Annexes to COM(2010)573 - Strategy for the effective implementation of the Charter of Fundamental Rights by the EU - Main contents
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This page contains a limited version of this dossier in the EU Monitor.
| dossier | COM(2010)573 - Strategy for the effective implementation of the Charter of Fundamental Rights by the EU. |
|---|---|
| document | COM(2010)573  |
| date | October 19, 2010 |
- decisions on amendments are taken at the appropriate level and that, for example, in the case of the Council they are brought to the attention of ministers;
- the Legal Services of the three institutions are fully involved.
With a view to a forthcoming revision of the interinstitutional agreement Common Approach to Impact Assessment , the Commission will propose a provision that, in the exceptional cases where the Treaty allows such proposals[20], the impact assessments that accompany Member States' proposals also include an assessment of their impact on fundamental rights. In addition, in taking its position on the Member States' proposals, the Commission will consider carefully the assessment of their impact on fundamental rights.
Ensuring that the Member States respect the Charter when implementing Union law
The Charter is addressed to the Member States only " when they implement Union law " (Article 51(1)). The upholding of fundamental rights by Member States when they implement Union law is in the common interest of all the Member States because it is essential to the mutual confidence necessary for the operation of the Union. This principle is particularly important in view of the expansion of the EU acquis in areas where fundamental rights are especially relevant, such as the area of freedom, security and justice, non-discrimination, Union citizenship, the information society and the environment.
The Commission's efforts to enforce fundamental rights will be guided by the following principles:
Prevention
The Commission will step up its preventive approach by reminding in appropriate cases the authorities responsible for transposing legislation of the obligation to comply with the Charter in implementing the legislation concerned and by assisting them to do so, in particular within the committees of experts set up to facilitate the transposition of the directives. For example, the importance of compliance with the Charter, particularly in the area of children's rights, was highlighted in the expert group set up to monitor the transposition of Directive 2008/115/EC ("the return Directive") and within the Committee for Framework Decision 2008/919/JHA, which amends the Framework Decision on combating terrorism.
Infringement procedures
When a Member State does not respect fundamental rights when implementing Union law, the Commission, as guardian of the Treaties, has powers of its own to try to put an end to the infringement and may, if necessary, take the matter to the Court of Justice (action for failure to fulfil an obligation). The Commission may only intervene if the situation in question relates to Union law. The factor connecting it with Union law will depend on the actual situation in question[21].
The Commission is determined to use all the means at its disposal to ensure that the Charter is adhered to by the Member States when they implement Union law. Whenever necessary it will start infringement procedures against Member States for non-compliance with the Charter in implementing Union law. Those infringement proceedings which raise issues of principle or which have particularly far-reaching negative impact for citizens will be given priority.
Situations outside the scope of the Charter
The Charter does not apply where there are breaches of fundamental rights with no connection to Union law. Member States have their own systems to protect fundamental rights through their national courts and the Charter does not replace them. It is therefore up to the national courts to ensure compliance with fundamental rights and up to the Member States to take the necessary measures in accordance with their national laws and international obligations. In such situations, the Commission does not have the power to intervene as guardian of the Treaties.
Article 7 TEU provides for a mechanism enabling institutions of the Union to act when there is a clear risk of a serious breach or a serious and persistent breach by a Member State of the values referred to Article 2 TEU, which include respect for human rights. This is a political mechanism of last resort, intended for situations of an exceptional nature with a systemic, structural dimension[22]. Where there is a clear risk of a serious breach of these values this mechanism may be triggered by a reasoned proposal of a third of the Member States, of the European Parliament, or of the Commission.
BETTER INFORMING THE PUBLIC
Information needs
For the rights enshrined in the Charter to be effective the public needs to be well informed about these rights and how to enforce them in practice when they are violated. Information on means of redress is particularly important in relation to:
- the rights of the child: for example, the problems most often cited by young people are that they do not know how defend their rights or who to turn to (80%)[23]. The Fundamental Rights Agency reported the same type of difficulties in connection with discrimination [24] ;
- the difficulty of knowing which are the appropriate legal remedies and confusion about their roles may lead complainants to knock on the "wrong door". The Commission receives many letters about situations for which it has no competence under the Treaties because they are unrelated to Union law. On this point the Commission would point out that it is up to national authorities, including the courts, to rule on cases of alleged breaches of fundamental rights and that the Commission is not a court of appeal against the decisions of national or international courts;
- the lack of suitable information makes redress more difficult and amplifies the practical difficulties of taking action (language, awareness of the procedures, the cost of proceedings, situation of the complainant, and so on), and this may deter people whose fundamental rights have been breached from seeking redress ("invisible" complainants).
Commission action
Targeted communication measures tailored to various situations are needed to tackle these difficulties.
Information on the Union's role in fundamental rights
The Commission will step up its information activities concerning the Union's role and powers in the area of fundamental rights and the possibilities for intervention, and also ensure that the language needs of citizens and professionals are catered for:
- explanations will be made available to complainants and interested parties tailored to the audience addressed, for example in a child-friendly manner. In particular, the Commission's answers to individual complaints not within its area of competence will contain an explanatory annex in the form of Frequently Asked Questions ;
- information and training for legal professionals and the judicial authorities, including judges, will be promoted through, in particular, the European Judicial Network in civil and commercial matters, the European Judicial Network in criminal matters and the European Forum for Justice.
Information on existing legal remedies
Individuals who believe themselves to be victims of a breach of their fundamental rights must have access to practical information on the legal remedies existing in the Member States to deal with allegations of breaches of fundamental rights. The Commission will take the following measures:
- it will ensure that in 2011 the e-justice portal provides the public with information about legal remedies in cases of alleged violations of fundamental rights;
- in liaison with the European Parliament's Committee on Petitions, national human rights institutions and national authorities, the registries of the Court of Justice and the European Court of Human Rights and with other bodies of the Council of Europe, it will launch a joint reflection on the information available on legal remedies in the area of fundamental rights.
ANNUAL REPORT ON THE APPLICATION OF THE CHARTER
The Commission will present an Annual Report on application of the Charter which will have two objectives:
- to take stock of progress in a transparent, continuous and consistent manner. It will identify what has been done and what remains to be done for the effective application of the Charter;
- to offer an opportunity for an annual exchange of views with the European Parliament and the Council.
The Annual Report will provide a useful new way of throwing light on the implementation of the Charter of Fundamental Rights. The Commission will describe how it takes account of fundamental rights in drawing up its initiatives on the basis of the activities set out in this communication. It will also enable the Commission to explain before Parliament and the Council how the Charter was taken into account during the legislative process.
The Annual Report will cover all the rights contained in the Charter and how they are implemented within the Union's field of competence. Whilst having a separate scope, it will complement the annual report on human rights and democracy in the world which covers the Union's action in non-member countries[25]. The report will focus first and foremost on the activities of Union institutions, in particular those of the Commission. By covering all the rights set out in the Charter continuously, year after year, the report will enable us to monitor progress and the emergence of any new problems.
The Annual Report will look at the various matters brought to the attention of the Commission by citizens, members of the European Parliament and interested parties, and will identify issues of concern. By identifying the matters rightly notified to the Commission, and those which, in contrast, were the responsibility of other authorities, the report will also help to make members of the public better informed about the defence of their rights.
The Annual Report will describe what the Commission has done to ensure the effective application of the Charter, for instance through infringement proceedings and information activities. By increasing transparency and disseminating information about the Charter, the report may help the Member States to comply with the Charter when they implement Union law and thus reduce the need to resort to infringement proceedings.
In preparing its Annual Report the Commission will work in partnership with all institutions and stakeholders to gather the information and data required, including the fundamental rights case-law of the Court of Justice and the European Court of Human Rights, plus that of national courts when it concerns Union law.
The European Parliament , particularly through its questions and petitions, is a crucial intermediary for finding out about the fundamental rights situation in Member States in areas within the Union's competence. The Commission will explore with Parliament the best way of cooperating and harnessing their efforts in the preparation of its annual report and within the mechanisms for cooperation between Parliament and national parliaments.
With the Fundamental Rights Agency the Union has equipped itself with a tool to help its institutions and the Member States implement Union law; its main activity will be to provide reliable and comparable data on fundamental rights. This information will be crucial for the annual report and the Commission will encourage the Agency to collect such data.
In drawing up its report the Commission will also take on board information provided by all stakeholders, including national authorities , such as Supreme Courts, independent national human rights bodies and the national authorities in charge of assessing the impact of domestic legislation on fundamental rights. The monitoring machinery of the Council of Europe and the United Nations may also be a source of relevant information for the Union and the Member States when implementing Union law. Information from civil society will also be taken into account, since NGOs are best placed to know what is happening on the ground.
The Annual Report will thus enable all stakeholders to make a contribution to the ongoing process of implementing the Charter and, by making this process visible and transparent, will promote a fundamental rights dynamic in the European Union. The Commission is currently preparing the first Annual Report, which will cover 2010, for publication in spring 2011.
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The strategy presented by the Commission is based on a clear objective: the Union must set an example to ensure that the fundamental rights provided for in the Charter become reality. The Commission has taken steps to achieve this objective, in particular by strengthening the assessment of the impact of its proposals on fundamental rights. It will also encourage other Union institutions to ensure the full respect of the Charter in their legislative processes. It will remind Member States where necessary of the importance of complying with the Charter when they implement Union law. It will develop communication actions targeted on the needs of the public.
This strategy will be effective if it is implemented in a continuous, determined and transparent manner and with the involvement of all the interested parties. The Commission has decided to submit an Annual Report on the application of the Charter each year in order to show the progress that has been made and steer the development of its policy. This undertaking testifies to the Commission's determination to put the Charter into practice.
[1] Article 6(1) of the Treaty on European Union (TEU). In addition, Article 6(3) reaffirms that fundamental rights as guaranteed by the European Convention on Human Rights and as they result from the constitutional traditions common to the Member States are general principles of EU law.
[2] Article 6(2) TEU.
[3] European Parliament resolution of 25 November 2009 on the Communication from the Commission – An area of freedom, security and justice serving the citizen – Stockholm programme, P7_TA(2009)0090.
[4] Stockholm Programme, OJ C 115, 4.5.2010.
[5] Text of the solemn undertaking: I solemnly undertake: - to respect the Treaties and the Charter of Fundamental Rights of the European Union in the fulfilment of all my duties; - to be completely independent in carrying out my responsibilities, in the general interest of the Union; - in the performance of my tasks, neither to seek nor to take instructions from any Government or from any other institution, body, office or entity; - to refrain from any action incompatible with my duties or the performance of my tasks. I formally note the undertaking of each Member State to respect this principle and not to seek to influence Members of the Commission in the performance of their tasks. I further undertake to respect, both during and after my term of office, the obligation arising therefrom, and in particular the duty to behave with integrity and discretion as regards the acceptance, after I have ceased to hold office, of certain appointments or benefits .
[6] The Charter was solemnly proclaimed by Parliament, the Council and the Commission in Nice on 7 December 2000. On 12 December 2007 the Presidents of Parliament, the Council and the European Commission signed and once again solemnly proclaimed the Charter. This second proclamation was necessary because the Charter proclaimed in 2000 had been amended to make it legally binding.
[7] The rights and principles enshrined in the Charter stem from the constitutional traditions and international conventions common to the Member States, the European Convention on Human Rights, the Social Charters adopted by the Community and the Council of Europe, and the case law of the Court of Justice of the Union and the European Court of Human Rights.
[8] See Section I.3.
[9] Article 51(2) of the Charter states that it does not extend the field of application of Union law beyond the powers of the Union or establish any new power or task for the Union, or modify powers and tasks as defined in the Treaties.
[10] All the Member States have acceded to the main United Nations conventions on human rights, and the Council has adopted a decision on the conclusion by the European Community of the UN Convention on the Rights of Persons with Disabilities, OJ L 23, 27.1.10, p.35.
[11] The ban on torture, for example.
[12] Article 52 (2) of the Charter.
[13] Commission communication – 'Compliance with the Charter of Fundamental Rights in Commission legislative proposals - Methodology for systematic and rigorous monitoring', COM(2005) 172 final of 27.4.2005.
[14] Report on the practical operation of the methodology for a systematic and rigorous monitoring of compliance with the Charter of fundamental rights, COM(2009) 205 final of 29.4.2009.
[15] Impact Assessment Guidelines, SEC(2009) 92 of 15.1.2009.
[16] In its 'Communication on Smart Regulation in the European Union' (COM(2010) 543 final of 7.10.2010), the Commission stressed that in order to reflect the new status of the Charter it will reinforce the assessment of impacts on fundamental rights and develop operational guidelines on the matter.
[17] Article 2.1
[18] Point 3.4 of the report of 29.4.2009.
[19] Council document 14901/05 of 24.11.2005.
[20] The areas of judicial cooperation in criminal matters and police and administrative cooperation in the area of freedom, security and justice (Article 76 TFEU).
[21] For example, a connecting factor exists when national legislation transposes a Union Directive in a way contrary to fundamental rights, when a public authority applies Union law in a manner contrary to fundamental rights or when a final decision of a national court applies or interprets the Union law in a way contrary to the fundamental rights.
[22] The conditions for implementing this mechanism are explained in the Commission communication on Article 7 TEU on Article 7 of the Treaty on European Union - Respect for and promotion of the values on which the Union is based, COM(2003) 606 final of 15.10.2003.
[23] When young people between 15 and 18 were asked which problems might be encountered by under 18s seeking to defend their rights; Flash Eurobarometer No 273, May 2009, 'The Rights of the Child'.
[24] EU-MIDIS European Union Minorities and Discrimination Survey.
[25] See, for example, ' Human rights and democracy in the world: report on EU action - July 2008 to December 2009 '.