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Viviane Reding

Vice-President of the European Commission, EU Justice Commissioner

The binding EU Charter of Fundamental Rights: Key trends two years later

Centre for European Studies

Brussels, 16 April 2012

Ladies and Gentleman,

I am very pleased to be here in the Centre for European Policy Studies to present the 2011 Annual Report on the application of the EU Charter of Fundamental Rights. I am convinced that we need the fresh ideas of people who – like you make it very clear in your slogan - are "thinking ahead for Europe" to ensure the effective enforcement of the Charter.

As a general remark I believe that not always enough attention is paid to the question of how to really render effective existing law. Too often the discussion focuses on the elaboration of new legal texts. However, the challenge for all of us should be less to produce new standards but rather to ensure the effectiveness of all the existing rights. The question of how to render effective the existing law should be examined thoroughly, as it enables us to connect abstract legal texts with the reality that citizens face on the ground. From this perspective the Charter should be a central laboratory for the Centre for European Policy Studies and for all think tanks. It is a living instrument that is part and parcel of the corpus of fundamental rights of the Union's legal order. Its effective enforcement requires constant thinking!

The Annual Report on the application of the Charter intends to contribute strongly to this debate. Two years after the Lisbon Treaty came into force, what can we say about the application of the Charter? What are the effects of the new corpus of fundamental rights on the Union's institutions and its policies? I will not present the shopping list of what has been achieved. Let me just highlight some key findings which illustrate the important trends we have observed.

1. First: there is a real appetite within the general public for learning more about how to use the Charter. The results of the Eurobarometer survey published today confirm that the general awareness of the Charter of Fundamental Rights is on the rise, moving up to 64% in 2012 from under 50% in 2007.

However when it comes to detailed knowledge, the large majority of citizens do not know when the Charter applies. About two-thirds of citizens would like to learn more about their rights enshrined in the Charter and about who and where to turn to if they have been violated. It is, for example, striking to see that many citizens perceive EU institutions as having the same redress function as national courts or independent bodies. Also, many citizens do not know that the Charter only applies when it comes to the implementation of EU law. These are just two examples of frequent misunderstandings that I and many of my fellow Commissioners experience in our daily work.

The need to improve communication to respond to these questions has already been identified in the first annual report. This task requires shared efforts by all EU institutions and Member States. In particular, appropriate information should be provided through the e-Justice portal on where to complain if a citizen considers his or her fundamental rights have been violated. The portal provides information on national courts and on bodies handling complaints on fundamental rights, such as the national Ombudspersons, National Human Rights Institutions and Equality bodies. This information is gradually being updated for all Member States.

2. Second: the Charter is becoming more and more of a reference point for all EU institutions. I have always said that the Charter must be a compass for the development of EU policies. As a result, fundamental rights protection, once a sideshow, is now becoming a central feature of the EU law making and legal implementation process. In practice, the reinforced role of the Charter in the EU legislative process results in more concrete and tangible rights for citizens at the end of the process

The new EU legislation on the use of security scanners in airports is a concrete illustration of this. When drafting the legislation the Commission carefully assessed the impact on fundamental rights of different available policy options. It chose to propose the option that was identified as offering the best protection of fundamental rights while effectively addressing threats to aviation security.

The outcome of this careful fundamental rights assessment is that travellers will be entitled to opt out of the security scanners procedure and be checked by alternative screening methods at EU airports thanks to Commission action. In addition, detailed conditions are laid down to ensure that operators respect the right to the protection of personal data and private life. Airports must make sure that security scanners do not store, retain, copy, print or retrieve images.

Beyond this specific example, in 2011 key progress was made to promote the rigorous and systematic assessment of the fundamental rights impact of any legislative proposal at each stage of law-making.

The Commission established detailed guidance on how the impact on fundamental rights should be assessed by Commission officials when they prepare new legislation, for example when they define and assess the various policy options.

The Council committed - for the first time - to ensuring that Member States proposing amendments to Commission legislative initiatives assess the impact of those amendments on fundamental rights. This commitment is a significant development which helps to ensure that 'final compromises' are not obtained at the expense of fundamental rights.

The Court of Justice is also increasingly using the Charter. In 2011 it issued close to 50 rulings that include a reference to the Charter, a rise of 50% as compared to 2010. It is interesting to note that the right to an effective remedy and a fair trial (Article 47 of the Charter) was the most quoted right in the decisions of the Court of Justice (1/3 of all these decisions). As this right is crucial for the effective enforcement of any EU legislation, this shows that the Charter is indispensable for the smooth functioning of the whole EU legal system.

3. Third: the Charter is more frequently used at national level by national courts. National judges increasingly referred to the Charter when addressing preliminary questions to the Court of Justice. In 2011, such references rose by 50% as compared to 2010.

A remarkable example of this is the landmark Scarlet ruling. In this decision, the Court of Justice of the EU had to balance colliding fundamental rights. The concrete dispute arose between two companies, one being an internet service provider and the other a management company representing artists in authorising the use of their copyright-protected works. The latter wanted the internet service provider to install an automatic filtering system, which should make it impossible for users to share electronic files by means of so-called peer-to-peer software. On the one hand, sharing files in this manner would be an infringement of intellectual property rights, on the other hand, obliging an internet service provider to install a filtering system would infringe the freedom of the provider to conduct its business, as well as its customers' rights to the protection of their personal data and to receive or impart information.

The Court stated that it would need to balance the colliding fundamental rights, all of them contained in the Charter. In this case, the Court came to the conclusion that the injunction requiring the installation of a filtering system involved monitoring all the electronic communication, with no time limit to this monitoring and also protecting not only existing works, but also future ones. This would be a "serious infringement of the freedom of the internet service provider to conduct his business" and, moreover, "may also infringe the fundamental rights of the customers, namely their right to protection of their personal data and their freedom to receive or impart information". This example shows very well how the Charter can be used for the protection of citizens in their daily lives, on this particular occasion when they use the Internet!

4. Fourth: the Charter plays a key role in building mutual trust between Member States and, more generally, public confidence in the Union's policies and laws.

For example, in the area of asylum, the effectiveness of EU policies has been challenged due to systemic problems that risked undermining mutual trust among Member States. The Court of Justice ruling on the Dublin Regulation – the EU instrument which determines the Member State responsible for the assessment of asylum applications – is an important signal recalling the duty of all Member States to apply the Charter when EU law comes into play.

This was the referral of a case brought by an Afghan asylum seeker against a decision by the UK Courts challenging his transfer to Greece by the United Kingdom. Greece was deemed to have accepted responsibility for consideration of the claim and the asylum seeker would be transferred to have his claim considered there. The Afghan asylum seeker appealed stressing that the functioning and overloading of the asylum system in Greece could result in not having his application to be treated and reviewed properly.

The Court found that applying the Dublin Regulation on the basis of the conclusive presumption that the asylum seeker’s fundamental rights will be observed in the Member State responsible was “incompatible with the duty of the Member States to interpret and apply the Dublin Regulation in a manner consistent with fundamental rights”.

This ruling effectively banned transfers of asylum seekers to other Member States if due to systemic deficiencies in the asylum procedure and reception conditions the asylum seeker would face a real risk of being subjected to inhuman or degrading treatment in that Member State. As a result Member States have suspended their transfers to Greece because of the current state of the asylum system there and this despite the fact that Greece would be the Member State responsible for assessing the asylum application according to the EU rules.

The Commission, under the responsibility of my colleague Home Affairs Commissioner Cecilia Malmström, has been investing great efforts both financially and through practical assistance to remedy the situation in Greece. These are confidence-building measures that serve to put in place the appropriate mechanisms strengthening the mutual trust that is needed for the European asylum system to operate.

The mutual trust based on the effective respect of the laws of the European Union, which themselves are based on the Charter, is indispensable for the development of a truly functioning European area of freedom, security and justice.

A lack of confidence in the capacity of immigration, judicial and law enforcement authorities in Member States to comply with the rights set by EU law on the basis of Charter would hinder the operation of the European area of freedom, security and justice.

For this reason, and beyond the enforcement of the Charter, the Commission also took action in 2011 to put in place confidence-building measures in different justice and home affairs related areas. This is the example of the work in Greece to improve the asylum system there but also the work aimed at strengthening the procedural rights of people involved in criminal proceedings. This means taking action to protect and strengthen the rights of victims and suspects of crime.

The Commission proposed in 2011 a new set of instruments to guarantee that victims are treated with respect and dignity, that they receive protection and support for their physical integrity and their property, and that they have access to justice and compensation. Regarding the rights of persons suspected of a criminal offence, the Commission presented a proposal which foresees that suspects have to be informed about their rights in a language that they understand in every Member State. Anyone who is arrested will have to be informed about his rights through a document called a "Letter of Rights".

5. My fifth and last finding relates to gender equality. The matter of diversity in economic leadership positions was brought to the fore of the policy debate in September 2010, when we announced that we could use targeted initiatives to get more women into top jobs in decision-making.

The first steps towards action were taken on 1 March 2011 when I launched the “Women on the Board Pledge for Europe”. This was a call on publicly listed companies in Europe to sign a voluntary commitment to increase women’s presence on their corporate boards by means of actively recruiting qualified women to replace outgoing male members.

A number of governments actively supported this initiative and encouraged national listed companies to make more efforts to increase women’s representation on their boards by signing the Pledge. The European Parliament strongly supported the Commission’s approach calling for legislation at European level if companies do not make sufficient progress through self regulation.

What is the incentive for businesses and for governments to play along? Gender equality is about fairness and equity. But we all know that gender equality is also an economic growth factor. Greater gender equality and a more efficient use of everyone's skills is a part of the solution to the current crisis. Leaving women behind means not only forsaking the important contribution women make to the economy but also wasting years of investment in education of girls and young women. We should all take the crisis as an opportunity for change as gender equality is a precursor for boosting business potential.

And the Charter in action also plays a key role in pushing for more gender equality in the European Union. Last year the Court of Justice handed down its judgment on a case concerning a provision of the 2004 Gender Directive which allowed insurance companies to differentiate premiums and benefits to some extent based on gender related factors. This was the case brought by the Belgian consumer group Association Belge des Consommateurs Test-Achats. The Court was very clear. It ruled that different insurance premiums for women and men constitute sex discrimination and are not compatible with the Charter. Member States are not allowed to derogate from this important principle in their national legislation. The relevant "opt out" clause in the 2004 Gender Directive was thus considered illegal.

30 years earlier, the Supreme Court of the United States had ruled that the Civil Rights Act of 1964 prohibited different treatment of insured persons on the basis of their sex in connection with pension funds.

In 2011 it was the EU Court of Justice that took an important step towards clarifying he fundamental right of gender equality under EU law. This ruling also underlines the power and importance of our Charter. It has the same legal value as our EU Treaties. No EU legislation can be adopted that conflicts with the rights and principles guaranteed by the Charter. The Charter is slowly yet surely becoming a key feature of our European government of laws.

Ladies and gentlemen,

These are just a few examples of how the Charter has been applied in 2011. You will find many other examples in the report which shows how the Charter plays an increasing role in guiding many different EU policies such as those relating to transport, internal market, home affairs, digital agenda, employment and justice.

Having said that, we still need to make consistent progress in order to render more effective the rights in the Charter.

In times of economic crisis, a legally stable environment based on the respect of fundamental rights is crucial both to promote growth and to protect the most vulnerable citizens. The Annual Report aims in particular to generate a constructive debate on how to better use the Charter with all interested parties, not only with the European Parliament, the Council and civil society but also with think tanks like the CEPS.

I look forward to hearing your views and support to realising the vision of the Lisbon Treaty: to build a fundamental rights system in Europe in which the judicial and political actors at each level – national, Union and pan-European – will retain their importance and see their respective missions as complementary and mutually reinforcing. This will make the law work better for those whom it affects. Our citizens deserve nothing less.

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