Source: EURLEX
Language: en
Format: md

EUROPEAN
COMMISSION

Brussels, 8.5.2015
COM(2015) 191 final

**REPORT FROM THE COMMISSION TO THE EUROPEAN PARLIAMENT, THE**
**COUNCIL, THE EUROPEAN ECONOMIC AND SOCIAL COMMITTEE AND THE**

**COMMITTEE OF THE REGIONS**

**2014 Report on the Application of the EU Charter of Fundamental Rights**

{SWD(2015) 99 final}

# **EN EN**

## **1. Introduction**

This fifth annual report reviews how the European Union (EU) and its Member States gave effect to

the EU Charter of Fundamental Rights (Charter) in 2014.

The Charter has been legally binding since 1 December 2009. It is binding on EU institutions when

enacting new measures. It binds Member States when they act within the scope of EU law. As a young

source of law, the Charter has steadily gained legal importance. In 2014, 210 decisions in EU Courts [1]

quoted the Charter, [2] compared with 43 in 2011, 87 in 2012 and 114 in 2013.

The new Commission under President Juncker took office in November 2014. President Juncker

_'_
committed _…_ _to make use of the prerogatives of the Commission to uphold, within our field of_

_competence, our shared values and fundamental rights, while taking due account of the diversity of_

_constitutional and cultural traditions of the 28 Member States.'_ [3] He gave responsibility for

fundamental rights to the First Vice-President, Frans Timmermans.

The Commission mainstreams the Charter in all its policies. It works closely with national, European

and international organisations to ensure promotion of fundamental rights.

In his hearing before the European Parliament, First Vice-President Timmermans committed to

organise an annual colloquium on the state of play of fundamental rights in the EU, to improve mutual

cooperation and political engagement for the promotion and protection of fundamental rights. At the

colloquium, Member States, institutions and stakeholders will hold discussions to identify and deliver

policy actions on fundamental rights issues. The first colloquium in October 2015 will focus on

promoting tolerance and respect, in particular to prevent and combat anti-Semitic and anti-Muslim

hatred. It is preceded by consultations with civil society and stakeholders, including two high-level

dialogues, one with religious leaders and one with representatives of non-confessional organisations.

—
This report reviews the application of the Charter by and to EU institutions the European

—
Commission in particular and Member States. It highlights the importance of the European

Convention of Human Rights (ECHR) and provides an update on EU accession to it. For the first time,

the report includes a section on a topical emerging issue: this year ‘ fundamental rights in the digital

’
environment .

1 General Court, Civil Service Tribunal, and Court of Justice (CJEU).

2 See Appendix I in the Staff Working Document for an overview of 2014 CJEU case law that directly quotes the

Charter or mentions it in its reasoning.

3 See Jean-Claude Juncker, ‘ Political Guidelines for the Next European Commission ’,

[http://ec.europa.eu/priorities/docs/pg_en.pdf, p. 8.](http://ec.europa.eu/priorities/docs/pg_en.pdf)

2

## **2. Application of the Charter by and to the EU in all its actions**

In all their actions, EU institutions are obliged to comply with the Charter.

### **_2.1 Legislative action_**

Systematic fundamental rights checks during the legislative process are necessary to guarantee the

compliance of draft legislation with the Charter. In 2011, the Commission published ‘ Operational

’
Guidance on taking account of Fundamental Rights in Commission Impact Assessments . [4] In 2014, the

Commission committed to revise its impact assessment guidelines and held a public consultation. [5]

The _Digital Rights Ireland_ case [6] illustrated the need for fundamental rights checks of draft legislation.

The Court ruled the Data Retention Directive [7] invalid for infringements of the fundamental rights to

privacy and protection of personal data guaranteed by Article 7 and 8 of the Charter. This judgment

clarified that specific safeguards to protect fundamental rights, including provisions on exceptions for

professional secrecy and prior administrative or judicial review, have to be included in secondary EU

legislation and cannot be left to the discretion of the national legislator. The CJEU ruled that data

retention serves a legitimate objective of general interest, namely the fight against serious organised

crime, and is an appropriate means for attaining this objective. However, it held that the interference

by the Directive with the fundamental rights to respect for private life and to the protection of personal

data was not limited to what is strictly necessary.

This judgment is important for all EU institutions involved in the legislative process. In December

2014, the Council updated its ‘ Guidelines on methodological steps to be taken to check fundamental

’
rights compatibility at the Council preparatory bodies . [8] It provided training to Council staff to make

these guidelines more operational.

### **_2.2 Management of EU Funds_**

When managing EU funds, institutions, bodies, offices and agencies of the Union must respect

fundamental rights under the Charter. Member States, when they implement Union law, are under an

equal obligation.

4 SEC(2011) 567 final, 6.5.2011.

5 http://ec.europa.eu/smart [regulation/impact/consultation_2014/index_en.htm.](http://ec.europa.eu/smart-regulation/impact/consultation_2014/index_en.htm)

6 CJEU judgment of 8.4.2014 in Cases C-293/12 and C-594/12 _Digital Rights Ireland and Kaertner_

_Landesregierung_ .

7 Directive 2006/24/EC, OJ L 105/54.

8 General Secretariat of the Council, ST 53772015 INIT.

3

In the case _Liivimaa Lihaveis MTU_ [9] the Court confirmed earlier jurisprudence that ‘ 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. [10] In that case, EU law

required the two Member States involved in the operational programme to implement it. Firstly, those

Member States were required to set up a monitoring committee, pursuant to Article 63(1) and (2) of

Regulation No 1083/2006. Secondly, all measures to apply that programme had to comply with

Regulations No 1083/2006 and No 1080/2006. The CJEU held that the adoption of the programme

manual by the monitoring committee implements EU law within the meaning of Article 51(1) of the

Charter. The programme manual excluded the possibility of judicial review of decisions by the

monitoring committee to reject a subsidy; the CJEU held this to infringe the right to an effective

remedy under Article 47 of the Charter.

In May 2014, the European Ombudsman opened an investigation into respect for fundamental rights in

EU cohesion policy. [11] In its reply of 29 October 2014, [12] the Commission committed to adopting

measures to increase Charter awareness among Member States when managing European Structural

and Investment Funds (ESI funds). The Commission has formally reminded Member States of their

obligations to respect the Charter. It also offers assistance from ESI funds to support complaint

procedures. The Commission will disseminate good practices and issue guidance to Member States on

respect of the Charter when managing ESI funds in 2015.

The Commission had identified a possible violation of fundamental rights protection in a temporary

detention centre for irregular migrants; the Court of Auditors confirmed this assessment in a special

report in 2014. Rental costs for the centre had been included in a national programme under the

External Borders Fund and the Commission had not accepted the corresponding costs when the

programme closed. The Court of Auditors found that the Member State had not complied with the

prohibition of degrading treatment (Article 4 of the Charter) and the principle of human dignity

(Article 1 of the Charter) due to the bad conditions in which irregular migrants were detained.

### **_2.3 Human rights dimension of EU external actions_**

Article 21 of the Treaty on European Union (TEU) guides the Union ’ s external action. It reaffirms the

EU ’ s role in promoting democracy, the rule of law, the universality and indivisibility of human rights

and respect for the principles of the United Nations Charter and international law. Countries seeking to

_9_
CJEU judgment of 12.9.2014 in Case C-562/12 _Liivimaa Lihaveis MTi_ .

10 CJEU judgment of 29.05.1997 in Case C-299/95 Kremzow, para. 16.

11
[http://www.ombudsman.europa.eu/en/press/release.faces/en/54420/html.bookmark.](http://www.ombudsman.europa.eu/en/press/release.faces/en/54420/html.bookmark)

12 [http://www.ombudsman.europa.eu/en/cases/correspondence.faces/en/58451/html.bookmark.](http://www.ombudsman.europa.eu/en/cases/correspondence.faces/en/58451/html.bookmark)

4

join the EU must respect human rights. All cooperation and trade agreements with third countries

stipulate that human rights [13] are an essential element in relations between the parties.

In 2014, the European External Action Service and the Commission assessed the Action Plan on

Human Rights and Democracy (2012-14). [14] The Action Plan set out 97 specific actions. One example

are the EU Guidelines on Freedom of Expression online and offline, adopted by the Council in May

2014. The Guidelines provide definitions and guidance on how to protect the right to freedom of

expression, covering all its aspects, including the right to hold opinions without interference, the right

to seek and receive information and the right to impart information and ideas of all kinds through any

media and regardless of frontiers.

A new 2015-19 Action Plan is planned, with a focus on ensuring coherence between internal and

external human rights policies, notably for counterterrorism, migration and mobility, and trade.

In order to achieve the objectives of Article 21 TEU, the EU applies restrictive measures [15], which

often give effect to binding Resolutions of the UN Security Council based on Article 41 or 42 of the

Charter of the United Nations, but which can also be autonomous EU measures. Some of the

restrictive measures involve the listing of individuals and entities to have their funds and economic

resources frozen. For the individuals and entities concerned, the right to good administration, to an

effective remedy and to a fair trial (Articles 41 and 47 of the EU Charter of fundamental rights) are

crucial. In 2014, the CJEU heard cases concerning the procedure to impose restrictive measures on

individuals and entities. Of more than 30 judgments issued in 2014 on the legality of the restrictive

measures imposed, the Court upheld the listings in only one quarter of cases; in all other cases, the

listing decisions were annulled.

One case — the _Yusef_ judgment [16] — concerned restrictive measures taken based on Council Regulation

(EC) No 881/2002. [17] This regulation gives effect to a UN Security Council resolution on the freezing

of assets of individuals, entities and groups identified by the UN Sanctions Committee as associated

with Al Qaida. The General Court ruled that the Commission had failed to act as it had not remedied

procedural deficiencies and substantive irregularities affecting the freezing of Mr Yusef ’ s funds. It

thus called on the Commission to discharge its obligation to examine the ground for listing carefully

13 The term ‘fundamental rights’ is used in the EU to express the concept of ‘human rights’ within a specific

internal EU context. Traditionally, the term ‘fundamental rights’ is used in a constitutional setting whereas the
term ‘human rights’ is used in international law.

14
[http://eeas.europa.eu/human_rights/index_en.htm.](http://eeas.europa.eu/human_rights/index_en.htm)

15 See Article 215 TFEU.

16
CJEU judgment of 21.3.2014 in Case T-306/10 _Hani El Sayyed Elsebai Yusef v European Commission_ .

17 Regulation No 881/2002, OJ L 139/9.

5

and impartially and where appropriate in ‘ effective cooperation ’ with the UN Sanctions Committee. [18]

The Commission is reviewing the grounds for listing in cooperation with the relevant UN bodies.

Most of the cases [19] where restrictive measures against entities or individuals were annulled by the

CJEU concerned Council decisions and regulations, in which the evidence or information

substantiating the grounds for listing was not sufficient and the burden of proof, which rested on the

Council under Article 47 of the Charter, as interpreted in the _Kadi II_ case, [20] was not discharged. Other

cases were annulled for procedural reasons. [21]

In trade policy, the revised unilateral Generalised Scheme of Preferences (GSP+) arrangement, which

requires respect of core human rights conventions, started to apply on 1 January 2014. The monitoring

mechanism has been significantly strengthened, ensuring that GSP+ beneficiaries comply with their

obligations, in particular whether they ratify and implement 27 international conventions on human

rights and other issues. The European Parliament and Council also pay closer scrutiny.

## **3. Application of the Charter by and to the Member States**

Under the control of the CJEU, the Commission oversees respect of the Charter by Member States,

when they implement EU law. If it becomes aware of a breach, the Commission can open

infringement proceedings. National judges are aware of the Charter as an instrument to ensure

compliance with fundamental rights by Member States. 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 judges regularly use this procedure. It helps the development of Charter

related case law and strengthens the role of national judges in upholding it. In 2014, national judges

made 43 such referrals for a preliminary ruling, [22] slightly more than in previous years. [23]

### **_3.1 Infringement proceedings_**

18 Ibid., at para. 102.

19
For instance CJEU judgment of 3.07.2014 in Case T-565/12 _National Iranian Tanker Company v Council_ ;

CJEU judgment of 9.12.2014 in Case T-439/11 _Sport-pari v Council._

20 CJEU judgment of 18.07.2013 in Case C-584/10 P _Commission and Others v Kadi_ (Kadi II), Appeal Case

against T-85/09 _Kadi v Commission_ (Kadi I).

21 See, for example, _LTTE_ v _Council_, T-208/11 and T-508/11. That judgment is subject to an ongoing appeal in

case C-599/14 P..

22 See annex II ‘ Overview of the applications for preliminary rulings submitted in 2014 which refer to the Charter ’

in the Staff Working Document.

23 41 references referring to the Charter were introduced at the CJEU in 2013 and 2012.

6

Whereas the Charter was mentioned in five infringement proceedings in 2013, in 2014 the

Commission has referred to the Charter in 11 cases of proceedings based on Articles 258-260 TFEU.

The Charter is addressed to Member States only when they are implementing Union law. Therefore,

infringement proceedings concerning the Charter must relate to the provision of Union law which

triggers the applicability of the Charter.

Five of the 11 cases relate to asylum and migration. [24]

#### **_Infringement Proceedings in the field of Asylum and Migration_**

In 2014, the Commission opened infringement proceedings against a Member State on the Return

Directive [25] raising concerns on the length of detention, material detention conditions, the lack of free

legal assistance to returnees in detention centres and the absence of judicial review of detention orders

before six months and the limited review of decisions to extend the detention beyond six months

(Articles 4, 6 and 47 of the Charter).

Infringement proceedings were also opened against a Member State for incorrect application of the

Reception Conditions [26] and the Asylum Procedures [27] Directives. The Commission raised concerns on

the duration of the asylum procedure, the effectiveness of remedies against negative asylum decisions,

the lack of free legal assistance, the detention of certain categories of asylum seekers, which appears to

be applied automatically without an individualised assessment, the right to an effective remedy against

a detention decision, and free legal assistance in detention (Articles 6 and 47).

In 2014, the Commission examined how Member States applied the Charter when implementing EU

legislation at the Union ’ s external borders, in particular the _non-refoulement_ principle (Articles 4, 6,

18 and 19). Issues of concern include the application and length of detention, detention conditions, the

particular situation of minors, free legal assistance, and effective remedies under the asylum process in

some Member States (Articles 6, 24 and 47 of the Charter).

#### **_Visa Code and appeal of a visa refusal decision_**

At the end of 2014, the Commission urged five Member States to act to ensure that appeals against a

decision to refuse, annul or revoke a visa provide for access to a judicial body.

24 For more details, see the Staff Working Document annexed to this Report.

25 Directive 2008/115/EC, OJ L 348/98.

26 Directive 2003/9/EC, OJ L 31/18.

27 Directive 2005/85/EC, OJ 326/12.

7

The Visa Code Regulation [28] sets out procedures and conditions for issuing visas for short stays and

airport transit. It obliges Member States to provide for a right of appeal against a visa

refusal/annulment/revocation. Article 47 of the Charter grants individuals the right to an effective

remedy before a tribunal, when rights and freedoms under Union law are violated. National laws in the

Member States concerned, however, only provided for the possibility of an appeal before non-judicial

administrative authorities. The Commission considers this not to meet the standard of independent

tribunal set out in Article 47.

#### **_Segregation of Roma children in education_**

In September 2014, the Commission opened infringement proceedings against a Member State for

discrimination of Roma children in education, which is a violation of the Racial Equality

Directive. [29] In discussions with the Commission, the Member State justified its actions by reference to

CJEU case law related to the Charter. Consequently, the Commission deemed it necessary to clarify

the interpretation of this case law in the letter of formal notice, specifically referring to Article 21 of

the Charter, which prohibits discrimination based on race and ethnic origin.

### **_3.2 The CJEU giving guidance to the Member States (preliminary rulings)_**

In 2014, by answering referrals for preliminary rulings, the CJEU continued to give guidance to

national judges on the applicability of the Charter and the interpretation of its provisions.

#### **_Human dignity of asylum applicants_**

In December 2014, the CJEU ruled on questions referred by the Dutch Council of State in the case _A,_

_B, C v Staatssecretaris van Veiligheid en Justitie_ [30] on the interpretation of EU provisions on asylum

in relation to methods used to assess the credibility of declared sexual orientation of asylum

applicants. The applicants said that they feared persecution in their countries of origin because of their

homosexuality. The national court asked the CJEU if there are limits imposed by EU law as regards

verification of the sexual orientation of asylum applicants. The CJEU held that the Asylum

Qualification Directive [31] and the Charter do impose limits: methods used by national authorities must

respect fundamental rights, such as the right to respect for human dignity (Article 1) and the right to

respect for private and family life (Article 7). Nothing can be required of applicants that would

undermine their human dignity or personal integrity, such as intrusive, humiliating medical or pseudo

28 Regulation 810/2009/EC, OJ L 243/1.

29 Directive 2000/43/EC, OJ L 180/22.

30 CJEU judgment of 2.12.2014 in Joined Cases C-148/13, C-140/13 and C-150/13 _A, B, C v Staatssecretaris van_

_Veiligheid en Justitie._

31 Directive 2004/83/EC, OJ L304/12.

8

medical tests, intrusive questioning, or requiring/accepting photographic or video evidence of sexual

practices. This judgment enables national authorities to assess applications in a more consistent

manner, while ensuring full respect of fundamental rights.

#### **_Equality of arms in the field of consumer protection_**

The _Sanchez Morcillo_ [32] case — relating to Article 47 — concerns the procedural rights of consumers in

mortgage enforcement procedures, where the CJEU stressed the aspect of the equality of arms. It

considered that national law was contrary to the Directive on unfair terms in consumer contracts [33] and

to Article 47 of the Charter in cases where the law does not provide consumers with a right of appeal

when the creditor does benefit from such a right in the reverse scenario .

The CJEU also emphasised the vulnerability of consumers exposed to the risk of losing their home. In

_Kusinova_ [34] it stated that, under EU law, the right to respect for home is a fundamental right guaranteed

under Article 7 which national courts must consider when implementing the Directive on unfair terms

in consumer contracts.

#### **_The ne bis in idem principle in the Convention Implementing the Schengen_** **_Agreement_**

In the _Zoran Spasic_ case, [35] the CJEU assessed the compatibility of an enforcement condition laid

down in the Convention implementing the Schengen Agreement (CISA) with the _ne bis in idem_

principle under the Charter (Article 50).

The CISA provides that a person whose trial has been concluded in one State may not be prosecuted in

another for the same acts ( _ne bis in idem_ principle). However, the CISA specifies that this principle is

applicable only if the penalty has been enforced, is in the process of being enforced, or can no longer

be enforced under the laws of the sentencing State (the ‘ enforcement condition ’ ). Article 50 of the

Charter however does not expressly refer to such a condition. The CJEU held the CISA enforcement

condition not to be contrary to the Charter.

_32_
CJEU judgment of 17.7.2014 in Case C-169/14 _Sanchez Morcillo_ .

33 Directive 93/13/EEC, OJ L 95/29.

_34_
CJEU judgment of 10.9.2014 in Case C-34/13 _KuJEU jud_ .

35
CJEU judgment of 18.7.2014 in Case C-129/14 PPU _Zoran Spasic_ .

9

### **_3.3. National case law quoting the Charter_**

National judges play a key role upholding fundamental rights and the rule of law. Research by the

Fundamental Rights Agency [36] confirms that in 2014 Member State high courts continued referring to

the Charter for guidance and inspiration, even in cases which fell outside the scope of EU law.

The Commission promotes dialogue and cooperation among judges. The new ‘ European Case Law

Identifier ’ [37] will make it easier to understand the interpretation given to EU instruments by the highest

national courts and provides data on the application of EU instruments in national courts. Another

— ‘
project co-funded by the EU European Judicial Cooperation in Fundamental Rights Practice of

National Courts ’ — includes a handbook for judges on judicial interaction techniques and a database of

national judgments by Charter provision. [38]

### **_3.4 Charter awareness raising_**

In February 2015, a Eurobarometer Survey [39] showed that awareness of the Charter has only slightly

improved over the years: only 14 % of respondents actually knew what the Charter is about (11 % in

2012 and 8 % in 2007). Some 51 % of respondents had heard about the Charter, but did not know

exactly what it is (53 % in 2012 and 48 % in 2007). The Eurobarometer Survey also highlights the

need to raise public awareness of where to turn to concerning fundamental rights issues. The

Fundamental Rights Agency ‘ CLARITY ’ project [40] aims to give guidance about which body to turn to

when fundamental rights are at stake (national human rights institution, equality body and/or

ombudsperson). Another new project — _‘_ _Don_ _’_ _t knock on the wrong door: CharterClick! A user-_

_friendly tool to detect violations falling within the scope of the EU Charter of Fundamental Rights_ _’_ [41]

—
started in February 2015 and is co-funded under the Fundamental Rights and Citizenship (FRC)

Programme.

The need to foster awareness on the Charter and identify specific training needs and best practices for

public authorities were discussed at the December 2014 Conference ‘ _The Charter of Fundamental_

_Rights of the European Union: assessing and responding to the training needs of legal practitioners_

36 FRA 2014 annual report, to be published on 22 May 2015.

37 [https://e-justice.europa.eu/content_european_case_law_identifier_ecli-175-en.do.](https://e-justice.europa.eu/content_european_case_law_identifier_ecli-175-en.do)

38 [http://www.eui.eu/Projects/CentreForJudicialCooperation/Projects/EuropeanJudicialCooperationinFR/Docume](http://www.eui.eu/Projects/CentreForJudicialCooperation/Projects/EuropeanJudicialCooperationinFR/Documents.aspx)

[nts.aspx.](http://www.eui.eu/Projects/CentreForJudicialCooperation/Projects/EuropeanJudicialCooperationinFR/Documents.aspx)

39 Eurobarometer 416, 'The Charter of Fundamental Rights of the European Union', fieldwork between 16 and 18

February 2015 in all 28 EU Member States, available at
[http://ec.europa.eu/public_opinion/archives/flash_arch_420_405_en.htm#416](http://ec.europa.eu/public_opinion/archives/flash_arch_420_405_en.htm#416)

40 [http://fra.europa.eu/en/project/2013/clarity-complaints-legal-assistance-and-rights-information-tool-you.](http://fra.europa.eu/en/project/2013/clarity-complaints-legal-assistance-and-rights-information-tool-you)

41 [http://www.eui.eu/Projects/CentreForJudicialCooperation/Projects/CharterClick/Charterclick.aspx.](http://www.eui.eu/Projects/CentreForJudicialCooperation/Projects/CharterClick/Charterclick.aspx)

10

’
_and public officials_ . [42] Participants suggested the mapping of training strategies, experiences and tools

to promote awareness and implementation of the Charter at local, regional, national and EU level and

underlined the crucial role played by civil society and national human rights bodies. The EU funds

training on the Charter for public authorities and will continue to do so in 2014-20. [43]

## **4. European Convention of Human Rights**

On 18 December 2014, the CJEU delivered its opinion on the draft agreement on EU accession to the

ECHR. The Court identified problems as to its compatibility with EU law; it ruled the draft accession

agreement incompatible with Article 6(2) TEU and the related Protocol No 8. The Court called for

certain amendments: primacy of Union law in relation to the possibilities conferred by Article 53 of

the Charter as regards stronger fundamental rights in Member States ’ constitutions; mutual trust

between Member States in particular in the area of freedom, security and justice; relation with the new

Additional Protocol 16 to the ECHR; preservation of the exclusive jurisdiction of the CJEU for

deciding disputes between Member States concerning interpretation or application of the Treaties;

certain aspects of the procedure before the European Court of Human Rights involving the EU; and

judicial protection in the area of common foreign and security policy.

The Commission remains fully committed to EU accession to the ECHR. Accession will strengthen

fundamental values, improve the effectiveness of EU law and enhance the coherence of fundamental

rights protection in Europe. Accession to the ECHR remains of paramount importance. Moreover,

there is a legal obligation for EU institutions to seek to conclude an accession agreement that complies

with requirements laid down in the Treaties, and in particular in Protocol 8 to the Lisbon Treaty. At

present, the Commission is examining the best way forward.

Irrespective of the timing of accession, all EU institutions and Member States are obliged to interpret

the Charter in light of existing jurisprudence of the European Court of Human Rights. Article 52(3) of

the Charter contains the legal obligation to give the same meaning and scope to Charter rights and

rights in the ECHR, insofar as Charter rights correspond to ECHR rights. The Explanations relating to

the Charter of Fundamental Rights [44] list the Charter articles where both the meaning and scope are the

same as the corresponding ECHR articles, and where the meaning is the same but the scope is wider.

42 [http://ec.europa.eu/justice/events/fundamental-rights-charter-training-2014/index_en.htm.](http://ec.europa.eu/justice/events/fundamental-rights-charter-training-2014/index_en.htm)

43 Training of legal professionals on the Charter and information actions about the application of the Charter are

priorities in the call for proposals under the FRC programme. Following the 2013 call for proposals,

approximately € 2.8m (25% of the total budget) were allocated to projects in this area; in 2012, it was € 1.9m

of € 20.9m (7% of the total budget). Under the 2014-20 financial perspective, training on the Charter for

judicial authorities and legal practitioners is catered for by the Justice Programme (2014-20). In addition,
training and awareness-raising activities will also be supported under the Rights, Equality and Citizenship
programme (2014-20) focusing on individual rights.

44 2007/C 303/02, OJ C 303/17.

11

Whereas there is no legal obligation in the Charter to align interpretation with United Nations treaties,

the CJEU does refer to UN instruments for interpretation of rights under EU law. An illustration is the

definition of the concept of ‘ disability ’ where the CJEU in the _Kaltoft_ case [45] was inspired by the

wording of the UNCRPD, to which the EU is a party, in its assessment whether morbid obesity may

amount to a ‘ disability ’ for the purposes of the Equal Treatment in Employment Directive. [46]

## **5. Focus section: fundamental rights and the digital agenda**

The digital revolution has created many opportunities for society, citizens and business. It has also

raised concerns over the effective protection of fundamental rights within that environment. The

explosion in the collection, use and distribution of personal data is just one example of new digital

realities. Together with revelations about worldwide surveillance programmes, this shows the

necessity to establish more efficient safeguards for fundamental rights, in particular the right to the

protection of privacy and personal data.

The Commission is closely following global action [47] on fundamental rights in a digital society, such as

the Council of Europe ’ s guide on human rights for internet users. [48] Among the many issues raised are

the need for equal access to the internet, the threat of discrimination of individuals by means of

profiling, and the asymmetry of power between those who hold data and those who intentionally or

inadvertently supply it. New questions relate to intellectual property rights and duties of internet

platforms relating to prevention and combating terrorism and organised crime.

The protection of personal data, as guaranteed by Article 8 of the Charter, gains in importance in the

digital world. In January 2012, the Commission published proposals for a General Data Protection

Regulation [49] and a Data Protection Directive for police and criminal justice authorities. [50] In its first

45 CJEU judgment of 18.12.2014 in Case C-354/13 _Kaltoft._

46 Directive 2000/78/EC, OJ L 303/16.

47 See, for example, current discussions on ‘ Big Data ’, as reflected in the US White House Report on Big Data

and Privacy
[(http://www.whitehouse.gov/sites/default/files/docs/big_data_privacy_report_5.1.14_final_print.pdf), the](http://www.whitehouse.gov/sites/default/files/docs/big_data_privacy_report_5.1.14_final_print.pdf)

French Conseil d ’ [Etat Report on Digital Technology and Fundamental Rights (http://www.conseil-](http://www.conseil-etat.fr/content/download/33163/287555/version/1/file/digital%2520technology%2520and%2520fundamental%2520rights%2520and%2520freedoms.pdf)

[etat.fr/content/download/33163/287555/version/1/file/Digital%20technology%20and%20fundamental%20rig](http://www.conseil-etat.fr/content/download/33163/287555/version/1/file/digital%2520technology%2520and%2520fundamental%2520rights%2520and%2520freedoms.pdf)
[hts%20and%20freedoms.pdf) or the Italian Draft declaration of Internet Rights by the Study Committee on](http://www.conseil-etat.fr/content/download/33163/287555/version/1/file/digital%2520technology%2520and%2520fundamental%2520rights%2520and%2520freedoms.pdf)

Internet Rights and Duties of Italy ’ s Chamber of Deputies

[(http://www.camera.it/application/xmanager/projects/leg17/attachments/upload_file/upload_files/000/000/189](http://www.camera.it/application/xmanager/projects/leg17/attachments/upload_file/upload_files/000/000/189/dichiarazione_dei_diritti_internet_inglese.pdf)
[/dichiarazione_dei_diritti_internet_inglese.pdf).](http://www.camera.it/application/xmanager/projects/leg17/attachments/upload_file/upload_files/000/000/189/dichiarazione_dei_diritti_internet_inglese.pdf)

48 [See http://www.coe.int/en/web/internet-users-rights/guide.](http://www.coe.int/en/web/internet-users-rights/guide)

49 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, COM(2012) 11 final.

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reading on 12 March 2014, the European Parliament confirmed its support. [51] The Commission

continued to negotiate with its US counterparts on the Data Protection Umbrella agreement to protect

personal data transferred between the EU and the US for law enforcement purposes, and the conditions

of a new safe harbour regime as regards data transfers to the US.

The CJEU has underlined the need to protect but also balance fundamental rights correctly in the

digital environment. In the _Digital Rights Ireland_ case, the Court reiterated the EU institutions ’

obligations to respect the Charter in their activities, namely where they affect the right to privacy,

private life and personal data protection. It declared the Data Retention Directive invalid because it

disproportionately restricted rights to privacy and to the protection of personal data as guaranteed by

the Charter. The Directive had required Member States to ensure that telecommunications service

providers retain traffic and location data of their customers for between six months and two years and

to make these data available, on request, to law enforcement authorities for the purposes of

investigating, detecting and prosecuting serious crime and terrorism. In the _Google_ case [52] the CJEU

clarified that Google, as a data controller established in the EU, is obliged to respect EU data

protection law (articles 7 and 8 of the Charter) and therefore has to comply with requests to remove

links to certain personal data, under certain circumstances ( ‘ right to be forgotten ’ ).

In his political guidelines to the European Parliament, President Juncker called for breaking down

national silos in the regulation of telecoms, in copyright and data protection legislation, in the

management of radio waves and in the application of competition law. [53] The Digital Single Market

(DSM) strategy is one of the flagship initiatives of this Commission. Citizens' trust and confidence are

key pillars of this strategy and important pre-conditions of a fully functioning DSM. This includes

strong and efficient protection of fundamental rights online. In addition, full enjoyment of rights in the

DSM requires addressing the needs of persons with disabilities.

The Commission continuously follows developments in the protection of fundamental rights in all

policy areas, as required by the Charter. Fundamental rights do not serve primarily to promote security

or market-based policies but are in their own right central to the flourishing of an open and democratic

society.

50 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.

51
European Parliament legislative resolution of 12 March 2014 (COM(2012) 0010 — C7-0024/2012 –

2012/0010(COD)).

52
CJEU Judgment of 13.5.2014 in Case C-131/12 _Google Spain and Google_ .

53 See President Juncker's Political Guidelines available at [http://ec.europa.eu/priorities/digital-single-](http://ec.europa.eu/priorities/digital-single-market/index_en.htm)

[market/index_en.htm.](http://ec.europa.eu/priorities/digital-single-market/index_en.htm)

13

## **6. Conclusion**

The Commission is committed to a high level of protection of fundamental rights in the EU. It seeks to

ensure that all its legislative proposals and actions are fully compatible with the Charter.

In light of evolving threats to our societies, the Commission will ensure in its approach to security the

full respect and promotion of fundamental rights. It also updates fundamental rights policies in the

light of new developments, ranging from the digital agenda to challenges of migration, in line with

case law of the CJEU and the European Court of Human Rights.

The Charter applies to EU institutions but also to Member States when they implement EU law. The

Commission enforces respect of the Charter by Member States.

The Commission intends to promote fundamental rights across the EU, in particular with the first

Annual Colloquium on Fundamental Rights, in October 2015.

14