6 The EU Charter of Fundamental Rights
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9297/13
+ ADDs 1-10
COM(13) 271
| Commission Report 2012 on the application of the EU Charter of Fundamental Rights
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| Legal base | —
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| Documents originated | 8 May 2013
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| Deposited in Parliament | 15 May 2013
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| Department | Justice
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| Basis of consideration | EM of 29 May 2013
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| Previous Committee Report | None; but see (33837) 8905/12: HC 86-v (2012-13) chapter 3 (20 June 2012); (32648) 8453/11: HC 428-xxxiii (2010-12) chapter 14 (13 July 2011) and (32118) 15319/10: HC 428-xii (2010-12), chapter 3 (12 January 2011)
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| Discussion in Council | 14 May 2013
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| Committee's assessment | Legally and politically important
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| Committee's decision | Not cleared; further information requested
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Background and previous scrutiny
6.1 The EU Charter of Fundamental Rights ("the Charter")
was made legally binding by the Lisbon Treaty. The Charter applies
to all actions taken by EU institutions. It also applies to Member
States when they implement, or derogate from, EU law. The Charter
encompasses the rights established by the case law of the Court
of Justice, the European Convention on Human Rights (ECHR) and
the rights and principles founded in the constitutional traditions
of Member States. The Charter also includes less traditional rights,
or "third generation rights", such as data protection
and the right to transparent administration.
6.2 In its 2010 Strategy on the Effective Implementation
of the Charter of Fundamental Rights[24]
the Commission committed to reporting annually on the application
of the Charter and that document was debated in European Committee.[25]
We have also reported on the two previous annual Commission
reports.[26] We cleared
the first with a Report to the House but recommended the second
for debate on the Floor of the House which took place in July
2012.
6.3 The current document is the Commission's third
annual report on the application of the Charter, covering 2012,
and is accompanied by two Staff Working Documents. The first provides
detail on the application of key areas of specific rights set
out in the Charter — dignity; freedoms; equality; solidarity;
citizenship and justice. The second is a report on the implementation
of the Strategy for Equality between Women and Men (2010-2015).
The current document
6.4 In this third annual report, the Commission sets
out the purpose and scope of the report, pointing out an innovation
— an analysis of the case law of national courts on the
Charter — and explaining:
"This annual report is the basis for the
necessary dialogue between all the EU institutions and Member
States on the implementation of the Charter. It therefore forms
part of the process of political dialogue and scrutiny to ensure
that the Charter remains a reference point, to integrate fundamental
rights into all EU legal acts and when Member States apply EU
law. It also presents how a fundamental rights culture is being
developed in the EU by setting new legislation, where the EU has
competence to act, and through the jurisprudence of the Court
of Justice of the European Union ('the Court')."[27]
SCOPE OF THE CHARTER
6.5 The Commission highlights the fact that the Charter
is primarily directed towards the EU institutions and sets out
the steps taken by them to implement the Charter effectively,
principally by ensuring that EU legislation respects fundamental
rights.
AREAS OF SPECIFIC EU LEGISLATION IMPLEMENTING CHARTER
RIGHTS
6.6 The report identifies areas where the EU has
developed specific legislation to give effect to the rights and
principles in the Charter, including reform of the EU data protection
rules, work on the gender balance of corporate boards of listed
European companies and the rights of accused people and of victims
of crime. It also references the work of the EU Agency for Fundamental
Rights but notes that, in accordance with the wishes of the Council,
this excludes the areas of police co-operation and judicial co-operation
in criminal law matters. These in turn were excluded from the
Multiannual Framework for the Agency and caused delay in its adoption,
says the Commission.
FUNDAMENTAL RIGHTS CULTURE IN EU EXTERNAL ACTION
6.7 The Commission provides examples of the application
of a fundamental rights culture to the EU external actions, in
particular the Strategic Framework on Human Rights and Democracy
adopted by the Council in 2012.[28]
This, the Commission says, is "designed to improve the effectiveness
and consistency of EU human rights policy as a whole in the next
years". It notes that one of the first actions under the
new EU Strategic Framework and Action Plan was the appointment
by the Council of Mr Stavros Lambrinidis as EU Special Representative
(EUSR) for Human Rights.
6.8 It also notes the ECJ's decision in the Fulmen
and Mahloudian case. This related to a CFSP Council Decision to
freeze the assets of a company and its majority shareholder. The
ECJ annulled the Decision for lack of evidence and held that the
grounds for restrictive measures must be communicated both to
the entity and individual concerned in accordance with the principle
of effective judicial protection (Article 47 of the Charter).[29]
6.9 The rejection of the draft Anti-Counterfeiting
Trade Agreement (ACTA) by the European Parliament is another example
of the operation of fundamental rights in the context of EU external
action, says the Commission. ACTA is aimed at improving global
standards for the enforcement of intellectual property rights
to more effectively combat trade in counterfeit and pirated goods.
But the European Parliament refused to give its consent to ACTA,
referring in particular to the need for an appropriate balance
in agreement between freedom of expression and information and
the right to property as set out in the Charter.
ECJ JUDGMENTS ON EU INSTITUTIONS' COMPLIANCE WITH
CHARTER
6.10 The report sets out the judgments of the ECJ
concerned with compliance by EU institutions with the Charter
in both the EU's legislative and non-legislative work. Examples
given include the annulment of a Council implementing Decision
because the exercise of delegated legislative powers in the context
of the surveillance of external sea borders of the EU affected
personal freedoms and fundamental rights requiring political choices
only appropriate to be taken by the EU legislature.[30]
The ECJ also annulled several notices of open recruitment competitions
for EU institution civil servants as not complying with the principle
of non-discrimination as they had only been published in three
official languages.[31]
The principle of good administration by the EU institutions
(Article 41 of the Charter) also features in an ECJ decision where
a decision of the Commission to reject an offer in the context
of an invitation to tender for public service procurement was
annulled because the Commission did not provide sufficient justification
for its decision.[32]
6.11 The Commission also explains how ECJ rulings
have triggered modifications to EU legislation during its negotiation,
citing the new "Dublin Regulation" on the condition
for the transfer of asylum seekers in the EU[33]
and its proposal on the publication of the beneficiaries
of EU agricultural funds.[34]
IMPLEMENTATION OF THE CHARTER IN MEMBER STATES
6.12 In looking at Member States' application of
the Charter, the Commission first prefaces its analysis with some
fundamental statements about the status and role of the Charter
in relation to national systems of fundamental rights. It states:
"Within the EU, the protection of fundamental
rights is ensured by a two-layered system: the national system
based on Member States' constitutions and international legal
obligations, such as the European Convention on Human Rights (ECHR);
and the EU system based on the Charter, which comes into operation
only in relation to actions by EU institutions, or when Member
States implement EU law. The Charter complements existing systems
for the protection of fundamental rights, it does not replace
them."[35]
6.13 It also outlines the fundamental principle,
supported by the ECJ in the Vinkov case,[36]
that the provisions of the Charter are addressed to the Member
States only when they are implementing EU law and neither the
Charter nor the Treaty creates any new competence for the EU in
the field of fundamental rights. It confirms that where the national
legislation at stake does not constitute a measure implementing
EU law or is not connected in any other way with EU law, the jurisdiction
of the ECJ is not established.
6.14 However, the report then examines the implementation
of the Charter in Member States, looking in particular at the
following three areas.
Preliminary Rulings
6.15 The report examines the increasing number of
requests for a preliminary ruling from national jurisdictions
received by the ECJ. It says:
"For example, in the field of asylum the
[ECJ] upheld that whenever an application for asylum is lodged
at the border or in the territory of a Member State, that Member
State is obliged to grant the minimum conditions for reception
of asylum seekers laid down in EU law regardless of whether a
Member State is responsible for examining the application for
asylum under EU law.[37]
In particular, the need to uphold fundamental principles of human
dignity (Article 1) and the right to asylum (Article 18) means
that, the obligation under EU law[38]
to provide an asylum seeker with housing, food, clothes and a
daily expenses allowance, and the subsequent financial onus, are
to be borne by the requesting Member State until the asylum seeker
is transferred to the Member State responsible for examining their
application".[39]
Action taken by the Commission against Member
States
6.16 The report discusses action taken by the Commission
to ensure that Member States, where appropriate, respect the rights
and principles reaffirmed in the Charter, as in the case of Hungary,
France and Malta.
6.17 It reports that for the first time, in 2012,
the Commission took a first set of infringement proceedings against
a Member State, Hungary, in relation to a national law passed
by Hungary which, the Commission argued, threatened the independence
of the Hungarian data protection authority; not only required
by the Data Protection Directive but also by Article 16 TFEU and
Article 8 of the Charter. A second set of infringement proceedings
against Hungary related to the imposition of a mandatory retirement
age for judges, which the Commission successfully contested on
the grounds that it infringed Directive 2000/78/EC on equal treatment
in employment together with the principle of non-discrimination
on grounds of age recognised by Article 21 of the Charter.[40]
Additionally, the Commission engaged in dialogue with Hungary
over proposed media legislation and the impact on media freedoms
guaranteed by the Charter. Finally, the fundamental rights of
citizens and business to an effective remedy by an independent
court (Article 47 of the Charter) were the subject of further
discussions in relation to the powers of the Hungarian President
of the National Judicial Office to reallocate cases from one court
to another and to transfer a judge against his or her will.
6.18 The Commission also discusses its management
of the situation in August 2012 of the French dismantling of Roma
settlements and the repatriation of Roma people. This has since
been resolved as France modified its law to comply with the procedural
requirements of the Citizens' Free Movement Directive, 2004/38/EC.
The Commission does not explicitly mention the Charter rights
that it considered were engaged by French action.[41]
6.19 Finally, the Commission also commenced infringement
proceedings against Malta for failing to implement properly EU
free movement of persons rules and, in particular, the question
of same-sex spouses or registered partners joining EU citizens
in Malta to reside with them. The question has been resolved by
Malta modifying its laws to comply with free movement rules and
the principle of non-discrimination under the Charter.
Development of national case law on Charter
6.20 The report outlines how national courts are
referring to the Charter in their judgments, mainly in the context
of immigration and asylum law, with the most frequently cited
rights being respect for private and family life; freedom of expression
and information; right to property; right to asylum; prohibition
of collective expulsion and non-refoulement; rights of the child,
right to good administration and the right to an effective remedy
and to a fair trial. Much of the discussion is based on data gathered
by the Association of Councils of States and of Supreme Administrative
Courts (ACA).[42]
6.21 Of particular interest are the two assessments
made by the Commission on the basis of that data about how the
Charter is being applied in some national legal systems. Firstly
that:
"the analysis of court rulings referring
to the Charter further suggests that national judges use the Charter
to support their reasoning, including when there is not necessarily
a link with EU law."[43]
6.22 The second assessment made by the Commission
is that:
"There is also some evidence of an incorporation
of the Charter in the national systems of fundamental rights protection.
The Austrian Constitutional Court handed down a landmark decision
regarding the application of the Charter in the frame of domestic
judicial review of constitutionality.[44]
It recognised the very special role of the Charter within the
EU legal system, and its different nature compared to the body
of rights and principles which the Court of Justice of the EU
has been developing throughout the years. It took the view that
the Charter is enforceable in the proceedings brought before it
for the judicial review of national legislation, and therefore
individuals can rely upon the rights and the principles recognised
in the Charter when challenging the lawfulness of domestic legislation.
The Austrian Constitutional Court identified strong similarities
between the role played by the Charter in the EU legal system
and that played by the ECHR under the Austrian Constitution, according
to which the ECHR has force of constitutional law."[45]
PROGRESS OF EU ACCESSION TO THE ECHR
6.23 The report includes a progress update on EU
accession to the ECHR. It simply notes that negotiations on the
Accession Agreement have been on-going since June 2012 in the
Council of Europe "47+1" group while at the same time
parallel work has been undertaken on the EU internal rules intended
to govern the participation of the EU and Member States in proceedings
before the Strasbourg court.
COMMISSION'S CONCLUSIONS
6.24 The Commission considers that the take-up of
the Charter by national law just after just three years in force
as EU primary law, is "a positive sign". It continues:
"The increasing reference to the Charter
gives a first indication of an effective, decentralised application
of the Charter within the national constitutional orders. This
is an important step on the road to a more coherent system for
the protection of fundamental rights which guarantees equal levels
of rights and protection in all Member States whenever EU law
is being implemented." [46]
6.25 Nevertheless, the Commission also says that
it is itself "committed to lead by example in ensuring that
all EU acts comply with the Charter" and "remains determined
to take decisive steps to give concrete effect to the Charter
when it has the competence to do so." Likewise, it is committed
to intervening "where necessary" when Member States
implement EU law in order to ensure the effective implementation
of the Charter."[47]
6.26 It concludes the report by saying that it will
"keep the development of fundamental rights protection in
the EU, including the evolving case-law on the application of
the Charter both at Union and at national level, under close review
and calls upon the European Parliament and the Council of Ministers
to discuss the present report in detail."[48]
The Government's view
6.27 The Lord Chancellor and Secretary of State
for Justice (Chris Grayling) says that the Government:
- sees the report as a useful
retrospective analysis of the Charter's application in practice
which does not contain any new proposals;
- has already conveyed its views to the Committee
on any Commission Communications, measures or proposals referred
to in the report as part of the normal EU parliamentary scrutiny
process and so does not comment on those further;
- agrees that the EU should respect individuals'
rights in the same way as its Member States and welcomes a regular
review of how effectively the Charter ensures that EU legislation
does not breach those rights;
- is reassured by the confirmation that the Charter
only applies to Member States when implementing EU law;
- notes the confirmation by the ECJ of the view,
shared by the UK, that the Charter's role is merely to clarify
and make more accessible rights and principles that were already
recognised in EU law before the Lisbon Treaty;
- highlights the delay in adopting a new multi-annual
framework for the Agency for Fundamental Rights which is based
on Article 352 TFEU and for which approval by Act of Parliament
under the European Union Act 2011 (the European Union (Approvals)
Act 2013)[49] was obtained
when Royal Assent was given on 28 February 2013. The Minister
adds: "given the importance of human rights, Parliament undertook
thorough scrutiny of the proposal" through the progress of
that Act;
- welcomes progress made on equality between women
and men (in particular, the reference to the report on the progress
being made across the EU to appoint more women to the boards of
listed companies); and
- has pinpointed an inaccurate reference on page
9 of the Commission Staff Working Document to the adoption of
new rules regarding the surveillance of the external EU's sea
borders (EUROSUR), in the context of operational cooperation
coordinated by FRONTEX. The Minister informs us that the
intention was clearly to make reference to a proposal adopted
by the Commission to establish new rules on maritime border surveillance
in the context of operational cooperation coordinated by FRONTEX,
including on the high seas. There should have been no specific
reference to EUROSUR.
6.28 Finally, the Minister says that Draft Council
Conclusions in response to the report were discussed at the Council
working group on 14 May 2013.
Conclusion
6.29 We recognise that this Commission report
on the application of the EU Charter of Fundamental Rights has
no immediate policy, legal or financial implications for the UK.
We are nonetheless disappointed at the somewhat cursory nature
of the Government's Explanatory Memorandum on it and note that
the EM does not comment on the section of the report concerning
how the Charter is being implemented in Member States. In our
view the questions of how the Charter is being applied by national
courts and the Commission's approach to taking enforcement action
against Member States to ensure respect for the Charter when implementing
EU law are of legal significance.
6.30 In particular, we draw to the Secretary of
State's attention the Commission's analysis of national court
rulings referring to the Charter (page 9 of the report) and its
mention of national judges not only using "the Charter to
support their reasoning, including when there is not necessarily
a link with EU law" but also of there being "some evidence
of an incorporation of the Charter in the national systems of
fundamental rights protection".
6.31 We would therefore be grateful if the Minister
could assess the development of national case law on the application
of the Charter within Member States, including the application
of ECJ rulings as a result of preliminary references by national
courts as referred to in the Commission's report. We would be
particularly interested to know whether he thinks this will have
any impact on the application of the Charter within the UK.
6.32 Finally, in our conclusions on the Commission's
last annual report we questioned whether a formal, transparent,
objective framework for the reports had been agreed. We considered
that such a framework would prevent the Commission from taking
an overly self-selective approach to the content of the annual
reports. We ask the Minister to update us on progress on this
issue.
6.33 In the meantime, this document remains under
scrutiny.
24 COM (2010) 573 final. Back
25
www.publications.parliament.uk/pa/cm201011/cmgeneral/euro/110314/110314s01.htm. Back
26
See headnote. Back
27
p.2 of the Commission report, see headnote. Back
28
Strategic Framework and Action plan on Human Rights and Democracy
Council Document no. 11417/12 EXT 1 of 28.06.2012. Back
29
ECJ, Case T-439/10 and T-440/10, Fulmen and F. Mahloudian v
Council, 21.03.2012. Back
30
ECJ, Case C-355/10, European Parliament v. Council of EU,
5.09.2012. Back
31
ECJ, Grand Chamber, Case C-566/10 P, Italian Republic v Commission,
27.11.2012. Back
32
ECJ, Case T-183/10, Sviluppo Globale GEIE v Commission,
10.10.2012. Back
33
Proposal for a Regulation establishing the criteria and mechanisms
for determining the Member State responsible for examining an
application for international protection lodged in one of the
Member States by a third-country national or a stateless person,
COM (2008) 820 final. Available at: http://eur-lex.europa.eu/LexUriServ/LexUriServ.do?uri=COM:2008:0820:FIN:EN:PDF. Back
34
Amendment to the Commission proposal COM (2011) 628 final/2 for
a Regulation on the financing, management and monitoring of the
common agricultural policy, COM (2012) 551 final. Available at:
http://ec.europa.eu/agriculture/funding/regulation/amendment-com-2012-551_en.pdf. Back
35
p.6 of the Commission report, see headnote. Back
36
ECJ, Case C-27/11, Vinkov, 07 June2012. Back
37
ECJ, Case C-179/11 Cimade and Groupe d'information et de soutien
des immigrés (GISTI) v. Ministre de l'Intérieur,
de l'Outre-mer, des Collectivités territoriales et de l'Immigration,
27.09.2012. Back
38
Council Directive 2003/9/EC laying down minimum standards for
the reception of asylum seekers, OJ No. L 31, 6.2.2003, pp.18-25. Back
39
p.7 of the Commission report, see headnote. Back
40
ECJ, Case C 286/12, European Commission v. Hungary, 6.11.2012. Back
41
A 2012 European Parliament Resolution on the expulsion of the
Roma from France cites Articles 8, 19, 21, 24, 45, 47, 51 of the
Charter of Fundamental Rights of the European Union as having
been engaged. http://www.europarl.europa.eu/sides/getDoc.do?pubRef=-//EP//TEXT+MOTION+B7-2010-0503+0+DOC+XML+V0//EN. Back
42
http://www.aca-europe.eu/en/colloquiums/colloq_en_23.html. Back
43
p.9 of the Commission's Report, see headnote. Back
44
Austrian Constitutional Court, Cases U466/11 and U1836/11, 14.03.2012. Back
45
p.9 of the Commission report, see headnote. Back
46
p.10 of the Commission report, see headnote. Back
47
All quotations in this para can be found at p.10 of the Commission's
report, see headnote. Back
48
p.10 of the Commission's report, see headnote. Back
49
http://www.legislation.gov.uk/ukpga/2013/9/enacted. Back
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