kom (2019) 0257 - Ingen titel

Europaudvalget 2019
KOM (2019) 0257
Offentligt

EUROPEAN

COMMISSION

Brussels, 5.6.2019

SWD(2019) 198 final

COMMISSION STAFF WORKING DOCUMENT

on the Application of the EU Charter of Fundamental Rights in 2018

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

2018 Annual Report on the Application of the EU Charter of Fundamental Rights

{COM(2019) 257 final}

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Introduction

After the entry into force of the

EU Charter of Fundamental Rights

in December 2009, the European Commission

adopted a

strategy for implementing it in an effective way.

One of the strategy's objectives is to ensure that the

EU is beyond reproach in upholding fundamental rights, in particular when it legislates. The Commission also

committed itself to drawing up annual reports to keep the public informed and measure progress with

implementing the Charter. These are intended to provide a factual basis for ongoing informed dialogue between

all EU institutions and Member States.

This report, for 2018, informs the public about situations in which they can rely on the Charter and about the role

of played by the European Union in the field of fundamental rights. In covering the full range of Charter provisions

ea h ea , the Co

issio s epo ts ai to t a k he e p og ess is ei g ade, he e

further efforts are still

necessary, and where new concerns are emerging.

The report contains an account of action taken by the EU institutions, along with analysis of letters and petitions

from the general public and questions from the European Parliament. It also covers key developments in 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 an 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 at both national level (by Member

States o stitutio al s ste s a d EU le el

the Cha te .

The Charter applies to all action taken by the EU institutions

(including the European Parliament and the

Council), which must comply with 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

systems of fundamental rights, but complements them. The factor linking an alleged violation of the Charter with

EU law depends on the situation concerned. For example, a connecting factor exists where:



national legislation transposes an EU directive;

a public authority applies EU law; or

a national court applies or interprets EU law.

If a national authority (administration or court) violates fundamental rights set out in the Charter when

implementing EU law, the Commission can start an infringement procedure against the Member State in question

and may take the matter to the

CJEU.

The Commission is not a judicial body or a court of appeal against the

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

http://ec.europa.eu/justice/news/intro/doc/com_2010_573_en.pdf

kom (2019) 0257 - Ingen titel

decisions of national courts. Nor does it, as a matter of principle, examine the merits of an individual case, unless

this is relevant to its task of ensuring that the Member States apply EU law correctly. In particular, if it detects a

wider problem

–

one that is structural in nature

–

it can contact the national authorities to find a solution, and it

may open an infringement procedure and ultimately take a Member State to the CJEU. The objective of

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 any action by the EU institutions violates their fundamental rights

as enshrined in the Charter, they can, subject to certain conditions, bring their case before the CJEU, which has

the power to annul the action concerned.

Matters outside the scope of EU law

The Commission cannot pursue complaints concerning matters beyond the scope of EU law.

This does not

necessarily mean that no fundamental rights have been violated. If a situation is not covered by 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 upheld by national courts, including, in

many countries, constitutional courts. Complaints made in this context should thus be addressed at national level.

Where the Charter is not applicable in certain situations within a Member State, individuals seeking to respond to

a Member State's violation of a right guaranteed under the

European Convention on Human Rights (ECHR)

may

thus:



have recourse to

national remedies;

and, once such remedies have been exhausted,

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

guaranteed by the

European Convention on Human Rights (ECHR).

All Member States are bound by the commitments they have made under the ECHR, independently of their

obligations under EU law. The ECtHR has designed an admissibility checklist to help potential applicants work out

for themselves whether there may be any obstacles to its examining their complaints.

The interpretation of those Charter rights which correspond to rights guaranteed under the ECHR must be

consistent with the way the ECtHR interprets ECHR rights.

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

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EU accession to the European Convention of Human Rights

The Treaty of Lisbon imposed an obligation on the EU to accede to the ECHR. EU

accession to the Convention

remains a priority for the Commission. It will make EU law more effective and improve the coherence of

fu da e tal ights p ote tio i Eu ope. Ho e e , the CJEU s opi io of De e e

hi h the Cou t

declared the 2013 draft Accession Agreement incompatible with the Treaties, raised a number of significant and

complex questions. As a result, a number of points in the draft Accession Agreement will have to be renegotiated.

In its capacity as EU negotiator, the Commission continues to consult the relevant Council working party on

solutions to address the various objections raised by the Court. The Commission is making a serious effort to carry

the accession process further and is currently exploring solutions to certain outstanding issues.

Overview of letters and questions to the Commission on fundamental rights

In 2018, the Commission received 2946 letters from the public and 582 questions from the European Parliament

on fundamental rights issues. Of the 531 petitions it received from the European Parliament, 90 concerned

fundamental rights.

See also the section on Article 44 below.

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Letters

... no specific

follow-up

50%

Outside EU

competence

45%

... with specific

follow-up

Among the letters from the public, 1609 concerned issues within the EU's competence.

In a number of cases, the Commission asked the Member States concerned to provide information or explained

the applicable EU rules to the complainant. In other cases, the complaints should have been addressed to the

national authorities or the ECtHR. Where possible, complainants were redirected to other bodies (e.g. national

data protection authorities) for more information.

Questions

... no specific

follow-up

25%

... with specific

follow-up

15%

Outside EU

competence

60%

Among the questions from the European Parliament, 236 concerned issues within the EU's competence.

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Petitions

Outside EU

competence

27%

... no specific follow-

41%

... with specific

follow-up

32%

Among the 90 petitions relating to fundamental rights, 66 concerned issues within EU competence.

In a number of cases, the Commission contacted the Member States to obtain clarification about alleged

violations. The replies explained or clarified the relevant policies and ongoing initiatives.

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

decisions referring to the Charter

The EU courts have increasingly referred to the Charter in their decisions. The number of decisions quoting the

Charter in their reasoning rose from 27 in 2010 to 195 in 2017 and 356 in 2018 (see Appendix I for an overview of

all relevant rulings). The Charter articles referred to prominently in cases before the EU courts were those on the

right an effective remedy and to a fair trial, the right to good administration, equality before the law and the right

to property.

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

its reasoning

400

350

300

General provisions

Number of rulings

250

200

Justice

Solidarity

Citizens' rights

Equality

150

100

2009

2010

2011

2012

2013

2014

2015

2016

2017

2018

Freedoms

Dignity

Source: European Commission

When addressing questions to the CJEU (requests for preliminary rulings), national courts often refer to

the Charter. Of those requests submitted by judges in 2018,

84 contained a reference to the Charter,

compared with 44 in 2017 and 19 in 2010 (See Appendix II for an overview).

Requests for preliminary rulings which mention the Charter

Number of preliminary rulings

Justice

Solidarity

Citizens' rights

2009

2010

2011

2012

2013

2014

2015

2016

2017

2018

Equality

Freedoms

Dignity

Source: European Commission

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References to Charter rights in national court decisions

As regards decisions handed down by

national courts in 2018,

the Charter provisions referred to most

concerned the right to an effective remedy, the respect for private and family life, and the scope of

guaranteed rights.

National courts: Number of references to Charter articles in selected high court decisions, 2018

Source: European Union Agency for Fundamental Rights (FRA), 2018

N.B.: based on 72 court decisions analysed by FRA. These were issued in 28 Member States in 2018. Up to three

decisions were reported per Member State. No court decisions were reported for Malta. The category 'Other

articles' includes articles that were referred to in fewer than four analysed court decisions. More than one article

can be referred to in one court decision.

Overview of enquiries to Europe Direct Contact Centres

The data collected by the Europe Direct Contact Centre (EDCC) confirm an even greater degree of interest among

citizens on justice, citizenship and fundamental rights compared to 2017. In 2018, the EDCC replied to 9 722

enquiries from citizens (in 2017: 7 761). Most concerned topics were the status of family members of EU citizens

and their right of residence (18.4%), the protection of consumers economic and legal interests (17.5%), data

protection (14.7%) and free movement of persons (11.2%).

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EU family members and residence

Protection of consumers economic and legal interests

Data protection

Free movement of persons

200

400

600

800

1.000 1.200 1.400 1.600 1.800 2.000

Justice and other related policies

Judicial cooperation

Fundamental rights and citizenship

Consumer policy

Anti-discrimination and fundamental social rights

Consumer information / education

Consumer security

Funding

Equality between women and men

Consumer food health and other related policies

Corporate social responsibility

Source: European Commission

Methodology and structure of the staff working document

The staff working document attached to the annual report treats the Charter as a legally binding source of law

while also giving a broader account of the various ways in which, in 2018, the Charter was invoked and

contributed to progress on respecting and promoting fundamental rights in a number of areas. The working

document therefore refers to the Charter as a legally binding instrument and/or a policy objective, depending on

the areas concerned. The accounts given in the report's various chapters vary in both breadth and depth,

depending on the progress made in specific policy areas, such as migration, asylum, the digital single market and

the European Energy Union. These reflect the 10 priority policy areas identified by President Juncker in his

opening statement to the European Parliament in 2014.

Some chapters thus show how certain legislative measures interact with fundamental rights by promoting them

or by striking the right balance in complying with them. References to the relevant CJEU case law are included.

Other chapters may concentrate on policy rather than legislative measures. To illustrate the Charter's growing

impact, the staff working document (SWD) (in the margins of the page where relevant) includes national court

decisions referring to the Charter, irrespective of whether EU law was applicable or not in those national cases.

Some measures and cases may relate to different articles of the Charter. For instance, a measure and/or case may

be explained in some detail in one chapter (the heading of one article), but it can also referred to in another.

P eside t Ju ke s politi al guideli es, A e sta t fo

Europe: my agenda for jobs, growth, fairness and

democratic

change

–

political

guidelines

for

the

European

Commission

(15

July

2014);

https://ec.europa.eu/commission/publications/president-junckers-political-guidelines_en

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The st u tu e of the SWD efle ts the Cha te 's si headi gs: Dig it , F eedo s, E ualit , Solida it , Citize s

Rights and Justice. Each of the SWD's six chapters contains the following information on the application of the

Charter, where available and relevant:



legislation:

e a ples of EU i stitutio s legislatio p oposed o adopted p o oti g Cha te ights; a d

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

the Charter in 2018 within other legislation (proposed or adopted);

policy:

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

the Charter in 2016 within policy areas, e.g. through recommendations, guidelines and good practice;

case law:

relevant CJEU jurisprudence; and

atio al ou ts ase la efe i g to the Cha te



ithi o outside the s ope of EU la

;



application by Member States:

follow-up: infringement procedures initiated by the Commission against Member States for failure

(correctly) to implement relevant legislation;

questions and petitions from the European Parliament and letters from the general public received in

2018 focusing on major issues to do with fundamental rights; and

data gathered by the EU Agency for Fundamental Rights in 2018.



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Title I

Dignity

Human dignity, the basis of all fundamental rights, must be fully respected by all EU institutions. One of 2018's

major concerns was the protection of this fundamental right. The need to ensure effective protection for human

dignity guided the Commission in many legislative proposals during the year, including: future funding

instruments in the areas of migration, border management and security; ethics guidelines on artificial

intelligence; and proposals for a regulation establishing the Asylum and Migration Fund.

The Commission continued to implement measures and appropriate instruments to eradicate female genital

mutilation.

On 13 June 2018, the heads of ten EU agencies signed a joint statement of commitment to work jointly against

trafficking in human beings.

As regards the fundamental right protected in Article 4 of the Charter (prohibition of torture and inhuman or

degrading treatment or punishment), the Court of Justice of the EU (in case ML6) ruled that the executing judicial

authority cannot rule out a real risk that the person for whom a European arrest warrant has been issued in order

to carry out a custodial sentence will be subjected to inhuman or degrading treatment within the meaning of

Article 4 of the Charter (merely because that person has a legal remedy in the issuing Member State permitting

him to challenge the conditions of his detention).

Article 1

—

Human dignity

Human dignity, protected under Article 1 of the Charter, is the basis of all fundamental rights. It guarantees the

right of human beings to be protected from being treated as mere objects by the state or by their fellow citizens.

It is both a right in and of itself, and an essential part of all other rights. Human dignity must thus be respected

even when other rights are restricted. All rights and freedoms that derive from dignity, such as the right to life

and the prohibition of torture and slavery, add specific protection against infringements of dignity. They must

equally be upheld in order to protect other rights and freedoms enshrined in the Charter, such as freedom of

expression and freedom of association. None of the rights laid down in the Charter may be used in a way that is

detrimental to the dignity of another person.

Legislation and policy

In the draft

Artificial Intelligence (AI) Ethics Guidelines

issued o

De e e

the Co

issio s High-

Level Expert Group on Artificial Intelligence (AI HLEG) , the High-Level Group stated that any approach to AI ethics

Judgment of 25 July 2018 in case C-220/18

PPU, ML

https://ec.europa.eu/digital-single-market/en/news/draft-ethics-guidelines-trustworthy-ai

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must be based on the fundamental rights defined in the EU Treaties and the Charter of Fundamental Rights.

These fundamental rights are a basis for identifying ethical principles and specifying how concrete ethical values

can be operationalised in the context of AI. The High-Level Group identified human dignity, equality and non-

discrimination as central concepts in their deliberations.

On 12 and 13 June 2018, the Commission adopted legislative proposals

for

future funding instruments under the

next Multiannual Financial Framework. The areas concerned were migration, border management and security.

The proposed funding instruments build on existing funding instruments. The centrality of fundamental rights is

enshrined in Article 3 of each of the proposals, which stipulates that each specific fund will contribute to the

Regulation's objectives, in full compliance with EU commitments on fundamental rights.

Furthermore, the following point to the need to implement the funds in full compliance with the rights and

principles enshrined in the Charter of Fundamental Rights of the European Union : recital (5) of the proposal for a

Regulation of the European Parliament and of the Council establishing the Asylum and Migration Fund; recital

(15) of the proposal for a Regulation of the European Parliament and of the Council establishing, as part of the

Integrated Border Management Fund, the instrument for financial support for border management and visa; and

recital (9) of the proposal for a Regulation of the European Parliament and of the Council establishing the Internal

Security Fund.

More specifically, action taken with the support of the Asylum and Migration Fund should take full account of the

fundamental rights of migrants, refugees and asylum seekers. It should, in particular, ensure full respect of the

right to human dignity, and the right to asylum

of those in need of international protection and protection in the

event of removal, expulsion or extradition

, including the application of principle of

non-refoulement

to those

who do meet the conditions for the right to stay. The proposal to establish the Asylum and Migration Fund pays

special attention to protection for vulnerable people, in particular children and unaccompanied minors. In

addition, as stated in Article 3 of the proposal, all actions funded by the Internal Security Fund should be

implemented with full respect for fundamental rights and human dignity. Specifically, they should comply with

the provisions of the Charter.

The rules on the part of the Funds implemented under shared management are set out in the Commission

proposal for the

Common Provisions Regulation

, which provides for further provisions on compliance with the

Proposal for a Regulation of the European Parliament and of the Council establishing the Asylum and Migration

Fund (AMF), COM/2018/471 final, 12.06.2018:

https://eur-lex.europa.eu/legal-content/EN/TXT/?qid=1540390612505&uri=CELEX%3A52018PC0471;

Proposal for a Regulation of the European Parliament and of the Council establishing, as part of the Integrated

Border Management Fund, the instrument for financial support for border management and visa (BMVI),

COM/2018/473

final,

12.06.2018:

https://eur-lex.europa.eu/legal-

content/EN/TXT/?qid=1540390917212&uri=CELEX%3A52018PC0473;

Proposal for a Regulation of the European Parliament and of the Council establishing the Internal Security Fund

(ISF), COM/2018/472 final, 13.06.2018:

https://eur-lex.europa.eu/legal-content/EN/TXT/?qid=1540391576418&uri=CELEX%3A52018PC0472

See Article 18.

See Article 19.

Proposal for a Regulation of the European Parliament and of the Council laying down common provisions on the

European Regional Development Fund, the European Social Fund Plus, the Cohesion Fund, and the European

Maritime and Fisheries Fund and financial rules for those and for the Asylum and Migration Fund, the Internal

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Charter. In particular, the proposal requires the Charter to be taken into account at the project selection stage

and a mechanism to be established to verify whether the actions are compliant with the Charter.

SImilarily, the Commission proposal for the Common Agricultural Policy (CAP)

[1]

states that Member

States must design the interventions in their CAP Strategic Plans in accordance with the Charter of

Fundamental Rights and with the general principles of Union law.

In the area of migration, the need to ensure effective protection for human dignity guided the Commission in

concluding status agreements with Serbia, Albania, the former Yugoslav Republic of Macedonia

, Montenegro

and Bosnia-Herzegovina in 2018

. These agreements provide for the deployment of European Border and Coast

Guard teams with executive powers on the territory of these non-EU countries. They also state that the teams

must respect fundamental rights and freedoms when performing their tasks. These include human dignity and

other relevant rights, such as the right to respect for private life and personal data

. The status agreements also

provide for a complaints mechanism to deal with alleged breaches of fundamental rights.

NATIONAL CASE LAW BOX

In a case dealing with the application of Directive 2013/33/EU (Reception Directive), the Supreme Court of the Republic of

Slovenia

ruled that Article 78 of the International Protection Act violated Article 1 (Human dignity) of the Charter, insofar as it

prescribes that the rights to which a person seeking international protection is entitled cease when the transfer decision

becomes enforceable and not with the actual transfer to another member state.

Article 2

—

Right to life

Article 2 of the Charter states that everyone has the right to life and no one should be condemned to the death

penalty or executed. The European Court of Human Rights has ruled since 1989 that exposure to the pervasive

and growing fear of execution

— the death o phe o e o —violated

the European Convention on Human

Rights. The ECtHR has also held that carrying out the death penalty could be considered inhuman and degrading

and therefore contrary to Article 3 of the European Convention on Human Rights

.Preventing loss of lives is also

one of the main challenges facing the EU in managing irregular migration.

Security Fund and the Border Management and Visa Instrument, COM/2018/375 final - 2018/0196 (COD),

29.05.2018,

https://eur-lex.europa.eu/legal-content/EN/TXT/?uri=COM%3A2018%3A375%3AFIN

[1]

COM(2018)392, available at https://eur-lex.europa.eu/legal-

content/EN/TXT/?uri=COM%3A2018%3A392%3AFIN

Now called 'the Republic of North Macedonia'

Until now only the agreement with Albania has been published: OJ L4666/3, 18.02.2019

See Articles 7 and 8.

Slovenia, Supreme Court, case I Up 10/2018, 4 April 2018.

ECtHR, judgment of 2 March 2010 in case of

Al-Saadoon & Mufdhi v. the United Kingdom,

application

no 61498/08.

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Article 3

—

Right to the integrity of the person

The right to physical and mental integrity protects people from infringements by public authorities and requires

authorities to promote such protection, e.g. through specific legislation. In medicine and biology, in particular, the

free and informed consent of the person concerned and the prohibition of eugenic practices, of making the

human body and its parts a source of financial gain and of the reproductive cloning of human beings must be

respected.

Legislation

Progress was made on the EU's accession to the Council of Europe's

Istanbul Convention

on preventing and

combating violence against women and domestic violence

, following the EU's signing of the Convention in June

2017. The Commission and the Member States have laid down in a code of conduct the practical arrangements

enabling the EU and the Member States to jointly fulfil their legal obligations under the Convention.

The Convention has been signed by all Member States. Three of them (Greece, Croatia and Luxembourg)

concluded the ratification process in 2018, bringing the total number of EU countries having ratified the

Convention to 20.

The Commission is working with the Council of Europe to encourage an informed debate in

the remaining Member States, with a view to enabling the Convention to be ratified swiftly.

Policy

The Commission continued its awareness-raising campaign to end violence against women,

No.No .Nei . #Sa

No Stop VAW

, producing and disseminating a variety of social media and communication materials.

It wound up

the campaign in December 2018 with a high-level event that both looked back at what had been achieved and

considered the next steps to be taken at national, European and international level to eliminate gender-based

violence.

November 2018 marked the five-year anniversary of the 2013 communication 'Towards the elimination of female

genital mutilation'

. Female genital mutilation (FGM) is practised for cultural, religious and/or social reasons, and

eliminating it calls for a range of action: data collection, prevention, protection of girls at risk, prosecution of

perpetrators and provision of services for victims. The Commission will continue to implement the measures set

out in the Communication, use appropriate instruments to eradicate FGM, and build on this experience to tackle

other harmful practices.

Council of Europe Convention on Preventing and Combating Violence against Women and Domestic Violence,

signed in Istanbul on 11 May 2011,

https://rm.coe.int/168008482e

BE, DK, DE, EE, EL, ES, FR, HR, IT, CY, LU, MT, NL, AT, PL, PT, RO, SI, FI, SE.

http://ec.europa.eu/justice/saynostopvaw/

https://eur-lex.europa.eu/legal-content/EN/TXT/?uri=COM:2013:0833:FIN

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Article 4

—

Prohibition of torture and inhuman or degrading treatment or

punishment

Article 4 of the Charter prohibits torture and inhuman or degrading treatment or punishment. Complying with

Article 4 requires authorities to be particularly vigilant where border controls, immigration and asylum are

concerned.

Legislation and policy

In the context of the

Alliance for Torture-Free Trade

the Union continued efforts to ban or control worldwide

trade in products used for torture and capital punishment. Launched in September 2017 in the margins of the

United Nations General Assembly, the Alliance is an initiative of the EU, Argentina and Mongolia. Almost 60

countries from all over the world have signed up to it so far with more countries expected to join in the future. In

previous years, the Union has taken legislative steps to reinforce the ban on trade in products used for torture

and capital punishment

On 24 September 2018, ministers from the countries in the Alliance gathered in New York for their first ministerial

meeting, one year after the launch in 2017. Following on from an experts meeting in Brussels in June 2018 on

sharing know-how and resources with those countries that want to introduce tough export controls, the

ministerial meeting helped to maintain international momentum to stop the trade in instruments used for

torture and carrying out the death penalty. In particular, ministers discussed how to work towards a binding

United Nations convention.

Case law

In case

, the CJEU ruled that the executing judicial authority cannot rule out a real risk that the person for

whom a European arrest warrant has been issued for the purpose of carrying out a custodial sentence will be

subjected to inhuman or degrading treatment within the meaning of Article 4 of the Charter, merely because that

person has, in the issuing Member State, a legal remedy permitting him or her to challenge the conditions of his

or her detention, although the existence of such a remedy may be taken into account by the executing judicial

authority when deciding whether to surrender the person concerned. The executing judicial authority is required

to assess only the conditions of detention in the prisons in which, according to the information available to it, the

person concerned is likely to be detained, even if only on a temporary or transitional basis. The executing judicial

authority must assess, to that end, solely the actual and precise conditions of detention of the person concerned

that are relevant for determining whether that person will be exposed to a real risk of inhuman or degrading

treatment within the meaning of Article 4 of the Charter. Finally, the executing judicial authority may take into

account information provided by authorities of the issuing Member State other than the issuing judicial authority,

http://www.torturefreetrade.org/

Regulation (EU) 2016/2134 of the European Parliament and of the Council of 23 November 2016 amending

Council Regulation (EC) N° 1236/2005 concerning trade in certain goods which could be used for capital

punishment, torture or other cruel, inhuman or degrading treatment or punishment, OJ L 338, 13.12.2016, p.1.

Judgment of 25 July 2018 in case C-220/18

PPU, ML

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such as, in particular, an assurance that the individual concerned will not be subjected to inhuman or degrading

treatment within the meaning of Article 4 of the Charter.

Article 5

—

Prohibition of slavery and forced labour

Slavery violates human dignity. Article 5(3) of the Charter prohibits trafficking in human beings. Slavery and

forced labour are also forms of exploitation covered by the definition of trafficking in human beings in Article 2 of

Directive 2011/36/EU on preventing and combating trafficking in human beings and protecting its victims (the

A ti-T affi ki g Di e ti e

Policy

The Commission implemented actions set forth in its 2017 communication stepping up EU action to address

trafficking in human beings.: On 13 June 2018, 10 heads of EU agencies signed a joint statement of commitment

to work jointly against trafficking in human beings.

This joint statement is part of a coordination effort by the EU

Anti-Trafficking Coordinator/European Commission to tackle human trafficking and acknowledge it as a grave

violation of fundamental rights, which is explicitly prohibited by Article 5(3) of the Charter,

After the 2017 Commission Communication on the follow-up to the EU Strategy towards the eradication of

trafficking in human beings and identifying further concrete action

, the European Gender Equality Institute, in

cooperation with the Commissio

, de eloped a epo t o

Gender-specific measures in anti-t

afficki g actio s’.

This

gives Member States practical, gender-specific guidance on how to implement the provisions of the

European Union legislative act addressing trafficking in human beings, in particular the Anti-Trafficking Directive

a d the Vi ti s Rights Di e ti e

On 3 December 2018, the Commission adopted its

second report

with an accompanying staff working

document. This takes stock of measures since 2015, highlights the main trends in human trafficking and outlines

the remaining challenges associated with banning human trafficking that the EU and Member States must address

Directive 2011/36/EU of the European Parliament and of the Council of 5 April 2011 on preventing and

combating trafficking in human beings and protecting its victims, and replacing Council Framework Decision

2002/629/JHA (OJ L 101, 15.4.2011, p. 1).

Joint Statement of commitment to working together against trafficking in human beings (signed by CEPOL, EASO,

ECBGA, EIGE, Europol, Eurojust, EMCDDA, eu-Lisa, Eurofound, FRA):

https://ec.europa.eu/anti-

trafficking/sites/antitrafficking/files/eu_agencies_joint_statement_of_commitment_to_working_together_to_add

ress_thb_.pdf

Communication from the Commission to the European Parliament and the Council reporting on the follow-up to

the EU Strategy towards the Eradication of trafficking in human beings and identifying further concrete actions,

COM/2017/0728 final

Directive 2012/29/EU of the European Parliament and of the Council of 25 October 2012 establishing minimum

standards on the rights, support and protection of victims of crime, and replacing Council Framework Decision

2001/220/JHA, OJ L 315, 14.11.2012, p. 57

Second report on the progress made in the fight against trafficking in human beings (2018), as required under

Article 20 of Directive 2011/36/EU on preventing and combating trafficking in human beings and protecting its

victims, COM(2018) 777 final, 3.12.2018, :

https://ec.europa.eu/home-affairs/sites/homeaffairs/files/what-we-

do/policies/european-agenda-security/20181204_com-2018-777-report_en.pdf

kom (2019) 0257 - Ingen titel

as a priority with regard to the Anti-Trafficking Directive. To continue widening the knowledge base and

improving understanding of this complex phenomenon, the second progress report was complemented by EU-

wide statistics on human trafficking

To disseminate knowledge about human trafficking by providing the conceptual clarity needed for practical

policies, ope

atio al a tio a d fu di g allo atio s, the Co

issio has de eloped the do u e t Ke o epts

i a utshell

on the prohibition of human trafficking.

Application by Member States

In the context of EU cohesion policy, Poland was approached by Commission departments in connection with a

possible violation of the prohibition on slavery and forced labour in a project co-financed by European Structural

and Investment (ESI) Funds. In particular, the national authorities were asked to investigate the alleged

employment of North Korean forced workers in Poland, after the press had accused several companies of this,

including some companies that had received co-financing from ESI funds. The Commission was informed that the

Polish National Labour Inspectorate had identified no cases of employment, illegal or otherwise, of North Korean

citizens within other companies receiving EU funds.

In late 2015 and 2016, several reports emerged on cases of alleged abuses and forced labour of migrant fishers in

the EU fishing industry. Following these reports, the Member State concerned took various measures to rectify

the situation, including setting up a new recruitment scheme for non-EEA workers. Despite these efforts, various

international and national public and private bodies, including the Council of Europe, have continued to find

shortcomings in the protection of migrant workers in the fisheries sector. The relevant Commission departments

held a meeting with the authorities of the country concerned to examine the various aspects of the scheme from

different points of view, including that of human trafficking. In 2018, a trade union organisation started a court

case at national level against the government, claiming the scheme does not protect workers from exploitation

and human trafficking.

Data collection on trafficking in human beings in the EU (2018), :

https://ec.europa.eu/home-

affairs/sites/homeaffairs/files/what-we-do/policies/european-agenda-security/20181204_data-collectio-study.pdf

https://ec.europa.eu/anti-trafficking/sites/antitrafficking/files/key_concepts_in_a_nutshell.pdf

kom (2019) 0257 - Ingen titel

Questions

Citizens' rights

21%

Justice

11%

Dignity

[CATEGORY NAME]

Solidarity

17%

Other

[CATEGORY NAME]

Equality

27%

Freedoms

18%

Prohibition of slavery

and forced labour

kom (2019) 0257 - Ingen titel

Title II

Freedoms

2018 was a crucial year as regards the right protected under Article 8 of the Charter: the new legislation on

data

protection

st e gthe s the p ote tio of the i di idual s ight to pe so al data p ote tio , efle ti g the atu e

of data protection as a fundamental right for the EU, and guarantees the free flow of personal data within the EU.

New legislation, which includes the

General Data Protection Regulation,

became applicable on 25 May 2018, and

the

Data Protection Directive for Police and Criminal Justice Authorities

was to be transposed by 6 May 2018.

Moreover, the Regulation on the protection of personal data by EU institutions, bodies, offices and agencies and

on the free movement of such data was adopted on 23 October and became applicable on 11 December 2018.

On 1 March 2018, the Commission issued a Recommendation on

measures to effectively tackle illegal content

online

the main principle envisaged is that illegal content online should be tackled with proper and robust

safeguards, to ensure protection of the various fundamental rights of all parties concerned. The Commission also

proposed a

Regulation on preventing the dissemination of terrorist content online.

It establishes a harmonised

legal framework clarifying the respective responsibilities of Member States and hosting service providers in

detecting and removing terrorist content online.

kom (2019) 0257 - Ingen titel

On 26 April 2018, the Commission adopted its

Communication on tackling online disinformation: a European

Approach.

The EU is aware of challenges to

media freedom and pluralism in the Member States

and has continued to take

measures to boost media freedom and pluralism across the EU.

The

Regulation on the European Solidarity Corps

was adopted in October 2018. It supports the engagement of

young people and organisations in solidarity activities and contributes to boosting cohesion and solidarity in

Europe, supporting communities and responding to social challenges.

In September 2018, the Commission put forward an amendment to the proposal for a

Regulation establishing a

European Union Agency for Asylum

and adopted a new proposal on the

European Border and Coast Guard

aiming to improve border management at EU level and to ensure that all Member States facing migratory

challenges receive adequate support.

On 19 June 2018, the Court of Justice of the European Union handed down its judgment on the

Gnandi

case

. The

Belgian Council of State asked whether it was possible to issue a return decision, within the meaning of the

Return Directive, before the legal remedies against a rejection of an asylum decision had been exhausted and the

asylum procedure concluded. The CJEU reiterated that the Return Directive must be implemented in a way that

respects fundamental rights and legal principles, in particular those enshrined in the Charter of Fundamental

Rights of the European Union.

Article 6

—

Right to liberty and security

Article 6 of the Charter guarantees the rights of all to liberty and security of person. These rights correspond to

those gua a teed i A ti le of the ECHR. The

ea , i pa ti ula , that a pe so s li e t a e li ited o l

under strict legal conditions.

Article 7

—

Respect for private and family life

Article 7 of the Charter guarantees the right of all to respect of their private and family life, and their home and

communications.

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

legislation, policy or case law refer to this right in connection with the protection of personal data, this report will

refer to them under Article 8 below.

kom (2019) 0257 - Ingen titel

Legislation

On 17 April 2018, the Commission adopted a

proposal on the use of financial and other information for the

combating of serious crimes

. Once adopted by the co-legislators, this initiative will provide competent

authorities with access to bank account and financial information and will further strengthen cooperation

between Financial Intelligence Units. As regards the right to privacy under Article 7 of the Charter, the initiative

will have a significant impact, given the number of people that would be affected. However, interference will be

relatively limited in terms of gravity, as the accessible and searchable data from the centralised bank account

registries do not cover financial transactions or the balance of the accounts. The information covered (e.g. the

o e s a e, date of i th, a k a ou t u e is li ited

to what is strictly necessary to identify the banks

where the subject of an investigation holds bank accounts. This instrument will also affect the right to the

protection of personal data

, which is closely linked to respect for private and family life.

Case law

Coman and Others

the Cou t has o fi ed that the te

spouse i the p o isio s of EU la o f ee

movement and residence of EU citizens refers to a person joined to another person by the bonds of marriage. It is

gender-neutral and may therefore cover the same-sex spouse of an EU citizen. In particular, the Court pointed out

that the rights guaranteed by Article 7 of the Charter have the same meaning and the same scope as those

guaranteed by Article 8 of the European Convention for the Protection of Human Rights and Fundamental

Freedoms. The Court referred to the case law of the European Court of Human Rights, concluding that the

elatio ship of a ho ose ual ouple a fall ithi the o ept of p i ate life a d that of fa il life i the

same way as the relationship of a heterosexual couple in the same situation.

Deha Altiner

, the Cou t o fi ed its p e ious ase la o the o ept of etu i g atio als , i.e. the ight of

EU citizens to be accompanied or joined by a family member who is not an EU national when returning to their

home Member State after having exercised free movement rights in another Member State. It confirmed that EU

citizens must genuinely have exercised the right of free movement in another Member State, and must have

started a family or consolidated their family life there, before they can invoke similar rights of entry and residence

for family members. The Court further clarified how much time can elapse between the return of the EU citizen

and the time when the non-EU family member joins the EU citizen in his or her home Member State, and how

Member States may deal with delays.

Proposal for a Directive of the European Parliament and of the Council laying down rules facilitating the use of

financial and other information for the prevention, detection, investigation or prosecution of certain criminal

offences and repealing Council Decision 2000/642/JHA, COM(2018)213 final, 17.4.2018.

See Article 8.

Judgment of 5 June 2018, in Case C-673/16,

Relu Adrian Coman and Others v Inspectoratul General pentru

I ig ă i a d Mi iste ul Afa e ilo I te e.

Judgment of 27 June 2018, in Case C-230/17,

Erdem Deha Altiner and Isabel Hanna Ravn v Udlændingestyrelsen.

kom (2019) 0257 - Ingen titel

Article 8

—

Protection of personal data

The fundamental right of all to the protection of personal data is explicitly stated in Article 8 of the Charter and

also enshrined in Article 16 of the Treaty on the Functioning of the EU (TFEU). According to this right, personal

data must be processed fairly, for specified purposes and on the basis of the consent of the person concerned or

some other legitimate basis laid down by law.

Legislation

2018 was a crucial year for the protection of personal data in the EU. The new legislation on data protection,

which includes the

General Data Protection Regulation

(GDPR)

, became applicable on 25 May 2018, and the

Data Protection Directive for Police and Criminal Justice Authorities

was to be transposed by 6 May 2018.

Furthermore, the

Regulation on the protection of personal data by EU institutions, bodies, offices and agencies

and on the free movement of such data

was adopted on 23 October and became applicable on 11 December

2018.

The e legislatio st e gthe s the p ote tio of the i di idual s ight to pe so al data p ote tio , efle ti g the

nature of data protection as a fundamental right for the EU, and guarantees the free flow of personal data within

the EU. Among other things, the GDPR beefs up the monitoring and enforcement of the application of the data

protection rules by data protection supervisory authorities, introduces cooperation and consistency mechanisms

to ensure the GDPR is applied consistently, and establishes the

European Data Protection Board

(EDPB), a new

EU body with legal personality and with its own secretariat. The Commission supported the transition of the

Article 29 Working Party

towards the EDPB, including the transfer of the secretariat, which, under the previous

legislation, had been the responsibility of Commission departments. The Commission participates in EDPB

meetings and activities.

The EDPB took several initiatives for new documents allowing for the common interpretation and enforcement of

the new data protection legislation. The documents it adopted included the final version of the Guidelines on

derogations applicable to international transfers

, the Guidelines on the territorial scope of the GDPR

, and the

Regulation (EU) 2016/679 of the European Parliament and of the Council of 27 April 2016 on the protection of

natural persons with regard to the processing of personal data and on the free movement of such data, and

repealing Directive 95/46/EC (General Data Protection Regulation), OJ L 119, 4.5.2016, p. 1.

Directive (EU) 2016/680 of the European Parliament and of the Council of 27 April 2016 on the protection of

natural persons with regard to the processing of personal data by competent authorities for the purposes of the

prevention, investigation, detection or prosecution of criminal offences or the execution of criminal penalties, and

on the free movement of such data, and repealing Council Framework Decision 2008/977/JHA, OJ L 119, 4.5.2016,

p. 89.

Regulation (EU) 2018/1725 of the European Parliament and of the Council of 23 October 2018 on the protection

of natural persons with regard to the processing of personal data by the Union institutions, bodies, offices and

agencies and on the free movement of such data, and repealing Regulation (EC) No 45/2001 and Decision No

1247/2002/EC, OJ L 295, 21.11.2018, p. 39.

The body that brings together the data protection authorities of the Member States, named after Article 29 of

Directive 95/46/EC, which established it.

https://edpb.europa.eu/our-work-tools/our-documents/guidelines/guidelines-22018-derogations-article-49-

under-regulation_en

kom (2019) 0257 - Ingen titel

Guidelines on accreditation

; it took account of comments made in the course of public consultations on the

draft versions of those documents, and of a number of opinions and statements. Finally, the EDPB adopted its

first Opinion on the adequacy decision, related in this case to Japan. All EDPB activities are outlined on its

website

The Commission worked with Member States to promote consistency and limit fragmentation in the application

of the GDPR, taking into account the scope for specification which the new legislation allows them, and started

monitoring the Regulation's application in EU countries. It also launched an online practical guidance tool that

includes questions and answers aimed at individuals, businesses and public administrations and ran an

information campaign targeting businesses and the public. The Commission continued engaging actively with

stakeholders, especially through the multi-stakeholder group on the implementation of the GDPR and awareness

of the new rules. It co-financed awareness-raising initiatives undertaken by different stakeholders and by data

protection authorities at national level. The first projects funded through the grants were implemented in 2018.

Following the adoption of the GDPR, the Commission adopted a

Decision laying down internal rules concerning

the processing of personal data by OLAF

. This responds to the requirements of Article 25 of the new

Regulation, providing for the necessity of an additional legal basis to restrict data subjects' rights, and thus adapts

OLAF's well-established practice in handling data subjects' rights to the new legal framework. The Decision

ensures compliance with the fundamental right to protection of personal data as set out in Article 8 of the

Charter, while enabling OLAF to secure the confidentiality of its investigations and to ensure the protection of the

rights and freedoms of the people concerned, witnesses and informants. It sets out the conditions under which

OLAF informs data subjects of any activity involving processing of their personal data and handles their rights of

access, rectification, erasure, restriction of processing and communication of a personal data breach. The

i ol e e t of OLAF s Data P ote tio Offi e o , here

relevant, of the data protection officers of the

Commission or of the executive agency concerned) throughout the procedure ensures an independent review of

the restrictions applied.

In addition, the codification of OLAF's established practices and procedures in the Decision guarantees a high level

of legal certainty for all data subjects, thereby complying with the 'quality of law' requirements developed by the

European Court of Human Rights.

On 25 April 2018, the Commission adopted the third

data package proposal

. The core of this was the review

(recast) of the Public Sector Information Directive, the purpose of which was to increase the amount of

https://edpb.europa.eu/our-work-tools/public-consultations/2018/guidelines-32018-territorial-scope-gdpr-

article-3_it

https://edpb.europa.eu/our-work-tools/public-consultations/2018/edpb-guidelines-42018-accreditation-

certification-bodies_en

https://edpb.europa.eu/news/news_en

Commission Decision (EU) 2018/1962 of 11 December 2018 laying down internal rules concerning the processing

of personal data by the European Anti-Fraud Office (OLAF) in relation to the provision of information to data

subjects and the restriction of certain of their rights in accordance with Article 25 of Regulation (EU) 2018/1725 of

the European Parliament and of the Council, OJ L 315, 12.12.2018, p. 41.

https://ec.europa.eu/digital-single-market/en/policies/building-european-data-economy

kom (2019) 0257 - Ingen titel

government data available for reuse in Europe

. The proposal pursues the objectives set out in the digital single

market strategy

. The proposed directive would have a positive impact on the freedom to conduct a business

helping to create a common European 'data space' by increasing the amount of public sector data available for

reuse, ensuring fair competition and easy access to markets on the basis of public sector information, and

boosting cross-border innovation based on data. In such a common European data area, data can flow freely

across borders and sectors, in accordance with the principles of free movement (freedom of establishment and

free movement of services), while respecting fundamental rights and principles, as recognised by the Charter,

including the right to receive and impart information and ideas without interference by any public authority and

regardless of frontiers

. The proposal is in line with the data protection legislation in force, namely the GDPR, and

the revised ePrivacy rules

. The recast proposal fully respects fundamental rights and abides by the principles

recognised, in particular, by the Charter of Fundamental Rights of the European Union, including the right to

privacy

and the protection of personal data. Additionally, the right to property

is guaranteed by the fact that

the directive does not affect the intellectual property rights of third parties or the existence or ownership of

intellectual property rights of public sector bodies. The inclusion of people with disabilities

is guaranteed by the

provision that, where possible and appropriate, public sector bodies should take into account the possibilities for

the reuse of documents by and for people with disabilities by providing the information in accessible formats.

The

Regulation on a framework for the free flow of non-personal data in the European Union

was adopted

14 November 2018 and will start to apply from 28 May 2019. The Regulation provides for the free flow of non-

personal data within the EU and promotes the fundamental free movement principles (in particular, freedom of

establishment and freedom of movement of services)

. It does not affect the existing legal framework for

personal data protection, which is to be applied when processing datasets comprising both personal and non-

personal data. The Commission will draw up a guidance document for businesses and Member States on the how

the Regulation and the GDPR interact in practice.

In the context of the common agricultural policy, the

proposal for a Regulation on the financing, management

and monitoring of the common agricultural policy

recognises the need to publish information about the

identity of the beneficiaries, the amount awarded and the fund from which it comes, plus the purpose and nature

of the type of intervention or measure concerned. Such information should be published in such a way as to

Proposal for a Directive of the European Parliament and of the Council on the re-use of public sector information

(recast), COM(2018) 234 final, 25.04.2018,

https://eur-lex.europa.eu/legal-content/EN/TXT/?qid=1546952357571&uri=CELEX:52018PC0234

https://ec.europa.eu/commission/priorities/digital-single-market_en

See Article 16.

See Article 11.

Proposal for a Regulation of the European Parliament and of the Council concerning the respect for private life

and the protection of personal data in electronic communications and repealing Directive 2002/58/EC, COM(2017)

10 final

https://eur-lex.europa.eu/legal-content/EN/TXT/?uri=CELEX%3A52017PC0010

See Article 7.

See Article 17.

See Article 26.

Regulation (EU) 2018/1807 of the European Parliament and of the Council of 14 November 2018 on a framework

for the free flow of non-personal data in the European Union (EU) 2018/1807, OJ L 303/59 28.11.2018, p. 59.

See Article 16.

Proposal for a Regulation of the European Parliament and of the Council on the financing, management and

monitoring of the common agricultural policy and repealing Regulation (EU) No 1306/2013 COM(2018)393 final,

1.06.2018,

https://eur-lex.europa.eu/legal-content/EN/TXT/?uri=COM%3A2018%3A393%3AFIN

kom (2019) 0257 - Ingen titel

minimise

i te fe e e ith the e efi ia ies ight to espe t fo thei p i ate life

and their right to protection of

their personal data.

In the taxation field, the Commission adopted a proposal for a directive amending Directive 2006/112/EC and

Council Regulation amending Regulation (EU) No 904/2010 as regards

mandatory transmission and exchange of

VAT-relevant payment data

. In the fight against VAT fraud, only the data necessary to achieve the objective of

combating e-commerce VAT fraud will be processed by the tax authorities' anti-fraud experts, in line with the

GDPR and Article 8 of the Charter of Fundamental Rights. More precisely, the only data that will be processed are

those that enable the tax authorities to (i) identify the suppliers, (ii) check the number of transactions and their

monetary value, and (iii) verify the origin of the payments. Data on consumers are not included in the present

initiative, apart from data on the Member States of origin of the payments (i.e. the Member State where the

consumers are located). Proportionality is also ensured by setting thresholds below which payment service

providers are not required to send payment data to the tax authorities, the aim being to exclude payments that

are probably not associated with economic activities.

In the area of fisheries, three instruments were adopted in 2018, in full compliance with EU rules on the

protection of personal data.

The Commission Implementing

Decision establishing specific control and inspection programmes for certain

fisheries

prescribes a general storage limitation period of 10 years for personal data processed and exchanged

by the European Fisheries Control Agency and Member States when implementing the control and inspection

programmes. The personal data necessary to allow an infringement, inspection, or judicial or administrative

proceedings to be followed up may be stored for a maximum of 20 years. Balancing the EU's interests in

performing scientific research and providing scientific advice with regard to the CFP, personal data necessary for

that purpose may be stored for a longer period, in line with Article 89 of the GDPR.

The Co

issio s

proposal for a Regulation as regards fisheries control

updates the provisions on data

protection including those purpose limitation and explicit storage limitation ,to ensure that personal data

collected are kept for no longer than necessary. Moreover, data to which the Commission and designated bodies

are to be given access by Member States according to the new Article 110(1) and (2) may, in principle,ongoing be

stored for no longer than 5 years. Only data necessary to allow the follow-up of a complaint, infringement,

inspection, verification or audit, or ongoing judicial or administrative proceedings, can be retained for a maximum

of 10 years. If any data referred to in Article 110(1) and (2) are to be kept for a longer period, they must be

See Article 7.

Proposal for a Directive amending Directive 2006/112/EC and Council Regulation amending Regulation (EU) No

904/2010 as regards mandatory transmission and exchange of VAT-relevant payment data, COM(2018) 813 final,

12.12.2018.

Commission Implementing Decision (EU) 2018/1986 of 13 December 2018 establishing specific control and

inspection programmes for certain fisheries and repealing Implementing Decisions 2012/807/EU, 2013/328/EU,

2013/305/EU and 2014/156/EU, OJ L 317, 14.12.2018, p. 29.

Commission Proposal of 30 May 2018 for a regulation of the European Parliament and of the Council amending

Council Regulation (EC) No 1224/2009, amending Council Regulations (EC) No 768/2005, (EC) No 1967/2006, (EC)

No 1005/2008, and Regulation (EU) No 2016/1139 of the European Parliament and if the Council as regards

fisheries

control,

COM(2018)

368

final,

30.05.2018,

https://eur-lex.europa.eu/legal-

content/EN/TXT/?uri=CELEX%3A52018PC0368.

kom (2019) 0257 - Ingen titel

anonymised. Furthermore, the Commission commits to preventing unauthorised processing of or access to data,

ensuring verification of data and monitoring the effectiveness of security measures put in place to that end. This

includes adopting a security plan, a business continuity plan and a disaster recovery plan. Article 112(8) stipulates

that Member States are to take equivalent measures.

To ensure transparency in the use of public funds, the Commission issued a

proposal for the European Maritime

and Fisheries Fund Regulation

and a

proposal for a Common Provisions Regulation

requiring Member States

to publish on a public website various kinds of information on operations funded under the European Maritime

and Fisheries Fund. This information must not include names, surnames or vessel registration information, unless

this is allowed by the national data protection legislation. Moreover, data which would enable conclusions to be

drawn about a person's income must be removed from the website at most 2 years after their initial publication.

In the field of migration, three

Regulations streghtening the Schengen Information System

were adopted and

entered into force on 27 December 2018. They will come into force in stages, until they completely replace the

present legal framework by the end of 2021. Data protection rules and principles have been beefed up and

brought into line with the new EU data protection framework. In line with Article 8 of the Charter, the new

Regulations include additional safeguards to limit the processing of data to what is strictly necessary and

operationally required. Stringent alert deletion rules were added to ensure that alerts are kept only as long as is

strictly necessary to achieve the purposes for which they were entered. The new Regulations introduce an

obligation to carry out a proportionality assessment if the retention period of an alert is extended.

In 2018 a

European Travel Information and Authorisation System

(ETIAS) was adopted and the new Regulation

entered into force on 9 October 2018. It will become applicable in several steps, until the entry into operation of

the new IT system. The Regulation ensures full respect of fundamental rights and will contribute to protect

people s ight to life a d o tai s all app op iate safegua ds, e su i g that ETIAS is de eloped i li e ith the

highest standards of data protection, in particular regarding data access, which is strictly limited.

Proposal for a Regulation of the European Parliament and of the Council on the European Maritime and Fisheries

Fund and repealing Regulation (EU) No 508/2014 of the European Parliament and of the Council, COM(2018)390

final, 12.6.2018,

https://eur-lex.europa.eu/legal-content/EN/TXT/?uri=COM%3A2018%3A390%3AFIN

Proposal for a Regulation of the European Parliament and of the Council laying down common provisions on the

European Regional Development Fund, the European Social Fund Plus, the Cohesion Fund, and the European

Maritime and Fisheries Fund and financial rules for those and for the Asylum and Migration Fund, the Internal

Security Fund and the Border Management and Visa Instrument, COM(2018)375 final, 29.5.2018,

https://eur-

lex.europa.eu/legal-content/EN/TXT/?uri=COM%3A2018%3A375%3AFIN

Regulation (EU) 2018/1860 of the European Parliament and of the Council of 28 November 2018 on the use of

the Schengen Information System for the return of illegally staying third-country nationals, OJ L 312, 7.12.2018, p.

1; Regulation (EU) 2018/1861 of the European Parliament and of the Council of 28 November 2018 on the

establishment, operation and use of the Schengen Information System (SIS) in the field of border checks, and

amending the Convention implementing the Schengen Agreement, and amending and repealing Regulation (EC)

No 1987/2006, OJ L 312, 7.12.2018, p. 14; Regulation (EU) 2018/1862 of the European Parliament and of the

Council of 28 November 2018 on the establishment, operation and use of the Schengen Information System (SIS)

in the field of police cooperation and judicial cooperation in criminal matters, amending and repealing Council

Decision 2007/533/JHA, and repealing Regulation (EC) No 1986/2006 of the European Parliament and of the

Council and Commission Decision 2010/261/EU, OJ L 312, 7.12.2018, p. 56.

Regulation (EU) 2018/1240 of the European Parliament and of the Council of 12 September 2018 establishing a

European Travel Information and Authorisation System (ETIAS) and amending Regulations (EU) No 1077/2011, (EU)

No 515/2014, (EU) 2016/399, (EU) 2016/1624 and (EU) 2017/2226 (OJ L 236, 19.9.2018, p.1)

kom (2019) 0257 - Ingen titel

On 16 May 2018, the Commission adopted a

proposal to amend the legal bases of the Visa Information System

(VIS) and other related instruments to do with visas and borders

, to improve internal security and close

information gaps at external borders, while continuing to comply fully with fundamental rights. The impact

assessment

accompanying the proposal looked in particular into the impact the proposed measures would have

on the right to data protection. A wide range of stakeholders were involved in the consultations leading to the

adoption of the proposal. FRA

and the European Data Protection Supervisor

published their opinions on the

proposal, offering further recommendations on how to better safeguard Charter-enshrined rights in the proposed

Regulation. The main aspect of the proposal which has a significant impact on the right to data protection is the

expansion of the scope of the VIS by adding long-stay visas and residence permits to the system to ensure that

the authorities have the information they need, when they need it, and with full respect for fundamental rights.

In this respect, the proposal is driven by the

privacy by design

principle. Additionally, it sets up a mechanism of

checks against available EU and Interpol databases using the interoperability platform. Finally, it provides for

storing copies of the visa applicant's travel document in the VIS and proposes lowering the fingerprinting age for

applicants from 12 to 6, accompanied by stronger rights for the child, and other safeguards ensuring that the

child's best interests are a primary consideration in all procedures related to processing in the VIS.

In 2018, the co-legislato

s dis ussed the Co

issio s

proposals to establish a framework for interoperability

between EU information systems

. Discussions took particular account of the opinions of the European Data

Protection Supervisor and the EU Agency for Fundamental Rights. Building on the Commission's proposals, the

ai of these dis ussio s as to e su e that the i itiati e ould oost se u it i Eu ope a d p ote t people s

right to life

, while also including appropriate safeguards to protect the right to the protection of personal data

and abide by the principle of proportionality

. The interoperability regulations are expected to be adopted in

Proposal for a Regulation from the European Parliament and of the Council amending Regulation (EC) No

767/2008, Regulation (EC) No 810/2009, Regulation (EU) 2017/2226, Regulation (EU) 2016/399, Regulation

XX/2018 [Interoperability Regulation], and Decision 2004/512/EC and repealing Council Decision 2008/633/JHA,

COM(2018) 302 final, 16.5.2018.

SWD(2018) 195.

FRA Opinion 2/2018 (The revised Visa Information System and its fundamental rights implications - Opinion of

the European Union Agency for Fundamental Rights), 30.8.2018,

https://fra.europa.eu/en/opinion/2018/visa-

system.

EDPS Opinion 9/2018 on the Proposal for a new Regulation on the Visa Information System; 13.12.2018,

https://edps.europa.eu/data-protection/our-work/publications/opinions/upgrading-visa-information-system-

%E2%80%98vis%E2%80%99_en

Proposal for a Regulation of the European Parliament and of the Council on establishing a framework for

interoperability between EU information systems (borders and visa) and amending Council Decision 2004/512/EC,

Regulation (EC) No 767/2008, Council Decision 2008/633/JHA, Regulation (EU) 2016/399 and Regulation (EU)

2017/2226, COM(2017) 793 final, 12.12.2017,

https://ec.europa.eu/home-affairs/sites/homeaffairs/files/what-we-

do/policies/european-agenda-

security/20171212_Proposal_regulation_on_establishing_framework_for_interoperability_between_eu_informati

on_systems_borders_and_visa_en.pdf

and Proposal for a Regulation of the European Parliament and of the Council on establishing a framework for

interoperability between EU information systems (police and judicial cooperation, asylum and migration),

COM(2017) 794 final,

https://ec.europa.eu/transparency/regdoc/rep/1/2017/EN/COM-2017-794-F1-EN-MAIN-

PART-1.PDF.

See Article 2.

See Article 52(1).

kom (2019) 0257 - Ingen titel

2019. In 2018, the Commission adopted consequential technical amendments

to amend the legal basis of the

EU information systems which would be affected by interoperability, to bring them into line with the

interoperability components. These amendments will not alter the balance already ensured by each of the

existing central systems as regards their positive impact on fundamental rights.

On 17 April 2018, the Commission adopted a

proposal for a Regulation on the marketing and use of explosives

precursors

, to close loopholes in the current legal framework and update it in the light of recent developments.

The proposal is designed to minimise interference with the right to the protection of personal data by establishing

clear rules setting limits to the processing and collection of data, and, in the event of verification of sales, a

maximum retention period of one year.

According to the

proposal mentioned above

on using financial and other information to combat serious

crimes

, as bank account information and other types of financial information constitute or can constitute

personal data, and access to these data in accordance with this legislative initiative constitutes processing of

personal data, the proposal ensures that all provisions in the Data Protection Police Directive apply. Moreover,

the proposal specifies the purposes for which personal data may legitimately be processed and requires a list of

designated competent authorities entitled to request information. Information will be shared on a case-by-case

basis only, meaning only where relevant to a specific case for the purpose of combating one or more specified

serious criminal offences on an exhaustive list. The proposal also contains specific provisions on logging, records

of information requests, restrictions on rights and the processing of particular categories of personal data

('sensitive data'). Europol will also be granted indirect access to information held in the national centralised bank

account registries and data retrieval systems and offered the option of sharing data with Financial Intelligence

Units in order to carry out its duties (supporting and strengthening action by Member States to prevent, detect,

investigate and prosecute specific offences within its competence), in accordance with its mandate. All the

safeguards provided for by Chapters VI and VII of Regulation (EU) 2016/794 (the Europol Regulation) apply.

Negotiations for an

Agreement for the transfer and use of Passenger Name Record (PNR)

data between the EU

and Canada started on 20 June 2018

. According to the negotiating directives adopted by the Council, the

Agreement should contain all the safeguards required for it to be compatible with relevant articles of the Charter,

and particularly the right to data protection.

Amended Proposal for a Regulation of the European Parliament and of the Council on establishing a framework

for interoperability between EU information systems (police and judicial cooperation, asylum and migration) and

amending [Regulation (EU) 2018/XX [the Eurodac Regulation],] Regulation (EU) 2018/XX [the Regulation on SIS in

the field of law enforcement], Regulation (EU) 2018/XX [the ECRIS-TCN Regulation] and Regulation (EU) 2018/XX

[the

eu-LISA

Regulation],

COM(2018)

480

final,

13.06.2018,

https://eur-lex.europa.eu/legal-

content/EN/TXT/?uri=CELEX%3A52018PC0480

Proposal for a Regulation of the European Parliament and of the Council on the marketing and use of explosives

precursors, amending Annex XVII to Regulation (EC) No 1907/2006 and repealing Regulation (EU) No 98/2013 on

the marketing and use of explosives precursors, COM(2018)209 final, 17.4.2018.

See under Article 7.

Proposal for a Directive of the European Parliament and of the Council laying down rules facilitating the use of

financial and other information for the prevention, detection, investigation or prosecution of certain criminal

offences and repealing Council Decision 2000/642/JHA, COM(2018)213 final, 17.4.2018

The Council gave the Commission a negotiation mandate on 7 December 2017. Canada adopted its negotiating

mandate at the end of May 2018.

kom (2019) 0257 - Ingen titel

On 4 June 2018, the Council authorised the opening of negotiations with a view to reaching agreements between

the European Union and Algeria, Egypt, Israel, Jordan, Lebanon, Morocco, Tunisia and Turkey respectively on the

exchange of personal data between the European Union Agency for Law Enforcement Cooperation (Europol) and,

respectively, the Algerian, Egyptian, Israeli, Jordanian, Lebanese, Moroccan, Tunisian, Turkish competent

authorities for fighting serious crime and terrorism.

In line with Regulation 2016/794 on the European Union Agency for Law Enforcement Cooperation (Europol), in

particular Article 25 thereof, the purpose of these international agreements is to provide a legal basis for the

transfer of personal data between Europol and the competent authorities in the non-EU country concerned,

adducing adequate safeguards with respect to the protection of privacy and fundamental rights and freedoms of

individuals.

Policy

The protection of personal data has been central to several policies on the digital environment. In particular, the

Commission's commitment to guaranteeing data protection and privacy in the context of

cloud computing

services

by applying data protection law continued in 2018. The Commission has been working with industry on

developing codes of conduct for cloud service providers concerning personal data protection.

Three codes of

conduct relevant to European cloud service providers

are currently in preparation (the Cloud Select Industry

Group Code of Conduct, managed by a non-profit organisation (Scope Europe); the Cloud Infrastructure Service

Provider Code of Conduct; and the Cloud Security Alliance Code of Conduct).

The codes have been discussed with national data protection authorities, and the first two were also submitted to

the Article 29 Working Party, which made suggestions for improvements. The Commission is monitoring the

development of these codes of conduct in efforts to ensure that they comply with EU data protection legislation

(in particular the GDPR, which explicitly recognises and encourages codes of conduct, in the interests of providing

guidance and clarity to providers and users alike). It also wants to ensure that the codes of conduct are discussed

with the national data protection authorities before they are submitted to the European Data Protection Board

for approval.

Since 2011

, the Commission has been supporting Member States in developing and raising awareness of the

European Reference Networks among healthcare providers and centres of expertise, in particular in the area of

rare diseases

. These networks, established in 2014, facilitate discussion among healthcare providers across

Europe of complex or rare diseases and conditions requiring highly specialised treatment

Directive 2011/24/EU of the European Parliament and of the Council of 9 March 2011 on the application of

patie ts ights i

oss-border

healthcare,

OJ L 88, 4.4.2011, p. 45.

Commission Delegated Decision 2014/286/EU of 10 March 2014 setting out criteria and conditions that

European Reference Networks and healthcare providers wishing to join a European Reference Network must fulfil.

Text with EEA relevance,

OJ L 147, 17.5.2014, p.71

and Commission Implementing Decision 2014/287/EU of 10

March 2014 setting out criteria for establishing and evaluating European Reference Networks and their Members

and for facilitating the exchange of information and expertise on establishing and evaluating such Networks Text

with EEA relevance

OJ L 147, 17.5.2014, p. 79.

https://ec.europa.eu/health/ern_en

kom (2019) 0257 - Ingen titel

In 2018, the Commission continued its cooperation with the European Reference Networks through its continued

work on developing IT tools in line with the applicable legislation on the protection of personal data. These

included the Clinical Patient Management System (for virtual medical consultations) and the Networks

Collaborative Platform (for internal communication within the European Reference Networks community).

In line with the legislation on the protection of personal data, and to ensure continuity of care across borders, the

Commission developed IT systems enabling 'ePrescriptions' and 'pPatient summaries' to be exchanged between

health p a titio e s, ith full p ote tio fo patie ts health data

Case law

The request for a preliminary ruling in

Ministerio Fiscal

relates to Spanish law enforcement authorities' access to

personal data (surnames, forenames and, if necessary, addresses) in the context of investigations into the theft of

a mobile telephone. The Court's view was that access to identification data within the scope of the Directive on

Privacy and Electronic Communications

ould ot e defi ed as se ious i te fe e e ith the fu da e tal

rights of the persons whose data was involved, as those data did not allow precise conclusions to be drawn about

their private lives. It concluded that, within those limits, the interference that access to the data in question

e tails a thus e justified

the o je ti e of p e e ti g, i estigati g, dete ti g a d p ose uti g i i al

offe es ge e all ; it is ot e essa fo those offe es to e defi ed as se ious . This judg e t

complements

the Cou t s de isio i

Tele2 Sverige,

in which it held that serious interference can be justified in that field only by

the o je ti e of fighti g i e hi h ust also e defi ed as se ious . If

interference is not serious, on the other

hand,

a ess a e justified

the o je ti e of p e e ti g, i estigati g, dete ti g a d p ose uti g i i al

offe es ge e all

Wirtschaftsakademie Schleswig-Holstein

, the Court provided for the interpretation of the definition of 'joint

controller' under Directive 95/46 on Data Protection (applicable at the time of the contested conduct). In the case

at stake, an academic institution was running a Facebook fan page. The Court recalled first that Facebook denied

neither its role as 'controller' within the meaning of data protection legislation, nor its responsibility for the

processing of personal data. At the same time, it ruled that the administrator of the fan page (the academic

institution at stake) was also a 'controller' and must assume its responsibility for the protection of personal data,

as it took part in determining the purposes and means of processing the personal data of the visitors to its fan

page. Finally, the Court found that the German Data Protection Authority had power over Facebook Ireland to

ensure compliance with rules on the protection of personal data in German territory.

https://ec.europa.eu/health/ehealth/electronic_crossborder_healthservices_en

Judgment of 2 October 2018 in Case C-207/16,

Ministerio Fiscal.

Directive 2002/58/EC of the European Parliament and of the Council of 12 July 2002 concerning the processing

of personal data and the protection of privacy in the electronic communications sector (Directive on privacy and

electronic communications) (OJ 2002 L 201, p. 37), as amended by Directive 2009/136/EC of the European

Parliament and of the Council of 25 November 2009 (OJ 2009 L 337, p. 11).

Judgment of 5 June 2018 in case C-210/16,

Unabhängiges Landeszentrum für Datenschutz Schleswig-Holstein v

Wirtschaftsakademie Schleswig-Holstein GmbH.

kom (2019) 0257 - Ingen titel

Jehovan todistajat

, the Court was requested to provide clarifications of the material scope of the data

protection law - namely, 'the household activity exception'

–

and of the definitions of 'filing system', 'controller',

a d 'joi t o t olle '. The ase o e ed data olle ted

the Jeho ah s Wit esses eligious o

u it i the

context of door-to-door preaching. The Court considered that such preaching is not covered by the 'household

activity' exception. It also ruled that the concept of a 'filing system' covers sets of personal data such as those

collected by the Jehovah's Witnesses. The activity in question must thus comply with EU data protection

legislation. Finally, the Court favoured a broad interpretation of the definitions of 'controller' and 'joint

controller', as the aim of the data protection legislation is to ensure a high level of protection of people's

fundamental rights and freedoms. It concluded that a religious community is a controller - jointly with its

members who engage in preaching

–

of the processing of personal data carried out by the latter in the context of

door-to-door preaching.

NATIONAL CASE LAW BOX

In Finland , the immigration service rejected an asylum application based on persecution on grounds of sexual orientation,

afte holdi g that the appli a t s testi o , suppo ted

the e o di g of se ual a ts, as ot edi le. The Sup e e

Administrative Court noted that the appli

a t s o

testi o is the p i a sou e of e ide e he assessi g the edi ilit

of a claim related to sexual orientation. It cannot require applicants to provide photographs or video recordings of intimate acts

in support of their claim, as such evidence would infringe the right to human dignity (Article 1 of the Charter) and the right to

private life (Article 7 of the Charter). However, the Supreme Administrative Court refused to prohibit the evaluation of such

evidence, as the principle of free evaluation governs Finnish administrative law.

Article 9

—

Right to marry and right to found a family

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

Me a d o e of a iagea le age ha e the

right to marry and to found a family according to the national

la s go e i g the e e isi g of this ight.

The wording has been updated to cover cases in which national legislation recognises arrangements other than

marriage for founding a family. Article 9 neither prohibits nor imposes the granting of the status of marriage to

unions between people of the same sex. This right is thus similar to that afforded by the Convention, but its scope

may be wider when national legislation allows.

Article 10

—

Freedom of thought, conscience and religion

The right guaranteed in Article 10 (1) of the Charter corresponds to the right guaranteed in Article 9 of the

European Convention on Human Rights. It includes freedom to change religion or belief and freedom, either alone

Judgment of 10 July 2018 in case C-25/17,

Tietosuojavaltuutettu Jehovan todistajat.

Finland, Supreme Administrative Court,

case 3891/4/17,

13 April 2018.

kom (2019) 0257 - Ingen titel

or in community with others and in public or private, to manifest religion or belief, in worship, teaching, practice

and observance. Article 10 (2) recognises the right to conscientious objection, in line with national laws.

Policy

In 2018 the Fundame

tal Rights Age

pu lished the se o d su e o Je ish people s e pe ie es of hate

crime, discrimination and antisemitism in the European Union

. The survey covered 12 EU countries and reached

almost 16,500 individuals who identify as Jewish. It follows

up o the age

s fi st su e , o du ted i se e

countries in 2012. The findings point to rising levels of antisemitism. About 90% of respondents feel that

antisemitism is growing in their country. Around 90% also feel it is particularly problematic online, while about

70% cite public spaces, the media and politics as common sources of antisemitism. Almost 30% have been

harassed, with those being visibly Jewish most affected. Antisemitism appears to be so deeply rooted in society

that regular harassment has become part of their normal everyday life. Almost 80% do not report serious

incidents to the police or any other body. Often this is because they feel nothing will change. Over a third avoid

taking part in Jewish events or visiting Jewish sites because they fear for their safety and feel insecure. The same

proportion have even considered emigrating. Such results underline the need for Member States to take urgent

and immediate action. In doing so they need to work closely together with a broad range of stakeholders,

particularly Jewish communities and civil society organisations, to roll out more effective measures to prevent

and fight antisemitism.

Case law

In 2018, the CJEU handed down two important judgments in the area of non-discrimination in employment, in

two cases where ethos-based organisations treated workers differently based on their religion

. In

Egenberger v

Evangelisches Werk für Diakonie und Entwicklung eV

and in

the Court clarified for the first time the

interpretation of Article 4(2) of the Directive 2000/78/EC

, which provides for an exception to the non-

discrimination principle on the grounds of religion where the employer is a church or another ethos-based

organisation.

The Court explicitly referred to Articles 10, 21 and 47 of the Charter. It found that, while the Directive aims to

protect the fundamental right of workers not to be discriminated against on grounds of religion, it also aims to

take account of the right of autonomy of churches and other ethos-based organisations, as recognised under

Article 10 of the Charter. The Court interpreted Article 4(2) of the Directive, in conjunction with Article 47 of the

Charter, as meaning that employment-related decisions of an ethos-based organisation must be subject to

effective judicial review, to ensure that the criteria set out in the directive are satisfied in each particular case.

Experiences and perceptions of antisemitism/ Second survey on discrimination and hate crime against Jews in

the EU

https://fra.europa.eu/en/publication/2018/2nd-survey-discrimination-hate-crime-against-jews

Judgments of 17.04.2018 in case C-414/16,

Egenberger v Evangelisches Werk für Diakonie und Entwicklung eV

and of 11.09.2018 in case C-68/17,

IR.

Council Directive 2000/78/EC of 27 November 2000 establishing a general framework for equal treatment in

employment and occupation, OJ L 303, 2.12.2000, p. 16

kom (2019) 0257 - Ingen titel

The Court also stated that both Articles 21(1) and 47 of the Charter are sufficient in themselves and do not need

to be made any more specific by provisions in EU or national law to confer on individuals a right which they may

rely on as such in disputes between them in a field covered by EU law. It concluded that in situations where it is

not possible to interpret national legal provisions in conformity with EU law, national courts must ensure within

their jurisdiction the judicial protection for individuals flowing from Articles 21 and 47 of the Charter, and

guarantee the full effectiveness of those articles by disapplying, if need be, any contrary provision of national law.

On the issue of ritual slaughter, the CJEU ruled on a preliminary ruling requested by a Belgian court on whether

Article 4(4) of Regulation on the protection of animals at the time of killing

is compatible with the freedom of

religion enshrined in Article 10 of the Charter. Article 4(4) contains an exception for animals subject to particular

methods of slaughter prescribed by religious rites (without stunning the animals), provided that the slaughter

takes place in a slaughterhouse. The referring court asked whether Article 4(4) was contrary to Article 10 of the

Charter, insofar as it requires religious slaughtering to take place only in a slaughterhouse, even if there is

insufficient capacity in the Flemish Region to meet demand for ritually slaughtered meat on the occasion of the

Islamic Festival of Sacrifice. The referring court also requested guidance on whether converting temporary

slaughter establishments into approved slaughterhouses could be allowed under Regulation 1099/2009.

Liga van Moskeeën en Islamitische Organisaties Provincie Antwerpen VZW and Others

, the Court held, first of

all, that itual slaughte falls ithi the defi itio of a eligious ite ithi the ea i g of the Regulatio a d is

thus covered by the freedom of religion guaranteed by the Charter. The Court then held that the obligation,

under Regulation 1099/2009, to carry out ritual slaughter in an approved slaughterhouse simply aims, from a

technical point of view, to organise and manage the freedom to carry out slaughter without prior stunning for

religious purposes. Such a technical framework is not in itself of such a nature as to restrict the right to freedom

of religion of practising Muslims. The Court considered that an occasional problem of lack of slaughter capacity in

one region of a Member State, related to the increase in demand for ritual slaughter in the space of several days

on the occasion of the Feast of Sacrifice, is the result of a combination of domestic circumstances which were not

liable to affect the validity of Regulation 1099/2009. In view of the above elements, the Court concluded that its

examination has not disclosed any factor liable to affect the validity of the regulation with regard to the freedom

of religion guaranteed by the Charter.

NATIONAL CASE LAW BOX

The Supreme Court of

Denmark

had to deal with a case brought by a religious organisation against the Ministry of Health for

refusal to authorise the importing of ayahuasca wine, containing a psychedelic drug. The claimant considered this prohibition to

be a violation of Article 10 (Freedom of thought, conscience and religion) of the Charter. However, the court held that the mere

fact that EU citizens who exercised their freedom of movement were affected by this prohibition is not sufficient to determine

that the issue falls within the scope of EU law.

Council Regulation (EC) No 1099/2009 on the protection of animals at the time of killing (OJ L 303 18.11.2009, p.

1).

Judgment of 29 May 2018 in case C-426/16,

Liga van Moskeeën en Islamitische Organisaties Provincie

Antwerpen VZW and Others v Vlaams Gewest

Denmark, Supreme Court, case 81/2017, 26 June 2018.

kom (2019) 0257 - Ingen titel

Article 11

—

Freedom of expression and information

The right to freedom of expression is guaranteed by Article 11(1) of the Charter and includes the freedom to hold

opinions and to receive and share information and ideas without interference by public authorities and regardless

of frontiers. Article 11(2) ensures respect for freedom and pluralism of the media. In line with Article 52(3) of the

Cha te , the EU s app oa h to e su i g this ight is i spi ed

the ase la of the Eu

opean Court of Human

Rights.

Legislation

Following extensive stakeholder consultations, including several workshops, the Commission issued a

Recommendation on measures to effectively tackle illegal content online

on 1 March 2018. The

Recommendation built on the earlier Communication on 'tackling illegal content online, towards enhanced

responsibility of online platforms'

, adopted on 28 September 2017. The main principles set out in the

Recommendation require that illegal online content to be tackled with proper and robust safeguards, to ensure

protection of the various fundamental rights of all parties concerned.

Following up to this Recommendation, on 12 September 2018 the Commission proposed a

Regulation on

preventing the dissemination of terrorist content online

. The new rules provide for robust safeguards to ensure

that measures to remove terrorist propaganda are necessary, appropriate and proportionate within a democratic

society and do not lead to the removal of material that is protected by freedom of expression and information.

Safeguards designed to ensure full respect for fundamental rights such as freedom of expression and information

in a democratic society, include in addition to options for judicial redress guaranteed by the right to an effective

remedy as enshrined in Article 19 TEU and Article 47 of the Charter of Fundamental Rights of the EU, human

oversight and verification in case automated detection tools are used as well as complaint procedures. As part of

the impact assessment, .the Commission had carried out a Eurobarometer survey

and a public consultation on

illegal online content in preparation for the proposed Regulation

The latest review of the Audiovisual Media Services Directive (AVMSD)

was completed on 6 November 2018.

The final text was published in the EU Official Journal on 28 November 2018 and entered into force on 18

Commission Recommendation (EU) 2018/334 of 1 March 2018 on measures to effectively tackle illegal content

online C/2018/1177 OJ L 63, 6.3.2018, pp. 50–61.

Communication from the Commission to the European Parliament, the Council, the European Economic and

Social Committee and the Committee of the Regions Tackling Illegal Content Online Towards an enhanced

responsibility of online platforms, 28.9.2017, COM(2017) 555 final.

Regulation on preventing the dissemination of terrorist content online, 12.9.2018, COM(2018) 640 final.

https://ec.europa.eu/digital-single-market/en/news/flash-eurobarometer-illegal-content

https://ec.europa.eu/info/consultations/public-consultation-measures-further-improve-effectiveness-fight-

against-illegal-content-online_en

96 https://eur-lex.europa.eu/legal-content/EN/TXT/?qid=1553097581351&uri=CELEX:32018L1808

kom (2019) 0257 - Ingen titel

December 2018. Member States have until 19 September 2020 to transpose the revised Directive into their

national laws. The Commission will assist Member States in order to ensure a timely and correct transposition.

The e ised Di e ti e i te sifies effo ts to fight hate spee h . I pa ti ula , it a s oth i ite e t to hat ed a d

incitement to violence, while extendi

g the g ou ds fo p ote tio , i li e ith A ti le

of the EU s Cha te of

Fundamental Rights, to include, among others, the grounds of sex, disability, age and sexual orientation.

In view of the growing consumption of audiovisual content online, the new Directive provides new obligations for

video-sharing platforms., such as YouTube. Such platforms will need to take measures (parental control, age

verification and content rating systems) to protect minors from harmful content and to protect the public from

incitement to violence or hatred and from content constituting criminal offences. In addition, video-sharing

platforms will also be required to respect certain obligations concerning commercial communications, depending

on the degree of control they exercise over such commercial communications. As minors move increasingly

towards consuming audiovisual content online, the new directive brings the rules governing online content into

line with the existing rules to protect minors from seeing or hearing harmful content on TV or via on-demand

services. It requires the most harmful content, such as gratuitous violence and pornography, to be subject to the

strictest measures, providing a high level of control. Co-regulation on conduct on content descriptors are also

encouraged.

As regards the independence of the audiovisual regulatory bodies, the revised Audiovisual Media Services

Directive also substantially beefs up the provisions on independence of regulators. The directive imposes

requirements which all national regulatory authorities for audiovisual media services must meet, including

impartiality, adequate human and financial resources, adequate enforcement powers, and transparent

procedures for the dismissal of the heads of such authorities or bodies.

In 2018 the Commission continued discussions with the Council and the European Parliament on the

proposal for

a Directive on Copyright in the Digital Single Market

. The impact assessment accompanying the proposal

assessed the impact of the measures and concluded that those designed to open up wider access to content

across the EU and to adapt the exceptions and limitations are expected to have a limited impact on copyright as a

property right and a positive impact on cultural diversity, the right to education and freedom of arts and sciences.

Measures to protect press publications are expected to have a positive impact on copyright as a property right

and on the freedom of expression and information, as they are likely to improve the quality of journalistic

content. The impact assessment also concluded that the impact on freedom of expression which the proposed

rules on the use of protected content by services storing and giving access to user-uploaded content might have

would be expected to be mitigated by measures obliging these services to establish complaint and redress

mechanisms for users, in case of disputes about the application of the new rules.

On 13 June 2018, the UN Special Rapporteur on the promotion and protection of the right to freedom of opinion

and expression sent a letter to the Commission about the potential implications of Article 13 of the proposal on

the fundamental rights of users (freedom of expression and information), targeted service providers (freedom to

conduct a business), and right holders (right to property). In its reply of 4 September 2018 the Commission stated

Proposal for a Directive of the European Parliament and of the Council on copyright in the Digital Single Market,

COM(2016) 593 final, 14.9.2016.

kom (2019) 0257 - Ingen titel

that it had taken full account of fundamental rights when drawing up its proposal. It also stated that the proposal

provided for a number of safeguards to ensure a fair balance between right holders' property rights, users'

freedom of information, and service providers' freedom to conduct business.

Negotiations also continued on the proposal for a

Regulation of the European Parliament and of the Council

laying down rules on the exercise of copyright and related rights applicable to certain online transmissions of

broadcasting organisations and retransmissions of television and radio programmes

The proposal establishes

mechanisms that will make it quicker and easier to clear rights for making television and radio programmes that

are available online across borders and for retransmission of packages of channels via internet-based networks

equivalent to cable. The impact assessment accompanying the proposal concluded that it would be expected to

have a limited impact on copyright as a property right and on the freedom to conduct business. The proposal

would be expected to have a positive impact on freedom of expression and information, as it would increase the

cross-border provision and receipt of TV and radio programmes originating in other Member States.

Policy

On 26 April 2018, the Commission adopted its

Communication on tackling online disinformation: a European

Approach

, based on a wide-ranging stakeholder consultation.

The Co

u i atio p ese ts the Co

issio s a al sis of the phe o e o a d outli es a tio s desig ed to

counter disinformation and improve the online information ecosystem for European citizens. These include: (i)

introducing an EU-wide Code of Practice on Disinformation; (ii) setting up an independent European network of

fact-checkers; (iii) establishing a secure online platform on disinformation to support the work of the network of

fact-checkers and relevant academic researchers; (iv) mobilising new technologies through the Horizon 2020 work

programme, to tackle disinformation; (v) promoting literacy, as a way to make the public more resilient to

disinformation; (vi) taking measures to support quality journalism as a means of uncovering and counterbalancing

disinformation; (vii) taking measures to enable secure and resilient elections; and (viii) improving the strategic

communication capabilities of the EU institutions and the Member States, to counter internal and external

disinformation threats.

The first tangible outcome of the Communication is a self-regulatory

code of practice,

unveiled by online

platforms and the advertising industry on 26 September 2018

100

. It includes a wide range of commitments to

combat online disinformation. On 16 October 2018, the first signatories formally subscribed to the Code; these

include the three major platforms (Facebook, Google, Twitter) and Mozilla, plus trade associations representing

other online platforms and the online advertising sector

101

. This is the first time ever that industry worldwide has

voluntarily agreed on a set of self-regulatory standards to combat disinformation.

Proposal for a Regulation of the European Parliament and of the Council laying down rules on the exercise of

retransmissions of television and radio programmes, COM(2016) 594 final, 14.9.2016.

Communication from the Commission to the European Parliament, the Council, the European Economic and

Social Committee and the Committee of the Regions on tackling online disinformation: a European Approach

COM/2018/236 final, 26.4.2018.

100

https://ec.europa.eu/digital-single-market/en/news/code-practice-disinformation

101

https://ec.europa.eu/commission/news/code-practice-fight-online-disinformation-2018-oct-16_en

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On 5 December 2018, the Commission and the EU High Representative on Foreign Affairs and Security Policy

presented an

action plan against disinformation

setting out further specific proposals for a coordinated EU

response to the challenge of disinformation, including appropriate mandates and sufficient resources for the

relevant strategic communications teams of the European External Action Service

102

. The action plan proposes a

series of measures designed to: (i) improve capabilities to detect, analyse and expose disinformation; (ii)

strengthen a coordinated and joint response to disinformation; (iii) ensure that industry abides by the Code of

Practice on Disinformation; and (iv) raising awareness about disinformation, empowering citizens and civil society

and supporting media. The action plan was presented to the European Council on 13-14 December 2018.

The action plan was accompanied by the

issio ’s Repo t o the i ple e tatio of the Co

u icatio o

tackling online disinformation,

which assesses progress made in taking the measures set out in the

Communication

103

The measures set out in the Communication and the action plan have been designed with the right of freedom of

expression firmly in mind. At the same time, the Commission has recognised the threats that disinformation poses

to genuine realisation of the right of freedom of expression and, more broadly, to public discourse and the

functioning of democracy.

The EU spectrum policy enables the public to access and distribute the digital content and information of their

choice. In recent years, initiatives to make more spectrum available for wireless broadband services have led to

wider internet access through devices such as smartphones and tablets.

Commission departments have also been involved as observers and have closely followed up the Council of

Europe's recommendation on the roles and responsibilities of internet intermediaries

104

, adopted on 7 March

2018, with the aim of ensuring policy coherence in this area. Commission departments have also made sure to

take part in discussions in the Council of Europe on the human rights aspects of automated data processing and

different forms of artificial intelligence.

The Commission is aware of challenges to

media freedom and pluralism in the Member States

and has continued

to take measures to strengthen media freedom and pluralism across the EU. In 2018, it continued to co-fund

a ti ities u

the Eu opea Ce t e fo P ess a d Media F eedo , hose ai ai is to u ite Eu ope s

fragmented media freedom community and to address and raise awareness of violations of media freedom in EU

Member States and certain candidate countries. The Centre also provides practical help to journalists in need. In

2018, the Centre, together with its partner the International Press Institute, set up a fund for cross-border

investigative journalism. The Index on Censorship

105

monitors violations, threats and limitations to media freedom

ith its Mappi g Media F eedo P oje t . Buildi g o this o d-sourced

platform, it provides assistance to

102

Joint Communication to the European Parliament, the European Council, the Council, the European Economic

and Social Committee and the Committee of the Regions on Action Plan against Disinformation JOIN/2018/36 final,

5.12.2018.

103

Report from the Commission to the European Parliament, the European Council, the Council, the European

Economic and Social Committee and the Committee of the Regions on the implementation of the Communication

'Tackling online disinformation: a European Approach' COM/2018/794 final 5.12.2018.

104

https://search.coe.int/cm/Pages/result_details.aspx?ObjectID=0900001680790e14

105

https://www.indexoncensorship.org/

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journalists and disseminates knowledge about media freedom in Europe. Likewise, the International Press

Institute

106

runs a project to address the risk that the abuse of defamation laws, and of criminal defamation laws

in particular, poses to the

pu li s ight to i fo atio i the EU a d i a didate ou t ies. I

, the I stitute

devoted particular attention to the Visegrad countries, while another partner, SEEMO, focused on south-east

Europe

107

. Another EU-financed project is the Media Pluralism Monitor

108

, designed to identify potential risks to

media pluralism in Member States and run independently manner by the Centre for Media Pluralism and Media

Freedom at the European University Institute. The results of the 2017 Media Pluralism Monitor, published in

2018, show that none of the countries monitored is free of risks to media pluralism. The Monitor is a scientific

tool based on twenty indicators across four domains.

The Commission also contributes through financial initiatives to giving

all Europeans access to the very high-

capacity digital networks,

and thereby to online content and services. Digital networks are essential to enable the

digital transformation of the economy and society and a decisive factor in closing economic, social and

geographical divides. They improve access to information and modern public services such as e-learning, e-health

and e-administration for everyone in the EU, regardless of geographical location.

The WiFi4EU initiative

109

, implemented as of 2018, promotes free access to WiFi connectivity for people in public

areas including parks, squares, public buildings, libraries, health centres and museums in municipalities

throughout the EU. It does so by giving municipalities the opportunity to apply for vouchers to the value of EUR

15 000. The vouchers are to be used to install WiFi equipment in public spaces within the municipality that are

not already equipped with a free WiFi hotspot. The aim is to provide all EU residents, regardless of their income

or area they live in, with access to digital services, allowing them to experience the benefits of a digitally

connected society.

Article 12

—

Freedom of assembly and of association

Freedom of peaceful assembly and freedom of association at all levels, notably in political, trade union and civic

matters, are protected by Article 12 of the Charter, corresponding to Article 11 of the European Convention on

Human Rights. However, Article 12 of the Charter has a wider scope, since it applies to all European levels.

Moreover, unlike Article 11 of the Convention, it specifically mentions the major contribution which political

parties make to expressing the political will of the people. This right is also based on Article 11 of the Community

Charter of the Fundamental Social Rights of Workers.

Legislation and policy

In 2018, the EU continued its efforts to promote human rights and democracy in the development cooperation. In

October 2018, the Commission adopted new strategic priorities for the

European Instrument for Democracy and

106

107

https://ipi.media/

South East Europe Media Organisation,

http://www.seemo.org/

108

http://cmpf.eui.eu/media-pluralism-monitor/

109

https://ec.europa.eu/digital-single-market/en/policies/wifi4eu-free-wi-fi-europeans

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Human Rights (EIDHR)

110

- the financial instrument for supporting human rights and fundamental freedoms in EU

external action. The new priorities place more emphasis over the next 3 years (2018-2020) on protection for

human rights defenders at risk and measures to tackle the shrinking scope of democratic, civic and civil society

activities (e.g. freedom of association and assembly, freedom of expression). In 2018 alone, 1300 people under

threat for defending human rights received assistance from the EIDHR emergency funds for human rights

defenders, while the EIDHR human rights emergency facility for civil society action was boosted by an additional

EUR 3.5 million.

Article 13

—

Freedom of the arts and sciences

Article 13 of the Charter stipulates that the arts and scientific research must be free of constraint. This does not

mean that the arts and scientific research cannot be restricted in any way; rather, it means than any such

restrictions are possible only under the strict conditions provided for by Article 52 (1) of the Charter

111

Article 14

—

Right to education

The right to education and access to vocational and continuing training is enshrined in Article 14 of the Charter. It

is based on the common constitutional traditions of the Member States and on Article 2 of Protocol No 1 to the

European Convention on Human Rights.

Legislation

The Regulation

112

on the

European Solidarity Corps

was adopted in October 2018. It is designed to get young

people and organisations involved in solidarity activities and to help boost cohesion and solidarity in Europe,

supporting communities and responding to social challenges. The European Solidarity Corps will provide a single

entry point for 17-30-year-olds keen to take part in solidarity activities in the EU. Young people will have access to

volunteering, traineeships or jobs made available by public and private bodies. Participating organisations must

obtain a quality label from the Commission or national agencies by demonstrating their ability to guarantee the

quality of the activities on offer, in accordance with the principles and objectives of the programme.

On 15 March, the Council adopted a recommendation on the

European Framework for Quality and Effective

Apprenticeships

113

, designed to boost apprentices' personal development and make them more employable. The

initiative identifies 14 criteria which the Member States should implement to ensure effective apprenticeships.

These range from educational support and career guidance for apprentices to assessing outcomes and supporting

companies in their efforts to make apprenticeships cost-effective.

110

https://ec.europa.eu/europeaid/commission-implementing-decision-multi-annual-action-programme-2018-

2020-european-instrument_en

111

For further explanations, see under Article 52.

112

Regulation (EU) 2018/1475 of the European Parliament and of the Council of 2 October 2018 laying down the

legal framework of the European Solidarity Corps and amending Regulation (EU) No 1288/2013, Regulation (EU)

No 1293/2013 and Decision No 1313/2013/EU,

OJ L 250, 4.10.2018, p. 1.

113

Council Recommendation of 15 March 2018 on a European Framework for Quality and Effective

Apprenticeships, OJ C 153, 2.5.2018, p. 1.

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Policy

On 22 May 2018, the Council adopted conclusions on

the role of young people in building a secure, cohesive and

harmonious society in Europe

114

. The conclusions underlined the importance of youth mobility in promoting

intercultural competences and combating prejudices and discrimination

115

. They also underline the significant role

of youth work and of non-formal and informal learning in addressing youth marginalisation and radicalisation. The

Council called on the Member States, the Commission and the European External Action Service to develop a

peaceful discourse that promotes the shared values of the EU, democracy, the rule of law and respect for

fundamental rights and to ensure active and meaningful youth participation in building peaceful and inclusive

societies. It also invited the EEAS to maintain and foster the intercultural dialogue between youth in and beyond

Europe, as participation in intercultural dialogue provides various opportunities for young people to advance

reconciliation processes and reduce prejudice, misunderstandings and discrimination among diverse groups as

well as to combat hate speech and violent extremism using a human-rights based approach.

On the same day, the Council adopted a recommendation on

promoting common values, inclusive education

and the European dimension of teaching

116

. It encourages Member States to raise awareness of the shared

values set out in Article 2 of the Treaty on European Union from an early age and at all levels, and to improve

critical thinking and media literacy, especially in the use of the internet and social media. It also calls on EU

countries to provide inclusive education for all learners, notably by providing them with support tailored to their

particular needs, and to promote a European dimension in teaching by encouraging participation in the e-

Twinning network and in other forms of cross-border mobility and to enable educational staff to promote

common values and deliver inclusive education.

On 30 May 2018, the Commission tabled its proposal for the

Erasmus programme

117

for 2021-2027. The

programme will step up mobility and exchanges and reach out to a larger target group, both within and beyond

the EU. The Co

issio p oposes dou li g the p og a

e s udget o pa ed ith

-2020. The programme

will make a meaningful contribution to Europe's future sustainable growth and cohesion by encouraging

innovation and bridging Europe's knowledge, skills and competences gap.

On 12 June 2018, the European Parliament adopted a resolution on the

modernisation of education in the EU

118

One of the measures it calls for is the provision of adequate financial support to schools of all categories and

levels, provided the curriculum offered is based on the principles enshrined in the Charter and complies with the

rules and regulations governing the quality of education and the use of such funds.

Council conclusions on the role of young people in building a secure, cohesive and harmonious society in

Europe, OJ C 195, 7.6.2018, p. 13.

115

See under Article 21

116

Council Recommendation of 22 May 2018 on promoting common values, inclusive education, and the European

dimension of teaching, OJ C 195, 7.6.2018, p.1.

117

Proposal for a Regulation of the European Parliament and of the Council, establishing 'Erasmus': the Union

programme for education, training, youth and sport, and repealing Regulation (EU) No 1288/2013.

118

European Parliament resolution of 12 June 2018 on modernisation of education in the EU,

http://www.europarl.europa.eu/sides/getDoc.do?type=TA&language=EN&reference=P8-TA-2018-0247

114

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In its communication of May 2018,

Education in Emergencies and Protracted Crises

119

, the Commission

committed to encouraging safe, inclusive and good-quality education when responding to emergencies and long-

term crises outside the EU. The Communication proposes an updated EU policy framework to address education

needs in emergencies and crises through humanitarian and development assistance, focusing on four priorities:



strengthening systems and partnerships for a rapid, efficient, effective and innovative education

response;

promoting access, inclusion and equity;

championing education for peace and protection;

supporting quality education for better learning outcomes.

From 2019, the Commission will aim to allocate 10 % of its humanitarian assistance to education in emergencies

and protracted crises.

Article 15

—

Freedom to choose an occupation and right to engage in work

Article 15(1) of the Charter protects the

right to engage in work

and to pursue a freely

chosen

or accepted

occupation.

Article 16

—

Freedom to conduct a business

Article 16 of the Charter recognises the freedom to conduct a business in accordance with EU law and national

laws and practices. EU measures that could interfere with businesses' economic activity are frequently assessed

by the courts to see whether they affect this freedom.

Legislation

In company law, two recent proposals, regarding

the use of digital tools and processes in company law

120

and

cross-border conversions, mergers and divisions

121

, are designed to reinforce the freedom to conduct a business.

The

Regulation on a framework for the free flow of non-personal data in the European Union

122

which will

apply from 28 May 2019, preserves the freedom to conduct a business, as it removes unjustifiable and

disproportionate barriers to using or providing data services (such as cloud services or configuration of in-house IT

systems). The freedom to conduct a business is also promoted by adopting a self-regulatory approach on the

issue of facilitating the switching of service providers and porting of data for professional users.

Communication from the Commission to the European Parliament and the Council on Education in Emergencies

and Protracted Crises, 18.5.2018, COM(2018) 304 final

120

Proposal for a Directive of the European Parliament and of the Council amending Directive (EU) 2017/1132 as

regards the use of digital tools and processes in company law No 113/2018 (COM (2018) 239 final, 25.4.2018).

121

Proposal for a Directive of the European Parliament and of the Council amending Directive (EU) 2017/1132 as

regards cross-border conversions, mergers and divisions No 114/2018 (COM (2018) 241 final, 25. 4.2018).

122

Regulation (EU) 2018/1807 of the European Parliament and of the Council on a framework for the free flow of

non-personal data in the European Union, OJ L 303, 28.11.2018, pp. 59–68.

119

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The

Geoblocking Regulation

entered into force in March 2018

123

. Traders can continue to decide where and

when they offer their goods or services to customers. The non-discrimination provisions of this Regulation are the

sole limit on their freedom to refuse a sales request or to apply different conditions. All other reasons not to sell

or to apply different conditions remain available to traders, e.g. if the product is no longer in stock.

Case law

In case

Stichting Greenpeace Nederland and PAN Europe

124

, concerning request for access to information

pertaining to the approval of glyphosate as an active substance for use in plant protection products, the

applicants alleged that there was an overriding public interest in disclosing information about emissions into the

environment. The General Court

–

while dismissing the action in the concrete case considering that the requested

information did not fulfil the definition of information relating to emissions into the environment - explained in

paragraph 49 of the judgment that the first sentence of Article 6(1) of Regulation No 1367/2006 requires the

disclosure of a document where the information requested relates to emissions into the environment, even if

there is a risk of undermining the interests protected by Article 4(2), first indent, of Regulation No 1049/2001 [i.e.

commercial interests]. That interpretation cannot be called into question under the pretext of an interpretation

that is consistent, harmonious, or in conformity with Articles 16 and 17 of the Charter of Fundamental Rights of

the European Union.

Article 17

—

Right to property

Article 17 of the Charter protects the right of all to property, which includes the right to own

and use lawfully

acquired possessions and to have them at one's disposal.

. The Charter also guarantees the protection of

intellectual property.

Legislation

On 27 July 2018, the Commission presented a proposal for a Council Decision on the accession of the European

Union to the Geneva Act of the Lisbon Agreement on Appellations of Origin and Geographical Indications

125

Recital 7 of the proposal refers to Article 17(2) of the EU Charter of Fundamental Rights.

Furthermore, on 1 June 2018 the Commission proposed improving and simplifying the protection of geographical

indications (GIs) in the sectors of agricultural products and foodstuffs, wines and aromatised wines

126

. The

Regulation (EU) 2018/302 of the European Parliament and of the Council of 28 February 2018 on addressing

unjustified geo-blocking and other forms of discrimination based on customers' nationality, place of residence or

place of establishment within the internal market and amending Regulations (EC) No 2006/2004 and (EU)

2017/2394 and Directive 2009/22/EC, OJEU L 060, 02 March 2018, p. 1.

124

Judgment of 21 November 2018 in case T-545/11

Stichting Greenpeace Nederland and Pesticide Action Network

Europe (PAN Europe) v European Commission.

125

Proposal for a Council Decision on the accession of the European Union to the Geneva Act of the Lisbon

Agreement on Appellations of Origin and Geographical Indications (EU) No 214/2018 (COM(2018) 350 final,

27.7.2018).

126

Proposal for a Regulation of the European Parliament and the Council amending Regulations (EU) No 1308/2013

establishing a common organisation of the markets in agricultural products, (EU) No 1151/2012 on quality

123

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proposal will significantly streamline the management of the EU registers by simplifying the GI systems and

ensuring faster registration of GIs. It also proposes significant clarifications as regards the protection of GIs on the

internet and of goods in transit through EU customs territory.

The Commission's

Communication on Protection of Intra-EU Investment

of 19 July 2018

127

explains how EU law

protects EU investments and how investors can enforce rights under EU law before national administrations and

courts. EU rules protecting investments include fundamental rights under the Charter, notably the freedom to

conduct a business

128

, the right to property and the right to an effective remedy and effective judicial

protection

129

. It clarifies when cross-border investors can invoke fundamental rights under the Charter, and

specifies their content and possible restrictions on their exercise. For instance, 'the freedom to conduct a business

can be successfully invoked against serious restrictions of the investor's contractual freedom.

130

The right to

p ope t i.e. to o , use a d dispose of o e s la full a ui ed possessio s e te ds to "p ope t " i the

broadest sense of the word

131

and equally covers the peaceful enjoyment of the right. It directly entails a right to

compensation for the deprivation of property in the general interest.' The Communication also clarifies that

fundamental rights are not absolute and that their exercise may be subject to restrictions, if such restrictions are

justified by objectives of general interest recognised by EU law and are proportionate.

The awareness of EU law protecting investments, including fundamental rights, has become even more

important, as EU investors can no longer rely on intra-EU bilateral investment treaties (see the

Achmea

case

below).

Policy

The Commission continued to manage the exclusive EU registers protecting the intellectual property rights of

farmers and producers of agricultural products, foodstuffs and beverages held in geographical indications. By the

end of 2018 the Commission had registered 3405 geographical indications and protected a further 1534

geographical indications and names of origin pertaining to goods from non-EU countries through bilateral

agreements.

schemes for agricultural products and foodstuffs, (EU) No 251/2014 on the definition, description, presentation,

labelling and the protection of geographical indications of aromatised wine products, (EU) No 228/2013 laying

down specific measures for agriculture in the outermost regions of the Union and (EU) No 229/2013 laying down

specific measures for agriculture in favour of the smaller Aegean islands (EU) No 218/2018 (COM(2018) 394 final,

1.6.2018).

127

Communication from the Commission to the European Parliament and the Council Protection of intra-EU

investment (EU) (COM(2018) 547 final, 19.7.2018)

128

See Article 16.

129

See Article 47.

130

Communication from the Commission to the European Parliament and the Council Protection of intra-EU

investment (EU) (COM(2018) 547 final), 19.7.2018.

131

Judgment of 6 March 2018, case C-284/16

Slovak Republic v Achmea BV.

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Case law

In case

Bastei Lübbe GmbH & Co. KG v. Michael Strotzer

132

, the Court of Justice held that right holders must have

at their disposal an effective remedy or means of allowing the competent judicial authorities to order the

disclosure of necessary information. The Court noted that EU law precludes national legislation under which the

owner of an internet connection used for copyright infringements through file-sharing cannot be held liable to

pay damages if he can name at least one family member who might have had access to that connection, without

providing further details as to when and how the internet was used by that family member. The Court concluded

that a fair balance must be struck between the various fundamental rights, namely the right to an effective

remedy and the right to intellectual property with the right to respect for private and family life.

In a recent judgment in the

Achmea

case of 6 March 2018

133

, the Court confirmed that an investor-State

arbitration in intra-EU bilateral investment treaties is unlawful. Following this judgment, the Commission has

intensified its dialogue with all Member States, calling on them to take action to terminate the intra-EU bilateral

investment treaties.

The General Court issued a judgment in joined cases T-429/13 and T-451/13

Bayer CropScience AG and Syngenta

Crop Protection AG v Commission.

This ruling concerned a request for annulment of a Commission implementing

regulation as regards amendments to the conditions for approval of certain active substances for use in plant

protection products. The applicants had claimed infringement of the Charter rights set out in Article 16 (freedom

to conduct a business) and Article 17 (right to property). The Court confirmed established case law, concluding

that 'both the freedom to pursue a trade or business and the right to property are, according to settled case law,

ge e al p i iples of EU la […] a d a e o e p essl gua a teed u de A ti les

16 and 17 of the Charter of

Fundamental Rights'. It went on to recall that the rights are, however, not absolute and that their exercise may be

restricted under certain circumstances. The Court established that the Commission had rightly concluded, on the

basis of new scientific knowledge, that the criteria for the approval of active substances concerned under

Regulation No 1107/2009

134

were no longer satisfied for a number of uses. Moreover, the contested act did not

infringe the actual substance of the freedom to conduct a business or the right to property, as the applicants

remain free to carry on their business of manufacturing plant protection products. Accordingly, the action and the

claims concerning fundamental rights were dismissed.

Article 18

—

Right to asylum

The right to asylum is guaranteed by Article 18 of the Charter. Asylum is granted to people fleeing

persecution or serious harm in their own country and who are therefore in need of international

protection. Granting asylum is an international obligation, first recognised in the 1951 Geneva

Convention on the protection of refugees. Since 1999, the EU has been working to create a common

poli o as lu , su sidia p ote tio a d te po a p ote tio the Co

o Eu opea As lu

Judgment of 18 October 2018, C-149/17

Bastei Lübbe GmbH & Co. KG v. Michael Strotzer.

Judgment of 6 March 2018, case C-284/16

Slovak Republic v Achmea BV.

134

Regulation (EC) No 1107/2009 of the European Parliament and of the Council of 21 October 2009 concerning

the placing of plant protection products on the market and repealing Council Directives 79/117/EEC and

91/414/EEC, OJ L 309 24.11.2009, p. 1.

133

132

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S ste , i li e ith the Ge e a Co e tio a d elated i st u e ts, as e ui ed

(Article 78 TFEU).

Legislation and policy

the EU T eaties

In September 2018, building on the broad political agreement reached on the new EU Asylum Agency in

2017

135

, the Commission put forward an amendment to the proposal for a

Regulation establishing a

European Union Agency for Asylum

136

. This amended proposal focuses on the provisions on operational

and technical assistance. Its aim is to ensure that the Agency has a clear mandate to provide Member

States with as much support as possible throughout the administrative procedure of international

protection, or with parts of the procedure. However, this does not affect the Member States' right to

take decisions on individual applications. The proposal also provides for a mandate for the Agency to

provide assistance in the procedure to determine the Member State responsible for examining an

application for international protection, and to assist the courts competent for handling appeals. In so

doing, the Agency must respect judicial independence and impartiality in full.

In September 2018, the Commission adopted a new proposal on the

European Border and Coast Guard,

designed to improve border management at EU level and to guarantee adequate support to all Member

States facing migratory challenges

137

. The proposal is fully consistent with fundamental rights and abides

by the principles of the Charter as regards the activities of the European Border and Coast Guard Agency

and the Member States' border management authorities. The Agency's extended mandate is balanced

by stronger fundamental rights safeguards and increased accountability, including in its cooperation

with non-EU countries. The newly proposed standing corps of 10 000 operational staff will perform its

tasks with full respect for EU and international law on fundamental rights. In particular, the proposal

abides by the right to asylum, the principle of

non-refoulement

138

, the right to respect for private and

family life

139

, the protection of personal data

140

and the right to an effective remedy

141

. It also takes full

account of the rights of the child

142

and the special needs of people in a vulnerable situation. The

proposal also provides for a complaints mechanism to safeguard respect for fundamental rights in all the

Agency's activities. Already in place since 2016, this administrative mechanism entrusts the fundamental

rights officer to handle complaints received by the Agency.

132

136

https://www.consilium.europa.eu/en/press/press-releases/2017/06/29/eu-agency-for-asylum/

Amendment to the Proposal for a Regulation of the European Parliament and of the Council establishing a

European Union Agency for Asylum and repealing Regulation No 439/2010, COM(2018) 633 final,

https://ec.europa.eu/commission/sites/beta-political/files/soteu2018-eu-agency-asylum-regulation-633_en.pdf

137

Proposal for a Regulation of the European Parliament and of the Council on the European Border and Coast

Guard and repealing Council Joint Action n°98/700/JHA, Regulation (EU) n° 1052/2013 of the European Parliament

and of the Council and Regulation (EU) n° 2016/1624 of the European Parliament and of the Council 12.9.2018

COM(2018) 631 final,

https://ec.europa.eu/commission/sites/beta-political/files/soteu2018-border-coast-guard-

regulation-631_en.pdf

138

See Article 19.

139

See Article 7.

140

See Article 8.

141

See Article 47.

142

Se Article 24.

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Follo i g the Co

issio s all to Me e States to esettle at least

additio al people

the

143

end of October 2019 , approximately 21,000 places were filled by December 2018, including

resettlements of evacuees from Libya via the Emergency Transit Centre in Niger. The implementation of

the EU-Turkey Statement of 18 March 2016

144

also contributed to resettlement efforts as Member

States continue to resettle Syrians from Turkey.

By the end of 2018, more than 18,600 people had been

resettled

145

The Commission also adopted guidance on implementing the hotspot approach, giving prominence to

the obligation to respect fundamental rights over operations and performance of tasks in the

hotspots

146

Based on the general framework of the European Agenda on Migration

147

and subsequent

progress reports

148

, the Rules of Procedure of the EU Regional Task Force in Greece (EURTF-GR) provide

that European Union Fundamental Rights Agency (FRA) is a permanent participant of the EURTF-GR

monthly meetings. These meetings aim to ensure the necessary communication on the implementation

of the EU-Turkey Statement and strengthen the co-operation among the concerned national authorities

and EU Institutions and Agencies on the issues related to fundamental rights.

Application by Member States

In 2018, the Commission continued to monitor closely (i) how Member States have transposed into

national legislation the provisions of the various legislative documents pertaining to the

Common

European Asylum System

(and in particular, the amended

Long-Term Residence Directive

149

to include

beneficiaries of international protection, the

Qualifications Directive

150

, the

Asylum Procedures

Directive

151

and the

Reception Conditions Directive

152

) and (ii) their compliance with these provisions.

In November 2018 the Commission sent a letter of formal notice to Bulgaria concerning breaches of the

Asylum Procedures Directive (Directive 2013/32/EU) and the Reception Conditions Directive (Directive

2013/33/EU)

153

Commission Recommendation of 27.9.2017 on enhancing legal pathways for persons in need of international

protection, C(2017) 6504.

144

https://www.consilium.europa.eu/en/press/press-releases/2016/03/18/eu-turkey-statement

145

Please note that this is a general number of resettlements in 2018 and not only under this scheme.

146

issio Staff Wo ki g Do u e t Best p a ti es o the i ple e tatio of the hotspot app oa h

(COM(2017) 669).

147

Commission Communication of 13.5.2015 on a European Agenda on Migration (COM(2015)240 final)

148

https://ec.europa.eu/home-affairs/what-we-do/policies/european-agenda-migration/press-material_en

149

Council Directive 2003/109/EC concerning the status of third-country nationals who are long-term residents, OJ

L 16, 23.1.2004, p. 44–53.

150

Directive 2011/95/EU of the European Parliament and of the Council of 13 December 2011 on standards for the

qualification of third-country nationals or stateless persons as beneficiaries of international protection, for a

uniform status for refugees or for persons eligible for subsidiary protection, and for the content of the protection

granted, OJ L 337, 20.12.2011, p. 9–26.

151

Directive 2013/32/EU of the European Parliament and of the Council of 26 June 2013 on common procedures

for granting and withdrawing international protection, OJ L 180, 29.6.2013, pp. 60–95.

152

Directive 2013/33/EU of the European Parliament and of the Council of 26 June 2013 laying down standards for

the reception of applicants for international protection, OJ L 180, 29.6.2013, pp. 96–116.

153

143

http://europa.eu/rapid/press-release_MEMO-18-6247_en.htm

kom (2019) 0257 - Ingen titel

In December the Commission decided to refer Hungary to the CJEU in in relation to the provisions

concerning access to asylum, illegal summary returns and unlawful detention at the transit zone

154

. The

Commission considered that the introduction of a new non-admissibility ground for asylum applications

is a violation of the EU Asylum Procedures Directive. In addition, the new Hungarian law and the

constitutional amendment on asylum curtail the right to asylum in a way which is incompatible with the

Asylum Qualifications Directive and the Charter. The Commission also opened an infringement case

against Hungary for unlawfully criminalising NGOs when they assist asylum applicants with their claims,

as well as for further curtailment of the right to asylum. On 19 July 2018, the Commission addressed a

letter of formal notice to the Hungarian authorities, having found the criminalisation of support for

asylum and residence applications and the related restraining measures to be in violation of the Asylum

Procedures Directive and the Reception Conditions Directive, Articles 20 and 21(1) TFEU and the Free

Movement Directive, and of the Charter.

Under AMIF (the

Asylum, Migration and Integration Fund),

a number of projects funded had a

fundamental rights dimension. The following examples, selected from among a large number of

projects, illustrate the importance of EU-supported assistance designed to address the specific needs of

vulnerable people and guarantee respect for their fundamental rights.



the Netherlands,

AMIF supports a project designed to make LGBT asylum seekers and

refugees safer and to train staff involved in asylum procedures.

Lithuania,

an ongoing project to build housing for vulnerable asylum seekers is receiving

support from AMIF. The project's aim is to create suitable conditions to house asylum seekers in

the Fo eig e s Regist atio Ce t e u

the State Bo de Gua d Se i e u der

the Ministry of

the Interior. There is a need to improve the conditions under which asylum seekers live in the

centre, taking particular account of the needs of vulnerable asylum seekers.

Malta,

AMIF channels support to a project helping refugees to live a dignified life. This project

includes personalised information and guidance on how to access rights and mainstream

services, plus individual legal and/or psychosocial measures. It helps refugees overcome the

obstacles they face when seeking stable and regular employment.

France,

there is a project to help exiled journalists by providing them with shelter plus legal,

administrative and social support. Another AMIF-supported project has established a centre to

help mentally ill victims of torture and persecution by providing health services and training

opportunities.



Case law

The CJEU handed down a judgment on 25 January 2018 on a case concerned a Nigerian national whose

asylum application was rejected on the basis of a psychologist's report which stated that it was not

possible to confirm his homosexuality through the various tests applied

155

. The CJEU ruled that although

certain reports by experts could be useful, and could be drawn up without infringing the asylum

applicant's fundamental rights, such reports could be the sole source to be relied upon by the

dete i i g autho it he assessi g a as lu appli atio . The Cou t also held that a ps hologist s

epo t o stitutes a i te fe e e ith the pe so s ight to espe t fo his o he p i ate life,

even if he

154

155

http://europa.eu/rapid/press-release_IP-18-4522_en.htm

Case C 473/16,

F v Bevándorlási és Menekültügyi Hivatal

on 25 January 2018.

kom (2019) 0257 - Ingen titel

or she has consented to the performance of certain tests to determine sexual orientation. The Court

observed that such interference is extremely serious, being intended to give an insight into the most

i ti ate aspe ts of the as lu seeke

s life.

In two judgments delivered in September 2018

156

, the CJEU addressed the issue of whether EU law

requires second instance appeals against decisions rejecting an application for international protection

and imposing an obligation to return to have an automatic suspensory effect. The Court ruled that

national legislation which, while it makes provision for appeals against judgments delivered at first

instance which uphold a decision rejecting an application for international protection and impose an

obligation to return, does not confer on that remedy automatic suspensory effect, even if the person

concerned invokes a serious risk of infringement of the principle of non-refoulement, is not contrary to

EU law.

Article 19

—

Protection in the event of removal, expulsion or extradition

Article 19 of the Charter enshrines the same right as that afforded by Article 4 of Protocol 4 ECHR (prohibition of

collective expulsions) and codifies requirements flowing from case law on Article 3 ECHR (protection of individuals

from being removed, expelled or extradited to a state where there is a serious risk of the death penalty, torture

or other inhuman or degrading treatment or punishment).

Guarantees deriving from this provision are relevant in asylum and migration matters and are often the object of

inquiries and complaints under the EU legal framework.

Legislation

In September 2018, the Commission proposed a

targeted review

157

of the Return Directive

158

. This new legislative

proposal introduces faster procedures, common timelines and clearer rules, tightening the link between asylum

and return, and ensuring a more effective use of detention to support the enforcement of returns. When drafting

the various aspects of the proposal, particularly the issue of detention (maximum duration of 3 months) and

effective remedies (limitation of certain rights, such as on suspensive effects), we took careful account of the

jurisprudence of the Strasbourg and Luxembourg courts. The proposal did not change the general guarantees of

the existing directive, which remain unaffected: Member States must abide by the principle of non-refoulement

and take due account of family life, the best interests of the child and the state of health of the people concerned

when applying this legislation.

156

Cases C-175/17 and C-180/17

–

X v Belastingdienst/Toeslagen and X and Y v Staatssecretaris van Veiligheid en

Justitie

- on 26 September 2018.

157

COM(2018)634 final of 12.9.2018.

158

Directive 2008/115/EC of the European Parliament and of the Council of 16 December 2008 on common

standards and procedures in Member States for returning illegally staying third-country nationals.

kom (2019) 0257 - Ingen titel

Policy

During 2018, the Commission received a large number of questions from Members of the European Parliament

and letters from the public about search and rescue operations on the central Mediterranean route and the

treatment of migrants rescued at sea.

Replying to these questions and letters, the Commission referred to the Regulation

159

establishing rules for the

surveillance of the external sea borders in the context of operational cooperation coordinated by the European

Border and Coast Guard Agency, which provides that any measure taken in the course of a surveillance operation

must be proportionate to the objectives pursued and non-discriminatory, and should fully respect human dignity,

fundamental rights and the rights of refugees and asylum seekers, including the principle of non-refoulement.

However, the rescue operations in the central Mediterranean fall under the overarching international law

principle of duty of assistance to any vessel or person in distress. National authorities maintain competence in

these matters, and it is not within the EU's power to coordinate search and rescue events.

In addition, the Commission pointed out in its replies that the EU has a comprehensive approach in the central

Mediterranean, its aim being to manage migration flows better and in line with international standards. This

includes improving Libyan capacity for border management, providing economic support for local communities

affected by migration flows, and providing protection and assistance to vulnerable migrants. Various EU-funded

projects covered by the EU trust fund have involved cooperating with and training the Libyan coast guard since

2016 on issues including search and rescue operations, border surveillance, codes of conduct and respect for

migrants' human rights.

Case law

On 19 June 2018, the Court of Justice of the European Union handed down a judgment in case

Gnandi

160

. The case

concerned a request for a preliminary ruling by the Belgian Council of State on the possibility of the adoption of a

return decision, within the meaning of the Return Directive

161

, before the legal remedies against a rejection of an

asylum decision had been exhausted and the asylum procedure concluded. EU law

162

, read in the light of the

principle of non-refoulement

163

and the right to an effective remedy

164

, does not preclude the adoption of a return

decision in respect of a third-country national who has applied for international protection, immediately after the

rejection of that application by the determining authority or together in the same administrative act, and thus

Regulation (EU) No 656/2014 of the European Parliament and of the Council establishing rules for the

surveillance of the external sea borders in the context of operational cooperation coordinated by the European

Agency for the Management of Operational Cooperation at the External Borders of the Member States of the

European Union, OJ L 189, 27.6.2014, pp. 93–107.

Judgment of 19 June 2018 in case C-181/16,

Sadikou Gnandi v État belge

Directive 2008/115/EC of the European Parliament and of the Council of 16 December 2008 on common

standards and procedures in Member States for returning illegally staying third-country nationals

162

Directive 2008/115/EC, read in conjunction with Council Directive 2005/85/EC of 1 December 2005 on minimum

standards on procedures in Member States for granting and withdrawing refugee status

163

See Article 18

164

See Article 47

161

160

159

kom (2019) 0257 - Ingen titel

before the conclusion of any appeal proceedings brought against that rejection, provided that the Member State

concerned ensures that all the legal effects of the return decision are suspended pending the outcome of the

appeal

165

See further on that case under Article 47.

kom (2019) 0257 - Ingen titel

Questions

Citizens' rights

20%

Justice

11%

Other

Right to liberty and security

Protection of personal data 1%

Freedom of thought, conscience

and religion 1%

Freedom of expression and

information

Solidarity

17%

Freedoms

20%

Freedom of assembly and association

Right to education 1%

Dignity

- Restitution of property 1%

- Other aspects of property rights

Right to asylum

Protection in the event of removal

Equality

26%

kom (2019) 0257 - Ingen titel

Title III

Equality

In 2018, the Commission adopted a

Recommendation on standards for equality bodies,

encouraging Member

States to set out measures that help improve the equality bodies' independence and effectiveness.

On 1 March 2018, Zero Discrimination Day, Commissioner Jourová presented the second report on the

list of

actions to advance LGBTI equality.

In addition, on 15 October she opened the 9th European Diversity Charters

Forum and steered discussion aimed at engaging business to foster diversity on a voluntary basis.

The CJEU further developed its case law that protects LGBTI people against discrimination. In the

case, the

Court ruled that a national law that requires transgender people to be unmarried is contrary to sex equality

provisions of Directive 79/7/EEC in relation to social security. In the

Coman

case, the Court clarified that the term

spouse used i the

Free Movement Directive also applies to a person of the same sex as the citizen of the

European Union to whom he or she is married.

On 4 December, the Commission adopted its report on the mid-term evaluation of the 2011 EU Framework for

National Roma Integration Strategies. The report is based on the results of an in-depth evaluation of the

f a e o k s ele a e, effe ti e ess, ohe e e, effi ie

a d EU added alue.

Article 20

—

Equality before the law

Article 20 of the Charter stipulates that everyone is equal before the law. It corresponds to a general principle of

law included in all European constitutions and recognised by the CJEU as a basic principle of EU law.

Article 21

—

Non-discrimination

The Charter prohibits discrimination on any grounds including sex, race, colour, ethnic or social origin, genetic

features, language, religion or belief, political or any other opinion, membership of a national minority, property,

birth, disability, age or sexual orientation. It also prohibits discrimination on grounds of nationality, within the

scope of application of the EU Treaties and without prejudice to any of their specific provisions.

Discrimination based on racial or ethnic origin is a violation of the principle of equal treatment and is prohibited in

the workplace and elsewhere. In the area of employment and occupation, EU legislation prohibits discrimination

on grounds of religion or belief, disability, age or sexual orientation.

kom (2019) 0257 - Ingen titel

1. General non-discrimination issues

Legislation

On 22 June 2018, the Commission adopted a

Recommendation on standards for equality bodies

166

encouraging

Member States to set out measures that help improve the equality bodies' independence and effectiveness. This

is of g eat alue to these odies o k, i

cluding on offering independent assistance to victims of discrimination,

promoting equality, conducting independent surveys and issuing independent reports and recommendations.

On 12 March 2018, the Commission adopted a

proposal for a Directive amending Directive 2009/65/EC with

regard to cross-border distribution of collective investment funds

167

. The main objective of this initiative is to

facilitate the right to provide services in any Member State

168

, ensuring that there is no discrimination, even

indirect, on grounds of nationality. This further implements Article 21(2)

169

of the Charter.

Policy

The Commission supports diversity through a variety of actions and initiatives including targeted policies,

awarding funding, promoting good practice and high-level discussions.

The

high-level group on non-discrimination, diversity and equality,

made up of national experts from the 28

Member States and Norway, met twice in 2018 to exchange good practices and discuss topical issues in the field

of non-discrimination. Members set up a subgroup to develop specific guidelines on collecting equality data.

170

The high-level group endorsed these guidelines at their October meeting.

The Commission organised an exchange of good practices in Athens in 2018, specifically for Member States to

discuss the topic of multiple discrimination and intersectionality.

The Commission continues to encourage businesses to run voluntary initiatives that promote diversity through an

EU-level platform created to support the diversity charters

171

. The diversity charters are a recognised public

t ade a k that de o st ates a o pa s o

it e t to p o oti g e ualit a d di e sit . A g o i g u e

of businesses and public authorities engage in and encourage diversity in the EU: over 10 000 companies covering

167

Commission Recommendation on Standards of equality bodies. COM(2018)3850 final, 22.07.2018.

Proposal for a Directive of the European Parliament and of the Council amending Directive 2009/65/EC of the

European Parliament and of the Council and Directive 2011/61/EU of the European Parliament and of the Council

with regard to cross-border distribution of collective investment funds, adopted on 12.3.2018, 2018/0041 (COD),

COM(2018) 92 final

168

See Article 15

169

See Article 21(2)

170

http://ec.europa.eu/newsroom/just/item-

detail.cfm?item_id=612778&utm_source=just_newsroom&utm_medium=Website&utm_campaign=just&utm_con

tent=Moving%20forward%20on%20equality%20data%20collection&utm_term=Tackling%20discrimination&lang=e

171

https://ec.europa.eu/info/policies/justice-and-fundamental-rights/combatting-discrimination/tackling-

discrimination/diversity-management/eu-platform-diversity-charters_en

166

kom (2019) 0257 - Ingen titel

15 million employees have signed diversity charters to date. In 2018, diversity charters were launched in Romania

and Lithuania, bringing the total to 22 charters in the EU. The EU platform of diversity charters organises an

annual forum for diveristy charter signatories. In 2018, the forum took place on 15 October, brought together

a ou d

pa ti ipa ts, a d i luded a se i a o Di e sit a d I lusio i SMEs .

Funding also remains an important part of EU action in the fight against discrimination. This is why the

issio o ti ued to suppo t et o ks, NGOs a d spe ifi p oje ts a oss Eu ope u de the ights, e ualit

a d itize ship p og a

172

In 2018, the Commission continued to implement the

European Pillar of Social Rights,

where the principle of non-

discrimination features prominently. It did so in particular by implemeting the principle on equal opportunities

173

which states that:"[r]egardless

of gender, racial or ethnic origin, religion or belief, disability, age or sexual

orientation, everyone has the right to equal treatment and opportunities regarding employment, social protection,

education, and access to goods and services available to the public".

Application by the Member States

I its ole as gua dia of the EU T eaties, the Co

EU s o

-discrimination legislation.

Case law

The CJEU further developed its case law that protects LGBTI people against discrimination. In the

case

174

, the

Court ruled that a national law that requires transgender people to be unmarried is contrary to sex equality

provisions of Directive 79/7/EEC in relation to social security. In the

Coman

case

175

, the Court clarified that the

spouse used i the F ee Mo e e t Di e ti e also applies to a pe so of the sa e se as the itize of the

European Union to whom he or she is married.

In addition, in the

Maniero

case

176

, the Court clarified that the Race Equality Directive also covers discrimination

i edu atio , i ludi g o ditio s fo a ess to edu atio . It applies to p i ate fou datio s att i utio of

scholarships if there is a close enough connection between the scholarship and participation in education. This

could be the case for example if the scholarship is linked to participation in a research/study project, if its

objective is to remedy economic obstacles to participation.

issio

losel

o ito s Me

e States o plia e ith the

http://ec.europa.eu/research/participants/portal/desktop/en/opportunities/rec/index.html#c,calls=hasForthco

mingTopics/t/true/1/1/0/default-group&hasOpenTopics/t/true/1/1/0/default-

group&allClosedTopics/t/true/0/1/0/default-group&+PublicationDateLong/asc

173

Principle 3 of the European Pillar of Social Rights,

https://ec.europa.eu/commission/priorities/deeper-and-

fairer-economic-and-monetary-union/european-pillar-social-rights/european-pillar-social-rights-20-principles_en

174

Judgment of 26 June 2018, in Case C451/16,

MB v Secretary of State for Work and Pensions.

175

Judgment of 5 June 2018, in Case C-673/16,

Relu Adrian Coman and Others v Inspectoratul General pentru

I ig ă i a d Mi iste ul Afa e ilo I te e,

see also under Article 10.

178

Council Directive 2000/78/EC of 27 November 2000 establishing a general framework for equal treatment in

employment and occupation, OJ L 303, 2.12.2000, p. 16

179

Judgment of 19 September 2018, in case C-41/17

Isabel Gonzalez Castro v. Mutua Umivale, ProsegurEspaña SL,

Instituto Nacional de la Seguridad Social (INSS)

180

For more information, see

http://ec.europa.eu/newsroom/just/item-detail.cfm?&item_id=51025

181

http://ec.europa.eu/newsroom/document.cfm?doc_id=43050

182

http://http//ec.europa.eu/newsroom/just/document.cfm?doc_id=48874

183

On EU action to promote LGBTI equality see section 4.

177

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specific challenges faced by different communities and groups. The group was regularly informed about the work

and initiatives of the Commission coordinator on combating antisemitism

184

and the Commission coordinator on

combating anti-Muslim hatred

185

, which focused on monitoring trends and developments at national level,

preventing and countering hate speech and fostering education and youth empowerment.

The EU Agency for Fundamental Rights led expert discussions on how to improve national methodologies for

recording and collecting data on hate crime. During 2018, the Agency, together with the Organisation for Security

a d Coope atio i Eu ope s Offi e fo De o ati I stitutio s a d Hu a Rights,

186

helped Member States

improve their ability to record and collect hate crime data by organising national workshops. Workshops were

also o ga ised to help o pile i fo atio fo the

Improving the recording of hate crime by law enforcement

authorities

187

publication.

Significant progress was also made on countering illegal hate speech online

188

. The regular monitoring of the

implementation of the code of conduct

189

carried out by the Commission in cooperation with civil society

organisations showed further progress since its adoption. This shows that the self-regulatory tool, agreed with

major IT companies in May 2016, contributed to achieving a clear and steady increase in the removal of illegal

hate speech content by the IT companies

190

The Commission also continued to support umbrella organisations as well as specific projects on preventing and

combating racism, xenophobia and other forms of intolerance

u de the ights, e ualit a d itize ship

programme

191

. In this context, the Commission made EUR 7 million available in 2018 to support projects run in

this area by national authorities and/or civil society and other stakeholders. The projects included:



mutual learning and exchange of best practice,

training and capacity building,

supporting victims of discrimination,

underreporting of cases of racism, xenophobia and other forms of intolerance,

building trust between communities and national authorities,

184

185

http://ec.europa.eu/newsroom/just/item-detail.cfm?item_id=50144

http://ec.europa.eu/newsroom/just/item-detail.cfm?item_id=50085

186

http://fra.europa.eu/en/news/2017/improving-recording-hate-crime-law-enforcement-authorities

187

http://fra.europa.eu/en/news/2017/improving-recording-hate-crime-law-enforcement-authorities

188

http://ec.europa.eu/newsroom/just/item-detail.cfm?item_id=54300

189

http://ec.europa.eu/justice/fundamental-rights/files/hate_speech_code_of_conduct_en.pdf

190

According to the latest evaluation, released in January 2018 (UPDATE this reference?), IT companies removed

on average 70 % of illegal hate speech notified to them

—

with ethnic origin, sexual orientation and gender

identity, anti-Muslim hatred and xenophobia being among the grounds of hate speech most commonly reported

within the exercise. The monitoring also shows that all IT companies now meet the target of reviewing the

majority of notifications within 24 hours, reaching an average of more than 81 %. Building on the progress made,

Google+ and Instagram also decided to adopt the Code of Conduct, which is now considered an industry standard.

The Commission now aims to consolidate and stabilise the progress achieved and ensure that it is sustainable over

time. It also aims to help Member States overcome challenges in their legal responses to hate speech online.

191

http://ec.europa.eu/research/participants/portal/desktop/en/opportunities/rec/index.html#c,calls=hasForthco

mingTopics/t/true/1/1/0/default-group&hasOpenTopics/t/true/1/1/0/default-

group&allClosedTopics/t/true/0/1/0/default-group&+PublicationDateLong/asc

kom (2019) 0257 - Ingen titel



monitoring, preventing and countering hate speech online, including through the development of online

balanced narratives,

creating better understanding between communities, including through interreligious and intercultural

activities and projects focusing on coalition building.

The Council and the representatives of governments of the Member States meeting within the Council adopted

on 23 May 2018 conclusions on promoting the common values of the EU through sport

192

. Among others,

Member States are specifically invited to promote the fight against racism and xenophobia, gender stereotyping

and misogyny, the exploitation of young athletes, all forms of discrimination and violence in stadiums, and to

support sport organisations in fighting these violations.

Application by Member States

In line with Protocol No. 36 to the Lisbon Treaty, as from 1 December 2014 the Commission acquired the power

to oversee, under the control of the CJEU, the application of framework decisions, including the

Framework

Decision on combating certain forms and expressions of racism and xenophobia by means of criminal law

193

. On

that basis, the Commission continued its dialogues with the Member States in which major transposition gaps

remained, to ensure that the minimum standards set in the Framework Decision, which penalises racist and

xenophobic hate speech and hate crime, are correctly turned into national law.

3. EU Framework for national Roma integration strategies

The Commission continues to work together with Member States to ensure that all Roma people have fair and

equal opportunities. It does this through various legal, policy and funding instruments, and mainly through the

Framework for national Roma integration strategies

up to 2020.

The objective of the EU framework for national Roma integration strategies adopted in 2011 is to tackle the

socioeconomic exclusion of and discrimination against the Roma in the EU and the Western Balkans and in Turkey

by promoting their equal access to education, employment, health and housing. The EU framework invited

Member States to design national Roma integration strategies and to meet Roma integration goals.

Each year, the Commission assesses the implementation of the national Roma integration strategies and reports

to the European Parliament and the Council on progress made on integrating the Roma population in Member

States and on the achievement of goals in each area defined in the EU framework.

In 2018, the Commission carried out a mid-term evaluation of the EU framework for national Roma integration

strategies. The evaluation covers the 2011-

pe iod a d assesses the f a e o k s ele a e, ohe e e,

effectiveness, efficiency, coordination, equity, sustainability and EU added value. It concluded that the framework

192

193

OJ C 196, 8.6.2018, p. 23

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.

kom (2019) 0257 - Ingen titel

is the beginning of a process that, despite many limitations and taking into account the massive amount of work

involved, has shown positive results and an initial change in trends, with education being the area with most

progress. On 4 December 2018, the Commission published a Communication

194

reporting on the mid-term

evaluation, which underlines that the framework:



added value by putting Roma inclusion on EU and national agendas, developing increasing

coherence between EU policy, and legal and funding instruments;

provided flexibility to Member States to adapt its objectives to specific national contexts which

allowed them to follow a tailored approach; however, this contributed to fragmented

implementation, reducing effectiveness and limiting progress towards EU Roma integration goals;

had limited capacity to deal with diversity within the Roma population as it did not pay sufficient

attention to targeting specific groups among Roma (Roma women, youth, children as well as EU-

mobile Roma);

would have been stronger with a specific non-discrimination goal alongside the four Roma

integration goals and a stronger focus on the fight against antigypsyism to complement the inclusion

approach.



In 2018, the Commission continued to organise regular meetings of the network of National Roma Contact

Points

195

, consultation meetings with civil society organisations working on Roma inclusion, as well as meetings of

the European Platform for Roma Inclusion. In the context of the European Semester, it continued to monitor

progress in Roma inclusion and proposed country specific recommendations on high-quality inclusive mainstream

education for Roma children in four countries (Bulgaria, Hungary, Romania and Slovakia).

In its May 2018

proposals for 2021-2027 Regulations for the Structural Funds

196

, the Commission proposed

strong links between policy and funding priorities related to Roma inclusion. Directly managed EU funding has

also been mobilised under the 'rights,

e ualit a d itize ship p og a

e to fi a e p oje ts that foste Ro a

inclusion and fight discrimination and antigypsyism across Europe.

4. Fight against homophobia

The Co

issio is o

itted to a uall epo t o the i ple e tatio of the

List of actions to advance LGBTI

e uality’

197

as requested by the Council Conclusions on LGBTI equality

198

adopted in June 2016. On 1 March 2018,

the Co

issio e fo Justi e, Co su e s a d Ge de E ualit , Vě a Jou o á, p ese ted the se o d a ual epo t

on the list of actions to the high-level group on non-discrimination, equality and diversity. This was followed by in-

depth workshops on bisexuality, intersex and health for LGBTI people.

Communication from the Commission to the European Parliament and the Council. Report on the evaluation of

the EU Framework for National Roma Integration Strategies up to 2020. COM/2018/785 final

195

https://ec.europa.eu/research/participants/portal/desktop/en/support/national_contact_points.html

196

Proposal for a Regulation on the European Social Fund Plus COM(2018) 382 final; Proposal for a Regulation

laying down common provisions COM(2018) 375 final

197

https://ec.europa.eu/info/policies/justice-and-fundamental-rights/combatting-discrimination/lesbian-gay-bi-

trans-and-intersex-equality_en

198

https://www.consilium.europa.eu/en/press/press-releases/2016/06/16/epsco-conclusions-lgbti-equality/

194

kom (2019) 0257 - Ingen titel

In October 2018, the high-level group facilitated an extensive exchange of best practice between Member States

and civil society organisations that are being supported in implementing projects to combat the discrimination of

LGBTI people th ough the ights, e ualit a d itize ship p og a

e. I additio , a LGBTI di e sio

included in the good practices exchange on multiple discrimination and intersectionality, which took place in

December 2018 in Athens.

In June 2018, a meeting of the subgroup on equality data focused specifically on data pertaining to LGBTI equality.

It aimed to improve the methodology and definition of current surveys (notably those carried out among

transgender and intersex people) and to brainstorm on how to better reach out to the LGBTI community and raise

awareness of the importance of equality data.

To highlight the importance of LGBTI equality, the Commission marked the International Day Against Homophobia

and Transphobia (17 May) by illuminating its headquarters (the Berlaymont building) in the colours of the

rainbow flag. It also participated in events like Belgian Pride and the International Lesbian, Gay, Bisexual, Trans

a d I te se Asso iatio ILGA Eu ope s A ual Co fe e e.

To support their awareness-raising activities, European Commission representations received an

#EU4LGBTI

Toolkit to help them organise events, meet with stakeholders and participate in national pride- and other LGBTI

events. The toolkit included a rainbow flag, promotional items, relevant publications, factsheets, a standard

powerpoint presentation and a social media toolkit.

In addition, the Commission created a video on the equality of bisexual people in March 2018 and a video on

lesbian equality in April 2018. In total, the Commission created five videos, one for every letter of the L-G-B-T-I

acronym. These were specifically disseminated and promoted in the Member States in which the social

acceptance of LGBTI people is below the EU average.

On 20 November 2018, the International Transgender Day of Remembrance, the Commission published a new

comparative analysis on trans- and intersex equality rights in Europe

199

. This was authored by the European

network of legal experts in gender equality and non-discrimination.

Article 22

—

Cultural, religious and linguistic diversity

Article 22 of the Charter states that the EU must respect cultural, religious and linguistic diversity. This is based on

Article 167(1) and (4) TFEU on culture. Respect for cultural and linguistic diversity is also set out in Article 3(3)

TEU. Article 22 is also inspired by Article 17 TFEU.

Legislation

In April 2018, the European Parliament and the Council adopted the Regulation amending the Regulation

establishing the Creative Europe programme

200

in order to ensure continuity in the funding of the European

199

https://ec.europa.eu/info/sites/info/files/trans_and_intersex_equality_rights.pdf

kom (2019) 0257 - Ingen titel

Union Youth Orchestra. This orchestra is unique on the European scene. It acts as a cultural ambassador for the

EU by showcasing the richness and diversity of European cultures and emerging talent. It provides regular training

for young musicians through a residence programme and offers performance opportunities.

Policy

The 2018 European Year of Cultural Heritage

201

e ou aged o e people to dis o e a d e gage ith Eu ope s

cultural heritage, and fostered a sense of belonging to a common European space. The slogan for the year was:

Our heritage: where the past

eets the futu e

. Cultural heritage has a universal value for individuals,

communities and societies. It is important to preserve and pass on to future generations.

In its conclusions on the role of young people in building a secure, cohesive and harmonious society in Europe

202

the Council invited the European External Action Service to maintain and foster (i) intercultural dialogue between

young people in and beyond Europe, and (ii) participation in intercultural dialogue to provide various

opportunities for young people to advance reconciliation processes and reduce prejudice, misunderstandings and

discrimination among diverse groups, as well as to combat hate speech and violent extremism using a human-

rights based approach.

On 14 June 2018, the European Parliament adopted a Resolution on

structural and financial barriers in the access

to culture

203

, in which it encourages an interactive and inclusive community-based approach to developing

cultural and educational policies. The objectives are to increase cultural interest and participation, promote

Eu ope s ultu al he itage a d de elop Eu opea

ultu al a d li guisti di e sit . The Resolutio also

recommends actions to remove financial barriers to participation in culture, such as high prices of cultural goods

and services, as well actions to ensure a cultural offer that is accessible to everyone, with specific measures for

certain groups, including young people, the elderly, disabled people or migrants.

In September 2018, the European Parliament also adopted a Resolution on

language equality in the digital age

204

This stresses the importance of linguistic diversity for the future of Europe and calls on Member States, the

Council and the Commission to take various further measures to promote linguistic diversity and multilingualism,

in particular in the digital sphere, including by developping digital teaching materials in minority and regional

languages.

200

Regulation (EU) 2018/596 of the European Parliament and of the Council of 18 April 2018 amending Regulation

(EU) No 1295/2013 establishing the Creative Europe programme (2014-2020), OJ L 103, 23.4.2018, p. 1.

201

https://europa.eu/cultural-heritage/european-year-cultural-heritage_en

202

Council conclusions on the role of young people in building a secure, cohesive and harmonious society in

Europe, OJ C 195, 7.6.2018, p. 13.

203

European Parliament resolution of 14 June 2018 on structural and financial barriers in the access to culture,

http://www.europarl.europa.eu/sides/getDoc.do?type=TA&language=EN&reference=P8-TA-2018-0262

204

European Parliament resolution of 11 September 2018 on language equality in the digital age,

http://www.europarl.europa.eu/sides/getDoc.do?type=TA&language=EN&reference=P8-TA-2018-0332

kom (2019) 0257 - Ingen titel

The Regulation that established the

Creative Europe programme

with a total budget of 1.46 billion EUR

205

brings

together actions supporting the European cultural and creative sectors for 2014-2020. Implementation of the

p og a

e o ti ued th oughout

, safegua di g a d p o oti g ultu al a d li guisti di e sit a d Eu ope s

cultural heritage, as well as strengthening the competitiveness of the European cultural and creative sectors. In

May 2018, the Commission also presented a new European agenda for culture, which provides the framework for

the next phase of EU-level cooperation. The Creative Europe programme will play a direct role in supporting the

new agenda as of 2019.

Regular dialogue with churches, religious associations and communities and philosophical and non-confessional

organisations is envisaged under the Lisbon Treaty

206

and meetings at different levels are regularly held

207

. The

aim is to discuss the challenges facing the EU and policy developments in areas of interest to these organisations,

which makes it possible for the EU to take into account the diversity of religious and non-confessional views. In

2018, the dialogue focused on the main policy challenges faced by the EU in the coming year, as well as on the

perspectives for the future, beyond the 2019 European Parliament elections. In particular, participants discussed

how the EU is addressing migration, social integration and the sustainability of the European way of life. A high-

level meeting held with non-

o fessio al o ga isatio s fo used o A tifi ial I tellige e: add essi g ethi al a d

so ial halle ges . Mo e spe ifi all , it looked

at the potential impact of artificial intelligence on fundamental

rights, in particular when it comes to privacy, dignity, consumer protection and non-discrimination.

The social dimension of artificial intelligence was also addressed in terms of the impact on social inclusion and the

future of work. Consultations were held under Article 17 to allow stakeholders to take part in the drafting of the

Ethi s guideli es fo t ust o th a tifi ial i tellige e , hi h the high-level

expert group on artificial intelligence

issued on 18 December 2018

208

In March 2018, First Vice-President Timmermans held a roundtable discussion with European imams and scholars

as pa t of the Futu e of Eu ope de ate a d the Co

issio s e gage e t ith Eu ope s Musli o

u ities.

Article 23

—

Equality between women and men

Under Article 23, equality between women and men is to be ensured in all areas, including employment, work

and pay. The principle of equality does not preclude the maintenance or adoption of measures providing for

specific advantages in favour of the underrepresented sex.

Legislation

Regulation (EU) No 1295/2013 of the European Parliament and of the Council of 11 December 2013 establishing

the Creative Europe Programme (2014 to 2020) and repealing Decisions No 1718/2006/EC, No 1855/2006/EC and

No 1041/2009/EC, OJ L 347, 20.12.2013, p.221.

206

See Article 17

207

https://ec.europa.eu/newsroom/just/item-detail.cfm?item_id=50189

208

https://ec.europa.eu/digital-single-market/en/news/draft-ethics-guidelines-trustworthy-ai

205

kom (2019) 0257 - Ingen titel

, p og ess as ade o the EU s a essio to the Cou il of

Europe Istanbul Convention on preventing

and combating violence against women and domestic violence

209

, following the EU signing the Convention in

June 2017. The Commission and the Member States agreed on a

Code of Conduct,

which sets out the practical

arrangements for the EU and Member States meeting their legal obligations under the Convention. The

Convention was signed by all Member States and three of them (Greece, Croatia and Luxembourg) ratified it in

2018

210

. The Commission is working with the Council of Europe and the remaining Member States to ensure that

the Convention is swiftly ratified across the EU.

To follow up on the 2017

gender pay gap action plan

211

, the Commission launched an evaluation

212

of the

Equal

Opportunities Directive

213

. The evaluation will help the Commission assess potential amendments, in particular

those that address pay transparency and build on the 2014 Commission Recommendation on strengthening the

principle of equal pay between men and women through transparency

214

Case law

In the

case

215

the Court ruled that a national law that requires transgender people to be unmarried is

contrary to the sex equality provisions of Directive 79/7/EEC in relation to social security. MB, who had

undergone a male-to-female intersex change, was refused a pension when reaching the retirement age for

women. The reason given was that the change of gender was not legally recognised because MB had not divorced

her wife.

Policy

In May 2018, the Commission adopted a report

216

on the

Barcelona objectives on childcare

217

. The report showed

improvement since 2013, with some countries still lagging behind. On average in the EU Member States, the

target has been reached for children under the age of three and has almost been reached for children between

the ages of 3 and the mandatory school age.

Council of Europe Convention on Preventing and Combating Violence against Women and Domestic Violence

signed in Istanbul on 11 May 2011, https://rm.coe.int/168008482e.

210

B i gi g the total u e of Me e States atifi atio s to : Belgiu , De a k, Ge a , Esto ia, G ee e,

Spain, France, Croatia, Italy, Cyprus, Luxembourg, Malta, the Netherlands, Austria, Poland, Portugal, Romania,

Slovenia, Fin;and and Sweden.

211

Communication from the Commission to the European Parliament, the Council and the European Economic and

So ial Co

ittee EU A tio Pla

. Ta kli g the ge de pa gap , No e e

, COM

final.

212

The roadmap is :

http://ec.europa.eu/info/law/better-regulation/initiatives/ares-2018-3415794_en

213

Directive 2006/54/EC of the European Parliament and of the Council of 5 July 2006 on the implementation of

the principle of equal opportunities and equal treatment of men and women in matters of employment and

occupation (OJ L 204, 26.7.2006, p. 23–36).

214

Commission Recommendation of 7 March 2014 on strengthening the principle of equal pay between men and

women through transparency(OJ L 69, 8.3.2014, p. 112–116).

215

Judgment of 26 June 2018 in case C-451/16,

MB v Secretary of State for Work and Pensions

216

COM(2018) 273 final,

217

In 2002, the heads of state and government agreed upon two targets for the participation of children under

mandatory school age in childcare (the so-called Barcelona objectives): 33 % of children under the age of 3 and

90 % of children between 3 years old and mandatory school age.

209

kom (2019) 0257 - Ingen titel

To further its work on work-life balance, the Commission launched a Eurobarometer

218

survey that showed that

less than half of European men (41%) either have taken or are considering taking paternity leave. An even smaller

proportion of men (32%) are interested in parental leave, while 57% of European women are thinking of taking

parental leave. The survey also showed that flexible working arrangements are unavailable to one in three

Europeans.

The Co

issio o ti ued its No.No .Nei . #Sa No Stop VAW o

u i atio a paig fo e di g iole e

against women. Various social media and communications material was produced and disseminated.

219

December 2018, the Commission concluded the campaign with a high-level event to look back on progress made

towards eliminating gender-based violence, and to identify next steps and challenges at national, European and

international level.

November 2018 marked the 5-year anniversary of the 2013 Communication

220

on the

elimination of female

genital mutilation,

a practice carried out for cultural, religious and/or social reasons. Eliminating it requires a

range of actions focusing on data collection, prevention, protection of girls at risk, prosecution of perpetrators

and provision of services for victims. The Commission will continue implementing the measures set out in the

Communication and use appropriate instruments to eradicate

female genital mutilation

and build on this

experience to tackle other harmful practices.

In October 2018, the European Instrument for Democracy and Human Rights - the specific financial instrument for

support to human rights and fundamental freedoms in EU external action - continued to focus on actions to end

violence against women and girls. Specific actions in 2018 included:



the lau h of the Safe a d Fai p og a

e, hi h ai s to i p o e the o ki g o ditio s of fe ale

migrants from the South-East Asiancountries,

support to the Panzi hospital in the Democratic Republic of Congo (managed by Nobel Prize Laureate Dr

Mukwege and providing health services and support to women and girl victims of violence, and

agreement on programmes against femicide in five Latin American countries (Argentina, El Salvador,

Guatemala, Honduras and Mexico) and against sexual and gender-based violence, including harmful

practices, in eight African countries (Liberia, Malawi, Mali, Mozambique, Niger, Nigeria,Uganda,

Zimbabwe).

In 2018,

rural development programmes

(under the European Agricultural Fund for Rural Development)

supported a wide range of actions targeting women and touching on various aspects of rural life.

On 10 December 2018, the European Council adopted its first-ever Conclusions on Women, Peace and Security

and its annex with the EU Strategic Approach to Women, Peace and Security that represents the new EU

framework for the implementation of the Women, Peace and Security Agenda.

218

Flash Eurobarometer 470 (2018), work-life balance, :

http://ec.europa.eu/commfrontoffice/publicopinion/index.cfm/survey/getsurveydetail/instruments/flash/surveyk

y/2185

219

http://ec.europa.eu/justice/saynostopvaw/

220

https://eur-lex.europa.eu/legal-content/EN/TXT/?uri=COM:2013:0833:FIN

kom (2019) 0257 - Ingen titel

Article 24

—

The rights of the child

P ote ti g hild e s ights is a p io it fo the EU, as e sh i ed i A ti le

TEU. A ti le

of the

Charter

recognises that children are independent and autonomous holders of rights and states that children have the

right to the protection and care necessary for their well-

ei g. It odifies hild e s ight to pa ti ipatio

emphasising that children may express their views freely, and that their views are to be taken into consideration

on matters that concern them, according to their age and maturity. Article 24 states that all actions affecting

children, whether carried out by public authorities or p

i ate i stitutio s, ust ha e the hild s est i te ests as a

pi a

o side atio . It also e sh i es e e

hild s ight to ai tai o a egula asis a pe so al elatio ship

and direct contact with their parents, unless this is contrary to their interests.

Policy

During 2018, the Commission continued to work on implementing the 2017 Communication on the

protection of

children in migration

221

To monitor progress in implementing the Communication, the Directorates-General for Justice and Consumers

and Migration and Home Affairs organise joint expert meetings twice a year. These bring together child rights

experts and experts in asylum and migration from Member States, the Commission and EU agencies (the

European Asylum Support Office, the Agency for Fundamental Rights and the European Border and Coast Guard

Agency ). The meetings provide a forum for discussing current challenges and exchanging best practices. The

agenda and minutes of the first two meetings of the informal joint expert group, held on 1 December 2017 and on

1 June 2018 in Brussels, are available online

222

. Information on the third meeting, on 3 December 2018, will be

published soon.

In addition, to follow-up on the April 2017 Communication

223

, the Commission makes available an online overview

issio a d EU age

a tio s i this a ea. I oope atio

ith Me e States ig atio a d hild

protection authorities

224

, it has also published survey responses from several Member States reporting on

progress made at national level

225

Progress has been achieved on several accounts, for example on:

Communication from the Commission to the European Parliament and the Council on the protection of children

in migration, 12 April 2017, COM (2017) 211 final.

222

http://ec.europa.eu/transparency/regexpert/index.cfm?do=groupDetail.groupDetail&groupID=3564&NewSearc

h=1&NewSearch=1

223

https://ec.europa.eu/info/policies/justice-and-fundamental-rights/rights-child/children-

migration_en#euactiononchildreninmigration.

224

https://ec.europa.eu/info/policies/justice-and-fundamental-rights/rights-child/children-

migration_en#documents

225

http://ec.europa.eu/newsroom/just/document.cfm?doc_id=49908.

221

kom (2019) 0257 - Ingen titel



improving access to qualified guardianship for unaccompanied children in frontline countries (in the

summer of 2018 Greece adopted a framework law reforming the system of guardianship for

unaccompanied children, and in April 2017 Italy adopted Law 47/2017, which introduced a system of

voluntary guardians for unaccompanied minors);

establishing an EU Guardianship Network, which is being financed by the Directorate-General for Justice

with a direct grant; and

publishing an Asylum, Migration and Integration Fund 2018 call for project proposals to promote

alternative care systems for unaccompanied children and alternatives to detention.

226

However, child protection frameworks for migrant children are still rather fragmented across the EU, and a

number of challenges still need to be addressed in order to make the policy on protecting children in migration

tangible and consistent. This is especially the case for:



improving reception conditions for migrant children and ensuring their access to the services specific to

their situation (healthcare, education, assistance in cases of special vulnerabilities);

implementing the principle of the best interests of the child in all decisions concerning migrant children;

making available effective alternatives to the detention of migrant children and expanding the use of non-

custodial community- or family-based living arrangements for children while their status is being resolved

and before return.

On 25 and 26 June 2018, the Commission organised a conference on child-friendly justice and integrated child

protection systems

–

lessons learned from EU projects. The event aimed to showcase examples of good practice,

to take stock of what has been achieved under the

ights, e ualit a d itize ship p og a

and to explore

how EU funds can best support the implementation and enforcement of the rights of the child, with a view to

informing future policy and funding priorities

227

Follo i g the Eu opea Pa lia e t s all to

implement a preparatory action on a possible child guarantee scheme

that would help ensure that every child in the EU at risk of poverty or social exclusion has access to free

healthcare, education, early childhood education and care, decent housing and adequate nutrition, the

Commission contracted a feasibility study in 2018

228

. The study will focus on four specific target groups: children

living in precarious family situations, children residing in institutions, children of recent migrants and refugees and

children with disabilities and other special needs. It will analyse the feasibility, added value, cost-effectiveness,

design, governance and implementation of existing schemes and compare these to the added value of an EU child

guarantee scheme.

In 2018,

u de the ette I te et fo kids st ateg , the Co

issio lau hed the #Safe I te et EU

campaign

229

to help children learn, express themselves and critically assess what they discover online in order to

become responsible and resilient digital citizens.

The a paig s esou es a d a ti ities o e topi s o e i g

226

https://ec.europa.eu/home-affairs/content/call-Proposals-area-integration-third-country-nationals-

2018_en_en.

227

https://ec.europa.eu/info/sites/info/files/chfj_report_dgt_final.pdf

228

European Commission, Child guarantee for vulnerable children, https://ec.europa.eu/social/

229

https://www.betterinternetforkids.eu/web/portal/saferinternet4eu

kom (2019) 0257 - Ingen titel

young users, including cyberbullying, fake news, sexting, harmful content, critical thinking, media literacy and

digital skills, and cyber-hygiene.

In 2018, the Commission adopted a Communication on

education in emergencies and protracted crises.

The

Communication highlighted the right to education

230

, the commitment to promote the protection of the rights of

the child under the Treaty on European Union

231

, and the right to quality and inclusive education, training and

life-long learning as the first principle of the

European Pillar of Social Rights

232

. Furthermore, the Communication

stated that

progress in the condition of children is essential if we are to prevent state fragility and ensure long-

term sustainable development, social cohesion, stability and human security at national, regional and global

levels

233

On 3 December 2018, the Commission adopted its

second report

234

and accompanying staff working

document

235

, including EU-wide statistics

236

, on

progress made in the fight against trafficking in human beings

since 2015.

This highlighted the main trends and outlined remaining challenges.

On 22 May 2018, the Council conclusions on

the role of young people in building a secure, cohesive and

harmonious society in Europe

237

underlined the importance of youth mobility in promoting intercultural

competences and fighting prejudices and discrimination. They also highlighted the significant role of youth work

and non-formal and informal learning in addressing youth marginalisation and radicalisation.

On 22 May 2018, a Council recommendation on

promoting common values, inclusive education and the

European dimension of teaching

238

encouraged Member States to promote inclusive education for all learners,

from early

hildhood o a ds, a d to take all lea e s eeds i to a ou t. This ea s i pa ti ula the eeds of

learners from disadvantaged socioeconomic backgrounds, migrant backgrounds and with special needs.

230

Article 14, Charter of Fundamental Rights of the European Union, OJ C 326, 26.10.2012, p. 391–407; UN General

Assembly, Convention on the Rights of the Child, 20.11.1989, UN, Treaty Series, vol. 1577.

231

Article 3(3) and (5), Treaty on European Union (TEU). These provisions expressly commit the EU to promote the

protection of the rights of the child in EU internal and external action.

232

Commission Communication on Establishing a European Pillar of Social Rights, 27.04.2017, COM(2017) 250.

233

COM(2008) 55 and the EU Guidelines for the Promotion and Protection of the Rights of the Child, adopted by

Council in 2017.

234

Report from the Commission to the European Parliament and the Council,

Second report on the progress made

in the fight against trafficking in human beings (2018) as required under Article 20 of Directive 2011/36/EU on

preventing and combating trafficking in human beings and protecting its victims,

COM(2018) 777 final, 3.12.2018, :

https://ec.europa.eu/home-affairs/sites/homeaffairs/files/what-we-do/policies/european-agenda-

security/20181204_com-2018-777-report_en.pdf

235

Commission staff working document accompanying the document

Second report on the progress made in the

fight against trafficking in human beings (2018) as required under Article 20 of Directive 2011/36/EU on preventing

and combating trafficking in human beings and protecting its victim;

SWD(2018) 473 final, 3.12.2018; :

https://ec.europa.eu/home-affairs/sites/homeaffairs/files/what-we-do/policies/european-agenda-

security/20181204_swd-2018-473-commission-staff-working-document_en.pdf

236

Data collection on trafficking in human beings in the EU (2018), :

https://ec.europa.eu/home-

affairs/sites/homeaffairs/files/what-we-do/policies/european-agenda-security/20181204_data-collection-

study.pdf

237

OJ C 195, 7.6.2018, p. 13

238

OJ C 195, 7.6.2018, p.1

kom (2019) 0257 - Ingen titel

On 26 November 2018, the Council adopted conclusions on the role of

youth work in the context of migration

and refugee matters

239

. It called on Member States to empower youth structures to act as a link between public

services, the local population and young refugees and other non-EU nationals. In particular, it encouraged

Member States to promote actions and projects that combat prejudice and stereotypes, to create safe spaces

where the local community may engage in respectful dialogue to address discrimination, and to create safe, child-

and youth-friendly spaces within reception centres, taking into account the principle of the best interest of the

child. It also invited the Commission to to suggest action, where needed, to improve the situation of young

people, especially of young refugees and other third country nationals, if their life circumstances are not in

accordance with the Convention of the Rights of the Child and the Charter.

On 26 November 2018, the Council conclusions on the role of youth work in the context of migration and refugee

matters

240

invited Member States to create safe, child- and youth friendly spaces within receiving structures and

refugee reception centres, taking into account the principle of the best interest of the child and young people.

Legislation

The new Regulations on the establishment, operation and use of the Schengen Information System

241

entered

into force on 27 December 2018. They envisage new types of alerts for vulnerable people, including children, who

need to be prevented from travelling to ensure their protection. These new alerts would cover people at risk of

becoming victims of trafficking in human beings or gender-based violence. The new Regulation on police

cooperation and judicial cooperation in criminal matters includes a clear requirement to consider the best

interest of the child in any decision on measures that concern the child and any decision to move the child to a

safe place. Such decisions must be made immediately and not later than 12 hours after the child is located, in

consultation with relevant child protection authorities.

Case law

In the

Si di atul Fa ilia Co sta ţa

case

242

, the Court stated that limitations to the right to periods of daily and

weekly rest as well as a period of paid annual leave, accorded to all workers by Article 31(2) of the Charter, may

Council conclusions on 13 July 2018 on youth work in the context of migration and refugee matters , 26

November 2018,

http://data.consilium.europa.eu/doc/document/ST-14082-2018-INIT/en/pdf

240

OJ C 441, 7.12.2018, p. 5

241

Regulation (EU) 2018/1860 of the European Parliament and of the Council of 28 November 2018 on the use of

the Schengen Information System for the return of illegally staying third-country nationals, OJ L 312, 7.12.2018, p.

Regulation (EU) 2018/1861 of the European Parliament and of the Council of 28 November 2018 on the

establishment, operation and use of the Schengen Information System (SIS) in the field of border checks, and

amending the Convention implementing the Schengen Agreement, and amending and repealing Regulation (EC)

No 1987/2006, OJ L 312, 7.12.2018, p. 14.

Regulation (EU) 2018/1862 of the European Parliament and of the Council of 28 November 2018 on the

establishment, operation and use of the Schengen Information System (SIS) in the field of police cooperation and

judicial cooperation in criminal matters, amending and repealing Council Decision 2007/533/JHA, and repealing

Regulation (EC) No 1986/2006 of the European Parliament and of the Council and Commission Decision

2010/261/EU, OJ L 312, 7.12.2018, p. 56.

242

Judgment of 20 November 2018, in case C‑147/17

Si di atul Fa ilia Co sta ţa Di e ţia Ge e ală de Asiste ţă

So ială şi P ote ţia Copilului Co sta ţa

239

kom (2019) 0257 - Ingen titel

be provided for in respect of the strict conditions set out in Article 52(1) of the Charter and, in particular, of the

essential content of those rights. In this case, the Court concluded that the statutory limitations placed on the

foster parents

ight to pe iods of dail a d eekl est a d to paid a ual lea e espe t the esse e of those

rights. In addition, they are necessary for the achievement of the public service objective recognised by the EU,

namely the protection of the best interests of the child, which is enshrined in Article 24 of the Charter. As far as

the latter provision of the Charter is concerned, the Court also added that the integration, on a continuous and

long-term basis, into the home and family of a foster parent, of children who, on account of their difficult family

situation, are particularly vulnerable, constitutes an appropriate measure to safeguard the best interests of the

child.

In its judgment in the

A and S v. Staatssecretaris van Veiligheilden Justitie

case

243

, the Court expressly underlined

the objective of the Family Reunification Directive

244

, to ensure that, in accordance with Article 24(2) of the

Charter of Fundamental Rights, Member States have the best interests of the child as a primary consideration

when they apply the directive. In this case, the Court found that Article 2(f) of the Directive, read in conjunction

with its Article 10(3)(a), must be interpreted as meaning that a non-EU national or stateless person who is below

the age of 18 at the time of his or her entry into the territory of a Member State and of the introduction of his or

her asylum application in that State, but who, in the course of the asylum procedure, attains the age of majority

and is thereafter granted refugee status, must be regarded

as a i o fo the pu poses of that p o isio .

In its judgment in the

K. A. and others v. Belgische Staat

case

245

, the Court emphasised twice that, in migration-

related cases involving family unity, the competent authorities must take account of the right to respect for

private and family life, as laid down in Article 7 of the Charter. This article must be read, when necessary, in

o ju tio

ith the o ligatio to take i to o side atio the hild s est i te ests, e og ised i A ti le

24(2) of

the Charter.

Article 25

—

The rights of the elderly

Article 25 of the Charter sets out one of the first legally binding human rights provisions addressing the rights of

older people. It states that the EU recognises and respects the rights of the elderly to lead a life in dignity and

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

participation in political life. Most of the policies directly affecting these rights are within the competences and

responsibilities of individual Member States, but the EU is committed to respecting and promoting them in

relevant EU law, policies and programmes.

The growing recognition of the rights of older people is illustrated by the fact that, in May 2018, for the first time,

the annual Fundamental Rights Report of the European Union Agency for Fundamental Rights contained a special

Fo us Chapte o Shifti g pe eptio s: to a ds a ights- ased app oa h to agei g

246

. This chapter explores the

shift away from thinking about

old age i te s of defi its that eate eeds to a ights- ased app oa h

243

244

Judgement of 12 April 2018 in case C-550/16,

A and S v. Staatssecretaris van Veiligheilden Justitie

Council Directive 2003/86/EC on the right to family reunification, OJ L 251, 3.10.2003, p. 12–18.

245

Judgement of 8 May 2018 in case C-82/16,

K. A. and others v. Belgische Staat

246

Fundamental Rights Report 2018 Focus - Shifting perceptions: towards a rights‑based approach to ageing

https://fra.europa.eu/en/publication/2018/frr-2018-focus-rights-based-ageing

kom (2019) 0257 - Ingen titel

towards ageing with the need to respect the fundamental right to equal treatment of all individuals, regardless of

age.

In the first half of 2018, the Commission published two major reports on ageing, with both being issued every

three years. The first was the 2018 Ageing Report with economic and budgetary projections for the EU Member

States (2016-2070)

247

, dealing with the impact of ageing populations on the labour market and potential

economic growth. It identifies policy challenges for the setting of sustainable medium-term budgetary objectives

for public finances and is used in a range of policy processes at EU level, for example in the Europe 2020 strategy.

The second report related to ageing was the 2018 Pensions Adequacy Report

248

, prepared by the Commission

together with the Social Protection Committee. It analyses how current and future pensions help prevent old-age

poverty and maintain the income of men and women for the duration of their retirement. It underlines that

Member States pay more and more attention to sustainable, adequate pensions in their reforms, but that further

measures are necessary. It is used as a knowledge basis for the annual European Semester policy review. This

pension income-adequacy issue is inextricably linked to the broader spectre of respect for the whole range of

human rights of older people.

The most prominent international forum dealing specifically with the right of older people is the United Nations

Open-E

ded Wo ki g G oup o Agei g. Fo the g oup s

sessio

249

, the EU, after coordinating its position

with the EU Member States in the Council Working Group on Human Rights, contributed to discussions on

autonomy and independence and long-term and palliative care, including by sharing data and best practices. The

EU is keen to continue its active participation in the Open-ended Working Group, and is also engaged in other

multilateral discussions on the rights of older people, including in the 3rd Committee of the United Nations

General Assembly, at the Human Rights Council, and the Commission for Social Development.

The EU also took part in other international events on ageing and demography, such as the Asia-Europa Meeting

International seminar in Seoul in June 2018, the International Conference on Population and Development, and

the United Nations Economic Commission for Europe

Regio al Co fe e e o E a li g Choi es: Populatio

D a i s a d Sustai a le De elop e t i Ge e a o

1 and 2 October 2018..

This is alig ed ith the EU s

commitment to the Regional Implementation Strategy of the Madrid International Plan of Action on Ageing

250

and

to safegua di g olde people s e jo e t of hu a ights as set out i these st ategies, pla s a d other

relevant

United Nations, international and regional conventions and treaties.

Together, the United Nations Economic Commission for Europe, the European Commission, the University of the

Basque Country and the Oxford Institute of Population Ageing, organised the second International Seminar on the

247

2018 Ageing Report with Economic and Budgetary Projections for the EU Member States (2016-2070)

https://ec.europa.eu/info/publications/economy-finance/2018-ageing-report-economic-and-budgetary-

projections-eu-member-states-2016-2070_en

248

2018 Pensions Adequacy Report

file:///C:/Users/ljungve/Downloads/KE-01-18-457-EN-N.pdf

249

EU Opening Statement

–

United Nations Open-ended Working Group on Ageing: General Discussion, Delegation

of the European Union to the United Nations - New York

https://eeas.europa.eu/delegations/un-new-

york_me/48754/EU%20Opening%20Statement%20%E2%80%93%20United%20Nations%20Open-

ended%20Working%20Group%20on%20Ageing:%20General%20Discussion

250

Madrid Plan of Action and its implementation

https://www.un.org/development/desa/ageing/madrid-plan-of-

action-and-its-implementation.html

kom (2019) 0257 - Ingen titel

Active-Ageing Index in Bilbao (Spain) in September 2018. This brought together researchers, civil society

representatives, policymakers and other stakeholders. The objective was to provide a multidisciplinary forum for

those interested in using the active-ageing Index to improve knowledge about ageing and older people with a

view to developing better policies.

Article 26

—

Integration of persons with disabilities

The Charter provides that the EU recognises and respects the right of people with disabilities to benefit from

measures designed to ensure their independence, social and occupational integration and participation in the life

of the community.

Policy

The Commission continues to pay attention to disability matters in the context of the European Pillar of Social

Rights. Principle 17 on the inclusion of person with disabilities recognises their right to income support that

ensures living in dignity, services that enable them to participate in the labour market and in society and a work

environment adapted to their needs.

251

. The Commission promotes its application in several Member States and

civil society, for example in the context of the High-Level Group on Disability.

Political agreement on the draft Directi

e o the app o i atio of Me e States la s, egulatio s a d

administrative provisions on the accessibility requirements for products and services

252

- the so-called European

Accessibility Act - was reached in November 2018. It highlights the role of the European Accessibility Act in

implementing the United Nations Convention on the Rights of Persons with Disabilities in a harmonised way

across the EU, as well as its contribution to implementing the Charter of Fundamental Rights.

The Commission organised the annual work forum on the implementation of the United Nations Convention on

the Rights of Persons with Disabilities to support the coherent implementation of the Convention in the EU. The

2018 forum addressed the following three areas:



health, habilitation and rehabilitation in the Convention,

knowing your rights: disability awareness and training programmes,

the ole of the Co e tio s Co

ittee.

As every year, the Commission continued to raise awareness of disability issues through a conference celebrating

the International Day of Persons with Disabilities, which it organises in cooperation with the European Disability

Forum. The 2018 event brought together a wide range of participants representing people with disabilities,

organisations and groups of people with disabilities, policymakers from the Member States, social partners,

251

European

Commission,

The

European

Pillar

Social

Rights

principles,

https://ec.europa.eu/commission/priorities/

252

Proposal for a Directive of the European Parliament and of the Council on the approximation of the laws,

regulations and administrative provisions of the Member States as regards the accessibility requirements for

products and services, COM/2015/0615 final - 2015/0278 (COD), 02.12.2015

kom (2019) 0257 - Ingen titel

disability and accessibility experts, academics and the European institutions. Discussion took place around three

main issues:



the path towards the new European disability strategy,

the question of how the next multiannual financial framework will contribute to

implementing the new strategy,

making cultural heritage accessible to all as part of the European Year of Cultural Heritage

2018.

Back-to-back with the European Day of Persons with Disabilities, the ninth Access City Awards took place in

Brussels. This award continues to promote accessibility in the urban environment, especially for elderly and

disabled people, and also recognises improvements made in this area by cities across the continent. In 2018, Lyon

(France) won the award.

The eight pilot projects on implementing the European Disability Card in Member States were finalised. The EU

card creates a system of voluntary mutual recognition of disability status and opens up the national benefits in

certain areas mainly related to culture, leisure, sports and transport. A study to assess the results of these eight

pilot projects was launched at the end of 2018 with a view to feeding the discussio

o the p oje ts possi le

continuation across the EU.

Finally, in the framework of the European Semester process, the Commission continues to monitor the situation

of people with disabilities in Member States, notably in the fields of employment, poverty and social inclusion and

education. In 2018, disability issues were more present both in the country reports issued by the Commission and

in the country-specific recommendations.

In 2017, the Mental Disability Advocacy Centre sent to the Commission a complaint about the alleged

mistreatment of people in the Hungarian Topház Special Home, suggesting violation of the Charter by an

institution which was awarded EU funding for its activities. The Commission analysed the case and assessed

whether, if a breach of the Charter could be established, it would have sufficient legal grounds to impose a

financial correction leading to the full or partial recovery of funds. In 2018, it was concluded that the treatment of

residents of the Topház Special Home did not constitute the implementation of EU law within the meaning of

Article 51 of the Charter and therefore the Charter was not applicable in this case. Furthermore, as EU funding

was used only to finance energy efficiency measures and not in the treatment of residents, there was no

irregularity that would justify a financial correction.

Nevertheless, the Commission contacted the responsible managing authority to remind it of its general

responsibilities when it comes to ensuring and contributing to the respect of fundamental rights in projects

selected. Furthermore, additional information was requested to ensure that the fundamental rights of Topház

Special Home residents were being fully respected.

Three other complaints, related to EU-funded projects in Greece and concerning alleged breaches of the rights of

people with disabilities to be integrated in the community, were also closed as the projects were considered as

not co-fi

a ed the EU s st u tu al fu ds.

kom (2019) 0257 - Ingen titel

kom (2019) 0257 - Ingen titel

Title IV

Solidarity

The Eu opea Platfo ta kli g u de la ed o k, lau hed i

, i gs togethe Me e States e fo e e t

authorities and social partners. The platform has already helped increasing knowledge and building Member

States apa it to ta kle u de la ed o

k through cooperation, joint action and mutual learning and contributed

to more effective EU and national action, in particular to:



promote integration in the labour market;

improve social inclusion;

reduce undeclared work and create formal jobs; and

ensure better law enforcement in these areas

253

Biennial report 2017-2018: Key results and achievements of the European Platform tackling undeclared work

https://ec.europa.eu/social/BlobServlet?docId=20472&langId=en

kom (2019) 0257 - Ingen titel

On 13 December, the Commission presented a

proposal to revise the EU legislation on social security

coordination

to facilitate labour mobility and ensure fairness for those who move and for taxpayers, increasing

the right to social security and social assistance.

The Eu opea Co

issio s p oposal fo a

European Social Fund+

(ESF+) will help to implement the three

chapters of the European Pillar of Social Rights, namely: (i) equal opportunities and access to labour market; (ii)

fair working conditions; and (iii) social protection and inclusion. EU funding for investing in people clearly

demonstrates EU values such as promoting equality, social fairness and social progress through concrete

measures to empower and protect. The overarching policy objective of the

European Social Fund+

Regulation is

to help eate a o e effi ie t a d esilie t So ial Eu ope a d i ple e t the Eu opea Pilla of So ial Rights a d

the social and employment priorities endorsed by the European economic governance process.

Article 27

— Workers’ right to information and consultation within the

undertaking

The Charter in Article 27 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.

Policy

P i iple

So ial dialogue a d i ol e e t of o ke s

254

of the European Pillar of Social Rights enshrines the

right for all workers in all sectors to be informed and consulted directly or through their representatives on

matters relevant to them. The Commission continues to monitor the effective implementation of all directives to

do with information and consultation. The legal monitoring is complemented by financial support to projects that

e ou age o ke s i ol e e t.

In May 2018, the Commission presented the evaluation of Directive 2009/38 establishing

European Works

Councils

(Recast Directive)

255

. European Works Councils are bodies representing European employees within

transnational companies. Through them, employees are informed and consulted by management on the progress

of the business and any significant EU decision that could affect their employment or working conditions. The

evaluation concluded that the provisions of the Recast Directive are generally consistent with Article 27 of the

Charter of Fundamental Rights. The evaluation revealed that most of the challenges to effective implementation

remain at company level. The Commission is therefore considering whether, in conjunction with the social

partners, to produce a practical handbook to support the creation and effectiveness of the European Works

Councils.

254

European

Commission,

The

European

Pillar

Social

Rights

principles,

https://ec.europa.eu/commission/priorities/

255

Directive 2009/38/EC of the European Parliament and of the Council of 6 May 2009 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 (Recast) COM(2018)292 final, 15.04.2018,

https://ec.europa.eu/transparency/

kom (2019) 0257 - Ingen titel

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 conflict 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

256

. Member States remain bound by the provisions of the Charter,

including the right to strike, in instances where they implement EU law.

Article 29

—

Right of access to placement services

Under Article 29 of the Charter, everyone has the right of access to a free placement service. This Article is based

on Article 1(3) of the European Social Charter and point 13 of the Community Charter of the Fundamental Social

Rights of Workers.

Article 30

—

Protection in the event of unjustified dismissal

According to Article 30, every worker has the right to protection against unjustified dismissal, in accordance with

EU law and national laws and practices. This Article draws on Article 24 of the revised Social Charter. It is given

effect by means of Directive 2001/23/EC on the safeguarding of employees' rights in the event of transfers of

undertakings, and Directive 2008/94/EC on the protection of employees in the event of the insolvency of their

employer, as amended by Directive 2002/74/EC.

Case law

In 2018, the Court of Justice of the European Union (CJEU) clarified the EU rules on the dismissal of pregnant

workers

257

. In

Porras Guisado

258

the Court ruled that the EU directive does not preclude national legislation that

allows an employer to dismiss a pregnant worker in the context of a collective redundancy. In such cases, the

employer must provide the dismissed pregnant worker with the reasons justifying the redundancy as well as the

objective criteria chosen to identify the workers to be dismissed.

Article 31

—

Fair and just working conditions

Article 31 guarantees that every worker has the right to working conditions that respect their health, safety and

dignity. Every worker has the right to a maximum number of working hours, daily and weekly rest periods and 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.

Article 153(5) TFEU stipulates that it does not apply to the right to strike.

Directive 92/85 EEC of 19 October 1992 on the introduction of measures to encourage improvements in the

safety and health at work of pregnant workers and workers who have recently given birth or are breastfeeding, OJ

L 348, 28.11.1992, p. 1–7,

https://eur-lex.europa.eu/legal-content/EN/TXT/?uri=celex%3A31992L0085

258

Judgment of 22 February 2018 in case C- 103/16,

Jessica Porras Guisado v Bankia SA and Others

257

256

kom (2019) 0257 - Ingen titel

Legislation

In 2018, the Commission took a series of measures following the adoption of the European Pillar of Social Rights

in 2017. In its preamble, the Pillar specifically refers to the Charter of Fundamental rights. The European Pillar of

Social Rights dedicates its second chapter, principles 5-

, to o ke s e title e t to fai o ki g o ditio s,

including decent wages and work environments free from health and safety risks

259

The proposal for a

Directive on the protection of workers from the risks related to exposure to carcinogens or

mutagens at work

260

ai s to i p o e the p ote tio of o ke s health a d safet .

On 23 January 2018, the Council adopted Directive (EU) 2018/131 implementing the Agreement concluded by the

European Community Shipowners' Associations and the European Transport Workers' Federation to amend

Directive 2009/13/EC in accordance with the 2014 amendments to the 2006 Maritime Labour Convention

approved by the International Labour Conference on 11 June 2014

261

. This Directive is fully in line with the Charter

of Fundamental Rights of the European Union and in particular with the right protected under Article 31 to fair

working conditions.

The oti e ehi d the EU legislato s suggestio s to a e d the Co

issio p oposals o the so ial a d

arket

ules i oad t a spo t as al a s to p ote t d i e s so ial ights a d to e su e that the f eedo to p o ide

cross-border services was applied fairly. The balance between the social protection rights and the rights to

conduct business has been maintained in the General Approach adopted by the Council on 3 December 2018. The

Council text suggests to further improve the resting conditions for drivers and to encourage the development of

safe and secure parking areas that allow drivers to rest comfortably and safely. It also strengthens the

Commission proposal that aims to ensure equal pay for equal work for drivers that mostly work abroad. The

amendments proposed by the Parliament also showed the attempts to ensure better and safer resting conditions

for drivers, including shorter periods away from home and work-life balance. However, the Parliament has not yet

reached an agreement on the compromise proposals.

Application by the Member States

In late 2015 and during 2016, there were several reports on cases of alleged abuses and forced labour of migrant

fishers in the EU fishing industry. Following these reports, the Member State concerned adopted various

measures to rectify the situation, including setting up a new recruitment scheme for non-EEA workers. Despite

these efforts, various international and national public and private bodies, including the Council of Europe, have

259

European

Commission,

The

European

Pillar

Social

Rights

principles,

https://ec.europa.eu/commission/priorities/

260

Proposal for a Directive of the European Parliament and of the Council amending Directive 2004/37/EC on the

protection of workers from the risks related to exposure to carcinogens or mutagens at work, COM(2018)0171,

05.04.2018

261

Directive 2018/131/EU of 23 January 2018 implementing the Agreement concluded by the European

Community Shipowners' Associations (ECSA) and the European Transport Workers' Federation (ETF) to amend

Directive 2009/13/EC in accordance with the amendments of 2014 to the Maritime Labour Convention, 2006, as

approved by the International Labour Conference on 11 June 2014 (Text with EEA relevance. ), OJ L 22, 26.1.2018,

p. 28.

kom (2019) 0257 - Ingen titel

continued to find shortcomings in the protection of migrant workers in the fisheries sector. The relevant

Commission departments held a meeting with the authorities of the Member State concerned to examine the

various aspects of the scheme, including from a human trafficking perspective. In 2018, a trade union started a

court case against the government of the Member State in question, claiming the scheme does not protect

workers from exploitation and human trafficking.

Case law

Max-Planck

262

and

Bauer

and

Willmeroth

263

the CJEU held that Article 31(2) of the Charter on the right to a

period of paid annual leave, is, as regards its very existence, both mandatory and unconditional in nature.

Provisions of EU or national law do not need to give a concrete expression to the right to paid annual leave. They

are only required to specify the exact duration of annual leave and, where appropriate, certain conditions for the

exercise of that right. It follows that that provision is sufficient in itself to confer on workers a right that they may

actually rely on in disputes between them and their employer in a field covered by EU law in order to disapply

national legislation that prevents a worker from receiving an allowance in lieu of the paid leave not taken.

Sindicatul Familia

Co sta ţa

264

, the CJEU stated that limitations to the right to periods of daily and weekly rest

as well as a period of paid annual leave, accorded to all workers by Article 31(2) of the Charter, may be provided

for in respect of the strict conditions set out in Article 52(1) of the Charter and, in particular, of the essential

content of those rights. In this case the Court concluded that the statutory limitations placed on the foster

pa e ts ight to pe iods of dail a d eekl est a d to paid a ual lea

e respect the essence of those rights. In

addition, they are necessary for achieving the public service objective, recognised by the EU, namely the

protection of the best interests of the child, which is enshrined in Article 24 of the Charter. On the latter provision

of the Charter, the Court added that the integration, on a continuous and long-term basis, into the home and

family of a foster parent, of children who, on account of their difficult family situation, are particularly vulnerable,

constitutes an appropriate measure to safeguard the best interests of the child.

Article 32

—

Prohibition of child labour and protection of young people at work

Article 32 prohibits the employment of children. The minimum age of admission to employment may not be lower

than the minimum school-leaving age, without prejudice to such rules as may be more favourable to young

people and except for limited derogations. Young people admitted to work must have working conditions

appropriate to their age and be protected against economic exploitation and any work likely to harm their safety,

health or physical, mental, moral or social development, or to interfere with their education.

This Article is based on Directive 94/33/EC on the protection of young people at work, Article 7 of the European

Social Charter and points 20 to 23 of the Community Charter of the Fundamental Social Rights of Workers.

262

Judgment of 6 November 2018, in case C-684/16

Max-Planck-Gesellschaft zur Förderung der Wissenschaften eV

v Tetsuji Shimizu

263

Judgment of 6 November 2018, in joined cases C-569/16 and C-570/16,

Stadt Wuppertal v Maria Elisabeth

Bauer and Volker Willmeroth v Martina Broßonn

264

Judgment of 20 November 2018, in case C-147/17

Si di atul Fa ilia Co sta ţa Di e ţia Ge e ală de Asiste ţă

So ială şi P ote ţia Copilului Co sta ţa

kom (2019) 0257 - Ingen titel

Article 33

—

Family and professional life

Article 33 stipulates that families should have legal, economic and social protection. To reconcile family and

professional life, everyone should have the right to protection from dismissal for a reason connected with

maternity and the right to paid maternity leave and parental leave following the birth or adoption of a child.

Article 34

—

Social security and social assistance

Article 34 of the Charter recognises and respects the entitlement to social security benefits and social services

providing protection in cases such as maternity, illness, industrial accidents, dependency or old age, and in the

case of loss of employment. Everyone residing and moving legally within the EU is entitled to social security

benefits and social advantages in line with EU law and national laws and practices.

In March 2018 the Commission made a proposal for a Council Recommendation on Access to Social Protection for

workers and the self-employed

265

. This initiative is one of the key deliverables under the European Pillar of Social

Rights. The objective is to support people in non-standard forms of employment and self-employment who, due

to their employment status, are not sufficiently covered by social security schemes and thus are exposed to

higher economic uncertainty. It encourages EU Member States to allow non-standard workers and the self-

employed to adhere to social security schemes (closing formal coverage gaps); take measures allowing them to

build up and take up adequate social benefits as members of a scheme (adequate effective coverage) and

facilitating the transfer of social security benefits between schemes; and increase transparency regarding social

security systems and rights. The Recommendation covers social security schemes for unemployment, sickness and

healthcare, maternity or paternity, accidents at work and occupational diseases, disability and old age. The

Recommendation was politically agreed by the Council in December 2018 and is awaiting final adoption.

Legislation

In 2018 the Commission continued to support the negotiations of the co-legislators on the proposal to revise the

EU legislation on social security coordination.

266

The proposal aims to facilitate labour mobility by protecting the

social security rights of those moving to another Member State, and ensure fairness for those who move and for

taxpayers.

Article 35

—

Healthcare

Article 35 of the Charter provides that everyone has the right of access to preventive healthcare and the right to

benefit from medical treatment under the conditions established by national laws and practices. A high level of

265

266

COM (2018) 132

Proposal for a Regulation amending Regulation (EC) No 883/2004 on the coordination of social security systems

and regulation (EC) No 987/2009 laying down the procedure for implementing Regulation (EC) No 883/2004,

COM

(2016) 815.

kom (2019) 0257 - Ingen titel

human health protection must be ensured in

the defi itio a d i ple e tatio of all the EU s poli ies a d

activities.

Legislation

On 31 January 2018 the Commission tabled a proposal for a

Regulation on health technology assessment

267

that

aims to contribute to a high level of human health protection and the better functioning of the internal market.

As mentioned in the Explanatory Memorandum, this proposal contributes to achieving a high level of human

health protection and is thus consistent with the Charter of Fundamental Rights in this regard. It effectively

applies the principle that a high level of health protection shall be ensured in the definition and implementation

of all of the EU s poli ies a d a ti ities.

The Commission also adopted a proposal for a

Regulation on the European Social Fund Plus (ESF+)

268

whose main

poli o je ti e is to eate a esilie t So ial Eu ope a d i ple e t the Eu opea Pilla of So ial Rights. ESF+

merges several EU programmes and instruments including the Health Programme. Accordingly, its aims include

promoting health and raising the standard of living and health as set out in the TFEU and the EU Charter of

Fundamental Rights.

The ESF+ has three strands. Its third strand concerns incentives designed to protect and improve human health

u de A ti le

TFEU, i o de to o ple e t Me e States a tio i li e ith the ele a t st ategies. I

pa ti ula , the health st a d of the ESF+ should o t i ute to disease p e e tio th oughout people s li es

and to

health promotion by addressing health risk factors, such as tobacco use, harmful use of alcohol, consumption of

illicit drugs, unhealthy dietary habits and physical inactivity. The health strand of the ESF+ should make broad use

of effective prevention models, innovative technologies and new business models and solutions to contribute to

innovative, efficient and sustainable health systems in the Member States and facilitate access to better and safer

healthcare for European citizens.

Policy

The Commission received a high number of Parliamentary Questions requesting legally binding EU legislation in

the area of health care. Topics raised included: (i) the protection of consumers and users of online gambling

services, particularly minors; (ii) health diagnosis and treatment; (iii) the psychiatric care system; (iv) the

management of patient care in hospitals; (v) the impact of austerity policies on the health of the population; (vi)

establishing an innovative, high-quality health system in the EU; and (vii) creating a minimum level of emergency

healthcare at EU level. In its replies, the Commission recalled that according to the Article 168(7) TFEU, Member

States are responsible for the definition of their health policy and for the organisation and delivery of health

services and medical care and that the Commission fully supports access to health services and medical care in all

Member States in line with Article 35 and other articles of the Charter.

Proposal for a Regulation of the European Parliament and of the Council on health technology assessment and

amending Directive 2011/24/EU (COM/2018/051), 31.1.2018.

268

Proposal for a Regulation of the European Parliament and of the Council on the European Social Fund Plus

(ESF+) (COM(2018) 382 final 30.5.2018).

267

kom (2019) 0257 - Ingen titel

In addition, as in 2017

269

, several measues and projects were carried out in 2018 and funded under the third EU

Health Programme 2014-2020

270

NATIONAL CASE LAW BOX

As in previous years, in the majority of the 2018 court decisions analysed, the question of whether or not and why the

271

Charter applied to the specific case in question remained unaddressed. For example, in Greece

the Athens

Pharmaceutical Association lodged a petition with the Council of State to annul ministerial decrees enabling military

pharmacies to sell medicines at a reduced price and exempting them from the minimum standards applying to private

pharmacies. The Pharmaceutical Association considered this special treatment to be discriminatory and to violate the

freedom of private pharmacies to provide services. The petitioners also claimed a violation of Article 35 (health care) of

the Charter, especially as non-pharmacists are not forbidden from working in military pharmacies. The Council of State

referred to Article 35 of the Charter as a ground to contest the regulatory framework applying to military pharmacies, but

did not elaborate on its applicability and rejected the complaint.

Article 36

—

Access to services of general economic interest

Article 36 of the Charter provides that the EU recognises and respects access to services of general economic

interest as provided for in national laws and practices, in line with the EU Treaties, in order to promote the social

and territorial cohesion of the EU.

Legislation

To lay the ground for implementing the

Directive on the accessibility of the websites and mobile applications of

public sector bodies

272

, Member States had to transpose the Web Accessibility Directive by 23 September 2018.

The directive aims to: (i) increase digital inclusion by ensuring that the websites and mobile applications of public

sector bodies are more accessible to users, in particular to people with disabilities; and (ii) improve the

functioning of the internal market by establishing common accessibility requirements, thus contributing to

building a social and inclusive European Union.

The common accessibility requirements will have a positive spill over effect on the accessibility market, making it

more competitive and thereby increasing the potential to provide accessible websites and mobile applications

beyond the public sector, for the benefit of people with disabilities and the elderly.

See further in the 2017 Annual report on the application of the EU Charter of Fundamental Rights, pp. 112-113.

Regulation (EU) No 282/2014 of the European Parliament and of the Council of 11 March 2014 on the

establishment of a third Programme for the Union's action in the field of health (2014-2020) and repealing

Decision No 1350/2007/EC Text with EEA relevance, OJ L 86, 21.3.2014, p. 1.

271

Greece, Council of State, case 311/2018, 8 February 2018.

272

Directive (EU) 2016/2102 of the European Parliament and of the Council of 26 October 2016 on the accessibility

of the websites and mobile applications of public sector bodies, OJ L 327, 2.12.2016, p. 1–15.

270

269

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In 2018, the Commission adopted two implementing

decisions under the directive establishing (i) a model

accessibility statement for websites and mobile applications of public sector bodies

273

; and

(ii) a monitoring

methodology and the arrangements for reporting by Member States

274

. The Commission also published the

references to the harmonised European standard in support of the directive

275

The directive contributes to: (i) the integration of people with disabilities

276

; (ii) non-discrimination

277

in the

access to public sector information and public services; (iii) the access to services of general economic interest

278

;

and (iv) the inclusion of the elderly to help them remain independent

279

Article 37

—

Environmental protection

Article 37 of the Charter provides that a high level of environmental protection and improving the quality of the

environment must be integrated into EU policies and ensured in line with the principle of sustainable

development.

Legislation

In 2018, the Commission adopted or put forward a number of proposals concerning CO2 emission standards. On

28 June 2018, the European Council and the Parliament adopted a

Regulation on the monitoring and reporting of

CO2 emissions and fuel consumption with respect to heavy-duty vehicles.

This Regulation lays down the

requirements for the monitoring and reporting of CO2 emissions from and fuel consumption of new heavy-duty

vehicles registered in the European Union

280

On 17 December 2018, the European Parliament and the Council reached a provisional agreement on the

issio s p oposal setti g e CO e issio sta da ds fo passe ge a s a d light o

e ial ehi les

(vans) in the European Union for the period after 2020. The provisional agreement is now being examined by the

co-legislators with a view to adoption.

273

Commission Implementing Decision (EU) 2018/1523 of 11 October 2018 establishing a model accessibility

statement in accordance with Directive (EU) 2016/2102 of the European Parliament and of the Council on the

accessibility of the websites and mobile applications of public sector bodies, OJ L 256, 12.10.2018, p. 103–107.

274

Commission Implementing Decision (EU) 2018/1524 of 11 October 2018 establishing a monitoring methodology

and the arrangements for reporting by Member States in accordance with Directive (EU) 2016/2102 of the

European Parliament and of the Council on the accessibility of the websites and mobile applications of public

sector bodies, OJ L 256, 12.10.2018, p. 108–116.

275

Commission Implementing Decision (EU) 2018/2048 of 20 December 2018 on the harmonised standard for

websites and mobile applications drafted in support of Directive (EU) 2016/2102 of the European Parliament and

of the Council, OJ L 327, 21.12.2018, p. 84–86.

276

See Article 26.

277

See Article 21.

278

See Article 36.

279

See Article 25 of the Charter on the rights of the elderly.

280

Regulation (EU) 2018/956 of the European Parliament and of the Council of 28 June 2018 on the monitoring and

reporting of CO2 emissions from and fuel consumption of new heavy-duty vehicles (OJ L 173, 9.7.2018, p. 1–15).

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The Eu opea Pa lia e t a d the Cou il a e also dis ussi g the Co

issio s legislati e p oposal adopted o

November 2017 setting new CO2 emission standards for the four main classes of heavy-duty vehicles (lorries) in

the EU from 2025, with a view to reaching a final agreement before the end of this legislative term.

In 2018, the co-legislators revised the EU Emissions Trading Scheme for 2021-2030, and adopted a Regulation to

limit post-2020 national emissions of greenhouse gases in sectors not covered by the EU Emissions Trading

Scheme

–

known as the Effort Sharing Regulation. In parallel, they adopted a Regulation to balance out emissions

and removals from land use, land use change and forestry and integrate them into the 2030 climate and energy

framework

281

. This legislation will enable the EU to deliver on its commitment to reduce its greenhouse gas

emissions by at least 40 % by 2030 compared to 1990.

The EU also raised the level of ambition on renewable energy and energy efficiency. The 32.5% energy efficiency

target (Article 1 of the revised Energy Efficiency Directive

282

) and the 32% renewable energy target (Article 3 of

the Renewable Energy Directive

283

) for 2030 are estimated to reduce greenhouse gas emissions by 45%, which

would allow the Union to largely meet its binding target to cut emissions by at least 40% below 1990 levels by

. To e su e p ope go e a e a d oo di ate Me e States a tio i those fields,

Regulation on the

Governance of the Energy Union and Climate action

was adopted

284

. The Regulation notably sets up a

comprehensive framework for energy and climate policies, including planning, reporting and monitoring

provisions to improve environmental protection among others. It requires that Member States draw up

integrated national energy and climate plans setting out their policies and measures until 2030 and to adopt long-

te st ategies. I this o te t, the EU s p og ess to a ds e e a les a d e

ergy efficiency has clear positive

environmental impacts.

The new Renewable Energy Directive also introduces a sectoral target of 14% of renewables in transport and, for

the first time, measures to promote renewables in the heating and cooling sector. Furthermore, the amended

Directive (EU) 2018/410 of the European Parliament and of the Council of 14 March 2018 amending Directive

2003/87/EC to enhance cost-effective emission reductions and low-carbon investments, and Decision (EU)

2015/1814 (OJ L 76, 19.3.2018, p. 3). Regulation (EU) 2018/841 of the European Parliament and of the Council of

30 May 2018 on the inclusion of greenhouse gas emissions and removals from land use, land use change and

forestry in the 2030 climate and energy framework, and amending Regulation (EU) No 525/2013 and Decision No

529/2013/EU (OJ L 156, 19.6.2018, p. 1). Regulation (EU) 2018/842 of the European Parliament and of the Council

of 30 May 2018 on binding annual greenhouse gas emission reductions by Member States from 2021 to 2030

contributing to climate action to meet commitments under the Paris Agreement and amending Regulation (EU) No

525/2013 (OJ L 156, 19.6.2018, p. 26).

282

Directive 2012/27/EU of the European Parliament and of the Council of 25 October 2012 on energy efficiency,

amending Directives 2009/125/EC and 2010/30/EU and repealing Directives 2004/8/EC and 2006/32/EC, as

amended by Directive (EU) 2018/2002 of the European Parliament and of the Council of 11 December 2018 (OJ L

328, 21.12.2018, p. 210)

283

Directive (EU) 2018/2001 of the European Parliament and of the Council of 11 December 2018 on the

promotion of the use of energy from renewable sources (OJ L 328, 21.12.2018, p. 82)

284

Regulation (EU) 2018/1999 of the European Parliament and of the Council of 11 December 2018 on the

Governance of the Energy Union and Climate Action, amending Regulations (EC) No 663/2009 and (EC) No

715/2009 of the European Parliament and of the Council, Directives 94/22/EC, 98/70/EC, 2009/31/EC, 2009/73/EC,

2010/31/EU, 2012/27/EU and 2013/30/EU of the European Parliament and of the Council, Council Directives

2009/119/EC and (EU) 2015/652 and repealing Regulation (EU) No 525/2013 of the European Parliament and of

the Council (OJ L 328, 21.12.2018, p. 1).

281

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Energy Performance of Buildings Directive

285

requires Member States to establish a long-term renovation strategy

to support the renovation of the building stock into a highly efficient and decarbonised building stock by 2050.

The increased use of renewable energy and further energy efficiency are essential to reduce greenhouse gas

emissions, in compliance with the 2015 Paris Agreement on Climate Change.

In 2018, the Commission presented several legislative proposals to ensure a high level of environmental

protection and meet the objective of 2030 sustainability agenda. In particular, in the area of agriculture the

proposal for a Common Agricultural Policy on Strategic Plans

286

promotes a higher level of environmental and

climate ambition across the EU by establishing general objectives for the common agricultural policy to further

improve the sustainable development of rural areas. Such objectives include: (i) contributing to climate change

mitigation and adaptation; (ii) fostering sustainable development and the efficient management of natural

resources such as water, soil and air; (iii) preserving habitats and landscapes; and (iv) encouraging the use of

sustainable sources of energy.

In addition, on 24 May 2018 the Commission adopted a

proposal for a Regulation on disclosures relating to

sustainable investments and sustainability risks

287

. This proposal aims for a high level of environmental

protection since its main objective is to encourage institutional investors and asset managers to integrate

sustainability in their investments. It provides for a disclosure framework as regards the integration and impacts

of investments on the real economy and their ability to stimulate and provide for the right incentives for

transitioning to a green, low-carbon and resource-efficient economy.

Policy

Environmental protection and climate-related goals play a prominent role in supporting the sustainable

de elop e t of u al a eas a d espo d to so iet s i easi g de a ds fo e i o e tal se i es. U

der the

European Agricultural Fund for Rural Development, for the 2014-2020 programming period a minimum of 30% of

each rural development programme is earmarked for environmenal protection and climate change mitigation and

adaptation measures.

On 28 November 2018, the Commission presented its strategic long-term vision for a prosperous, modern,

competitive and climate-neutral economy by 2050 -

A Clea Pla et fo All

288

. This set out how the EU can lead

285

Directive 2010/31/EU of the European Parliament and of the Council of 19 May 2010 on the energy

performance of buildings, as amended by Directive (EU) 2018/844 of the European Parliament and of the Council

of 30 May 2018 (OJ L 156, 19.6.2018, p. 75)

286

COM (2018)392 Proposal for a Regulation of the European Parliament and of the Council establishing rules on

support for strategic plans to be drawn up by Member States under the Common agricultural policy (CAP Strategic

Plans) and financed by the European Agricultural Guarantee Fund (EAGF) and by the European Agricultural Fund

for Rural Development (EAFRD) and repealing Regulation (EU) No 1305/2013 of the European Parliament and of

the Council and Regulation (EU) No 1307/2013 of the European Parliament and of the Council, in particular

Articles 5,6,92 and 123.

287

Proposal for a Regulation of the European Parliament and of the Council on disclosures relating to sustainable

investments and sustainability risks and amending Directive (EU) 2016/2341, adopted on 24.5.2018, COM(2018)

354 final, 2018/0179 (COD).

288

Clean Planet for all - A European strategic long-term vision for a prosperous, modern, competitive and climate

neutral economy (COM(2018) 773 final), :

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the way to climate neutrality by: (i) investing in realistic technological solutions; (ii) empowering citizens; and (iii)

aligning action in key areas such as industrial policy, finance and research, while ensuring a transition that is fair

to all. The Co

issio s st ategi isio is a i itatio to all EU

institutions, national parliaments, the business

sector, non-governmental organisations, cities, communities, and citizens - especially young people, to help

ensure that the EU can continue to show leadership and encourage other international partners to do the same.

All such policy initiatives that aim to increase the use of renewable energy and energy efficiency play an essential

role in reducing greenhouse gas emissions, in compliance with the 2015 Paris Agreement on Climate Change.

Case law

On 29 November 2018, Advocate General Kokott issued her opinion in the preliminary ruling request from the

Belgium Constitutional Court in the case

Inter-Environnement Wallonie and Bond Beter Leefmilieu Vlaanderen

289

The case was brought by Inter-Environnment Wallonie, which challenged the life extension of two nuclear power

plants in Belgium arguing that the decision had not been preceded by the relevant impact assessment and public

involvement required by the Environmental Impact Assessment Directive, the Habitats Directive, the Espoo

Convention (on impact assessment of activities with transboundary effects) and the Aarhus Convention (on

information and participation of the public on decision making). The Belgium Constitutional Court referred a

number of questions to the Court of Justice on the application of those pieces of legislation in the nuclear field,

and on the relevance of security of energy supply in this context. In her opinion, Advocate General Kokott

addressed the principle of environmental protection and makes a direct reference to Article 47 of the Charter

290

Article 38

—

Consumer protection

Article 38 of the Charter provides that EU policies must ensure a high level of consumer protection, giving

guidance to the EU institutions when drafting and applying EU legislation.

Legislation

In April 2018, the Commission adopted a

New Deal for Consumers

291

, including two legislative proposals. The

proposal for a

Directive on representative actions for the protection of the collective interests of consumers

292

provides a means for non-profit organisations designated as qualified entities to request courts or administrative

authorities to stop illegal practices and order redress where justified. This proposal aims to address mass harm

situations where the collective interest of consumers is at stake.

https://ec.europa.eu/clima/sites/clima/files/docs/pages/com_2018_733_en.pdf

Request for a preliminary ruling from the Cour constitutionnelle (Constitutional Court, Belgium) lodged on 7 July

2017 in case C-411/17

Inter-Environnement Wallonie and Bond Beter Leefmilieu Vlaanderen v Conseil des

ministres.

290

See Article 47.

291

See the relevant factsheets for more information:

https://ec.europa.eu/info/law/law-topic/consumers/review-

eu-consumer-law-new-deal-consumers_en

292

Proposal for a Directive of the European Parliament and of the Council on representative actions for the

protection of the collective interests of consumers, and repealing Directive 2009/22/EC, COM(2018) 184 final,

11.4.2018.

289

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The second proposal

293

focuses on intensified enforcement and on modernising several existing directives in light

of market developments, in particular the digital economy. For example, consumers should have the right to

individual remedies (such as financial compensation) when they are affected by aggressive, misleading or

otherwise unfair commercial practices. Moreover, it is proposed that national authorities should have the power

to impose more effective, proportionate and dissuasive penalties, especially for widespread infringements that

affect consumers in several Member States, for which national authorities will have the power to impose a fine of

at least up to % of the t ade s tu o e . Both p oposals the efo e help to e su e a high le el of o su e

protection

294

and help consumers exercise their right to an effective remedy

295

. Furthermore, safeguards in the

Representative actions proposal and burden reduction and modernisation measures in the other proposal

contribute to the freedom to conduct business

296

Following up on its guidelines of September 2017, in 2018 the Commission proposed in the New Deal for

Consumers to update the Unfair Commercial Practices Directive to explicitly set out that national authorities can

assess and address misleading commercial practices involving inaccurate claims that a product is identical to that

sold in other EU countries, if their composition or characteristics are significantly different. The aim is to restore

itize s o fide e a d t ust i the Si gle Ma ket, espe iall i Ce t al and

Eastern Europe, following claims on

differences in the quality of food products sold across the EU. The Commission held consumer dialogues in 27

Me e States to e plai its p oposals a d seek stakeholde s feed a k. Mo e tha

people pa ti ipated in

these events.

The

Directive establishing the European Electronic Communications Code

297

was published and entered into

force at the end of 2018. . Provisions on the promotion of the internal market, including the ban on discriminatory

requirements or conditions of access or use to end-users, take full account of the fundamental rights and

principles recognised by the Charter of Fundamental Rights of the EU. The proposed measures aim to achieve

higher levels of connectivity with a modernised set of end-user protection rules. This will in turn: (i) ensure non-

discriminatory access to any contents and services, including public services; (ii) help promote freedom of

expression and of doing business; and (iii) enable Member States to comply with the Charter at a much lower cost

in the future. Furthermore, the fundamental rights safeguard

298

of the Directive sets out that national measures

on end-users access to or use of services and applications through electronic communications networks should

respect the Charter.

The Code will provide stronger consumer protection in areas where general consumer protection rules do not

address the sector-specific needs. Updated rules make it easier to switch suppliers when consumers are signed up

to bundles (packages combining internet, phone, TV, mobile, etc.) and ensuring that vulnerable groups (like the

elderly, people with disabilities and those receiving social assistance) have the right to affordable internet

Proposal for a Directive of the European Parliament and of the Council amending Council Directive 93/13/EEC of

5 April 1993, Directive 98/6/EC of the European Parliament and of the Council, Directive 2005/29/EC of the

European Parliament and of the Council and Directive 2011/83/EU of the European Parliament and of the Council

as regards better enforcement and modernization of EU consumer protection, COM(2018) 185 final, 11.4.2018.

294

See Article 38.

295

See Article 47.

296

See Article 16.

297

Directive (EU) 2018/1972 of the European Parliament and of the Council establishing the European Electronic

Communications Code, OJ L 321, 17.12.2018, p. 36–214.

298

See Article 100 of the Directive.

293

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contracts

299

. The Directive also sets requirements to ensure equivalent access and choice for people with

disabilities. It will also support a safer online environment for users and fairer rules for all. Selected rules are

extended to new online business operators, which offer equivalent services to traditional operators, to ensure

that security requirements (making sure networks and servers are secure) apply. A regulation

300

was also

published ensuring that prices of international communications within the Union do not exceed a safety cap

starting 15

May 2019 (with exceptionnal derogations).

Provisions on the promotion of the internal market, including the ban on discriminatory requirements or

conditions of access or use to end-users, support Articles 16 and 21 of the Charter

301

Policy

In 2018 the Commission worked actively to ensure the correct and effective implementation of various consumer

law directives. This has helped ensure a high level of consumer protection throughout the EU. Among others, the

Commission opened infringement proceedings against 14 Member States for failure to transpose the 2015

Package Travel and Linked Travel Arrangements Directive

302

into their national laws on time. All Member States

but one have now notified their transposition measures. The Commission continued its compliance checks of

national transposition measures, particularly of the

Consumer Rights Directive

303

and of the

Unfair Commercial

Practices Directive

304

. For the Unfair Commercial Practices Directive, three further infringement procedures were

closed in 2018 due to satisfactory legislative amendments by the relevant Member States, while six cases were

still open at the end of 2018. Regarding the Consumer Rights Directive, five infringement procedures were open

at the end of 2018. In addition, one infringement case is open for failure to ensure full and correct

implementation of the

Unfair Contract Terms Directive

305

, in accordance with the relevant CJEU case law.

The Commission was involved in a number of joint actions with national bodies to enforce consumer protection

ules i

. Follo i g the 'dieselgate e issio s a

dal, Volkswagen committed itself to continuing the repairs

free of charge until the end of 2020. In July 2018, 80% of affected cars had been repaired. Another joint action

involving Facebook, Twitter and Google+ resulted in improved terms of service for more than 250 million social

See Articles 11 and 26.

Regulation (EU) 2018/1971 of the European Parliament and of the Council of 11 December 2018 establishing

the Body of European Regulators for Electronic Communications (BEREC) and the Agency for Support for BEREC

(BEREC Office) OJ L 321, 17.12.2018, p. 1–35

301

See Articles 11 and 26.

302

Directive (EU) 2015/2302 of the European Parliament and of the Council of 25 November 2015 on package

travel and linked travel arrangements, amending Regulation (EC) No 2006/2004 and Directive 2011/83/EU of the

European Parliament and of the Council and repealing Council Directive 90/314/EEC, OJ L 326, 11.12.2015, p. 1.

303

Directive 2011/83/EU of the European Parliament and of the Council on consumer rights, amending Council

Directive 93/13/EEC and Directive 1999/44/EC of the European Parliament and of the Council and repealing

Council Directive 85/577/EEC and Directive 97/7/EC of the European Parliament and of the Council, OJ L 304,

22.11.2011, p. 64–88.

304

Directive 2005/29/EC of the European Parliament and of the Council 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. 22–39.

305

Council Directive 93/13/EEC.

300

299

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media users in the EU. In 2018, action began against AirBnB to improve the transparency of their pricing and bring

their terms of service in line with EU standards.

The Commission continued to work against misleading commercial practices, such as those involving the

marketing of products as being identical to those sold in other EU countries when in fact their composition or

characteristics are significantly different, including by proposing to clarify the applicable EU law within the New

Deal for Consumers initiative. In addition, the Commission released a common testing methodology developed

with industry. The national authorities are currently implementing the methodology in an EU-wide testing

campaign under the coordination of

the Co

issio s Joi t Resea h Ce t e.

During 2018, the Commission also introduced comprehensive measures to ensure the effective application of EU

legislation on consumer alternative dispute resolution and online dispute resolution, including by improving the

European Online Dispute Resolution platform and by hosting the first-ever Alternative Dispute Resolution

Assembly in June 2018 (a two-day networking event with more than 350 participants from the European

Alternative Dispute Resolution community). In December 2018, the Commission published the second report on

the European Online Dispute Resolution platform. The platform was launched in February 2016, and has since

helped consumers and traders to resolve their disputes online without going to court by connecting them with

quality-certified alternative (i.e. out-of-court) dispute resolution bodies.

In 2018, the Commission helped ensure a high level of consumer protection on financial services by implementing

the consumer financial services action plan and by ensuring the effective application by the Member

States of the EU legislation protecting consumer rights such as the

Mortgage Credit Directive

306

. The Commission

has also continued to support the network of national ombudsmen in financial services - the FIN-NET network -

which provides consumers with easy access to out-of-court dispute resolution in cross-border cases.

Case law

A recurrent issue addressed by the CJEU is the compatibility of national rules of civil procedure with the right to

an effective remedy resulting from Article 7 of the Unfair Contract Terms Directive

307

and enshrined in Article 47

of the Charter

308

. In

Profi Credit Polska

309

and

PKO

310

the CJEU confirmed its case law on effective remedies

against unfair contract terms. In relation to payment order proceedings, based on a promissory note or a bank

ledger excerpt, directed against consumers, it found that - where there is a significant risk that consumers will not

object to a payment order - national rules that prevent national courts from assessing the unfairness of relevant

contract terms of their own motion before issuing the payment order do not comply with the Unfair Contract

Terms Directive. Such significant risk can be created by procedural obstacles, for instance, a time-limit of only 2

306

Directive 2014/17/EU of the European Parliament and of the Council on credit agreements for consumers

relating to residential immovable property and amending Directives 2008/48/EC and 2013/36/EU and Regulation

(EU) No 1093/2010, OJ L 60, 28.2.2014, p. 34–85.

307

Council Directive 93/13/EEC on unfair terms in consumer contracts, OJ L 95, 21.4.1993, p. 29–34

308

See Article 47

309

Judgment of 13 September 2018 in case C-176/17,

Profi Credit Polska S.A. w Bielsku Bialej v Mariusz

Wawrzosek.

310

Order of 28 November 2018 in case C-632/17,

Powszechna Kasa Oszczᶒd

oś i PKO Ba k Polski S.A. Ja ek

Michalski.

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weeks to present all necessary factual and legal elements, or rules on court fees that may deter consumers from

lodging an objection, or the limited knowledge and information of consumers.

OTP Bank

311

the Court found that a standard contract term relating to the exchange rate risk in a foreign-

currency denominated mortgage loan agreement is not excluded from the scope of the Unfair Contract Terms

Directive, even if national law contains mandatory provisions on the exchange rate mechanism. Confirming the

Andriciuc

case

312

the CJEU found that the unfairness of such contract terms is to be assessed if the bank did not

inform the borrower that they are exposing themselves to a certain foreign currency exchange rate risk which

will, potentially, be difficult to bear in the event of a depreciation of the currency in which they receive their

income and failed to set out the possible variations in the exchange rate and the risks inherent in taking out a loan

in a foreign currency.

Letters

Justice

23%

Citizens' rights

12%

Other

Solidarity

Dignity

Consumer protection

Equality

12%

Freedoms

38%

Judgment of 20 September 2018 in case C-51/17,

OTP Bank Nyrt., OTP factoring Követeléskezelö Zrt. V Teréz

Ilyés, Emil Kiss.

312

Judgment of 20 September 2017 in case C-186/16,

Ru a d a Paula A d i iu a d Othe s Ba a Ro â eas ă.

311

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Questions

Ci ti zens' ri ghts

21%

Jus ti ce

11%

Other 1%

Ri ght of collective

ba rgaining 0,5%

Fa i r a nd Just working

condi tions 0,5%

Hea th care 2%

Envi ronment

protecti on

Sol idarity

17%

Equa lity

27%

Di gnity

Freedoms

18%

Cons umer protection

kom (2019) 0257 - Ingen titel

Title V

Citizens’ rights

In March 2018, the Commission published the findings of a dedicated public consultation and two Eurobarometer

surveys on EU citizenship, including one on electoral rights. It looked at

people s

experiences and views as to how

their rights as EU citizens are protected and enjoyed, what could be done to promote democratic participation

and common EU values further, and how the EU could make their lives easier. This fed into the preparation of the

issio s

EU Citizenship Report,

putting forward concrete proposals for promoting, protecting and

strengthening EU citizenship rights.

In April 2018, the Commission adopted a new

proposal on the security features of identity cards and residence

documents,

which seeks to facilitate the freedom of EU citizens to move and reside freely within the territory of

the Member States enshrined in Article 45 of the Charter

313

In May 2018, the Commission adopted a

proposal on EU emergency travel documents

which seeks to facilitate

EU citizens' right to diplomatic and consular protection.

In September 2018, the Commission presented a package of concrete

measures to secure free and fair elections

to the European Parliament,

including greater transparency in online political advertisements and

communication, measures to protect against cyber threats, awareness-raising activities and a legal proposal on

the possibility of imposing sanctions for the illegal use of personal data in order to deliberately influence the

outcome of the European Parliament elections as well guidance on the application of EU data protection rules in

the electoral context.

Following the

UK s

referendum on its membership of the EU, there was considerable interest in the impact of the

outcome on the rights protected under Chapter V of the Charter. Almost half of the more than 70 petitions

received on the referendum related to citizenship and citizenship rights. Many of the over 100 questions from the

European Parliament to the Commission on this subject also raised issues of citizenship. Following the

referendum, the Commission received many hundreds of related enquiries and letters from citizens, covering a

variety of subjects and views.

The withdrawal of the United Kingdom from the European Union continued to be a main concern of citizens.

Safeguarding the status and rights derived from EU law at the date of withdrawal of EU citizens and UK nationals,

and their families, was an essential objective of the

EU s

negotiations with the United Kingdom. In November

2018, the EU and UK reached agreement on a

draft Withdrawal Agreement

egotiato s

level, which was then

endorsed by the European Council (Article 50) on 25 November 2018. The draft Withdrawal Agreement enshrines

in legal form the understanding reached in the December 2017 joint report that those EU and UK citizens who

have exercised their right to move and reside freely in accordance with EU law in the host country at the end of a

defined transition period following the

UK s

withdrawal will have the right to stay in the their respective host

313

See Article 45

kom (2019) 0257 - Ingen titel

countries and continue to enjoy the plethora of free movement rights including the right to equal treatment

and the right to work, study or run a business. These rights also cover the family members of the EU and UK

citizens concerned. One important principle that the Agreement safeguards is that its concepts and rules will need

to be interpreted using the methods and general principles of interpretation applicable in EU law. This covers, for

instance, the obligation to interpret the concepts or provisions of EU law referred to in the Withdrawal

Agreement in a manner consistent with the Charter of Fundamental Rights. This will be particularly important in

applying the

itize s

rights part of the Agreement. The Withdrawal Agreement still needs to be formally

approved by both the EU and the UK, before it can enter into force.

Article 39

—

Right to vote and stand as a candidate at elections to the European

Parliament

Article 39 of the Charter and Article 20 (2) b of the 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 and policy

On 12 September 2018, the Commission issues a package of concrete measures, including greater transparency in

online political advertisements. The package contains:



a chapeau

Communication on securing fair and free European elections,

which sets out the issues

314

;

guidance on data protection rules

for all participants in the elections process, to provide additional

indications on how to work with personal data in an elections context

315

;

a Recommendation

on election cooperation networks, online transparency, protection against

cybersecurity incidents and fighting disinformation campaigns

316

a proposal to amend the Regulation on the statute and funding of European political parties and

foundations,

including the possibility of imposing sanctions for the illegal use of personal data in order to

deliberately influence the outcome of the European elections

317

The Commission recommended that Member States and national and European political parties, foundations and

campaign organisations take steps to:



314

315

promote greater transparency in online political advertisements and communication

apply sanctions in the relevant electoral context

prevent and respond to cyber threats and

https://eur-lex.europa.eu/legal-content/EN/TXT/?qid=1537434682871&uri=CELEX%3A52018DC0637

https://ec.europa.eu/commission/sites/beta-political/files/soteu2018-data-protection-law-electoral-guidance-

638_en.pdf

316

https://ec.europa.eu/commission/sites/beta-political/files/soteu2018-cybersecurity-elections-

recommendation-5949_en.pdf

317

Regulation 1141/2014 of the European Parliament and of the Council on the statute and funding of European

political parties and European political foundations, OJ L 317, 4.11.2014, p. 1–27

kom (2019) 0257 - Ingen titel



sanction cases of infringements of rules on the protection of personal data being used to deliberately

influence or attempt to influence the elections to the European Parliament.

It also recommended that Member States engage with third parties in awareness-raising activities to increase

the transparency of elections and build trust in the electoral processes. Guidance is also provided on the

application of data protection safeguards in the electoral context.

The Commission furthermore recommended that Member States set up national election cooperation networks

of relevant authorities

–

covering areas such as elections, cybersecurity, data protection, media and, where

necessary, liaising with law enforcement authorities

–

in order to support national authorities in their respective

electoral tasks, by facilitating the swift, secured exchange of information on issues that might affect the elections

to the European Parliament. This includes jointly identifying threats and gaps, sharing findings and expertise, and

liaising on the online application and enforcement of relevant rules.

The Co

issio also e ou aged Me e States to eet as soo as possi le, ith the Co

issio s suppo t, i

a European coordination network focusing on the elections to the European Parliament, so as to be best

prepared to protect the 2019 elections. This European coordination network, convened by the Commission,

brings together contact points designated by the Member States.

All the measures in the package are framed to fully respect the rule of law and fundamental rights, including the

freedoms of association and expression

318

The Commission organised an event on democratic participation and electoral matters on 25-26 April 2018 to

improve democratic participation in the EU.

The fourth Annual Colloquium on Fundamental Rights dedicated to Democracy in Europe was organised on 26-27

November 2018. It focused on encouraging best practice to increase participation by young people and

vulnerable and underrepresented groups.

Application by Member States

The Commission has continued its dialogue with a number of Member States on their implementation of

European electoral law.

In particular, the Commission sent a reasoned opinion to a Member State on mobile EU citizens' right to become

member of a political party there, as the law of that Member State did not allow citizens of other EU countries

living there to join a political party under the same conditions as its own nationals. This relates to discrimination

against non-national EU citizens, in particular those who have been resident for less than 5 years or whose

residence has been interrupted.

318

See Articles 39 and 40.

kom (2019) 0257 - Ingen titel

Dialogues were successfully closed with three other Member States following legislative amendments to address

the Co

issio s o e s.

Article 40

—

Right to vote and to stand as a candidate at municipal elections

According to Article 40 of the Charter, every citizen of the EU has the right to vote and to stand as a candidate at

municipal elections in the Member State in which he or she resides, under the same conditions as nationals of

that State.

Article 41

—

Right to good administration

According to Article 41 of the Charter, every person 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 EU. This includes the right

to be heard, have access to his or her file, receive reasons for a decision, address the EU administration in one of

the languages of the Treaties and receive a reply in the same language, and a right to be compensated for

damages caused by the institutions or its staff.

"Revolving doors" phenomenon

The issue of people recruited by the EU institutions, often from the private sector, and staff leaving the

institutions (e.g. at the end of a contract or on retirement) taking up new employment in the private sector is

ofte efe ed to as the e ol i g doo s issue. It a aise o e s ith ega d to the i depe de e a d

objectivity of the administration of the EU institutions. The Ombudsman carried out an inquiry into the issue in

2014. In 2017, the Ombudsman opened a follow-up

i ui , as oted i last ea s epo t. This i ui

as still

ongoing in 2018.

"Code of Conduct for Commissioners/Role of the ad hoc Ethical Committee"

The Commission adopted a new Code of Conduct for the Members of the Commission in 2018, creating a new

Independent Ethical Committee. An inquiry by the European Ombudsman, which began in 2017 and which was

e tio ed i last ea s epo t, e a i ed the p e ious

Code of Conduct, post-mandate employment of former

Commissioners, the role of the ad hoc Ethical Committee and the new role of a former Commission President.

This inquiry closed in 2018

319

Legislation

The Co

issio s legislati e

proposal for EU funding policies

under shared management for the post-2020

period

320

provides that Member State should ensure effective examination of complaints in relation to the funds

(proposed Article 63(6)). This gives effect to Article 41 of the Charter.

Detailed information and the entire e

ha ge of o espo de e a e fou d o the Eu opea O uds a s

website: https://www.ombudsman.europa.eu/fr/decision/en/99946

320

Proposal for a Regulation of the European Parliament and of the Council laying down common provisions

319

kom (2019) 0257 - Ingen titel

Case law

The respect of the right enshrined in Article 41(2)(a) of the Charter was raised in the

Goldman Sachs

321

case

regarding the right of the parties to have the opportunity to make known their views on the truth and relevance

of the facts and circumstances and on the documents used by the Commission to support its claim that the Treaty

has been infringed. In the case, the applicant claimed that its right of defence had been breached because certain

documents had not been disclosed. The court recalled that, under Article 27(1) of Regulation 1/2003

on the

implementation of the rules on competition

322

, the Commission must hear the parties on the matters to which

the ha e take o je tio a d that the Co

issio s de isio s ust e ased o l o o je tio s o

hi h the

parties concerned have been able to comment. However, the failure to provide access to a document constitutes

a breach of the right of defence only if the applicant can show that the Commission relied on that document to

support its objection concerning the existence of an objection, and that the proof necessary for demonstrating

the merits of that objection could be adduced only by reference to that document. In this case, the General Court

concluded that the Commission had not denied access to the docume

ts o e ed a d the efo e the appli a t s

rights had not been breached.

In the

Prysmian

323

case, the applicant claimed that the length of the procedure (nearly 62 months) was

unreasonable and in breach of Article 41(1) of the Charter. Affirming that the obligation to conduct administrative

procedures within a reasonable time is also a general principle of EU law

324

), the General Court recalled that this

obligation must be assessed in relation to the individual circumstances of each case. In particular, these include its

context, the conduct of the parties during the procedure, what is at stake for the various undertakings concerned

and its complexity. The Court also recalled that, in matters relating to competition policy, the administrative

procedure may involve an examination in two successive stages and thus, the assessment of any interference

with the exercise of the rights of defence must extend to the whole procedure and not only to the second phase

where the rights of defence may be fully exercised. Finally, the Court pointed out that, according to settled case

law, a failure to comply with the obligation to adopt a decision within a reasonable time can affect the validity of

the administrative procedure under Regulation 1/2003 only where it is proved that the breach of the reasonable

time principle has adversely affected the rights of defence of the undertakings concerned. In this case, the

General Court concluded that the length of the procedure was not excessive in the circumstances and that, even

if it were to have been, this would be insufficient to conclude that the contested decision should be annulled.

In the

NKT Verwaltungs and NKT

325

case, the applicants alleged breaches of the right of defence and the principle

of equality of arms enshrined in Articles 41 and 47 of the Charter

326

. According to the applicant, the Commission

had breached those rights

inter alia

by not disclosing evidence post-dating the statement of objections, which, on

balance of probabilities, contained exculpatory evidence. The evidence had been submitted by other addressees

on the European Regional Development Fund, the European Social Fund Plus, the Cohesion Fund, and the

European Maritime and Fisheries Fund and financial rules for those and for the Asylum and Migration Fund,

the Internal Security Fund and the Border Management and Visa Instrument, COM(2018)375, 29.5.2018.

321

Judgment of 12 July 2018 in case T-419/14,

the Goldman Sachs Group, Inc. v Commission

322

Council Regulation 1/2003 on the implementation of the rules on competition laid down in Articles 81 and 82 of

the Treaty, OJ L 1, 4.1.2003, p. 1–25.

323

Judgment of 12 July 2018 in case T-475/14,

Prysmian SpA and Prysmian Cavi e Sistemi Srl v Commission

324

Judgment of 19 December 2012 in case C-452/11P,

Heineken Nederland and Heineken v Commission

325

Judgment of 12 July 2018 in case T-447/14

NKT Verwaltungs and NKT v Commission

326

See Article 47

kom (2019) 0257 - Ingen titel

in their replies to the statement of objections. The General Court recalls that, in accordance with the case law, the

right of access to the file means that the Commission must allow the defence the opportunity to examine all the

documents in the investigative file which may be relevant for its defence, including both incriminating and

exculpatory evidence, with the exception of business secrets, internal documents of the Commission or other

confidential information.

The pa ties ight does ot e te d to the eplies to the state e t of o je tio s. Ne e theless, the e a e

circumstances in which it may apply. First, if the Commission wants to rely on a passage from a reply to the

statement of objections or on a document annexed to such reply in order to prove the existence of an

infringement under Article 101(1) TFEU, the parties must be given the possibility to express their views on such

incriminating evidence. By analogy, if a passage in a reply to a statement of objections may be relevant for the

defence of an undertaking because it enables it to invoke evidence which is not consistent with the allegations of

the Co

issio , su h e ide e ould e e ulpato a d the u de taki g o e ed ust e autho ised to

e a i e the passage o do u e t a d e p ess its ie the eo

327

. However, the Court concluded that the non-

disclosure of evidence which may

e atego ised as e ulpato

a o l i f i ge the ights of defe e if the

pa t o e ed sho s that the do u e t ould ha e ee useful fo its defe e . A o di g to ase la , it is fo

the applicant to adduce

prima facie

evidence that the undisclosed documents would be useful for their

defence

328

In the

Consorzio di garanzia dell'olioextra vergine di oliva di qualità

329

case

, the applicant claimed ( in addition to

other issues) that the Commission had violated its right to good administration due to the lack of coordination

between the Commission staff responsible for managing two simultaneous promotion campaigns in non-EU

countries for olive oil, one financed by the European Agricultural Guarantee Fund (EAGF), and the other financed

by the European Agricultural Fund for Rural Development. The Court dismissed the application for damages,

finding that none of the applicable rules in this case provided for the obligation to coordinate campaigns and

programmes taking place in non-EU countries, so that there could not be a violation of the right to good

administration due to lack of coordination.

In the Bankwatch Network

330

case, relating to documents relating to a Commission decision on granting a

Euratom loan to support the Ukrainian programme to upgrade the safety of nuclear power units, the Court

recalled that

the ight of a ess to do u e ts has ee upg aded to a fu da e tal ight u de A ti le

of the

Charter of Fundamental Rights and that, under Article 6(3) EU, the fundamental rights as they result from the

constitutional traditions common to the Member States, have the value of general principles of law in the EU

legal o de .

In the

CRM Srl

331

case, relating to a motion brought by CRM Srl. to annul Commission Implementing Regulation

(EU) No 1174/2014 entering a name in the register of protected designations of origin and protected geographical

indications (Piadina Romagnola/Piada Romagnola12), the applicant argued that the Commission violated the right

Judgment of 12 July 2011 in case T-113/07

Toshiba v Commission,

paragraph 44

Judgment of 14 March 2013 in case T 587/08

Fresh Del Monte Produce v Commission,

paragraph 690

329

Judgment of 31 May 2018 in case T-163/17,

Consorzio di garanzia dell'olio extra vergine di oliva di qualità v

European Commission

330

Judgment of 27 February 2018 in case T-307/16,CEE

Bankwatch Network v European Commission

331

Judgment of 23 April 2018, in case T-43/15,

CRM Srl v European Commission

328

327

kom (2019) 0257 - Ingen titel

to good administration in its appreciation of the conditions for registration of the contested Piadina

Romagnola/Piada Romagnola. It argued in particular that, at the time of the adoption of the contested regulation,

the Commission ignored the fact that TAR Lazio had partially cancelled the specification attached to the request.

The Court found that the Commission unlawfully granted the application for registration and acted in breach of its

duty to examine the file and the principle of good administration. However, it dismissed the action on the

grounds that such a procedural violation cannot constitute a violation of the right to effective judicial protection

within the meaning of Articles 6 and 13 of the ECHR and Article 47 of the Charter

332

In the

Fruits de Ponent, SCCL

333

case, relating to an action for damages following the adoption of Commission

delegated Regulations

334

, Fruits de Ponent SCCL argued that the withdrawal mechanism was objectively

inadequate, arbitrary and contrary to Article 41 of the Charter, in that the Commission failed to bring together in

a diligent manner the facts essential to the exercise of its wide discretion, the duty of care, the duty of assistance,

and the principles of protection and good administration. The action was dismissed on the grounds that the

withdrawal mechanism in the complaint was not objectively inadequate, arbitrary and contrary to Article 41 of

the Charter.

Application by Member States

The Commission launched infringement proceedings against a Member State, specifically referring to a violation

of the right to good administration, in connection with the right of applicants for long-term resident status under

the Directive concerning the status of third-country nationals who are long-term residents

335

to be provided with

the reasons for the rejection of their applications.

The violation of the right to good administration was a recurring grievance in a number of complaints received by

the Commission from citizens on the implementation of EU instruments on legal migration and asylum, in

connection with long delays for the processing of and deciding on applications for permits and for asylum.

Enquiry by the Ombudsman

The NGO European Centre for Constitutional and Human Rightsmade a complaint to the Ombudsman relating to

the involvement of the European Asylum Support Office in the decision-making process concerning the

admissibility of applications for international protection submitted in the Greek hotspots. It claimed that when

conducting admissibility interviews in the hotspots on the Greek islands, the European Asylum Support

Office failed to comply with the provisions on the right to be heard in Article 41 of the Charter.

332

333

See Article 47

Judgment of 13 December 2018, in case T-290/16,

Fruits de Ponent, SCCL v European Commission

334

Commission delegated Regulation (EU) No 913/201414 and Commission delegated Regulation (EU) No

932/201415

335

Council Directive 2003/109/EC concerning the status of third-country nationals who are long-term residents, OJ

L 16 of 23/01/2004, p. 44

kom (2019) 0257 - Ingen titel

The Ombudsman opened an investigation on 13 July 2017. On 5 July 2018, the Ombudsman decided

336

that

further inquiries into the issues raised in the complaint were not justified and closed the inquiry. The primary

reason for the Ombudsman s decision was that responsibility for decisions on individual asylum applications

rests with the Greek authorities.

Complaints by citizens

In the context of the process of approval of active substances or the renewal of existing approvals of active

substances for use in plant protection products under the Regulation

337

concerning the placing of plant protection

products on the market, applicants who face a restriction on approval conditions or who receive a decision not to

approve an active substance or not to renew an existing approval (in the form of a Commission Regulation)

regularly refer to the right to good administration. This right is notably invoked to support claims that the

applicants were not able to submit additional data to underpin the safety of the substance during the risk

assessment (which provides for restricted possibilities to submit additional information in addition to the

application dossier), that the Commission did not take appropriate account of such submissions and that the right

to be heard was not respected in the relevant proceedings. Commission staff assessed these claims and found no

violation of this right.

NATIONAL CASE LAW BOX

In Slovakia, the Supreme Court made a detailed reference to Article 41 of the Charter, in a case concerning the removal of a

car from the official registry of vehicles. Without analysing the applicability of the Charter, the judges referred to the Council

of Eu ope s e o

e datio s a d esolutio s of the Co

ittee of Mi iste s as ell as A ti le of the Cha te , hi h fo

the basis of a

spi it of Eu opea sta da ds o ge e al e ui e e ts of the

quality of procedures and actions of the public

338

ad i ist atio alled p i iples of good ad i ist atio .

Article 42

—

Right of access to documents

Article 42 of the Charter guarantees the right of any EU citizen and any natural or legal person residing or having

its registered office in a Member State to access documents of the EU institutions, bodies, offices and agencies.

This right is subject to certain exceptions

339

. In particular, the institutions refuse access where disclosure would

undermine the protection of the public interest, or the right to privacy and integrity of the individual.

336

Decision in case 735/2017/MDC on the European Asylum Support Offi

e s EASO i ol e e t i the de isio

making process concerning admissibility of applications for international protection submitted in the Greek

Hotspots, in particular shortcomings in admissibility interviews.

337

Regulation (EC) No 1107/2009 of the European Parliament and of the Council of 21 October 2009 concerning

the placing of plant protection products on the market and repealing Council Directives 79/117/EEC and

91/414/EEC, OJ L 309, 24.11.2009, p. 1–50

338

Slovakia, Supreme Court, case 10Asan/3/2017, 27 April 2018.

339

Regulation (EC) No 1049/2001 regarding public access to European Parliament, Council and Commission

documents, OJ L 145, 31.5.2001, p. 43.

kom (2019) 0257 - Ingen titel

Policy

In 2018, the European Commission registered 6 912 initial requests for access to documents. Full or partial access

was granted in more than 83% of cases. The European Commission received 318 confirmatory applications

requesting a review of initial decisions. This independent review led to wider access being granted in

approximately 40% of the cases reviewed.

In 2018, the European Commission continue to honour its commitment to ensure transparency in the Brexit

egotiatio s. I additio , i Fe ua

, the Eu opea Co

issio sta ted to pu lish the Co

issio e s

travel expenses on a regular basis.

Finally, the European Commission continued to publish information on the Europa website about the meetings of

Commissioners and their closest advisors with representatives of interest groups, and applied a rule that

meetings could not take place with groups that were not listed on the Transparency Register. By the end of

December 2018, information had been published about more than 19,000 meetings. This policy allows individuals

and stakeholders to know who is seeking to influence the Commission and on which subjects.

Case law

In its judgments in the

ClientEarth

340

and

Emilio De Capitani

341

cases, the Court clarified the interpretation of the

exception in Article 4(3) of Regulation regarding public access to European Parliament, Council and Commission

documents

342

prepared in the context of deliberations and preliminary consultations and in legislative

negotiations. In the first judgment, the Court stated that an institution cannot rely on a general presumption of

refusing disclosure of a draft impact assessment on the grounds that public disclosure, would, in principle,

seriously undermine its ongoing decision-making process. In the second judgment, the General Court clarified

that, i p i iple, the i stitutio s ie s efle ted i t ilogue do u e ts do ot fall

under a general presumption

of non-disclosure, even if the legislative procedure is still ongoing.

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 in 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.

Every year, the European Ombudsman presents an annual report on her activities to the European Parliament.

The Parliament's Committee on Petitions publishes its own-initiative annual report, together with a motion for a

340

341

Judgment of 4 September 2018 in Case C-57/16 P,

ClientEarth v Commission.

Judgment of 22 March 2018, Case T-540/15,

Emilio De Capitani v European Parliament.

342

Regulation (EC) No 1049/2001 of the European Parliament and of the Council regarding public access to

European Parliament, Council and Commission documents, L 145 , 31/05/2001, p. 43-48

kom (2019) 0257 - Ingen titel

European Parliament resolution subject to a debate and vote in a plenary session, which provides an overview of

the petitions received during the year and of its relations with other institutions

343

In 2018, the European Ombudsman was able to help 17,976 citizens. This includes individuals who complained

directly to the European Ombudsman (2,160), those who received a reply to their request for information (1,220),

and those who obtained advice through

the i te a ti e guide o the Eu opea O uds a s e site

There were 522 complaints that fell within the competence of a member of the European Network of

Ombudsmen, of which 495 fell within the competence of a national/regional ombudsman or similar body and 27

e e efe ed to the Eu opea Pa lia e t s Co

ittee o Petitio s.

Article 44

—

Right to petition

All EU citizens, as well as any natural or legal person residing or with its registered office in a Member State, have

the right to petition the European Parliament on matters which come within the EU's fields of activity and which

affect the petitioner directly.

Petitions addressed to the European Parliament are considered by the European Parliament's Committee on

Petitions. Each year, the Committee draws up a report on its activities, which

inter alia

provides an overview of

the petitio s e ei ed du i g the ea a d of the Co

ittee s elatio s ith othe i stitutio s. This epo t is the

debated during a plenary sitting of the Parliament which adopts a resolution

344

Petitions can be addressed to the Parliament either in writing or electronically, using the Parliament's web portal.

This was created to facilitate the public's interaction with the work of the Committee on Petitions. Petitioners

have the right to attend the Committee meeting where their petition is being debated. These meetings provide

the Committee and representatives of the Commission, who are also invited to attend, with the opportunity to

hear directly from citizens who consider that their rights have not been respected.

In accordance with Parliament's rules of procedure, the Committee on Petitions may request assistance from the

Commission in the form of information on the application of, or compliance with, EU law and information or

documents relevant to the petition.

In 2018 the Commission received a total of 531 petitions from the Committee on Petitions, 90 of which concerned

fundamental rights. The Directorate-Ge

e al fo Justi e as espo si le fo add essi g the petitio e s o e s

in this area. Recurring fundamental rights issues raised by citizens in 2018 included freedom of movement and of

residence (article 45), integration of persons with disabilities (article 26) and protection of personal data (Article

8).

http://www.europarl.europa.eu/sides/getDoc.do?pubRef=-%2f%2fEP%2f%2fNONSGML%2bREPORT%2bA8-

2017-0328%2b0%2bDOC%2bPDF%2bV0%2f%2fEN

344

http://www.europarl.europa.eu/sides/getDoc.do?pubRef=-%2f%2fEP%2f%2fNONSGML%2bREPORT%2bA8-

2017-0387%2b0%2bDOC%2bPDF%2bV0%2f%2fEN

343

kom (2019) 0257 - Ingen titel

Citizens' initiatives

A othe i st u e t a aila le to EU itize s is the possi ilit of egiste i g a itize s i itiative.

A European

itize s i itiati e allo s EU itize s to

participate directly in the development of EU policies by calling on the

European Commission, within the framework of its powers, to propose legislation on matters where the EU has

competence to legislate for the purpose of implementing the EU Treaties. A

itize s i itiati e has to e a ked

at least one million EU citizens, coming from at least 7 out of the 28 Member States. A minimum number of

signatories is required in each of those 7 Member States. The organisers must collect all signatures within one

year of the formal registration of the proposed initiative.

, se e

•

itize s i itiati es e e egiste ed:

We a e a el o i g Eu ope, let us help! , egiste ed o

Stop sta atio fo

;

% of the Eu opea populatio ! , egiste ed o

a e t Eu opea U io Citize ship , egiste ed o

;

E d the Cage Age , egiste ed o

•

STOP FRAUD a d a use of EU FUNDS

- by better control of decisions, implementation

a d pe alties , egiste ed o

/ /

;

•

Eat ORIGINal! U

ask ou food , egiste ed o

;

/ Vega , egiste ed o

•

Ma dato

12/12/2018.

food la elli g No

-Vegeta

/ Vegeta ia

Two proposed initiatives were refused as they clea

l fell outside the f a e o k of the Co

issio s

powers to submit a proposal for an EU legal act for the purpose of implementing the Treaties; both were

elated to A ti le

of the TEU B itish f ie ds sta ith us , efused i Ma h

, a d EU-wide

efe e du

hethe the Eu opea Citize s a t the U ited Ki gdo to e ai o to lea e! , hi h the

Commission refused to register on 28 November 2018).

Article 45

—

Freedom of movement and of residence

The Charter guarantees the right of every EU citizen to move and reside freely, while respecting certain

conditions, within the territory of the Member States. This fundamental right is also included in the TFEU.

Legislation

In March 2018, the Commission adopted a proposal on the establishment of a European Labour Authority

345

whose main objective is to contribute to ensuring fair mobility in the internal market. The aims of the new

Authority are: to improve access to information in the area of labour mobility; to strengthen operational

Proposal for a Regulation of the European Parliament and of the Council establishing a European Labour

Authority (COM (2018)131 final available at

https://eur-lex.europa.eu/legal-

content/EN/TXT/?qid=1555400931298&uri=CELEX%3A52018PC0131

345

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cooperation between authorities in the cross-border enforcement of relevant Union law; and to provide

mediation and facilitate solutions in cases of dispute in cross-border cases.

In April 2018, the Commission adopted a new

proposal on the security features of identity cards and residence

documents

346

, which seeks to facilitate the freedom of EU citizens to move and reside freely within the territory

of the Member States. At the same time, the proposal ensures that citizens' right to the protection of their

personal data

347

are adequately safeguarded. In accordance with EU law on free movement of people, identity

cards can be used by EU citizens as travel documents, both when travelling within the EU and also to enter the EU

from abroad. Currently, the security levels of national ID cards delivered by Member States and of residence

documents for EU nationals residing in another Member State and their family members vary significantly. This

increases the risk of falsification and document fraud and can lead to practical difficulties for people when

exercising their right of free movement. The provisions of the General Data Protection Regulation will apply to the

processing of personal data collected for the purpose of the proposal.

Work continued on the

proposal for a Regulation as regards the rules applicable to the temporary

reintroduction of border control at internal borders

348

in the Council and in the European Parliament. The

amendments proposed by the co-legislators aimed to support and strengthen the fundamental rights and

principles set out in the Charter, in particular the freedom of movement and residence.

Application by Member States

The Commission sent a letter of formal notice to a Member State in relation to new legislation which criminalises

activities that support asylum and residence applications. In particular, the Commission considered that by

preventing anyone who is subject to a criminal procedure under these new laws from approaching the transit

zo es at that Me e State s o de s, the legislatio u dul estricts

the exercise of free movement rights of EU

citizens. This is in violation of Articles 20 and 21(1) TFEU

349

and the Directive

350

on the right of citizens of the Union

and their family members to move and reside freely within the territory of the Member States, as well as of

Article 45 of the Charter.

346

Proposal for a Regulation of the European Parliament and of the Council, of 17 April 2018, on strengthening the

security of identity cards of Union citizens and of residence documents issued to Union citizens and their family

members exercising their right of free movement, COM(2018) 212 final,

https://ec.europa.eu/info/sites/info/files/placeholder_1.pdf

347

See Article 8

348

Regulation (EU) 2016/399 of the European Parliament and of the Council on a Union Code on the rules

governing the movement of persons across borders (Schengen Borders Code), OJ L 77, 23.3.2016, p. 1–52

349

See Articles 20 and 21(1) TFEU.

350

Directive 2004/38/EC of the European Parliament and of the Council on the right of citizens of the Union and

their family members to move and reside freely within the territory of the Member States amending Regulation

(EEC) No 1612/68 and repealing Directives 64/221/EEC, 68/360/EEC, 72/194/EEC, 73/148/EEC, 75/34/EEC,

75/35/EEC, 90/364/EEC, 90/365/EEC and 93/96/EEC, OJ L 158, 30.4.2004, p. 77–123

100

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Case law

In the

Coman

351

case,

the Cou t o fi ed that the te

spouse i the p o isio s of EU la o f ee o e e t

and residence of EU citizens refers to a person joined to another person by the bonds of marriage, is gender-

neutral and may therefore cover the same-sex spouse of an EU citizen. In particular, the Court pointed out that

the rights guaranteed by Article 7 of the Charter

352

have the same meaning and the same scope as those

guaranteed by Article 8 of the European Convention for the Protection of Human Rights and Fundamental

Freedoms

353

. The Court referred to the case law of the European Court of Human Rights, concluding that the

relationship of a same-se

ouple falls ithi the otio s of p i ate life a d fa il life i the sa e a as the

relationship of a heterosexual couple in the same situation.

In the

Diallo

354

case, the Court, taking into account Articles 7, 20, 21 and 41 of the Charter

355

, clarified that

Member States must adopt and notify the decisions on applications for residence cards by non-EU family

members of EU citizens within the deadline of 6 months stipulated in Article 10 of the Directive on the right of

citizens of the Union and their family members to move and reside freely within the territory of the Member

States

356

, and that the judicial annulment of the decision does not reopen a new period of 6 months as referred to

in the same Article. The Court found that an automatic opening of a new six-month period would render it

excessively difficult for the family member of an EU citizen to exercise their right to obtain a decision on their

application for a residence card on the basis of Article 10(1) of Directive. Indeed, the right to free movement, if it

is to be exercised under objective conditions of dignity, must also be granted to the family members of those

citizens, irrespective of nationality.

In the joined cases

K.v Staatssecretaris van Veiligheid en Justitie

and

H.F. v Belgische Staat

357

, the Court confirmed

that restrictions on the freedom of movement and residence of an EU citizen, or a family member of an EU

citizen, who is suspected of having participated in war crimes must also be assessed on a case-by-case basis, as

required by the Directive on the right of citizens of the Union and their family members to move and reside freely

within the territory of the Member States. That assessment requires the threat that the individual concerned

represents to the fundamental interests of the host society to be weighed against the need to protect the rights

of EU citizens and their family members. The Court clarified that in this assessment, account must be taken in

particular of the right to respect for private and family life, as enshrined in Article 7 of the Charter

358

Judgment of 5 June 2018, in case C-673/16,

Coman

See Article 7

353

See Article 8 of the European Convention for the Protection of Human Rights and Fundamental Freedoms

354

Judgment of 27 June 2018, in case C-246/17,

Diallo

355

See Articles 7, 20, 21 and 41

356

Directive 2004/38/EC of the European Parliament and of the Council on the right of citizens of the Union and

their family members to move and reside freely within the territory of the Member States amending Regulation

(EEC) No 1612/68 and repealing Directives 64/221/EEC, 68/360/EEC, 72/194/EEC, 73/148/EEC, 75/34/EEC,

75/35/EEC, 90/364/EEC, 90/365/EEC and 93/96/EEC, OJ L 158, 30.4.2004, p. 77–123

357

Judgment of 2 May 2018, in joined cases C-331/16,

K. v Staatssecretaris van Veiligheid en Justitie

and C-366/16,

H.F. v Belgische Staat

358

See Article 7

352

351

101

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Another case relating to the right to respect for private and family life as enshrined in Article 7 of the Charter

359

the

Deha Altiner

360

case.

The Cou t o fi ed its p e ious ase la o the o ept of etu i g atio als , i.e. the

right of EU citizens to be accompanied or joined by their non-EU national family member when returning to their

home Member State after having exercised free movement rights in another Member State. It confirmed that the

EU citizen must have exercised free movement rights genuinely and effectively in another Member State, and

must have created or strengthened family life there, before he can invoke similar rights of entry and residence for

his family members as provided for under EU free movement law, including in relation to his home Member

State. The Court further clarified the maximum period of time which may elapse between the return of the EU

citizen and the time when the non-EU family member joins the EU citizen in the home Member State and how

Member States may deal with delays.

In the

Banger

361

case, the Court clarified that extended family members of EU citizens who return to their home

Member State from another Member State can, like other family members such as spouses, also avail themselves

of the protection of EU law on free movement of EU citizens and can apply to have their entry and residence

facilitated in accordance with national law. In particular, the Court pointed out that the provisions of the Directive

on the right of citizens of the Union and their family members to move and reside freely within the territory of

the Member States must be interpreted in a manner which complies with the requirements flowing from Article

47 of the Charter

362

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.

In May 2018, the Commission adopted a

proposal on EU emergency travel documents

363

which seeks to facilitate

citizens' right to diplomatic and consular protection. By creating a modern and secure format for emergency

travel documents issued to EU citizens abroad whose passports have been lost, stolen or destroyed, the proposal

implements the right granted by the Charter.

See Article 7

Judgment of 27 June 2018, in case C-230/17,

Deha Altiner

361

Judgment of 12 July 2018 in case C-89/17

Banger

362

See Article 47

363

Proposal for a Council Directive establishing an EU Emergency Travel Document and repealing Decision

96/409/CFSP, COM(2018) 358 final,

https://ec.europa.eu/info/sites/info/files/com_2018_358_f1_proposal_for_a_directive_en_v2_p1_978952.pdf

360

359

102

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103

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Title VI

Justice

The

European e-Justice portal

is a key part of the EU e-Justice architecture. It aims to promote knowledge about

and correct application of EU law and the rights enshrined in the EU Charter of fundamental rights. It now

i ludes

CharterClick

that allo s use s to he k if a spe ifi ase falls ithi the s ope of the Cha te The po tal

also features a guide with in-depth information on the Charter and the scope of its application, interpretation and

effects.

An effective justice system is essential to guarantee the respect of the

right to an effective remedy and to a fair

trial

and of all other rights enshrined in the Charter. On 24 September 2018, the Commission decided to refer

Poland to the Court of Justice for the new law on the Supreme Cou

t s iolatio s of the p i iple of judi ial

independence and asked the Court to order interim measures until a final judgment on the case is made. EU law

on judicial independence was also at the centre of two important judgments handed down by the Court of

Justice. In

Associação Sindical dos Juízes Portugueses

364

, the Court clarified the scope of Article 19(1) TEU,

underlining that Member States must ensure that their courts meet the requirements of effective judicial

364

Judgment of 27 February 2018, in case C-64/16,

Associação Sindical dos Juízes Portugueses.

104

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protection and that the independence of national courts is essential to ensure such judicial protection. In

365

the Court affirmed that a judicial authority called upon to execute a European arrest warrant must refrain from

enforcing it if it considers that there is a real risk that the individual concerned would suffer a breach of their

fundamental right to an independent tribunal and, therefore, of the essence of their fundamental right to a fair

trial on account of deficiencies liable to affect the independence of the judiciary in the issuing Member State.

The Commission adopted a proposal to amend the

Regulation concerning investigations conducted by the

European Anti-Fraud Office (OLAF).

It aims to adapt the operation of OLAF to the establishment of the European

Public Prosecutor Office

a d to i ease the effe ti e ess of OLAF s i estigati e ole. U de OLAF s

investigations, the rights of suspects and accused individuals enshrined in the Charter are protected, in particular

by specific provisions on procedural guarantees.

Article 47

—

Right to an effective remedy and to a fair trial

Article 47 of the Charter provides that people have the right to an effective remedy before a tribunal if a right

granted under EU rules is violated. This provides individuals with a legal solution, decided by a tribunal, should an

authority apply EU law incorrectly. It guarantees judicial protection against any such violation and therefore plays

a key role in ensuring the effectiveness of all EU provisions, ranging from social policy to asylum legislation,

competition, agriculture, etc.

A closely related provision, also enshrined by Article 47, is that legal aid is to be made available to those who lack

sufficient resources, in so far as such aid is necessary to ensure effective access to justice. This means that the

right to effective access to justice cannot be hampered by the fact that a person cannot afford to hire a lawyer.

Article 47 also stipulates that, in all judicial proceedings which relate to the interpretation or the validity of EU

rules, everyone should have the right to a fair trial. This encompasses:



the right to a fair and public hearing;

the ight to ha e o e s ase adjudi ated ithi a easo a le ti e;

the principles of independence and impartiality of the tribunal; and

the right to be advised, defended and represented.

Legislation and policy

effective justice system

is essential for guaranteeing the respect of the right to an effective remedy and to a

fair trial, as well as all other rights enshrined in the Charter. Every year, the Commission publishes its

annual EU

justice scoreboard,

to provide comparable data on the independence, quality, and efficiency of national justice

systems and recommendations paving the way for a more investment, business and citizen-friendly

environment

366

. Improving the quality, independence and efficiency of national justice systems are also among

365

366

Judgment of 25 July 2018, in case C-216/18 PPU,

LM.

https://ec.europa.eu/info/strategy/justice-and-fundamental-rights/effective-justice/eu-justice-scoreboard_en

105

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the key priorities of the European Semester

–

the EU annual cycle of economic policy coordination, as expressed

in the Communication from the Commission on the 2019 Annual Growth Survey

367

The Commission closely follows justice reforms in Member States and each year the Council adopts

country

specific recommendations

in this area on the basis of Commission proposals. In 2018, Croatia, Italy, Cyprus,

Slovakia and Portugal, received a country specific recommendation to improve their justice system

368

. The

Commission has also closely monitored the efforts in this area of other Member States such as Belgium, Bulgaria,

Greece, Spain, Latvia, Malta, Poland, Romania and Slovenia.

To ensure the correct application of the Charter and the right to access to

justi e, a e tool alled

CharterClick

that allows the user to verify if a specific case falls within the scope of the Charter was launched on the e-Justice

portal in October 2018

369

. The portal also features a guide with in-depth information on the Charter and the scope

of its application, interpretation and effects. The

Fundamental Rights Interactive Tool

(FRIT) of the European

e-Justice portal attracted 3,871 searches in 2018. This tool allows users to identify the competent organisation

which can assist with alleged violations of citizens' fundamental rights.

Source: European Commission

Various legislative proposals were adopted in 2018 that directly promote the right to an effective remedy. In May

2018, the Commission adopted two proposals on modernisation and digitalisation of judicial cooperation: the

proposal for a Regulation on Service of Documents

370

and the

proposal for a Regulation on Taking of

Evidence

371

. These proposals aim to make access to civil justice cheaper, more efficient and more accessible to

citizens and businesses. They will strengthen the procedural rights of the parties and access to justice, for

https://eur-lex.europa.eu/legal-content/EN/TXT/?qid=1547650919951&uri=CELEX%3A52018DC0770

https://ec.europa.eu/info/publications/2018-european-semester-country-specific-recommendations-

commission-recommendations_en

369

https://beta.e-justice.europa.eu/583/EN/does_the_charter_apply_to_my_case

370

Proposal for a Regulation of the European Parliament and of the Council amending Regulation (EC) No

1393/2007 of the European Parliament and of the Council on the service in the Member States of judicial and

extrajudicial documents in civil or commercial matters (service of documents) {SEC(2018) 272 final} {SWD(2018)

286 final} {SWD(2018) 287 final}; of 31.5.2018 COM(2018) 379 final, 2018/0204(COD).

371

Proposal for a Regulation of the European Parliament and of the Council amending Council Regulation (EC) No

1206/2001 of 28 May 2001 on cooperation between the courts of the Member States in the taking of evidence in

civil or commercial matters {SEC(2018) 271 final} {SWD(2018) 284 final} {SWD(2018) 285 final} of 31.5.2018

COM(2018) 378 final 2018/0203(COD).

368

367

106

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instance by clarifying when and how people can exercise the right of refusal. The rights of the defence will also be

strengthened.

On 8 September 2018, the

Directive on combating terrorism

372

entered into force. This Directive strengthens the

right of victims of terrorism to access justice. In particular, it contains provisions on

support, assistance and

protection of victims of terrorism

hi h uild upo the Vi ti s Rights Di e ti e

373

to respond more directly to

the specific needs of victims of terrorism (for instance, victims of terrorism will have access to specialised support

services immediately after a terrorist attack and for as long as necessary). These provisions increase access to

justice for victims of terrorism in particular by

strengthening access to legal aid

(Member States will have to take

into account the gravity and circumstances of the offence when deciding on legal aid for victims of terrorism, if

such approach is not contrary to their legal systems); and by

facilitating access to compensation

i ti s suppo t

services will provide assistance with claiming compensation).

Initiatives to

support judicial training

also helped to promote the right to an effective remedy for the enjoyment

of rights derived from EU law, including fundamental rights enshrined in the Charter. The

2018 report on judicial

training in the EU,

based on the results of a questionnaire for Member States' authorities, European networks of

legal professionals and their members and the main EU trainers of legal practitioners on EU law, showed that 7.6

% of the training activities followed by legal practitioners on EU law or on the law of another Member States in

2017 dealt mainly or exclusively with fundamental rights

374

U de the Justi e P og a

all fo p oposals, fou o t a ts e e sig ed a a di g g a ts totalli g o e

tha €

illio ,

for EU judicial training sessions on fundamental rights in 2018 to train more than 1,500 justice

professionals.

The

2018 call for proposals for action grants in European judicial training

specifically mentioned fundamental

rights as one of the priority topics on which the training projects should focus, including the scope and application

of the Charter of Fundamental Rights of the EU.

The call for proposals also aimed to fill gaps in training for court staff and bailiffs, for example through cross-

border training activities or exchanges of good training practices, on all areas of EU civil, criminal and fundamental

rights law relevant for their judicial work. It included training for prison and probation staff, for example through

cross-border training activities or exchanges of good training practices, on EU law and fundamental rights relevant

for their work, including on countering radicalisation to violent extremism in prison, on the minimum standards

laid down by the Council of Europe and on rehabilitation programmes. The call is expected to result in an

increased knowledge of fundamental rights instruments among legal practitioners and more awareness among

justice professionals on the added value and scope of the EU Charter of Fundamental Rights, thereby

strengthening the protection of fundamental rights across the EU.

372

Directive (EU) 2017/541 of the European Parliament and of the Council of 15 March 2017 on combating

terrorism and replacing Council Framework Decision 2002/475/JHA and amending Council Decision 2005/671/JHA,

OJ L 88, 31.3.2017, p. 6–21.

373

Directive 2012/29/EU of the European Parliament and of the Council of 25 October 2012 establishing minimum

standards on the rights, support and protection of victims of crime, and replacing Council Framework Decision

2001/220/JHA, OJ L 315, 14.11.2012, p. 57–73.

374

http://www.ejtn.eu/PageFiles/18504/2018%20Training%20report_v2_EU_en.pdf

107

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As pa t of the Eu opea Co

issio s st ateg fo the effe ti e i ple e tatio of the Cha te , its Justi e a d

Consumers Directorate-General decided to fund a

European training programme for judges and prosecutors

related to the rule of law covering all EU countries and Western Balkans.

The European Judicial Training

Network (EJTN) and the Tipik Communications Agency were tasked with implementing this training programme

during 2018 and 2019. This entailed organising a series of seven seminars and one webinar, and developing a

practitioner`s manual and a training strategy guide. To date, three of the seven seminars took place: one for

judges and prosecutors (Brussels, October 2018); one for judges (Barcelona, October 2018) and another for

prosecutors (Bucharest, December 2018). The CJEU will host a final conference in May 2019 to wrap up the

p oje ts o lusio s.

Case law

In 2018, the Court of Justice handed down two important judgments on

EU law on judicial independence.

Associação Sindical dos Juízes Portugueses

375

the Court clarified the scope of Article 19(1) TEU, underlining that

Member States must ensure that their courts meet the requirements of effective judicial protection and that the

independence of national courts is essential to ensure such judicial protection.

In the

case

376

on the

European Arrest Warrant,

the Court recalled that a refusal to execute a European arrest

warrant is an exception to the principle of mutual recognition underlying the European arrest warrant

mechanism, and that exception must accordingly be interpreted strictly. However, a judicial authority called upon

to execute a European arrest warrant must refrain from enforcing it if it considers that there is a real risk that the

individual concerned would suffer a breach of their fundamental right to an independent tribunal and, therefore,

of the essence of their fundamental right to a fair trial on account of deficiencies liable to affect the independence

of the judiciary in the issuing Member State.

The Court also clarified in

Donnellan

377

that Article 14(1) and (2) of Council Directive 2010/24/EU concerning

mutual assistance for the recovery of claims relating to taxes, duties and other measures,

read in the light of

Article 47 of the Charter, must be interpreted as not precluding an authority of a Member State from refusing to

enforce a request for recovery concerning a claim relating to a fine imposed in another Member State, on the

ground that the decision imposing that fine was not properly notified to the person concerned before the request

for recovery was made to that authority pursuant to that directive.

The Court also delivered three judgments on the

right to an effective remedy

concerning

appeals against

decisions refusing international protection.

Alheto

378

the Court ruled that Article 46(3) of Directive

2013/32/EU on common procedures for granting and withdrawing international protection, read in conjunction

with Article 47 of the Charter, must be interpreted as meaning that a court or tribunal of a Member State seized

at first instance of an appeal against a decision relating to an application for international protection must

examine both facts and points of law which the administrative authority that took that decision took into account

or could have taken into account, and those which arose after the adoption of that decision. The court explained

375

Judgment of 27 February 2018, in case C-64/16,

Associação Sindical dos Juízes Portugueses.

Judgment of 25 July 2018, in case C-216/18

PPU, LM.

377

Judgment of 26 April 2018, in case C-34/17,

Donellan.

378

Judgment of 25 July 2018, in case C-585/16,

Serin Alheto v Zamestnik-predsedatel na Darzhavna agentsia za

bezhantsite.

376

108

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that this provision does not establish common procedural standards in respect of the power to adopt a new

decision following the annulment, by the court hearing the appeal, of the initial decision taken on that application

by the administrative authority. However, the need to ensure that Article 46(3) has a practical effect and to

ensure an effective remedy in accordance with Article 47 of the Charter requires that, in the event that the file is

referred back to the administrative authority, a new decision must be adopted within a short period of time and

must comply with the assessment contained in the judgment annulling the initial decision.

Belastingdients v Toeslagen

and

X and Y

379

the Court ruled on the issue of whether EU law requires that

second instance appeals against decisions rejecting an application for international protection and imposing an

obligation to return have an

automatic suspensory effect.

The Court concluded that Article 39 of Directive

2005/85/EC and Article 13 of Directive 2008/115/EC, read in the light of Articles 18, 19(2) and 47 of the Charter,

must be interpreted as not precluding national legislation which, while making provision for appeals against

judgments delivered at first instance upholding a decision rejecting an application for international protection and

imposing an obligation to return, does not confer on that remedy automatic suspensory effect even in the case

where the person concerned invokes a serious risk of infringement of the principle of non-refoulement.

In its order in case

380

, the Court ruled that Directive 2013/32/EU, read in the light of Article 47 of the Charter,

must be interpreted as not precluding national legislation which provides for an

appeal procedure

against a first-

instance judgment confirming a decision of the administrative authority which rejects an application for

international protection, without granting it automatic suspensory effect, but which allows the court which has

handed down that judgment to order, upon application by the person concerned, the suspension of its

enforcement. This, after having assessed whether or not the grounds raised in the appeal brought against that

judgment are well founded, but not whether or not there is a risk of serious and irreparable damage for that

applicant as a result of the enforcement of that judgment.

The CJEU delivered a judgment in

Hasan

381

, on the effective protection of individuals in the context of the

Dublin

III Regulation.

The Court ruled that Article 27(1) of Regulation (EU) No 604/2013, read in the light of recital 19 of

the Regulation and Article 47 of the Charter, must be interpreted as not precluding a legislative provision that

may lead the court or tribunal hearing an action brought against a transfer decision to take into account

circumstances that are subsequent not only to the adoption of that decision but also to the transfer of the person

concerned.

In the

Gnandi

case

382

on the application of Directive 2008/115/EC, the Court ruled that the adoption of a return

decision, under Article 6(1) of the

Return Directive,

in respect of a third-country national who has applied for

international protection, immediately after the rejection of that application by the determining authority or

together in the same administrative act, and thus before the conclusion of any appeal proceedings brought

against that rejection, is not precluded provided,

inter alia,

that: i. the Member State concerned ensures that all

the legal effects of the return decision are suspended pending the outcome of the appeal; ii. the applicant is

379

Judgment of 26 September 2018, in cases C-175/17 and C-180/17,

X v Belastingdients/Toeslagen and X and Y v

Staatssecretaris van Veiligheid en Justitie.

380

Order of 27 September 2018 in case C-422/18 PPU,

FR Mi iste o dell i te o —

Commissione Territoriale per il

riconoscimento della Protezione Internazionale presso la Prefettura U.T.G. di Milano.

381

Judgment of 25 January 2018 in case C-360/16,

Bundesrepublik Deutschland v Aziz Hasan.

382

Judgment of 19 June 2018 in case C-181/16,

Sadikou Gnandi v État belge.

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entitled, during that period, to benefit from the rights arising under Council Directive 2003/9/EC of 27 January

2003 laying down minimum standards for the reception of asylum seekers; and iii. they are entitled to rely on any

change in circumstances that occurred after the adoption of the return decision which may have a significant

bearing on the assessment of their situation under Directive 2008/115, and in particular under Article 5 thereof,

those being matters for the referring court to determine.

Profi Credit Polska

383

and

PKO

384

the CJEU assessed the compatibility of national rules of civil procedure with

the right to an effective remedy resulting from Article 7 of the

Unfair Contract Terms Directive

93/13/EEC and

enshrined in Article 47 of the Charter. The CJEU confirmed its case law on effective remedies against unfair

contract terms and found

–

in relation to payment order proceedings, based on a promissory note or a bank

ledger excerpt, directed against consumers

–

that, where there is a significant risk that consumers will not object

to a payment order, national rules that prevent national courts from assessing the unfairness of relevant contract

terms of their own motion before issuing the payment order do not comply with Directive 93/13/EEC. Such

significant risk can be created by procedural obstacles, for instance, a time-limit of only 2 weeks in order to

present all necessary factual and legal elements, or rules on court fees that may deter consumers from lodging an

objection, or the limited knowledge and information of consumers.

Azarov v Council

385

the CJEU ruled on the application of the Charter in the field of

restrictive measures

in the

context of a proceeding where those measures were applied to persons subject to criminal proceedings in a third

country for the misappropriation of public funds or assets. As regards Article 47 of the Charter, the Court affirmed

that, if restrictive measures are applied to persons listed for that purpose, the EU institution taking the decision to

list a person acting on the basis of a decision of an authority of a third State to initiate and conduct criminal

investigation proceedings against that person, is required to verify beforehand whether that foreign decision was

adopted in accordance with the rights of the defence and the right to effective judicial protection. The EU

institution should also inform the listed person of the reasons why it considers that the decision of the third State

on which it intends to rely has been adopted in accordance with the rights of the defence and the right to

effective judicial protection.

Application by Member States

On 24 September 2018, the Commission decided to refer Poland to the Court of Justice for violations of

the

principle of judicial independence

by the new law on the Supreme Court and asked the Court of Justice to order

interim measures until a final judgment on the case is made. The Commission considers that the retirement

regime in the Polish law on the Supreme Court is incompatible with EU law as it undermines the principle of

judicial independence, including the irremovability of judges, and that thereby Poland fails to fulfil its obligations

under Article 19(1) TEU read in connection with Article 47 of the Charter. In that respect, the Commission referred

to the two important judgments

386

of the Court of Justice, regarding EU law on judicial independence. On 19

October 2018, the Vice-President of the Court of Justice issued a provisional order on interim measures, granting

383

Judgment of 13 September 2018 in case C-176/17,

P ofi C edit Polska S.A.

Bielsku Białej

Ma iusz

Wawrzosek.

384

Judgment of 28 November 2018, in case C-632/17,

Po sze h a Kasa Osz zęd oś i PKO Ba k Polski S.A.

Warszawie v Jacek Michalski.

385

Judgment of 19 December 2018, in case C-530/17 P,

Mykola Yanovych Azarov v Council of the European Union.

386

Judgment of 27 February 2018, in case C-64/16,

Associação Sindical dos Juízes Portugueses

and judgment of 25

July 2018, in case C-216/18 PPU,

LM.

110

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all the Co

issio s e uests. O

De e e

, the Cou t of Justi e issued a fi al o de o i te i

measures, ordering the implementation of the retirement regime of the Supreme Court law to be stopped.

Following the order of the Court of Justice, a new law amending the law on the Supreme Court was signed by the

President of the Republic and published. As regards the pending infringement procedure on the Supreme Court

law, the Commission considers that there is an overriding interest in having a final judgment of the Court of

Justice on this matter, in view of the remaining legal uncertainty as well as of its fundamental importance for the

principle of judicial independence and the EU legal order.

NATIONAL CASE LAW BOX

Czechia

, the Supreme Administrative Court ruled that paragraph 171(a) of the Act on the Residence of Foreign

Nationals, according to which the refusal to grant a visa cannot be challenged before a court, violates Article 47 (Right to

an effective remedy and to a fair trial) of the Charter.

Portugal

the Constitutional Court reviewed Article 7(3) of the Law 34/2004 governing the access to courts, which

prohibits the granting of legal aid to entities operating for profit. The Constitutional Court declared the norm

unconstitutional and stressed that the right to effective judicial protection guaranteed by Article 47 of the Charter may

require the granting of legal aid for profit making legal persons.

Although the Co stitutio o stitutes the de isio pa a ete fo the Co stitutio al Cou t […], the Cou t should o side , i

light of a systemic view of the legal system applicable in Portugal and its importance for the interpretation of precepts

relating to fundamental rights, the case law of the European Court of Human Rights in relation to Article 6 (1) of the

European Convention on Human Rights, as well the interpretation of the Court of Justice in the DEB case, concerning article

7 of the Cha te […]. The ight to effe ti e judi ial p ote tio gua a teed

a ti le 7 of the Cha te

a e ui e,

depending on the circumstances of the specific case, the granting of legal aid to legal persons operating for profit, without

this ei g o side ed as a d sfu tio al o petitio ule i a effi ie t a ket .

In a case concerning the payment of social insurance by a Polish citizen working in Slovakia, the Constitutional Court of

389

Poland

questioned the compatibility of the Law on the Supreme Court lowering the retirement age of judges, with

Article 47 (Right to an effective remedy and to a fair trial) of the Charter. The question was referred to the Court of Justice

of the European Union for a preliminary ruling.

388

387

Article 48

—

Presumption of innocence and right of defence

Article 48 of the Charter provides that everyone who has been charged is to be presumed innocent until proven

guilt a o di g to the la . It fu the stipulates that a pe so s ight to defe e ust

be guaranteed.

387

Czechia, Supreme Administrative Court, case 6 Azs 253/2016

–

49, 4 January 2018.

Portugal, Constitutional Court, case 242/2018, 8 May 2018.

389

Poland, Supreme Court, case III UZP 4/18, 2 August 2018.

388

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Legislation

Following the entry into force of Council Regulation 2017/1939 implementing enhanced cooperation on the

establishment of the

European Public Prosecutor's Office

(EPPO) on 20 November 2017, the Office is being set up

with a view to take up its investigative and prosecutorial role by the end of 2020. According to Article 41 of the

Regulatio , the Offi e s a ti ities ust full espe t the ights of suspe ts a d a used people e sh i ed i the

Charter, including the right to a defence. The Commission has put in place a regular and constructive dialogue

with the relevant European bar associations to ensure that defence practitioners are fully aware of the

Regulation's requirements.

On 23 May 2018, the Commission adopted a

proposal

to amend the Regulation on

investigations conducted by

the European Anti-Fraud Office (OLAF)

390

The p oposal o stitutes a ta geted a e d e t to adapt OLAF s

ope atio s i light of the esta lish e t of EPPO a d to i ease the effe ti e ess of OLAF s i estigative

role.

Fundamental rights are protected under OLAF investigations, in particular by specific provisions on procedural

guarantees

391

. One of the proposed amendments to reinforce the effectiveness of OLAF's investigations is to

further strengthen the procedural guarantees of people involved in the investigations by clarifying the procedural

guarantees applicable to on-the-spot checks and inspections carried out by OLAF

392

. The amendments will help

reinforce the right of defence, set out in Article 48 of the Charter, of the economic operators subject to the on-

the-spot checks and inspections, for example by expressly providing for the application of the right against self-

incrimination and of the right to be assisted by a person of choice

393

Application by Member States

On 1 April 2018, the

Directive on the strengthening of certain aspects of the presumption of innocence and of

the right to be present at the trial in criminal proceedings

394

entered into force. This Directive guarantees the

presumption of innocence of anyone accused or suspected of a crime by the police or justice authorities. It also

ensures that everyone can benefit from the right to be present at their trial. It is the fourth Directive to enter into

force out of a total of six adopted directives that form part of the ambitious legislative programme on

procedural

rights for suspects and accused persons in criminal proceedings

which directly contributes to the right to a fair

trial, including notably the rights enshrined in Article 48 of the Charter. The six directives cover:

Proposal for a Regulation of the European Parliament and of the Council amending Regulation (EU, Euratom) No

883/2013 concerning investigations conducted by the European Anti-Fraud Office (OLAF) as regards cooperation

with the European Public Prosecutor's Office and the effectiveness of OLAF investigations, COM/2018/338 final,

23.5.2018.

391

Article 9 of Regulation (EU, EURATOM) No 883/2013 of the European Parliament and of the Council 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, 18.9.2013, p. 1.

392

On-the-spot checks and inspections are carried out by OLAF on the basis of a combined legal framework

consisting of Regulation (EU, EURATOM) No 883/2013 and of Council Regulation (Euratom, EC) No 2185/96 of 11

November 1996 concerning on-the-spot checks and inspections carried out by the Commission in order to protect

the European Communities' financial interests against fraud and other irregularities, OJ L 292, 15.11.1996, p. 2.

393

Proposed amendments to Article 3 of Regulation (EU, EURATOM) No 883/2013.

394

Directive (EU) 2016/343 of the European Parliament and of the Council of 9 March 2016 on the strengthening of

certain aspects of the presumption of innocence and of the right to be present at the trial in criminal proceedings ,

OJ L 65, 11.3.2016, p. 1–11.

390

112

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

the right to interpretation and translation

the right to information

396

;

the right of access to a lawyer

397

;

395

;

the presumption of innocence and the right to be present at the trial

398

;

the procedural safeguards for children

399

; and

legal aid

400

The Commission also issued Recommendations on safeguards for vulnerable people

401

and the right to legal aid

for suspects or accused people in criminal proceedings

402

On 18 December 2018, the Commission adopted two reports on the implementation of Directive 2010/64/EU on

the right to interpretation and translation in criminal proceedings

403

, and on Directive 2012/13/EU on the right to

information in criminal proceedings

404

Case law

Kolev

405

, the CJEU ruled on the interpretation of the

Directive on the right to information in criminal

proceedings.

The Court underlined that the objective and the proper conduct of proceedings presuppose, as a

general rule and without prejudice, in some cases, to special or simplified procedures, that the disclosure on the

charges, and that the opportunity to have access to the case materials should be afforded, no later than the point

in time when the hearing of argument on the merits of the charges in fact commences before the court that has

jurisdiction to give a ruling on the merits. This is essential for the accused person, or their lawyer, to be able to

participate properly in that argument with due regard for the adversarial principle and equality of arms, so that

they are able to state their position effectively.

Directive 2010/64/EU on the right to interpretation and translation in criminal proceedings, OJ L 280,

26.10.2010, p. 1–7, to be transposed by 27 October 2013.

396

Directive 2012/13/EU on the right to information in criminal proceedings, OJ L 142, 1.6.2012, p. 1–10, to be

transposed by 2 June 2014.

397

Directive 2013/48/EU on the right of access to a lawyer in criminal proceedings and in European arrest warrant

proceedings, and on the right to have a third party informed upon deprivation of liberty and to communicate with

third persons and with consular authorities while deprived of liberty OJ L 294, 6.11.2013, p. 1–12, to be transposed

by 27 November 2016.

398

Directive (EU) 2016/343 on the strengthening of certain aspects of the presumption of innocence and the right

to be present at the trial in criminal proceedings, OJ L 65, 11.3.2016, p. 1–11, to be transposed by 1 April 2018.

399

Directive (EU) 2016/800 on procedural safeguards for children who are suspects and accused in criminal

proceedings OJ L 132, 21.5.2016, p. 1–20, to be transposed by 11 June 2019.

400

Directive (EU) 2016/1919 on legal aid for suspects and accused persons in criminal proceedings and for

requested persons in European arrest warrant proceedings OJ L 297, 4.11.2016, p. 1–8, to be transposed by

25 May 2019.

401

Commission Recommendation of 27 November 2013 on procedural safeguards for vulnerable persons

suspected or accused in criminal proceedings OJ C 378, 24.12.2013, p. 8–10

402

Commission Recommendation of 27 November 2013 on the right to legal aid for suspects or accused persons in

criminal proceedings OJ C 378, 24.12.2013, p. 11–14.

403

https://eur-lex.europa.eu/legal-content/EN/TXT/?qid=1545146756295&uri=COM:2018:857:FIN

404

https://eur-lex.europa.eu/legal-content/EN/TXT/?qid=1545146756295&uri=COM:2018:858:FIN

405

Judgment of 5 June 2018 in case C-612/15

Criminal proceedings against Nikolay Kolev and Others.

395

113

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Milev

406

the Court ruled that Article 3 and Article 4(1) of the

Directive on the strengthening of certain aspects

of the presumption of innocence and of the right to be present at the trial in criminal proceedings

must be

interpreted as not precluding the adoption of preliminary decisions of a procedural nature, such as a decision

taken by a judicial authority that pre-trial detention should continue, which are based on suspicion or on

incriminating evidence, provided that such decisions do not refer to the person in custody as being guilty.

However, the Court considered that the Directive does not govern the circumstances in which decisions on pre-

trial detention may be adopted.

Article 49

—

Principles of legality and proportionality of criminal offences and

penalties

Article 49 of the Charter provides that no one can be found guilty of any criminal offence on account of any act or

omission which did not constitute a criminal offence under national law or international law at the time when it

was committed. Nor must a heavier penalty be imposed than the one that was applicable at the time the criminal

offence was committed.

Some fundamental rights are guaranteed in absolute terms and cannot be subject to any restrictions.

Interferences with other rights may be justified if, subject to the principle of proportionality, they are necessary

and genuinely serve to meet objectives of general interest recognised by the EU.

Case law

The

principle of the retroactive application of the more lenient criminal law

was the object of the ruling in

Clergeau and others

407

where the Court of Justice affirmed that the principle enshrined in the third sentence of

Article 49(1) of the Charter must be interpreted as not precluding a situation in which a person is convicted on the

ground that they wrongfully obtained special export refunds provided for in Commission Regulation (EEC) No

1964/82 of 20 July 1982, by means of deceitful practices or the making of false statements as to the nature of the

goods in respect of which the refunds were requested, although, as a result of changes in those rules which

occurred subsequent to the acts complained of, the goods that were exported by that person have since become

eligible for those refunds.

406

407

Judgment of 19 September 2018 in case C-310/18 PPU,

Criminal proceedings against Emil Milev.

Judgment of 7 August 2018 in case C 115/17,

Clergeau and Others.

114

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NATIONAL CASE LAW BOX

Cyprus,

an appellant was convicted under the Law on the actions of persons in possession of confidential

information and on actions of market manipulation, transposing Directive 2003/6/EC (Market Abuse Directive). This

legislation provided stricter criminal provisions than those introduced by Directive 2014/57/EU (Market Abuse Directive

II) so the appellant claimed that the lighter penalty should be applied. The Supreme Court explicitly stated that the

Charter was applicable since the legal act was transposing EU legislation. The judges referred to Article 49 (Principles of

legalit a d p opo tio alit of i i al offe es a d pe alties of the Cha te a d o side ed that the legislatio ai ed

at fulfilling obligations arising fro

EU la a d, o se ue tl , […] A ti le of the Cha te is appli a le .

408

Article 50

—

Right not to be tried or punished twice in criminal proceedings for the

same criminal offence

The

ne bis in idem

principle is one of the cornerstones of criminal law and is based on the principle that no-one

can be held liable to be tried or punished again in criminal proceedings for an offence for which he or she has

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

should respect this.

Case law

In four cases involving the

VAT Directive

and the

Directive concerning the financial markets,

the Court considers

that the

ne bis in idem principle

may be limited for the purpose of protecting the financial interests of the EU. The

objective of ensuring the collection of all the VAT due in the territories of the Member States is capable of

justifying a duplication of proceedings and penalties of a criminal nature. However, such a limitation must not

exceed what is strictly necessary to achieve those objectives

409

In the context of the execution of the

European arrest warrant,

the Court, in case

410

affirmed that Article 3(2)

and Article 4(3) of Framework Decision 2002/584, must be interpreted as meaning that a decision of the Public

P ose uto s Offi e, hi h te i ated a i estigatio ope ed agai st a u k o

pe so , du i g hi h the

person who is the subject of the European arrest warrant was interviewed as a witness only, without criminal

proceedings having been brought against that person and where the decision was not taken in respect of that

person, cannot be relied on for the purpose of refusing to execute that European arrest warrant pursuant to

either of those provisions.

Cyprus, Supreme Court, cases 2/2018 and 3/2018, 12 September 2018.

Judgment of 20 March 2018 in cases C-524/15,

Luca Menci;

C-537/16

Garlsson Real Estate SA and Others v

Commissione Nazionale per le Società e la Borsa (Consob);

and joined cases C-596/16 and 297/16,

Enzo Di Puma v

Commissione Nazionale per le Società e la Borsa (Consob) and Commissione Nazionale per le Società e la Borsa

(Consob) v Antonio Zecca.

410

Judgment of 25 July 2018 in case C-268/17,

AY.

409

408

115

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NATIONAL CASE LAW BOX

Denmark

, a itize s d i i g li e e as suspe ded afte he d o e a a hile a high le el of al ohol le el i

Germany, where his licence had already been suspended for the first time. The claimant argued the suspension of his

licence by the Danish authorities violated Article 50 (Right not to be tried or punished twice in criminal proceedings for

the same criminal offence) of the Charter. The Supreme Court thus interpreted Article 11 of the Danish Criminal Code in

light of Article 52 (Scope and interpretation of rights and principles) of the Charter. The Court decided that it was not

contrary to Article 50 to file a case on the suspension of a driving licence in Denmark. It underlined that the judgment of

the Danish court

o l o e s a geog aphi e te sio of the Ge a suspe sio , a d the Da ish judg e t o

suspension takes into consideration the protection of Danish road users, and thus has a different protection interest than

the German suspensio

. It a the efo e ot e o side ed as a e

i i al ase ithi the ea i g of A ti le 0

411

Denmark, Supreme Court, case 108/2017, 17 August 2018.

116

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117

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Petitions

Citizens' rights

33%

Victims' rights

[CATEGORY NAME]

20%

Justice

Dignity

Freedoms

12%

Presumption of

innocence and right

of defence

Equality

27%

Title VII

General provisions governing

application of the Charter

Article 51

—

Field of application

the

interpretation

and

The scope of the Charter is defined in Article 51, which states clearly that it applies to all EU institutions, bodies,

offices and agencies, and to the Member States where they are implementing EU law. It further clarifies that the

Charter cannot extend the field of application of EU law or any competences of the EU as defined in the EU

Treaties.

Article 52

—

Scope and interpretation of rights and principles

Article 52 of the Charter lays down general provisions on the scope and interpretation of rights and principles. Its

first paragraph defines the stringent conditions under which the rights set out in the Charter can be limited. The

article also explains how the Charter relates to the European Convention on Human Rights, the aim being to

118

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secure the highest possible level of protection for fundamental rights (paragraph 3). It also clarifies that the

principles set out in the Charter may be implemented by the EU institutions in their legislative and executive acts

—

and similarly by the Member States when implementing EU law (paragraph 5). However, these principles can

be invoked in court only for the purpose of interpreting such acts. This means that the principles do not confer

subjective rights on the individual.

Article 53

—

Level of protection

Article 53 of the Charter guarantees that nothing in the Charter will be interpreted as restricting or adversely

affecting human rights and fundamental freedoms as recognised by EU law, international law and international

agreements to which the EU or all the Member States are party, including the European Convention on Human

Rights. Its main aim is thus to provide the minimum standard of fundamental rights protection, allowing for more

extensive protection under instruments other than the Charter where they are applicable.

Article 54

—

Prohibition of abuse of rights

Article 54 of the Charter provides a safeguard against abuse of the Charter rights. It states that nothing in the

Charter can be interpreted as implying any right to engage in activities aimed at destroying rights or freedoms

recognised in the Charter or at limiting them beyond the extent envisaged by the Charter.

119