Annexes to COM(2018)396 - 2017 Annual Report on the Application of the EU Charter of Fundamental Rights - Main contents
Please note
This page contains a limited version of this dossier in the EU Monitor.
| dossier | COM(2018)396 - 2017 Annual Report on the Application of the EU Charter of Fundamental Rights. |
|---|---|
| document | COM(2018)396  |
| date | June 4, 2018 |
In the Aisha Muammer Mohamed El-Qaddafi v Council case,46 the General Court annulled the Council Decision47 and Regulation48 in so far as it maintained the name of Ms Muammer Mohamed El-Qaddafi on the list of people to whom restrictive measures applied in view of the situation in Libya.49 The measures related to the ban on entry and transit on Libyan
42Available at: http://data.consilium.europa.eu/doc/document/ST-12913-2017-INIT/en/pdf.
43Available at: https://beta.e-justice.europa.eu/?action=home&plang=en.
442017 Annual Work Programme is available at: http://ec.europa.eu/justice/grants1/programmes-2014-2020/files/
awp_2017/2017_justice_work_programme_annex_en.pdf.
45Available at: http://europa.eu/rapid/press-release_STATEMENT-17-2105_en.htm.
46T-681/14.
472014/380/CFSP of 23 June 2014 amending Decision 2011/137/CFSP.
48No 689/2014 of 23 June 2014 implementing Article 16(2) of Regulation (EU) No 204/2011.
49Annexes I and III to Council Decision 2011/137/CFSP of 28 February 2011 Annex II to Council Regulation
(EU) No 204/2011 of 2 March 2011.
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territory and provided that funds and financial assets owned or controlled by the people listed are to be frozen. The General Court ruled that it was not possible to conclude from the statement of reasons for the measures why the original grounds for having the applicant’s name on the list remained relevant despite the evolution of the situation in Libya. Therefore, it found that the Council infringed its obligation to state the actual and specific reasons for maintaining such restrictive measures - a corollary to the respect for the applicant’s right of defence, which also derives from Articles 41, 47 and 48(2) of the Charter.
3. Charter application in and by Member States
3.1 Developments in fundamental rights and the rule of law
In 2017, the Commission issued a reasoned opinion on the application by Hungary of EU asylum and migration law interpreted in light of several Charter provisions, including the right to asylum, the right to liberty and security, and the right to an effective remedy.50
It also referred to the CJEU three cases that raised issues on the respect of fundamental rights under the Charter. The first concerned the compatibility of reporting and transparency obligations for foreign-funded civil society organisations with the right to freedom of association, the right to respect for private life and the right to the protection of personal data, read in conjunction with Treaty obligations on the free movement of capital.51 The second case touched upon the right of academic freedom, the right to education and the freedom to conduct a business, in relation to rules affecting the freedom for higher education institutions to provide services and establish themselves anywhere in the EU and to the EU’s legal obligations under international trade law.52 The third case concerned the compatibility of national rules governing the prolongation of mandates of judges of ordinary courts with the principle of judicial independence, in particular with the obligation for Member States to provide remedies sufficient to ensure effective legal protection in the fields covered by EU law as provided by Article 19(1) of the Treaty on European Union, read in connection with the right to an effective remedy and to a fair trial as enshrined in Article 47 of the Charter.
The Charter applies to Member States only when they are implementing EU law. Infringement procedures based on the Charter can therefore only be triggered when a
50Available at: http://europa.eu/rapid/press-release_IP-17-5023_en.htm. 51Available at: http://europa.eu/rapid/press-release_IP-17-5003_en.htm. 52Available at: http://europa.eu/rapid/press-release_IP-17-5004_en.htm.
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sufficient link to EU law is established. However, even when acting outside the implementation of the EU law, Member States are obliged to respect the values on which the EU is founded. In particular, respect for the rule of law is a precondition for the protection of fundamental rights. As regards the situation in Poland, in 2016 and 2017 the Commission issued four Recommendations under its Rule of Law Framework53 concerning several laws limiting the independence of the judiciary and the separation of powers in Poland and affecting the entire structure of the Polish justice system, in particular the Constitutional Tribunal, the Supreme Court, ordinary courts and the National Council for the Judiciary. In December 2017, the Commission concluded that there is a clear risk of a serious breach of the rule of law in Poland and proposed to the Council to adopt a decision under Article 7(1) of the Treaty on European Union.54 Simultaneously, the Commission adopted a fourth Recommendation under its Rule of Law Framework, inviting the Polish authorities to solve the problems identified within three months. The Commission also decided to refer Poland to the CJEU for breaches of EU law by the law on ordinary courts organisation.
3.2 Court of Justice guidance to Member States
In the Achbita55 and Bougnaoui56 cases, the CJEU clarified the interpretation of provisions under the Employment Equality Directive (2000/78/EC) in the light of the balance to be struck between the freedom of religion or belief (Article 10), the freedom to conduct a business (Article 16), and the principle of non-discrimination (Article 21). Both cases concerned the prohibition of wearing the Islamic headscarf in the private workplace. In the Achbita case, the Court held that an internal policy relating to the visible wearing of any political, philosophical or religious signs should be assessed having regard to the employer’s freedom to conduct a business. Accordingly, a policy of political, philosophical and religious neutrality may constitute a legitimate objective that justifies different treatment, if the means of achieving the aim are appropriate and necessary, in line with relevant case law of the European Court of Human Rights.57 In the Bougnaoui case, the Court further clarified that, in
53In 2014, the Commission introduced a framework aiming to address situations of emerging systemic threats to
the rule of law which cannot be effectively tackled by safeguards at national level or existing instruments (in
particular infringement procedures) at EU level. Communication entitled ‘A new EU Framework to Strengthen
the Rule of Law’, COM(2014)158 final.
54Available at: http://europa.eu/rapid/press-release_IP-17-5367_en.htm.
55C-157/15.
56C-188/15.
57The Court of Justice referred, in particular, to the ECtHR judgment of 15 January 2013 in case 48420/10,
36516/10, 51671/10 et al., Eweida and Others v. the United Kingdom.
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the absence of such a policy, the willingness of an employer to take account of a customer’s wish to no longer benefit from the employer’s services provided by a worker wearing an Islamic headscarf may not be considered a genuine and determining occupational requirement that could rule out discrimination within the meaning of the Employment Equality Directive.
In the M.A.S. and M.B. cases,58 the Court provided further clarification on the obligation for national courts to disapply national rules on limitation periods if these result in a situation where people charged with serious value added tax (VAT) fraud may escape conviction.59 The Court held that the obligation to combat fraud and any other illegal activities affecting the EU’s financial interests may never run counter to the Charter principle that offences and penalties must be defined by law, which requires that rules of criminal law are precisely determined and cannot be retroactive.
In the Soufiane El Hassani v. Minister Spraw Zagranicznych case,60 the Court held that Article 47 of the Charter (right to an effective remedy) requires the Member States to guarantee, at a certain stage of the proceedings, the possibility to bring the case concerning a final decision refusing a visa before a court.
3.3. National case law quoting the Charter
National judges play a key role in upholding fundamental rights and the rule of law. The EU Agency for Fundamental Rights found that national courts continued referring to the Charter for guidance and inspiration in 2017, even in a substantial number of cases that fell outside the scope of EU law.61
The Charter for instance served as a parameter for assessing Member States’ legislation implementing EU law in two cases related to data protection. The Finnish Administrative Court assessed the compatibility of the Personal Data Act of 1999 with the Charter in a case concerning the storage of fingerprint data in the passport register. It found that the restrictions of the right to respect for private life and to the protection of personal data are precise and defined in sufficient detail and therefore not contrary to the Charter.62 The Higher Administrative Court in Germany assessed the compatibility of the German
58C-42/17.
59See judgment in Case C‑ 105/14, Taricco. 60C-403/16.
61EU Agency for Fundamental Rights’ 2017 Annual Report, to be published in May 2018. 62Finland, Supreme Administrative Court, case 3872/2017, 15 August 2017.
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Telecommunication Act, implementing the e-Privacy Directive 2002/58/EC, with the Charter. The Court found that the limitation of the freedom to conduct a business (Article 16) was unjustified and hence incompatible with the Charter.63
Outside the scope of the application of EU law, the courts used the Charter to strengthen the protection provided by national constitutions. In particular, the Constitutional Court of Croatia, in a case concerning the violation of the right to dignity (Article 1) of a twelve year-old boy due to a body check performed by a security guard, clarified that by joining the European Union, the Republic of Croatia accepted the contents of the Charter, including chapter I on Dignity. Human dignity therefore became a component of the human rights catalogue of the Croatian Constitution.64 In Bulgaria, the Constitutional Court referred to the Charter in the context of a constitutional review of a provision in the Judiciary Act, which prohibits judges and prosecutors from resigning when a disciplinary proceeding is still pending. The Court concluded that the provision violated the Bulgarian Constitution, and also referred to Article 15 of the Charter on the right to engage in work ‘in accordance to which everyone has the right to engage in work and to pursue a freely chosen or accepted
occupation’.65
4. Focus section: 2017 Annual Colloquium on Fundamental Rights ‘Women’s rights under attack’
The Annual Colloquium is a unique space for dialogue between policy makers and civil society, aiming to strengthen cooperation and engagement for the protection and promotion of fundamental rights in the EU. The third Annual Colloquium held on 20-21 November 2017 explored the topic of ‘women’s rights in turbulent times’.66
Participants discussed the risk of normalising misogyny in society and its impact on women’s fundamental rights in all spheres of life. They underlined that, although threats to women’s rights and to gender equality have been very visible in public discourse recently, so have responses (e.g. Women’s Marches and the #metoo movement online). The role of grassroots actors in defending women’s rights and the role of men in the women’s rights movement were also stressed.
63Germany, Higher Administrative Court North Rhine-Westphalia, case 13 B 238/17, 22 June 2017.
64Croatia, Constitutional Court, case U-III-1095/2014, 21 September 2017.
65Bulgaria, Constitutional Court, case 6/2016, 31 January 2017.
66Available at: http://ec.europa.eu/newsroom/just/item-detail.cfm?item_id=115277.
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A second area of discussion was the key obstacles to gender equality in economic empowerment and political participation. Participants highlighted the fact that gender stereotypes must be tackled from an early age to effectively address women’s underrepresentation in work, decision-making and politics. National and European political parties were asked to commit to consistently include women on party lists, for example through greater transparency in candidate selection and women’s caucuses. Participants also called for more pay transparency and for horizontal and vertical labour market segregation to be addressed.
Participants also considered the ‘culture of violence’ in society and the links between violence against women and other forms of violence, including in the context of populist and extremist movements. They emphasised the need to shift the fear and shame away from victims of gender-based violence to perpetrators, and to bring about a cultural change, so that violence and harassment would be considered unacceptable.
The EU’s accession to the Council of Europe’s Convention on preventing and combating violence against women and domestic violence (the Istanbul Convention)67 was seen as a strong signal. Work is now being carried out to ensure swift EU ratification. At the end of 2017, all EU Member States had signed the Istanbul Convention and 17 Member States68 had ratified it.
Throughout the sessions, participants emphasised that different grounds for discrimination (such as gender, race, immigration status and disability) intersect, which should be considered by policy makers. The debate was informed by the results of a special Eurobarometer survey
on gender equality.69
Colloquium conclusions were published on 8 March 2018.70 The Commission committed to a number of actions ranging from putting women’s rights and gender equality on the agenda at the highest political level, for instance during every meeting of the Commission’s Project Team on Sustainable Development, to funding grassroots projects under the Rights, Equality and Citizenship programme.
67Available at: https://www.coe.int/fr/web/conventions/full-list/-/conventions/rms/090000168008482e.
68BE, DK, DE, EE, ES, FR, IT, CY, MT, NL, AT, PL, PT, RO, SI, FI, SE.
69Available at: http://ec.europa.eu/commfrontoffice/publicopinion/index.cfm/Survey/getSurveyDetail/instru
ments/SPECIAL/surveyKy/2154.
70Available at: http://ec.europa.eu/newsroom/just/document.cfm?doc_id=50219.
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5. Conclusion
This year, marking the 70th Anniversary of the UN Universal Declaration on Human Rights, the Commission will pursue efforts to protect and promote fundamental rights. It is determined, including in the context of the future financial framework for the Union, to further support common values.
It will focus its 2018 fundamental rights colloquium on “Democracy”, an opportunity to reaffirm one of the EU’s key values in the run-up to the European elections. A broad participation and representation, sound and transparent information, including in the digital world, and a free and vibrant civil society are the key ingredients for inclusive and healthy democratic societies. These questions will be at the heart of the colloquium discussions.
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