: EURLEX
Language: en
Format: md

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| 23.7.2016 | EN | Official Journal of the European Union | C 269/1 |

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COMMISSION NOTICE

Guidance on ensuring the respect for the Charter of Fundamental Rights of the European Union when implementing the European Structural and Investment Funds (‘ESI Funds’)

(2016/C 269/01)

Table of Contents

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| 1. | Introduction | 1 |

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| 2. | The content and legal status of the Charter of Fundamental Rights | 2 |

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| 2.1. | The content of the Charter | 2 |

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| 2.2. | Legal status and applicability of the Charter | 3 |

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| 2.2.1. | Legal status of the Charter | 3 |

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| 2.2.2. | Applicability of the Charter | 3 |

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| 3. | Implementation of ESIF and the Charter | 3 |

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| 3.1. | Establishing the ESI Funds intervention strategy and drawing up the programming documents (preparation of strategic policy frameworks, Partnership Agreements, programs etc.) | 4 |

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| 3.2. | Setting up the management, monitoring and control systems | 5 |

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| 3.3. | Implementing programmes and carrying out concrete actions outlined in a project description for works carried out when implementing ESI funds | 5 |

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| 3.4. | Applicability of the Charter in the context of Cohesion policy: why is Charter relevant for the state authorities managing ESI Funds? | 6 |

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| 4. | How to assess compliance with the Charter — Fundamental rights checklist | 6 |

Annexes

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| — | Annex I — Examples of implementation of EU law by Member States in the context of ESI Funds |  |

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| — | Annex II — Fundamental rights in the EU beyond the Charter |  |

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| — | Annex III — Key questions |  |

1.   INTRODUCTION

The Charter of Fundamental Rights of the European Union (the Charter) became legally binding on the EU with the entry into force of the Treaty of Lisbon, in December 2009 and now has the same legal value as the EU Treaties. Respect for fundamental rights enshrined in the Charter is thus a legal obligation for the EU institutions, bodies, agencies and offices in all their actions, and for EU Member States when they are implementing EU law.

The purpose of this guide is to provide an explanation to Member-States of the importance of ensuring respect of the Charter of Fundamental Rights when implementing ESI funds and to provide a practical tool, the ‘Fundamental Rights check-list’, to help Member States screen ESIF implementing measures against the Charter.

The guide contains explanations on the content, legal status and applicability of the Charter in general as well as within the framework of the ESI Funds. It also explains its enforcement in the context of ESIF and the possible consequences of noncompliance with the Charter. This Guidance also contains recommendations to the relevant actors how to carry out the assessment of compliance of the actions with the Charter and identifies actions in the context of ESI Funds that are considered to be actions of implementation of EU law.

2.   THE CONTENT AND LEGAL STATUS OF THE CHARTER OF FUNDAMENTAL RIGHTS

2.1.   The content of the Charter

The Charter contains rights and principles in relation to six themes: Dignity, Freedoms, Equality, Solidarity, Citizens' Rights, and Justice as summarized in the table below.

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| Title I ‘Dignity’ (Articles 1-5):   |  |  | | --- | --- | | — | human dignity, the right to life, the right to the integrity of the person, prohibition of torture and inhuman or degrading treatment or punishment, prohibition of slavery and forced labour; | |
| Title II ‘Freedoms’ (Articles 6-19):   |  |  | | --- | --- | | — | the right to liberty and security, respect for private and family life, protection of personal data, the right to marry and found a family, freedom of thought, conscience and religion, freedom of expression and information, freedom of assembly and association, freedom of the arts and sciences, the right to education, freedom to choose an occupation and the right to engage in work, freedom to conduct a business, the right to property, the right to asylum, protection in the event of removal, expulsion or extradition; | |
| Title III ‘Equality’ (Articles 20-26):   |  |  | | --- | --- | | — | equality before the law, non-discrimination, cultural, religious and linguistic diversity, equality between men and women, the rights of the child, the rights of the elderly, integration of persons with disabilities; | |
| Title IV ‘Solidarity’ (Articles 27-38):   |  |  | | --- | --- | | — | workers' right to information and consultation within the undertaking, the right of collective bargaining and action, the right of access to placement services, protection in the event of unjustified dismissal, fair and just working conditions, prohibition of child labour and protection of young people at work, family and professional life, social security and social assistance, health care, access to services of general economic interest, environmental protection, consumer protection; | |
| Title V ‘Citizens’ rights' (Articles 39-46):   |  |  | | --- | --- | | — | the right to vote and stand as a candidate at elections to the European Parliament and at municipal elections, the right to good administration, the right of access to documents, the right to refer to the European Ombudsman, the right to petition, freedom of movement and residence, diplomatic and consular protection; | |
| Title VI ‘Justice’ (Articles 47-50):   |  |  | | --- | --- | | — | the right to an effective remedy and a fair trial, presumption of innocence and the right of defence, principles of legality and proportionality of criminal offences and penalties, the right not to be tried or punished twice in criminal proceedings for the same criminal offence; | |

The text of the Charter can be found under this link:

http://eur-lex.europa.eu/legal-content/EN/TXT/?uri=CELEX:12012P/TXT.

The Explanations relating to the Charter of Fundamental Rights provide guidance on the meaning of the provisions of the Charter and can be found under this link:

http://eur-lex.europa.eu/legal-content/EN/TXT/?uri=uriserv:OJ.C\_.2007.303.01.0017.01.ENG

In order to contribute to a greater awareness about fundamental rights, Fundamental Rights Agency (FRA) has developed a user friendly online tool Charterpedia, which compiles international, EU and national constitutional law in the area of fundamental rights linked to the topics, chapters and Articles of the Charter[(1)](#ntr1-C_2016269EN.01000101-E0001).

2.2.   Legal status and applicability of the Charter

2.2.1.   Legal status of the Charter

The Lisbon Treaty accorded the Charter the same legal value as the EU Treaties. It is legally binding and respect for fundamental rights enshrined in the Charter is a legal requirement.

According to Article 51(1) of the Charter, its provisions are addressed to the EU institutions, bodies, offices and agencies, subject to the principle of subsidiarity, and to Member States when they are implementing EU law. Accordingly, they must respect the rights and observe the principles enshrined in the Charter and promote their application in accordance with their respective powers when adopting and implementing rules. Article 6(1) of the Treaty on European Union and Article 51(2) of the Charter specify that the provisions of the Charter may not extend in any way the competences of the Union as defined in the Treaties.

The requirement to respect rights defined in the Charter is only binding on Member States when they act within the scope of EU law. As regards Member States, the Charter applies to all ‘emanations of State’. It thus applies to central authorities, as well as to regional, local and other public authorities when implementing EU law.

In the context of the implementation of the ESI Funds, all the Member States' actions undertaken for the implementation of the applicable regulations fall within the scope of EU law. The Charter might apply to ESIF beneficiaries, whatever their legal form, which have been made responsible, pursuant to a measure adopted by a Member State, for providing a public service under the control of the State and which have for that purpose special powers beyond those which result from the normal rules applicable in relations between individuals.

Whereas the respect for fundamental rights enshrined in the Charter is a legal requirement, there is no legal obligation under the Charter to take active measures of promotion of the rights enshrined in the Charter, but Member States are encouraged to adopt these measures of if they wish so.

2.2.2.   Applicability of the Charter

According to its Article 51(1), the Charter is addressed to Member States only when they are implementing EU law.

In line with the Court of Justice's settled case-law interpreting these provisions, the concept of ‘Member States implementing Union law’ does not mean that Member States are automatically implementing Union law when they hand out support under the ESIF Funds, regardless what is the ‘national measure’ or ‘national legislation’ behind the act attacked by a complainant or applicant.

In order to determine whether a national measure involves the implementation of EU law, it is according to the Court of Justice ‘necessary to determine, inter alia:

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| — | whether that national legislation is intended to implement a provision of EU law; |

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| — | the nature of the legislation at issue |

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| — | whether the national legislation pursues objectives other than those covered by EU law, even if it is capable of indirectly affecting EU law; |

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| — | whether there are specific rules of EU law on the matter or rules which are capable of affecting it.’ |

The above reasoning would apply mutatis mutandis to any national measure implementing EU law, legislative or not.

The Court has further confirmed that, in cohesion policy as in other areas, the concept of ‘implementing Union law’ requires a certain degree of connection above and beyond the matters covered being closely related or one of those matters having an indirect impact on the other.

The consequences of this case law is that it will be necessary to examine whether or not in a practical case a national measure is intended to implement a provision of Union law.

Implementation of EU law in the context of implementation of ESIF is explained in section 3 below and Annex I.

3.   IMPLEMENTATION OF ESIF AND THE CHARTER

In the context of the implementation of cohesion policy the provisions of the Charter of fundamental rights apply under the conditions indicated below.

The principle of non-discrimination has been reinforced in Regulation (EU) No 1303/2013 of the European Parliament and of the Council[(2)](#ntr2-C_2016269EN.01000101-E0002) (Hereinafter ‘the CPR’) through the introduction of an ex ante check of the existence of the arrangements to ensure its respect.

According to Article 7 of Regulation (EU) No 1303/2013, Member States and the Commission have to ensure the respect of the principles of equality between men and women and non-discrimination throughout the preparation and implementation of programmes.

Regarding the principle of non-discrimination on the basis of disability and the principle of integration of persons with disabilities, it should be noted that the EU is a party to the UNCRPD[(3)](#ntr3-C_2016269EN.01000101-E0003). The legal consequences of ratification of the UNCRPD by the Union for the management of ESI funds are described below in Annex II.

Article 4(2) of Regulation (EU) No 1303/2013 requires the Commission and the Member States to ensure that support of the ESI Funds is consistent with relevant policies and horizontal principles as referred to, inter alia, in Article 7 of the Regulation (EU) No 1303/2013 and priorities of the Union.

The legal framework applicable to cohesion policy has been furthermore reinforced to ensure that Member States have a system in place for handling complaints, including complaints alleging a violation of the Charter of Fundamental Rights.

In the context of ESI Funds, EU law provision triggering the application of the Charter can be found in the following EU regulations and directives:

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| 1. | The CPR; |

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| 2. | Fund-specific Regulations; |

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| 3. | Commission delegated and implementing regulations adopted on the basis of the CPR or the Fund specific Regulations; |

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| 4. | Other EU regulations and directives, which are applicable to Member States' actions implementing the ESI Funds. It would go beyond the purpose of this guidance to identify the national measures of implementation of all other EU regulations and directives, applicable to Member States' actions when implementing ESI Funds. However, national authorities have the obligations to respect the Charter in this context as well. |

In the area of the ESI Funds Member States are implementing EU law when establishing the ESI Funds intervention strategy and drawing up the programming documents (1), when setting up the management, monitoring and control system (2), when implementing programmes (3) under the set of regulations mentioned above under point 1 to 3. Therefore in the following phases Member States should ensure compliance with the Charter
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3.1.   Establishing the ESI Funds intervention strategy and drawing up the programming documents (preparation of strategic policy frameworks, Partnership Agreements, programs etc.)

Member States are considered to act in the scope of EU law when adopting acts or drawing up documents resulting from an obligation included in the CPR, or any of its delegated or implementing acts. This includes, by way of example, the drawing up of the Partnership Agreement or operational programmes (OPs).

When Member States draw up such documents, they need to ensure, with the help of the ‘Fundamental Rights Check-list’ that the content of the document is in compliance with the provisions of the Charter. The content of the document should respect the rights protected by the Charter and observe the principles therein.

In this context, the most relevant rights and principles are equality before the law, non-discrimination, equality between women and men, integration of persons with disabilities, the right to property, and environmental protection.

3.2.   Setting up the management, monitoring and control systems

Member States are considered to act in the scope of EU law when they set up structures and procedures required under the CPR for the management, monitoring and control of the ESI funds or if not explicitly required, when they put in place such structures for the sake of implementing the CPR, fund specific rules or their delegated or implementing acts. This covers the designation of the authorities and intermediate bodies, the working arrangements between them, the set-up of the monitoring committee and the adoption of manuals of procedures.

When doing so, Member States authorities should ensure that the rights and principles of the Charter are respected. In this context, the most relevant provisions are in particular Articles 7, 8 and 41 and 47 of the Charter.

Article 47 recognises the right to an effective remedy and to a fair trial, including the right to be heard. Article 7 is about the respect for private and family life. Article 8 concerns the protection of personal data while Article 41 concerns the obligation of the administration to give reasons for its decisions.

The right to an effective remedy and to a fair trial (due process) needs to be ensured throughout all procedures which are put in place to give effect to the provisions of the CPR, fund specific rules or its delegated or implementing acts.

For example, subject of the CJEU Case C-562/12 Liivimaa Lihaveis MTÜ v Eesti-Läti programmi 2007-2013, Seirekomitee has been the following set-up under the Estonia-Latvia cross-border cooperation programme: The Seirekomitee, a body composed by representatives of both Member States, took the final decisions on the qualitative assessment of project applications under that programme. That committee had also adopted a programme manual, which stipulated that its decisions could not be subject to appeal before a national court. Although the adoption of a programme manual was neither explicitly referred to in the applicable legislation for the programming period 2007-2013 nor in any EU implementing provisions, the CJEU concluded that the manual had clearly been adopted with the intention to implement EU legislation and that it was binding on any person wishing to obtain aid under the said programme. Therefore the Charter, including its Article 47, was held to be applicable in this case. The CJEU held that excluding in a programme manual the judicial review before a national court of a grant refusal decision is not compliant with Article 47.

Concerning the organization of the partnership, the most relevant Charter's rights and principle include: non-discrimination, linguistic diversity, equality between women and men, integration of persons with disabilities, while in relation to formulation of rules of membership for example, it would be necessary to pay attention particularly to rights and principles of non-discrimination, linguistic diversity, equality between women and men.

As regards the functions and obligations of the monitoring committee within the framework of setting up of the management, monitoring and control system, the most relevant Charter's rights and principle would include protection of personal data, non-discrimination, linguistic diversity, equality between women and men, integration of persons with disabilities, equality before the law and the right to an effective remedy and to a fair trial.

3.3.   Implementing programmes and carrying out concrete actions outlined in a project description for works carried out when implementing ESI funds

The implementation of the programmes requires actions to be taken by the managing authority or intermediate bodies[(5)](#ntr5-C_2016269EN.01000101-E0005). Such actions, like for example, launching calls for proposals, selecting operations, signing of grant agreements, follow up of the implementation, checking payment claims from beneficiaries, carrying out on the spot verifications, supervising the work of intermediate bodies, sending payment claims, preparing and submitting reports are actions of implementation of EU law.

Certifying authorities' responsibilities under Article 126 CPR also imply taking measures of implementation of EU law. Audit authorities as well when are drawing up an audit strategy, carrying out audit, drafting audit opinion and control reports

Furthermore, as explained in Chapter 2.2, Legal status of the Charter, the Charter might apply to certain beneficiaries, when the conditions mentioned in the Chapter 2.2 are fulfilled (Member State adopts a measure which makes these beneficiaries, whatever their legal form is, responsible for providing a public service under the control of the State. For that specific purpose they have special powers beyond those which result from the normal rules applicable in relations between individuals)[(6)](#ntr6-C_2016269EN.01000101-E0006).

When carrying out their tasks national authorities should ensure that the rights and principles of the Charter are respected and in this context, the most relevant Charter's rights and principles are the right to an effective remedy and to a fair trial, to the protection of personal data, to equality before the law and equality between women and men, to non-discrimination and the rights of the child, the integration of persons with disabilities and a high level of environmental protection, linguistic diversity, safe working conditions, freedom of expression and information, freedom of assembly and association, right to education, freedom to conduct a business, right to property, protection in the event of removal, expulsion or extradition, respect for private and family life.

3.4.   Applicability of the Charter in the context of Cohesion policy: why is Charter relevant for the state authorities managing ESI Funds?

A breach of a fundamental right enshrined in the Charter is subject to judicial review by the courts of the Member States and by the Court of Justice of European Union (CJEU).

Provisions of EU law and national law based on EU law must be interpreted in coherence with Charter obligations, so as to give effect to the rights guaranteed under it. Where a national court has doubts as to the applicability of the Charter or the correct interpretation of its provisions, it can — and, in the case of a national court of last instance, must — refer to the CJEU for a preliminary ruling. The CJEU's answer enables the national court to decide the case. National courts regularly use this procedure. It helps the development of Charter-related case law and strengthens the role of national courts in upholding it.

The Commission, as the guardian of the Treaties, has the power to try to put an end to a violation of the Charter. It can open infringement proceedings against Member States for non-compliance with the Charter.

As the Charter applies to Member States only when they are implementing Union law, the Commission cannot launch an infringement procedure for non-compliance of a national law with the Charter if that national law in question does not implement EU law. Where the Charter does not apply, fundamental rights continue to be guaranteed at national level under the constitutions or constitutional traditions of Member States and international conventions they have ratified, the respect of which is guaranteed by national courts.

In addition, in the context of ESI Funds, Article 6 of Regulation (EU) No 1303/2013 requires operations supported by ESIF to comply with applicable Union law and the national law relating to its application. If a Member State does not respect the Charter properly when taking actions or measures of implementation of EU law, this could constitute an irregularity by an economic operator (Article 2(36) of the CPR). The Commission will therefore, where appropriate, make use of the means it has at its disposal to ensure that EU Funds are used in compliance with the Charter, in those cases where it is applicable, including interruptions of payment deadlines, suspensions of payments and financial corrections as well as infringement proceedings under Article 258 TFEU.

The duty of national authorities to ensure the respect and the protection of fundamental rights is particularly relevant with regards to the complaints that the Member States can receive concerning a possible violation of the Charter. Related to the question of monitoring of application and implementation of the Charter in the Member States is the obligation for Member States arising from Article 74(3) of the CPR, to have in place effective arrangements for the examination of complaints concerning the ESI Funds submitted by legal or natural persons. Complaints concerning the ESI Funds can also be addressed directly to the Commission.

4.   HOW TO ASSESS COMPLIANCE WITH THE CHARTER — FUNDAMENTAL RIGHTS CHECKLIST

National authorities responsible for the implementation of the ESI Funds are invited to carefully assess whether the actions and measures (planned or already adopted by them) do fall within the scope of EU law and to check if they may have any impact on the fundamental rights enshrined in the Charter.

As a practical tool to help them carrying out this assessment, the following checklist is proposed without being of compulsory use.

I.   CHECK — if the foreseen national action or measure is the measure of implementation of EU law and therefore falls within the scope of the application of the Charter

NB: this check is not necessary for actions and documents identified in this guidance as implementing EU law.

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| a) | Check if there is an obligation in EU law other than the Charter applicable to the national action or measure. |

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| b) | If there is such an obligation in EU law, check if the national action or measure is intended to implement it. |

II.   CHECK — if there is a possible breach of the fundamental rights

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| 1. | What fundamental rights are affected? (Screening the foreseen action or measure against the fundamental rights in the Charter as well as ‘key impact questions’ in annex III provides a first indication as to which fundamental rights will be concerned) |

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| 2. | Are the rights in question absolute rights? (Examples being, the ban on torture and the prohibition of slavery or servitude). |

If it is concluded that the examined action or measure limits an absolute right, it should be discarded already at this stage since absolute rights may not be limited and a further analysis under points 3-6 is not needed.

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| 3. | What is the impact of the foreseen action or measure under consideration on fundamental rights? This step aims at identifying, for all different stakeholders concerned any positive impacts (promotion of fundamental rights) or negative impacts (limitation of fundamental rights)? |

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| 4. | Do the foreseen action or measure have both a beneficial and a negative impact, depending on the fundamental rights concerned (for example, a negative impact on freedom of expression and beneficial one on intellectual property) |

Should the analysis reveal that the foreseen action or measure would have no material impact on fundamental rights or only positive impacts on fundamental rights there is no need for further analysis under points 5 and 6. If you identify negative impacts, consider the following;

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| 5. | Would the limitation of/negative impact on fundamental rights be provided for by law, in a clear and predictable manner? |

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| 6. | Would any such limitation/negative impact:   |  |  | | --- | --- | | — | Genuinely meet an objective of general interest of the Union or to protect the rights and freedoms of others (This step should identify which objective of general interest or to protect the rights and freedoms of others)? |  |  |  | | --- | --- | | — | Be necessary to achieve the desired aim? (This step should examine if the measure is appropriate and effective for attaining the objective pursued without going beyond what is necessary to achieve it? Why is no equally effective but less intrusive measure available?); |  |  |  | | --- | --- | | — | Be proportionate to the desired aim? |  |  |  | | --- | --- | | — | Preserve the essence of the fundamental rights concerned? | |

If all these questions can be answered in the affirmative, then the limitation of the affected fundamental right can be considered to be legitimate.

To illustrate the use of this checklist, see below a concrete example of how it is used based on the facts of case C-401/11 Blanka Soukupová v Ministerstvo zemědělství and the assessment of the Court of Justice in its judgment of 11 April 2013.

The Member State in question had set up an early retirement support scheme for farmers co-financed from the European Agricultural Guidance and Guarantee Fund (EAGGF). The notion of ‘retirement age’ to be able to take part in the scheme was defined in national law. National legislation determined a retirement age which varied depending on the sex of the applicant and, for women, on the number of children raised.

When applying the checklist to this case at hand, the following questions need to be analysed:

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|  | 1. | What fundamental rights are affected?  The early retirement support scheme affects the principle of equal treatment and non-discrimination enshrined in Articles 20, 21(1) and 23 of the Charter. |

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|  | 2. | Are the rights in question absolute rights?  No, the rights enshrined in Articles 20, 21(1) and 23 of the Charter are not absolute rights. |

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|  | 3. | What is the impact of the foreseen action or measure under consideration on fundamental rights? This step aims at identifying, for all different stakeholders concerned any positive impacts (promotion of fundamental rights) or negative impacts (limitation of fundamental rights)?  Due to the fact that the ‘normal retirement age’ is determined differently depending on the gender of the applicant for support for early retirement from farming and, in the case of female applicants, on the number of children raised by the applicant, the early retirement support scheme impacts negatively on the principle of equal treatment between men and women and puts female farmers at a particular disadvantage vis-à-vis male farmers. |

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|  | 4. | Do the foreseen action or measure have both a beneficial and a negative impact, depending on the fundamental rights concerned?  The foreseen action has solely a negative impact on the right concerned, notably for women who have raised more children. Women who have raised more children objectively enjoy a shorter period in which to submit an application for registration under the support scheme for early retirement than that granted to men or women who have raised fewer children. |

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|  | 5. | Would the limitation of/negative impact on fundamental rights be provided for by law, in a clear and predictable manner?  Yes, the notion of ‘normal retirement age’ was defined in national law. |

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|  | 6. | Would any such limitation/negative impact:   |  |  | | --- | --- | | — | Genuinely meet an objective of general interest of the Union or protecting the rights and freedoms of others  No, the difference in treatment does not meet an objective of general interest of the Union or to protect the rights and freedoms of others. |  |  |  | | --- | --- | | — | Be necessary to achieve the desired aim? (This step should examine if the measure is appropriate and effective for attaining the objective pursued without going beyond what is necessary to achieve it? Why is no equally effective but less intrusive measure available?);  No, the measure is not necessary to achieve the desired aim, which is to encourage such farmers, regardless of their sex and of the number of children they have raised, to stop farming early and definitively, with a view to better ensuring the viability of agricultural holdings. Those farmers, both men and women, are entitled to claim such support, if they have definitively stopped all commercial farming activity after having practised farming for the 10 years preceding that cessation and were not less than 55 years old but not yet of normal retirement age at the time of the cessation. The desired aim could also have been reached by not making a distinction on the basis of gender or the number of children raised. |   As these questions cannot be answered in the affirmative, the limitation of the affected fundamental right (equal treatment) cannot be considered to be legitimate, and thus amounts to a violation of Articles 20, 21(1) and 23 of the Charter. |

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