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Questions & Answers: Report on the EU Charter of Fundamental Rights and Progress Report on Gender Equality

European Commission - MEMO/14/284   14/04/2014

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European Commission

MEMO

Brussels, 14 April 2014

Questions & Answers: Report on the EU Charter of Fundamental Rights and Progress Report on Gender Equality

What are fundamental rights?

The EU Charter of Fundamental Rights sets out a series of individual rights and freedoms. It entrenches the rights developed in the case law of the Court of Justice of the EU, found in the European Convention on Human Rights, as well as other rights and principles resulting from the constitutional traditions of EU Member States and other international instruments.

With the entry into force of the EU's Lisbon Treaty on 1 December 2009, the Charter became legally binding for EU institutions and national governments, just like the EU Treaties themselves – the legal bedrock on which the EU's actions are based.

What is the annual report on the Charter?

After the entry into force of the EU Charter of Fundamental Rights, in December 2009, the Commission adopted a Strategy on the effective implementation of the Charter setting out the respect of fundamental rights as a key objective, in particular when it legislates.

The Commission is committed to preparing annual reports to better inform EU citizens on the application of the Charter and to measure progress in its implementation. This is now the fourth annual Commission report on the application of the EU Charter of Fundamental Rights. The previous three reports can be found here.

When does the Charter apply?

In the European Union, the protection of fundamental rights is guaranteed both at national level by Member States' constitutional systems and at EU level by the Charter of Fundamental Rights of the European Union.

The Charter applies first and foremost to the EU institutions and to all actions taken by the EU institutions. The role of the Commission is to ensure that all its legislative acts respect the Charter. All EU institutions (including the European Parliament and the Council) must respect the Charter, in particular throughout the legislative process.

The Charter only applies to Member States when they implement EU law. The link between an alleged violation of the Charter and EU law will depend on the situation in question. For example, a connecting factor exists: when national legislation transposes an EU Directive in a way contrary to fundamental rights, when a public authority applies EU law in a manner contrary to fundamental rights, or when a final decision of a national court applies or interprets EU law in a way contrary to fundamental rights.

How is the Charter implemented in Member States?

Within the EU, the protection of fundamental rights is ensured by a two-layered system. First, the national system based on Member States' constitutions and international legal obligations, such as the European Convention on Human Rights (ECHR).

Second, 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 the existing national systems for the protection of fundamental rights, it does not replace them.

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.

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 Court is not established.

How many questions on fundamental rights does the Commission receive?

In 2013, the Commission received almost 4000 letters from citizens concerning fundamental rights issues. Among these, 69% concerned situations where the Charter could apply. In a number of cases, the Commission requested information from the Member States concerned, or explained to the complainant the applicable EU rules. In other cases, the complaints should in fact have been addressed to the national authorities or to the European Court of Human Rights. Where possible, complainants were redirected to other bodies for more information (such as national data protection authorities).

The number of enquiries concerning situations which entirely fell outside EU competence is progressively decreasing: from 69% in 2010, 54% in 2011, 42% in 2012, to only 31% in 2013. This shows that the Commission’s efforts to raise awareness of how and where the Charter applies are paying off.

In addition, the Commission also received over 900 questions from the European Parliament and around 120 petitions. In 2013, the Europe Direct Contact Centres (EDCC) replied to 11974 enquiries from citizens a large majority of whch related to fundamental rights.

How many Court of Justice rulings refer to the Charter?

The Court of Justice of the EU has increasingly referred to the Charter in its decisions over the past year: the number of decisions by the Court quoting the Charter in its reasoning almost doubled from 43 in 2011 to 87 in 2012. In 2013, the number of these decisions quoting the Charter amounted to 114, which is almost three times the number of cases of 2011.

For example, in 2013 the Court, in the Kadi II case (C-584/10), clarified certain procedural rights of people suspected of association with terrorism and against whom penalties and restrictive measures are taken, including the right to good administration, the right to an effective remedy and the right to a fair trial (Articles 41 and 47). The Court ensured the protection of fundamental rights and freedoms whilst recognising the imperative need to combat international terrorism.

In the Besselink case (T-331/11), the General Court gave effect to the right of access to documents, enshrined in Article 42 of the Charter, and it annulled in part a decision by the Council refusing access to a document on the EU’s accession to the ECHR.

How often do national courts refer to the Charter?

Likewise, national courts have also increasingly referred to the Charter when addressing questions to the Court of Justice (preliminary rulings): in 2012, such references rose by 65% compared to 2011, from 27 to 41. In 2013 the number of referrals remained at 41, the same as in 2012.

For example, in the much debated Åkerberg Fransson judgment (C-617/10) in 2013 the Court gave guidance on the applicability of the Charter in the context of a Member State collecting VAT from an individual. The question raised in this context was whether the Member State could impose administrative and criminal sanctions for tax evasion or whether this would infringe the principle of ne bis in idem (the principle that a person should not be punished twice for the same offence), enshrined in Article 50 of the Charter even though the underlying national legislation had not been adopted to transpose EU law

This ruling is an important step in the on-going process to clarify the interpretation of Article 51 of the Charter, namely the question when Member States can be said to be "implementing EU law" (which triggers the application of the Charter). In this case the Court pointed to the fact that under EU law, Member States have an obligation to ensure the collection of all the VAT due, in order to counter illegal activities affecting the financial interests of the EU, and to take the same measures to counter fraud affecting the financial interests of the EU as they take to counter fraud affecting their own financial interests. As a consequence, the Charter was in principle applicable in this case.

The analysis of court rulings referring to the Charter suggests that national judges use the Charter to support their reasoning, including when there is not necessarily a link to EU law.

How has the Charter been applied in each area during 2013?

1) Dignity

Human dignity issues arose in a few instances in 2013. Already when adopting legislation allowing the use of security scanners at EU airports, the European Commission had considered the impact on fundamental rights, namely on human dignity. Hence, a possibility for travellers to opt-out and be checked by alternative screening methods was inserted. In 2013, the European Commission followed up on a number of parliamentary questions and letters from citizens raising concerns that some airports were not offering passengers alternative control methods (opt-out) on request. This constituted a breach of EU law and the European Commission requested the Member State concerned to take corrective action – which it did on 21 November issuing a new measure.

In 2013, the European Commission also adopted its first policy Communication on female genital mutilation, demonstrating the commitment of the EU to address an important issue of gender based violence (IP/13/1153).

Furthermore, as part of the EU Strategy towards the Eradication of Trafficking in Human Beings 2012-2016, the Commission launched the European Civil Society Platform against Trafficking in Human Beings in 2013. This Platform brought together numerous civil society organisations from the EU Member States as well as neighbouring priority countries (IP/13/484). The European Commission also established an EU anti-trafficking website and discussed the problem of online recruitment of victims and facilitation of trafficking in human beings at the EU Anti-trafficking Day conference in Vilnius.

2) Freedoms

Focus on data protection

2013 was an important year for the right to protection of personal data. In light of last year’s revelations about global surveillance programmes potentially monitoring all citizens’ communication, data protection was the most prominent topic in the letters sent to the Commission in the area of "protecting freedoms".

To address citizens' concerns the EU institutions acted:

Progress was made in the negotiations towards a new data protection standard. In March 2014, the European Parliament’s plenary cemented its strong support for the European Commission's data protection reform (MEMO/14/186 and MEMO/14/60) confirming the architecture and the fundamental principles of the Commission's proposals. The aim of the reform is to put individuals back in control of their data by updating their rights to the protection of personal data (Article 8 of the EU Charter). Explicit consent, the right to be forgotten, the right to data portability and the right to be informed of personal data breaches are key elements. They will help to close the growing rift between citizens and the companies with which they share their data, willingly or otherwise.

The European Commission also set out specific actions to be taken in order to restore trust in data flows between the EU and the U.S., following the mass surveillance programmes (IP/13/1166 and MEMO/13/1059). These include ensuring that safeguards apply to EU citizens in U.S. surveillance programmes as well as concluding negotiations concerning the EU-U.S. data protection umbrella agreement in the law enforcement sector. At the last EU-U.S.-Justice and Home Affairs Ministerial Meeting (of 18 November, 2013) good progress was made as the U.S. committed to working to resolve the main outstanding issue for the EU – namely to give EU citizens who are not resident in the U.S. the right to judicial redress if their data has been mishandled (MEMO/13/1010).

The European Commission also made 13 recommendations to improve the functioning of the Safe Harbour scheme. Solutions should be identified by summer 2014, otherwise Vice-President Reding made clear that "Safe Harbour will be suspended" (SPEECH/14/62).

Asylum

The European Parliament and the Council adopted the recast Dublin Regulation which guarantees effective remedy to applicants on appeals against transfer decisions, thus ensuring full effect of the right of an asylum seeker to remain on the territory and reducing the risk of ‘chain refoulement’ (Article 19(2) of the Charter). It also incorporates the Court’s case law requiring that an asylum seeker is not sent back to a Member State where there is a serious risk of violation of his/her fundamental rights. In such a case, another Member State is to assume responsibility without delay, in order not to jeopardise the asylum seeker’s quick access to justice.

The European Parliament and the Council also adopted the Asylum Procedures Directive and the Reception Conditions Directive. The former reinforces guarantees safeguarding the fundamental right to asylum, in particular, by strengthening the right to access asylum procedures (Articles 18 and 19), including clearer standards to more effectively safeguard the fundamental right to dignity, especially as regards vulnerable asylum seekers. It further harmonises the rules on detention, laying down clear and restrictive grounds and conditions for detention and guarantees for detainees (Articles 1, 4, 6, 7, 18, 21, 24, and 47).

3) Equality

Gender equality

Large companies across the EU continue to be predominantly run by men: women represent only 17.8% of the members of boards of directors in the largest publicly-listed companies and only 2.8% of Chief Executive Officers (see IP/14/423). In order to achieve substantive equality between women and men on corporate boards, in accordance with Article 23 of the Charter, the Commission proposed a Directive to improve the gender balance of non-executive directors of companies listed on stock exchanges. The European Parliament, in November 2013, gave its strong backing to the Commission's initiative (IP/13/1118). As the proposal advances in the negotiation process, the number of women on boards is on the rise.

Roma integration

Another area where the EU continues to take action to improve protection of equality rights and promote the adoption of positive measures is Roma integration. Member States committed to improve the economic and social integration of Roma communities by unanimously adopting a Council Recommendation on Roma integration in December 2013 (IP/13/1226). Throughout the process, Roma themselves were included in discussions at the highest decision-making levels. First results improving the lives of Roma are starting to show, the 2014 Commission assessment found.

Rights of the Child

Three years after the Commission first presented the EU's Agenda for the rights of the child, it has successfully delivered on the 11 priority actions in areas such as child-friendly justice, protecting children when they are vulnerable, shielding children from violence, and child participation (IP/14/392). It proposed legislation to better protect children who are suspects in criminal proceedings (IP/13/1157) and took action to ensure that the missing children hotline became operational across the EU. This has now happened in all Member States but one (SPEECH/13/503).

4) Solidarity

Consumer rights

The European Commission presented proposals recommending Member States to provide for collective redress mechanisms (IP/13/524) in their national systems. These proposals allow consumers to bring to court similar claims in one legal action.

In 2013 the deadline for the transposition of the Consumer Rights Directive lapsed. This means that all Member States must now have transposed the new rules into their national laws. The Commission therefore kicked off a consumer awareness campaign to make sure citizens are aware of the rights they can claim under the Consumer Rights Directive protecting consumers, especially those buying on the internet. The Directive guarantees, amongst others, the right to return goods within a period of 14 days and enhanced price transparency. It also bans surcharges for the use of credit cards and hotlines, as well as pre-ticked boxes on the internet, for example when consumers are buying plane tickets (MEMO/14/191).

In May 2013, the EU adopted new legislation on Alternative Dispute Resolution (ADR) and Online Dispute Resolution (ODR) for consumers and traders to be able to solve their disputes without going to court, in a quick, low-cost and simple way. Member States will have to implement the new rules by July 2015. Under the new legislation consumers will be able to turn to quality alternative dispute resolution entities for all kinds of contractual disputes that they have with traders, no matter what they purchased and whether they purchased it online or offline, domestically or across borders. An EU-wide online platform will be set up for disputes that arise from online transactions linking all the national alternative dispute resolution entities and operating in all official EU languages as of 2016.

5) Citizens’ rights

Electoral rights

The 2014 European elections will be the first to be held under the Lisbon Treaty, which has strengthened the powers of the European Parliament. In its recommendation of March 2013, the Commission invited political parties to endorse a candidate for European Commission President in the next European elections, and to display their European political party affiliation (IP/13/215). The recommendation aims to promote the right to vote, enshrined in Article 39 of the Charter, by informing voters about the issues at stake in these elections, encouraging a Europe-wide debate, and ultimately improving voter turnout. One year after the recommendation was made, the Commission found in its latest report that the ground is prepared to make the European elections more transparent and more democratic (IP/14/321).

The Commission also pursued a dialogue with several Member States to ensure that EU citizens can found and become members of political parties in the Member State in which they reside (MEMO/13/409).

Free movement

The European Commission also pursued a rigorous enforcement policy to ensure that the EU free movement rules are fully and correctly transposed and applied across the EU. As a result, two more Member States (Italy and Malta) took the necessary measures to transpose the EU free movement rules.

To boost free movement further, the Commission aimed at cutting red tape in the Member States, proposing to do away with bureaucratic rubber-stamping exercises for citizens and businesses in the Member States (IP/13/355) when it comes to public documents. The European Commission also contacted the Swedish authorities after receiving numerous complaints from holders of Swedish identity cards who were being prevented from travelling to an EU country outside the Schengen area on the basis of this document. Following this, Sweden committed to amend its legislation to ensure that Swedish nationals can travel freely to any country within the EU with their national identity card.

Regarding the free movement of workers, the Commission ensured a means of redress for them when exercising their right of free movement in the EU. The legislative proposal introduces a legal obligation for Member States to provide EU mobile workers with appropriate means of redress at national level (Article 47).

6) Justice

Fair trial rights and victims’ rights

Safeguarding procedural rights remains a priority for the EU.

Following the analysis of the national implementation of the Visa Code on the right to appeal against a visa refusal/annulment/revocation, the European Commission raised a number of questions on the compatibility of national legislations with the provisions of the Visa Code and of the Charter. It concluded that the right to an effective remedy and to a fair trial, as enshrined in Article 47 of the Charter, requires that the appeal against a visa refusal, annulment or revocation, includes, as only or last instance of appeal, access to a judicial body. Letters of Formal Notice were sent to several Member States.

In November 2013, the Commission proposed a procedural rights package consisting of three Directives and two Recommendations (IP/13/1157) to boost citizens' rights. These five legal measures strengthen the foundation for the European area of criminal justice.

The European Commission also proposed the establishment of a European Public Prosecutor's Office (IP/13/709). The Charter constitutes the common basis for the protection of rights of suspected persons in criminal proceedings during the pre-trial and trial phase. The activities of the European Public Prosecutor's Office should in all instances be carried out in full respect of those rights, the Regulation says.

In the Melloni case, the Court of Justice confirmed that the fundamental constitutional principle of primacy of EU law also applies to the relationship between the Charter, on the one hand, and the national constitutional provisions on fundamental rights, on the other hand. A Member State may thus not invoke a provision of its constitution, even if it ensures a higher level of protection of a fundamental right than the Charter, as a ground for not applying a clear provision of EU law.

Report on progress in equality between women and men

What are the objectives and results of the Strategy for equality between women and men (2010-2015)?

The Strategy for equality between women and men for the period 2010-2015 was adopted in September 2010 and reflects the Commission’s commitment to step up its activities in the field of gender equality (IP/10/1149). The Strategy lists actions to be implemented between 2010 and 2015.

It outlines five priority areas:

  1. equal economic independence for women and men;

  2. equal pay for work of equal value;

  3. equality in decision-making;

  4. dignity, integrity and ending gender violence;

  5. promoting gender equality beyond the EU.

The mid-term review of the Gender Equality Strategy, published on 14 October 2013, found that, half-way through the Strategy’s five-year time scale, the Commission is delivering on its commitments (MEMO/13/882).

What are the main conclusions of the gender equality report?

Gender gaps have decreased in most domains in the last five years, but at a slow and uneven pace. Challenges remain in fields such as reconciling work and family life, ensuring equal pay and gender balance in decision-making. The report also highlights the extent of violence against women.

The report shows that well-designed policies at EU and national level have helped tackle gender inequalities and combat violence against women.

What has the EU done for women in the workforce?

The employment rate for women across the EU is at 63%, up from 55% in 1997, which is only 2 percentage points lower than the U.S. and Japan (each at 65%).

There are also enormous differences between Member States when it comes to women in employment. The female employment rate is lower than 60% in Greece, Italy, Malta, Croatia, Spain, Hungary, Romania, Slovakia and Poland while it is above 70% in Sweden, Denmark, Germany, Finland, the Netherlands, Austria and Estonia.

EU-28 female and male employment rates (in %) and the gender gap in the employment rate, people aged 20-64, third quarter 2013

It is not enough to get more women into jobs: there is also the question of the quality of these jobs. 32% of women work part time compared to only 8% of men. While this can reflect individual preferences, it still leads to diminished career opportunities, lower pay and lower prospective pensions. The 'gender pension gap' shows that, on average across the EU, women’s pensions are 39% lower than men’s (IP/13/495).

Gender gaps therefore give rise to both economic and social costs and should be effectively tackled whenever they result from societal or institutional barriers or constraints.

What is the EU doing to address the remaining challenges to employment in the Member States?

The policies and economic incentives that can enhance women’s participation in the labour market are well-known: increasing childcare facilities, removing fiscal disincentives for second earners and tackling the gender pay gap.

As part of its economic strategy, Europe 2020, all EU Member States have committed to raising the employment rate of adults to 75% by 2020. The Commission is following up on this national commitment by proposing country-specific recommendations to the Member States every year, which include the issue of female participation in the labour market. The 2013 Country Specific Recommendations (CSR) adopted by the Council advocated the provision of high-quality and affordable childcare as well as adequate tax incentives for women to stay in or to return to work.

In addition to the Europe 2020 Strategy, the EU supports Member States’ objectives by providing funding for projects under the European Social Fund (ESF), including projects that:

  1. Promote women’s access to, and participation in, all levels of the labour market and help close pay gaps and support women’s financial independence;

  2. Promote women entrepreneurs and women’s participation in science and technology, in particular in decision-making positions;

  3. Combat gender stereotypes in career selection and the professions, and promote lifelong learning; and

  4. Reconcile work and family life and offer support for childcare facilities and carers of dependents.

  5. Support the integration into employment of immigrant women.

What is the gender pay gap and what has the EU done about it?

The gender pay gap is the average income difference between male and female employees across the entire economy. The latest figures (IP/14/190) show an average 16.4% gender pay gap in 2012 across the European Union. They show stagnation after a slight downward trend in recent years, with the figure around 17% or higher in previous years.

The gender pay gap has numerous complex causes, thus tackling it requires a comprehensive approach. The Commission has carried out various legislative and non-legislative actions to address the persisting gender pay gap:

  1. It is constantly monitoring the correct application and enforcement of the existing EU legal framework on equal pay at national level;

  2. The Commission published a report in December 2013 on the implementation of EU rules on equal treatment for women and men in employment (Directive 2006/54/EC) addressing different elements of the equal pay principle (IP/13/1227). The Report found that equal pay is hindered by a number of factors, including a lack of transparency in pay systems. It includes a section on gender-neutral job evaluation and classification systems, a summary of equal pay case law of the European Court of Justice, examples of national case-law on equal pay and examples of national best practices;

  3. In March 2014, the Commission adopted a Recommendation on strengthening the principle of equal pay between men and women through increased wage transparency (see IP/14/222 and MEMO/14/160).

  4. Awareness-raising actions: the Commission has established a European Equal Pay Day to increase awareness of the fact that women need to work longer than men to earn the same amount. The fourth European Equal Pay Day took place on 28 February 2014 (see IP/14/190);

  5. Support to national authorities and stakeholders: the Commission has also organised in recent years exchanges of good practice on issues related to the gender pay gap (tools to detect unequal pay, equal pay days). The Commission published an open call for proposals to support and fund civil society actions aiming at promoting gender equality and more specifically, actions addressing the gender pay gap.

Gender pay gap statistics

What has the EU done to promote gender equality on company boards?

In November 2012, the Commission proposed a Directive setting a 40% objective of the under-represented sex in non-executive board-member positions in publicly listed companies, with the exception of small and medium enterprises (IP/12/1205 and MEMO/12/860).

Although the Commission's proposal for a procedural quota is not yet law, it is already having an effect. The share of women on boards in the major publicly listed companies is on the rise (see IP/13/943): today, women represent on average 17.8% of board room members, up from 11.9% three years earlier, when the European Commission put the issue of under-representation of women on boards high on the political agenda. Since October 2010, the share of women on boards has risen 5.9 percentage points (pp), an average of 2.2 pp/year - four times the rate of change between 2003 and 2010. An increase in the share of women on boards has been recorded in all but six EU Member States. Progress is generally higher in countries with legislation in this area.

Regulatory pressure works: Cracking the glass ceiling

Gender balance on company boards across the EU countries

Countries with quotas record the biggest progress

What has the EU done for victims of domestic violence?

The EU has put in place a package of measures to ensure that the rights of victims are not forgotten, and victims are treated correctly. The Directive establishing minimum standards on the rights, support and protection of victims of crime was adopted on 25 October 2012 (Directive 2012/29/EU) ensuring that victims are recognised, treated with respect and receive proper protection, support and access to justice.

Additionally, the Regulation on mutual recognition of protection measures in civil matters (see IP/13/510), will help prevent harm and violence and ensure that victims who benefit from a protection measure in one EU country are provided with the same level of protection in other EU countries should they move or travel there. In this way, the protection will travel with the individual. The law will benefit women in particular: around one in five women in Europe have suffered physical violence at least once in their life, according to surveys.

This measure complements the Directive on the European Protection Order which applies to protection orders adopted under criminal procedures. Member States have to implement the provisions of this Directive into their national laws by 11 January 2015. The Directive means that women who have suffered domestic violence will be able to rely on a restraining order obtained in their home country wherever they are in the EU.

The European Commission also funds numerous awareness-raising campaigns in EU countries and supports grassroots organisations, NGOs and networks working to prevent violence against women. The main funding programmes are called DAPHNE III and PROGRESS. As of 2014, provision of funds will continue with the Rights, Equality and Citizenship Programme, supplemented by funds under the Justice Programme. Examples of recent projects can be found here.

In November last year, the Commission also announced a new push to fight female genital mutilation in the European Union and beyond (IP/13/1153), with a series of actions to work towards the elimination of FGM.

For more information

Press release on Fundamental Rights: IP/14/422

Press release on gender equality: IP/14/423

Press pack: Charter of Fundamental rights and gender equality reports:

http://ec.europa.eu/justice/newsroom/fundamental-rights/news/140414_en.htm

European Commission – Fundamental rights:

http://ec.europa.eu/justice/fundamental-rights/index_en.htm

European Commission – Gender equality:

http://ec.europa.eu/justice/gender-equality/index_en.htm

Questions and Answers: What has the EU done for women? 50 years of EU action on Gender Equality for One Continent: MEMO/14/156

Homepage of Vice-President Viviane Reding, EU Commissioner for Justice, Fundamental Rights and Citizenship: http://ec.europa.eu/reding

Follow the Vice-President on Twitter: @VivianeRedingEU


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